United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2006 Decided December 1, 2006
No. 05-5366
JUDICIAL WATCH, INC.,
APPELLEE
v.
UNITED STATES DEPARTMENT OF COMMERCE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 95cv00133)
Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellant. With her on the briefs were Kenneth L.
Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S.
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
Paul J. Orfanedes argued the cause for appellee. With him
on the brief was James F. Peterson. Michael J. Hurley entered
an appearance.
Before: RANDOLPH and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: In 1995, Judicial Watch,
Inc. filed an action in the District Court under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, seeking information
from the Department of Commerce (“DOC”) regarding DOC’s
selection of participants for foreign trade missions. In May
1995, following a search in response to Judicial Watch’s FOIA
requests, DOC produced approximately 28,000 pages of
nonexempt information and withheld about 1,000 documents as
exempt. Disputes arose between the parties over the adequacy
of DOC’s search, and Judicial Watch charged that some DOC
officials had destroyed or removed responsive documents. In
December 1998, following discovery, the District Court granted
partial summary judgment to Judicial Watch and ordered DOC
to perform a new search. In issuing this judgment, the District
Court concluded that DOC had wrongfully withheld, destroyed,
and removed responsive documents, and ordered further
discovery into the circumstances surrounding DOC’s first search
and the misconduct alleged by Judicial Watch. DOC then
conducted an exhaustive new search, and Judicial Watch
conducted extensive discovery.
In March 2000, following the second search, DOC moved
for summary judgment. In November 2001, the District Court
issued an order allowing Judicial Watch to expand its discovery
into the circumstances of the second search. In September 2004,
the District Court finally granted DOC’s motion for summary
judgment, upholding DOC’s then-pending exemption claims. In
November 2004, Judicial Watch moved for an award of attorney
fees and costs under FOIA, 5 U.S.C. § 552(a)(4)(E), in the
amount of almost $950,000. In opposing the fee request, DOC
argued, inter alia, that there should be no award for fees
generated after December 1998, because Judicial Watch had
achieved no success on any of its claims following that date. In
3
July 2005, the District Court awarded $897,331 to Judicial
Watch in fees and costs, including about $488,000 for work
performed after the court ordered a new search in December
1998.
On appeal, DOC advances three interrelated claims. Its
principal claim is that “[a]n award of nearly half a million
dollars for work that produced no tangible benefit to Judicial
Watch amounts to a clear abuse of discretion on the part of the
District Court.” Appellant’s Br. at 9. DOC also contends that
Judicial Watch should not have been awarded fees and costs
incurred after December 1998 for discovery efforts on
“collateral issues.” Id. at 17. Finally, DOC argues that the
District Court “abused its discretion in awarding fees incurred
in discovery disputes that Judicial Watch pursued with third
parties,” id. at 20, noting that it “had no control over these
disputes, which eventually proved fruitless,” id. at 21.
The District Court found a fee spanning the entire course of
the lawsuit justified, because Judicial Watch substantially
prevailed on its FOIA claim, and the post-1998 discovery was
an inseparable part of that claim. We affirm the District Court’s
judgment in part. A portion of the post-1998 discovery was
directly related to Judicial Watch’s successful FOIA claim, so
the District Court did not err in awarding fees for some of the
work associated with the post-1998 discovery. We decline to
entertain DOC’s belated claim that fees should not have been
awarded for some of the post-1998 discovery during which
Judicial Watch allegedly engaged in a “fishing expedition.” Id.
at 10. This claim was not properly raised and preserved by DOC
when it opposed Judicial Watch’s fee application before the
District Court; therefore, the claim is waived. DOC’s last claim
is meritorious, however. DOC correctly notes that a portion of
the post-1998 work for which Judicial Watch seeks fees relates
to protracted discovery disputes between Judicial Watch and
third parties who were not within the realm of DOC’s authority
4
or control and with respect to issues not raised or pursued by
DOC. As explained more fully below, the District Court abused
its discretion in awarding fees generated by these so-called
third-party “litigation disputes.”
