February 8, 2005
Mimi Hull, President
ASSOCIATION OF U S WEST RETIREES
Board Members and general membership
This is a follow-up to my January 24, 2005,
report regarding the Hull v. Department of Labor (Freedom of
Information Act - FOIA) lawsuit filed in the Denver Federal
Court. Today, United States Magistrate Judge Schlatter conducted a
status conference and he established two deadlines: 1) a telephone
settlement conference will occur on March 1, 2005 at 1:30 p.m.; and 2)
if there is no agreement on settlement, the United States Attorney will
have until April 1, 2005, to file a motion for summary judgment arguing
that the matter is still being investigated by the DOL and the 1,500
withheld papers remain exempt under FOIA and will not be released.
We have proposed an agreement to have the remaining papers
released as soon as the DOL's 'investigation' is concluded, and we asked
for payment of attorney's fees - only $2,500 as a compromise - since the
lawsuit was clearly a catalyst to get the DOL to turn over 4,200 pages
of information and provide a requested Vaughn Index. We contend that
Ms. Hull has substantially prevailed and, pursuant to FOIA, the
government should pay some amount of reasonable attorney's fees. FOIA provides
that the court "may assess against the United States 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). But, an impediment to getting the DOL to pay reasonable
attorney's fees is the May 29, 2001, 5-4 decision issued by the U.S.
Supreme Court in the case of Buckhannon Board and Care Home, Inc.,
et al., v. West Virginia Department of Health and Human Resources, et al. In
that case, the Supreme Court held that a party in litigation with the
government is not a "prevailing party" unless he or she gets the
intended result by way of a judgment on the merits or a court-ordered
consent decree. In other words, the fact that the government gives in
and voluntarily changes its position after a citizen files a
lawsuit, such as a claim under FOIA, is not enough to entitle the
Plaintiff to get an order from the court requiring the government pay
attorney's fees and costs. In the very divided Supreme Court decision,
the 5-4 majority ruled that even though a Plaintiff, like Ms. Hull,
has nonetheless achieved a desired result because the lawsuit brought
about a voluntary change in the government's conduct, the Plaintiff is
not deemed to be a "prevailing party," and is not entitled to payment of
reasonable attorney's fees. In the Hull case we got most of
what we wanted, not because there was a court order directed at the DOL,
but because the DOL voluntarily decided to turn over requested
information. So, the DOL's position is that Ms. Hull is not a
"prevailing party."
Surely, it would be far less expensive for the government to
make the nominal attorney's fees payment ($2,500) rather than continue
with litigation and incur the expense and trouble that has been
delegated to the U.S. Attorney's office in Denver. But, today the
Assistant U.S. Attorney lamented that, due to federal government budget
cuts, most likely the DOL would not authorize any agreement to pay any
amount of attorney's fees.
Again, we are not yet prepared to drop this case, simply because
the DOL has given us some 4,200 pages of documents records and says the
rest - about 1,500 pages - should be withheld because the investigation
is “ongoing.” We will seek further assurances that the 3 year
'investigation' started in April 2001 is, indeed, continuing. Absent
some firm declaration from the DOL, we can ask for an in-camera
inspection of the 1,200 withheld pages of documents. Also, we
can pursue a claim for payment of costs and fees, but, absent a court
order declaring that the DOL has acted in bad faith, we have little
chance of recovering attorney's fees and costs.
I will send you a written report about what happens on March 1.
Curtis
303-770-0440