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

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 7, 2002 Decided May 10, 2002

No. 01-5163

Oil, Chemical and Atomic Workers

International Union, AFL-CIO, and

James K. Phillips, Jr., Vice President of

Oil, Chemical and Atomic Workers

International Union, AFL-CIO,

Appellees

v.

Department of Energy,

Appellant

Appeal from the United States District Court

for the District of Columbia

(98cv01670)

Douglas Hallward-Driemeier, Attorney, U.S. Department

of Justice, argued the cause for appellant. With him on the

briefs were Roscoe C. Howard, Jr., U.S. Attorney, and Leon-

ard Schaitman, Attorney, U.S. Department of Justice.

Daniel Guttman argued the cause for appellees. With him

on the brief were Brian P. McCafferty, Reuben A. Guttman

and Traci L. Buschner.

Before: Randolph and Rogers, Circuit Judges, and

Williams, Senior Circuit Judge.

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. s 552, and the Govern-

ment in the Sunshine Act, 5 U.S.C. s 552b. The question is

whether Buckhannon Bd. & Care Home, Inc. v. West Virgi-

nia Dep't of Health & Human Res., 532 U.S. 598 (2001),

decided while this appeal was pending, applies to FOIA cases.

I.

Congress created the United States Enrichment Corpora-

tion ("USEC") to operate uranium enrichment plants in the

country. See 42 U.S.C. s 2297a (1992). There are two such

facilities, one in Kentucky, the other in Ohio. The Oil,

Chemical, and Atomic Workers International Union repre-

sented 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. s 2297h).

Concerned that privatization would affect its members' em-

ployment, the union sought information about what was

planned. USEC refused to provide the information voluntari-

ly. 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. s 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 juris-

diction 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 stipula-

tion.

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 pay-

ment 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.

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 pre-

vailed." 5 U.S.C. s 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 plaintiff's 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.

Before the district court ruled, the state legislature repealed

the provisions. See id. at 601. 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's rejec-

tion 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, 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.

s 552a(g)(2)(B) (Privacy Act); 5 U.S.C. s 552b(i) (Govern-

ment in the Sunshine Act); 15 U.S.C. s 26 (Clayton Act); 16

U.S.C. s 470w-4 (National Historic Preservation Act); 28

U.S.C. s 2465(b)(1) (return of forfeited or condemned proper-

ty); 42 U.S.C. s 300aa-31(c) (National Vaccine Injury Com-

pensation 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). Buckhan-

non 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 consistent-

ly," 532 U.S. at 603 & n.4 (citing Marek v. Chesny, 473 U.S. 1,

43-51 (1985) (Appendix to opinion of Brennan, J., dissenting);

Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983)). Five

circuits have applied Buckhannon to other fee-shifting stat-

utes. See, e.g., Smyth v. Rivero, 282 F.3d 268, 274-76 (4th

Cir. 2002) (42 U.S.C. s 1988); Perez-Arellano v. Smith, 279

F.3d 791, 794 (9th Cir. 2002) (Equal Access to Justice Act, 28

U.S.C. s 2412(d)(1)(A)); J.C. v. Reg'l Sch. Dist. 10, 278 F.3d

119, 124 (2d Cir. 2002) (Individuals with Disabilities in Edu-

cation Act, 20 U.S.C. s 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. s 1988);

Chambers v. Ohio Dep't of Human Servs., 273 F.3d 690, 693

& n.1 (6th Cir. 2001) (42 U.S.C. s 1983); Crabill v. Trans

Union, L.L.C., 259 F.3d 662, 667 (7th Cir. 2001) (Fair Credit

Reporting Act, 15 U.S.C. ss 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.

ss 3613(c)(2) & 12205, and FOIA, which allows fees if "the

complainant has substantially prevailed." 5 U.S.C.

s 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. 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 (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. s 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 equita-

ble 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. s 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. In the Court's

view, policy arguments could not carry the day because the

meaning of "prevailing party" was clear. See id. at 610.

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 provi-

sions 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 plaintiff's 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 condi-

tioned eligibility on the government's not prevailing. See id.

