Davis v. United States Department of Justice

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 19, 2010 Decided July 6, 2010

No. 09-5189

JOHN DAVIS,

APPELLANT

v.

UNITED STATES DEPARTMENT OF JUSTICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:88-cv-00130-HHK)

James H. Lesar argued the cause and filed the briefs for

appellant. Daniel S. Alcorn entered an appearance.

Jane M. Lyons, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Ronald C.

Machen, Jr., U.S. Attorney, and R. Craig Lawrence,

Assistant U.S. Attorney, Heather Graham-Oliver, Assistant

U.S. Attorney, entered an appearance.

Before: HENDERSON, TATEL and GRIFFITH, Circuit

Judges.

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Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: For forty-four years the

Freedom of Information Act (FOIA) has facilitated public

access to the records of federal agencies. See Pub. L. No. 89-

554, § 552, 80 Stat. 378, 383 (1966) (codified as amended at 5

U.S.C. § 552 (Supp. III 2009)). This case has been pending

for half that time. The appellant, John Davis, filed a FOIA

request with the Department of Justice in 1986, seeking

access to tape recordings made during an FBI investigation of

a New Orleans mob boss. When the Department failed to

produce the recordings, Davis filed this suit. The question in

this appeal—his sixth by our count—is whether the OPEN

Government Act of 2007, Pub. L. No. 110-175, § 4, 121 Stat.

2524, 2525, permits Davis to recoup the attorneys’ fees he

incurred during the protracted litigation that followed. It does

not.

I.

There is no need to linger on the facts and procedural

history of this case; we have unwound that yarn before. See

Davis v. DOJ (Davis IV), 460 F.3d 92 (D.C. Cir. 2006); Davis

v. DOJ (Davis I), 968 F.2d 1276 (D.C. Cir. 1992). The salient

points are that the Department voluntarily released many of

the requested tapes in 1995, one additional tape in 1999, but

nothing more in the decade that followed. The district court

granted summary judgment in favor of the Department in

2007, concluding that it had fulfilled its obligations under

FOIA. Davis v. DOJ, No. 88-00130, 2007 WL 4275512

(D.D.C. Dec. 3, 2007), aff’d, No. 08-5024, Order at 1 (D.C.

Cir. July 31, 2008). Davis then moved for attorneys’ fees.

Section 552(a)(4)(E) of Title 5 makes plaintiffs who have

“substantially prevailed” in FOIA litigation eligible for a

3

recovery of reasonable attorneys’ fees. At one time, lower

courts held that FOIA plaintiffs were eligible for a fee award

if the lawsuit substantially caused the agency to release the

requested records. Our circuit’s interpretation of

§ 552(a)(4)(E) reflected this approach—known as the

“catalyst theory”—when the Department handed its tape

recordings over to Davis in 1995 and 1999. See, e.g., Cuneo v.

Rumsfeld, 553 F.2d 1360, 1364–65 (D.C. Cir. 1977).

But the Supreme Court rejected the catalyst theory in

Buckhannon Board & Care Home, Inc. v. West Virginia

Department of Health & Human Resources, 532 U.S. 598

(2001). Construing two statutes allowing courts to award

attorneys’ fees to the “prevailing party,” the Court held that a

plaintiff whose lawsuit prompts the defendant to voluntarily

change its conduct does not qualify for a fee award. See id. at

600–01. We subsequently concluded that “the existing law of

our circuit must give way” to Buckhannon and held that a

FOIA plaintiff has “substantially prevailed” only if he has

“‘been awarded some relief by [a] court,’ either in a judgment

on the merits or in a court-ordered consent decree.” Oil,

Chem. & Atomic Workers Int’l Union, AFL-CIO v. Dep’t of

Energy (OCAW), 288 F.3d 452, 456–57 (D.C. Cir. 2002)

(quoting Buckhannon, 532 U.S. at 603).

Disapproving of the effect these cases had on the

disclosure policies of administrative agencies, Congress

enacted the OPEN Government Act of 2007 to establish that

the catalyst theory applied in FOIA cases. See Judicial Watch,

Inc. v. FBI, 522 F.3d 364, 370 (D.C. Cir. 2008). Under the

new statute, a plaintiff “substantially prevail[s]” (and is thus

eligible for a fee award) if his suit yields relief in the form of

“a judicial order, or an enforceable written agreement or

consent decree” or “a voluntary or unilateral change in

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position by the agency.” 5 U.S.C. § 552(a)(4)(E)(ii) (Supp. III

2009) [hereinafter 2007 Act].

Prior to the 2007 Act, we determined in Davis IV that

Davis was ineligible for attorneys’ fees under Buckhannon

and OCAW. 460 F.3d at 105–06. We remanded for further

proceedings on the merits, and Davis renewed his fee request

in light of the 2007 Act. A magistrate judge agreed with Davis

that the new statute governed his request for attorneys’ fees

and recommended an award of $112,029.48. The district court

disagreed and denied Davis’s motion. We affirm.

