Vermont Low Income Advocacy Council, Inc. v. William J. Usery, Secretary of Labor, 546 F.2d 509, 2d Cir. (1976)
Vermont Low Income Advocacy Council, Inc. v. William J. Usery, Secretary of Labor, 546 F.2d 509, 2d Cir. (1976)
2d 509
36 A.L.R.Fed. 519, 2 Media L. Rep. 1281
This appeal arises under the provision of the Freedom of Information Act
(FOIA), 552(a)(4)(E),1 authorizing a court to award reasonable attorney fees
and other litigation costs in any case where the complainant has substantially
prevailed. Although we do not agree with so much of the decision of the district
court as indicates that an order directing production is a necessary condition for
an award of attorney fees and costs under the FOIA, we affirm the denial of an
award on the facts of this case.
By letter of August 28, 1975, a request was made under the FOIA on behalf of
the Vermont Low Income Advocacy Council, Inc. (VLIAC) to the Boston
office of the United States Department of Labor for
The Boston office of the Labor Department denied VLIAC's request by a letter
of September 8 within the 10-day response period of the FOIA, 5 U.S.C.
552(a) (6)(A)(i). It cited the "intra-agency memoranda" exemption, see 5
U.S.C. 552(b)(5); 29 C.F.R. 70.25. By letter of September 16, VLIAC
appealed this denial to the Solicitor of Labor in Washington, D.C., disputing the
applicability of the exemption on the basis of the content of the material
requested. On October 2, the Solicitor's office wrote to VLIAC acknowledging
receipt of the appeal on September 24 and advising that a reply would be sent
by October 22; the letter also referred to the necessity of obtaining the records
from the regional office prior to disposition of the appeal. The Solicitor's office
requested the records by telephone from the regional office on October 3;
apparently something was forwarded immediately to the Washington office but
was lost in transit.
The Department did not communicate further with VLIAC within the 20-day
period for determining appeals under the FOIA, 5 U.S.C. 552(a)(6)(A)(ii). By
letter of October 30, VLIAC informed the Solicitor's office that it intended to
file suit to obtain the requested records unless they were received by November
5. The letter was received by Ms. Petters, Administrative Counsel for Legal
Services in the office of the Solicitor of Labor, on November 5. In response,
Ms. Petters sent a telegram to counsel for VLIAC on November 6. This said:
VLIAC did not respond to the suggestion of further discussion or the request
for its telephone number in the Department's November 6 telegram although
receipt of the telegram is admitted. Instead, on November 12 VLIAC filed suit
in the United States District Court for the District of Vermont seeking
preliminary and permanent injunctive relief against the withholding of the
requested records and attorney fees and costs under 552(a)(4)(E) of the
FOIA.2
10
The correct records from the regional office were received in Washington on
December 11 following a second search for the material ordered by the
Solicitor's office. On December 12, an informal determination was made to
grant VLIAC's appeal with the exception of certain minor deletions deemed
necessary to prevent invasion of personal privacy, see 5 U.S.C. 552(b)(6); 29
C.F.R. 70.26. On December 16, VLIAC mailed its motion for summary
judgment to the district court and this was filed the following day together with
the Government's answer denying VLIAC's entitlement to relief. On or about
December 16, after VLIAC had mailed its summary judgment motion, VLIAC
was informed by telephone of the Department's favorable decision of its appeal;
that decision later was embodied in a letter of December 22 from the Solicitor
of Labor accompanying the documents which were received by VLIAC on
December 30. VLIAC then withdrew its motion for summary judgment and on
January 13, 1976 filed a motion seeking an award of attorney fees and costs
pursuant to 552(a)(4)(E). On February 26 the Government filed a motion
asking that the suit be dismissed as moot and opposing VLIAC's motion for
fees. A hearing was held on February 27.
11
In an opinion filed April 1, 1976, Chief Judge Holden of the District Court for
Vermont dismissed the action and denied VLIAC's motion for attorney fees and
costs. His reasoning was:
12 the first instance the information was withheld on what may have been an
In
erroneous interpretation of the recent statute. On appeal the administrative decision
was delayed until the correct requested material could be retrieved from the
Regional office. While the delay generated the present litigation, as soon as the
defendant discovered the plaintiff was lawfully entitled to a part of the records, the
appropriate material was supplied. Certain material was withheld apparently with
some legal justification. In any event, there is nothing this court has done to grant
the plaintiff the relief prayed for in the complaint. There has been no judicial action
to establish the plaintiff as the prevailing party. The plaintiff's motion for an award
of attorney's fees and costs will be denied and the action dismissed.
13
14
15
The amendment had its origin in a 1972 report of the House Committee on
Government Operations, H.Rep. No. 92-1419 (92d Cong., 2d Sess.), reprinted
in Freedom of Information Act and Amendments of 1974 (94th Cong., 1st
Sess., March 1975) (hereafter Leg.Hist.), p. 3. The Committee recommended:
16
Court
costs and reasonable attorneys' fees should be awarded, in the discretion of the
court, to the complainant if the court issues an injunction or order against the
Government agency on a finding that the information sought was improperly
withheld from the complainant.
