Clemente v. Federal Bureau of Investigation
166 F. Supp. 3d 11
D.D.C.2015Background
- Angela Clemente filed a FOIA suit against the FBI (and unnamed agencies) in 2008 seeking an unredacted FBI file on Gregory Scarpa, Sr.; the case has proceeded through multiple rounds of summary judgment and Vaughn index supplementation.
- The parties agreed to a representative sample (≈192 pages); the FBI reprocessed the sample and then reprocessed the entire set of 1,153 responsive documents, releasing additional material during the process.
- The court previously ruled on adequacy of the FBI’s search, ordered reprocessing, and directed multiple supplements to the Vaughn index; disputes persisted over a small set of documents and certain redactions.
- Plaintiff first moved for an interim attorney-fee award in 2013; the court denied without prejudice, stating it would reconsider if litigation became prolonged and hardship was shown.
- Plaintiff renewed the motion in 2015, alleging terminal illness, counsel’s serious health and financial hardship, and that the case was protracted due to government delay and defective Vaughn supplements.
- The court denied the renewed interim-fee motion, finding insufficient proof of financial hardship tied to this case, that delay was not primarily the government’s fault, and that the matter is near conclusion; it set deadlines for raising objections to the latest Vaughn index and for briefing any remaining issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an interim award of attorney fees is warranted under FOIA | Clemente: case is protracted; she and counsel face financial/medical hardship warranting interim relief | FBI: Plaintiff must show unusual protraction and concrete hardship; interim fees are disfavored | Denied — plaintiff failed to show hardship sufficiently tied to this case and delay not primarily government-caused |
| Whether delay in litigation is unreasonable and attributable to the government | Clemente: lengthy (7-year) litigation shows unreasonable government delay | FBI: many delays are attributable to plaintiff (multiple extension requests, periods of dormancy) | Court found plaintiff largely responsible for delays; not unreasonable government delay |
| Whether counsel demonstrated financial hardship sufficient for interim fees | Clemente: counsel alleges significant income loss and medical issues; contingent-fee practice causes hardship | FBI: counsel’s claimed losses are vague and undermined by recent $300,000 fee award in another FOIA case | Court found counsel’s hardship claim unpersuasive and inconsistent with recent fee award |
| Whether litigation remains far from conclusion so interim fees are necessary | Clemente: outstanding defects in Vaughn index will require substantial further litigation | FBI: parties have narrowed disputes after multiple rounds; only limited issues remain | Court concluded case is near conclusion; interim fee adjudication would be inefficient; fee issues to be resolved at end of litigation |
Key Cases Cited
- Clemente v. F.B.I., 741 F. Supp. 2d 64 (D.D.C. 2010) (prior merits and procedural rulings in this FOIA matter)
- Allen v. F.B.I., 716 F. Supp. 667 (D.D.C. 1989) (interim FOIA fee awards are disfavored and appropriate only in unusual cases of protracted litigation and financial hardship)
- Powell v. United States Dep’t of Justice, 569 F. Supp. 1192 (N.D. Cal. 1983) (factors for evaluating interim fee awards: hardship, government delay, time pending, and time remaining)