The Senate bill contained the "substantially prevailed" lan-

guage, along with a list of factors for the court to consider in

determining whether to make an award. See id. The accom-

panying 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 confer-

ence, 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 provi-

sions allowing fees for a "prevailing party," which further

supports treating FOIA no differently than the statutes inter-

preted in Buckhannon. See H.R. Rep. No. 93-876 (1974),

reprinted in Legislative History of the Freedom of Informa-

tion Act, 1974 Amendments 126-27 & n.10 (1975); S. Rep. No.

93-854 (1974), reprinted in Legislative History, supra, at

170.

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. 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 (1991), a case arising

under 42 U.S.C. s 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 be-

came 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 docu-

ments 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 Depart-

ment 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, "[s]ubject 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[ed] 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 final-

ly.").

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 stipu-

lated and agreed as follows by and between the under-

signed:

1. In light of defendant's production of substantial

amounts of material responsive to plaintiff's claim for

relief in this action, the action is hereby dismissed with

prejudice and, except as provided in p 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. By this term, the Supreme Court meant "a court

'ordered chang[e] [in] the legal relationship between [the

plaintiff] and the defendant.' " Id. (quoting Tex. State Teach-

ers Ass'n, 489 U.S. at 792); 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

(quoting Tex. State Teachers Ass'n, 489 U.S. at 792-93). The

discussion in Buckhannon 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; id. at 622

(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 repre-

sent "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 (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 stipu-

lated 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. 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. Hamp-

ton, 446 U.S. 754, 758 (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. 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 obli-

gation to do so. Both before and after August 23 the district

court did not disallow any of the Energy Department's justifi-

cations 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

(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 result-

ing in the relief the union sought. Even if the dissent's

assessment had any proof behind it (it seems equally plausi-

ble 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. 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.

Rogers, Circuit Judge, dissenting: Today the court decides

whether the Supreme Court's decision in Buckhannon Board

and Care Home, Inc. v. West Virginia Department of Health

and Human Resources, 532 U.S. 598 (2001), applies to suits

for attorney's fees under the Freedom of Information Act

("FOIA"). See Opinion at 2. Even assuming that the answer

to this question is in the affirmative, there are two separate

problems with the court's opinion. The first involves the

suggestion that the Supreme Court's decision in Buckhannon

bars attorney's fees in the absence of a final judgment on the

merits or a consent decree embodying a settlement. To

reach this interpretation of Buckhannon, the court, contrary

to the other circuits, glosses over the holding and underlying

rationale of Buckhannon. The second problem arises from

the court's failure to acknowledge the plain terms of the

district court's order to the government to turn over docu-

ments that Oil, Chemical and Atomic Workers International

Union ("OCAW") sought under FOIA and that the govern-

ment had previously withheld.

I.

The holding and rationale of the Supreme Court in Bu-

ckhannon is hardly as broad as some of the court's language

today suggests. The Supreme Court stated its holding as

follows: "[W]e hold that the 'catalyst theory' is not a permis-

sible basis for the award of attorney's fees under the [Fair

Housing Amendments Act of 1988], 42 U.S.C. s 3613(c)(2),

and [the Americans with Disabilities Act of 1990], 42 U.S.C.

s 12205." Buckhannon, 532 U.S. at 610. The reasons that

the Court gave were as follows. The Court first noted that

the term "prevailing party" is a legal term of art that means

"one who has been awarded some relief by the court." Id. at

603. The Court then explained that its precedent was consis-

tent with this meaning. Reviewing its previous decisions

addressing the meaning of "prevailing party," the court ex-

plained that in addition to a judgment on the merits by the

court, see id. at 603-04 (citing Hanrahan v. Hampton, 446

U.S. 754, 758 (1980) (per curiam); Hewitt v. Helms, 482 U.S.

755, 760 (1987); and Farrar v. Hobby, 506 U.S. 103 (1992)),

settlement agreements enforced through a court-ordered con-

sent decree may also serve as the basis for an award of

attorney's fees. Id. at 604 (citing Maher v. Gagne, 448 U.S.

122 (1980)). Although consent decrees need not contain a

defendant's admission of liability, the Court viewed them as 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 the original). The Court also

distinguished consent decrees from private settlements, not-

ing that "[p]rivate settlements do not entail the judicial

approval and oversight involved in consent decrees[, a]nd

federal jurisdiction to enforce a private contractual settlement

will often be lacking unless the terms of the agreement are

incorporated into the order of dismissal." Id. at 604 n.7

(citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375 (1994)).

