Oil, Chemical & Atomic Workers International Union v. Department of Energy ( 2002 )

Opinion for the Court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge ROGERS.

RANDOLPH, Circuit Judge:

This is an appeal of an award of attorney’s fees for actions brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Government in the Sunshine Act, 5 U.S.C. § 552b. The question is whether Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), decided while this appeal was pending, applies to FOIA cases.

I.

Congress created the United States Enrichment Corporation (“USEC”) to operate uranium enrichment plants in the country. See 42 U.S.C. § 2297a (1992). There are two such facilities, one in Kentucky, the other in Ohio. The Oil, Chemical, and Atomic Workers International Union represented employees at both plants. In 1996, Congress decided to “privatize” USEC by having a private entity lease the facilities. See USEC Privatization Act, Pub.L. No. 104-134, 110 Stat. 1321-335 (1996) (codified at 42 U.S.C. § 2297h). Concerned that privatization would affect its members’ employment, the union sought information about what was planned. USEC refused to provide the information voluntarily. The union then sent a FOIA request to USEC. On June 30, 1998, after USEC failed to provide the information, the union filed this action in the district court. A few weeks later the union brought a separate suit under the Government in the Sunshine Act, 5 U.S.C. § 552b, seeking to open USEC’s board meetings on privatization to the public. The district court denied the union’s request for a temporary restraining order that would have required an “open” board meeting. Privatization occurred a few weeks later, on July 28,1998.

In August 1998, the government moved to dismiss the FOIA and Sunshine Act suits, arguing that the court’s jurisdiction ended when USEC ceased to be a public entity. Rather than grant the motion, the district court substituted the Department of Energy as defendant on the grounds that the Privatization Act called for the government to fulfill obligations incurred by USEC, and that there was a “Record Agreement” to the same effect. Several status hearings took place after this order. On December 10, 1999, the parties (the union and the Energy Department) filed a Stipulation and Order of Dismissal stating that the government had provided “substantial amounts of material” and dismissing the claims with prejudice, although reserving the union’s right to seek attorney’s fees. The district court endorsed the stipulation.

The parties were unable to resolve the attorney’s fees issue amongst themselves, so the union filed an application for fees with the district court on April 17, 2000. On March 16, 2001, the court ruled that the union was entitled to receive fees, but not in the full amount it sought. (The court stated that the union could recover any Sunshine Act fees in its motion for fees under FOIA, but it also denied the union’s request for fees related to its failed attempt to get injunctive relief halting the USEC board meeting or opening it to the public. The union does not appeal this decision, so our analysis is limited to the request for fees under FOIA.) After the court’s order, the parties stipulated that the proper amount of fees and costs totaled $108,173.25, reserving the Energy Department’s right to appeal. The court ordered the payment of this amount on March 30, 2001. Shortly after the government noted its appeal, the Supreme Court issued its opinion in Buckhannon, holding that attorney’s fees are not authorized under the Fair Housing Amendments Act or Americans with Disabilities Act to a plaintiff who achieves the desired result without a judgment on the merits or a court-ordered consent decree. See 532 U.S. at 600-01, 121 S.Ct. at 1838.

II.

In order to recover attorney’s fees in a FOIA case, the plaintiff must have “substantially prevailed”: the “court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E). In determining whether plaintiffs are eligible for an award, we have followed the “catalyst theory.” So long as the “litigation substantially caused the requested records to be released,” the FOIA plaintiff could recover attorney’s fees even though the district court had not rendered a judgment in the plaintiffs favor. Chesapeake Bay Found., Inc. v. Dep’t of Agric., 11 F.3d 211, 216 (D.C.Cir.1993) (citing Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir.1976)); see also Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C.Cir.1977).