I. BACKGROUND
Judicial Watch is a non-profit corporation whose professed
mission is to combat government corruption through legal and
other corrective action. In the mid-1990s, Judicial Watch sought
to determine whether DOC had sold seats on secretarial “trade
missions” in exchange for contributions to the Democratic
National Committee (“DNC”) in violation of campaign finance
law. Trade missions included trips to foreign countries led by
the Secretary of Commerce during which representatives of U.S.
companies met host nations’ governments and business leaders
and explored the potential for increasing trade. Judicial Watch
filed multiple FOIA requests with DOC, seeking a wide array of
material concerning several such trade missions. When DOC
failed to respond, Judicial Watch filed suit in the District Court
seeking relief under FOIA. The District Court’s decisions in
this case fully recount the decade-long legal battle between
Judicial Watch and DOC, see, e.g., Judicial Watch, Inc. v. Dep’t
of Commerce (Partial Summary Judgment Decision), 34 F.
Supp. 2d 28, 29-41 (D.D.C. 1998); Judicial Watch, Inc. v. Dep’t
of Commerce (Final Merits Decision), 337 F. Supp. 2d 146,
156-57 (D.D.C. 2004), so we will only summarize the events
that are most relevant to this appeal.
Shortly after Judicial Watch filed suit, DOC produced
approximately 28,000 documents. Following the District
Court’s resolution of numerous disputes over withheld
documents, DOC moved for summary judgment in favor of
Judicial Watch. The District Court denied DOC’s motion,
declared DOC’s first search “inadequate, unreasonable, and
unlawful,” granted sua sponte partial summary judgment for
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Judicial Watch, and ordered DOC to conduct a second search
under extremely “restrictive and rigorous” requirements. Partial
Summary Judgment Decision, 34 F. Supp. 2d at 42-46. In
reaching this result, the District Court rested on its findings that
DOC had “wrongfully withheld documents, destroyed
documents, and removed or allowed the removal of others, all
with the apparent intention of thwarting the FOIA and [court]
orders.” Judicial Watch, Inc. v. Dep’t of Commerce (Interim
Relief Decision), 34 F. Supp. 2d 47, 48-49 (D.D.C. 1998).
Given the unique circumstances of this case, the District
Court reasoned that even a comprehensive, closely monitored
second search by DOC would not afford adequate relief for
Judicial Watch. On this point, the trial court noted:
There is substantial evidence that the DOC has destroyed
documents and removed documents from its control in an
effort to avoid releasing them to Judicial Watch. If the
Court were to grant the DOC’s motion and merely order a
new search, these documents would not be found even by
the most exhaustive of searches, and the DOC would have
succeeded in circumventing the FOIA.
The DOC recognizes this situation and proposes in its
motion a plan for retrieving jettisoned information. The
DOC offers to mail letters to former employees of three
offices within the DOC and request that the former
employees determine whether they may have removed
documents from the DOC when they left and, if so, that
they search the documents for information responsive to
Judicial Watch’s FOIA requests. While this plan is a step
in the right direction, the remedy for the government’s
misconduct in this case must have more “teeth” than the
DOC proposal offers. The courts cannot be powerless to
remedy FOIA violations where the agency simply discards
potentially damaging responsive documents. There must be
6
some mechanism by which the courts can keep the agencies
from circumventing the FOIA by simply removing
responsive documents from [their] control.
Partial Summary Judgment Decision, 34 F. Supp. 2d at 42. The
District Court thus concluded that “further discovery is
required” and authorized Judicial Watch “to inquire into any
discoverable information related to the destruction or removal
of documents” during the first search, including “some inquiry
into the creation and handling of documents.” Id. at 46. The
District Court appointed a Magistrate Judge to supervise
discovery, but cautioned that “Judicial Watch should not be
allowed to stray from inquiries that might be reasonably
calculated to lead to evidence of unlawful destruction or removal
of documents.” Id. Based on a suspicion of additional
wrongdoing, later determined to be unfounded, the District
Court authorized Judicial Watch to inquire into the
circumstances of the second search as well. Judicial Watch, Inc.
v. Dep’t of Commerce, 196 F. Supp. 2d 1, 8 (D.D.C. 2001).
Judicial Watch conducted extensive discovery (both before
and after DOC completed its second search in March 2000),
issuing numerous document requests and deposing nearly 20
individuals, including current and former employees of DOC
and the DNC, as well as suspected trade mission participants.
