and (b) maintain a post office box to receive and process requests for more information from interested servicemen. The settlement agreement also stated the specific information to be disseminated and the specific mass media stations to be employed.
Three issues are presently before the Court, viz. (1) has Plaintiff substantially prevailed, 5 U.S.C. § 552(a)(4)(E), (2) assuming that it has, should the Court, in its discretion, award attorney's fees, LaSalle Extension University v. FTC, 201 U.S. App. D.C. 22, 627 F.2d 481 (D.C.Cir.1980), and assuming that an award of fees is warranted, is the amount claimed consistent with Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880 (D.C.Cir.1980).
It is clear to the Court that Plaintiff has substantially prevailed. Plaintiff sought the information from Defendants with one objective: to notify those less than honorably discharged of their statutory rights. This objective was completely satisfied by the settlement agreement. Thus, the fact that the information was ultimately not disclosed in no way impacts on Plaintiff's case. Moreover, it appears to the Court that Defendants' withholding of the names and addresses violated FOIA. While the Court need not and does not resolve this issue here, it should be noted that in all likelihood disclosure would have been compelled but for the settlement agreement.
Four factors must be considered to determine whether an award of fees is appropriate in the instant case, to wit: "(1) the benefit to the public, if any, derived 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 had a reasonable basis in law." LaSalle Extension University v. FTC, at 483-484. The public interest was manifestly served by the instant litigation. Congress has determined that those servicemen less than honorably discharged should be provided a fair opportunity to have their discharges upgraded. 10 U.S.C. § 1553. To receive the benefits of this discharge review program, a veteran must formally apply to the discharge review boards. Due to lack of information, less than .1% of those eligible veterans applied for review prior to this litigation. Through its initiation and prosecution of its FOIA action, Plaintiff has insured that Defendants will actively inform the veteran community of its rights under the law. Plaintiff's only purpose in obtaining the records was to inform veterans of their statutory rights. Thus, the Court concludes that this suit served the public interest.
Defendants do not deny that Plaintiff has met its burden under the first three criteria. Rather, they merely contend that they had a reasonable basis for withholding the documents. This criterion is not dispositive, however. See LaSalle Extension University v. FTC, at 484; Nixon v. Sampson, 437 F. Supp. 654, (D.D.C. 1980). While Defendants may have had a reasonable basis for withholding the documents, the criterion is outweighed by the other three criteria. An award of attorney's fees is appropriate in the instant litigation.
It is clear that the amount of the fee award is guided by the Court of Appeals ruling in Copeland v. Marshall, at 891, 892. Defendants are entitled to take limited discovery on the amount of hours expended by Plaintiff's counsel in prosecuting and settling this litigation. Defendants are also entitled to present evidence to the Court concerning the "lodestar" to be applied herein.
The Court recognizes the sensitive nature of the underlying issue presented in the instant case. The Court is also aware of the exemplary work performed by counsel on both sides to effectuate settlement. The Court believes that the parties have the capacity to resolve this remaining issue without further judicial intervention.