17
Leg.Hist. 90. The bill as passed by the House, H.R. 12471, provided in 1(e):
18 court may assess against the United States reasonable attorney fees and other
The
litigation costs reasonably incurred in any case under this section in which the
United States or an officer or agency thereof, as litigant, has not prevailed.
19
Leg.Hist. 147. The section-by-section analysis of the House Report, H.Rep. 93876, U.S.Code Cong. & Admin.News 1974, pp. 6267, 6276, stated:
20
Section
(1)(e) . . . allows the assessment of attorney fees and costs against the
agency on behalf of a litigant. The assessment of fees and costs is at the option of
the court.
21
22 court may assess against the United States reasonable attorney fees and other
The
litigation costs reasonably incurred in any case under this section in which the
complainant has substantially prevailed. In exercising its discretion under this
paragraph, the court shall consider the benefit to the public, if any, deriving from the
case, the commercial benefit to the complainant and the nature of his interest in the
records sought, and whether the government's withholding of the records sought had
a reasonable basis in law.
23
24 bill allows for judicial discretion to determine the reasonableness of the fees
The
requested. Generally, if a complainant has been successful in proving that a
government official has wrongfully withheld information, he has acted as a private
attorney general in vindicating an important public policy. In such case it would
seem tantamount to a penalty to require the wronged citizen to pay his attorneys' fee
to make the government comply with the law. However, the bill specifies four
criteria to be considered by the court in exercising its discretion: (1) "The benefit to
the public, if any deriving from the case"; (2) "the commercial benefit to the
complainant"; (3) "the nature of" the complainant's "interest in the records sought";
and (4) "whether the government's withholding of the records sought had a
reasonable basis in law."Leg.Hist. 171. The Conference Committee proposed the
simpler version which was adopted. It explained in H.Rep. No. 93-1380:
25 conference substitute follows the Senate amendment, except that the statutory
The
criteria for court award of attorney fees and litigation costs were eliminated. By
eliminating these criteria, the conferees do not intend to make the award of attorney
fees automatic or to preclude the courts, in exercising their discretion as to awarding
such fees, to take into consideration such criteria.
26
Leg.Hist. 227.
27
The point most strongly urged by appellant and opposed in brief by the
Government is that the district court erred in concluding that the rendition of a
plaintiff's judgment was a necessary condition for the award of attorney fees
and costs. While that would have been true under the original proposal made by
the House Committee on Government Operations in 1972, we agree that under
the bill as enacted a judgment is not an absolute prerequisite to such an award,
as indeed the Government seemingly conceded at argument. To take an
extreme example, Congress clearly did not mean that where an FOIA suit had
gone to trial and developments made it apparent that the judge was about to
rule for the plaintiff, the Government could abort any award of attorney fees by
an eleventh hour tender of the information requested.
28
Our agreement with appellant on this score does not mean, however, that a
reversal is mandated. Just as Congress did not mean that an award of attorney
fees in a FOIA case could never be made in the absence of a judgment for the
plaintiff, neither did it mean that a plaintiff was entitled to an award of such
fees whenever a suit was brought and the requested information (or the bulk of
it) was thereafter furnished. The Conference Report stated, in complete accord
with the House and Senate Reports, that "the conferees do not intend to make
the award of attorney fees automatic," and that such an award lies in the court's
sound discretion. The detailed list of criteria governing a court's discretion
which the Senate bill had contained was eliminated not because the conferees
disagreed with it but because they regarded it as "too delimiting" and
"unnecessary." Leg.Hist. 227. This case illustrates the wisdom of their action.
29
30
Concededly the specified time periods had run when VLIAC filed its complaint
on November 12, 1975. But, as every lawyer should know, the fact that a party
is legally entitled to invoke the aid of the courts does not demonstrate that a
rush to the courthouse door is always reasonable. Six days before VLIAC filed
its complaint, Ms. Petters dispatched the telegram which we have quoted
above, and VLIAC received this the following day. The telegram revealed a
situation, not unusual in government or other large organizations, that had
rendered it impossible for the Solicitor to make good on his promise to decide
the appeal by October 22, namely, that the file had not been located. Ms.
