plaintiffs' first amendment right to communicate with counsel. The Court of Appeals dealt separately with the two types of material involved in this case -- material covered by the Privacy Act and FOIA-exempt material. With respect to the Privacy Act materials, the Circuit Court noted that although plaintiffs had represented that they had "no quarrel here with the Privacy Act exclusions," they vigorously contested this issue on appeal, perhaps because they "believe[d] they [were] under court order to comply with [the agency's directive in this respect.]" Martin v. Lauer, 222 U.S. App. D.C. 302, 686 F.2d 24, 27 (D.C. Cir. 1982). Noting that the issue may be moot, the Court of Appeals remanded to the District Court to determine whether a genuine dispute existed. On remand, counsel for plaintiffs represented at a status call that no material covered by the Privacy Act was at issue. Thus, it became clear that this question was, in fact, moot ab initio.
The Court of Appeals did, however, find merit in plaintiffs' claim concerning FOIA-exempt material. The Court held that the Lauer Memorandum's restrictions cut "too deeply into the employee's first amendment rights." Martin, 686 F.2d at 34-35. Thus, the Court concluded that plaintiffs could not be required to "disclose all of their discussions touching on FOIA-exempt information."
In order to recover attorneys' fees under the Equal Access to Justice Act plaintiffs must demonstrate that they have prevailed on the merits of their claim. To meet this standard, they need not prevail on every issue, so long as "a significant one is resolved so as to achieve some of the benefit sought through the litigation." See Bonnes v. Long, 599 F.2d 1316, 1318 (4th Cir. 1979). See also Grubbs v. Butz, 179 U.S. App. D.C. 18, 548 F.2d 973, 975-77 (D.C. Cir. 1976). Although plaintiffs clearly did not prevail on all issues, they did achieve some of the benefit they sought in that the part of the Lauer Memorandum prohibiting them from releasing FOIA-exempt material was declared to be overbroad. Accordingly, the Court holds that plaintiffs are "prevailing parties" entitled to recover under the EAJA.
That plaintiffs are entitled to recover, however, does not mean that they are entitled to the full amount they seek. Plaintiffs are not entitled to fees for time spent on issues on which they did not ultimately prevail, see Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 891-92 (D.C. Cir. 1982) (en banc), so long as the issues are truly fractionable. Id. at 892 n.18. The claims presented here meet this standard.
From the start, this case has involved two types of restrictions -- those placed on information covered by the Privacy Act and those applicable to FOIA-exempt material. As previously noted, plaintiffs prevailed with regard to the restrictions placed on FOIA-exempt materials whereas their Privacy Act claim should never have been litigated in the first place. Plaintiffs should not be compensated for the resources they expended championing a cause that was moot ab initio.2
Defendants also contest plaintiffs' recovery for time spent on their whistleblower claim. Plaintiffs advanced this theory as an alternative to their first amendment allegations, on which the Court of Appeals based its decision. While plaintiffs are entitled to no compensation for time spent on severable issues on which they did not prevail, they may recover for any time spent advancing an alternative legal theory intended to remedy the same injury. Id. Accordingly, time spent on this theory should not be severed from the effort plaintiffs expended in general in pursuing their claims.
An Order consistent with the foregoing will be issued of even date herewith.
For the reasons set forth in the memorandum opinion of even date herewith, it is, by the Court, this 9th day of March, 1983, hereby,
ORDERED that within twenty (20) days of the date hereof counsel for plaintiffs and counsel for defendants shall meet and attempt to negotiate a settlement of the amount of attorneys' fees due to plaintiffs' counsel in light of this opinion; and it is further
ORDERED that if the parties are unable to agree, they shall submit to the Court on or before the twentieth (20th) day from the date hereof a statement attesting to their good faith negotiations and stating in what areas, if any, they have achieved agreement; and it is further
ORDERED that if the parties fail to agree, they shall submit memoranda to the Court according to the following schedule:
1. Plaintiffs shall submit a revised fee statement omitting fees assessed for time spent pursuing plaintiffs' Privacy Act claims, within thirty (30) days of the date hereof; and
2. Defendants may submit a short response to plaintiffs' revised statement, if necessary, within seven (7) days of the filing of that statement.