II.

Whether Davis is now eligible for attorneys’ fees is a

question of legislative retroactivity: Does the 2007 Act

resurrect the catalyst theory for cases in which the agency

voluntarily changed its position before the statute’s

enactment? A statute operates retroactively if it “attaches new

legal consequences to events completed before its enactment.”

Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994).

There is a “well-settled presumption” against giving statutes

retroactive effect. Id. at 277. See generally Kaiser Aluminum

& Chem. Corp. v. Bonjorno, 494 U.S. 827, 840–58 (1990)

(Scalia, J., concurring) (tracing the historical development of

the presumption); DANIEL E. TROY, RETROACTIVE

LEGISLATION 25–43 (1998) (same). The presumption

prohibits courts from applying a new provision in a way that

would “‘affect[] substantive rights, liabilities, or duties [on the

basis of] conduct arising before [its] enactment,’” Fernandez-

Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (quoting

Landgraf, 511 U.S. at 278), “unless Congress has clearly

manifested its intent to the contrary,” Hughes Aircraft Co. v.

United States ex rel. Schumer, 520 U.S. 939, 946 (1997).

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Summers v. Department of Justice, 569 F.3d 500 (D.C.

Cir. 2009), largely determined the temporal scope of the 2007

Act. Summers involved a request for attorneys’ fees in a

FOIA lawsuit that was settled in 2005, after OCAW but before

the 2007 Act. See id. at 502. The district court held the

plaintiff ineligible for a fee award under OCAW. Id. The 2007

Act took effect while the appeal was pending, and the plaintiff

asked us to apply the new statute. See id. at 503–04. The

Summers court observed that because the government had

voluntarily relinquished the records, it was not liable for

attorneys’ fees “under the pre-amendment rule of

Buckhannon.” Id. at 503. Applying the new law would

therefore “impose an ‘unforeseeable obligation’ upon the

defendant by exposing it to liability for attorneys’ fees for

which it clearly was not liable before.” Id. at 504 (quoting

Landgraf, 511 U.S. at 278). Moreover, the court found that

the text of the 2007 Act was “silent with regard to its temporal

reach,” and that its legislative history contained “no evidence

of a ‘clear congressional intent favoring [retroactive

application].’” Id. (quoting Landgraf, 511 U.S. at 280).

Absent clear instructions from Congress, the Summers court

declined to apply the 2007 Act retroactively.

Davis contends Summers was wrongly decided.

Summers, of course, is the law of the circuit, and “[o]ne three-

judge panel . . . does not have the authority to overrule

another three-judge panel of the court.” LaShawn A. v. Barry,

87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc); see also Davis

IV, 460 F.3d at 106. Davis’s arguments that Summers is not

binding are without merit. Accordingly, we turn to his two

attempts to distinguish the case.

First, Davis argues that the 2007 Act would not operate

retroactively here because the statute simply reinstates the

standard this court applied when the Department voluntarily

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released the tapes in 1995 and 1999. The government could

not foresee its potential liability for fees in Summers because

it settled the case after Buckhannon and OCAW. By contrast,

when the government disclosed the tapes in this case, it could

expect to pay attorneys’ fees under the catalyst theory. At

least in these circumstances, Davis contends, the 2007 Act

restores but does not “‘increase a party’s liability for past

conduct,’” Summers, 569 F.3d at 504 (quoting Landgraf, 511

U.S. at 280) (emphasis added), and therefore is not

impermissibly retroactive.

The Supreme Court recognized the “equitable appeal” of

this line of argument in Rivers v. Roadway Express, Inc., 511

U.S. 298, 310 (1994), but ultimately rejected it. At issue in

Rivers, the companion case to Landgraf, was a provision of

the Civil Rights Act of 1991 that “overruled” the Supreme

Court’s holding in Patterson v. McLean Credit Union, 491

U.S. 164 (1989), that 42 U.S.C. § 1981 did not provide a

cause of action for discriminatory termination. See Rivers,

511 U.S. at 304–05, 306–07. The plaintiffs in Rivers were

fired before the Court decided Patterson, at a time when

circuit precedent would have allowed their claims to go

forward. See id. at 309 n.9. But when the plaintiffs invoked

the 1991 Act on appeal, the Court rejected their argument

“that restorative statutes do not implicate fairness concerns

relating to retroactivity . . . when . . . the new statute simply

enacts a rule that the parties believed to be the law when they

acted.” Id. at 309; see id. at 309–13. “Even when Congress

intends to supersede a rule of law embodied in one of our

decisions with what it views as a better rule established in

earlier decisions,” the Court explained, “its intent to reach

conduct preceding the ‘corrective’ amendment must clearly

appear.” Id. at 313.