Petters made the seemingly reasonable request that VLIAC let her know its
telephone number "so that we may contact you to discuss." The obvious
purpose of this request was to attempt to work out a new timetable for decision
of the appeal in light of the unexpected and excusable difficulty the Solicitor
had encountered in obtaining the records essential to making a decision.3
Counsel for VLIACtold the district court he was "flabbergasted" by the request
for the telephone number since it intimated that "the Government was incapable
of finding that out themselves via Information" or through the Boston office
which had the telephone number.4 Doubtless Ms. Petters could have found
VLIAC's telephone number in one or the other of these ways but we see no
sufficient excuse for counsel's failure to make the minimal response she
suggested not to speak of the still better and altogether natural course of picking
up the telephone and making a collect call which would have afforded counsel
an opportunity for the catharsis he evidently considered necessary as well as for
more constructive endeavors. VLIAC was not operating under any time
constraints. The date when the requested information could have been put to
use in connection with the 1975 apple harvest had long since expired; on the
other hand a delay of a few weeks in bringing suit involved no significant
danger that the information would not be available in time to make
representations concerning the harvest in the fall of 1976. While counsel for
VLIAC was legally entitled to indulge his feelings with respect to Ms. Petters'
request, we see no reason for rewarding VLIAC with moneys from the public
treasury for his adding what turned out to be a needless suit to the heavy docket
of the District Court for Vermont.5 Doubtless it would have been better if,
despite VLIAC's refusal to respond to the telegram of November 6 and the
filing of suit on November 12, the Department had made some progress reports
to VLIAC that might have avoided the expense of the latter's preparing a
motion for summary judgment. Still it was VLIAC that had decided to make a
"federal case" out of a matter that, as the November 6 telegram indicated, had
promise of amicable resolution.6
31
Furthermore, the district court was justified in concluding that the suit was not
the cause of the delivery of the information. The report of the Conference
Committee demonstrates that Congress did not wish to impose a rule of post
hoc, ergo propter hoc. Once the proper files were obtained, the Solicitor
promptly pursued his review of them and quickly decided to release the bulk of
them after appropriate deletions,7 pursuant to the Department's general policy
of releasing any documents if the authorized officer
32
determines
that, notwithstanding the applicability or possible applicability of an
exemption from disclosure, the requested inspection or copying furthers the public
interest and does not impede the discharge of any of the functions of the Labor
Department.
33
34
Affirmed.
The court may assess against the United States reasonable attorney fees and
other litigation costs reasonably incurred in any case under this section in which
the complainant has substantially prevailed.
2
Compare Leg.Hist. 126, reproducing the 1974 House Report which stated,
although in reference to time limit problems in retrieval of records from "remote
location(s) outside the country," that
In such unusual cases, the committee expects that the requestor will accept the
good faith assurances of the agency that the information requested will be
retrieved and the request itself acted upon in the most expeditious manner
possible.
At the argument before us VLIAC's counsel repeated that he was "a bit put off"
on the latter account
Counsel for VLIAC conceded at argument that if he had known all the facts set
forth in the affidavits of the Labor Department officials concerning their
difficulties in obtaining records and the efforts being made to surmount them,
he would not have gone to court. He would have had this knowledge if he had
responded to Ms. Petters' request
We do not think that the Government's failure to employ the "time release"
provisions, see fn. 2, adds anything to VLIAC's position. Such a failure merely
allows the litigation to commence and continue in its normal course; it does not
bar the Government from opposing or a court from rejecting an application for
an award on the basis of the unreasonableness of the applicant's going to court
The correct records were not received in Washington until December 11, 1975.
Informal decision to allow the appeal was made on December 12, and the
records were sent to VLIAC ten days later after the Department made certain
deletions which plaintiff concedes to be proper
In the light of this policy, the fallacy in appellant's argument that release of the
documents demonstrates the absence of "a reasonable basis in law" for the
withholding of the documents the language of the Senate bill becomes
apparent. Indeed, although we do not decide this point, it is not at all clear to us
that the documents might not have been within the exemption, 552(b)(5), for
intra-agency memoranda. See Title Guarantee Co. v. NLRB, 534 F.2d 484,
492-93 n. 15 (2 Cir. 1976)
VLIAC relies heavily on several district court opinions granting fee awards in
FOIA cases in the absence of court-ordered relief. As indicated, we agree that
such an order is not a prerequisite to an award. See Kaye v. Burns, 411 F.Supp.
897 (S.D.N.Y.1976). Several of these decisions noted the relevance of the
necessity for the litigation or the causal relation between the suit and the
agency's compliance with the plaintiff's request. See Consumer's Union of
United States, Inc. v. Board of Governors, 410 F.Supp. 63, 74 (D.D.C.1975);
Ruiz v. Bedell, Civil No. 75-0465, at 2 & n. * (D.D.C., Sept. 8, 1975);
American Federation of Government Employees v. Rosen, 418 F.Supp. 205,
208 (N.D.Ill.1976); Emery v. Laise, Civil No. 76-516, at 4 (D.D.C., June 3,
1976). But see Communist Party of the United States v. Department of Justice,
Civil No. 75-1770, at 4 (D.D.C., March 23, 1976)
In view of our disposition, appellant's citation to Campbell v. United States
Civil Service Comm'n, 539 F.2d 58 (10 Cir. 1976), is unavailing. The district
court there partly granted the FOIA complainant's request and enforcement of
the order was stayed pending appeal. Following a decision in another circuit
holding documents similar to some of those requested not to be exempt, the
agency publicized part of the requested material, including all that had been
ordered released by the district court. In the appeal, the Tenth Circuit held the
remaining documents in dispute exempt but it remanded to the district court for
consideration of an increase in the lower court's initial $250 fee award. Nothing
suggests, however, that the applicant's resort to the courts was unreasonable and
we do not disagree with the implication in Campbell that an FOIA litigant who
has won a court order directing production of records over agency assertions of
exemptions should not be denied fees simply because the agency discloses the
material on the basis of a decision in another circuit during the pendency of the
appeal and while the district court order is stayed.