Natl Assn Cr Def Law v. DOJ

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 30, 1999 Decided July 16, 1999

No. 98-5437

National Association of Criminal Defense Lawyers, Inc.,
G. Jack King and Dr. Frederic Whitehurst,
Appellees

v.

United States Department of Justice,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 97cv00372)

Alfred Mollin, Senior Counsel, U.S. Department of Justice,
argued the cause for appellant. With him on the briefs were
Frank W. Hunger, Assistant Attorney General at the time
the briefs were filed, William B. Ogden, Acting Assistant
Attorney General, Wilma A. Lewis, U.S. Attorney, and Leon-
ard Schaitman, Attorney, U.S. Department of Justice.

 Daniel Mach argued the cause for appellees. With him on
the brief were David W. DeBruin and Daniel S. Alcorn.
David K. Colapinto and Stephen M. Kohn entered appear-
ances.

Before: Ginsburg, Sentelle, and Randolph, Circuit
Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: The Department of Justice ap-
peals the district court's interim award of attorney's fees to
the plaintiff National Association of Criminal Defense Law-
yers in this case filed under the Freedom of Information Act,
5 U.S.C. s 552. In the alternative, the Department petitions
this court to issue a writ of mandamus reversing the award.
We dismiss the appeal because we lack jurisdiction to review
the interim award until the district court enters a final
judgment; we deny the petition because the circumstances do
not warrant relief by way of mandamus.

I. Background

In 1995 the Department of Justice's Office of Inspector
General opened an investigation into allegations of wrongdo-
ing at the crime laboratory of the Federal Bureau of Investi-
gation. In late January 1997 newspapers reported that the
OIG had completed its investigation. See, e.g., FBI Warns of
Possible Flaws in Lab Evidence, L.A. Times, Jan. 31, 1997, at
A1; Report Finds F.B.I. Lab Slipping from Pinnacle of
Crime Fighting, N.Y. Times, Jan. 29, 1997, at A1. In Febru-
ary the NACDL, invoking the FOIA, asked the Department
for "access to or a copy of any and all drafts" of the OIG
report on the crime lab. At that time the only document
responsive to the NACDL's request was a working draft of
the OIG report.

When the NACDL had not received a response within ten
business days, it filed suit in the district court. See 5 U.S.C.
s 552(a)(6)(A)(i), (a)(6)(C) (1997). The NACDL also moved
for a preliminary injunction to expedite release of the OIG
report on the ground that the one-year limitation period for

filing petitions for habeas corpus, enacted as part of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, ss 101, 105, 110 Stat. 1214, 1220, was set to
expire on April 24, 1997; it feared "that criminal defendants
whose convictions might have turned on tainted FBI evidence
would be precluded from collaterally attacking those convic-
tions." Shortly after the NACDL filed this suit, it learned
that the Department had rejected its request, invoking the
exemption for "records or information compiled for law en-
forcement purposes ... to the extent that the production of
such law enforcement records or information (A) could rea-
sonably be expected to interfere with enforcement proceed-
ings," 5 U.S.C. s 552(b)(7)(A).

At a March 7 status hearing the NACDL informed the
district court that it also sought disclosure of the final OIG
report, when complete. The Department reiterated its oppo-
sition to releasing the draft report and refused to commit to
releasing the final report to anyone other than the Attorney
General and the Congress. One week later, however, the
Department modified its position, advising the court it would
release the final report to the public at roughly the same time
that it released the report to the Attorney General and to the
Congress. Upon the statute of limitations issue the Depart-
ment took the position that prisoners "will have one year
from [the] date [of public release] to file habeas petitions for
relief." Based "in large part" upon these representations, the
district court denied the NACDL's motion for a preliminary
injunction. On April 15, 1997 the Department publicly re-
leased the OIG's final report on the FBI crime lab.

Shortly thereafter the NACDL filed additional FOIA re-
quests with the OIG and with the Deputy Attorney General,
seeking "access to or copies of any and all records relating to"
the OIG's investigation into the FBI crime lab. When nei-
ther recipient had responded conclusively within ten business
days, the NACDL amended its complaint to include those two
requests. See 5 U.S.C. s 552(a)(6)(A)(i) (1997) (response
must state whether agency will comply with request).

 While litigation continued over the exemption from disclo-
sure claimed by the Department for the draft report and
portions of the OIG's working papers, the NACDL moved the
court for an interim award of attorney's fees. In June 1998
the district court awarded the NACDL a bit more than
$118,000 in fees. Although it recognized that this court had
yet to rule upon the propriety of an interim award in a FOIA
case, the district court concluded that the power to make such
an award "lies in the sound discretion of the court."

