Free Motion for Attorney Fees - District Court of Colorado - Colorado

Case 1:04-cv-01264-LTB-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01264-LTB-PAC MARY M. HULL, Plaintiff, vs. UNITED STATES DEPARTMENT OF LABOR, Defendant. ______________________________________________________________________________ PLAINTIFF'S MOTION FOR JUDICIAL DECREE and AWARD OF ATTORNEY'S FEES AND REIMBURSEMENT OF EXPENSES ______________________________________________________________________________ For the following reasons Plaintiff MARY M. HULL (HULL), through her counsel, hereby moves for a judicial decree and an award of attorney's fees and reimbursement of expenses, pursuant to the Freedom of Information Act, 29 U.S.C. § 552(a)(4)(E) (FOIA), and 28 U.S.C. Section 1927. Submitted herewith in support of this motion is the Declaration of Curtis L. Kennedy (Exhibit 1).

I.

BACKGROUND.

This civil action was commenced on June 18, 2004, after the DOL denied HULL's FOIA request and refused to give her even a single piece of paper concerning an investigation of the Qwest Pension Plan. 1 Of course, after the litigation was underway, the federal agency began to

turn over requested documents. The first wave of documents consisted of about 4,000 pages.

Mary "Mimi" HULL is a former employee of U S WEST, having retired in February 1990. She is a participant in the Qwest Pension Plan and receives a monthly service pension annuity. HULL is the elected President of the Association of U S WEST Retirees (AUSWR) an organization of over 20,000 retirees formed 10 years ago when retirees learned that U S WEST had improperly charged millions of dollars of expenses to the U S WEST Pension Plan and was moving towards reneging on a lifetime promise of health care benefits. Ms. HULL commenced her FOIA request as part of her duties to help the retiree organization police the pension plan, now called the Qwest Pension Plan.

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Then, there were successive waves of disclosures, but, only after the DOL engaged in a protracted game of `cat and mouse,' trying to keep one step ahead of a judicial order requiring federal agency compliance with FOIA. Indeed, Chief Judge Babcock amply recognized the DOL's very troubling behavior in this litigation in his December 2, 2005 Order wherein the Court denied the DOL's request for dismissal of this action. (See Docket 28). 2 In that Order, the Court stated: "Hull argues, cogently, that a citizen should not have to file a lawsuit to make a federal agency comply with the law. An agency that has committed this many questionable acts in response to a FOIA request, Hull contends, lacks credibility to assert a FOIA exemption and the court should therefore deny the DOL's motion for summary judgment and subject any withheld documents to in camera review. The DOL does not respond to these allegations of bad faith, . . . More significantly, Hull's cumulative evidence shows a disturbing trend of agency behavior. While any one fo the instances Hull cites might be attributable to mistake, oversight or lack of internal agency coordination and communication, Hull's extensive list of agency conduct suggests a pattern of obstructing Hull's FOIA request and indicates that the DOL was not behaving in the spirit of FOIA, providing information in an open fashion to enable citizens to hold their government accountable. Anderson, 907 F.2d 941." (Docket 28, pp. 18-19) (emphasis added). This Court went on to rule, inter alia, that certain

documents the DOL withheld from HULL on the basis of an alleged FOIA Exemption 4 are not, in fact, subject to FOIA Exemption 4 and the DOL subsequently produced those documents to HULL. In addition, the Court granted HULL's request for an in camera inspection of other disputed documents and ordered some of those inspected documents produced to HULL. Nevertheless, the DOL continued with its behavior to thwart HULL's legitimate FOIA request. HULL was required to submit another motion for Summary Judgment and request of a second in camera inspection because it was discovered the DOL was withholding another batch

In the December 2, 2005 Order, this Court described this case as "an ongoing tug of war between Hull and the DOL over the DOL's reports from an investigation of the Qwest Pension Plan ("QPP."). (Docket 28, p. 1). -2-

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of papers that should have been produced. (See Docket 29, filed on December 21, 2005). True to its stubborn litigious position, the DOL opposed that motion. (See Docket 30). Then, only after HULL filed yet another legal brief (See Docket 33) pointing out the DOL's contradictions and weaknesses in its legal argument, would the DOL give HULL the disputed papers. The DOL's conduct forced HULL to exercise her right to commence this civil action. As this Court succinctly put it, "the record strongly suggests that HULL's lawsuit prompted the DOL to release this information." (See Docket 28, p. 20).

