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.
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
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
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
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
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.
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.