Summers v. Department of Justice

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 2008 Decided June 26, 2009

No. 07-5315

ANTHONY SUMMERS,

APPELLANT

v.

DEPARTMENT OF JUSTICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 98cv01837)

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

appellant.

Darrell C. Valdez, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jeffrey A.

Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.

Attorney.

Before: GINSBURG and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge: Anthony Summers brought

this action to obtain certain records from the Federal Bureau

of Investigation pursuant to the Freedom of Information Act.

In 2005, after Summers and the Government had settled the

case, Summers sought an award of attorneys’ fees. The

district court denied Summers’s request because, having

settled, he could not be said to have “substantially prevailed”

in the case and was therefore ineligible to receive an award

under the FOIA. Summers argues the amendment to the

FOIA in the OPEN Government Act of 2007 applies

retroactively, thereby making him eligible to recover

attorneys’ fees. We hold the 2007 Act does not apply

retroactively and affirm the judgment of the district court

denying Summers’s fee request.

I. Background

Summers sought from the FBI records relating to Charles

Gregory (aka “Bebe”) Rebozo to aid him in writing a

biography of former President Richard Nixon. When the FBI

had not timely complied with his request, Summers filed this

suit under the FOIA. The FBI then released certain of the

documents it had located. The parties filed cross-motions for

summary judgment with respect to some of the still-disputed

documents. The district court granted the FBI’s motion and

Summers appealed.

This court denied the FBI’s motion for summary

affirmance and referred the matter to mediation. In 2005 the

FBI agreed to disclose three names from a single document in

exchange for Summers’s voluntary dismissal of the case; the

parties entered into a Settlement Agreement that self-

referentially provides it “shall not constitute an admission of

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success on the merits for purposes of any claim for attorneys’

fees.” The Agreement notwithstanding, Summers moved the

district court for an award of attorneys’ fees. The district

court referred the matter to a magistrate judge, who denied the

motion. The district court denied Summers’s motion to

reconsider because Summers had not received any court-

ordered relief and was therefore ineligible to receive a fee

award under the FOIA. Summers v. U.S. Dep’t of Justice, No.

98cv01837, 2007 WL 2111049, *2-3 (July 23, 2007).

Summers now appeals that decision.

II. Analysis

The district court “may assess against the United States

reasonable attorney fees and other litigation costs reasonably

incurred in any [FOIA] case ... in which the complainant has

substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). Prior to

2002 this court applied the “catalyst theory” to determine

whether a plaintiff had “substantially prevailed” and was

therefore eligible for an award of attorneys’ fees. Oil, Chem.

& Atomic Workers Int’l Union v. DOE, 288 F.3d 452, 454

(2002) (OCAW). Under the catalyst theory, “[s]o 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.” Id. (internal quotation marks omitted).

If the catalyst theory still governed, then Summers would be

eligible to receive attorneys’ fees; the district court, however,

would retain discretion to deny an award, see Tax Analysts v.

U.S. Dep’t of Justice, 965 F.2d 1092, 1094 (D.C. Cir. 1992).

In Buckhannon Board and Care Home, Inc. v. West

Virginia Department of Health and Human Resources, the

Supreme Court rejected the catalyst theory, as applied to fee

provisions in the Americans with Disabilities Act of 1990 and

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the Fair Housing Amendments Act of 1988, because “[i]t

allows an award where there is no judicially sanctioned

change in the legal relationship of the parties.” 532 U.S. 598,

605 (2001). In OCAW, we applied the teaching of

Buckhannon to a request for attorneys’ fees under the FOIA,

stating 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.” 288 F.3d at 456-

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

As part of the OPEN Government Act of 2007, the

Congress amended the FOIA to incorporate the catalyst

theory. A plaintiff now qualifies as having “substantially

prevailed” regardless whether he obtained a judicial order or

consent decree or “obtained relief through ... a voluntary or

unilateral change in position by the agency, if [his] claim is

not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii).