Finding a common thread in its precedent, the Court in

effect established a line: a party prevails only upon obtaining

a "judicially sanctioned change in the legal relationship of the

parties." Id. at 605. On one side of the line, the Court

observed that its precedent reveals that "enforceable judg-

ments on the merits and court-ordered consent decrees create

the 'material alteration of the legal relationship of the parties'

necessary to permit an award of attorney's fees." Id. at 604

(quoting Tex. State Teachers Ass'n, 489 U.S. at 792-93). The

Court then held that the " 'catalyst theory' falls on the other

side of the line from these examples" because "[i]t allows an

award where there is no judicially sanctioned change in the

legal relationship of the parties." Id. at 605. The Court

explained that "[a] defendant's voluntary change in conduct,

although perhaps accomplishing what the plaintiff sought to

achieve by the lawsuit, lacks the necessary judicial imprima-

tur on the change." Id.

The Supreme Court's holding and rationale in Buckhannon

do not limit attorney's fees awards to cases in which there is

either a final judgment on the merits or a consent decree.

Rather than define these two forms of relief as the only

instances in which there could be a "prevailing party" for

purposes of recovering attorney's fees, the Court used these

forms of relief as discrete examples, illustrated by its prece-

dent, in which the need for "judicial imprimatur on the

change" in the parties' legal relationship is present. Id. As

the factual setting before the Supreme Court makes clear, the

Court did not have the occasion to provide an exhaustive list

of the various forms of judicial relief that the plaintiff must

obtain in order to be a "prevailing party" for purposes of an

award of attorney's fees. In Buckhannon, the petitioner's

suit for declaratory and injunctive relief coincided with the

State legislature's subsequent repeal of the allegedly offend-

ing statute, and the district court thereafter dismissed the

lawsuit as moot. Id. at 601. There was no judicial involve-

ment in the resolution of the litigation. Petitioners, however,

sought attorney's fees as prevailing parties under the FHAA

and the ADA on the theory that the lawsuit had served as a

catalyst of the repeal. Id. Not having any occasion to

consider the precise contours of the necessary judicial impri-

matur on the change in the legal relationship of the parties,

the Supreme Court did not need to, and in fact did not, seize

the opportunity to explain more than that the "catalyst theo-

ry" as applied on the facts before the Court -- where there

was no judicial involvement in the resolution -- was not

enough.

Indeed, the Supreme Court's review of its precedents dem-

onstrates that the Court did not establish a finite list of the

forms of judicial relief that are necessary to "prevail." Rath-

er, as described by the Court, on one side of the line, where

there is a "prevailing party" for purposes of recovering

attorney's fees, is precedent holding that judgments on the

merits and consent decrees are sufficient to give rise to

prevailing party status. See id. at 605-06 (discussing Farrar,

506 U.S. at 112; and Maher, 448 U.S. at 129-30). On the

other side of the line, the Court, again looking to its prece-

dent, indicated only that preliminary victories such as with-

standing a motion for a directed verdict or a motion for

summary judgment for failure to state a cause of action were

insufficient. Id. at 605-06 (citing Hewitt, 482 U.S. at 760;

and Hanrahan, 446 U.S. at 759). Although the Court in

Buckhannon only specifically listed a judgment on the merits

or a court-ordered consent decree as examples on the other

side of the prevailing party line, id. at 606 (citing Farrar, 506

U.S. at 112; and Maher, 448 U.S. at 129-30), attorney's fees

could be awarded in other circumstances. For example, two

members of the majority noted that court-approved settle-

ments in addition to consent decrees bore the necessary

judicial imprimatur. Id. at 618 (Scalia, J., concurring, joined

by Thomas, J.). Additionally, in Hanrahan, cited with ap-

proval in Buckhannon, the Court acknowledged that "[t]he

legislative history of the Civil Rights Attorney's Fees Awards

Act of 1976 [s 1988] indicates that a person may in some

circumstances be a 'prevailing party' without having obtained

a favorable 'final judgment following a full trial on the mer-

its.' " Hanrahan, 446 U.S. at 756-57 (quoting H.R. Rep. No.

