Cornucopia Institute v. Department of Agriculture ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1912
T HE C ORNUCOPIA INSTITUTE,
Plaintiff-Appellant,
v.
U NITED S TATES D EPARTMENT OF A GRICULTURE,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 C 182—Barbara B. Crabb, Chief Judge.
A RGUED JANUARY 22, 2009—D ECIDED M ARCH 26, 2009
Before M ANION and K ANNE, Circuit Judges, and
K ENDALL, District Judge.Œ
K ANNE, Circuit Judge. Between August 2005 and Febru-
ary 2006, the Cornucopia Institute submitted to the
United States Department of Agriculture three separate
requests for production of various public documents
Œ
Honorable Virginia M. Kendall, United States District Judge
for the Northern District of Illinois, is sitting by designation.
2 No. 07-1912
under the Freedom of Information Act, 5 U.S.C. § 552.
FOIA requires that a public agency respond to such
requests within twenty days, id. § 552(a)(6)(A), but an
agency may extend the period by ten days upon written
notice to the party making the request, id. § 552(a)(6)(B). In
response to each of these requests, the USDA informed
Cornucopia that it was utilizing the permissible ten-day
extension, but it then failed to respond within the re-
quired time period.
On April 6, 2006, Cornucopia filed suit in the Western
District of Wisconsin, seeking injunctive relief, a writ of
mandamus, and attorneys’ fees and costs. 1 On June 1,
2006, while the suit was pending, the USDA produced
numerous documents in response to Cornucopia’s re-
quests.2 The district court dismissed the case, holding
that the USDA’s production of the requested documents
had rendered Cornucopia’s claim moot. It also denied
Cornucopia’s request for attorneys’ fees and costs, finding
that it had not “substantially prevailed” under 5 U.S.C.
§ 552(a)(4)(E), as defined by Buckhannon Board & Care
Home, Inc. v. West Virginia Department of Health & Human
Resources, 532 U.S. 598 (2001).
1
Plaintiffs are not entitled to monetary damages for violations
of FOIA because 5 U.S.C. § 552(a)(4)(B) authorizes only injunc-
tive relief. See, e.g., Thompson v. Walbran, 990 F.2d 403, 405
(8th Cir. 1993); Eltayib v. U.S. Coast Guard, No. 02-5225, 2002
WL 31866267, at *1 (D.C. Cir. Dec. 20, 2002); King v. Califano,
471 F. Supp. 180, 181 (D.D.C. 1979).
2
Cornucopia does not challenge the completeness of the
USDA’s response.
No. 07-1912 3
Cornucopia appeals, arguing that the district court
erred in (1) dismissing the case because Cornucopia’s
claim was moot and (2) prematurely ruling on whether
Cornucopia was entitled to attorneys’ fees. We review
both issues de novo. See Zessar v. Keith, 536 F.3d 788, 793
(7th Cir. 2008) (“Whether a case has been rendered moot
is a question of law that we review de novo.” (quotations
omitted)); Fed’n of Adver. Indus. Representatives, Inc. v.
City of Chi., 326 F.3d 924, 932 (7th Cir. 2003) (“[W]hen . . .
the district court’s denial of an attorney’s fee award
rests on the application of a principle of law, our review
is de novo.”).
Turning first to the district court’s mootness determina-
tion, we have held that “ ‘[o]nce the government
produces all the documents a plaintiff requests, her
claim for relief under the FOIA becomes moot.’ ” Walsh v.
U.S. Dep’t of Veterans Affairs, 400 F.3d 535, 536 (7th Cir.
2005) (alteration in original) (quoting Anderson v. U.S.
Dep’t of Health & Human Servs., 3 F.3d 1383, 1384 (10th
Cir. 1993)). Despite the clear holding of Walsh, Cornucopia
asserts that its claim is not moot, relying on the distinc-
tion between moot claims and moot relief.3 Although
Cornucopia concedes that injunctive relief would no
longer be appropriate, it maintains that the district court
3
At oral argument, Cornucopia made brief reference to the
“capable of repetition yet evading review” exception to the
mootness doctrine. However, Cornucopia has waived this
argument by failing to raise it in its briefs. See Valentine v. City
of Chi., 452 F.3d 670, 680 n.1 (7th Cir. 2006).