II. A.

ARGUMENT

The Court Should Grant HULL a Judicial Decree Pursuant to 5 U.S.C. Section 552(a)(4)(F) and 28 U.S.C. Section 1927.

HULL litigated this FOIA ordeal for almost 20 months. The DOL, through Assistant United States Attorney Michael Johnson, tells HULL and her counsel that everything has now been produced, except a few pages that the parties agree are subject to an attorney-client privilege. (See Exhibit 1, Declaration of Kennedy, p. 3 ¶ 10). Before this case was filed, HULL had nothing. HULL's litigation successfully caused the DOL to provide her over 6,000 pages of FOIA responsive paperwork. Now, the DOL will contend the case is moot. In general, "[o]nce the government produces all the documents a plaintiff requests, her claim for relief under the FOIA becomes moot." Anderson v. U.S. Dep't of Health & Human Servs., 3 F.3d 1383, 1384 (10th Cir. 1993). Not so fast. In her Complaint at paragraph 19 and paragraph A of the Prayer For Relief, HULL both alleges and asks this Court, "pursuant to FOIA, 5 U.S.C. § 552(a)(4)(F), [to] issue an order finding that the circumstances surrounding the withholding of documents responsive to HULL's FOIA request raises questions whether DOL agency personnel acted arbitrarily or capriciously with respect to the withholding." 5 U.S.C. Section 552(a)(4)(F) states: -3-

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"Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends." (emphasis added). HULL should be granted such a judicial decree with the requested finding. The DOL deliberately chose to put HULL and her attorney through an unnecessary and protracted litigation process, one involving multiple motions seeking judicial relief, only to see the DOL `cave-in" just ahead of Court ordered compliance. The public will be best served if the DOL is called on the carpet for its obstructionist behavior and the federal agency is put to task to take corrective action. The DOL's unnecessary litigious behavior also supports a ruling by this Court that the DOL be held accountable for a violation of 28 U.S.C. Section 1927 which provides: "Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." While HULL and her counsel are not placing the blame personally on United States Assistant Attorney Michael Johnson, Plaintiff strongly contends the DOL's actions were calculated to cause HULL to incur a lot of trouble before the federal agency would perform its duty under FOIA.

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B.

The Court Should Grant HULL an Award of Attorney's Fees and Expenses, Since She Substantially Prevailed in this Protracted FOIA Litigation.

Under FOIA, this 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). Assessment of attorney's fees in an FOIA case is discretionary with the district court. Aviation Data Serv. v. FAA, 687 F.2d 1319, 1321 (10th Cir. 1982) (holding that the district court should be guided by the following four factors: "(1) the benefit to the public, if any, derived 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 had a reasonable basis in the law." In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Supreme Court considered the attorney's fees provisions of the Fair Housing Amendments Act, 42 U.S.C. Section 3601 et seq., and the Americans with Disabilities Act, 42 U.S.C. Section 1201 et seq., which permit courts to award fees only to a "prevailing party." Id. §§ 3613(c)(2), 12205. The Court rejected the plaintiffs' contention, which it characterized as the "catalyst theory," that "a plaintiff is a `prevailing party' if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." Buckhannon, 532 U.S. at 601, 121 S.Ct. 1835. Rather, the Court ruled, for a litigant to be a "prevailing party," there must have been a "judicially sanctioned change in the legal relationship of the parties." Id. at 605, 121 S.Ct. 1835. "[E]nforceable judgments on the merits and court-ordered consent decrees," the Court said, suffice to create such a change. Id. at 604, 121 S.Ct. 1835. In Oil, Chemical & Atomic Workers International Union v. Department of Energy (OCAW), the District of Columbia circuit extended the holding of Buckhannon to the fee-shifting

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provision of FOIA. 288 F.3d 452, 454-57 (D.C. Cir. 2002).

