February 8, 2005
Mimi Hull, President
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.