In Buckhannon, the Supreme Court rejected the “catalyst theory.” Plaintiffs there had alleged that certain “self-preservation” provisions of a state fire code violated the Fair Housing Amendments and Americans with Disabilities Acts as applied to an assisted-living facility. See 532 U.S. at 600, 121 S.Ct. at 1838. Before the district court ruled, the state legislature repealed the provisions. See id. at 601, 121 S.Ct. at 1838. Plaintiffs then moved for attorney’s fees, arguing that under the fee-shifting statutes at issue they were “prevailing parties” because their lawsuit had prompted the change in the law. See id. The Supreme Court held that absent some sort of judicial imprimatur, a plaintiff could not be considered a “prevailing party” and an award of attorney’s fees was therefore impermissible.

The Energy Department argues that Buckhannon’& rejection of the catalyst theory applies also to FOIA, a possibility we have already noticed. See Students Against Genocide v. Dep’t of State, 257 F.3d 828, 841 n. 14 (D.C.Cir.2001). As the Court pointed out in Buckhannon, 532 U.S. at 602-03, 121 S.Ct. at 1838-40, there are dozens of fee-shifting statutes, some worded slightly differently from others. A wide range of statutes uses the “substantially prevails” formulation. See, e.g., 5 U.S.C. § 552a(g)(2)(B) (Privacy Act); 5 U.S.C. § 552b(i) (Government in the Sunshine Act); 15 U.S.C. § 26 (Clayton Act); 16 U.S.C. § 470w-4 (National Historic Preservation Act); 28 U.S.C. § 2465(b)(1) (return of forfeited or condemned property); 42 U.S.C. § 300aa-31(c) (National Vaccine Injury Compensation Program). Many other statutes use “prevailing party.” As to a litigant’s eligibility for an award of attorney’s fees, we have treated these statutes as substantially similar. See, e.g., Pub. Citizen Health Research Group v. Young, 909 F.2d 546, 549 (D.C.Cir.1990) (Equal Access to Justice Act) (“It is enough that the lawsuit was a ‘causal, necessary, or substantial factor in obtaining the result’ plaintiff sought.”); Comm’rs Court of Medina County, Tex. v. United States, 683 F.2d 435, 442 (D.C.Cir.1982) (Voting Rights Act). Buckhannon expressly endorsed this approach. After citing to a long list of such statutes, a list including FOIA, the Court stated that it had “interpreted these fee-shifting statutes consistently,” 532 U.S. at 603 & n. 4, 121 S.Ct. at 1839 & n. 4 (citing Marek v. Chesny, 473 U.S. 1, 43-51, 105 S.Ct. 3012, 3034-38, 87 L.Ed.2d 1 (1985) (Appendix to opinion of Brennan, J., dissenting); Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40 (1983)). Five circuits have applied Buckhannon to other fee-shifting statutes. See, e.g., Smyth v. Rivero, 282 F.3d 268, 274-76 (4th Cir.2002) (42 U.S.C. § 1988); Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir.2002) (Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)); J.C. v. Reg’l Sch. Dist. 10, 278 F.3d 119, 124 (2d Cir.2002) (Individuals with Disabilities in Education Act, 20 U.S.C. § 1415(i)(3)(B)); N.Y. State Fed’n of Taxi Drivers, Inc. v. Westchester County Taxi & Limousine Comm’n, 272 F.3d 154, 158 (2d Cir.2001) (42 U.S.C. § 1988); Chambers v. Ohio Dep’t of Human Servs., 273 F.3d 690, 693 & n. 1 (6th Cir.2001) (42 U.S.C. § 1983); Crabill v. Trans Union, L.L.C., 259 F.3d 662, 667 (7th Cir.2001) (Fair Credit Reporting Act, 15 U.S.C. §§ 1681n, 1681o); cf. Bennett v. Yoshina, 259 F.3d 1097, 1100 (9th Cir.2001) (“There can be no doubt that the Court’s analysis in Buckhannon applies to statutes other than the two at issue in that case.”).