Deposition questioning covered DOC’s alleged misconduct
during the first search; inquired about possible locations of
missing documents; and probed circumstances surrounding the
creation of documents, the trade missions themselves,
background information about the deponents, and a number of
tangential issues. The Magistrate Judge routinely overruled
DOC’s objections to the scope of the questioning.
The reticence of third parties to be deposed led to protracted
disputes, which in turn caused the parties to submit numerous
filings leading to memorandum opinions by both the Magistrate
7
Judge and the District Court. For example, the DNC objected to
the scope of the original subpoena served upon it by Judicial
Watch. The District Court limited the order’s scope, but Judicial
Watch, unsatisfied with the documents produced, requested that
the Magistrate Judge restore the scope of the discovery order
and appealed the Magistrate’s refusal to do so. The District
Court remanded the matter to the Magistrate Judge for
reconsideration in light of newly discovered documents. The
DNC submitted a letter to the Magistrate Judge accusing
Judicial Watch of obtaining the new documents in contravention
of congressional confidentiality protocols. The Magistrate
Judge granted Judicial Watch’s motion to strike the letter for
failure to comply with the Local Rules of the District Court, but
then granted the DNC leave to refile. The DNC refiled and the
Magistrate Judge decided sua sponte to consider the DNC’s
allegations. Judicial Watch asked the District Court to set aside
the Magistrate’s order and filed with the Magistrate Judge a
motion to strike the DNC’s second filing. The District Court
granted the motion to strike the DNC filings, vacated the
Magistrate’s order, and again remanded the matter to the
Magistrate Judge. The DNC filed a motion for reconsideration
in the District Court. In a published opinion, the District Court
denied this motion but granted the DNC’s motion to file a
declaration and once again remanded the matter to the
Magistrate. See Judicial Watch, Inc. v. Dep’t of Commerce, 127
F. Supp. 2d 224, 225-28 (D.D.C. 2000). The DNC is just one of
several parties with whom Judicial Watch engaged in “collateral
disputes” that “sidetracked” the case. Id. at 227. These third-
party disputes were neither initiated nor pursued by DOC, and
DOC had no control over either the third parties or their disputes
with Judicial Watch.
In September 2004, having found that DOC had “engaged
in an exhaustive second search,” the District Court granted
DOC’s motion for summary judgment and denied Judicial
8
Watch’s request for further discovery. This judgment
effectively disposed of the merits of the FOIA case. Final
Merits Decision, 337 F. Supp. 2d at 159, 161, 182. Judicial
Watch then moved for attorney fees under FOIA. DOC opposed
an award of fees for post-1998 discovery, reasoning that it had
produced nothing of consequence to the litigation. The District
Court agreed that, “[w]hile Judicial Watch unearthed some
further evidence of improprieties during the first search, Judicial
Watch was largely unsuccessful at that task and was unable to
reconstruct or locate lost or destroyed responsive documents”
during the discovery conducted after December 1998. Judicial
Watch, Inc. v. Dep’t of Commerce (Fees Decision), 384 F. Supp.
2d 163, 167 (D.D.C. 2005). Nonetheless, the District Court
rejected DOC’s argument that the lack of “tangible results”
prevented Judicial Watch from recovering fees. Id. at 171.
Rather, the District Court held that the post-1998 discovery gave
effect to the court’s order granting Judicial Watch “a full and
fair opportunity, through additional discovery, to reconstruct or
discover documents . . . destroyed or removed . . . during the
DOC’s first search.” Id. The District Court thus refused to
distinguish between pre- and post-1998 discovery. The District
Court also refused to “reduce Judicial Watch’s award for the
time it spent addressing post-1998 discovery motions and related
matters with third-parties.” Id. On this latter point, the District
Court noted that FOIA “only requires that fees be ‘reasonably
incurred,’ which leaves open the possibility that a plaintiff’s
interactions with a third party might, in limited circumstances,
subject the government to a fee assessment.” Id. at 171 n.2.
DOC now appeals, arguing that the District Court abused its
discretion in awarding fees for work that did not result in any
measurable success for Judicial Watch and for the time spent by
Judicial Watch addressing discovery disputes with third parties.
