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Sunday, May 26, 2024 | Back issues
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Small Nonprofit not a One-Man Show, Entitled to Fees

(CN) - Unlike a pro se litigant, the attorney whose small nonprofit won access to CIA records is entitled to recover his fees, the D.C. Circuit ruled.

National Security Counselors, a nonprofit that investigates government activity related to national security, filed the suit under the Freedom of Information Act (FOIA) to access documents on the CIA's declassification program.

U.S. District Judge Rosemary Collyer eventually ruled against the agency, finding that it had improperly withheld documents on its "special procedure for the [mandatory declassification] review of information pertaining to intelligence activities ... or intelligence sources or methods' developed by the Director of Central Intelligence."

National Security Counselors thus succeeded in the lawsuit, but Collyer denied its request for attorney's fees in 2014. She concluded that that National Security Counselors is just one man, Kelly McClanahan, its CEO and attorney.

FOIA does not permit individual pro se petitioners to recover attorneys' fees.

"The court agrees that the record does not support Mr. McClanahan's asserted attorney-client relationship with National Security Counselors," Collyer wrote. "Of course, a lawyer can submit FOIA requests and litigate their denial, but he cannot claim fees without a true, independent client. There is no such client here."

Reversing that decision Friday, the D.C. Circuit noted that National Security Counselors is not, as Collyer found, a one-man show.

Though McClanahan plays a large role at the nonprofit, he is part of a trio who co-founded it and has a "distinct legal status" from the group, the court found. Collyer "effectively disregarded the corporate form without a legal or factual basis for doing so," the ruling states.

"A bona fide corporation with a legally recognized, distinct identity from the natural person who acts as its lawyer is eligible for attorney's fees under FOIA provided it substantially prevails," Judge Nina Pillard wrote for the three-judge panel. "Even a small corporation like NSC is generally eligible for fees under FOIA. The existence of an entity, formally separate from the natural person acting as its lawyer, makes the difference."

Pillard said this conclusion was "crystal clear" based on its precedent in Baker & Hostetler LLP v. U.S. Dep't of Commerce, which states that the "exception [for FOIA fee eligibility] of individual plaintiffs who represent themselves does not apply to organizations."

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