CIRCUIT COURT OF THE CITY OF RICHMOND

George B. Little

v.

Virginia Retirement System, et al.

Case No. HB 1298-2

November 17, 1992

By Judge Robert L. Harris, Sr.

Following this Court's rulings, set forth in the Letter Opinion of August 5, 1992, the parties filed several motions. Respondent Jacqueline Epps filed a Motion to Reconsider, asking that the Court reverse its finding that she had willfully and knowingly violated the Virginia Freedom of Information Act ("VFOIA"). Petitioner George B. Little filed a motion to make the discovery depositions of Jacqueline Epps and Buford Scott part of the court record. Respondents opposed that motion and filed their own motion to seal the depositions from public view. Finally, the Petitioner submitted his Request for Attorneys' fees, a request which was opposed on various grounds by Respondents Virginia Retirement System ("VRS") and Systems Holding, Inc. ("SHI"). All motions were addressed at a hearing on October 14, 1992. For the reasons set forth below, the Court will deny Respondent Jacqueline Epps' Motion to Reconsider; will deny the Petitioner's Motion to Make the Depositions Part of the Court Record; will deny Respondents' Motion for a Protective Order; and will award the Petitioner attorneys' fees in the amount of $120,097.45 and costs of $13,073.10.

MOTION TO RECONSIDER

Respondent Jacqueline G. Epps has asked this Court to reconsider its finding, as discussed in the Court's letter opinion of August 5, 1992, that she had willfully and knowingly violated the VFOIA. The Court found willful and knowing violations both in her role as Chairperson of the VRS and in her role as a Director of SHI. Pursuant to Virginia Code section 2.1-346.1, the Court imposed a fine of $250.00 on Ms. Epps.

The crux of the Respondent's argument is that the evidence is insufficient to support the Court's finding that she willfully and knowingly violated the VFOIA. The Court recognizes that this would be much clearer were there stronger evidence that Ms. Epps had violated the VFOIA in full knowledge of, and without regard to, such violations. Indeed, the Respondent argues that her uncontradicted testimony that she was unaware of any violations is fatal to a charge that she willfully and knowingly violated the VFOIA.

Before addressing the substance of the Respondent's theory, it is necessary to address a procedural argument. The Respondent contends that the standard of proof in cases involving willful and knowing violations under ß2.1-346.1 should be "clear and convincing." In support of that contention, she cites several cases involving non-monetary penalties. However, such cases all involve proceedings in which the primary penalties involved are accurately described as "highly penal in nature." See Commonwealth v. Malbon, 195 Va. 368 , 379, 78 S.E.2d 683, 689 (1953) (Virginia Supreme Court requires "clear and convincing" evidence to support removal of a sheriff from office). Addington v. Texas, 441 U.S. 418 (1979), cited by the Respondent, required "clear and convincing" evidence to support involuntary commitment because a "significant deprivation of liberty" was involved. See id. at 425. Santosky v. Kramer, 455 U.S. 745 (1983) required "clear and convincing" evidence to support termination of parental rights. See id. at 769. Seventh District Comm'n v. Gunter, 212 Va. 278, 183 S.E.2d 713 (1971) required "clear proof" to support disbarment of an attorney. See id. at 284, 183 S.E.2d at 717.

In the instant case, the statutory penalty is a fine of no more than $1,000. See Va. Code Ann. section 2.1-346.1. The Respondent points not to that penalty, but to the tangential injury to reputation which she argues attaches to the Court's finding. This Court does not believe that the feared injuries to a public official's reputation are on a par with the explicit "highly penal" results of the cited cases. The statutory requirements of a finding of a willful and knowing violation, see Va. Code Ann. section 2.1-346.1, and the ruling of the Virginia Supreme Court requiring that such violations also be substantial, see Hale v. Washington County School Bd., 241 Va. 76, 81, 400 S.E.2d 175, 179 (1991), provide sufficient obstacles to a petitioner seeking to impose a penalty upon an individual member of a public body for a violation of the VFOIA. There is no reason to add to that burden by elevating the standard of proof to "clear and convincing."

