Plain text readings of EAJA and FOIA fee shifting statutes don’t tell the whole story: the test for FOIA attorney fees.

Although the statute for attorney fee awards in Freedom of Information Act (FOIA) cases has fewer conditions on such awards than the statutes for attorney fee awards in the Equal Access to Justice Act (EAJA), courts have imposed their own conditions on FOIA attorney fees that are stricter than those for EAJA.  In this post, I want to explore the difference between the two statutes and the court decisions dealing with them.

Contrary to what you may have heard about federal budget shortfalls, the federal government has almost unlimited resources to defend its agencies’ actions in court (what do you think all those lawyers in Washington do?).  Under certain circumstances, however, Congress has provided for the award of reasonable attorneys fees to successful litigants in civil actions in federal court and in adversary administrative proceedings in the Equal Access to Justice Act (EAJA),28 U.S.C. § 2412(d)5 U.S.C. § 504(a).  For example, 28 U.S.C. § 2412(d)(1)(A) says in relevant part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States . . ., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

In most contested EAJA cases, the main question is whether the petitioner is a prevailing party and/or whether the position of the US was substantially justified.  To be entitled to EAJA attorney fees, the petitioner also must have a net worth < $2,000,00.  28 U.S.C. § 2412(d)(2)(B).  [As an aside, the American Immigration Law Foundation has a great guide to obtaining EAJA attorney fees in the immigration context available here.  I found this guide very useful in obtaining attorney fees after getting a client released from indefinite detention through a habeas action.]

With regard to whether a party is the prevailing party, the Supreme Court settled a circuit split in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), by holding that a “party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct” is not a “prevailing party” in a decision that his been applied to EAJA and other federal statutes allowing courts to award attorney’s fees and costs to the “prevailing party.”

The FOIA attorney fees provision, on the other hand, does not have the language requiring the prevailing party to show that the government’s position was not substantially justified:

The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

5 U.S.C. § 552(a)(4)(E)(i).  In addition, Congress responded to the Buckhannon decision in the FOIA context by passing the OPEN Government Act of 2007, adding the following definition of “substantially prevailed” to the FOIA attorney fees provision (but not to corresponding EAJA provisions):

(ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either—

(I) a judicial order, or an enforceable written agreement or consent decree; or
(II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.

5 U.S.C. § 552(a)(4)(E)(ii).  Now what I find curious frustrating is that although the FOIA statute seems on its face to allow for attorney fees in circumstances that EAJA does not, i.e., it does not have the requirement that the Government’s position not be substantially justified, court decisions have put greater limitations on FOIA awards than on EAJA.  For example, in the seminal DC Circuit case Cuneo v. Rumsfeld, 553 F. 2d 1360, 1364 (D.C. Cir. 1977), the court adopted a four-part test for FOIA attorney fee entitlement originally contained in the Senate version of the Bill, even though that test was not in the enacted version (!):

(1) the benefit to the public, if any, 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 of the records had a reasonable basis in law.

The court read the test back into the statute through its reading of the legislative history, noting that the Conference report stated that “the conferees did not intend to make the award of attorney fees automatic or to preclude the courts, in exercising their discretion in awarding such fees, from taking such criteria into consideration.”  Id. I intend to go to the legislative history of the OPEN Government Act to see if there was any commentary on this test.  Another question in my mind is whether the EAJA or other statutes authorizing attorney awards against the government also contained likewise limiting intent (this will necessitate a visit to a good law library sometime in the near future).   In a future post, I will explore how this four-part test has been applied to FOIA applicants seeking attorney fees.

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