Davy, William A. v. CIA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2006 Decided July 11, 2006
No. 05-5151
WILLIAM A. DAVY, JR.,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02134)
Daniel S. Alcorn argued the cause for the appellant. James
H. Lesar was on brief.
Charlotte A. Abel, Assistant United States Attorney, argued
the cause for the appellee. Kenneth L. Wainstein, United States
Attorney, and Michael J. Ryan, Assistant United States
Attorney, were on brief. R. Craig Lawrence, Assistant United
States Attorney, entered an appearance.
Before: HENDERSON, ROGERS and GRIFFITH, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: The
appellant, William Davy, Jr., filed a Freedom of Information Act
(FOIA), 5 U.S.C. §§ 552 et seq., request with the Central
Intelligence Agency (CIA or Agency), seeking certain
documents related to the Agency’s alleged role in the
assassination of President John F. Kennedy. After the CIA
failed to provide the requested documents, Davy instituted this
action against it. Thereafter, Davy and the CIA entered into a
Joint Stipulation, which established dates by which the CIA
would produce responsive documents. The district court
memorialized the stipulation in an order, which made the
deadlines judicially enforceable. The CIA complied with the
order and handed over documents to Davy. It then sought
summary judgment, which the district court granted. Davy
subsequently moved for attorney fees. The district court denied
Davy’s motion in a minute order. He appeals. We reverse the
district court’s minute order, concluding that Davy
“substantially prevailed” in this action. Because Davy is eligible
for fees, we remand to the district court to determine whether he
is entitled to fees under FOIA.
I.
Davy, an author interested in the CIA’s alleged involvement
in the assassination of President John F. Kennedy, submitted a
FOIA request to the CIA on December 13, 1993, seeking “all
records . . . pertaining to and/or captioned: Project
QKENCHANT and Project ZRCLIFF.” Letter from William A.
Davy, Jr., to FOIA/PA Unit, Central Intelligence Agency (Dec.
13, 1993), reprinted at Joint Appendix (JA) 18. Nearly six years
after Davy made his initial request—on November 22,
1999—the CIA informed him that it could “neither confirm nor
deny the existence or nonexistence of such records,” citing
FOIA Exemptions 1 and 3. Letter from Kathryn I. Dyer, Acting
Information and Privacy Coordinator, Central Intelligence
Agency, to William A. Davy, Jr. (Nov. 22, 1999), JA 23–24.
3
Davy appealed the denial of his request through the CIA’s
administrative appeals process. The CIA denied the appeal in a
letter dated June 20, 2000.
Davy then sued the CIA, seeking the documents he
requested in his 1993 letter. Because the CIA claimed that the
suit was time-barred, Davy filed another FOIA request with the
CIA on November 16, 2000, in which he renewed his 1993
request and sought the production of additional information.
The CIA then moved to dismiss the suit. The district court
granted the motion but allowed Davy 90 days to amend his
complaint. Davy then sought leave to file his first amended
complaint, which the district court granted. The first amended
complaint sought the production of documents requested in the
2000 FOIA request. Thereafter, Davy and the CIA reached a
Joint Stipulation for the production of responsive documents.
The district court approved the Joint Stipulation and
memorialized it in a court order dated May 4, 2001. The order
provides that the “CIA will provide Plaintiff all responsive
documents, if any,” based on his 1993 and 2000 FOIA requests,
by certain dates. Davy v. CIA, No. 00-cv-2134 (D.D.C. filed
May 17, 2001). The CIA complied with the order.
The CIA then moved for summary judgment, arguing that
the scope of its search was sufficient. Davy responded by filing
a cross-motion for summary judgment, contending that the CIA
improperly restricted the scope of its search and failed to turn
over all responsive documents. Because Davy’s cross-motion
raised issues not addressed in the CIA’s motion, the CIA filed
a superseding motion for summary judgment. Davy did not
respond to the superseding motion for summary judgment and
the district court accordingly considered Davy’s cross-motion as
his response to the Agency’s superseding motion. The court
granted summary judgment to the CIA, deciding that the scope
of its search was reasonable and that the FOIA exemptions it
asserted were valid. See Davy v. CIA, No. 00-cv-2134 (D.D.C.
4
filed July 12, 2004). Davy then moved for attorney fees under
5 U.S.C. § 552(a)(4)(E). The CIA opposed the motion, arguing
only that Davy was not eligible for fees because he was not a
prevailing party within the meaning of the United States
Supreme Court’s decision in Buckhannon Board and Care
Home, Inc. v. West Virginia Department of Health & Human
Resources, 532 U.S. 598 (2001). See Mem. & P. & A. in Opp’n
to Pl.’s Mot. for Att’y’s Fees (Sept. 8, 2004). The district court
denied Davy’s motion in a minute order.
II.
Davy appeals from the denial of his motion for attorney
fees. We review whether he was eligible for attorney fees—that
is, whether he “substantially prevailed”—de novo because it
rests on “ ‘an interpretation of the statutory terms that define
eligibility for an award.’ ” Edmonds v. FBI, 417 F.3d 1319,
1322 (D.C. Cir. 2005) (quoting Nat’l Ass’n of Mfrs. v. Dep’t of
Labor, 159 F.3d 597, 599 (D.C. Cir. 1998)).
