FOIA Update: Approaching the Bench: Determining Attorney's Fees

January 1, 1981

FOIA Update
Vol. II, No. 3
1981

Approaching the Bench


Determining Attorney's Fees

The Freedom of Information Act provides that the court "may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case . . . in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). The first question upon receipt of a motion for attorney's fees is whether the plaintiff "substantially prevailed."

The second question when responding to a fee application is whether the four factors in Nationwide Building Maintenance(1) have been satisfied. These include:

(1) whether the public interest is served by disclosure,

(2) whether a commercial interest is served by disclosure,

(3) the nature of the plaintiff's interest in the records sought, and

(4) the reasonableness of the government's asserted legal basis for withholding the documents.

Lasalle Extension University (2) indicates that no one factor is controlling and that all four of the Nationwide factors provide guidance and direction to the exercise of discretion by the district court.

After deciding both of these issues regarding basic entitlement to a fee, the third issue is how to calculate what is a reasonable fee. The U.S. Court of Appeals for the District of Columbia Circuit has adopted a "lodestar" approach in Copeland v. Marshall,(3) i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate.

Copeland defines reasonable hourly rate as the rate prevailing in the community for similar work. A plaintiff requesting a particular hourly rate should demonstrate that the majority of the paying clients in the marketplace pay at that rate. A billing rate not paid by a client does not reflect the market rate. Past awards against the government are of limited relevance since the government was not a willing client and, in most past cases, the court did not award fees based on Copeland's market rate analysis.

Some attorneys may find it difficult to establish their own market rate because they take most, if not all, of their cases on a contingent fee basis. In those cases, these attorneys should show the fees charged and paid to attorneys whose experience they believe is similar. Copeland is based upon the market rate for similar work. The rates large firms charge corporate clients may be similar to that appropriate for large and complex class actions. However, the rates charged corporate clients by large firms are not appropriate for most cases since the work is not similar. To help determine the appropriate hourly rate, it may be helpful to discover the fee agreement involved in the specific action.

Equal Access to Justice Act

The Equal Access to Justice Act(4) authorizes the payment of attorney's fees to a private person who wins in a administrative or judicial proceeding against the United States unless the position of the government was substantially justified or special circumstances make an award unjust. The act provides that attorney's fees shall not be awarded in excess of $75 per hour. An exception may be made if the court determines that an increase in the cost of living or a special factor--such as limited availability of qualified attorneys available for the proceedings involved -- justifies a higher fee. Although this act does not apply to FOIA, the $75 per hour amount sets a standard of what Congress thinks is a reasonable rate.

Each attorney who does different kinds of work in the litigation may have a different rate. For example, if the attorney does not seek a lower hourly rate for out-of-court work, the government may request that the court lower the hourly rate for out-of-court work. Copeland differentiates between court appearances, review of pleadings by senior partners, research and drafting, and depositions. Other considerations that may affect the market rate are the level of skill necessary, time limitations, the relief sought in the litigation, the attorney's reputation and the undesirability of the case.

A party seeking an attorney's fee must document the number of hours of work performed. Attorney's fees may not be paid for work performed in the administrative processing of FOIA requests.(5) The plaintiff should provide, at a minimum, an affidavit with a breakdown of hours per date expended by each attorney and the specific task performed during the time period. The breakdown should include all of the actual hours of work performed, whether or not the attorney seeks compensation for those hours. In lieu of that breakdown, attorneys may provide copies of their work sheets, time logs or other record keeping devices, to the degree that the same information is available.

Time logs are essential if an attorney has billed questionable hours such as a large number of hours for a brief that very closely resembles one previously filed in another action, a five-hour charge for a two-hour deposition, a charge for work which may have also been billed in other cases, or a charge for a large number of hours for a relatively short uncomplicated hearing. Also if work is inadequately described, work sheets or time logs should be requested. If any of these questions cannot be explained, the government may ask the court to schedule a factual hearing.

The government might challenge time if several attorneys are present at a deposition, a hearing or are in conference themselves. If two or more attorneys are present, the government should agree to pay for the hours of only one attorney. All attorney's hours must be reviewed to evaluate the reasonableness of the hours expended on each particular project. For instance, expert attorneys should not bill for large blocks of research time on preparation of a motion for indexing of the withheld documents which might better be done by a paralegal.

