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ALLEN v. FBI

December 22, 1989

MARK A. ALLEN, Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION, et al., Defendants


June L. Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JUNE L. GREEN, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on plaintiff Mark Allen's application for an interim award of attorney's fees and costs. Under the Freedom of Information Act ("FOIA"), a court may award reasonable attorney fees to a complainant who has "substantially prevailed." 5 U.S.C. § 552(a)(4)(E) (1982). For the reasons stated below, the Court denies plaintiff's application without prejudice.

 FACTS

 The plaintiff seeks access under FOIA to records of any communications between the United States House of Representatives' Select Committee on Assassinations and the Federal Bureau of Investigation relating to the Committee's investigation into the assassination of President John F. Kennedy. Plaintiff's first request was made on December 12, 1980, and his second request followed on April 6, 1981. The FBI refused to release any of the material that was "generated in response to requests from" the Committee, claiming that all of the records were congressional documents. Plaintiff also sought a waiver of search and copying fees for both requests. After appealing both denials, plaintiff was informed that the decision on both appeals would be delayed because of a substantial backlog of pending appeals and a shortage of attorneys.

 Plaintiff filed this action on May 22, 1981. It was not until December 8, 1981 that defendants admitted that Congress did not maintain control over all of the requested records. On December 31, 1981, defendants denied plaintiff's fee waiver request.

 Plaintiff moved for a waiver of all search fees and copying costs. This Court held that the FBI's denial of a fee waiver was "arbitrary and capricious" and ordered all fees to be waived. Allen v. FBI, 551 F. Supp. 694, 697 (D.D.C. 1982).

 Subsequently, the Clerk of the House of Representatives intervened and both the Clerk and the Executive Branch defendants filed motions for summary judgment. The Clerk argued that the more than 300,000 pages collected by the Committee and held by the FBI were congressional documents under the test established in Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339 (D.C. Cir. 1978), modified on other grounds, 607 F.2d 367 (D.C. Cir. 1979), cert. denied, 445 U.S. 927, 63 L. Ed. 2d 759, 100 S. Ct. 1312 (1980). In addition, the Clerk claimed that the speech or debate clause of article I, section 6, clause 1 of the Constitution barred their disclosure. On the other hand, the Executive Branch defendants argued that all of the records were protected from disclosure by exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5).

 This Court rejected the Clerk's argument that the entire body of more than 300,000 pages of documents were congressional records not subject to the FOIA. Allen v. FBI, No. 81-1206, mem. op. at 5 (D.D.C. Nov. 24, 1982). As for the speech or debate clause argument, the Court found that "communications sent from the Committee to the FBI in pursuit of a lawful congressional investigation are an integral part of the 'deliberative and communicative process' of Congress." Id. at 6. As such, the speech or debate clause barred the disclosure of the limited number of records originating with the Committee. The Court also held the Executive Branch defendants' exemption 5 claim to be premature and denied their summary judgment motion without prejudice.

 All parties agree that this litigation will continue for several more years. Plaintiff now requests an interim award of attorney's fees and costs in the amount of $ 24,693.52. He also seeks a 20 percent increase in the lodestar due to the contingency nature of the fee arrangement and a 10 percent enhancement as a result of novel legal issues, which brings the total request for fees to $ 32,018.17.

 DISCUSSION

 I. The Availability of Interim Fees Under the FOIA

 The threshold issue is whether section 552(a)(4)(E) authorizes a court to order the payment of "interim" attorney fees. Section 552(a)(4)(E) provides:

 
The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the ...

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