ELR Citation: ELR 20168
No(s). 85-6227 (D.C. Cir. Jul 31, 1987)

The court holds that a public interest group's attorneys fees are appropriate under the Freedom of Information Act, ELR STAT. ADMIN. PROC. 011, where it substantially prevailed against the Nuclear Regulatory Commission, which had denied it information concerning the design of a nuclear reactor and where equities balance in favor of awarding attorney fees. The court applies a two-pronged test, inquiring first whether the plaintiff is "eligible" in that it substantially prevailed in the litigation, and second whether it is "entitled" to attorney fees by weighing equitable criteria including public benefit, commercial benefit to the plaintiff, nature of the plaintiff's interest in the documents sought, and the reasonableness of the government's asserted legal basis for withholding the documents. These determinations are reviewed on appeal on a "clearly erroneous" and "abuse of discretion" standard.

The court holds that the case must be remanded to the district court for resolution of internal contradictions in the district court's determination that the public interest group is "eligible" for attorneys fees. The district court had found that the lawsuit had unnecessarily been filed prematurely, but that release of the documents was nonetheless largely due to the bringing of the lawsuit. Moreover, the district court on remand must evaluate both the volume and quality of the documents released to determine if the public interest group has substantially prevailed, and should explain the effect of the fact that the original submitter of the documents, a private party, ultimately released the documents itself. The district court should also provide a more detailed explanation of its finding that the public interest group is "entitled" to attorney fees, specifically explaining the public interest that was served by the litigation.

Counsel for Appellants
Nathan Dodell, Ass't U.S. Attorney
Room 2800, U.S. Courthouse, 3d & Constitution Ave., NW, Washington DC 20001
(202) 633-5107

E. Leo Slaggie, Deputy Solicitor
U.S. Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20555
(202) 492-7000

Counsel for Appellee
Diane Curran, Andrea C. Ferster, Ellyn R. Weiss
Harmon & Wilmot
3rd Fl., 1029 Vermont Ave. NW, Washington DC 20005
(202) 783-9100

Before WALD, Chief Judge, STARR, Circuit Judge, and McGOWAN, Senior Circuit Judge.