The Respondent argues that her professed unawareness of violations of the VFOIA prohibits a valid finding by a court that any violations of the VFOIA by her were willful. However, implicit in the notion of "willful and knowing" violations is the principle that violations born of ignorance resulted from a good faith ignorance. See id. at 81, 400 S.E.2d at 178 (finding that penalty "unjustified where a public body had acted in good faith"). The Court believes that the evidence demonstrates that the violations involved in the instant case were not the result of an innocent ignorance on the part of Ms. Epps.

In King v. Empire Collieries, Co., 148 Va. 585, 139 S.E. 478 (1927), cited by the Respondent, the Virginia Supreme Court, in discussing a provision barring an employee from receiving workers' compensation benefits if he engaged in "willful misconduct," stated, "There cannot . . . be a willful failure to perform an unknown duty. If the duty is unknown, the employee cannot deliberately determine that he will not perform it." Id. at 590, 139 S.E. at 479 (emphasis added). Accordingly, the court found recovery is not barred by illegal employee conduct, "unless the employer can show that [the employee] had knowledge of the [violated] statute, or that reasonable steps had been taken to bring home to him notice of its existence." Id. at 592, 139 S.E. at 479 (emphasis added). That court, therefore, recognized that willfulness need not be grounded in actual knowledge, but can be based upon a form of constructive knowledge -- knowledge a reasonable person would be presumed to possess under similar circumstances. In the case at bar, all that is imputed to Ms. Epps is knowledge that she would have had but for a conscious decision to avoid familiarity with the VFOIA.

The Court believes that the evidence clearly demonstrates that Ms. Epps consciously chose to remain ignorant of key requirements of the VFOIA. Contrary to her assertion in her Memorandum in Support of the Motion to Reconsider, Ms. Epps' ignorance of the VFOIA reflected more than just an absence of a "photographic memory." Her uncontradicted testimony was that what familiarity she had with the VFOIA arose not from her current position as Chairperson of the VRS, but from a previous position with the Attorney General's Office. Given the public responsibilities which are cast upon agency heads, this continues to strike the Court as a remarkable admission. Although her Memorandum argues otherwise, the ignorance Ms. Epps revealed through her conduct and her testimony was not the result of innocent confusion arising from the complexities of the VFOIA. There is nothing complex about the requirement that members of public bodies be provided with copies of the VFOIA, see Va. Code section 2.1-341.1 (1987); there is nothing complex about the motion that public meetings be open to non-interfering photography, see id. section 2.1-343 (1992); and there is nothing complex about the requirement that meetings of three or more members of a public body (or two, if that number constitutes a quorum), called to discuss business of that public body, be open to the public, unless formally held in executive session, see id. sections 2.1-341, 342-343, 344. As they apply to SHI, there is nothing complex about the requirement that state entities wholly or principally funded by public funds are "public bodies" under the VFOIA, see id. section 2.1-341, or the inclusion in the definition of "public bodies" of "committees or subcommittees of [a] public body created to perform delegated functions of the public body." See id.

The Respondent argues that evidence of violations of the VFOIA that did not violate any rights of the Petitioner are irrelevant to this case. She is only partially correct. Although the Petitioner, in order to prevail, had to demonstrate that his rights had been violated, see id. section 2.1-346, evidence of other violations is relevant to the Respondent's state of mind. Her position as Chairperson of a state agency carries with it a certain public responsibility to ensure that the public's interests are recognized and protected. Cf. Fugate v. Weston, 156 Va. 107, 140, 157 S.E. 736, 748 (1931) (Prentis, C.J., dissenting) ("Offices are created for the administration of public affairs. When a person is inducted into an office, he thereby becomes empowered to exercise its powers and perform its duties, not for his, but for the public benefit."). By intentionally failing to acquire adequate knowledge and appreciation for the VFOIA, the Respondent deliberately avoided one of her public responsibilities. Cf. Taylor v. Worrell Enter., Inc., 242 Va. 219, 224, 409 S.E.2d 136, 139 (1991) (In enacting the VFOIA, "[t]he General Assembly sought to ensure public access to governmental records and meetings [and] to avoid an `atmosphere of secrecy' in the conduct of government affairs . . . .").

