United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 19, 2010 Decided July 6, 2010
No. 08-5379
JUDICIAL WATCH, INC.,
APPELLEE
v.
BUREAU OF LAND MANAGEMENT,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01570-RCL)
Michael E. Robinson, Attorney, U.S. Department of
Justice, argued the cause for appellant. With him on the briefs
was Leonard Schaitman, Attorney. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
Michael Bekesha argued the cause for appellee. With
him on the brief were Paul J. Orfanedes and James F.
Peterson.
Before: HENDERSON, TATEL and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
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GRIFFITH, Circuit Judge: The Bureau of Land
Management appeals an award of attorneys’ fees to Judicial
Watch, Inc. in an action brought under the Freedom of
Information Act. For the reasons set forth below, we reverse
the decision of the district court and vacate the fee award.
I.
In March 2007, Judicial Watch requested records of
communications between the Bureau and the Nevada
congressional delegation about a transaction involving federal
lands. When the Bureau failed to produce the documents,
Judicial Watch sought to compel their disclosure in a FOIA
suit filed in the district court in September 2007. The Bureau
voluntarily turned over thirty-five pages of responsive
documents later that month. At Judicial Watch’s request, the
Bureau also conducted a supplemental search for additional
relevant documents. When that search proved fruitless,
Judicial Watch elected not to proceed with its lawsuit. In
January 2008, the parties filed a joint stipulation asking the
district court to enter a judgment in favor of the agency. In the
stipulation, Judicial Watch reserved the right to request
attorneys’ fees.
On December 31, 2007, after the Bureau’s disclosure of
the requested records but before the filing of the stipulation,
the President signed into law the OPEN Government Act of
2007. See Pub. L. No. 110-175, 121 Stat. 2524 (codified at 5
U.S.C. § 552 (Supp. III 2009)) [hereinafter 2007 Act]. Before
the 2007 Act took effect, only FOIA plaintiffs who had
“‘been awarded some relief by [a] court,’ either in a judgment
on the merits or in a court-ordered consent decree,” could
recover attorneys’ fees. Oil, Chem. & Atomic Workers Int’l
Union v. Dep’t of Energy, 288 F.3d 452, 457 (D.C. Cir.
2002); see Davis v. DOJ, No. 09-5189 (D.C. Cir. July 6,
3
2010). The 2007 Act made fee awards permissible not only
when the litigation results in “a judicial order, or an
enforceable written agreement or consent decree,” 5 U.S.C.
§ 552(a)(4)(E)(ii)(I) (Supp. III 2009), but also when the
lawsuit brings about “a voluntary or unilateral change in
position by the agency,” so long as the FOIA claim is “not
insubstantial,” id. § 552(a)(4)(E)(ii)(II).
After the district court entered judgment for the Bureau,
Judicial Watch moved for attorneys’ fees. Because Judicial
Watch was not eligible for a fee award under the old standard,
its motion for attorneys’ fees was based on the 2007 Act. The
Bureau opposed the motion, arguing that the Act could not be
applied retroactively to increase the government’s liability for
conduct that took place before it became law. The district
court disagreed and awarded Judicial Watch $3,605.57.
Judicial Watch, Inc. v. Bureau of Land Mgmt., 562 F. Supp.
2d 159, 166–72, 176 (D.D.C. 2008).
While the Bureau’s appeal was pending, we held in
Summers v. Department of Justice that the 2007 Act cannot be
applied retroactively. 569 F.3d 500, 503 (D.C. Cir. 2009). The
Bureau moved for summary reversal of the district court’s
decision in light of Summers. We denied the motion in order
to consider more fully Judicial Watch’s argument that
applying the new statute to its fee request raised no
retroactivity concerns because the parties settled their dispute
after the new law took effect. We have jurisdiction to review
the award under 28 U.S.C. § 1291. See Cotton v. Heyman, 63
F.3d 1115, 1117–19 (D.C. Cir. 1995). Because the temporal
scope of a statute is a question of law, our review is de novo.
Trout v. Sec’y of Navy, 317 F.3d 286, 289 (D.C. Cir. 2003).
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II.
At least four events must occur before the government is
liable for attorneys’ fees under 5 U.S.C. § 552(a)(4)(E)(ii)(II):
(1) the plaintiff files a FOIA request with the agency; (2) the
agency fails to disclose requested records; (3) the plaintiff
sues; and (4) the agency voluntarily or unilaterally changes its
position. In this case, as in Summers, all four events took
place before the 2007 Act became law. But unlike in
Summers, where the parties settled in 2005, the parties here
did not settle their litigation until after the change in the law.
Judicial Watch argues that the Summers court, by expressly
holding that the 2007 Act cannot be applied to cases settled
before its effective date, 569 F.3d at 503–04, implicitly held
that it can be applied to any case settled after that date.
The matter is not so simple. Summers held that the 2007
Act may not be given retroactive effect, but it did not address
the question presented here: whether the Act applies when the
agency unilaterally disclosed the requested records before the
statute’s enactment but the parties’ formal settlement came
afterwards. We conclude that application of the 2007 Act to
these facts would have impermissible retroactive effects.
A statute has retroactive effects if it “attaches new legal
consequences to events completed before its enactment.”
Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994).
Applying the 2007 Act to this case would attach a new legal
consequence (liability for attorneys’ fees) to an event
completed before its enactment (the Bureau’s disclosure in
September 2007). Judicial Watch implicitly concedes as much
when it argues that it became eligible for an award of
attorneys’ fees under the new law when the Bureau disclosed
the requested records. See Appellee’s Br. at 18 (“It was only
after Judicial Watch filed the Complaint that BLM released
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the responsive documents. . . . [T]his constitutes a voluntary
change in position by BLM. . . . Judicial Watch . . . is,
therefore, eligible for an award of attorneys’ fees.”). That
assertion undermines Judicial Watch’s argument that
application of the 2007 Act would not be retroactive because
the litigation continued until after the Act became law. The
disclosure was last in the chain of events relevant to Judicial
Watch’s eligibility for attorneys’ fees under the new law, and
it took place months before the law’s enactment. That the
parties subsequently settled is without relevance to the
Bureau’s possible liability for attorneys’ fees. And because
the fact of the settlement is irrelevant, the timing of the
settlement has no bearing upon the question of retroactivity. If
the 2007 Act were applied to these facts, it would attach new
legal consequences to the Bureau’s disclosure of the records.
Because the disclosure came before the 2007 Act took effect,
application of the new law here would be retroactive.
Application of the new statute to this case raises the same
retroactivity concerns identified in Summers. Because
Congress did not make the statute retroactive, see Summers,
569 F.3d at 504, it is of no help to Judicial Watch.
III.
The decision of the district court is reversed and the
award of attorneys’ fees vacated.
So ordered.