FOIA permits a court to award reasonable attorney fees to
a plaintiff who has “substantially prevailed” in a FOIA action.
5 U.S.C. § 552(a)(4)(E). In Buckhannon, the Supreme Court
interpreted the term “prevailing party” in the fee-shifting
provisions of the Fair Housing Amendments Act of 1988, 42
U.S.C. §§ 3601 et seq., and the Americans With Disabilities Act
of 1990, 42 U.S.C. §§ 12101 et seq. Buckhannon rejected the
catalyst theory under which several circuit courts, including
ours, see, e.g., Chesapeake Bay Found., Inc. v. Dep’t of Agric.,
11 F.3d 211, 216 (D.C. Cir. 1993), had held that “a plaintiff is
a ‘prevailing party’ if it achieves the desired result because the
lawsuit brought about a voluntary change in the defendant’s
conduct,” Buckhannon, 532 U.S. at 601–02. Instead, the Court
held, a plaintiff is a prevailing party only if he has “received a
judgment on the merits” or secured a settlement agreement
enforced by a consent decree. Id. at 605. Thus, a defendant’s
“voluntary change in conduct, although perhaps accomplishing
5
what the plaintiffs sought to achieve by the lawsuit, lacks the
necessary judicial imprimatur on the change.” Id. (emphasis in
original).
We first considered whether the Buckhannon holding
applies to the FOIA fee-shifting provision in Oil, Chemical &
Atomic Workers International Union v. Department of Energy
(OCAW), 288 F.3d 452 (D.C. Cir. 2002). Finding that the
“ ‘substantially prevail’ language in FOIA [is] the functional
equivalent of the ‘prevailing party’ language found in” the
statutes Buckhannon interpreted, we applied the Buckhannon
interpretation of “prevailing party” to FOIA’s attorney fee
provision, holding that “in order for plaintiffs in FOIA actions
to become eligible for an award of attorney 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.” OCAW, 288
F.3d 455–57 (quoting Buckhannon, 532 U.S. at 603); see Union
of Needletrades, Indus. & Textile Employees v. INS, 336 F.3d
200, 206 (2d Cir. 2003) (same).
In OCAW, the OCAW sued the United States Department
of Energy to obtain documents it alleged were improperly
withheld under FOIA. 288 F.3d at 453. The district court
ordered the agency to “complete its record review in 60 days.”
Id. at 458. After completing the search, the agency provided the
plaintiff with the responsive documents and the parties agreed
to dismiss the suit. Id. at 453. The plaintiff then sought attorney
fees, arguing that it had “substantially prevailed.” Id. at 453–54.
We held that the order requiring the agency to search the records
did not constitute court-ordered relief on the merits. Id. at
458–59. We highlighted the order’s interim nature, which was
procedural—conduct a search—as opposed to substantive—
produce documents. Id. at 458. We stated, “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.” Id. Accordingly, OCAW did not obtain
6
relief on the merits because it sought documents, not merely a
search therefor. Id. at 458–59.
In Edmonds, supra, we considered the meaning of FOIA’s
“substantially prevailed” language. Edmonds sued the Federal
Bureau of Investigation (FBI) seeking expedited processing of
her FOIA request as well as documents. Edmonds, 417 F.3d at
1320–21. The plaintiff sought and obtained partial summary
judgment on her expedited processing claim. The district court
ordered the FBI “to complete the expedited processing . . . and
provide plaintiff with all documents as to which no exemption
is being claimed” by a certain date. Id. at 1321 (emphasis
added). After complying with the order, the FBI sought
summary judgment, which motion the district court granted. Id.
Thereafter, Edmonds sought attorney fees and the district court
denied her motion. Id. We reversed, holding that she had
“substantially prevailed.” We differentiated OCAW on the
ground that Edmonds had obtained a court-order on the precise
relief she sought—expedited processing and the production of
responsive documents. Id. at 1323.
Similarly, Davy “substantially prevailed” in this action
when the district court issued the May 4, 2001 order. First, the
order changed the “legal relationship between [the plaintiff] and
the defendant,” Buckhannon, 532 U.S. at 604 (alteration in
original) (internal quotation marks and citation omitted), and,
second, Davy was awarded some relief on the merits of his
claim. With respect to these factors, we see little difference
between Edmonds and Davy. The CIA characterizes the order
as requiring nothing more than a search for documents—and
thereby analogizes the case to OCAW—but the order’s wording
belies the Agency’s interpretation. The order provides Davy
with the precise relief his complaint sought—“mak[ing] the
requested information promptly available.” 1st Am. Compl. at
17, JA 12. It states that the CIA “will provide Plaintiff” with the
responsive documents “if any” by April 30, 2001, May 31, 2001,
7
or July 31, 2001, depending on the documents’ subject matter.