While the failure of VRS trustees to receive copies of the VFOIA did represent a violation of the VFOIA, see Va. Code Ann. section 2.1-341.1, it was not a violation that infringed any rights or privileges of the Petitioner, nor was it a violation upon which a penalty under section 2.1-346.1 can be based. See id. section 2.1-346.1. However, the fact that Ms. Epps was, by her own testimony, unaware of such an explicit provision, aimed clearly at ensuring official knowledge of, and compliance with, the VFOIA, demonstrates the depth of her disregard of the VFOIA. Her own testimony demonstrates sufficient familiarity with the VFOIA to place her on notice of its implications for any state agency and yet, despite this, she failed even to acquaint herself with relevant and obvious requirements of the VFOIA.¹ It was only the onset of litigation and questioning during her deposition in this matter that informed her of the requirements of section 2.1-341.1.

The same flippant disregard of the VFOIA is illustrated by her initial failure to allow photographs at a public meeting at the VRS Board of Trustees held on August 15, 1991. While, like the failure to provide copies of the VFOIA to trustees, this is not a violation of which this Petitioner can complain, it too demonstrates the depth of Ms. Epps' indifference toward the VFOIA. In that context, it is less relevant (although the Respondent places great emphasis on this point) that no violation occurred, for photographs were ultimately permitted. It is relevant that those photographs were only permitted after the newspaper's attorney arrived to read Ms. Epps the relevant portion of the VFOIA. Her post-hoc rationalization for her "confusion" -- that she saw a distinction between allowing photographs of "meetings" and "individuals at meetings" -- is simply disingenuous. The provisions of Virginia Code section 2.1-343 are clear with respect to photography. Again, as with the statutory provision requiring that members of public bodies be provided copies of the VFOIA, it took the intervention of a third party to acquaint the Respondent with language in the VFOIA with which even a cursory reading would have made her familiar.

Given this background, this Court, in its August 5, 1992 letter opinion, found that the Respondent's failure to recognize that the November 4, 1991 meeting attended by the VRS trustees was not only a meeting of SHI, but a meeting of SHI's parent, the VRS Board of Trustees, arose from her conscious disregard of the provisions of the VFOIA and created a deliberate violation of the VFOIA on her part. Ms. Epps attempts to parlay her "surprise" at the attendance of the VRS Trustees, in response to her invitation to attend what she characterizes as solely an SHI meeting, into a defense. She primarily argues that because attendance by the VRS Trustees at the November 4, 1991 meeting was not expected, no VRS meeting was effectively scheduled for which notice to the Petitioner would have been required. Given the significance of the RF&P investment to VRS, it strains credulity to believe that the Chairperson of the VRS was truly surprised at the interest shown by the VRS Trustees in the management of that investment. Ms. Epps characterizes SHI as an entity operating at least quasi-independently of the VRS Board, arguing that if the VRS Board was not satisfied with decisions of the SHI Board of Directors, its remedy was to remove those directors. By ignoring the administrative genealogy and direct linkage between the VRS Board and the SHI Board, Ms. Epps sought to justify early efforts to isolate the SHI Board from provisions of the VFOIA, which she knew applied to the VRS Board.

