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May 24, 2002


The opinion of the court was delivered by: Marrero, District Judge.


Plaintiff Union of Needletrades, Indus trial and Textile Employees, AFL-CIO CLC ("UNITE") brought this action pursuant to the Freedom of Information Act 5 U.S.C. § 552 ("FOIA") seeking an order directing defendant United States Immigration and Naturalization Service (the "INS") to comply with UNITE's FOIA request for disclosure of certain documents. Several months after UNITE's commencement of this action, the INS released most of the documents at issue. The parties thereafter resolved between them the disclosure of additional material and the Court conditionally discontinued the case. UNITE thereafter sought to reopen the matter to address its request for attorney's fees, which the INS refused to settle. UNITE argues that, under FOIA, it is entitled to collect such fees from the INS under the circumstances present in this case. For the reasons discussed below, the Court denies UNITE's request.


UNITE asserts that this litigation and the FOIA request upon which it is based are part of UNITE's response to the INS's policy of conducting workplace raids in search of illegal immigrants. According to UNITE, its union members and other immigrant workers have reported abuses against suspected aliens, and other forms of unlawful practices by INS officers during such raids. To protect its members' rights, defend those arrested and ensure the INS's compliance with laws and procedures governing such practices, UNITE sought information from the INS following workplace raids. UNITE contends that the INS relies on explicit ethnic and racial considerations in selecting sites. On occasions when the INS has not voluntarily released requested documents, UNITE has demanded them pursuant to FOIA.

The raid that gave rise to the case at hand occurred at Poly Pak Industries Inc. ("Poly Pak"), a UNITE garment factory, on November 16, 1998. By letter dated May 5, 1999, UNITE requested that the INS release all documents in its possession relating to the Poly Pak raid. On August 18, 1999, the INS denied the request. It contended that rejection was justified pursuant to 5 U.S.C. § 552(b)(7)(A) on the ground that the INS was then conducting an investigation of Poly Pak preliminary to enforcement proceedings. This decision, on UNITE's appeal, was affirmed on September 16, 1999 by the Office of Information and Privacy of the United States Department of Justice. UNITE commenced action in this Court on March 30, 2000 seeking an order to compel the INS to comply with UNITE's FOIA request. On August 31, 2002, coinciding with what the INS asserts was the conclusion of its enforcement action against Poly Pak, the INS responded to UNITE by releasing a substantial number of documents in full — over thirteen hundred pages by UNITE's account — but redacting some and withholding others, in this connection asserting exemptions pursuant to 5 U.S.C. § 552(b)(5), 552(b)(7)(c) and 552(b)(7)(E).

The INS answered UNITE's complaint on September 11, 2000. For several months thereafter the parties negotiated the sufficiency of the INS's responses. These discussions prompted the INS to release five additional pages of documents on April 17, 2001. At that point, the parties informed the Court that the substantive issues in dispute had been resolved and that only the matter of attorney's fees remained unsettled and under continuing discussions. Accordingly, the Court directed that the case be conditionally discontinued, subject to its being reopened upon UNITE's application in the event settlement was not effectuated within sixty days.

At a conference with the Court held on June 29, 2001 the parties reported having reached an impasse concerning the counsel fees issue. The INS then argued that, as a matter of law, UNITE was not entitled to recover attorney's fees from the INS by reason of the recent Supreme Court decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). The Court requested supplemental briefs from both parties addressing the applicability of Buckhannon to the circumstances at hand. In its responsive papers, UNITE argues that Buckhannon is inapposite. The INS counters that Buckhannon does apply, and that regardless, UNITE cannot recover fees because it cannot establish the requisite causal relationship between the commencement of its lawsuit and the INS's production of documents. The INS also claims that its initial rejection of UNITE's request was legally permissible under FOIA's exemptions.


