The U.S. Court of Appeals for the D.C. Circuit handed down two opinions today addressing whether plaintiffs in Freedom of Information Act cases are retroactively entitled to attorneys’ fees in suits brought before the enactment of the OPEN Government Act of 2007. The court found in both cases that they are not.
In the first case, Judicial Watch Inc. v. Bureau of Land Management, the bureau argued that it was incorrectly held liable for $3,605 in attorneys’ fees after Judicial Watch filed a suit seeking documents related to a transaction involving federal land.
Judicial Watch filed a FOIA suit seeking the documents in the U.S. District Court for the District of Columbia in 2007. The bureau responded by turning over 35 pages of documents. At Judicial Watch’s request, the bureau also conducted a supplemental search for additional relevant documents, though none were found. In January 2008, Judicial Watch and the bureau filed a joint stipulation asking the district court to enter a judgment in favor of the agency. Judicial Watch reserved the right to request attorneys’ fees in the stipulation.
The timing of the stipulation later proved to be key. As the court notes in its opinion, on December 31, 2007, after the bureau’s disclosure of the requested records but before the filing of the stipulation, President George W. Bush signed into law the OPEN Government Act. Before then, only FOIA plaintiffs who had been awarded “some relief by [a] court, either in a judgment on the merits or in a court-ordered consent decree could recover attorneys fees.” The act extended that to include lawsuits that bring about “voluntary or unilateral change in position by the agency so long as the FOIA claim is not insubstantial.”
The trial court applied the new standard and awarded Judicial Watch $3,605 in attorneys’ fees.
While the bureau’s appeal was pending, the D.C. Circuit held in Summers v. Department of Justice that the 2007 Act cannot be applied retroactively. On appeal, Michael Bekesha, a staff attorney at Judicial Watch, argued that that because the Summers opinion held that the act cannot be applied to cases settled before its effective date, it implicitly held that it can be applied to any case settled after that date.
The court ruled in today’s five-page opinion, written by Judge Thomas Griffith and joined by Judges David Tatel and Karen Henderson, that “the matter is not so simple.”
Griffith’s writes in his opinion that, “Summers held that the 2007 Act may not be given retroactive effect, but it did not address the question presented here: whether the Act applies when the agency unilaterally disclosed the requested records before the statute’s enactment but the parties’ formal settlement came afterwards. We conclude that application of the 2007 Act to these facts would have impermissible retroactive effects.”
The second case, John Davis v. U.S. Department of Justice, stems from a 24-year-old suit in which Davis sought tape recordings made during an FBI investigation of a New Orleans mob boss. The Justice Department released many of the requested tapes in 1995 and another one in 1999. The trial court granted the Justice Department summary judgment in 2007, deciding that it had fulfilled its obligations.
Davis’ appeal, the sixth one filed in the case, questioned whether he can recoup the $112,029 in attorneys’ fees he has run up throughout the decades-long litigation under the so-called “catalyst theory,” which allowed for fee awards if a lawsuit caused the agency to release the requested records.
D.C. Circuit case law had allowed for fee awards under the “catalyst theory” until the Supreme Court rejected that theory in Buckhannon Board & Care Home Inc. v. West Virginia Department of Health & Human Resources (2001). Congress, however, included a provision in the OPEN Government Act of 2007 that allowed for fee awards in cases where a plaintiff “substantially prevailed” and won a “judicial order, or enforceable written agreement or consent decree or a voluntary or unilateral change in position by the agency.”
A magistrate judge sided with Davis and recommended that the trial court grant his request for attorneys’ fees. The trial court disagreed and did not grant that motion. Davis appealed the trial court’s decision.
The D.C. Circuit’s opinion, also written by Griffith and joined by Tatel and Henderson, determined that relying on the 2007 act in Davis’ case would “give rise to liability for attorneys’ fees where none existed before.”