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Rivers forecloses Davis’s argument. It does not matter

that Davis “substantially prevailed prior to this Court’s

decision in [OCAW].” Appellant’s Br. at 2. Although our pre-

OCAW decisions endorsed the catalyst theory for attorneys’

fees under FOIA, the Supreme Court in Buckhannon made

clear that our circuit and others had gotten it wrong. OCAW,

288 F.3d at 454–57; accord Zarcon, Inc. v. NLRB, 578 F.3d

892, 894–95 (8th Cir. 2009); Or. Nat’l Desert Ass’n v. Locke,

572 F.3d 610, 617–18 (9th Cir. 2009); Union of Needletrades,

Indus. & Textile Employees, AFL-CIO v. INS, 336 F.3d 200,

203–07 (2d Cir. 2003). Buckhannon, moreover, did not apply

only to future conduct. While legislation is presumptively

prospective, judicial decisions are typically retrospective. See

United States v. Sec. Indus. Bank, 459 U.S. 70, 79 (1982)

(“The principle that statutes operate only prospectively, while

judicial decisions operate retrospectively, is familiar to every

law student.”); see, e.g., Harper v. Va. Dep’t of Taxation, 509

U.S. 86, 94–99 (1993); INS v. St. Cyr, 533 U.S. 289, 316–17

(2001). Because “[a] judicial construction of a statute is an

authoritative statement of what the statute meant before as

well as after the [court’s] decision,” Rivers, 511 U.S. at 312–

13, “Buckhannon controls” the meaning of the FOIA

attorneys’ fees provision from the time of the statute’s

enactment until its amendment in 2007, OCAW, 288 F.3d at

457. Therefore, in “ask[ing] whether the new provision

attaches new legal consequences to events completed before

its enactment,” Landgraf, 511 U.S. at 269–70, we must

measure the 2007 Act against our post-Buckhannon

interpretation of the statute and not the decisions that came

before. See Rivers, 511 U.S. at 313 (explaining that Patterson,

rather than earlier circuit precedent, “provides the baseline for

[the Court’s] conclusion that the [new statute] would be

‘retroactive’ if applied to cases arising before [the statute’s

effective] date”); see also AT&T Corp. v. Hulteen, 129 S. Ct.

1962, 1971 n.5 (2009). Prior to the 2007 Act, the legal

8

consequences of the Department’s voluntary release of the

tapes—as determined by Buckhannon and OCAW—did not

include liability for attorneys’ fees. See Davis IV, 460 F.3d at

105–06. Because reliance on the 2007 Act would give rise to

liability for attorneys’ fees where none existed before,

Summers precludes its application.

Davis’s second effort to distinguish Summers rests on the

fact that the magistrate judge in this case found that Davis

was entitled to attorneys’ fees. He notes that in Summers

“there [was] no indication the district court would have

awarded fees had it the statutory authority or equitable power

to do so.” 569 F.3d at 504. Davis lifts the Summers court’s

language out of context. In making this observation, the court

was distinguishing Bradley v. School Board of Richmond, 416

U.S. 696 (1974), and the passage can be understood only

against that backdrop.

The plaintiffs in Bradley were a group of parents who

brought a class action to desegregate the public schools in

Richmond, Virginia. Id. at 699. After they prevailed in the

district court, they were awarded attorneys’ fees. Id. at 705–

06. “Noting the absence at the time of any explicit statutory

authorization for an award of fees in school desegregation

actions, the court based the award on two alternative grounds

rooted in its general equity power.” Id. at 706 (internal

citation omitted); see also id. at 705–10. While the appeal was

pending, Congress enacted the Emergency School Aid Act,

Pub. L. No. 92-318, § 718, 86 Stat. 235, 369 (1972), which

expressly authorized such fee awards. Holding that the new

statute governed and lacked retroactive effect under these

circumstances, the Bradley Court explained that the statute

did “not impose an additional or unforeseeable obligation” on

the school board because the board had acted “with the

knowledge that, under different theories, . . . [it] could have

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been required to pay attorneys’ fees.” Bradley, 416 U.S. at

721. As the Supreme Court later explained, the statute at issue

in Bradley did not have impermissible retroactive effects “[i]n

light of the prior availability of a fee award, and the likelihood

that fees would be assessed under pre-existing theories.”

Landgraf, 511 U.S. at 278; see Martin v. Hadix, 527 U.S. 343,

359–60 (1999).

What distinguishes Bradley—and by implication

Summers—is the “prior availability” of attorneys’ fees “under

pre-existing theories.” Landgraf, 511 U.S. at 278; see

Bradley, 416 U.S. at 721. The statute at issue in Bradley did

not operate retroactively because the “extent of the change in

the law” was negligible. Landgraf, 511 U.S. at 270. Davis,

unlike the Bradley plaintiffs, was not eligible for attorneys’

fees before Congress enacted the relevant statute. See Davis

IV, 460 F.3d at 105–06. Although the magistrate judge found

Davis entitled to a fee award, he did so only after applying the

2007 Act retroactively—wrongly as it turns out. He did not

rely on any pre-existing authority. In any event, the

magistrate’s legal error has no bearing on our own

retroactivity analysis.

III.

The decision of the district court is

Affirmed.