Interpreting a statute, ordinarily a rigorous challenge in itself, is uniquely delicate when the task requires the court to march to the beats of different drummers. For a federal district court, the first note to be heard is that of Congress, which conceives and enacts the law. Ordinarily, Congress' meaning and purpose, as conveyed by the plain words of the statute on its face, should be controlling. Not always, however, is legislation written in living colors; so at times its intent must be gleaned from the meaning of words drawn in chiaroscuros.

Beyond congressional expressions are the relevant interpretations of the Supreme Court. Its mandate may take various forms — as decisions precisely on point, as analogous holdings, as germane dictum where all else fails, or as combinations of these sources. Next in order is the governing doctrine of the Circuit Court. Adherence to an appellate court ruling may pose especially sensitive issues in cases where a pertinent opinion of the Supreme Court, even if expressed as arguable dictum, may throw the Particular Court of Appeals statutory interpretation into question.

Underlying these higher legislative and judicial pronouncements, whether present or absent, the court always owes a measure of independent fealty to its own reading of the plain meaning of words used in the statutes, as well as to the inexorable logic that other sources — history, precedent, semantics, logic, reason — together compel as the intended course of the law. This case presents the interplay of these intricacies, which the Court confronts below.



A starting point for consideration of a litigant's claim of entitlement to recover attorney's fees is the "American Rule." As articulated by the Supreme Court, the rule holds that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorney's fee from the loser." Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); see also Ruckelshaus v. Sierra Club, 463 U.S. 680, 683-84, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983); Buckhannon, 532 U.S. at 602, 121 S.Ct. 1835. In applying this doctrine, the Supreme Court has followed "a general practice of not awarding fees to a prevailing party absent explicit statutory authority." Buckhannon, 532 U.S. at 602, 121 S.Ct. 1835 (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 819, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994)).

As exceptions to the American Rule, Congress has enacted over 150 statutes containing "fee-shifting" provisions that authorize courts to award attorney's fees to one of the litigants. See Ruckelshaus, 463 U.S. at 684, 103 S.Ct. 3274. But the wording of these provisions is not uniform. Rather, in conferring such authority, Congress has employed several formulations according to varying circumstances and with differing scopes of judicial latitude. See Alyeska Pipeline, 421 U.S. at 262, 95 S.Ct. 1612.

In some statutes the award of counsel fees is mandatory if the plaintiff "finally prevails." See, e.g., 7 U.S.C. § 18(f) (the Commodity Exchange Act) ("If the petitioner finally prevails, he shall be allowed a reasonable attorney's fee. . . ."); 7 U.S.C. § 210(f) (Packers and Stockyards Act); 7 U.S.C. § 499(g)(b) (Perishable Agricultural Commodities Act).

Under the statutes at issue in Buckhannon — the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12101 et seq., and the Fair Housing Amendment of 1988 (the "FHAA"), 42 U.S.C. § 3601 et seq. — as well under several other laws on which similar provisions were modeled,*fn1 the phrase Congress employs in the feeshifting provision is "prevailing party." Consequently, the courts' authority is discretionary. See, e.g., 42 U.S.C. § 3613(c)(2) (the "FHAA") ("[T]he court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee and costs"); 42 U.S.C. § 12205 (the "ADA") ("[T]he court . . ., in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs").*fn2

In other statutes, such as FOIA, the feeshifting exception is limited to parties who "substantially prevailed." See FOIA, 5 U.S.C. § 552(a)(4)(E) ("The court may 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."); see also 5 U.S.C. § 552a(g)(2)(B) (Privacy Act); 5 U.S.C. § 552b(i) (the "Government in the Sunshine Act"); 15 U.S.C. § 16 (Clayton Act)*fn3; 16 U.S.C. § 470w-4 (National Historic Preservation Act); 42 U.S.C. § 11113 (Health Care Quality Improvement Act); 42 U.S.C. § 300aa-31(c) (National Vaccine Injury Compensation Program).

