UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NATL ASSN CR DEF LAW

v.

DOJ


98-5437a

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: The Department of Justice ap- peals the
district court's interim award of attorney's fees to  the plaintiff
National Association of Criminal Defense Law- yers in this case filed
under the Freedom of Information Act,  5 U.S.C. s 552. In the
alternative, the Department petitions  this court to issue a writ of
mandamus reversing the award.  We dismiss the appeal because we lack
jurisdiction to review  the interim award until the district court
enters a final  judgment; we deny the petition because the
circumstances do  not warrant relief by way of mandamus.


I. Background


In 1995 the Department of Justice's Office of Inspector  General opened
an investigation into allegations of wrongdo- ing at the crime
laboratory of the Federal Bureau of Investi- gation. In late January
1997 newspapers reported that the  OIG had completed its
investigation. See, e.g., FBI Warns of  Possible Flaws in Lab
Evidence, L.A. Times, Jan. 31, 1997, at  A1; Report Finds F.B.I. Lab
Slipping from Pinnacle of  Crime Fighting, N.Y. Times, Jan. 29, 1997,
at A1. In Febru- ary the NACDL, invoking the FOIA, asked the
Department  for "access to or a copy of any and all drafts" of the OIG
 report on the crime lab. At that time the only document  responsive
to the NACDL's request was a working draft of  the OIG report.


When the NACDL had not received a response within ten  business days,
it filed suit in the district court. See 5 U.S.C.  s 552(a)(6)(A)(i),
(a)(6)(C) (1997). The NACDL also moved  for a preliminary injunction
to expedite release of the OIG  report on the ground that the one-year
limitation period for 


filing petitions for habeas corpus, enacted as part of the 
Antiterrorism and Effective Death Penalty Act of 1996, Pub.  L. No.
104-132, ss 101, 105, 110 Stat. 1214, 1220, was set to  expire on
April 24, 1997; it feared "that criminal defendants  whose convictions
might have turned on tainted FBI evidence  would be precluded from
collaterally attacking those convic- tions." Shortly after the NACDL
filed this suit, it learned  that the Department had rejected its
request, invoking the  exemption for "records or information compiled
for law en- forcement purposes ... to the extent that the production
of  such law enforcement records or information (A) could rea- sonably
be expected to interfere with enforcement proceed- ings," 5 U.S.C. s


At a March 7 status hearing the NACDL informed the  district court that
it also sought disclosure of the final OIG  report, when complete. The
Department reiterated its oppo- sition to releasing the draft report
and refused to commit to  releasing the final report to anyone other
than the Attorney  General and the Congress. One week later, however,
the  Department modified its position, advising the court it would 
release the final report to the public at roughly the same time  that
it released the report to the Attorney General and to the  Congress.
Upon the statute of limitations issue the Depart- ment took the
position that prisoners "will have one year  from [the] date [of
public release] to file habeas petitions for  relief." Based "in large
part" upon these representations, the  district court denied the
NACDL's motion for a preliminary  injunction. On April 15, 1997 the
Department publicly re- leased the OIG's final report on the FBI crime


Shortly thereafter the NACDL filed additional FOIA re- quests with the
OIG and with the Deputy Attorney General,  seeking "access to or
copies of any and all records relating to"  the OIG's investigation
into the FBI crime lab. When nei- ther recipient had responded
conclusively within ten business  days, the NACDL amended its
complaint to include those two  requests. See 5 U.S.C. s
552(a)(6)(A)(i) (1997) (response  must state whether agency will


While litigation continued over the exemption from disclo- sure claimed
by the Department for the draft report and  portions of the OIG's
working papers, the NACDL moved the  court for an interim award of
attorney's fees. In June 1998  the district court awarded the NACDL a
bit more than  $118,000 in fees. Although it recognized that this
court had  yet to rule upon the propriety of an interim award in a
FOIA  case, the district court concluded that the power to make such 
an award "lies in the sound discretion of the court."


Finding that the protracted litigation had imposed a finan- cial
hardship upon counsel for NACDL, the court held that an  interim award
of attorney's fees would be warranted if the  NACDL could satisfy the
criteria used to determine whether  to award fees at the end of a FOIA
case: "First, ... whether  the party requesting fees is eligible for
them. ... Second,  ... whether [that] party is entitled to fees."
Chesapeake Bay  Found., Inc. v. Department of Agriculture, 11 F.3d
211, 216  (D.C. Cir. 1993). As to eligibility, the district court
found  that although the case was not over the NACDL had substan-
tially prevailed upon two issues: its suit was a significant  cause of
the public release of the final report, and "it was only  the urging
of Plaintiffs and the Court that led the Govern- ment to expedite its
processing" of the OIG's working pa- pers.* As to entitlement, the
court considered the factors set  out in Chesapeake Bay--"(1) the
public benefit derived from  the case; (2) the commercial benefit to
the plaintiff; (3) the  nature of the plaintiff's interest in the
records; and (4)  whether the Government had a reasonable basis for
withhold- ing requested information"--and concluded that the NACDL 
was entitled to an interim award of attorney's fees. 11 F.3d  at


