Blog — Elections

February 12, 2014

Magistrate Judge Sides with CREW, Recommends FEC Reimburse Legal Fees

By Anne Weismann

Federal Election CommissionToday CREW received a resounding victory in its long-running litigation against the Federal Election Commission (FEC), when U.S. Magistrate Judge John Facciola recommended that CREW’s fee petition be granted and the FEC be ordered to pay CREW nearly $140,000.  This case concerns a FOIA request CREW filed with the FEC nearly three years ago for correspondence between the three Republican commissioners then in office and outsider parties, seeking to learn the extent to which those commissioners were influenced by outside forces. 

The district court dismissed CREW’s lawsuit, agreeing with the FEC that CREW had failed to exhaust administrative remedies and filed suit prematurely.  The D.C. Circuit reversed that decision and in a major, precedent-setting opinion, interpreted a procedural requirement of the FOIA to mean agencies must advise requesters within 20 business days of which documents they are releasing, which they are withholding, and why.  The FEC’s failure to do that here meant CREW could properly sue the agency to compel disclosure. 

Following this victory, the parties reached a settlement under which the FEC performed an additional search and provided CREW additional documents.  CREW then filed a fee petition, seeking reimbursement for its costs and attorneys’ fees of nearly $140,000.

In opposing CREW’s fee petition, the FEC argued CREW had not substantially prevailed in this litigation and its request was not reasonable.  Judge Facciola rejected all of the FEC’s arguments, pointing out because of this litigation, including the appeal, CREW had received documents it otherwise would not have obtained from the FEC.  Noting that the D.C. Circuit had “rejected in its entirety the FEC’s argument on appeal and accepted all of CREW’s arguments without dissent,” Judge Facciola stated, “If fees are not available in this situation, where a party is compelled to press an appeal to get what the FEC claims it would have given in the first place, the fee provision of FOIA is rendered nugatory in a case where it is needed most.”  

The FEC now has an opportunity to file objections before District Court Judge Kollar-Kotelly determines whether to adopt the report and recommendation.

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