Furthermore, her argument partially rests upon the premise that the November 4, 1991 meeting was an SHI meeting that converted to a VRS meeting when all trustees attended and subsequently discussed VRS business. This ignores the finding of this Court that the November 4, 1991 meeting was a VRS meeting from the outset. Contrary to the Respondent's assertion, the Petitioner did not concede that the meeting was solely an SHI meeting; indeed, he suggested, as the Court ultimately ruled, that it was both an SHI and a VRS meeting. Although Ms. Epps apparently viewed SHI as operating somewhat independently of the VRS, the relationship between the two entities stands firmly in opposition to such a view. The SHI Board of Directors, consisting as it initially did of only two members, both Trustees of the VRS, was nothing more than a "committee or sub-committee" of VRS, and as such was subject to the VFOIA. See Va. Code Ann. section 2.1-341. The entire SHI corporate entity, once capitalized by the RF&P stock, which was purchased with state assets, also became subject to the VFOIA. See id. The attendance by all VRS Trustees at the November 4, 1991 meeting reflects the true relationship between the business of SHI and the business of VRS, Respondent's attempts to separate them notwithstanding.² SHI business was VRS business and once the VRS Trustees were invited to a meeting dealing with such business, a VRS meeting was scheduled, at least within the contemplation of the VFOIA, if not within the contemplation of the VRS Chairperson. Again, it was the Respondent's conscious failure to familiarize herself with the VFOIA which allowed her to create this particular violation. Such conscious failure cannot support a defense based upon a good faith claim of ignorance.

Ms. Epps does not challenge the substantive finding of the Court that she participated in violations of the VFOIA; her defense is that her participation was not "knowing." In Bank of Martinsville v. Ford, 219 Va. 942 , 252 S.E.2d 354 (1979), the Virginia Supreme Court addressed the definition of "knowingly" in the context of a statute barring a creditor from gaining any benefit from a mechanic's lien if the memorandum in support of that lien "knowingly" included work not actually done, or materials not furnished. Noting that the law disfavors forfeiture, the court defined "knowingly" as the "antonym of `innocently'", as "the synonym of `designedly', and `with intent to mislead.'" Id. at 945, 252 S.E.2d at 357. The Court believes that the evidence demonstrates that the Respondent's approach to the VFOIA was not one of innocence. She consistently demonstrated a hostile view of the VFOIA, often conceding its requirements only after pressure from external sources. The Court believes that discussions, about which she testified, concerning the status of SHI with respect to the VFOIA reflect not a good faith effort to ascertain that status, but an effort to create a minimally plausible justification for a decision which had already been made -- a decision to avoid the VFOIA.³ While it is true that VRS and SHI began giving notice of SHI meetings to the Petitioner before he filed suit, and that SHI meetings held on or after December 17, 1991 were open to the public, such concessions were not made until adverse publicity surfaced in the local press regarding the November 4, 1991 meeting. Despite those concessions, it was not until the opening moments of the March 29, 1992 trial that SHI formally conceded that it was subject to the VFOIA, a position which reasonably should have been conceded long before that date.

The failure to acknowledge the November 4, 1991 meeting as, effectively, a meeting of the VRS Board of Trustees, requiring the giving of appropriate notice, created a substantial violation of the VFOIA. Additionally, the early failure by SHI to comply with the VFOIA's requirement that meetings of public bodies be open to the public represented another substantial violation. These violations, coupled with SHI's ongoing resistance to conceding its coverage by the VFOIA, even after agreeing to comply with the VFOIA's provisions, bolster the Court's finding that these violations were not only substantial, but willful.

As Chairperson of the VRS, and a common link between the agencies found substantially to have violated the VFOIA, Ms. Epps has only her concerted efforts to avoid knowledge of the VFOIA's obligations to blame for this Court's ruling. The violations by VRS and SHI, in which Ms. Epps played a key role, were not born of innocent mistake or confusion, but of a conscious effort to avoid familiarity with the VFOIA and then ground a defense upon that lack of familiarity.

PROTECTIVE ORDER

Linked to the Respondents' request for a Protective Order is the Petitioner's request that the Court make the depositions of Buford Scott and Jacqueline Epps part of the court record. Although the depositions were submitted to the Court in camera in order that rulings could be made on objections to specific deposition questions, they did not thereby become part of the record.⁴ Because the depositions, in whole or in part, were not introduced into evidence at the March 29-30 trial, the Court sees no justification for injecting them into the court record at this time. Accordingly, the Petitioner's Motion to Make Discovery Depositions A Part of the Court Record is denied.