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II. ANALYSIS
A. Eligibility and Entitlement to Attorney Fees Under FOIA
Subject to specified statutory exclusions and exemptions, 5
U.S.C. § 552(b), (c), “the Freedom of Information Act requires
federal agencies to make agency records available to the public
upon reasonable request,” United We Stand Am., Inc. v. IRS, 359
F.3d 595, 597 (D.C. Cir. 2004). FOIA also provides that a court
may award “reasonable attorney fees and other litigation costs
reasonably incurred in any case . . . in which the complainant
has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E).
A FOIA plaintiff is eligible for fees if it has substantially
prevailed on the merits of its claim. Edmonds v. FBI, 417 F.3d
1319, 1322 (D.C. Cir. 2005); Church of Scientology of Cal. v.
Harris, 653 F.2d 584, 587 (D.C. Cir. 1981). And in order to
“substantially prevail,” a party must obtain court-ordered relief
on the merits of its FOIA claim. See Edmonds, 417 F.3d at 1325
(holding that the plaintiff was eligible for fees because she
“received not just a declaration of her right to expedited
processing [of her FOIA claim], but an order that ‘changed the
legal relationship between the parties’” (quoting Select Milk
Producers, Inc. v. Johanns, 400 F.3d 939, 946 (D.C. Cir.
2005))).
Eligibility for fees does not necessarily mean that a party is
entitled to attorney fees under FOIA. See Edmonds, 417 F.3d at
1327. “In determining whether a ‘prevailing’ FOIA plaintiff is
entitled to fees, the district court [must] assess[] 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) the reasonableness of the agency’s
withholding.’” Davy v. CIA, 456 F.3d 162, 166-67 (D.C. Cir.
2006) (quoting Tax Analysts v. Dep’t of Justice, 965 F.2d 1092,
1093 (D.C. Cir. 1992)).
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A plaintiff’s overall success on the merits also must be
considered in determining the reasonableness of a fee award.
Farrar v. Hobby, 506 U.S. 103, 114 (1992) (citing Tex. State
Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 793
(1989)). Thus, when a plaintiff presents “distinctly different
claims for relief that are based on different facts and legal
theories,” the limit on awards to “prevailing parties requires that
these unrelated claims be treated as if they had been raised in
separate lawsuits, and therefore no fee may be awarded for
services on the unsuccessful claim.” Hensley v. Eckerhart, 461
U.S. 424, 434-35 (1983). In some cases, however,
claims for relief will involve a common core of facts or will
be based on related legal theories. Much of counsel’s time
will be devoted generally to the litigation as a whole,
making it difficult to divide the hours expended on a
claim-by-claim basis. Such a lawsuit cannot be viewed as
a series of discrete claims. Instead the district court should
focus on the significance of the overall relief obtained by
the plaintiff in relation to the hours reasonably expended on
the litigation.
Id. at 435. Finally, “[t]he plaintiff who has proven both
eligibility for and entitlement to fees must submit his fee bill to
the court for its scrutiny of the reasonableness of (a) the number
of hours expended and (b) the hourly fee claimed.” Long v. IRS,
932 F.2d 1309, 1313-14 (9th Cir. 1991) (per curiam).
B. The Applicable Standard of Review and DOC’s Principal
Claims on Appeal
We review the District Court’s fee entitlement
determination for abuse of discretion, Davy, 456 F.3d at 167,
deferring to that court’s “intimate[] associat[ion] with the case”
and “continuing relationship with the parties throughout the
suit,” Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704,
706, 716 (D.C. Cir. 1977); see also Hensley, 461 U.S. at 437
11
(“[T]he district court has discretion in determining the amount
of a fee award. This is appropriate in view of the district court’s
superior understanding of the litigation and the desirability of
avoiding frequent appellate review of what essentially are
factual matters.”).