Another formulation requires a litigant to be "successful" in order to be eligible for an award of attorney's fees. See, e.g., 12 U.S.C. § 2607(d)(2) (Real Estate Settlement Procedures Act) ("In any successful action to enforce the liability under this paragraph, the court may award the court costs of the action together with a reasonable attorney's fee as determined by the court"); 12 U.S.C. § 3417(a)(4) (Right to Financial Privacy Act); 15 U.S.C. § 298(c)(Jewelers' Hall-Mark Act); 15 U.S.C. § 1681-1681t (Fair Credit Reporting Act).

In broader terms, the standard fixed in another group of fee-shifting provisions authorizes counsel fees without reference to parties or success "whenever [the court] determines that such an award is appropriate." See, e.g., 42 U.S.C. § 7607(f) (Clean Air Act); Ruckelshaus, 463 U.S. at 682-83 n. 1, 103 S.Ct. 3274 (noting that sixteen other federal statutes contain provisions for award of attorney's fees identical to § 307(f) of the Clean Air Act).

Finally, in contrast with the relatively undefined guidance offered by the preceding provisions, Congress in other contexts has narrowed the courts' latitude to award attorney's fees by detailed prescriptions that condition recovery of fees to the degree of relief the claimant obtained in the underlying litigation. See, e.g., 42 U.S.C. § 1997e(d)(B)(i) (Prison Litigation Reform Act of 1995) (directing that attorney's fees awarded to prisoners pursuant to 42 U.S.C. § 1988 be "proportionately related to the court ordered relief for the violation.").


The multiplicity and variety of these fee-shifting provisions raise basic questions concerning Congressional intent, as well as tensions among principles and approaches governing statutory construction. In applying these various terms, the Supreme Court has instructed that "similar attorney's fee provisions should be interpreted pari passu. . . ." See Ruckelshaus, 463 U.S. at 691, 103 S.Ct. 3274 (citing Northcross v. Memphis Bd. of Ed., 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973)); see also Buckhannon, 532 U.S. at 603 n. 4, 121 S.Ct. 1835 ("We have interpreted these fee-shifting provisions consistently . . . and so approach the nearly identical provisions at issue here.") (citing Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ("[t]he standards set forth . . . are generally applicable in all cases in which Congress has authorized an award of fees to a `prevailing party.'")).

If identical or similar provisions are to be applied consistently, a question arises as to whether by employing varying terms Congress contemplated that each formulation would be governed by its own separate standard, or whether instead some overarching statutory purpose and common elements impliedly compel a uniform rule in some aspects of application despite textual variations in the statutes. This question introduces the interplay of several canons of statutory interpretation. First, absent unambiguous contrary expression, legislative provisions must be accorded the clear meaning of the ordinary language terms they employ. See Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (noting that in construing statutes, the Supreme Court assumes that Congress "intends the words in its enactments to carry `their ordinary, contemporary, common meaning.'") (quoting Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)).

Secondly, when, by virtue of broad acceptance through custom and longstanding practice, words become legal terms of art, thus acquiring particular meaning in legal usage, they must be read in accordance with their legal connotation. See Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952) ("[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them."); see also Buckhannon, 532 U.S. at 615-16, 121 S.Ct. 1835 (Scalia, J., concurring).

A third cardinal doctrine of statutory interpretation here at play is the presumption that in all enactments every choice of words is purposeful, manifesting legislative intent to convey particular meaning, and that statutory use of different terms evinces intent to express different meanings. See Legacy Emanuel Hosp. & Health Ctr. v. Shalala, 97 F.3d 1261, 1265 (9th Cir. 1996) ("[T]he use of different language by Congress creates a presumption that it intended the terms to have different meanings.") (citing Washington Hosp. Ctr. v. Bowen, 795 F.2d 139, 146 (D.C.Cir. 1986)); 2A Norman Singer, Statutes and Statutory Construction § 46.06 (6th ed. 2000) (noting that legislative "use of different terms within related statutes generally implies that different meanings were intended.") Courts therefore are obliged to give effect to every clause and word of a statute, see United States v. Menasche, 348 ...

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