Regardless of whether the Court made the depositions part of the record, it would be necessary to address the Respondents' request for a Protective Order sealing the depositions from public view. The Court begins with the observation that it has the authority to seal the depositions at issue, and that such an order may be issued more easily for pre-trial discovery material than for portions of a court record. See Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 260-62, 368 S.E.2d 253, 257 (1988). However, the Court notes that in Shenandoah Publishing House, the court's protective concern involved "`an essentially private dispute between non-public figures.'" Id. at 259, 368 S.E.2d at 256 (quoting letter opinion of trial court).

When the Court issued its initial protective order with respect to the depositions of Scott and Epps, the rationale for that order was concern that public access to those depositions might expose information involving SHI and RF&P not otherwise available to the public through the VFOIA. This order was a necessary protection during the pendency of the proceedings before this court; proceedings which would ultimately lead to a determination of whether those entities were subject to the VFOIA. That susceptibility now having been decided by this Court, the respondents now seek a renewed protective order based upon potential embarrassment they might suffer were the depositions not protected from public view.

In the case at bar, the matters which pose potential embarrassment to the respondents involve not private matters, but public matters related to public responsibilities of public officials. Although, in cases analyzing potentially slanderous statements made about public officials the ultimate considerations are different, for the alleged damage in those cases is already done, the significance of the public nature of public officials remains the same. "An individual who decides to seek governmental office must accept certain necessary consequences of the involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case . . . . [T]he public's interest extends to `anything which might touch on an official's fitness for office . . . .'" Gertz v. Robert Welch, Inc., 418 U.S. 323, 344-45 (1974) (quoting Garrison v. Louisiana, 379 U.S. 64, 77 (1964)).

Buford Scott and Jacqueline Epps are both public officials; their activities and views explored in the depositions involve public bodies subject to the VFOIA. Although not part of the court record, which would presumptively be open to public inspection, see Shenandoah Publishing House, Inc., 235 Va. at 258-59, 368 S.E.2d at 256, the Respondents have pointed to nothing contained within the depositions which would justify this Court's sealing the depositions, thereby preventing those who hold copies from doing with them as they please. Accordingly, the Court will deny the Motion for a Protective Order. The Court's copies of the depositions will be returned to the Petitioner, from whom they were received.

ATTORNEYS' FEES

In his Application for Attorneys' fees and a Supplement to that application, the Petitioner has asked for attorneys' fees totalling $168,909.85, plus costs of $13,073.10. This amount results from hours spent on this case by not only the nominally pro se Petitioner, but by four other attorneys in his law firm. The Respondents, in opposition to a portion of those fees, cite cases addressing the peculiar circumstances which arise when a pro se litigant is also an attorney. See e.g., Kay v. Ehrler, 900 F.2d 967, 970-972 (6th Cir. 1990), aff'd, 111 S. Ct. 1435 (1991) (discussing federal cases and the differing approaches taken by various circuits).

One question which arises with pro se litigants is whether statutes providing for attorneys' fees contemplate recovery of fees not actually incurred. See id. at 971. Although there would appear to be no real difference between attorney and non-attorney pro se litigants with respect to the actuality of fees, some courts have justified allowing the former to recover fees based upon the notion of "opportunity costs." "The concept of opportunity costs rests on the assumption that the pro se attorney has an otherwise full load of work, and he or she would have been busily billing his clients but for his pro se work." Id. at 970. Contra Aronson v. United States Dept. of Hous. & Urban Dev., 866 F.2d 1, 5 (1st Cir. 1989) (refusing to treat pro se attorney litigants differently from other pro se litigants who also presumably sacrifice some income to pursue their litigation). For the purposes of federal civil rights legislation, the United States Supreme Court has now decided that pro se attorney litigants act in the same posture as pro se lay litigants -- with neither entitled to recover attorneys' fees under 42 U.S.C. section 1988.