Summers argues the 2007 Act applies retroactively to his

2005 settlement of the case, thereby making him eligible to

recover attorneys’ fees. Alternatively, Summers argues the

district court erred in holding him ineligible under the pre-Act

version of the FOIA.

A. Retroactivity

In Landgraf v. USI Film Products, 511 U.S. 244, 272-73

(1994), the Supreme Court reiterated the general rule that a

statute should not be applied retroactively and then set forth

the analysis to be used in determining whether a particular

statute stands as an exception to that rule. If the statute does

not clearly indicate either prospective-only or retroactive

application, then:

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[T]he court must determine whether the new

statute would have retroactive effect, i.e.,

whether it would impair rights a party

possessed when he acted, increase a party’s

liability for past conduct, or impose new duties

with respect to transactions already completed.

If the statute would operate retroactively, [the]

traditional presumption [against retroactive

application] teaches that it does not govern

absent clear congressional intent favoring such

a result.

Id. at 280.

Neither the 2007 Act nor the FOIA as amended says

anything about the temporal reach of the amendment. We

must therefore consider whether retroactive application

“would impair rights a party possessed when he acted,

increase a party’s liability for past conduct, or impose new

duties with respect to transactions already completed.” Id.

Application of the 2007 Act to facts predating its passage

obviously would expose the Government to increased liability

for past conduct by raising the possibility the Government

would be liable for attorneys’ fees in a case that was settled

and, therefore, not an occasion for paying attorneys’ fees

under the pre-amendment rule of Buckhannon. The

Government’s calculus in settling Summers’s case would

have been different had it known the Buckhannon rule would

not apply; its decision to settle reflects a calculation that the

cost associated with disclosing the disputed information to

Summers was less than the cost of further litigation, including

the uncertainty concerning both the outcome and whether the

district court would award the plaintiff attorneys’ fees. If

Summers’s action had been filed after the effective date of the

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2007 Act, and the Government therefore knew it might be

liable for attorneys’ fees, then it might not have settled the

case.

Summers, citing Bradley v. School Board of Richmond,

416 U.S. 696 (1974), correctly points out that there is no per

se rule against retroactive application of a statute amending or

creating a provision for attorneys’ fees. Bradley was a school

desegregation case in which the district court awarded

attorneys’ fees to the plaintiffs based upon equitable

principles. Id. at 706-07. While the appeal was pending, the

Congress passed a statute specifically authorizing a fee award

to the prevailing party in a school desegregation case. Id. at

709. The Supreme Court held the new fee provision

applicable to that case. Id. at 724.

The Court in Landgraf distinguished Bradley as follows:

“In light of the prior availability of a fee award, and the

likelihood that fees would be assessed under pre-existing

theories, we concluded [in Bradley] that the new fee statute

simply ‘d[id] not impose an additional or unforeseeable

obligation’ upon the school board.” 511 U.S. at 278 (quoting

416 U.S. at 721). The present situation is also markedly

different from that in Bradley. First, here there is no

indication the district court would have awarded fees had it

the statutory authority or equitable power to do so. On the

contrary, the magistrate judge held Summers would not be

entitled to an award even if he were eligible for one. Second,

application of the fee statute in this case, unlike in Bradley,

would impose an “unforeseeable obligation” upon the

defendant by exposing it to liability for attorneys’ fees for

which it clearly was not liable before the passage of the 2007

Act. Moreover, “[b]ecause retroactivity raises special policy

concerns, the choice to enact a statute that responds to a

judicial decision is quite distinct from the choice to make the

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responding statute retroactive.” Rivers v. Roadway Exp., Inc.,

511 U.S. 298, 305 (1994).

Summers argues the presumption of the general rule

against retroactive application of a statute is overcome by the

clear intent of the Congress in passing the 2007 Act, but the

evidence of intent he adduces is neither powerful nor even

relevant. Summers first points to the committee report on the

bill that became the Act, which states the purpose of

amending the FOIA was “to clarify that a complainant has

substantially prevailed in a FOIA lawsuit, and is eligible to

recover attorney fees ... if the pursuit of a claim was the

catalyst for the voluntary or unilateral change in position by

the opposing party.” S. REP. No. 110-59, at 6 (2007).

