United States District Court, Northern District of Illinois, E.D
July 2, 1981
CONTINENTAL CASUALTY COMPANY, PLAINTIFF,
RAY MARSHALL, SECRETARY OF LABOR, ET AL., DEFENDANTS.
The opinion of the court was delivered by: McGARR, District Judge.
MEMORANDUM OPINION AND ORDER
On January 6, 1978, plaintiff Continental Casualty Company filed a
request with the Office of Federal Contracts Compliance Programs
("OFCCP"), defendant herein, seeking under the Freedom of Information Act
("FOIA") access to OFCCP's case law and an explanatory index to the
information which "OFCCP was obligated by law to disclose." In the face
of the refusal of OFCCP to provide the requested information, plaintiff
Continental filed a complaint in this court on February 7, 1978.
On July 25, 1978, this court ordered the defendant to provide the
plaintiff with the documents embodying agency case law and a means of
access to them and that the parties meet together to resolve their
differences as to how this would be accomplished.
After some considerable delay, on November 10, 1980, OFCCP and
Continental entered into a consent decree approved by the court, whereby
OFCCP agreed to compile and maintain a detailed subject matter index on
an ongoing basis pursuant to the index requirements of FOIA. The order
also expressly provided that plaintiff might submit a petition for an
award of attorney's fees.
Despite the fact that the index ultimately provided for in the consent
order is the type of information which the FOIA requires a government
agency to disclose, OFCCP, prior to the filing of this action, and for
over two years thereafter, failed to comply with the indexing
requirements. These two years were marked by lack of cooperation and
evasive and dilatory tactics by the defendant. Plaintiff was persistent
and ultimately prevailed in bringing about the resolution of the case
embodied in the consent order on November 10.
Following the entry of the consent decree, plaintiff filed a motion for
fees. In the original order, the government was given until December 19,
1980 to respond. On December 11, 1980, the government applied for and
received an extension of time until January 12, 1981 and, on January 9,
by stipulation of the parties, the government's time to respond was
extended to February 11. On February 10, by stipulation of the parties
and with the approval of the court, the time for the government to
respond was extended to February 23, 1981. On February 23, 1981, on oral
motion of the government for a further extension of time, the government
was granted an additional thirty (lays in which to file its response to
plaintiff's petition for attorneys' fees.
As of the date of this opinion, no response has been filed, and the
court has elected to rule upon the petition without benefit of the
government's responsive pleading.
The Freedom of Information Act provides that a court may assess against
the United States reasonable attorneys 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). It is the finding
of this court that the plaintiff in this case has substantially prevailed
within the meaning of that section of the act. The consent order
ultimately agreed to was produced, after long delay, solely by virtue of
the persistent and diligent tactics of the plaintiff and despite the
dilatory tactics of the defendant.
The benefit to the public derived from this case, in terms of making
the OFCCP rulings and agency case law available to and comprehensible to
the public, is significant. The government's failure prior to the date of
the consent decree to make such data available to the public in a
comprehensive form was indefensible and had no reasonable basis in law.
The obligation on the part of defendant which Continental sought to
enforce was unambiguously mandated in the FOIA, and the failure of the
government to provide such information, both prior to and, more
significantly, after the filing of this lawsuit is inexplicable.
Continental, by forcing this issue with the governmental agency and
ultimately procuring the consent decree and the availability of the
materials to the public which the consent decree provides, promoted the
public interest and served an important public purpose. Plaintiff is
entitled to an award of fees.
In considering an award of attorneys fees, the court turns to the case
of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974), approved and adopted by the Seventh Circuit in Hampton v.
Hanrahan, 600 F.2d 600 (7th Cir. 1979).
The court finds that Jeffrey S. Goldman, counsel for Continental, is an
experienced and competent attorney and that he represented the interests
of Continental with competence.
Mr. Goldman has applied for costs and fees in accordance with the
applicable statute, and this court deems said application meritorious.
Plaintiff has applied for fees on the basis of itemized hours expended by
principal counsel, Jeffrey S. Goldman, and associates in his firm. The
expenditure of time by these attorneys runs from January, 1978 through
October, 1980, as set out in an original petition and a further period of
November and the first ten days of December, 1980, set out in a
supplemental petition. The hourly rates stated in the petition of Mr.
Goldman and his associates are consistent with the general hourly rates
prevailing in the legal community at the time, and the court finds them to
In his petition for fees, Mr. Goldman applies the hourly rate set forth
in his petition and supplemental petition and multiplies this by an
additional factor of 1.20. Since the total of the hours is not
discernible from the petition, the court is unable to determine a dollar
amount which results from the application of the stated hourly rates, at
different times in the case and for different associates, to the hours
itemized in an exhibit to the petition. This amount, whatever it may be,
is the amount which the court is willing to award in the form of
The justification for the additional factor of 1.20 is not convincing,
and that factor will not be allowed in the computation.
Petitioner Jeffrey S. Goldman is granted his petition for attorneys
fees and is ordered to submit a draft form of order to the court
containing the total number of hours and illustrating the application of
the hourly rates to those hours, and providing a total dollar amount
which does not include any multiplier or additional factor. No evidence
in support of costs having been provided, no costs are allowed.
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