A rule that authorizes awards of counsel fees to pro se litigants -- even if limited to those who are members of the bar -- would create a disincentive to employ counsel whenever such a plaintiff considered himself competent to litigate on his own behalf. The statutory policy of furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case.

Kay v. Ehrler, 111 S. Ct. 1435, 1438 (1991).

The Virginia Supreme Court has not expressly ruled on the treatment of pro se litigants with respect to attorneys fees in VFOIA suits. Compare Nageotte v. Board of Supervisors, 223 Va. 259, 270, 288 S.E.2d 423, 428 (1982) (court bases denial of attorney fee award on the insubstantiality of violations rather than the fact that the litigants were pro se) with Hale v. Washington County Sch. Bd., 241 Va. 76, 82, 400 S.E.2d 175, 178 (1991) (characterizing the fee ruling in Nageotte as grounded in a number of factors, including the petitioners' pro se status). However, this Court would be inclined to apply an analysis similar to that used by the United States Supreme Court in Ehrler.

This is an issue this Court need not address. The Petitioner here was only nominally pro se because, although he appeared in his own behalf, he was ably assisted by other counsel. To allow him to recover both his actual "costs" and his more theoretical opportunity costs would be to allow a form of double-dipping. But see Brainerd v. Department of the Navy, 1988 WL 37829, at *1 (N.D. Ill. 1988) (although it ultimately denies an award, court willing to consider both a pro se attorney fee and the "cost" of retained counsel). Although the Petitioner has informed the Court of an actual client he represents in this case, that client, by remaining a non-party in the case, is better characterized as a sponsor (albeit one with whom the Petitioner presumably has an attorney-client relationship). Section 2.1-346 of the Virginia Code allows a prevailing petitioner to recover reasonable attorneys' fees; therefore the Petitioner is entitled to recover his fees. He may either do so in his pro se posture or he may do so in the same posture as would a lay petitioner represented by counsel, by presenting the fees actually "charged." Cf. Falcone v. IRS, 714 F.2d 646, 648 (6th Cir. 1983), cert. denied, 466 U.S. 908 (1984) ("A final concern in denying attorney's fees to pro se plaintiffs is the fear of creating a `cottage industry' for claimants using the [federal Freedom of Information] Act solely as a way to generate fees rather than to vindicate personal claims."). Presumably, since the bulk of attorneys' fees resulted from the work of the attorneys assisting the Petitioner, he would prefer to have the Court consider the reasonableness of those fees. Accordingly, the fee request will initially be discounted by $48,812.40, the amount the Petitioner "billed" himself on behalf of his sponsoring client.

A different treatment is appropriate for fees charged by those attorneys who assisted the Petitioner in his case. James K. Cluverius and Lisa C. Dewey provided some services, with fees totalling $1,750.00. Respondents have offered no serious contention to that amount, and there seems to be no reason to dispute the reasonableness of those fees.

J. Burke McCormick and Robyne R. Lau provided yeoman's service to the Petitioner. Although no dispute as to the legitimacy of those charges, totalling $118,347.45, has been offered, the Court must address the reasonableness of those charges in light of the legal issues involved. See Tazewell Oil Co. v. United Virginia Bank, 243 Va. 94, 112, 413 S.E.2d 61, 621 (1992) ("`In determining a reasonable fee, the fact finder should consider such circumstances as the time consumed, the effort expended, the nature of the services rendered, and other attending circumstances.'") (quoting Mullins v. Richlands Nat'l Bank, 241 Va. 447, 449, 403 S.E.2d 334, 335 (1991)). The violations by VRS were not particularly difficult to demonstrate, although the nature and character of the critical November 4, 1991 SHI/VRS meeting did apparently require some discovery to uncover. Nonetheless, the legal issues, with respect to VRS, were not particularly complex.

