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

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 , 121 S.Ct. 1835 , 149 L.Ed.2d 855 (2001), applies to suits for attorney’s fees under the Freedom of Information Act (“FOIA”). See Opinion at 453. 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 documents that Oil, Chemical and Atomic Workers International Union (“OCAW”) sought under FOIA and that the government had previously withheld.

I.

The holding and rationale of the Supreme Court in Buckhannon 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 permissible basis for the award of attorney’s fees under the [Fair Housing Amendments Act of 1988], 42 U.S.C. § 3613 (c)(2), and [the Americans with Disabilities Act of 1990], 42 U.S.C. § 12205 .” Buckhannon, 532 U.S. at 610 , 121 S.Ct. at 1843 . 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 , 121 S.Ct. at 1839 . The Court then explained that its precedent was consistent with this meaning. Reviewing its previous decisions addressing the meaning of “prevailing party,” the court explained that' in addition to a judgment on the merits by the court, see id. at 603-04 , 121 S.Ct. at 1839 -40 (citing Hanrahan v. Hampton, 446 U.S. 754, 758 , 100 S.Ct. 1987, 1989-90 , 64 L.Ed.2d 670 (1980) (per curiam); Hewitt v. Helms, 482 U.S. 755, 760 , 107 S.Ct. 2672, 2675-76 , 96 L.Ed.2d 654 (1987); and Farrar v. Hobby, 506 U.S. 103 , 113 S.Ct. 566 , 121 L.Ed.2d 494 (1992)), settlement agreements enforced through a court-ordered consent decree may also serve as the basis for an *460 award of attorney’s fees. Id. at 604, 121 S.Ct. at 1840 (citing Maher v. Gagne, 448 U.S. 122 , 100 S.Ct. 2570 , 65 L.Ed.2d 653 (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 , 109 S.Ct. 1486, 1493-94 , 103 L.Ed.2d 866 (1989)) (alterations in the original). The Court also distinguished consent decrees from private settlements, noting 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, 121 S.Ct. at 1840 n. 7 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 , 114 S.Ct. 1673 , 128 L.Ed.2d 391 (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, 121 S.Ct. at 1840 . On one side of the line, the Court observed that its precedent reveals that “enforceable judgments 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 , 121 S.Ct. at 1840 (quoting Tex. State Teachers Ass’n, 489 U.S. at 792-93 , 109 S.Ct. at 1493-94 ). 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, 121 S.Ct. at 1840 . 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 imprimatur 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 precedent, 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 offending statute, and the district court thereafter dismissed the lawsuit as moot. Id. at 601 , 121 S.Ct. at 1838 . There was no judicial involvement 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 imprimatur 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 theory” as applied on the facts before the Court • — ■ where there was no judicial involvement in the resolution — was not enough.

