Paul L. Caron
Dean




Tuesday, March 16, 2021

D.C. Circuit: Law Prof May Be Entitled To Attorney's Fees Due To Her 'Serious Scholarly Interest' After Beating IRS In FOIA Litigation

Kwoka v. IRS, No. 19-5310 (D.C. Cir. Mar. 9, 2021):

Denver Logo (2015)This case presents a recurring question in our court: under what circumstances is a prevailing plaintiff in a Freedom of Information Act (FOIA) case—here a law professor [Margaret Kwoka (Denver)] seeking information from the Internal Revenue Service—entitled to an award of attorney’s fees? The district court denied the professor’s request for fees. For the reasons set forth below, we vacate and remand for further proceedings consistent with this opinion. ...

In evaluating a fee petition, the district court assesses whether the plaintiff “substantially prevailed” within the meaning of the statute. 5 U.S.C. § 552(a)(4)(E)(i). Here, the district court found Kwoka had done so, a conclusion the IRS does not contest. But that is not enough. Because the statute provides that an eligible party “may” receive fees, the district court must also decide whether the plaintiff is “entitled” to a fee award.

In Davy v. CIA, we explained how factors two and three apply to scholars and journalists. “Congress did not intend for scholars (or journalists and public interest groups) to forgo compensation when acting within the scope of their professional roles.” Individuals like scholars and journalists who “gather[] information of potential interest to a segment of the public, use[] [their] editorial skills to turn the raw materials into a distinct work, and distribute[] that work to an audience” are “among those whom Congress intended to be favorably treated under FOIA’s fee provision.” ...

Kwoka undoubtedly has a serious, scholarly interest in how federal agencies administer FOIA. She has published articles about FOIA in the Yale and Duke Law Journals, see Margaret B. Kwoka, First-Person FOIA, 127 Yale L.J. 2204 (2018); Margaret B. Kwoka, FOIA, Inc., 65 Duke L.J. 1361 (2016), and her work has been cited by multiple circuit courts. ... And especially relevant here, she says that she will soon publish a book with Cambridge University Press featuring her analysis of the very information she obtained in this case. ...

To begin with, the IRS failed to give any logical explanation as to how someone could reliably infer taxpayer identities from the vast majority of the information Kwoka sought. As the district court pointed out, even many of the hypotheticals posed by the IRS made no sense on their own terms. ...

This, however, does not end the matter, as the district court never addressed the IRS’s other argument—that at the time of Kwoka’s initial request, it reasonably believed that segregating the exempt and non-exempt materials would impose an unreasonable burden. ...

The district court, however, never answered the question critical to Kwoka’s fee request. Even though it found at the summary judgment stage that processing the records for redactions imposed no unreasonable burden, the question at the fee stage is whether the IRS “had a reasonable basis in law” when it “initially” concluded otherwise. Accordingly, because our role is to “review the district court’s attorney’s fees determination only for abuse of discretion,” we shall follow our court’s consistent practice and remand to the district court to evaluate the reasonableness of the IRS’s burden argument in the first instance and then to re-balance the four factors in view of our conclusion that factors two and three weigh in Kwoka’s favor.

See Michael Frisch (Georgetown), Law Professor Had "Serious Scholarly Interest" In IRS FOIA Litigation

https://taxprof.typepad.com/taxprof_blog/2021/03/dc-circuit-law-prof-may-be-entitled-to-attorneys-fees-due-to-her-serious-scholarly-interest-after-be.html

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