The Department then moved to require the NACDL to  post a bond
sufficient to cover the amount of the award. The 




__________

n * Initially the Department informed the NACDL and the district  court
that it could take up to four and one-half years to produce the 
working papers. In the event, however, the Government produced  nearly
all the documents that it deemed non-exempt within seven  months.


district court denied the motion, reasoning that a bond re- quirement
would "make ... nonsense of the concept of an  interim award," and
ordered the Department to pay the fees  "without further delay."


The Department filed a notice of appeal and moved the  district court
for a stay of its order pending appeal. After  the district court
denied the stay the Department filed a  similar motion in this court.
See Fed. R. App. P. 8. Based  upon the NACDL's agreement not to seek
enforcement of the  district court's order prior to our disposition of
the Depart- ment's motion for a stay, we deferred consideration of
that  motion pending resolution of the case. We now dismiss the 
motion as moot.


II. Analysis


On appeal the Department objects only to the district  court's
discretionary decision to award interim attorney's  fees; it
challenges neither the court's legal authority to make  such an award
under the FOIA nor its refusal to require the  NACDL to post a bond.
The NACDL contends that this  court lacks jurisdiction to review an
interim award of fees  because it is not a final judgment and does not
fall within any  exception to the final judgment rule. The Department
ac- knowledges that the interim award is not a final judgment,  but
argues that we have jurisdiction to review the award  under the
collateral order doctrine of Cohen v. Beneficial  Industrial Loan
Corp., 337 U.S. 541, 546-47 (1949). Alterna- tively, the Department
argues that we should review the  district court's decision by way of
a writ of mandamus in the  exercise of our "supervisory" power over
the district court.  See In re United States, 872 F.2d 472, 479 (D.C.
Cir. 1989);  see also 16 Charles Alan Wright et al., Federal Practice
and  Procedure s 3934.1 (2d ed. 1996).


A. Collateral Order Doctrine


Under the final judgment rule of 28 U.S.C. s 1291, this  court has
jurisdiction only "of appeals from ... final decisions  of the
district courts of the United States." See also Linder  v. Department
of Defense, 133 F.3d 17, 23 (D.C. Cir. 1998) 


(rule "avoids the mischief of economic waste and of delayed  justice
that can accompany piecemeal litigation"). The Su- preme Court,
however, in Cohen recognized "a narrow class  of collateral orders
which do not meet th[e] definition of  finality, but which are
nevertheless immediately appealable  under s 1291." Quackenbush v.
Allstate Ins. Co., 517 U.S.  706, 712 (1996). To be appealable under
the collateral order  doctrine, an "order must [1] conclusively
determine [a] disput- ed question, [2] resolve an important issue
completely sepa- rate from the merits of the action, and [3] be
effectively  unreviewable on appeal from a final judgment." Coopers & 
Lybrand v. Livesay, 437 U.S. 463, 468 (1978). An appellant  can
satisfy the third requirement by showing that it will  suffer
irreparable harm if denied interlocutory review. Fire- stone Tire &


We have addressed the application of the collateral order  doctrine to
an interim award of attorney's fees only once  before. In Trout v.
Garrett, 891 F.2d 332 (1989), a Title VII  case, we held that such an
award was not appealable because  it did "not even dispositively
determine fees due up to this  stage of the litigation" and because
"the government ... [had  not] demonstrat[ed] a real prospect of
irreparable harm." Id.  at 335. Although the NACDL reads Trout as
"clear, binding  authority forbidding interlocutory appeals of interim
fee  awards," we do not. In Trout, we held only that upon the  facts
of that case the Government had satisfied neither the  first nor the
third requirement of Cohen. Indeed, the impli- cation of Trout is that
an interim award of attorney's fees  that does satisfy all three of
the Cohen criteria is immediately  appealable. At least six circuits
have so held. See Law v.  NCAA, 134 F.3d 1025, 1027 (10th Cir. 1998);
Rosenfeld v.  United States, 859 F.2d 717, 721 (9th Cir. 1988); Dardar
v.  Lafourche Realty Co., 849 F.2d 955, 957 & n.8 (5th Cir. 1988); 
Webster v. Sowders, 846 F.2d 1032, 1035 (6th Cir. 1988);  Palmer v.
City of Chicago, 806 F.2d 1316, 1318-20 (7th Cir.  1986); Haitian
Refugee Ctr. v. Meese, 791 F.2d 1489, 1493  (11th Cir. 1986).


