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Court denies attorneys' fees in FOIA settlement; plaintiffs now must win in court to collect fees

SPJ FOI Alert (Vol 7. No. 3)

Ian Marquand, SPJ Freedom of Information Committee co-chairman, ian@kpax.com or 406/542-4449

THE DECISION: Oil, Chemical & Atomic Workers vs. Department of Energy (Case No. 01-5163)
THE COURT: District of Columbia Circuit Court of Appeals

An appeals court that plays a leading role in lawsuits involving the Freedom of Information Act (FOIA) has made it more difficult to collect attorneys’ fees from the government for such suits.

The U.S. Court of Appeals for the District of Columbia essentially ruled May 10 that attorneys’ fees in a FOIA dispute may be awarded only when a court has issued a judgment or a court-ordered consent decree.

This recent decision, OCAW vs. Department of Energy, appears to be bad news for plaintiffs who settle with federal entities without further court involvement.

Prior to this decision, courts in FOIA cases followed the “catalyst theory”: so long as the “litigation substantially caused the requested records to be released,” the FOIA plaintiff could recover attorney’s fees even though the district court had not rendered a judgment in the plaintiff’s favor.

The court’s ruling came in a case which pitted the Oil, Chemical and Atomic Workers, now part of the Paper, Allied-Industrial, Chemical and Energy Workers International Union, against the United States Enrichment Corporation (USEC). The corporation was formed by the U.S. government to operate uranium enrichment plants in Ohio and Kentucky. In 1996, the federal government announced plans to privatize USEC.

Acting out of concern for its members, the union used FOIA and the federal Government In the Sunshine Act (GITSA) to request information about the planned privatization. USEC denied the requests, and the union sued in district court in Washington.

As a result of that lawsuit, the D.C. district court ordered the government to search for and release all information not claimed to be privileged or exempt. By December of 1999, USEC had released enough information that the union dropped its FOIA and GITSA suits. However, the parties could not agree on whether the union was entitled to recover its attorney’s fees under FOIA.

The union applied to the district court for fees in April 2000. In March of 2001, the court ruled that the union could recover only part of the fees it requested. The union appealed and, last week, a three-judge panel of the appeals court ruled 2-1 against the awarding of fees. In doing so, the court borrowed and narrowly interpreted a U.S. Supreme Court decision that dealt with attorney’s fees in another area of federal law.

The Buckhannon case, 532 U.S. 598 (2001), concerned attorney’s fees under the Civil Rights Act and the Americans with Disabilities Act. In that case, the Supreme Court rejected the “catalyst” theory for recovery of attorney’s fees. The high court cited two situations in which attorneys’ fees could be recovered:
1) A judgment on the merits in favor of the plaintiff.
2) A court-ordered consent decree.

In the wake of Buckhannon, many courts have looked at requests for attorneys’ fees on a case-by-case basis. Some courts have awarded fees following settlements because a judge’s order played a significant role in the final disposition of the case.

The D.C. Circuit’s decision in OCAW appears to reject that approach. The court refused to find an award of attorney’s fees appropriate, even though the government had released documents as a result of a court order.

It’s worth noting that Judge Rogers issued a sharp dissenting opinion in OCAW. She wrote that the Buckhannon test would be satisfied if the court considered the “judicial imprimatur on change.”)

In the D.C. Circuit, and in other jurisdictions that follow suit, it now will be nearly impossible to recover attorneys’ fees in FOIA cases unless the plaintiff wins a final judgment or a consent decree from a judge.

Robert Becker, SPJ's Project Sunshine Chair for the District of Columbia, believes federal agencies will be more likely now to force FOIA disputes to court than settle before a judge issues a decision, leaving the plaintiff to pick up the tab for legal fees.

“The net effect is that agencies send the message that it’s going to cost you big bucks to get this info, and we’re going to prevent you from recouping those costs,” Becker said. “That’s a pretty powerful disincentive to litigating FOI cases.”

From a practical standpoint, FOIA plaintiffs can try to negotiate the recovery of attorneys’ fees into settlement agreements. They also should insist on a court-mediated consent decree whenever possible.

To read the entire OCAW decision, visit the website “FindLaw for Legal Professionals” at:


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The Society of Professional Journalists works to improve and protect journalism. The organization is the nation's largest and most broad-based journalism organization, dedicated to encouraging the free practice of journalism and stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to a well-informed citizenry; works to inspire and educate the next generation of journalists; and protects First Amendment guarantees of freedom of speech and press.

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