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ALLEN v. FBI

October 24, 1990

MARK 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

On March 27, 1990, this Court issued an Order allowing the plaintiff Mark Allen to reapply for an interim award of attorney's fees. Pursuant to that Order, the plaintiff filed a Second Application for an Interim Award of Attorney's Fees and Costs and papers supporting the application. The defendants filed papers in which they do not oppose an interim award, but contest the amount of the proposed award and oppose any enhancement of the lodestar.

 Upon careful consideration of the plaintiff's application, all papers filed in support of and opposition thereto, and for the reasons set forth below, the Court awards the plaintiff attorney's fees and costs in the sum of $ 43,781.02. The Court further awards the plaintiff a 100 percent enhancement of a portion of the lodestar, as explained below.

 I. Background

 The plaintiff first requested an interim award of attorney's fees and costs in 1988. This Court denied that request, ruling that although FOIA authorizes interim awards of attorney's fees, the plaintiff was not entitled to fees because the first phase of the litigation, the release of all nonexempt documents, was not yet completed. Allen I, 716 F. Supp. at 672 (D.D.C. 1988). On March 27, 1990, this Court vacated part of its earlier order and allowed the plaintiff to reapply for an interim award of fees and costs. The plaintiff's second application is now before the Court.

 II. Discussion

 Both parties agree that an award of interim attorneys' fees and costs is appropriate at this stage of the litigation. The Court agrees with this assessment. The first phase of the litigation is drawing to a close. At last count, only some 600 pages of material out of the total exceeding 320,000 pages remained to be processed. Defendant's Fifth Status Report (filed August 15, 1990). It would be absurd at this stage to require the parties to wait a month or two, until all the documents had been processed and then reapply for an interim fee award.

 Moreover, but for the government's failure to maintain a processing rate agreed upon by the parties, the first phase of the litigation would now be over; therefore, the plaintiff would be entitled to an interim award under the Court's earlier ruling.

 Thus, the controversy in this case is not over whether the plaintiff is entitled to an interim award, but how much that award should be and whether or not the award should be enhanced for the contingent nature of the plaintiff's fees. The Court shall address each of these issues in turn.

 A. Calculation of the Lodestar.

 To determine the amount of an award of attorney's fees in a FOIA case, the Court looks to the "quantity and fair market value of the legal services rendered . . . including those in connection with the motion [for fees and costs]." Consumers Union v. Board of the Federal Reserve System, 410 F. Supp. 63, 64 (D.D.C. 1976). A base amount of attorney's fees, called the lodestar, is calculated by multiplying the hours the attorney reasonably expended on the case by the market rate. Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 891 (D.C. Cir. 1980). The lodestar may be adjusted either upward or downward to reflect factors such as risk of compensation and quality of representation. Id. at 893. Costs are added to this figure and the sum is the amount of the award.

 The plaintiff proposes a lodestar of $ 29,475.00 for work completed during the years 1981-1990. *fn1"

 For plaintiff's revised calculations of lodestar, See Plaintiff's Reply to Defendants' Response to Plaintiff's Supplemental Memorandum Regarding Interim ...


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