The OCAW court concluded that

"the `substantially prevailed' language in FOIA [is] the functional equivalent of the `prevailing party' language found in" the statutes interpreted in Buckhannon. Id. at 455-56. It "therefore held that in order for plaintiffs in FOIA actions to become eligible for an award of attorney's fees, they must have `been awarded some relief by [a] court,' either in a judgment on the merits or in a court-ordered consent decree." Id. at 456-57 (quoting Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835). While HULL disagrees with the District of Columbia Circuit Court's decision in OCAW to extend the Buchanan ruling to FOIA cases, she, nevertheless, contends she has satisfied the requirements of Buchanan and OCAW by obtaining a requested in camera review, denial of the DOL's motion for summary judgment and an order requiring the DOL to produce to her additional documents that had been wrongfully withheld. Prior to the December 2, 2005 Order, the DOL was not under judicial direction to produce any category of documents by any specified date to HULL. Once the court engaged in an in camera inspection and issued its follow up order for production, the DOL was under judicial direction to produce the nonexempt documents. HULL contends the order amounted to a "judicially sanctioned change in the legal relationship of the parties." Buckhannon, 532 U.S. 605, 121 S.Ct. 1835. Thereafter, timely production of the nonexempt documents by the DOL could no longer be described as a "voluntary change in the defendant's conduct." Id. at 600, 121 S.Ct. 1835. To the contrary, HULL then had an "enforceable judgment," Id. at 607 n. 9, 121 S.Ct. 1835, and if the DOL failed to comply, it faced the sanction of contempt. There can be no question that this Court's intervention changed the DOL's behavior and altered the federal agency's obligation's to HULL, the FOIA requester. The action taken by this Court altered the status quo and vindicated HULL's statutory right that her Complaint expressly -6-

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sought. That the Court altered the relationship between the parties is readily apparent. Just look at what happened when HULL subsequently filed yet another motion for summary judgment that the DOL initially opposed. Upon review of HULL's last legal brief filed on February 3, 2006, the DOL complied with HULL's request, again, producing the requested papers in an attempt to make the matter moot before there could be further judicial involvement. (See Exhibit 1, Declaration of Kennedy, p. 3 ¶ 9). Bottom line, the DOL chose to game the system of complying with a legitimate FOIA request and this Court should not countenance that type of bad faith behavior by a federal agency. There should be an award of attorney's fees. Should the Court not award the requested fees and expenses, the result will be a perverse incentive for the DOL to, once again, play a game of `cat and mouse' or "tug-of-war" in an attempt to wear down a less determined, but still deserving FOIA requester. No United States citizen should have to go through this much aggravation in order to get a federal agency to comply with a legitimate FOIA request. HULL adopts and incorporates herein the Declaration of Curtis L. Kennedy (Exhibit 1) and she asks for an order awarding fees of $27,000, plus expenses in the amount of $570.00.

C.

HULL is Deserving of An Award of Attorney's Fees Under the Tenth Circuit's Guiding Factors.