94-1558, at 7 (1976)). The House Committee Report indicat-

ed that Congress had adopted the approach that the Court

had taken in Bradley v. Richmond School Board, 416 U.S.

696 (1974), in which the Court stated that " 'the entry of any

order that determines substantial rights of the parties may be

an appropriate occasion upon which to consider the propriety

of an award of counsel fees....' " Hanrahan, 446 U.S. at

757 (quoting H.R. Rep. No. 94-1558, at 8 (quoting Bradley,

416 U.S. at 723 n.28)). The Senate Committee Report stated

that "the award of counsel fees pendente lite would be

'especially appropriate where a party has prevailed on an

important matter in the course of litigation, even when he

ultimately does not prevail on all issues.' " Id. (quoting

S. Rep. No. 94-1011, at 5 (1976)). From this history, the

Court concluded:

It seems apparent from these passages that Congress

intended to permit the interim award of counsel fees only

when a party has prevailed on the merits of at least some

of his claims. For only in that event has there been a

determination of the "substantial rights of the parties,"

which Congress determined was a necessary foundation

for departing from the usual rule in this country that

each party is to bear the expense of his own attorney.

Id. at 757-58. Nothing in Buckhannon suggests that the

Court has overruled this precedent; rather, the Court only

clarified that the catalyst theory fell on the other side of the

line of this precedent.

The circuits that have addressed Buckhannon have not

read it to be as broad a bar to attorney's fees as the court

suggests today. Several circuits have confronted a pure

catalyst theory claim and naturally read Buckhannon to bar

such awards of attorney's fees, notwithstanding the fee provi-

sion at issue. See, e.g., Perez-Arellano v. Smith, 279 F.3d

791, 795 (9th Cir. 2002) (Equal Access to Justice Act, 28

U.S.C. s 2412(d)(1)(A)); Chambers v. Ohio Dep't of Human

Servs., 273 F.3d 690, 693 (6th Cir. 2001) (Civil Rights Act, 42

U.S.C. s 1988). However, when confronted with a private

settlement, the Ninth Circuit in Barrios v. California Inter-

scholastic Federation, 277 F.3d 1128 (9th Cir. 2002) (Ameri-

cans with Disabilities Act of 1990, 42 U.S.C. s 12205), upheld

the award in light of circuit precedent and limited Buckhan-

non's holding to the rejection of the catalyst theory, describ-

ing as mere dictum the Supreme Court's rejection of private

settlements as sufficient to provide prevailing party status.

Id. at 1134 n.5. See also Johnson v. District of Columbia,

190 F. Supp. 2d 34, 45 & n.3 (D.D.C. 2002) (Individuals with

Disabilities Education Act, 20 U.S.C. s 1415(i)(3)(B)). But

see Perez-Arellano, 279 F.3d at 793-94 (Equal Access to

Justice Act, 28 U.S.C. s 2412(d)(1)(A)).

Other circuits, taking a less narrow reading of Buckhannon

than the Ninth Circuit, have nonetheless recognized that

Buckhannon has a limited holding in two respects. First, the

circuits have looked at the particular attorney's fees statute

at issue to determine whether Buckhannon's interpretation of

"prevailing party" applies. For example, the Tenth Circuit in

Center for Biological Diversity v. Norton, 262 F.3d 1077 (10th

Cir. 2001), declined to apply Buckhannon to the attorney's

fees provision of the Endangered Species Act, 16 U.S.C.

s 1540(g)(4), which did not require that there be a "prevailing

party" and left the decision to award fees to the discretion of

the district court. Id. at 1080 n.2. Other circuits considering

other statutes have also treated this as a threshold question

in applying Buckhannon's reasoning. In Crabill v. Trans

Union, L.L.C., 259 F.3d 662 (7th Cir. 2001), for example, the

Seventh Circuit concluded upon examining the text, structure,

and legislative history of the Fair Credit Reporting Act, 15

U.S.C. ss 1681o & 1681n, that the reasoning of Buckhannon

applied. Id. at 666-67. The Federal Court of Claims, in

Brickwood Contractors, Inc. v. United States, 49 Fed. Cl. 738

(2001), on the other hand, limited Buckhannon to the statutes

cited by the Court and declined to apply Buckhannon to the

Equal Access to Justice Act. Id. at 744-47.