Finding that the protracted litigation had imposed a finan-
cial hardship upon counsel for NACDL, the court held that an
interim award of attorney's fees would be warranted if the
NACDL could satisfy the criteria used to determine whether
to award fees at the end of a FOIA case: "First, ... whether
the party requesting fees is eligible for them. ... Second,
... whether [that] party is entitled to fees." Chesapeake Bay
Found., Inc. v. Department of Agriculture, 11 F.3d 211, 216
(D.C. Cir. 1993). As to eligibility, the district court found
that although the case was not over the NACDL had substan-
tially prevailed upon two issues: its suit was a significant
cause of the public release of the final report, and "it was only
the urging of Plaintiffs and the Court that led the Govern-
ment to expedite its processing" of the OIG's working pa-
pers.* As to entitlement, the court considered the factors set
out in Chesapeake Bay--"(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 withhold-
ing requested information"--and concluded that the NACDL
was entitled to an interim award of attorney's fees. 11 F.3d
at 216.

The Department then moved to require the NACDL to
post a bond sufficient to cover the amount of the award. The

__________
* Initially the Department informed the NACDL and the district
court that it could take up to four and one-half years to produce the
working papers. In the event, however, the Government produced
nearly all the documents that it deemed non-exempt within seven
months.

district court denied the motion, reasoning that a bond re-
quirement would "make ... nonsense of the concept of an
interim award," and ordered the Department to pay the fees
"without further delay."

The Department filed a notice of appeal and moved the
district court for a stay of its order pending appeal. After
the district court denied the stay the Department filed a
similar motion in this court. See Fed. R. App. P. 8. Based
upon the NACDL's agreement not to seek enforcement of the
district court's order prior to our disposition of the Depart-
ment's motion for a stay, we deferred consideration of that
motion pending resolution of the case. We now dismiss the
motion as moot.

II. Analysis

On appeal the Department objects only to the district
court's discretionary decision to award interim attorney's
fees; it challenges neither the court's legal authority to make
such an award under the FOIA nor its refusal to require the
NACDL to post a bond. The NACDL contends that this
court lacks jurisdiction to review an interim award of fees
because it is not a final judgment and does not fall within any
exception to the final judgment rule. The Department ac-
knowledges that the interim award is not a final judgment,
but argues that we have jurisdiction to review the award
under the collateral order doctrine of Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 546-47 (1949). Alterna-
tively, the Department argues that we should review the
district court's decision by way of a writ of mandamus in the
exercise of our "supervisory" power over the district court.
See In re United States, 872 F.2d 472, 479 (D.C. Cir. 1989);
see also 16 Charles Alan Wright et al., Federal Practice and
Procedure s 3934.1 (2d ed. 1996).

A. Collateral Order Doctrine

Under the final judgment rule of 28 U.S.C. s 1291, this
court has jurisdiction only "of appeals from ... final decisions
of the district courts of the United States." See also Linder
v. Department of Defense, 133 F.3d 17, 23 (D.C. Cir. 1998)

(rule "avoids the mischief of economic waste and of delayed
justice that can accompany piecemeal litigation"). The Su-
preme Court, however, in Cohen recognized "a narrow class
of collateral orders which do not meet th[e] definition of
finality, but which are nevertheless immediately appealable
under s 1291." Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 712 (1996). To be appealable under the collateral order
doctrine, an "order must [1] conclusively determine [a] disput-
ed question, [2] resolve an important issue completely sepa-
rate from the merits of the action, and [3] be effectively
unreviewable on appeal from a final judgment." Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978). An appellant
can satisfy the third requirement by showing that it will
suffer irreparable harm if denied interlocutory review. Fire-
stone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376 (1981).

We have addressed the application of the collateral order
doctrine to an interim award of attorney's fees only once
before. In Trout v. Garrett, 891 F.2d 332 (1989), a Title VII
case, we held that such an award was not appealable because
it did "not even dispositively determine fees due up to this
stage of the litigation" and because "the government ... [had
not] demonstrat[ed] a real prospect of irreparable harm." Id.
at 335. Although the NACDL reads Trout as "clear, binding
authority forbidding interlocutory appeals of interim fee
awards," we do not. In Trout, we held only that upon the
facts of that case the Government had satisfied neither the
first nor the third requirement of Cohen. Indeed, the impli-
cation of Trout is that an interim award of attorney's fees
that does satisfy all three of the Cohen criteria is immediately
appealable. At least six circuits have so held. See Law v.
NCAA, 134 F.3d 1025, 1027 (10th Cir. 1998); Rosenfeld v.
United States, 859 F.2d 717, 721 (9th Cir. 1988); Dardar v.
Lafourche Realty Co., 849 F.2d 955, 957 & n.8 (5th Cir. 1988);
Webster v. Sowders, 846 F.2d 1032, 1035 (6th Cir. 1988);
Palmer v. City of Chicago, 806 F.2d 1316, 1318-20 (7th Cir.
1986); Haitian Refugee Ctr. v. Meese, 791 F.2d 1489, 1493
(11th Cir. 1986).