In this case, DOC does not contend that Judicial Watch is
ineligible for fees under FOIA. Nor does DOC contest the
District Court’s analysis of the four factors that are weighed to
determine whether a prevailing party is entitled to fees. See
Davy, 456 F.3d at 166-67. Rather, DOC raises three objections
premised on its contention that Judicial Watch should not have
been awarded fees for discovery efforts undertaken after
December 22, 1998. First, DOC argues that since the post-1998
discovery produced no tangible benefits for Judicial Watch, no
fees should be awarded for any time spent in discovery after
December 22, 1998. Second, DOC argues that much of the post-
1998 discovery addressed matters that were “collateral” to
Judicial Watch’s FOIA request and therefore should not have
been counted in the determination of fees. In other words, DOC
suggests that Judicial Watch engaged in a “fishing expedition”
in conducting discovery pursuant to the District Court’s
December 1998 order. Appellant’s Br. at 10, 17. Finally, DOC
argues that the District Court abused its discretion in awarding
fees incurred in connection with litigation disputes that Judicial
Watch pursued with third parties over whom DOC had no
control and with respect to issues that had not been raised or
pursued by DOC. In DOC’s view, “[t]he government and the
American taxpayers should not be obligated to pay Judicial
Watch’s fees incurred to explore avenues that had nothing to do
with the FOIA requests at issue and to respond to a party other
than the government.” Id. at 22.
DOC’s three claims are obviously related. Indeed, the first
claim subsumes the second and third claims, and the “fishing
expedition” claim overlaps with DOC’s challenge to the fees
12
incurred in connection with “third-party” disputes. Each claim
raises slightly different considerations, however. We will
therefore address each claim separately in assessing the merits
of DOC’s appeal.
C. Fees Generated by Post-1998 Discovery
DOC’s principal claim is that Judicial Watch should not
have been awarded any fees and costs for unsuccessful
discovery efforts after December 22, 1998. More precisely,
DOC argues that “[i]f a plaintiff achieves only partial success,
it can be an abuse of discretion to award full fees.” Appellant’s
Br. at 13. In DOC’s view, “after December 22, 1998, Judicial
Watch achieved no measure of success that was relevant to the
final outcome of the case,” Appellant’s Br. at 14, so no fees
should have been awarded for any work done after that date.
We disagree.
Apparently intending to harken to the Court’s holding in
Hensley, DOC’s theory obviously rests on the assumption that
the post-1998 discovery was unrelated to Judicial Watch’s
principal FOIA claim, because it was undertaken in pursuit of
“distinctly different claims for relief” and “based on different
facts and legal theories.” Hensley, 461 U.S. at 434-35. On this
view of the case, DOC suggests that FOIA’s limit on awards to
“prevailing parties requires that these unrelated claims be treated
as if they had been raised in separate lawsuits, and therefore no
fee may be awarded for services on the unsuccessful claim.” Id.
DOC’s premise is wrong, and its reliance on Hensley is
misplaced.
On the record in this case, the post-1998 discovery cannot
reasonably be viewed as divorced from or unrelated to Judicial
Watch’s principal FOIA claim. The District Court certainly did
not intend to terminate the FOIA litigation when it granted
interim relief on December 22, 1998. See Interim Relief
Decision, 34 F. Supp. 2d at 57 (holding that “the case will now
13
proceed with limited discovery under the supervision of a
Magistrate Judge”). The District Court determined that, due to
DOC’s misconduct in its initial response to Judicial Watch’s
FOIA request, a closely monitored second search by DOC
would not suffice. The court therefore ordered a second search
by DOC and appointed a Magistrate Judge to oversee further
discovery. See Partial Summary Judgment Decision, 34 F.
Supp. 2d at 46. This action was taken to ensure that Judicial
Watch receive any responsive documents that had been removed
from DOC’s premises but not destroyed. In other words, the
post-1998 discovery was authorized solely to allow Judicial
Watch to pursue matters directly related to its FOIA claim. The
District Court’s December 22, 1998 Partial Summary Judgment
Decision and Interim Relief Decision did not initiate a new
action pursuant to which Judicial Watch was authorized to
pursue “distinctly different claims for relief . . . based on
different facts and legal theories,” Hensley, 461 U.S. at 434,
divorced from the complaint then before the court. DOC’s
suggestion to the contrary is specious.
Indeed, as counsel for DOC acknowledged during oral
argument, the partial summary judgment issued in Judicial
Watch’s favor on December 22, 1998 did not result in a final
appealable order. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S.