Second, the circuits have looked beyond whether the relief

obtained was either a judgment on the merits or a consent

decree and instead have looked for action compelled by the

court, focusing on the underlying concern of the Supreme

Court in Buckhannon that there be some "judicial imprima-

tur on the change" in the parties' legal status. As the

Seventh Circuit explained in Crabill in rejecting a claim of

entitlement to attorney's fees in the absence of any judicially

ordered relief, "[t]he significance of the Buckhannon decision

... [is] its insistence that a plaintiff must obtain formal

judicial relief, and not merely 'success,' in order to be deemed

a prevailing or successful party under any attorneys' fee

provision comparable to the civil rights attorneys' fee stat-

ute." Crabill, 259 F.3d at 666. Thus, the Second Circuit in

J.C. v. Regional School District 10, Board of Education, 278

F.3d 119 (2d Cir. 2002), in addressing fee awards under the

Individuals with Disabilities Education Act, 20 U.S.C.

s 1415(i)(3)(B), and the Rehabilitation Act of 1973, 29 U.S.C.

s 794a(b), considered whether the relief received by the

plaintiff was more akin to a judicial consent decree or a

private settlement, and concluded that statutorily required

relief could not be a substitute for a judicial order or decree

under Buckhannon. Id. at 125. Likewise, the Fourth Cir-

cuit in Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002), applying

s 1988, considered whether the two forms of relief obtained

by the plaintiff constituted sufficient judicial relief to trigger

prevailing party status in Buckhannon by examining on

which side of the Buckhannon line the relief fell. Id. at 274-

75. Concluding that the preliminary injunction plaintiffs

obtained was more akin to the judicial relief deemed inade-

quate in Buckhannon because it was a "preliminary, incom-

plete ... merits examination," id. at 277, the Fourth Circuit

examined whether an agreement between the parties that

was referenced in the district court's final order of dismissal

was sufficient to show entitlement to attorney's fees. Id. at

273-74, 284. Observing that Buckhannon indicated that "a

determination of 'legal merit' is necessary for an award of

attorney's fees," id. at 281 (quoting Buckhannon, 532 U.S. at

605), and that the Supreme Court's focus was on "judicial

approval and oversight involved in consent decrees," id. at

281-82 (quoting Buckhannon, 532 U.S. at 604 n.7) (internal

quotation marks omitted), the Fourth Circuit declined to read

Buckhannon "so restrictively as to require that the words

'consent decree' be used explicitly," and instead concluded

that an order containing an agreement of the parties may be

the functional equivalent of a consent decree for purposes of

the Buckhannon inquiry. Id. at 281. The court concluded

that the district court's order of dismissal was insufficient,

however, because the order did not entail a judicially enforced

obligation to comply with the terms of the agreement: it

neither stated that the court retained jurisdiction to enforce

the parties' agreement nor compelled compliance with the

terms agreed to by the parties. Id. at 284. Rather, the court

concluded, the findings in the final order were "most properly

read as noting and reciting the agreement ... as a compo-

nent of its analysis of the mootness of the case...." Id.

Similarly, in a case that is closest factually to the instant case,

the First Circuit in New England Regional Council of Car-

penters v. Kinton, 284 F.3d 9 (1st Cir. 2002), also applying

s 1988, examined whether the appropriate judicial imprima-

tur on the relief was present. In Kinton, the answer turned

on whether the district court had ordered the respondent to

revise its regulations, the relief that the plaintiff sought in

court. Id. at 30. Proceeding on the assumption that some-

thing other than a final judgment or consent decree sufficed

for the judicial imprimatur required by Buckhannon, the

First Circuit concluded upon review of the district court

transcript that, although the district court had discussed the

possibility of ordering the defendant to amend its regulations,

"the [district] court eschewed an order and gave [the defen-

dant] sixty days within which to decide what (if anything) it

wished to do, reserving the possibility that the court might

enter an order at a later date." Id. at 30. Under the

circumstances, the First Circuit held that:

The district court did not compel [the defendant] to

adopt the regulations. Under the Buckhannon rule, that

ends the matter. Because the district court entered no

explicit order compelling, or even leading to, [the defen-

dant's] adoption of the regulations, we cannot say that

the district court's refusal to award attorneys' fees con-

stituted an abuse of discretion.