As in Trout the present parties dispute whether the De- partment has
satisfied the first and third of the Cohen tests. 


With respect to the first, we agree with the Department that  the
district court's order "conclusively determine[s] the dis- puted
question." Coopers & Lybrand, 437 U.S. at 468. In  Trout the district
court had awarded only "the minimum  irreducible amount[ ]" to which
the plaintiffs were entitled for  the issues upon which they had
prevailed, leaving open the  possibility of further awards for work
that had already been  done on those issues. 891 F.2d at 333 n.2.
Here, in contrast,  the award is, as the Department correctly states,
"the last  word on fees for purposes of the release of the Inspector 
General's Final Report and for any expedition achieved in the  release
of related documents." The NACDL does not dis- agree with respect to
the draft and final versions of the OIG  report, but points out that
it is continuing in the district court  to oppose the Department's
claims that some of the OIG's  working papers are exempt from
disclosure under the FOIA.  Even if the NACDL substantially prevails
upon the latter  issue, however, any future award of attorney's fees
would not  be for the work that caused the Department to expedite 
processing of the OIG's papers. Accordingly, we hold that  the
district court's order meets the first criterion of Cohen.


Turning to the third criterion, however, we do not believe  the
Department has demonstrated a "real prospect of irrepa- rable harm."
Trout, 891 F.2d at 335. The Department has  made no showing that the
NACDL will likely be unable to  repay the fees if the award is later
reduced or overturned.  See Rosenfeld, 859 F.2d at 721-22 (party
appealing interim  award of attorney's fees bears burden of showing
irreparable  harm). The Department does point out that the NACDL, in 
arguing for an interim award of attorneys fees, stated before  the
district court not only that its counsel was experiencing  financial
hardship but also that it had "limited resources."  Before this court,
however, the NACDL has in no uncertain  terms represented that it is
able, and acknowledged that it  would be obligated, "to repay the fees
if they are ultimately  reversed on appeal after final judgment." The
Department  contends that the two NACDL statements are contradictory. 
While we agree that a party may not "blow hot and cold and  take now a
position contrary to that taken in the proceedings 


it invoked to obtain [relief]," Callanan Road Improvement  Co. v.
United States, 345 U.S. 507, 513 (1953), we see no such  inconsistency
in the NACDL's position viewed overall.


In the district court the NACDL opposed the Department's  motion to
require it to post a bond as follows:


NACDL believes that the likelihood of the government  overturning the
interim fee award on appeal is extremely  remote, but whatever the
outcome NACDL plans to be in  existence for the indefinite future.
Thus the purported  harm claimed by the government--not having a party
 from which to seek reimbursement in the unlikely event  it is
needed--does not exist. The government's argu- ment fails because it
states that NACDL can collateralize  a bond for more than the amount
of the award but that  NACDL is not substantial enough to seek
reimburse- ment [from] in the very remote event of appeal. Pl.'s 
Suppl. Opp. to Def.'s Mot. to Amend Ct.'s Order (R.89),  at 2.


While the Department characterizes this submission as "eva- sive[ ]"
and designed to confirm the implication "that [the  NACDL's] resources
were insufficient to afford counsel," we  understand it merely to
point out an inconsistency in the  Department's own argument.


Moreover, we agree with the NACDL that the financial  hardship that may
warrant an interim award of attorney's  fees is not the same as the
irreparable harm needed to justify  interlocutory review. For an
interim award of attorney's fees  it is enough that the fee is high
relative to the party's or its  counsel's ability to continue
financing the litigation. See  Allen v. FBI, 716 F. Supp. 667, 670
(D.D.C. 1989). On the  other hand, the irreparable harm necessary to
bring a case  within the "tight 'collateral order doctrine' of Cohen,"
Trout,  891 F.2d at 335, must entail some prospect that the party is 
or will become judgment proof. See Campanioni v. Barr, 962  F.2d 461,
463 (5th Cir. 1992). The NACDL's submissions to  the district court
are evidence only that paying its counsel  would cause it financial
hardship; they do not raise the 


prospect that, if called upon to do so, the NACDL would be  unable to
repay the Department.


In sum, because the interim award of attorney's fees is  neither a
final judgment under s 1291 nor a collateral order  under Cohen, we do
not have jurisdiction to review it.