737, 744 (1976) (“[Grants] of partial summary judgment . . . are
by their terms interlocutory, and where assessment of damages
or awarding of other relief remains to be resolved have never
been considered to be ‘final’ . . . .”) (citation omitted). Had
more documents been uncovered after December 1998, the
District Court could have entered a further judgment in favor of
Judicial Watch on its FOIA claim. The claim on the merits of
Judicial Watch’s FOIA claim did not terminate until September
2004, when the District Court granted DOC’s March 2000
motion.
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Rather, as the District Court made clear, the second search
and related discovery were required to give effect to the court’s
order granting Judicial Watch “a full and fair opportunity,
through additional discovery, to reconstruct or discover
documents . . . destroyed or removed . . . during the DOC’s first
search.” Fees Decision, 384 F. Supp. 2d at 171. In other words,
the post-1998 discovery was intended to facilitate Judicial
Watch’s lawful pursuit of its principal FOIA claim. In the
analogous situation where fees are incurred monitoring
compliance with a consent decree, the Supreme Court instructs
that “measures necessary to enforce the remedy ordered by the
District Court cannot be divorced from the matters upon which
[the plaintiff] prevailed in securing the consent decree.”
Pennsylvania v. Delaware Valley Citizens’ Council for Clean
Air, 478 U.S. 546, 558-59 (1986); see also Sierra Club v.
Hankinson, 351 F.3d 1358, 1361-64 (11th Cir. 2003) (“A district
court may award fees for post-judgment monitoring of a consent
decree.”); Garrity v. Sununu, 752 F.2d 727, 738-39 (1st Cir.
1984) (same). Contrary to DOC’s suggestion, the post-1998
discovery was not ordered by the trial court to allow Judicial
Watch to pursue new claims.
On the record at hand, we hold that the District Court did
not abuse its discretion in concluding that the post-1998
discovery was intended to be in furtherance of, and therefore
directly related to, the FOIA claim upon which Judicial Watch
substantially prevailed. The District Court did not err in
concluding that at least some of the work related to the post-
1998 discovery could be counted in the calculation of attorney
fees due to Judicial Watch.
D. Judicial Watch’s Alleged “Fishing Expedition” in
Conjunction with Post-1998 Discovery
DOC charges that Judicial Watch’s post-1998 discovery
was employed to engage in a “fishing expedition” that was
15
unrelated to its FOIA lawsuit. We decline to entertain this
claim, because it was not properly preserved with the District
Court. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (as a
general rule, “a federal appellate court does not consider an
issue not passed upon below”); Williams v. Shalala, 997 F.2d
1494, 1500 (D.C. Cir. 1993) (“In general, an appellate court
cannot consider issues not raised before the district court.”). We
agree with Judicial Watch that, “in opposition to the fee
application below, DOC never made the argument that fees
should be denied because of allegedly irrelevant lines of
questions asked in certain depositions.” Appellee’s Br. at 24.
The argument is therefore waived.
There is no doubt that DOC repeatedly objected on
relevance grounds during the depositions before the Magistrate
Judge. See, e.g., Joint Appendix (“J.A.”) 644, 647-50, 675-77,
902, 951, 957, 960-61, 966-67, 977, 979, 982, 984. However,
in its “Memorandum of Points and Authorities in Partial
Opposition to Plaintiff’s Application for Attorneys’ Fees,” J.A.
431-59, DOC never raised any specific objections claiming that
certain of the fees claimed by Judicial Watch were excessive due
to inappropriate “fishing expeditions.” DOC did make a general
claim that some of the post-1998 discovery “delved into
‘collateral issues,’” but this argument was raised in the context
of DOC’s claim that, because the post-1998 discovery produced
no tangible benefits for Judicial Watch, no fees could be based
on work done after December 1998. J.A. 443. This was not
sufficient to put the District Court on notice that, in opposing
fees, DOC wished to renew specific objections to the scope and
relevance of some of the lines of inquiry pursued by Judicial
Watch while taking depositions after December 22, 1998.