Similarly, the legal issues surrounding SHI and its responsibilities under the VFOIA, the Respondents' last minute concession notwithstanding, were not tremendously daunting. Had VRS and SHI been the only state entities challenged by the Petitioner, presumably the attorneys' fees would have been significantly lower. Certainly, under those circumstances, fees similar in magnitude to those currently claimed would have shocked the Court's conscience to almost the same degree as was the conscience of the Fourth Circuit Court of Appeals in Broyles v. Director, No. 86-1091, slip op. at 6 (4th Cir. Sept. 3, 1992).⁵

Given the manner in which Petitioner's legal expenses were documented, it is difficult to ascertain whether an unreasonable amount is attributable to uncomplicated issues. However, the Court also notes the vigor with which the Respondents and their impressive array of attorneys resisted the Petitioner on even these relatively simple issues. Therefore, the Court is unconcerned by its inability to wield a judicial scalpel to excise "unreasonable" fees generated, in large measure, by the Respondents' similarly unreasonable resistance to Petitioner's meritorious arguments on the simpler issues involving VRS and SHI.

The truly difficult obstacle faced by the Petitioner was convincing the Court that the VFOIA applied to a formerly private entity, RF&P, now made at least quasi-public by the VRS purchase of one-hundred percent of the RF&P stock. Although the Petitioner did substantially prevail in that dispute, he did so not directly upon any arguments or legal theories presented by him. While the thrust of his argument focused on "public" funding (through the stock purchase), in an attempt to apply the VFOIA to the whole of the RF&P, the Court's decision relied on the "committee and subcommittee" language of Virginia Code section 2.1-341 to reach only the RF&P Board of Directors. Certainly some of the Petitioner's efforts provided the evidence which formed the basis for the Court's finding, but other efforts resulted in evidence which provided no basis for the finding, and, indeed, pointed in directions toward which the Petitioner was unable to lead the Court.

Because of the wide range of theories upon which the Petitioner based his suit, and the narrow approach ultimately adopted by the Court's ruling, the Court questioned whether the total amount of attorneys' fees requested should be discounted by any portion generated by unsuccessful arguments. Having considered the subsequent submissions of the parties on this issue, the Court believes that to discount the fee request on such grounds would contradict the public policy basis behind allowing prevailing petitioners to recover their fees and costs. As noted earlier, the United States Supreme Court observed in Ehrler that limiting recovery of attorneys' fees, at least in Civil Rights matters, to those fees which result from actual legal representation encourages the employment of competent counsel, see Ehrler, 111 S. Ct. at 1437-38. However, that notion implicitly recognizes a corresponding legislative intent to encourage attorneys to take on meritorious cases.

A similar intent is involved in Freedom of Information Act suits, whether based upon state or federal statutes. "The award of attorney's fees to successful FOIA plaintiffs was intended to relieve plaintiffs with legitimate claims of the burden of legal costs; it was not intended as a reward for successful claimants or as a penalty against the government." Falcone, 714 F.2d at 647 (referring to the federal Freedom of Information Act); see also Nix v. United States, 572 F.2d 998, 1007 (4th Cir. 1978) ("This court agrees with the District of Columbia Circuit that an award of attorney's fees is not automatic, but is to be made where doing so will encourage fulfillment of the purposes of FOIA.").

The Court believes that to allow a successful petitioner to recover only fees which directly arose from arguments ultimately adopted by a court would penalize, and consequently, discourage, intellectually aggressive litigation. Were a petitioner required to limit his legal arguments to only those most likely to succeed, in order to avoid having to bear a significant portion of his own litigation costs, he might, particularly in the face of intellectually or procedurally aggressive governmental opposition, choose not to pursue his claim. Although the United States Supreme Court has recognized that wholly unrelated claims joined in a single suit might not justify a fee award based upon the full costs of litigation when a prevailing petitioner succeeds on less than the whole of his suit, the Court has limited that approach to unrelated claims.

In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants . . . counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been "expended in pursuit of the ultimate result achieved." The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.

It may well be that cases involving such unrelated claims are unlikely to arise with great frequency. Many civil rights cases will present only a single claim. In other cases the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the . . . court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.

Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation . . . . In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.

Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983) (citations omitted). Because all the Petitioner's legal theories in the instant case arose from a common nucleus of interrelated facts and because none were unreasonable, his request for attorneys' fees will not be discounted merely because this Court did not ultimately accept or adopt all the approaches urged by the Petitioner.

Additionally, with respect to RF&P, the legal issues involved in Petitioner's suit were unique. Unlike the petitioners in Broyles, with respect to black lung benefits issues, the Petitioner here had to plow much of his own ground. See Broyles, slip op. at 5-6. Because the Respondents have offered no convincing basis upon which the mathematical reasonableness of the fees sought can be reduced, the Petitioner shall receive the full amount sought, after reduction by the amount which arose from the Petitioner's own activities.

Although the Respondents have expressed some indignation over charges that arose from such activities as cite-checking and Shepardizing, most of that work was performed by an attorney whose hourly rate was only $75.00. While it is true that such work can also be done by a paralegal, the Respondents have offered no basis for the Court to ascertain an amount by which the total amount of the fees sought should be discounted for such work by an attorney.

Finally, the Respondents have voiced further dismay over the totality of the fees sought in light of lesser fees awarded in other Freedom of Information Act suits. The Court is unpersuaded by such protests. Had the Respondents not so vigorously resisted recognition of their responsibilities under the VFOIA, Petitioner's suit presumably would have cost significantly less. Having actively fought the Petitioner through every litigious step, the Respondents now feign amnesia and claim that this was really a simple case justifying only minimal attorneys' fees. The Court suffers from no such amnesia; although it agrees with the Respondents that this case could have concluded with far lower costs, it does not accept the assertion that fault for higher fees rests with the Petitioner. Accordingly, the Petitioner is entitled to recover $120,097.45 in attorneys' fees and $13,073.10 in costs from Respondents SHI and VRS.

Counsel for the Petitioner shall prepare a sketch for an order encompassing the rulings made in this and the August 5, 1992 letter opinion, and after circulating it to all counsel for Respondents, submit it to the court for entry.

Footnotes

1. Additionally, Judge Randall Johnson's findings of technical violations by the VRS, in Little v. Virginia Retirement Sys., No. HA-741-4, letter op., (Richmond Cir. Ct. Sept. 17, 1990), gave further notice to Ms. Epps of the implications of the Act to her agency, over which she had assumed the role of Chairperson in March of 1990.

2. This relationship, and the awareness of the defendants of that relationship, is clearly reflected in the pleadings filed in Kahn v. Virginia Retirement System, discussed in this Court's letter opinion on page 23.

3. In support of her effort to isolate SHI and RF&P from the Act, Ms. Epps characterized the RF&P investment by VRS as an equity investment. However, the facts belie that claim. The funds for the stock purchase came from the VRS Real Estate Reserve. A document entitled VRS Total Fund Policy Mix, included with the minutes of a December 17, 1991 VRS Board of Trustees meeting, listed the RF&P investment among Real Estate holdings. The concern over appointment of a consultant to SHI to assist in management of the RF&P investment demonstrates an intent by VRS, through SHI, to take more than a passive role in managing the real estate assets that gave value to its investment in RF&P stock. The evidence demonstrates that, like the concerns she expressed over the Act's potential effect on efforts to hire a highly qualified Chief Executive Officer for RF&P, Ms. Epps believed that it was desirable to avoid the dictates of the Act in order for her and the other directors of SHI to influence the management of the RF&P realty holdings.

4. In order to avoid cluttering court files with unnecessary material, court rules prevent the filing of most depositions with the court clerk unless such filing is directed by the court. See Va. S. Ct. R. 4:5(f)(1).

5. In Broyles, the Court of Appeals slashed an attorneys' fee award down to $43,000 when over $300,000 had been sought. The Court expressed outrage at such a request given the previous history of litigation involving black lung benefits, including briefs filed earlier in the pending suit that attorneys had spent numerous hours "re-working." See Broyles, slip op. at 2-9.