Prior to Buchanan, the Tenth Circuit in the case of Aviation Data Serv. v. FAA, 687 F.2d 1319, 1321 (10th Cir. 1982) held that a district court should be guided by the following four factors when deciding to award attorney's fees in a FOIA case: "(1) the benefit to the public, if any, derived 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 had a reasonable basis in the law." HULL meets all of these factors. First, the information being sought was for the benefit of thousands of Qwest Pension -7-

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Plan participants who are trying to police their pension plan, especially after witnessing unrecoverable disasters across the nation with respect to many defined pension plans. HULL was fulfilling her duty as the elected President of the AUSWR, a non profit organization of retirees charged with protecting the interests of retirees and their spouses. Second, there was no commercial benefit derived to HULL or anyone else. She did not seek the information for the purposes of exploiting the same for profit or other commercial gain. Third, HULL is a Qwest Pension Plan participant and she has every right to know what is going on with the trust fund that she depends upon. Fourth, the Court has amply seen the DOL's incredible effort in this case to obstruct HULL's efforts. HULL laid out a litany of examples of the DOL's bad faith behavior which the Court recited in its December 2, 2005 Order. 3 Notably, the DOL does not deny any of this. No one factor espoused by the Tenth Circuit in Aviation Data Serv. v. FAA should be decisive. Yet, HULL satisfies the majority, if not all of the factors.

In the Courts December 2, 2005 Order, the Court notes the DOL does not dispute HULL's listing of disturbing agency behavior, as follows: (1) failing to respond to the initial FOIA request in a timely fashion; (2) issuing a blanket denial of all documents under Exemption 7(A) prior to Hull's filing of a complaint but only disclosing detailed information after Hull initiated her lawsuit; (3) denying all information under Exemption 7(A) as relevant to a pending investigation and then disclosing substantial information while the investigation was allegedly still pending; (4) initially withholding some information to protect the identity of an investigator and then providing the name of that investigator in a disclosed document; (5) ending the Qwest investigation April 7, 2005 but not informing Hull until May 18, 2005, after Hull's attorney had responded to a DOL motion rendered moot by the end of the investigation; (6) the absence of any documents in the file disclosed to Hull between May 2004 and April 2005, suggesting that the Qwest investigation in fact ended in May 2004 and that the DOL kept this investigation open for the sole purpose of denying documents as part of an ongoing investigation; and (7) belatedly discovering 17 documents pertinent to Hull's request only after Hull identified a discrepancy in the DOL's Vaughn index." (Docket 28, p. 18). -8-

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III.

CONCLUSION

For the aforesaid reasons and those reasons set forth in the Declaration of Curtis L. Kennedy submitted herewith as Exhibit 1, the Court should enter a judicial decree, pursuant to 5 U.S.C. Section 552(a)(4)(F) with a finding that the circumstances surrounding the DOL's withholding of documents responsive to HULL's FOIA request prior to and during this litigation raise questions about whether agency personnel acted arbitrarily or capriciously with respect to the withholding. Moreover, the Court should, pursuant to 5 U.S.C. Section 552(a)(4)(E) and 28 U.S.C. Section 1927, award HULL's counsel an award of attorney's fees in the amount of $27,000, plus expenses of $570.00. DATED this 31st day of March, 2006. s/ Curtis L. Kennedy Curtis L. Kennedy 8405 East Princeton Avenue Denver, CO 80237-1741 Telephone: 303-770-0440 Facsimile: 303-843-0360 e-mail [email protected] Attorney for Plaintiff Mary M. Hull

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CERTIFICATE OF SERVICE I hereby certify that on the 31st day of March, 2006, a true and correct copy of the above and foregoing document was filed with the Clerk of the Court using the CM/ECF system. I also certified that on this 31st day of March, 2006, a true and correct copy of the above and foregoing document was delivered to Defendant's counsel of record via email as follows: Michael C. Johnson, Esq. Assistant United States Attorney UNITED STATES ATTORNEY'S OFFICE 1225 17th Street, 7th Floor Denver, CO 80202 Tele: 303-454-0134 Fax: 303-454-0404 E-mail: [email protected] Also, copy of the same was delivered via email to Plaintiff Mary M. Hull. Mimi Hull 678 Clarkson St. Denver, CO 80218-2302 E-mail: [email protected] s/ Curtis L. Kennedy Curtis L. Kennedy

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