It is almost indistinguishable from the Edmonds order, which
required the FBI to “provide plaintiff with all documents as to
which no exemption is being claimed.” Edmonds, 417 F.3d at
1321. Here, before May 4, 2001, the CIA was not under any
judicial direction to produce documents by specific dates; the
May 4, 2001 order changed that by requiring the Agency to
produce all “responsive documents” by the specified dates. Like
the Edmonds order, the May 4, 2001 order was a “judicially
sanctioned change in the legal relationship of the parties”
because “timely production of nonexempt documents by the
[CIA] could no longer be described as a voluntary change in the
defendant’s conduct.” Id. at 1322–23 (internal quotations and
citations omitted). Once the district court issued the order, Davy
obtained an “enforceable judgment” on the merits of his
complaint. If the Agency failed to comply with the order, it
faced the sanction of contempt. See Edmonds, 417 F.3d at 1323.
We also reject the Agency’s argument that the May 4, 2001
order lacks the requisite “judicial imprimatur.” Buckhannon
tells us that “[i]n addition to judgments on the merits, . . .
settlement agreements enforced through a consent decree may
serve as the basis for an award of attorney’s fees.” 532 U.S. at
604. This is so even if the consent decree does not include an
admission of liability by the defendant because it is nonetheless
a “court-ordered ‘chang[e][in] the legal relationship between
[the plaintiff] and the defendant.’ ” Id. (quoting Tex. State
Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792
(1989)) (alterations in Buckhannon). That the order is styled
“order” as opposed to “consent decree” is of no consequence.
We are persuaded by the Fourth Circuit’s decision in Smyth ex
rel. Smyth v. Rivero, in which the court stated:
We doubt that the Supreme Court’s guidance in
Buckhannon was intended to be interpreted so
restrictively as to require that the words “consent
8
decree” be used explicitly. Where a settlement
agreement is embodied in a court order such that the
obligation to comply with its terms is court-ordered,
the court’s approval and the attendant judicial over-
sight (in the form of continuing jurisdiction to enforce
the agreement) may be equally apparent. We will
assume, then, that an order containing an agreement
reached by the parties may be functionally a consent
decree for purposes of the inquiry to which
Buckhannon directs us, even if not entitled as such.
282 F.3d 268, 281 (4th Cir. 2002). The order here is
functionally a settlement agreement enforced through a consent
decree. On its face, it (1) contains mandatory language (e.g., it
is “ORDERED nunc pro tunc that No later than April 30, 2001,
the CIA will . . .”); (2) is entitled an “ORDER”; and (3) bears
the district judge’s signature, not those of the parties’ counsel.
See Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 165 (3d Cir.
2002).
Because Davy “substantially prevailed” in his FOIA action,
he is eligible to attorney fees under 5 U.S.C. § 552(a)(4)(E).
That is not the end of the matter, however, because the court
must then consider whether he is “entitled” to attorney fees. See
Edmonds, 417 F.3d at 327. In determining whether a
“prevailing” FOIA plaintiff is entitled to fees, the district court
assesses four factors: “(1) the public benefit derived from the
case; (2) the commercial benefit to the plaintiff; (3) the nature
of the plaintiff's interest in the records; and (4) the
reasonableness of the agency’s withholding.” Tax Analysts v.
U.S. Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992).
We review the district court’s determination for abuse of
discretion. Id. at 1094. Meaningful review requires us to
evaluate the district court’s rationale for its holding. See
Copeland v. Marshall, 641 F.2d 880, 901 n.39 (D.C. Cir. 1980)
(en banc) (“It is axiomatic that we cannot identify an
9
unreasonable award unless it is accompanied by a statement of
reasons.”). Here, the district court did not provide any
explanation and we are therefore unable to review its decision.
The parties urge us to decide whether Davy is entitled to
attorney fees.1 Mindful, however, that an “appellate court is not
well situated to assess the course of litigation and the quality of
counsel,” Williams v. First Gov’t Mortgage & Investors Corp.,
225 F.3d 738, 747 (D.C. Cir. 2000), we decline to do so. The
district court is better suited to make the initial determination.
See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (appellate
review of fee determination is to ensure district court“provide[d]
a concise but clear explanation of its reasons for the fee award”).
The district court, unlike the appellate court, “closely monitors
the litigation on a day-to-day basis,” Morgan v. District of
Columbia, 824 F.2d 1049, 1065–66 (D.C. Cir. 1987), by
“presid[ing] at numerous motions, discovery disputes, and
chambers conferences, as well as at the pretrial conference and
trial,” id. at 1066 (alteration in original) (internal quotation
marks and citation omitted); see Hensley, 461 U.S. at 437. If the
district court fails to articulate the basis for its attorney fee
decision, we believe remand for adequate explanation of its
reasoning is in order. See Copeland, 641 F.2d at 901 n.39 (“[A]
remand may be necessary where the District Court awards a fee
without adequately articulating underlying reasons.”).
1
Davy also requested that we “remand the case to the District
Court so that the District Court can determine the amount by
which these fees should be increased in light of the additional
fees incurred on appeal.” Appellant’s Br. at 23. Because he did
not raise the question before us, we do not decide his entitlement
to attorney fees incurred on appeal. Accordingly, on remand he
may raise the issue before the district court for its consideration.
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For the foregoing reasons, we reverse the district court
order and remand for proceedings consistent with this opinion.
So ordered.