United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 19, 2010 Decided July 6, 2010
No. 09-5189
JOHN DAVIS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:88-cv-00130-HHK)
James H. Lesar argued the cause and filed the briefs for
appellant. Daniel S. Alcorn entered an appearance.
Jane M. Lyons, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney, Heather Graham-Oliver, Assistant
U.S. Attorney, entered an appearance.
Before: HENDERSON, TATEL and GRIFFITH, Circuit
Judges.
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Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: For forty-four years the
Freedom of Information Act (FOIA) has facilitated public
access to the records of federal agencies. See Pub. L. No. 89-
554, § 552, 80 Stat. 378, 383 (1966) (codified as amended at 5
U.S.C. § 552 (Supp. III 2009)). This case has been pending
for half that time. The appellant, John Davis, filed a FOIA
request with the Department of Justice in 1986, seeking
access to tape recordings made during an FBI investigation of
a New Orleans mob boss. When the Department failed to
produce the recordings, Davis filed this suit. The question in
this appeal—his sixth by our count—is whether the OPEN
Government Act of 2007, Pub. L. No. 110-175, § 4, 121 Stat.
2524, 2525, permits Davis to recoup the attorneys’ fees he
incurred during the protracted litigation that followed. It does
not.
I.
There is no need to linger on the facts and procedural
history of this case; we have unwound that yarn before. See
Davis v. DOJ (Davis IV), 460 F.3d 92 (D.C. Cir. 2006); Davis
v. DOJ (Davis I), 968 F.2d 1276 (D.C. Cir. 1992). The salient
points are that the Department voluntarily released many of
the requested tapes in 1995, one additional tape in 1999, but
nothing more in the decade that followed. The district court
granted summary judgment in favor of the Department in
2007, concluding that it had fulfilled its obligations under
FOIA. Davis v. DOJ, No. 88-00130, 2007 WL 4275512
(D.D.C. Dec. 3, 2007), aff’d, No. 08-5024, Order at 1 (D.C.
Cir. July 31, 2008). Davis then moved for attorneys’ fees.
Section 552(a)(4)(E) of Title 5 makes plaintiffs who have
“substantially prevailed” in FOIA litigation eligible for a
3
recovery of reasonable attorneys’ fees. At one time, lower
courts held that FOIA plaintiffs were eligible for a fee award
if the lawsuit substantially caused the agency to release the
requested records. Our circuit’s interpretation of
§ 552(a)(4)(E) reflected this approach—known as the
“catalyst theory”—when the Department handed its tape
recordings over to Davis in 1995 and 1999. See, e.g., Cuneo v.
Rumsfeld, 553 F.2d 1360, 1364–65 (D.C. Cir. 1977).
But the Supreme Court rejected the catalyst theory in
Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598
(2001). Construing two statutes allowing courts to award
attorneys’ fees to the “prevailing party,” the Court held that a
plaintiff whose lawsuit prompts the defendant to voluntarily
change its conduct does not qualify for a fee award. See id. at
600–01. We subsequently concluded that “the existing law of
our circuit must give way” to Buckhannon and held that a
FOIA plaintiff has “substantially prevailed” only if he has
“‘been awarded some relief by [a] court,’ either in a judgment
on the merits or in a court-ordered consent decree.” Oil,
Chem. & Atomic Workers Int’l Union, AFL-CIO v. Dep’t of
Energy (OCAW), 288 F.3d 452, 456–57 (D.C. Cir. 2002)
(quoting Buckhannon, 532 U.S. at 603).
Disapproving of the effect these cases had on the
disclosure policies of administrative agencies, Congress
enacted the OPEN Government Act of 2007 to establish that
the catalyst theory applied in FOIA cases. See Judicial Watch,
Inc. v. FBI, 522 F.3d 364, 370 (D.C. Cir. 2008). Under the
new statute, a plaintiff “substantially prevail[s]” (and is thus
eligible for a fee award) if his suit yields relief in the form of
“a judicial order, or an enforceable written agreement or
consent decree” or “a voluntary or unilateral change in
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position by the agency.” 5 U.S.C. § 552(a)(4)(E)(ii) (Supp. III
2009) [hereinafter 2007 Act].
Prior to the 2007 Act, we determined in Davis IV that
Davis was ineligible for attorneys’ fees under Buckhannon
and OCAW. 460 F.3d at 105–06. We remanded for further
proceedings on the merits, and Davis renewed his fee request
in light of the 2007 Act. A magistrate judge agreed with Davis
that the new statute governed his request for attorneys’ fees
and recommended an award of $112,029.48. The district court
disagreed and denied Davis’s motion. We affirm.
II.
Whether Davis is now eligible for attorneys’ fees is a
question of legislative retroactivity: Does the 2007 Act
resurrect the catalyst theory for cases in which the agency
voluntarily changed its position before the statute’s
enactment? A statute operates retroactively if it “attaches new
legal consequences to events completed before its enactment.”
Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994).
There is a “well-settled presumption” against giving statutes
retroactive effect. Id. at 277. See generally Kaiser Aluminum
& Chem. Corp. v. Bonjorno, 494 U.S. 827, 840–58 (1990)
(Scalia, J., concurring) (tracing the historical development of
the presumption); DANIEL E. TROY, RETROACTIVE
LEGISLATION 25–43 (1998) (same). The presumption
prohibits courts from applying a new provision in a way that
would “‘affect[] substantive rights, liabilities, or duties [on the
basis of] conduct arising before [its] enactment,’” Fernandez-
Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (quoting
Landgraf, 511 U.S. at 278), “unless Congress has clearly
manifested its intent to the contrary,” Hughes Aircraft Co. v.
United States ex rel. Schumer, 520 U.S. 939, 946 (1997).
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Summers v. Department of Justice, 569 F.3d 500 (D.C.
Cir. 2009), largely determined the temporal scope of the 2007
Act. Summers involved a request for attorneys’ fees in a
FOIA lawsuit that was settled in 2005, after OCAW but before
the 2007 Act. See id. at 502. The district court held the
plaintiff ineligible for a fee award under OCAW. Id. The 2007
Act took effect while the appeal was pending, and the plaintiff
asked us to apply the new statute. See id. at 503–04. The
Summers court observed that because the government had
voluntarily relinquished the records, it was not liable for
attorneys’ fees “under the pre-amendment rule of
Buckhannon.” Id. at 503. Applying the new law would
therefore “impose an ‘unforeseeable obligation’ upon the
defendant by exposing it to liability for attorneys’ fees for
which it clearly was not liable before.” Id. at 504 (quoting
Landgraf, 511 U.S. at 278). Moreover, the court found that
the text of the 2007 Act was “silent with regard to its temporal
reach,” and that its legislative history contained “no evidence
of a ‘clear congressional intent favoring [retroactive
application].’” Id. (quoting Landgraf, 511 U.S. at 280).
Absent clear instructions from Congress, the Summers court
declined to apply the 2007 Act retroactively.
Davis contends Summers was wrongly decided.
Summers, of course, is the law of the circuit, and “[o]ne three-
judge panel . . . does not have the authority to overrule
another three-judge panel of the court.” LaShawn A. v. Barry,
87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc); see also Davis
IV, 460 F.3d at 106. Davis’s arguments that Summers is not
binding are without merit. Accordingly, we turn to his two
attempts to distinguish the case.
First, Davis argues that the 2007 Act would not operate
retroactively here because the statute simply reinstates the
standard this court applied when the Department voluntarily
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released the tapes in 1995 and 1999. The government could
not foresee its potential liability for fees in Summers because
it settled the case after Buckhannon and OCAW. By contrast,
when the government disclosed the tapes in this case, it could
expect to pay attorneys’ fees under the catalyst theory. At
least in these circumstances, Davis contends, the 2007 Act
restores but does not “‘increase a party’s liability for past
conduct,’” Summers, 569 F.3d at 504 (quoting Landgraf, 511
U.S. at 280) (emphasis added), and therefore is not
impermissibly retroactive.
The Supreme Court recognized the “equitable appeal” of
this line of argument in Rivers v. Roadway Express, Inc., 511
U.S. 298, 310 (1994), but ultimately rejected it. At issue in
Rivers, the companion case to Landgraf, was a provision of
the Civil Rights Act of 1991 that “overruled” the Supreme
Court’s holding in Patterson v. McLean Credit Union, 491
U.S. 164 (1989), that 42 U.S.C. § 1981 did not provide a
cause of action for discriminatory termination. See Rivers,
511 U.S. at 304–05, 306–07. The plaintiffs in Rivers were
fired before the Court decided Patterson, at a time when
circuit precedent would have allowed their claims to go
forward. See id. at 309 n.9. But when the plaintiffs invoked
the 1991 Act on appeal, the Court rejected their argument
“that restorative statutes do not implicate fairness concerns
relating to retroactivity . . . when . . . the new statute simply
enacts a rule that the parties believed to be the law when they
acted.” Id. at 309; see id. at 309–13. “Even when Congress
intends to supersede a rule of law embodied in one of our
decisions with what it views as a better rule established in
earlier decisions,” the Court explained, “its intent to reach
conduct preceding the ‘corrective’ amendment must clearly
appear.” Id. at 313.