We therefore adhere to the proposition, well-established in this court and in the Supreme Court, that eligibility for an award of attorney’s fees in a FOIA case should be treated the same as eligibility determinations made under other fee-shifting statutes unless there is some good reason for doing otherwise. One such reason, the union argues, is the contrast between the language of the statutes in Buckhannon, which authorized fees for the “prevailing party,” see 42 U.S.C. §§ 3613(c)(2) & 12205, and FOIA, which allows fees if “the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E). It is true, as the union points out, that Buckhannon treated “prevailing party” as a “legal term of art.” 532 U.S. at 603, 121 S.Ct. at 1839. Yet all must agree that a “prevailing party” and a “party who prevails” are synonymous. FOIA’s addition of the modifier “substantially” might possibly be taken as limiting the category of “prevailing parties,” but it cannot be taken as expanding the universe of parties eligible for a fee award. To put this in concrete terms, a FOIA plaintiff may seek thousands of documents but wind up with a judgment providing only a handful of insignificant documents. One might say this plaintiff was a prevailing party, but nevertheless not say that the plaintiff substantially prevailed. Cf. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789-92, 109 S.Ct. 1486, 1492-94, 103 L.Ed.2d 866 (1989) (discussing “significance” as it pertains to the definition of “prevailing party”). We have seen nothing to suggest that Congress sought to draw any fine distinction between “prevailing party” and “substantially prevail.” The Internal Revenue Code, for instance, defines “prevailing party” to mean a party who has “substantially prevailed.” 26 U.S.C. § 7430(c)(4)(A). Consistent with our practice (and the Supreme Court’s) of viewing the various fee-shifting statutes as interchangeable, we have in the past treated the “substantially prevail” language in FOIA as the functional equivalent of the “prevailing party” language found in other statutes. See Foster v. Boorstin, 561 F.2d 340, 342 (D.C.Cir.1977).

The union also maintains that since FOIA cases are equitable in nature, the limitations imposed in Buckhannon are not appropriate. Judge Friendly made the argument forcefully in an influential opinion:

To take an extreme example, Congress clearly did not mean that where an FOIA suit had gone to trial and developments made it apparent that the judge was about to rule for the plaintiff, the Government could abort any award of attorney fees by an eleventh hour tender of the information requested.

Vermont Low Income Advocacy Council, 546 F.2d at 513. But FOIA cases are not unique in this respect. There are many potential actions in which the “prevailing party” may sue for injunctive relief or for damages and an injunction. See, e.g., Wagshal v. Foster, 28 F.3d 1249, 1251 (D.C.Cir.1994) (plaintiff seeking damages and injunctive relief under 42 U.S.C. § 1983). It is hard to believe that Congress would have intended to create a system in which a “prevailing party” would be eligible to recover fees for the injunction portion of the lawsuit but not for the damages portion. The Supreme Court in Buckhannon considered a problem similar to that posed by Judge Friendly but refused to limit its holding to actions at law. 532 U.S. at 608-10, 121 S.Ct. at 1842-43. In the Court’s view, policy arguments could not carry the day because the meaning of “prevailing party” was clear. See id. at 610, 121 S.Ct. at 1843.

The union also sees a distinction between FOIA cases and Buckhannon stemming from FOIA’s legislative history. The argument is that Congress intended FOIA’s attorney’s fee provision to be understood differently from comparable provisions in other statutes such as the Americans with Disabilities Act. The history leading to passage of FOIA is thoroughly surveyed in Judge Friendly’s opinion in Vermont Low Income Advocacy Council. See 546 F.2d at 512-13. The original House bill made a plaintiffs eligibility for an award of fees turn on whether the court had issued an injunction against the government. See id. at 512. The final House bill conditioned eligibility on the government’s not prevailing. See id. The Senate bill contained the “substantially prevailed” language, along with a list of factors for the court to consider in determining whether to make an award. See id. The accompanying Senate report talked about eligibility for attorney’s fees in cases in which the plaintiffs had successfully proven that the government had wrongfully withheld information. See id. at 512. The final version, as it emerged from conference, deleted the Senate’s list of factors. See id. at 513. With great respect to Judge Friendly, on whose opinion we relied in Cuneo, 553 F.2d at 1364 & nn.3-8, this record is inconclusive. None of the Committee reports mentions awarding fees in the absence of a judgment. And both the House and the Senate reports contain statements suggesting that the FOIA provision was modeled after fee-shifting provisions allowing fees for a “prevailing party,” which further supports treating FOIA no differently than the statutes interpreted in Buckhannon. See H.R.Rep. No. 93-876 (1974), reprinted in Legislative History of the Feeedom of Information Act, 1974 Amendments 126-27 & n.10 (1975); S.Rep, No. 93-854 (1974), reprinted in Legislative History, supra, at 170, U.S.Code Cong. & Admin.News 1974, 6267.

