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MANOS v. UNITED STATES DEPT. OF THE AIR FORCE

August 13, 1993

KAREN L. MANOS, Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE AIR FORCE, Defendant.


PATEL


The opinion of the court was delivered by: MARILYN HALL PATEL

This matter is before the court on plaintiff Major Karen L. Manos' application for attorney's fees under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(B) et seq. The issue presented is whether an attorney who is a pro se plaintiff and who has substantially prevailed on a FOIA claim may be awarded attorneys' fees under FOIA. Having considered the parties' memoranda and pertinent case law, the court enters the following Memorandum and Order.

 LEGAL STANDARD

 FOIA permits the court to "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). Deciding whether to award attorneys' fees in a FOIA case involves a two-step inquiry: (1) whether the plaintiff is eligible for an award of attorneys' fees; and (2) whether the plaintiff is entitled to such an award. Church of Scientology v. U.S. Postal Service, 700 F.2d 486, 489 (9th Cir. 1983).

 The plaintiff in a FOIA action is required to present convincing evidence that two threshold conditions have been satisfied in order to be eligible for attorneys' fees. First, the plaintiff must show that it was reasonably necessary to file the action to obtain the information. Second, the filing of the action must have a substantial causative effect on the delivery of information. Exner v. Federal Bureau of Investigation, 443 F. Supp. 1349, 1353 (S.D. Cal. 1978), aff'd, 612 F.2d 1202 (9th Cir. 1980). Whether a party meets both of the above requirements, and thus substantially prevails on her claim, is a factual determination for the district court. Church of Scientology, 700 F.2d at 489.

 The award of costs and attorneys' fees does not automatically follow from a finding that the plaintiff has substantially prevailed; the court has discretion to determine whether plaintiff is entitled to an award of attorney fees. Cuneo v. Rumsfeld, 180 U.S. App. D.C. 184, 553 F.2d 1360, 1365 (D.C. Cir. 1977); see also S. Conf. Rep. No.93-1200, 93d Cong., 2d Sess. 10, reprinted in 1974 U.S.C.C.A.N. 6267, 6288.

 The Ninth Circuit, along with a majority of other circuits, has outlined four factors for district courts to consider in determining entitlement to an award of attorneys' fees: "(1) the benefit to the public, if any, deriving 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 sought had a reasonable basis in law." Church of Scientology, 700 F.2d at 492.

 DISCUSSION

 I. Eligibility For Attorneys' Fees

 Manos requested specific redacted documents under the FOIA from the Air Force's Judge Advocate General. The request was then forwarded to the Air Force's Freedom of Information Manager for processing. Although many responsive documents were produced, the Air Force withheld certain documents as exempt from production on the grounds that disclosure, even of redacted documents, would create an unwarranted invasion of personal privacy. The court conducted an in camera review of the documents and found that in all but one instance, the redaction adequately protected privacy interests. The Air Force was ordered to promptly produce the withheld documents.

 Based on this finding, this court held that Manos substantially prevailed on her FOIA claim. Mem. and Order of Mar. 24, 1993, at 5. Because this court found, and the Air Force has not contested, that Manos substantially prevailed in her claim, she is eligible for an award of attorneys' fees. However, it remains to be decided whether Manos, a pro se attorney plaintiff, is entitled to an award of attorneys' fees.

 II. Entitlement To Attorneys' Fees

 The purpose behind FOIA is to ensure a national policy of open government through the disclosure of government information. H. R. Rep. No. 93-876, 93rd Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6268. The FOIA fee provision was specifically designed to remove the barriers a private individual faces in ensuring government compliance with the policy of open government. The policy serves three clear purposes. "First, it acts as an incentive for private individuals to pursue vigorously their claims for information." Cazalas v. U.S. Dep't of Justice, 709 F.2d 1051, 1057 (5th Cir. 1983). Persons should not be blocked from rightfully obtaining governmental information simply because they cannot afford to have counsel assist them. "Second and third, the provision serves a deterrent and, to a lesser extent a punitive purpose." Id. It follows that if the government were forced to pay fees every time it withheld documents that did not satisfy the reasonable basis requirement, it would be more reluctant to oppose FOIA requests.

 While attorneys' fees may be awarded when a litigant retains counsel and substantially prevails in her claim, the Ninth Circuit has held that a pro se litigant, who is not an attorney, is not entitled to receive attorneys' fees under FOIA. Carter v. Veterans Administration, 780 F.2d 1479, 1481 (9th Cir. 1986). This view is followed by all the circuits that have considered this issue. See e.g., Benavides v. Bureau of Prisons, No. 91-5420, 993 F.2d 257, 1993 U.S. App. LEXIS 12582, at *6 (D.C. Cir. May 28, 1993); DeBold v. Stimson, 735 F.2d 1037, 1042-43 (7th Cir. 1984); Wolfel v. United States, 711 F.2d 66, 68-69 (6th Cir. 1983); Clarkson v. IRS, 678 F.2d 1368-1371 (11th Cir. 1982); Cunningham v. FBI, 664 F.2d 383, 384-87 (3d Cir. 1981); Barrett v. Bureau of Customs, 651 F.2d 1087, 1090 (5th Cir. 1981), cert. denied, 455 U.S. 950, 71 L. Ed. 2d 665, 102 S. Ct. ...


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