Judge Randolph’s Concurrence in Burka v US Dept. of Health and Human Services

I have just started looking into FOIA Attorney Fees, and one thing I had found curious is that even though the statutory provision for attorney fees for FOIA applicants has fewer criteria than other provisions, such as EAJA, the courts have applied additional criteria to FOIA attorney fees, making an application MORE difficult.  I wrote about the statutes here.

It seems I am not alone.  Judge Randolph wrote a concurrence in Burka v. US Dept. of Health and Human Servs., 142 F. 3d 1286 (D.C. Cir. 1998) that raised the same concerns.  His concurrence argues much more eloquently than I could:

RANDOLPH, Circuit Judge, concurring:

I join the court’s opinion in its application of Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991), to deny this attorney-plaintiff attorney’s fees. I do so without endorsing the “criteria” we have devised for determining whether, in FOIA cases generally, attorney’s fees should be awarded. Maj. op. at 1288. Judge Wald thinks it significant that the four criteria are “deeply rooted” in the legislative history of FOIA. Concur. op. at 1293. I find it far more telling that those criteria were weeded out of the original Senate version of FOIA — where they would have had the binding force of law — and transplanted to the conference report — where they do not. Although we have applied these criteria in the past, they deserve another look. For instance, one of the factors is “the public benefit derived from the case.” Chesapeake Bay Found., Inc. v. United States Dep’t of Agric., 11 F.3d 211, 216 (D.C.Cir.1993). Courts deciding an attorney’s fees dispute are not in a position to make that sort of judgment objectively. One person’s public good is often another person’s public harm. Besides, FOIA plaintiffs do not sue in the public interest; if anyone represents “the public” in these cases it is the United States or the agency defending the action. Making eligibility for a fee award turn on “public benefit” has a nice ring, but it is not tied to any language or policy of FOIA. Once a FOIA plaintiff receives the information sought from the government, he has no obligation to share it with “the public,” or with anyone else. What he plans to do with the documents has no bearing whatever on his right to receive them. I therefore cannot see why such a consideration should be relevant to whether he should recover attorney’s fees. If the “public good” did matter, the fact that the plaintiff plans to use the information for his “commercial benefit,” id., should be a mark in favor of attorney’s fees. Competition and better products and services promote the public good. But our precedents count commercial benefit as a strike against an award — unless, perhaps, the plaintiff happens to be a “news organization.” See, e.g., Tax Analysts v. Department of Justice, 965 F.2d 1092, 1095, 1096 (D.C.Cir. 1992). We have also said that when a litigant seeks disclosure “for personal motives, an award of attorney’s fees is generally inappropriate.” Id. at 1095. This too is baffling. I suppose that any individual bringing a lawsuit has “personal motives.” On the other hand, it seems odd to attribute “personal motives” to a foundation or some other artificial entity. And so our law on attorney’s fees in FOIA cases is skewed against real people and in favor of organizations. This makes no sense. See Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 19, 114 S.Ct. 1023, 1033 n. 19, 127 L.Ed.2d 455 (1994). What also makes no sense is our continued use of this multi-factor, no weights assigned, test in the face of the different (and far simpler) standard supplied in the Equal Access to Justice Act, 28 U.S.C. § 2412. EAJA fits FOIA perfectly. It applies to cases in which the United States or an agency is a party and every FOIA case will be in that category. Compare Gray v. New England Tel. & Tel. Co., 792 F.2d 251, 259 (1st Cir.1986), refusing to borrow the EAJA standard in cases with private litigants on both sides of the dispute.

Judge Wald believes that “the purposes of the fee-shifting provisions of EAJA and of FOIA are different.” Concur. op. at 1292-93 n.1. She distinguishes between the two on the ground that EAJA is narrower and not designed to encourage litigation. See concur. op. at 1292-93 n.1. Yet she would require FOIA plaintiffs to fulfill three additional criteria that do not apply to plaintiffs seeking fees under EAJA,[1] frequently making it harder to qualify for an attorney’s fees award under FOIA than under EAJA. I find it more logical to join the First Circuit, which has concluded that there is “no fundamental difference” between the policies underlying EAJA’s and FOIA’s attorney’s fees provisions. Crooker v. EPA, 763 F.2d 16, 17 (1st Cir.1985).

[1] Under both EAJA and FOIA, courts look to the merit of the Government’s litigating position in determining whether to award attorney’s fees. Compare 28 U.S.C. § 2412(d)(1)(A) (A court shall award fees unless the “position of the United States was substantially justified.”) with maj. op. at 1288 (The fourth factor to be weighed in determining whether fees should be awarded under FOIA is “whether the Government had a reasonable basis for withholding requested information.”).

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