Unsurprisingly, having received no specific “fishing
expedition,” relevance, or scope of discovery objections in
DOC’s opposition to Judicial Watch’s fee application, the
District Court did not address these matters. Rather, the District
16
Court merely noted that it had “policed Judicial Watch’s
discovery to ensure that discovery remained within the scope
authorized by the Court.” Fees Decision, 384 F. Supp. 2d at
171. The court concluded that, because it had carefully
“supervised post-1998 discovery to ensure relevancy, [it had] no
occasion to reduce Judicial Watch’s award.” Id. DOC raised no
specific objections below to contest this conclusion. Therefore,
we can find no grounds on this record to overturn the District
Court’s judgment on this point.
E. Fees Generated by Judicial Watch’s Disputes with Third
Parties
Finally, DOC argues that the District Court “abused its
discretion in awarding fees incurred in discovery disputes that
Judicial Watch pursued with third parties.” Appellant’s Br. at
20. DOC offers some examples to support its claim:
Some extensive disputes with third parties occurred.
For example, between December 22, 1998, and December
30, 2000, the docket reflects thirty-six filings concerning
non-party Democratic National Committee [DNC]
(including three Court orders). J.A. 38-66. The filings
concerned discovery Judicial Watch was attempting to
obtain from the DNC. Yet DOC had no control over these
disputes, which eventually proved fruitless.
Similarly, during that same period the docket reflects
27 docket entries concerning Judicial Watch’s attempt to
take the deposition of Charlie Trie. Id. Mr. Trie never
worked for DOC and had nothing to do with the FOIA
requests or the search for responsive documents.4
4
Numerous witnesses were represented by private
counsel and motions made on their behalf by
private counsel were not joined by DOC. E.g.,
17
J.A. 41-44 (Docket Nos. 420, 421, 424, 431, 472,
475).
The list goes on.
Appellant’s Br. at 21.
DOC’s principal argument here is that time spent by a FOIA
claimant in litigation disputes with third parties, who are not
within the government’s authority or control, with respect to
litigation issues that were neither raised nor pursued by the
government, cannot form the basis of a fee award under 5 U.S.C.
§ 552(a)(4)(E). “It would be manifestly unfair,” in DOC’s
view, “to charge DOC for litigation costs over which it had no
control. Accordingly, fees for such work should not have been
assessed against DOC.” Appellant’s Br. at 22. In other words,
according to DOC, such fees are not “reasonable” as required by
FOIA. On the facts of this case, we agree.
Although neither party cites any case law addressing this
“third-party” issue, there is authority supporting the proposition
that an award of attorney fees against the government is not
appropriate for those phases of litigation in which the plaintiff
is opposed solely by third parties. This principle was noted but
not applied in Anderson v. Secretary of Health & Human Servs.,
80 F.3d 1500, 1505 (10th Cir. 1996). In Love v. Reilly, 924 F.2d
1492 (9th Cir. 1991), however, the court held that the
government was not required to pay fees attributable to the
plaintiff’s opposition to a third party’s motion to stay a
preliminary injunction granted on behalf of plaintiff. Id. at
1495. The court in Love noted that the Fifth Circuit reached a
similar result in Avoyelles Sportsmen’s League v. Marsh, 786
F.2d 631 (5th Cir.1986):
Avoyelles involved the interpretation of the Clean Water
Act, which authorizes the court to award “costs of litigation
(including reasonable attorney and expert witness fees) to
18
any party, whenever the court determines such award is
appropriate.” 33 U.S.C. § 1365(d). The court held that
attorney’s fees are only appropriate for portions of the
litigation made necessary by government opposition to
legitimate claims of the party seeking the award. Id. at 632.
The court further held that an award is not appropriate for
a phase of the litigation in which the party seeking an award
was opposed only by other, non-governmental parties, and
put the burden on the plaintiffs to show that “their claimed
expenses were incurred in opposing improper government
resistance to their rightful demands.” Id. at 636 (emphasis
added).