As in Trout the present parties dispute whether the De-
partment has satisfied the first and third of the Cohen tests.

With respect to the first, we agree with the Department that
the district court's order "conclusively determine[s] the dis-
puted question." Coopers & Lybrand, 437 U.S. at 468. In
Trout the district court had awarded only "the minimum
irreducible amount[ ]" to which the plaintiffs were entitled for
the issues upon which they had prevailed, leaving open the
possibility of further awards for work that had already been
done on those issues. 891 F.2d at 333 n.2. Here, in contrast,
the award is, as the Department correctly states, "the last
word on fees for purposes of the release of the Inspector
General's Final Report and for any expedition achieved in the
release of related documents." The NACDL does not dis-
agree with respect to the draft and final versions of the OIG
report, but points out that it is continuing in the district court
to oppose the Department's claims that some of the OIG's
working papers are exempt from disclosure under the FOIA.
Even if the NACDL substantially prevails upon the latter
issue, however, any future award of attorney's fees would not
be for the work that caused the Department to expedite
processing of the OIG's papers. Accordingly, we hold that
the district court's order meets the first criterion of Cohen.

Turning to the third criterion, however, we do not believe
the Department has demonstrated a "real prospect of irrepa-
rable harm." Trout, 891 F.2d at 335. The Department has
made no showing that the NACDL will likely be unable to
repay the fees if the award is later reduced or overturned.
See Rosenfeld, 859 F.2d at 721-22 (party appealing interim
award of attorney's fees bears burden of showing irreparable
harm). The Department does point out that the NACDL, in
arguing for an interim award of attorneys fees, stated before
the district court not only that its counsel was experiencing
financial hardship but also that it had "limited resources."
Before this court, however, the NACDL has in no uncertain
terms represented that it is able, and acknowledged that it
would be obligated, "to repay the fees if they are ultimately
reversed on appeal after final judgment." The Department
contends that the two NACDL statements are contradictory.
While we agree that a party may not "blow hot and cold and
take now a position contrary to that taken in the proceedings

it invoked to obtain [relief]," Callanan Road Improvement
Co. v. United States, 345 U.S. 507, 513 (1953), we see no such
inconsistency in the NACDL's position viewed overall.

In the district court the NACDL opposed the Department's
motion to require it to post a bond as follows:

NACDL believes that the likelihood of the government
overturning the interim fee award on appeal is extremely
remote, but whatever the outcome NACDL plans to be in
existence for the indefinite future. Thus the purported
harm claimed by the government--not having a party
from which to seek reimbursement in the unlikely event
it is needed--does not exist. The government's argu-
ment fails because it states that NACDL can collateralize
a bond for more than the amount of the award but that
NACDL is not substantial enough to seek reimburse-
ment [from] in the very remote event of appeal. Pl.'s
Suppl. Opp. to Def.'s Mot. to Amend Ct.'s Order (R.89),
at 2.

While the Department characterizes this submission as "eva-
sive[ ]" and designed to confirm the implication "that [the
NACDL's] resources were insufficient to afford counsel," we
understand it merely to point out an inconsistency in the
Department's own argument.

Moreover, we agree with the NACDL that the financial
hardship that may warrant an interim award of attorney's
fees is not the same as the irreparable harm needed to justify
interlocutory review. For an interim award of attorney's fees
it is enough that the fee is high relative to the party's or its
counsel's ability to continue financing the litigation. See
Allen v. FBI, 716 F. Supp. 667, 670 (D.D.C. 1989). On the
other hand, the irreparable harm necessary to bring a case
within the "tight 'collateral order doctrine' of Cohen," Trout,
891 F.2d at 335, must entail some prospect that the party is
or will become judgment proof. See Campanioni v. Barr, 962
F.2d 461, 463 (5th Cir. 1992). The NACDL's submissions to
the district court are evidence only that paying its counsel
would cause it financial hardship; they do not raise the

prospect that, if called upon to do so, the NACDL would be
unable to repay the Department.

In sum, because the interim award of attorney's fees is
neither a final judgment under s 1291 nor a collateral order
under Cohen, we do not have jurisdiction to review it.