Id. at 30.

The few district court opinions to have addressed Buckhan-

non likewise take the position that as long as a party has

obtained some judicial relief more akin to a consent decree

rather than a private settlement, the Buckhannon test is

satisfied. The district court in Aynes v. Space Guard Prod-

ucts, Inc., 201 F.R.D. 445 (S.D. Ind. 2001), concluded that

although an accepted offer of judgment under Federal Rule

of Civil Procedure 68 was "neither a judgment on the merits

nor a court-ordered consent decree," it satisfied the Buckhan-

non test because it was both "enforceable against [the] De-

fendant by this court unlike the resolution effected by a

private settlement" and "caused a material alteration of the

legal relationship of the parties." Id. at 450-51. Similarly, in

Johnny's Icehouse, Inc. v. Amateur Hockey Association of

Illinois, No. 00-7363, 2001 WL 893840 (N.D. Ill. Aug. 7,

2001), the court refused to limit unduly the concept of court-

ordered consent decrees and concluded that an order incorpo-

rating a settlement was sufficient under Buckhannon. Id. at

*3. Likewise, in National Coalition for Students with Dis-

abilities v. Bush, 173 F. Supp. 2d 1272 (N.D. Fla. 2001), the

district court evaluated whether a settlement was the func-

tional equivalent of a consent decree, constituting the neces-

sary judicially-sanctioned change in the legal relationship

between the parties to satisfy Buckhannon, id. at 1278-79,

and concluded that it was because it was incorporated by

reference into a court order in which the court retained

jurisdiction to enforce its terms. Id.

The court today properly begins by addressing whether

Buckhannon's reasoning applies to attorney's fees suits under

FOIA, but gives short shrift to Buckhannon's reasoning and

glosses over whether the relief obtained by OCAW was

compelled by the district court. Although the court uses

language that would suggest that Buckhannon is a bar to

attorney's fees regardless of the nature of the judicial action

short of a final judgment or a consent decree, see Opinion at

8, Buckhannon and the decisions interpreting it make clear

that there is no principled basis for this suggestion. What is

key under Buckhannon is whether the particular relief ob-

tained results in a material change in the legal relationship of

the parties that bears the necessary judicial imprimatur. The

court's failure to come to grips with Buckhannon's holding

and rationale is only possible because of the second problem

in the court's opinion.

II.

Buckhannon indicates that to be a "prevailing party" one

must obtain a change in the legal relationship of the parties

that bears the necessary judicial imprimatur and cited as

examples a judgment on the merits or a court-ordered con-

sent decree. Buckhannon, 532 U.S. at 605; see also id. at

622 (Scalia, J., concurring). Because the question put to this

court under Buckhannon is whether OCAW obtained a

change in the legal relationship with the government that

bears the necessary judicial imprimatur, the court's failure to

address the district court's orders in the record with any

particularity is inexplicable. OCAW, which is the appellee,

pointed out during oral argument in response to the govern-

ment's argument that the district court did not grant OCAW

any of its requested relief, that the final resolution "did not

emerge out of thin air" but resulted because on August 23,

1999 "the [district] court ordered ... the defendant ... [to]

cause a search to be made ... and release to plaintiffs all

records thus retrieved" and thus "the court was intimately

involved in approving the settlement." An examination of the

record makes clear that OCAW in fact obtained judicially

sanctioned legal relief akin to a consent decree and hence

sufficient to meet the Buckhannon test.

Overlooked almost in its entirety is the district court's

August 23, 1999 Stipulation and Order. The court's recitation

of the factual background ignores the August 23 Order.

When the court finally refers to the August 23 Order it

misrepresents and confuses its contents and mischaracterizes

it as a "report." Opinion at 9. Contrary to the court's

assertion, there is no indication in the August 23 Order that

the government had provided "most of the materials" re-

quested by OCAW. Opinion at 9. Although the August 23

Order resulted in the dismissal of OCAW's requests for some

records, the order addressed other documents that the gov-

ernment refused to turn over to OCAW despite its FOIA

request. In light of the plain terms of the August 23 Order,

it cannot fairly be described as a "report." Rather, the

court's characterization of the August 23 Order as the "par-

ties' second report," Opinion at 9, reveals the court's confu-

sion of this order with the parties' actual second report, dated

November 8, 1999, which is titled "Second Joint Report."

