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Summers v. U. S. Dept of Justice

March 5, 2007

ANTHONY SUMMERS, PLAINTIFF,
v.
U. S. DEPARTMENT OF JUSTICE, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Pending for determination by the undersigned United States Magistrate Judge is Plaintiff's Motion for an Award of Attorney's Fees and Costs pursuant to 5 U.S.C. § 552(a)(4)(B) (Docket No. 118).*fn1

Plaintiff argues that he is eligible for attorney's fees because he "substantially prevailed[,]" and is entitled to an award because he satisfies the four criteria by which entitlement to an award is assessed. Plaintiff also argues the amount is reasonable.

Defendant, the United States Department of Justice, in its opposition to the motion, asserts that the Plaintiff is not eligible for an award because he did not prevail on any issue in this litigation; the FBI voluntarily released the requested documents; and the Court's orders were only procedural in nature. Defendant also asserts that the criteria used to determine entitlement do not weigh in Plaintiff's favor, and that the amount requested is unreasonable.*fn2

Summers v. Dep't of Justice 2

Upon consideration of the parties' submissions and the entire record herein, the undersigned will deny the motion.

I. BACKGROUND*fn3

On May 28, 1998, Plaintiff Anthony Summers requested documents from the FBI pertaining to the late Charles Gregory "Bebe" Robozo, a friend of President Richard Nixon, for Summer's biography of Nixon. On July 23, 1998, Plaintiff commenced the instant action pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2000). Defendant moved for an "Open America" stay of proceedings until March, 2000 to allow it to process the records. In February and March, 2000, the FBI released a total of 128 pages.

On March 27, 2000, this Court granted Defendant's motion for a stay of proceedings, and directed Defendant to submit a status report regarding the processing of Plaintiff's request within 14 days of the date of the order. Defendant filed its status report, that it had released 128 pages to Plaintiff. On April 19, 2000, the court ordered Plaintiff to file a status report to indicate what impact had on the litigation. In his status report, Plaintiff stated that he likely would not challenge the redactions in the released pages, but asked that enumerated related materials be either produced or described in a Vaughn index.

Defendant, in accordance with the Court's order, filed an affidavit detailing its efforts and noted the release of additional materials to Plaintiff. Between July and September, 2000, the Court entered three orders directing the parties to file joint status reports indicating the "additional disclosures defendant has made to plaintiff." July 17, 2000 Order (Docket No. 39);

Summers v. Dep't of Justice 3 September 1, 2000 Order (Docket No. 41); September 20, 2000 Order (Docket No. 43). After disclosing more documents in full or redacted form, Defendant filed a motion for summary judgment, and Plaintiff filed a cross motion for summary judgment. On March 10, 2003, the Court granted Defendant's motion for summary judgment as to some of the withholdings. The court stated that if Plaintiff wished to challenge the remaining withheld or redacted records, he could file a motion within thirty days. The parties then cross-moved for summary judgment again as to those records. On April 14, 2003, this court granted summary judgment in favor of Defendant.

On June 14, 2004, Plaintiff, appealed., and Defendant then moved for summary affirmance. The Circuit denied the Defendant's motion and directed that the matter be calendared for briefing. The Court of Appeals then referred the matter for mediation. On December 16, 2005, the parties agreed to settle the matter. In exchange for the disclosure of three names from a document, Plaintiff agreed to withdraw his appeal. Plaintiff then moved for an award of attorney's fees and costs.

II. CONTENTIONS OF THE PARTIES

Plaintiff's Arguments Regarding Eligibility

Plaintiff maintains that he is eligible for an award of fees and costs, and entitled to such an award, because he "substantially prevailed" in this case and meets the criteria for entitlement. Memorandum of Points and Authorities in Support of Plaintiff's Motion for an Award of Attorney's Fees and Costs ("Pl's Mem.") at 3, 11. First, Plaintiff argues that he is eligible to Summers v. Dep't of Justice 4 recover attorney's fees because this Court issued a series of orders requiring that reports be made by specified dates detailing the progress Defendant had made in providing documents to him. Id. at 5. In addition, he argues that the Court specifically directed Defendant to file an affidavit detailing its efforts to locate certain records. Id. at 5-6. Plaintiff claims that Defendant located the missing record and provided him with 397 additional pages as a result of these orders. Id. at 6. Plaintiff submits that the production of reports and documents after Defendant represented to the court that it had completed the processing of Plaintiff's request "changed the legal relationship of the parties" and "could no longer be described as a voluntary change" in the FBI's conduct. Id. Second, he argues that Defendant agreed to settle the case by releasing information that had been previously withheld. He contends that Defendant's agreement to release this information was "caused by the litigation." Id. 6-7.*fn4

Plaintiff's Arguments Regarding Entitlement

Plaintiff also argues that he is entitled to recover attorney's fees because he satisfies all four criteria by which eligibility is assessed. The four criteria are (1) the public benefit derived from the case; (2) the commercial benefit to the complainant; (3) the nature of the complainant's interest in the records sought; and (4) whether the government's withholding had a reasonable basis in law. See Cotton v. Heyman, 63 F.3d 1115, 1117 (D.C. Cir. 1995). Plaintiff argues that the first criterion (benefit to the public) is satisfied because the relationship between Nixon and Summers v. Dep't of Justice 5 Bebe Rebozo, and the FBI's investigatory activities regarding Rebozo, are matters of public interest. Pl's Mem. at 12. Plaintiff argues that Defendant recognized this interest by not charging copying costs, which its regulations require absent a public interest in disclosure. Id. Plaintiff further argues that the second criterion also supports an award of fees, since he has no "commercial interest in the documents" within the meaning of FOIA. Id. With respect to the third criterion, Plaintiff argues that favored interests are those which are likely to benefit the public through the dissemination of the information obtained. Id. He asserts that his book dealt extensively with Rebozo and the FBI's investigation of him. Id. With respect to the fourth criterion, Plaintiff argues that Defendant "failed to meet the court-approved deadline" for producing the non-exempt records in this case, declaring that processing was complete when nearly four-fifths of the documents had not been processed. Id. at 12-13. Plaintiff submits that "[t]o settle the case, [Defendant] ultimately released important information which it had previously insisted could not be released because of privacy considerations." Id. at 13.

The Plaintiff also asserts that the amount of attorney's fees sought is reasonable. Pl's Mem. at 13-15. Plaintiff's counsel asserts that in calculating his fees, he reduced by four-fifths the time he expended with respect to issues as to which he did not succeed. Id. at 14.

Defendant's Arguments Regarding Eligibility

Defendant, in its Opposition to Plaintiff's Motion for an Award of Attorney's Fees and Costs, argues that Plaintiff is not eligible for an award of attorney's fees and costs under FOIA "because he cannot demonstrate that he has 'substantially prevailed' in this case." Defendant's Opposition to Plaintiff's Motion for an Award of [Attorney's] Fees and Costs ("Def's Opp'n") at Summers v. Dep't of Justice 6

1. Defendant Argues that the "Catalyst" Theory on Which Plaintiff Relies has been Expressly Rejected by This CIRCUIT Id.

More specifically, Defendant submits that in this action, "the Court neither ordered the production of any document, nor set a time frame within which defendant was compelled to produce responsive documents." Def's Opp'n at 7. Defendant claims that "the only action that occurred in this matter was an agreement by the parties as to the procedural course for the matter to take[,]" and that '[such] "procedural matters . . . are not a basis for awarding fees." Id. (citing Waterman ...


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