4 No. 07-1912
remained free to issue a declaratory judgment that the
USDA violated FOIA. We find this argument unpersuasive.
It is well established that the federal courts have no
authority to rule where the case or controversy has been
rendered moot. Church of Scientology of Cal. v. United States,
506 U.S. 9, 12 (1992). Thus, “if an event occurs while a case
is pending . . . that makes it impossible for the court to
grant ‘any effectual relief whatever’ to a prevailing party,
the [case] must be dismissed.” Id. (quoting Mills v. Green,
159 U.S. 651, 653 (1895)). Although Congress has autho-
rized courts to issue declaratory relief in some cases, this
authority is merely procedural. Aetna Life Ins. Co. of Hart-
ford, Conn. v. Haworth, 300 U.S. 227, 240 (1937). The con-
stitutional requirement of a justiciable case or contro-
versy remains applicable. See MedImmune, Inc. v. Genen-
tech, Inc., 549 U.S. 118, 138 (2007) (“The Declaratory Judg-
ment Act did not (and could not) alter the constitutional
definition of ‘case or controversy’ or relax Article III’s
command that an actual case or controversy exist before
federal courts may adjudicate a question.”).
Because of these jurisdictional requirements, we have
held that declaratory judgment is appropriate only when
the court’s ruling would have an impact on the parties.
See St. John’s United Church of Christ v. City of Chi., 502
F.3d 616, 627-28 (7th Cir. 2007); Wernsing v. Thompson, 423
F.3d 732, 745 (7th Cir. 2005) (noting that when injunctive
relief is barred, “a declaratory judgment as a predicate to
a damages award can survive” (emphasis added) (quo-
tations omitted)); Tobin for Governor v. Ill. State Bd. of
Elections, 268 F.3d 517, 528 (7th Cir. 2001) (holding the
No. 07-1912 5
plaintiff’s claim moot because the declaratory relief
requested “would have no impact on the parties to this suit
or on the results of the [contested] election”). For example,
in St. John’s, we held that the plaintiff’s claims were moot
where it sought only a declaratory judgment that a chal-
lenged action violated the First Amendment and other
laws. 502 F.3d at 627-28. We noted that “[e]ven though
someone may be affected by the [defendant’s actions], that
‘someone’ is no longer [the plaintiff], and it is well estab-
lished that the ‘case or controversy’ requirement applies
to declaratory judgments, just as it applies to every
other kind of litigation in federal court.” Id. at 628.
Thus, although Cornucopia is correct that its entire
claim is not mooted simply because the specific relief it
sought has been rendered moot, it must still demonstrate
that the court’s adjudication would affect it in some way.
It has failed to do so. Cornucopia does not seek any
response to its FOIA requests beyond what it already
has received, nor does it claim to be entitled to damages.
The only cognizable way Cornucopia could be affected
by this lawsuit is through an award of attorneys’ fees. But
because a claim for attorneys’ fees is separate from the
merits of the action, Budinich v. Becton Dickinson & Co., 486
U.S. 196, 200 (1988), it cannot save Cornucopia’s FOIA
claim from becoming moot. Anderson, 3 F.3d at 1384-85(holding that the plaintiff’s FOIA claims were moot even
though the issue of attorney’s fees remained unresolved).
The district court therefore properly dismissed the case
as moot, and we now turn to Cornucopia’s argument
that the district court erred in denying its request for
attorneys’ fees.
6 No. 07-1912
Simply because a claim is moot does not necessarily
preclude the plaintiff from seeking attorneys’ fees, because
such a request “ ‘survive[s] independently under the
court’s equitable jurisdiction.’ ” Id. at 1385 (quoting Carter
v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir. 1986)).