While this case involves the EAJA, not the Clean
Water Act, we find the Fifth Circuit’s reasoning in
Avoyelles persuasive. The Avoyelles court found that where
plaintiffs are litigating an issue and are opposed only by
private defendants, a fee award against the government
would be “manifestly unfair and contrary to historic
fee-shifting principles.” Id. Similarly, an award against the
government for fees incurred by NWFPA in opposing the
stay is unjust because the government did not join the
intervenors’ motion to stay, and NWFPA has not shown
that the attorney’s fees attributable to fighting the stay were
incurred in opposing government resistance. Consequently,
the award of fees by the district court for the opposition to
the stay was error.
Love, 924 F.2d at 1495-96; see also Watson v. County of
Riverside, 300 F.3d 1092, 1097 (9th Cir. 2002) (holding that “[a]
plaintiff can be awarded fees incurred opposing intervention
[only] if the defendant either joined the intervenor’s motion or
if the intervenor’s acts were made necessary by [the defendant’s]
opposition to legitimate claims of the party seeking the award”)
(internal citation and quotation marks omitted)); Chem. Mfrs.
Ass’n v. EPA, 885 F.2d 1276, 1280 (5th Cir. 1989) (applying the
19
Avoyelles principle). Although some of these cases involve
different fee-shifting statutes, the decisions are nonetheless
instructive in construing the applicable “reasonable” standard
that applies to fee awards under FOIA. “There are over 100
separate statutes providing for the award of attorney’s fees; and
although these provisions cover a wide variety of contexts and
causes of action, the benchmark for the awards under nearly all
of these statutes is that the attorney’s fee must be ‘reasonable.’”
Delaware Valley, 478 U.S. at 562.
Following the principle enunciated in Avoyelles and Love,
we hold that DOC should only have been liable for fees related
to third parties insofar as they “were incurred in opposing
government resistance.” Love, 924 F.2d at 1496; see also
Avoyelles, 786 F.2d at 636. Therefore, in those situations when
(1) the litigation disputes between Judicial Watch and the third
parties were not initiated or pursued by DOC, (2) the third
parties were not represented by DOC, and (3) DOC had neither
authority nor control over the third parties, no fees should have
been awarded.
It is important to emphasize here that “litigation disputes”
should not be confused with authorized depositions of third
parties taken by Judicial Watch. DOC contests only the former,
not the latter. This was confirmed in an exchange between
government counsel and one of the Judges during oral argument
in this case:
Judge: I need to ask you just one question. As a matter of
law, one of your arguments is that the government should
not be required to pay for depositions of third parties, that
is, non-government employees. Do you cite — I don’t
recall you citing anything for that proposition.
Counsel for DOC: No your Honor, may I — if I might
clarify. What we said was that we shouldn’t be required to
pay for litigation disputes between Judicial Watch and third
20
parties. So for example, there were numerous motions
about John Huang and the fact that he was pleading the
Fifth Amendment. We had to brief whether or not he was
allowed to plead the Fifth Amendment. There were
motions about the subpoena — whether or not he had to
come from California and who would pay his costs. What
we said was that we shouldn’t have to pay for litigation that
was done by Mr. Huang’s attorneys over which we had no
control.
Judge: You were — then I misunderstood — you were not
arguing that if a third party is properly deposed that the
government never has to —
Counsel for DOC: No no. We had no per se argument
like that. It was litigation that was done that we had no
control over — the government should not have to pay.
See Recording of Oral Argument at 27:06.
Our decision here is limited to what DOC describes as
Judicial Watch’s litigation disputes with third parties, excluding
Judicial Watch’s depositions of third parties. In other words,
having lost its general challenge to fees generated by post-1998
discovery, the government does not challenge the authority of
the District Court to require third-party depositions, nor does it
challenge the fees that were generated by this work. Therefore,
we have no need to address this issue.
At bottom, we hold that the District Court, without adequate
justification, went too far in requiring the government to pay
fees for the time spent by Judicial Watch litigating disputes with
third parties in those situations in which (1) the litigation
disputes between Judicial Watch and the third parties were not
initiated or pursued by DOC, (2) the third parties were not
represented by DOC, and (3) DOC had neither authority nor
21
control over the third parties. We remand the case so that the
fee award can be recalculated and reduced accordingly.
III. CONCLUSION
We hereby affirm the judgment of the District Court in
part, reverse in part, and remand for further consideration
consistent with this opinion.