*461 Indeed, the Supreme Court’s review of its precedents demonstrates that the Court did not establish a finite list of the forms of judicial relief that are necessary to “prevail.” Rather, 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 , 121 S.Ct. at 1840-41 (discussing Farrar, 506 U.S. at 112 , 113 S.Ct. at 573-74 ; and Maher, 448 U.S. at 129-30 , 100 S.Ct. at 2574-75). On the other side of the line, the Court, again looking to its precedent, indicated only that preliminary victories such as withstanding 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, 121 S.Ct. at 1840 -41 (citing Hewitt, 482 U.S. at 760 , 107 S.Ct. at 2675-76 ; and Hanrahan, 446 U.S. at 759 , 100 S.Ct. at 1990). 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, 121 S.Ct. at 1841 (citing Farrar, 506 U.S. at 112 , 113 S.Ct. at 573-74 ; and Maher, 448 U.S. at 129-30 , 100 S.Ct. at 2574-75), attorney’s fees could be awarded in other circumstances. For example, two members of the majority noted that court-approved settlements in addition to consent decrees bore the necessary judicial imprimatur. Id. at 618, 121 S.Ct. at 1847-48 (Scalia, J., concurring, joined by Thomas, J.). Additionally, in Hanrahan , cited with approval in Buckhannon, the Court acknowledged that “[t]he legislative history of the Civil Rights Attorney’s Fees Awards Act of 1976 [§ 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 merits.’ ” Hanrahan, 446 U.S. at 756-57 , 100 S.Ct. at 1989 (quoting H.R.Rep. No. 94-1558, at 7 (1976)). The House Committee Report indicated that Congress had adopted the approach that the Court had taken in Bradley v. Richmond School Board, 416 U.S. 696 , 94 S.Ct. 2006 , 40 L.Ed.2d 476 (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 , 100 S.Ct. at 1989 (quoting H.R.Rep. No. 94-1558, at 8 (quoting Bradley, 416 U.S. at 723 n. 28, 94 S.Ct. at 2022 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 , 100 S.Ct. at 1989. 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 Buck-hannon have not read it to be as broad a bar to attorney’s fees as the court suggests today; Several circuits have confronted a *462 pure catalyst theory claim and naturally read Buckhannon to bar such awards of attorney’s fees, notwithstanding the fee provision 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. § 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. § 1988 ). However, when confronted with a private settlement, the Ninth Circuit in Barrios v. California Interscholastic Federation, 277 F.3d 1128 (9th Cir.2002) (Americans with Disabilities Act of 1990, 42 U.S.C. § 12205 ), upheld the award in light of circuit precedent and limited Buck-hannon’s holding to the rejection of the catalyst theory, describing 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. § 1415 (i)(3)(B)). But see Perez-Arellano, 279 F.3d at 793-94 (Equal Access to Justice Act, 28 U.S.C. § 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. § 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. §§ 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 imprimatur 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 statute.” 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. § 1415 (i)(3)(B), and the Rehabilitation Act of 1973, 29 U.S.C. § 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 *463 judicial order or decree under Buckhannon. Id. at 125. Likewise, the Fourth Circuit in Smyth v. Rivero, 282 F.3d 268 (4th Cir.2002), applying § 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 inadequate in Buckhannon because it was a “preliminary, incomplete ... 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 , 121 S.Ct. at 1840 ), 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, 121 S.Ct. at 1840 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 component 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 Carpenters v. Kinton, 284 F.3d 9 (1st Cir.2002), also applying § 1988, examined whether the appropriate judicial imprimatur 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 something 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 defendant] 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 defendant’s] adoption of the regulations, we cannot say that the district court’s refusal to award attorneys’ fees constituted an abuse of discretion.

Id. at 30 .

The few district court opinions to have addressed Buckhannon 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 set *464 tlement, the Buckhannon test is satisfied. The district court in Aynes v. Space Guard Products, 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] Defendant 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 incorporating a settlement was sufficient under Buckhannon. Id. at *3. Likewise, in National Coalition for Students with Disabilities v. Bush, 173 F.Supp.2d 1272 (N.D.Fla.2001), the district court evaluated whether a settlement was the functional equivalent of a consent decree, constituting the necessary 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 Buckhan-non’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 457, Buckhan-non and the decisions interpreting it make clear that there is no principled basis for this suggestion. What is key under Buck-hannon is whether the particular relief obtained 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 consent decree. Buckhannon, 532 U.S. at 605 , 121 S.Ct. at 1840-41 ; see also id. at 622 , 121 S.Ct. at 1849-50 (Scalia, J., concurring). Because the question put to this court under Buck-hannon 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 government’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 Buckhan-non test.

*465 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 457. Contrary to the court’s assertion, there is no indication in the August 23 Order that the government had provided “most of the materials” requested by OCAW. Opinion at 457. Although the August 23 Order resulted in the dismissal of OCAW’s requests for some records, the order addressed other documents that the government 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 “parties’ second report,” Opinion at 457, reveals the court’s confusion 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 exemptions) within 60 days. The district court signed the “Stipulation 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....’” Second Joint Report, Nov. 8,1999 (quoting Stipulation & Order, Aug. 23, 1999, at ¶ 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 government 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. § 552 (a)(4)(B) (2000); Students Against Genocide v. Dep’t of State, 257 F.3d 828, 841 (D.C.Cir.2001). The court recognizes 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 458-459. 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 private 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, 121 S.Ct. at 1840 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 contempt citation for failure to comply. See 5 U.S.C. § 552 (a)(4)(G). The August 23 Order is thus a material altera *466 tion of the legal relationship of the parties bearing the necessary judicial imprimatur and hence satisfying Buckhannon. 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 Buckhan-non test because there has been a judicially sanctioned “‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Buckhannon, 532 U.S. at 604 , 121 S.Ct. at 1840 (quoting Tex. State Teachers Ass’n, 489 U.S. at 792-93 , 109 S.Ct. at 1493-94 ). A remand is nonetheless required, for although the district court ruled that the government withheld “numerous categories of documents ... without 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.