B. Mandamus

As we have often noted, the writ of mandamus is "an
extraordinary remedy, to be reserved for extraordinary situa-
tions." In re Sealed Case, 151 F.3d 1059, 1063 (1998); accord
In re Papandreou, 139 F.3d 247, 250 (1998) ("Lax rules on
mandamus would undercut [the final judgment rule] ... and
would lead to piecemeal appellate litigation"). Accordingly,
we are not quick to issue a writ of mandamus in the exercise
of our supervisory power over the district court. See In re
Bituminous Coal Operators' Ass'n, Inc., 949 F.2d 1165, 1167
(1991) ("While recognizing that this litigation qualifies as
'really extraordinary,' we open no door for 'indiscriminate use'
of the remedy to avoid the strictures of the final judgment
rule"); United States v. Hubbard, 650 F.2d 293, 309 n.62
(1980) ("Although the Supreme Court ... and this court ...
have expressed a willingness to employ the writ ... in a
supervisory capacity to remedy certain classes of error not
traditionally thought remediable by mandamus, this willing-
ness cannot be read expansively").

We have yet systematically to set forth criteria by which to
determine whether a "supervisory" writ of mandamus shall
issue. See, e.g., Bituminous Coal, 949 F.2d at 1167-68; In re
United States, 872 F.2d at 477-79; Potomac Elec. Power Co.
v. ICC, 702 F.2d 1026, 1034-35 (D.C. Cir. 1983). Four of our
sister circuits, however, have adopted guidelines that we find
instructive and apply today. See Bauman v. United States
Dist. Ct., 557 F.2d 650 (9th Cir. 1977); see also United States
v. Amlani, 169 F.3d 1189, 1193-94 (9th Cir. 1999) (following
Bauman); In re Perrigo Co., 128 F.3d 430, 435 (6th Cir.
1997) (same); United States v. McVeigh, 119 F.3d 806, 810
(10th Cir. 1997) (same); In re Kansas City Star Co., 73 F.3d
191, 194 (8th Cir. 1996) (same). They consider:

 (1) whether the party seeking the writ has any other
adequate means, such as a direct appeal, to attain the
desired relief;

(2) whether that party will be harmed in a way not
correctable on appeal;

(3) whether the district court clearly erred or abused its
discretion;

(4) whether the district court's order is an oft-repeated
error; and

(5) whether the district court's order raises important
and novel problems or issues of law.

See, e.g., Bauman, 557 F.2d at 654-55. Following these
guidelines, we see that a supervisory writ of mandamus is
unwarranted in this case.

We have already concluded, first, that the Department can
seek review of the interim award of attorney's fees following
entry of a final judgment in this case and, second, that it will
not suffer irreparable injury in the meantime. We will
assume the third consideration, clear error, for the sake of
the present argument. As to the fifth and fourth consider-
ations, respectively, the Department argues that, though the
district court's erroneous rationale for the award of fees is
novel, it could between now and our resolution of the appeal
from the final judgment in this case become "a 'persistent'
error ... and thus threaten the proper administration of
justice in this Circuit." Specifically, the Department claims
that the district court, by determining that the NACDL
substantially prevailed even though the Department released
the final report to the public the day it was completed and
was under no obligation to expedite the release of the OIG's
working papers, ignored our teaching in Chesapeake Bay: if
"the Government's position is legally correct.... no fees are
recoverable," regardless whether "information was disclosed
after initial resistance." 11 F.3d at 216.

We do not share the Department's concern that the deci-
sion of the district court will "invite[ ] abuse of the FOIA"
with respect to interim awards of fees. As noted, the Depart-

ment's claims of error are rooted in the particulars of this
case; it does not challenge wholesale the district court's
authority to issue an interim award of fees. Apart from the
question of legal authority, the district court rendered only a
fact-specific discretionary decision based upon credibility de-
terminations and the narrow legal arguments the parties
placed before it. The Department's claim that the district
court set a precedent with portents well beyond the facts and
arguments in this litigation lies somewhere between exagger-
ation and speculation.

At most, then, only the Department's argument that the
district court's decision is clearly erroneous may survive
scrutiny, and upon that issue we express no opinion. In no
event, however, could clear error alone support the issuance
of a writ of mandamus in this case because, as we have seen,
any error--even a clear one--could be corrected on appeal
without irreparable harm either to the Department or to the
administration of the FOIA in this circuit. In these circum-
stances the court will not issue a writ of mandamus.

III. Conclusion

For the reasons stated above, the appeal is dismissed for
lack of jurisdiction and the petition for mandamus is denied.

So ordered.