[Also available on LinkedIn.]
To win attorneys fees from the government in a Mandamus/APA case or any case that supports fee shifting through the Equal Opportunity to Justice Act (EAJA) is a tall order. To win fees under EAJA, you need to show you are the prevailing party in the litigation by obtaining a judicially sanctioned “alteration in the legal relationship of the parties.”
On the other hand, FOIA allows for fee shifting to plaintiffs under the much more permissive “catalyst theory.” Thanks to the 2007 amendments to the statute, a plaintiff under FOIA can get attorneys fees if they prevailed through either
1) a judicial order, or an enforceable written agreement or consent decree; or
2) a voluntary or unilateral change in the position by the agency, if the plaintiff’s claim is not insubstantial.
In addition to making fees easier to obtain, another major benefit for a FOIA case is that the hourly rates awarded are generally higher than those granted under EAJA. In other words, FOIA cases are more likely to award fees, and in higher amounts than other EAJA dependent cases.
The takeaway . . . . More favorable overall treatment of attorney’s fees under FOIA improves access to the courthouse and affordability for immigration based litigants that include viable FOIA claims in their actions against the government.