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March 16, 2001


The opinion of the court was delivered by: Gladys Kessler, United States District Judge


This matter is before the Court on the Motion for Fees and Expenses of Plaintiffs James K. Phillips and the Oil, Chemical & Atomic Workers International Union, AFL-CIO (collectively "OCAW"). Upon consideration of the Motion, Opposition, Reply, and the entire record herein, for the reasons discussed below, the Motion for Fees and Expenses [#28] is granted in part and denied in part.

I. Background

The United States Enrichment Corp. ("USEC") was created in 1992 as a wholly owned government corporation charged with producing enriched uranium at two gaseous diffusion plants ("GDPs") owned by the United States Department of Energy ("DOE").*fn1 Plaintiff OCAW, a labor union with approximately 85,000 members, was the collective bargaining agent for approximately 2,000 workers at the two GDPs operated by USEC.

In April 1996, Congress enacted the USEC Privatization Act, Pub.L. 104-134, tit. III § 3101, 110 Stat. 1321-335 (codified at 42 U.S.C. § 2297h-1 et seq.), which directed the USEC Board to transfer the federal government's interest in USEC to the private sector.*fn2 By June 1998, the Board was left with three options for accomplishing that objective: (1) the sale of USEC, through a merger and acquisition, to a consortium led by the Carlyle Group; (2) the sale of USEC, through a merger and acquisition, to a consortium consisting of Texas Pacific Group and General Atomic; and (3) the sale of USEC stock to the public in an initial public offering ("IPO"). In early June 1998, the USEC Board met on three separate occasions to consider these privatization options. The meetings were closed to the public. At the end of the final meeting, on June 11, the Board voted unanimously for the IPO option. On June 29, the Board announced a proposed IPO to the public.

The very next day, Plaintiffs brought the present action (Civ. A. No. 98-1670 (GK)) under the Freedom of Information Act, 5 U.S.C. § 552(a), requesting that USEC produce all records, not previously produced, that came within the scope of the Plaintiff Phillips' December 22, 1997, FOIA request. See supra note 2. Plaintiffs also brought a separate lawsuit (Civ. A. No. 98-1756 (GK)) two weeks later, on July 14, 1998, under the Government in the Sunshine Act, 5 U.S.C. § 552b, in which they moved to enjoin USEC from closing to the public a follow-up Board meeting, scheduled for July 22. This Court denied Plaintiffs' motion, and allowed the July 22 meeting to go forward, in which three of the five USEC Board members voted to confirm the earlier decision to hold an IPO. The IPO was held July 23 through July 28, 1998, resulting in a transfer of the federal government's ownership in USEC to the private sector. Subsequently, USEC moved for dismissal of both cases, contending that it was now a private entity and that neither FOIA nor the Government in the Sunshine Act applied to it. In response, the Court dismissed USEC from both lawsuits, ordered that DOE be substituted for USEC, and directed DOE to respond to the requests made by Plaintiffs in both lawsuits. See Memorandum Opinion and Order of March 18, 1999 (Civ. A. Nos. 98-1670 and 98-1756).
Defendant DOE provided Plaintiffs with certain documents in July 1998, and the parties thereafter entered into a settlement agreement. In December 1999, both cases were voluntarily dismissed, except insofar as Plaintiffs wished to seek attorneys' fees and litigation costs.*fn3 The parties' negotiations to settle Plaintiffs' fees and costs proved unsuccessful, and on April 17, 2000, Plaintiffs filed the present motion.
II. Analysis

Plaintiffs bring a motion for fees and costs, pursuant to 5 U.S.C. § 552(a)(4)(E), to recover their expenses for both lawsuits.*fn4 Defendant contends that Plaintiffs are not entitled to an award of fees and costs or, in the alternative, that Plaintiffs are not entitled to all the compensation that they request. These contentions will be addressed in turn.

A. Whether Plaintiffs are Entitled to Any Fees and Costs

Analysis of a section 552(a)(4)(E) motion requires a determination of both eligibility and entitlement to the award. See, e.g., Ralph Hoar & Assocs. v. NHTSA, 985 F. Supp. 1, 5 (D.D.C. 1997). However, since Defendant has not contested Plaintiffs' eligibility, the only question for the Court to consider is whether Plaintiffs are "entitled" to fees and costs. See Chesapeake Bay Found., Inc. v. United States Dep't of Agric., 11 F.3d 211 (D.C. Cir. 1993).

To determine entitlement, the Court must consider four factors: "(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) whether the Government had a reasonable basis for withholding requested information." Burka v. United States Dep't of Health & Human Servs., 142 F.3d 1286, 1288 (D.C. Cir. 1998)(internal citations and quotations omitted). The second and third factors are "closely related and often considered together." Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995)(quoting Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1095 (D.C. Cir. 1992)). In determining a plaintiff's entitlement to attorneys' fees, the Court must balance all four criteria. Ralph Hoar & Assocs., 985 F. Supp. at 9.

1. The Public Benefit

To determine whether this FOIA action resulted in a public benefit, the Court asks whether Plaintiffs' victory is "likely to add to the fund of information that citizens may use in making vital political choices." Cotton, 63 F.3d at 1120 (quoting Blue v. Bureau of Prisons, 570 F.2d 529, 534 (5th Cir. 1978)). In making this inquiry, it is important to remember that the "central purpose" of FOIA is "to assist our citizenry in making the informed choices so vital to the maintenance of a popular form of government." Blue, 570 F.2d at 533.
It is undisputed that USEC has experienced extreme financial and other difficulties since its privatization. See, e.g., Pl.'s Mot. at 7-10 (citing testimony of Joseph Stiglitz, Shelby Brewer and numerous newspaper and magazine articles) & accompanying exhibits. It is also undisputed that by bringing the present lawsuit and Civ. A. No. 98-1756,*fn5 Plaintiffs have forced the public release of countless important documents relating to the privatization of USEC, including information on USEC's corporate organization (i.e., bylaws, organization chart, and personnel data); the minutes and transcripts of the June-July 1998 USEC meetings which had been closed to the public; contracts entered into between USEC and lawyers, investment advisors, and consultants; and studies of a certain type of technology (referred to as "AVLIS"), which Plaintiffs allege was projected to be the cornerstone to USEC's commercial profitability.*fn6 Id. at 17-18.

The Court finds that the documents obtained by Plaintiffs, and widely disseminated to the media and the public,*fn7 clearly and overwhelmingly add to the growing public body of knowledge concerning the privatization of governmental entities generally, and of USEC specifically. Accordingly, ...

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