B. Mandamus


As we have often noted, the writ of mandamus is "an  extraordinary
remedy, to be reserved for extraordinary situa- tions." In re Sealed
Case, 151 F.3d 1059, 1063 (1998); accord  In re Papandreou, 139 F.3d
247, 250 (1998) ("Lax rules on  mandamus would undercut [the final
judgment rule] ... and  would lead to piecemeal appellate
litigation"). Accordingly,  we are not quick to issue a writ of
mandamus in the exercise  of our supervisory power over the district
court. See In re  Bituminous Coal Operators' Ass'n, Inc., 949 F.2d
1165, 1167  (1991) ("While recognizing that this litigation qualifies
as  'really extraordinary,' we open no door for 'indiscriminate use' 
of the remedy to avoid the strictures of the final judgment  rule");
United States v. Hubbard, 650 F.2d 293, 309 n.62  (1980) ("Although
the Supreme Court ... and this court ...  have expressed a willingness
to employ the writ ... in a  supervisory capacity to remedy certain
classes of error not  traditionally thought remediable by mandamus,
this willing- ness cannot be read expansively").


We have yet systematically to set forth criteria by which to  determine
whether a "supervisory" writ of mandamus shall  issue. See, e.g.,
Bituminous Coal, 949 F.2d at 1167-68; In re  United States, 872 F.2d
at 477-79; Potomac Elec. Power Co.  v. ICC, 702 F.2d 1026, 1034-35
(D.C. Cir. 1983). Four of our  sister circuits, however, have adopted
guidelines that we find  instructive and apply today. See Bauman v.
United States  Dist. Ct., 557 F.2d 650 (9th Cir. 1977); see also
United States  v. Amlani, 169 F.3d 1189, 1193-94 (9th Cir. 1999)
(following  Bauman); In re Perrigo Co., 128 F.3d 430, 435 (6th Cir. 
1997) (same); United States v. McVeigh, 119 F.3d 806, 810  (10th Cir.
1997) (same); In re Kansas City Star Co., 73 F.3d  191, 194 (8th Cir.
1996) (same). They consider:


(1) whether the party seeking the writ has any other  adequate means,
such as a direct appeal, to attain the  desired relief;


(2) whether that party will be harmed in a way not  correctable on
appeal;


(3) whether the district court clearly erred or abused its 
discretion;


(4) whether the district court's order is an oft-repeated  error; and


(5) whether the district court's order raises important  and novel
problems or issues of law.


See, e.g., Bauman, 557 F.2d at 654-55. Following these  guidelines, we
see that a supervisory writ of mandamus is  unwarranted in this


We have already concluded, first, that the Department can  seek review
of the interim award of attorney's fees following  entry of a final
judgment in this case and, second, that it will  not suffer
irreparable injury in the meantime. We will  assume the third
consideration, clear error, for the sake of  the present argument. As
to the fifth and fourth consider- ations, respectively, the Department
argues that, though the  district court's erroneous rationale for the
award of fees is  novel, it could between now and our resolution of
the appeal  from the final judgment in this case become "a
'persistent'  error ... and thus threaten the proper administration of
 justice in this Circuit." Specifically, the Department claims  that
the district court, by determining that the NACDL  substantially
prevailed even though the Department released  the final report to the
public the day it was completed and  was under no obligation to
expedite the release of the OIG's  working papers, ignored our
teaching in Chesapeake Bay: if  "the Government's position is legally
correct.... no fees are  recoverable," regardless whether "information
was disclosed  after initial resistance." 11 F.3d at 216.


We do not share the Department's concern that the deci- sion of the
district court will "invite[ ] abuse of the FOIA"  with respect to
interim awards of fees. As noted, the Depart-


ment's claims of error are rooted in the particulars of this  case; it
does not challenge wholesale the district court's  authority to issue
an interim award of fees. Apart from the  question of legal authority,
the district court rendered only a  fact-specific discretionary
decision based upon credibility de- terminations and the narrow legal
arguments the parties  placed before it. The Department's claim that
the district  court set a precedent with portents well beyond the
facts and  arguments in this litigation lies somewhere between
exagger- ation and speculation.


At most, then, only the Department's argument that the  district
court's decision is clearly erroneous may survive  scrutiny, and upon
that issue we express no opinion. In no  event, however, could clear
error alone support the issuance  of a writ of mandamus in this case
because, as we have seen,  any error--even a clear one--could be
corrected on appeal  without irreparable harm either to the Department
or to the  administration of the FOIA in this circuit. In these
circum- stances the court will not issue a writ of mandamus.


III. Conclusion


For the reasons stated above, the appeal is dismissed for  lack of
jurisdiction and the petition for mandamus is denied.


So ordered.