Second, Summers points to this floor statement by Senator

Leahy, a sponsor of the legislation: “The bill clarifies that

Buckhannon does not apply to FOIA cases.” 153 CONG. REC.

S15701-04 (daily ed. Dec. 14, 2007). Putting aside the

general problem that neither a committee nor a single Senator

can speak for “the Congress,” these specific statements

simply do not speak to the issue of retroactivity.

In sum, the 2007 Act is silent with regard to its temporal

reach; its application here would have “retroactive effect”

because it would “increase a party’s liability for past conduct”

and there is no evidence of a “clear congressional intent

favoring such a result.” Landgraf, 511 U.S. at 280. Therefore

the Act does not apply to Summers’s claims for attorneys’

fees.

B. Pre-Amendment Eligibility

We now turn to Summers’s argument that he is eligible to

receive a fee award pursuant to the FOIA standard in effect

prior to the passage of the 2007 Act. To grant a FOIA

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plaintiff an award of attorneys’ fees under that standard, the

district court must have determined the plaintiff was not only

eligible for but also entitled to an award. Tax Analysts, 965

F.2d at 1093. In the present case the district court (unlike the

magistrate judge) went no further than to hold Summers was

not eligible to receive a fee award inasmuch as he had not

“substantially prevailed” in his FOIA action. Summers, 2007

WL 2111049, at *1 n.1. We review that determination de

novo “because it rests on an interpretation of the statutory

terms that define eligibility for an award.” Davy v. CIA, 456

F.3d 162, 164 (2006) (internal quotation marks omitted).

To be eligible under the applicable standard, a plaintiff

“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 at 456-57 (internal quotation marks

omitted). Summers points to three identical orders issued by

the district court as evidence he received court-ordered relief.

In each the district court “ordered that the parties file another

joint status report by [a specific date] indicating the additional

disclosures defendant has made to plaintiff and whether

plaintiff intends to compel the release of any withholdings.”

Summers argues these orders required the FBI to make

disclosures but that is not correct.

The orders required the FBI to do no more than to join

with the plaintiff in filing status reports updating the court on

any voluntary disclosures the agency may have made. The

FBI would not have violated the orders if it had refused to

disclose a single document or datum. Consequently, the

status reports do not affect a “court-ordered change in the

legal relationship between the plaintiff and the defendant.”

OCAW, 288 F.3d at 458 (holding similar status reports did not

constitute relief ordered by a court).

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Finally, Summers argues the settlement agreement he

executed with the FBI makes him eligible for a fee award

because his dismissal of the action was made contingent upon

the FBI’s disclosing certain information. This argument fails

the requirement that the plaintiff “ha[ve] been awarded some

relief by the court.” Buckhannon, 532 U.S. at 603. Neither

the district court nor this court compelled the FBI to disclose

anything. Again, we rejected a similar argument in OCAW.

288 F.3d. at 458-49.

Like the district court, we conclude Summers is not

eligible to receive an award of attorneys’ fees under the pre-

amendment FOIA. Because he is ineligible to receive a fee

award, like the district court, we do not consider whether he

would be entitled to an award if he were eligible.

III. Conclusion

The amendment to the FOIA in the OPEN Government

Act of 2007 does not apply to this case because its application

would increase the Government’s liability for pre-enactment

conduct and there is no clear evidence the Congress intended

it to apply retroactively. Under the standard applicable to

cases arising before the effective date of the 2007 Act,

Summers is ineligible to receive an award of attorneys’ fees

because he received no court-ordered relief. The judgment of

the district court is therefore

Affirmed.