We therefore hold that in order for plaintiffs in FOIA actions to become eligible for an award of attorney’s fees, they must have “been awarded some relief by [a] court,” either in a judgment on the merits or in a court-ordered consent decree. Buckhannon, 532 U.S. at 603, 121 S.Ct. at 1839. Because Buckhannon controls, the existing law of our circuit must give way. See Benavides v. Bureau of Prisons, 993 F.2d 257, 258-59 (D.C.Cir.1993) (reversing circuit precedent on the eligibility of a pro se FOIA plaintiff for attorney’s fees in light of Kay v. Ehrler, 499 U.S. 432, 438, 111 S.Ct. 1435, 1438, 113 L.Ed.2d 486 (1991), a case arising under 42 U.S.C. § 1988).

III.

The union claims that even if Buckhannon applies, we should sustain the award because the parties received a “court-ordered settlement.” The Department of Energy became a defendant on March 18, 1999. The parties agreed to dismiss the case on December 10, 1999. In the interim, the district court had issued three orders. The first, entered on March 31, 1999, ordered the government to review the documents the union sought and to submit a “joint report with a proposed schedule” no later than July 10, 1999. The parties timely filed the joint report, stating that the Energy Department had reviewed the 4,000 documents and that “to the greatest extent possible, the parties wish to resolve this case without further contested proceedings.” The court’s second order directed the parties to submit another “status report” by August 20,1999. The parties’ second report stipulated that, “[sjubject to the approval of the Court,” the government had provided most of the materials the union had requested, that it would search for the remaining items and release any that did not merit withholding under FOIA’s exemptions, and that the union was dismissing its case with prejudice except for the remaining items. The parties reiterated that they “wish[edj to resolve this case to the greatest extent possible without further contested proceedings” and asked for leave of the court to continue negotiations until December 8, 1999. The court signed the document, which carried the heading “Stipulation and Order.” It is clear from the record that to this point the court had not rendered any judgment about the legality of the government’s withholding any information and that the parties had been attempting to resolve the case through negotiation. See, e.g., 3/31/99 Tr. at 9:19-23 (“I’ll certainly read the joint report as soon as it comes in, and ... I’ll either sign off on what you’ve given me or set up a conference call or an in-court status to resolve things finally.”).

On December 10, 1999, the court approved the parties’ final status report as a “Stipulation and Order” stating in its entirety:

Subject to the approval of the Court, it is hereby stipulated and agreed as follows by and between the undersigned:

1. In light of defendant’s production of substantial amounts of material responsive to plaintiffs claim for relief in this action, the action is hereby dismissed with prejudice and, except as provided in ¶ 2, without fees or costs.

2. The dismissal of this action shall be without prejudice to the right of plaintiff to obtain in [this case], an award of attorney’s fees and litigation costs covering work performed in this action.

This order did not constitute a decision on the merits; the court had no contested issues before it. The “Stipulation and Order” approved the parties’ terms of dismissal, but this was merely a formality. An “action may be dismissed ... without order of the court ... by filing a stipulation of dismissal signed by” all of the parties. See Fed.R.Civ.P. 41(a)(1).