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Rivers forecloses Davis’s argument. It does not matter
that Davis “substantially prevailed prior to this Court’s
decision in [OCAW].” Appellant’s Br. at 2. Although our pre-
OCAW decisions endorsed the catalyst theory for attorneys’
fees under FOIA, the Supreme Court in Buckhannon made
clear that our circuit and others had gotten it wrong. OCAW,
288 F.3d at 454–57; accord Zarcon, Inc. v. NLRB, 578 F.3d
892, 894–95 (8th Cir. 2009); Or. Nat’l Desert Ass’n v. Locke,
572 F.3d 610, 617–18 (9th Cir. 2009); Union of Needletrades,
Indus. & Textile Employees, AFL-CIO v. INS, 336 F.3d 200,
203–07 (2d Cir. 2003). Buckhannon, moreover, did not apply
only to future conduct. While legislation is presumptively
prospective, judicial decisions are typically retrospective. See
United States v. Sec. Indus. Bank, 459 U.S. 70, 79 (1982)
(“The principle that statutes operate only prospectively, while
judicial decisions operate retrospectively, is familiar to every
law student.”); see, e.g., Harper v. Va. Dep’t of Taxation, 509
U.S. 86, 94–99 (1993); INS v. St. Cyr, 533 U.S. 289, 316–17
(2001). Because “[a] judicial construction of a statute is an
authoritative statement of what the statute meant before as
well as after the [court’s] decision,” Rivers, 511 U.S. at 312–
13, “Buckhannon controls” the meaning of the FOIA
attorneys’ fees provision from the time of the statute’s
enactment until its amendment in 2007, OCAW, 288 F.3d at
457. Therefore, in “ask[ing] whether the new provision
attaches new legal consequences to events completed before
its enactment,” Landgraf, 511 U.S. at 269–70, we must
measure the 2007 Act against our post-Buckhannon
interpretation of the statute and not the decisions that came
before. See Rivers, 511 U.S. at 313 (explaining that Patterson,
rather than earlier circuit precedent, “provides the baseline for
[the Court’s] conclusion that the [new statute] would be
‘retroactive’ if applied to cases arising before [the statute’s
effective] date”); see also AT&T Corp. v. Hulteen, 129 S. Ct.
1962, 1971 n.5 (2009). Prior to the 2007 Act, the legal
8
consequences of the Department’s voluntary release of the
tapes—as determined by Buckhannon and OCAW—did not
include liability for attorneys’ fees. See Davis IV, 460 F.3d at
105–06. Because reliance on the 2007 Act would give rise to
liability for attorneys’ fees where none existed before,
Summers precludes its application.
Davis’s second effort to distinguish Summers rests on the
fact that the magistrate judge in this case found that Davis
was entitled to attorneys’ fees. He notes that in Summers
“there [was] no indication the district court would have
awarded fees had it the statutory authority or equitable power
to do so.” 569 F.3d at 504. Davis lifts the Summers court’s
language out of context. In making this observation, the court
was distinguishing Bradley v. School Board of Richmond, 416
U.S. 696 (1974), and the passage can be understood only
against that backdrop.
The plaintiffs in Bradley were a group of parents who
brought a class action to desegregate the public schools in
Richmond, Virginia. Id. at 699. After they prevailed in the
district court, they were awarded attorneys’ fees. Id. at 705–
06. “Noting the absence at the time of any explicit statutory
authorization for an award of fees in school desegregation
actions, the court based the award on two alternative grounds
rooted in its general equity power.” Id. at 706 (internal
citation omitted); see also id. at 705–10. While the appeal was
pending, Congress enacted the Emergency School Aid Act,
Pub. L. No. 92-318, § 718, 86 Stat. 235, 369 (1972), which
expressly authorized such fee awards. Holding that the new
statute governed and lacked retroactive effect under these
circumstances, the Bradley Court explained that the statute
did “not impose an additional or unforeseeable obligation” on
the school board because the board had acted “with the
knowledge that, under different theories, . . . [it] could have
9
been required to pay attorneys’ fees.” Bradley, 416 U.S. at
721. As the Supreme Court later explained, the statute at issue
in Bradley did not have impermissible retroactive effects “[i]n
light of the prior availability of a fee award, and the likelihood
that fees would be assessed under pre-existing theories.”
Landgraf, 511 U.S. at 278; see Martin v. Hadix, 527 U.S. 343,
359–60 (1999).
What distinguishes Bradley—and by implication
Summers—is the “prior availability” of attorneys’ fees “under
pre-existing theories.” Landgraf, 511 U.S. at 278; see
Bradley, 416 U.S. at 721. The statute at issue in Bradley did
not operate retroactively because the “extent of the change in
the law” was negligible. Landgraf, 511 U.S. at 270. Davis,
unlike the Bradley plaintiffs, was not eligible for attorneys’
fees before Congress enacted the relevant statute. See Davis
IV, 460 F.3d at 105–06. Although the magistrate judge found
Davis entitled to a fee award, he did so only after applying the
2007 Act retroactively—wrongly as it turns out. He did not
rely on any pre-existing authority. In any event, the
magistrate’s legal error has no bearing on our own
retroactivity analysis.
III.
The decision of the district court is
Affirmed.