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October 15, 1984


The opinion of the court was delivered by: RICHEY

 Before the Court is an application by the Nuclear Control Institute, hereinafter "Institute," for Attorneys' fees and costs incurred in a suit brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The requested information was in the possession of the Nuclear Regulatory Commission, hereinafter "Commission." This Court holds that the plaintiff, Nuclear Control Institute, has not substantially prevailed and is thereby not eligible for, nor entitled to, such an award. Further, the Court finds that even if plaintiff were entitled to fees, the award requested by the attorneys are excessive and duplicative.

 For the reasons set forth in this Opinion, the Court, by Order of even date herewith, denies the award of attorneys' fees and costs.


 In the FOIA action, the Institute, a public interest group, sought disclosure of several documents on November 16, 1981. In response to the above request, the NRC turned over to the Institute copies of a number of documents excluding only a certain five. These five documents, one of which was known as the "Morgan Memorandum," had been classified pursuant to Executive Order 12065, 3 C.F.R. 190 (1970). The Morgan Memorandum had been published in a trade newsletter, called Nuclear Fuel, on November 9, 1981. This memorandum was the only one of the five requested that had already been publicly released. In fact, the Institute contends that the memorandum was published "verbatim." (Plaintiff's Complaint, para. 2.)

 On March 28, 1982, the Institute filed an action with the Court to direct the NRC to disclose the "Morgan Memorandum" as well as the other four documents. The Court issued an Opinion on May 20, 1983, granting plaintiff's motion for summary judgment insofar as ordering disclosure of the Morgan Memorandum, and granted the defendant's motion for summary judgment insofar as allowing the government to keep the other four documents classified. The language of the Court as to the Morgan Memorandum was, "There is nothing in substance that was not fully disclosed and debated in the extremely public hearing of the United States Congress." 563 F. Supp. 768, 771, n.1 (D.D.C. 1983).

 While cross-appeals of the decision were pending, the plaintiff filed its application for attorneys' fees. On September 6, 1983, this Court issued an order staying the consideration of Plaintiff's application for fees until the appeal was decided. The NRC, thereafter, determined that the "Morgan Memorandum" no longer required classified status, and they dismissed their appeal. The Court lifted the stay on November 21, 1983, and requested that the parties negotiate a settlement. After two unsuccessful attempts to settle, the parties are now before the Court.


 Under FOIA, "section 552(a)(4)(E), a motion for fees and costs requires that two questions be asked and answered: (1) is the plaintiff 'eligible' for such an award, and if so, (2) is it 'entitled' to such an award?" Fund for Constitutional Government v. National Archives, 211 U.S. App. D.C. 267, 656 F.2d 856, 870 (D.C. Cir. 1981). The plaintiff Institution, therefore, must first meet the requirement of eligibility.

 The language of FOIA states the criteria for eligibility:

The court may assess against the United States reasonable attorney fees and other litigation cost reasonably incurred in any case under this section in which the complainant has substantially prevailed. (Emphasis added.)

 The institute has not met this threshold criteria. The Morgan Memorandum was publicly released in Nuclear Fuel on Nov. 9, 1981, previous to the March 28, 1982 litigation, and, even previous to the Nov. 16, 1981, FOIA request. Because of the prior release of the document, the Court holds that the litigation on the Morgan Memorandum cannot be "regarded as necessary." In fact, the litigation was patently unnecessary.

 Assuming, arguendo, that the threshold has been met, the plaintiff would still not substantially prevail based on the "minimal significance" that this Court formulated in Braintree Electric Light Company v. Department of Energy, 494 F. Supp. 287 (D.D.C. 1980). The present controversy parallels the finding in Braintree, where this Court compelled the production of some of the disputed documents. Notwithstanding such production, the Court held that the plaintiff still had not substantially ...

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