The union claims that since the court signed the order, it is a “court-ordered consent decree[ ].” Buckhannon, 532 U.S. at 604, 121 S.Ct. at 1840. By this term, the Supreme Court meant “a court ‘ordered changfe] [in] the legal relationship between [the plaintiff] and the defendant.’ ” Id. (quoting Tex. State Teachers Ass’n, 489 U.S. at 792, 109 S.Ct. at 1493-94); see also Smyth, 282 F.3d at 278-82 & n. 11 (discussing the meaning of a “consent decree” in the Buckhannon context). The Court distinguished private settlements, which do not create a “ ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Buckhannon, 532 U.S. at 604 & n. 7, 121 S.Ct. at 1840 n. 7 (quoting Tex. State Teachers Ass’n, 489 U.S. at 792-93, 109 S.Ct. at 1493). The discussion in Buck-hannon also makes clear that there must be some sort of “judicial relief’ in favor of the party seeking an award of fees. See 532 U.S. at 606, 607 n. 9, 121 S.Ct. at 1841, 1842 n. 9; id. at 622, 121 S.Ct. at 1849-50 (Scalia, J., concurring).

The December 10 Stipulation and Order of Dismissal did not meaningfully alter the legal relationship of the parties. Its only effect was to dismiss the union’s lawsuit with a court order when no court order was needed. That cannot represent “judicial relief’ for the union. Aside from the union’s attorney fee request, there was nothing left for the district court to oversee. This contrasts with the consent decree in Maher v. Gagne, 448 U.S. 122, 126, 100 S.Ct. 2570, 2573, 65 L.Ed.2d 653 (1980), which increased AFDC allowances and gave recipients the right to prove that their individual expenses exceeded the standard levels. The decree in Maher constituted “judicial relief’ that “materially altered” the rights of the parties: for example, it estopped the government from refusing to disburse benefits in excess of the standard level to an individual who demonstrated the requisite personal expense level. Had the December 10 stipulation between the union and the Energy Department outlined documents the government still needed to disclose to the union, matters might be different. But the parties stipulated that the union had received enough information to forego continuation of its lawsuit.

Our dissenting colleague thinks that the district court’s endorsement of the August 23, 1999, stipulation qualifies as a “settlement agreement enforced through a consent decree.” Buckhannon, 532 U.S. at 604, 121 S.Ct. at 1840. The union’s brief never made this argument. It argued instead that the court’s denial of the Energy Department’s motion to dismiss changed the legal relationship of the parties. Neither the union’s argument, nor the dissent’s attempt to salvage the union’s case, are correct. Surviving a motion to dismiss does not alter the legal relationship between parties. See Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 1989-90, 64 L.Ed.2d 670 (1980). The dissent’s focus on the August 23, 1999, stipulation ignores the interim nature of that order, which is properly viewed as a procedural ruling that cannot serve as the basis for a determination that the union prevailed. See id. at 759, 100 S.Ct. at 1990. The only part of the order which arguably changed the legal status of the parties was the requirement that the Energy Department complete its record review in 60 days. Before August 23, the court had not ordered the Energy Department to turn over any documents; after August 23, the Energy Department still had no obligation to do so. Both before and after August 23 the district court did not disallow any of the Energy Department’s justifications for exempting documents, or portions of documents, from disclosure. This is not judicial relief on the merits of the union’s complaint. Contrast Maher, 448 U.S. at 126, 100 S.Ct. at 2573 (settlement agreement required government to pay higher AFDC benefits to plaintiffs). The dissent theorizes that the August order prompted the Department to turn over enough information so that by December the parties could agree to dismiss the case. In other words, filing the lawsuit and receiving some scheduling orders served as a catalyst resulting in the relief the union sought. Even if the dissent’s assessment had any proof behind it (it seems equally plausible that the Energy Department simply lacked the time to review the items), Buckhannon clearly instructs that we are not to analyze “the defendant’s subjective motivations in changing its conduct.” 532 U.S. at 609, 121 S.Ct. at 1843. Instead, we are to look for some form of “judicial relief,” and it is clear that the union received none.

Under the rule of Buckhannon, the union therefore was not entitled to attorney’s fees because it did not “substantially prevail.”

Reversed.