However, the district court rejected Cornucopia’s fee
request because it had not “substantially prevailed” as
required by 5 U.S.C. § 552(a)(4)(E).
Cornucopia claims that the district court’s ruling on the
issue of attorneys’ fees was premature because it had not
yet made a motion requesting these fees. However, it is
undisputed that Cornucopia included a request for at-
torneys’ fees and costs in its prayer for relief. Furthermore,
Cornucopia moved for summary judgment “on the issue
that it is a prevailing party.” It then stated that if the
motion were granted in its favor, it would file a separate
motion for attorneys’ fees and costs. The district court
ruled on the summary judgment motion and held that
Cornucopia was not a prevailing party under Buck-
hannon, 532 U.S. at 604-05, because it had not obtained any
form of judicial relief. Once the court made this ruling,
there was no way for Cornucopia to obtain attorneys’ fees
absent the court’s reconsideration of that decision. Thus,
it was appropriate for the district court to summarily
reject the request for attorneys’ fees and costs included in
Cornucopia’s prayer for relief once it held that Cornucopia
was not a prevailing party.
We note that the propriety of the district court’s reliance
on Buckhannon in holding that Cornucopia was not a
prevailing party is questionable in light of the OPEN
No. 07-1912 7
Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524(2007), which was passed while this appeal was pending.
This Act eliminated the requirement set forth in
Buckhannon that a plaintiff receive some form of judicial
relief in order have “substantially prevailed” under FOIA.
See 5 U.S.C. § 552(a)(4)(E)(ii) (“For purposes of this sub-
paragraph, a complainant has substantially prevailed
if the complainant has obtained relief through ei-
ther—(I) a judicial order, or an enforceable written agree-
ment or consent decree; or (II) a voluntary or unilateral
change in position by the agency, if the complainant’s
claim is not insubstantial.”); see also Wildlands CPR v.
U.S. Forest Serv., 558 F. Supp. 2d 1096, 1098 (D. Mont.
2008) (noting that the OPEN Government Act revived
the catalyst theory and “gut[ted] the Buckhannon anal-
ysis”). This circuit has not yet determined whether the
OPEN Government Act applies retroactively, and we
need not do so today because Cornucopia has waived
this argument.4 Although Cornucopia mentioned the
4
In its reply brief, Cornucopia seems to indicate that it is quite
clear that the OPEN Government Act applies retroactively.
However, it does not develop this argument, simply stating
that the USDA’s argument to the contrary is “not true.” In
support, it cites only one district court case, Judicial Watch Inc. v.
Bureau of Land Mgmt., 562 F. Supp. 2d 159 (D.D.C. 2008). How-
ever, that court has subsequently issued a contrary ruling, see
N.Y.C. Apparel v. U.S. Customs & Border Prot. Bureau, 563
F. Supp. 2d 217, 220 (D.D.C. 2008), and neither decision is
binding on this court. Thus, we believe that the retroactive
(continued...)
8 No. 07-1912
OPEN Government Act and its effect on Buckhannon in
Footnote 1 of its opening brief, it did not develop the
argument for the purposes of appeal. See United States v.
Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006) (holding that
arguments not fully developed until a reply brief are
waived). Instead, it merely informed the court that “[t]he
impact of the Act on this case will be addressed in a
subsequent motion of Cornucopia’s for fees and costs, if
such a motion is warranted.” (Petr.’s Br. 9 n.1.) Although
Cornucopia developed the argument more fully in its
reply brief, this is “too little, too late.” Harper v. Vigilant
Ins. Co., 433 F.3d 521, 528 (7th Cir. 2005).
In conclusion, we hold that Cornucopia’s claims under
FOIA are moot and the district court did not err in dis-
missing the case. Cornucopia requested attorneys’ fees in
its prayer for relief, and the district court was free to
deny that request after ruling that Cornucopia was not a
prevailing party. The judgment of the district court
is A FFIRMED.
4
(...continued)
applicability of the OPEN Government Act is much less
certain than Cornucopia would make it seem.
3-26-09