The August 23 Order, by contrast, is titled "Stipulation and

Order" and consists of two parts: (1) the district court's

identification of various documents that OCAW sought and

that the government had refused to release; and (2) the

district court's order to the government to search for and

release those documents (subject to applicable FOIA exemp-

tions) within 60 days. The district court signed the "Stipula-

tion and Order" stating "Approved And So Ordered." As the

parties themselves stated in their second report of November

8, 1999, "[b]y stipulation and order dated and filed August 23,

1999, the Court directed defendant to search for certain

records and to release to plaintiffs 'all records thus retrieved

except those records or portions of records determined to

merit continued withholding under applicable law....' " Sec-

ond Joint Report, Nov. 8, 1999 (quoting Stipulation & Order,

Aug. 23, 1999, at p 2) (emphasis added). The second report of

November 8 also indicated that the government had complied

with the terms of the August 23 Order.

The existence of the August 23 Order directing the govern-

ment to release documents that OCAW had sought and the

government had previously withheld is a judicially sanctioned

victory on the merits; the release of withheld documents is

the whole point of a FOIA lawsuit. See 5 U.S.C.

s 552(a)(4)(B) (2000); Students Against Genocide v. Dep't of

State, 257 F.3d 828, 841 (D.C. Cir. 2001). The court recog-

nizes as much when it notes that "[h]ad the December 10

stipulation between [OCAW] and the Energy Department

outlined documents the government still needed to disclose to

the union, matters might be different." Opinion at 10-11.

But this is precisely what the August 23 Order provided. As

a result of the August 23 Order, there is an undeniable

change in the legal relationship of the parties: the district

court ordered the government to release documents that it

previously refused to produce upon OCAW's request. In

addition, the relief obtained by OCAW in the August 23

Order bore the necessary judicial imprimatur: unlike a pri-

vate settlement or resolution through negotiations by the

parties, here, the district court's order recited the terms of

the parties' negotiations and ultimate agreement so that the

August 23 Order had elements of both "judicial approval and

oversight involved in consent decrees." Buckhannon, 532

U.S. at 604 n.7. After the August 23 Order, the government

was under an enforceable court-ordered legal obligation to

release the identified documents, potentially facing a con-

tempt citation for failure to comply. See 5 U.S.C.

s 552(a)(4)(G). The August 23 Order is thus a material

alteration of the legal relationship of the parties bearing the

necessary judicial imprimatur and hence satisfying Buckhan-

non. To reach a contrary conclusion the court is forced to

rely on factual assertions that are unsupported by the record,

to attack a theory that appears nowhere in this separate

opinion, and to ignore both the "judicial relief" that OCAW in

fact obtained and the arguments that OCAW in fact made on

appeal.

For these reasons, I conclude that in light of the district

court's August 23, 1999 Stipulation and Order directing the

government to release documents previously withheld after

being requested pursuant to FOIA, OCAW has satisfied the

Buckhannon test because there has been a judicially sanc-

tioned " 'material alteration of the legal relationship of the

parties' necessary to permit an award of attorney's fees."

Buckhannon, 532 U.S. at 604 (quoting Tex. State Teachers

Ass'n, 489 U.S. at 792-93). A remand is nonetheless re-

quired, for although the district court ruled that the govern-

ment withheld "numerous categories of documents ... with-

out any legal basis for doing so," the record is unclear

whether the district court would have reached the same

decision considering only the documents OCAW obtained

pursuant to the August 23 Order. On remand, the district

court would determine OCAW's entitlement to attorney's

fees, see Chesapeake Bay Found., Inc. v. U.S. Dep't of Agric.,

11 F.3d 211, 216 (D.C. Cir. 1993), and if necessary, proportion

the amount of attorney's fees previously awarded that are

attributable to OCAW's efforts to obtain the documents that

the government produced pursuant to the August 23, 1999

Order. Accordingly, I respectfully dissent.