Finally, attorneys should not be compensated for litigating unsuccessful claims. Examples would include a discovery request to which the government successfully objected or motions to compel or motions for summary judgment that were denied. If the discovery was duplicative, attorney' fees should not be paid. In short, attorney's hours expended on issues upon which the plaintiff did not prevail in the litigation should not be counted.

The purpose for the government and the courts knowing the actual number of hours expended in detail is so that the government, and again the courts, can determine the reasonable number of hours expended. Counsel must exercise billing judgment. Hours that an attorney would ordinarily not bill to a client should not be billed to the governmen. But an attorney may charge for time spent collecting fees

While the government should not expect the courts to go over each attorney's affidavit or time sheets with a fine-toothed comb, the government should go over each attorney's hours to determine whether the attorney is exercising the billing judgment that Copeland says the government has a right to expect. If a firm has exercised billing judgment, it will not be seeking payment for every actual hour spent on a suit.

The lodestar may be adjusted upward or downward by various factors. The burden is on the party proposing the deviation to justify it. An adjustment may be appropriate to compensate for the risk that the lawsuit may be unsuccessful and that no fee may be awarded. The lodestar may be adjusted as well for the quality of representation only where it was unusually good or bad. An upward adjustment would only be appropriate for exceptional results or performance

Protecting the taxpayer against excessive fee awards is an important obligation of government counsel.(6) One district court recently commented in a FOIA case that "particularly in a time when our nation is seeking to stem wasteful Government spending, an order in this case requiring the Government to pay an excess sum in attorney's fees would be unseemly."(7) Indeed, in the case cited the court found that "the bad faith demonstrated by plaintiff in his asserted claim demands denial of any award whatsoever." Relying on a Seventh Circuit case,(8) the court found that requiring a court to award a reasonable fee when an outrageously unreasonable one had been claimed would only encourage unreasonable demands. The court found that "the record-keeping and documentation of hours worked in this case was abysmal" and noted that "Copeland mandates sufficient documentation so that this Court can exercise billing judgment to excise nonproductive or duplicative time from the hours claimed for compensation." The court further observed that since the court's award must be based on the market value of the services rendered, the court "must be provided with the documentation in the market place, i.e., by clients from law firms." The court found that the plaintiff's "breakdown as to the time spent in research of specific issues was woefully inadequate and surely would not suffice in a law firm setting. . ." The court found counsel's claim of $125 per hour was unsubstantiated, unprecedented, unsupported, and far in excess of the "average rate of $40 an hour [that] was typical for awards in FOIA cases in this circuit during the time period involved in this litigation."

Congress has decided that insuring citizen access to information which the government possesses is so important that reasonable attorney's fees will generally be awarded to prevailing parties who have acted in the public interest in securing disclosure. Although care must be taken by government counsel to insure that the hours and hourly rates awarded are "reasonable," every effort should be made to settle the fee question, particularly since most courts allow additional compensation for the time spent litigating the fee question.(*) The suggestions in this article, however, may be useful in negotiating with opposing counsel as well as in litigating a fee request.

* At the Justice Department, the Assistant Attorney General for the Civil Division can approve settlement of up to $25,000. Awards above that go to the Deputy Attorney General for approval. U.S. attorneys have no authority to settle in FOIA cases.

This article as written by Assistant U.S. Attorney Royce Lamberth, Chief of the Civil Division, U.S. Attorney's Office, District of Columbia.

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1. Nationwide Building Maintenance v. Sampson, 559 F.2d 704 (D.C. Cir. 1977).

2. Lasallle Extension University v. Federal Trade Commission, 627 F.2d 481 (D.C. Cir. 1980).

3. Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980), known as Copeland III. Although Copeland involved the reasonable attorney's fees provision of Title VIl of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), the "lodestar" approach of Copeland has been held applicable to the fee-setting inquiry in Freedom of Information Act litigation. Jordan v. U.S. Department of Justice, (No. 76-0276, D.D.C. 1981).

4. Pub. L. 96-481 § 201et seq. (1980), which becomes effective for actions pending or commenced on or after October 1, 1981.

5. Kennedy v. Andrus, 459 F. Supp. 240, aff'd on appeal, 78- 2217 (D.D.C. 1990). Word v. Postal Rate Comm., 593 F.2d 1372 (D.D.C. 1979).

6. Naturally, government counsel may, where appropriate, employ the usual discovery devices to ensure that the proper result is reached.

7. Jordan v. U.S. Department of Justice, supra.

8. Brown v. Stackler, 612 F.2d 1057 (7th Cir. 1980).

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