United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2005 Decided August 9, 2005
No. 04-5177
S. D. EDMONDS
APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION,
APPELLEE
Appeal from the United States District Court
(USDC) for the District of Columbia
(No. 02cv01294)
David K. Colapinto argued the cause and filed the briefs for
appellant. Mark S. Zaid and Roy W. Krieger entered
appearances.
Scott L. Nelson and Brian Wolfman were on the brief for
amicus curiae Public Citizen, Inc. in support of appellant.
H. Thomas Byron, III, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were Peter
D. Keisler, Assistant Attorney General, Kenneth L. Wainstein,
U.S. Attorney, and Douglas N. Letter and Leonard Schaitman,
Attorneys.
2
Before: GINSBURG, Chief Judge, and EDWARDS and
GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Sibel Edmonds filed a Freedom
of Information Act (FOIA) request for certain Federal Bureau of
Investigation (FBI) records relating to the FBI’s decision to
terminate her employment. She also sought expedited
processing of that request. When the FBI failed to grant or deny
expedition, she obtained an order from the district court,
compelling expedited processing and directing the Bureau to
release all nonexempt documents by a specified date. The FBI
ultimately released a total of 346 pages. Concluding that
Edmonds “substantially prevailed” in her district court action,
we reverse the court’s determination that she was ineligible for
an award of attorney’s fees.
I
Edmonds worked as a contract linguist for the FBI between
September 2001 and March 2002. She alleges that she
“witnessed and reported to governmental authorities systemic
quality problems and breaches in security within the FBI’s
language division concerning translations relating to the FBI’s
counter-terrorism and counter-intelligence operations,” and that
she was terminated after her repeated “efforts to report these
problems.” Appellant’s Br. at 9. By letters dated April 19 and
April 29, 2002, Edmonds submitted FOIA requests for FBI
documents concerning herself, her security clearance, her
allegations of wrongdoing at the Bureau, and investigations of
persons related to her. Although she requested expedited
processing of her requests, the FBI did not release any
documents or make any determination regarding whether she
was entitled to expedited processing under the statute and
3
associated regulations. Edmonds v. FBI, No. 02-1294, Order at
2 (D.D.C. Dec. 3, 2002) (“December 3, 2002 Order”).1
On June 27, 2002, Edmonds sued the FBI under FOIA,
seeking an order to require production of the requested
documents. See 5 U.S.C. § 552(a)(4)(B). On July 15, she filed
an amended complaint alleging a statutory right to expedited
processing of her FOIA requests and seeking an order directing
expedition. Am. Compl. ¶¶ 21-22. Thereafter, Edmonds moved
for partial summary judgment, asking the district court to order
the FBI to expedite the processing of her requests. Edmonds
relied on 5 U.S.C. § 552(a)(6)(E)(i), which requires agencies to
promulgate regulations “providing for expedited processing of
requests for records” in certain circumstances, and on §
552(a)(6)(E)(iii), which provides that “failure by an agency to
respond in a timely manner” to a request for expedited
processing “shall be subject to judicial review.” The FBI
opposed the motion and cross-moved for a stay until April 1,
2003, under Open America v. Watergate Special Prosecution
1
Subject to exceptions and exemptions, FOIA requires that “each
agency, upon any request for records . . . , shall make the records
promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Except
in “unusual circumstances,” id. § 552(a)(6)(B)(i), an agency must
“determine within 20 days . . . whether to comply with such request
[and] immediately notify the person making such request of such
determination,” id. § 552(a)(6)(A)(i). As discussed infra, FOIA also
requires agencies to promulgate regulations “providing for expedited
processing of requests for records,” id. § 552(a)(6)(E)(i), and further
requires that such regulations ensure “that a determination of whether
to provide expedited processing shall be made, and notice of the
determination shall be provided to the person making the request,
within 10 days after the date of the request.” 5 U.S.C. §
552(a)(6)(E)(ii)(I).
4
Force, 547 F.2d 605 (D.C. Cir. 1976).2
On December 3, 2002, the district court granted Edmonds’
motion for partial summary judgment and denied the FBI’s
motion for a stay. December 3, 2002 Order at 8. The court
concluded that Edmonds’ request “easily me[t] th[e] standard”
set by the Department of Justice’s FOIA regulation, which
provides for expedited processing in a “‘matter of widespread
and exceptional media interest in which there exist possible
questions about the government’s integrity which affect public
confidence.’” Id. at 6 (quoting 28 C.F.R. § 16.5(d)(1)(iv)). On
December 16, the court ordered the FBI to “complete the
expedited processing of plaintiff’s FOIA request and provide
plaintiff with all documents as to which no exemption is being
claimed” by January 31, 2003. Edmonds v. FBI, No. 02-1294,
Order at 1 (D.D.C. Dec. 16, 2002). The court subsequently
extended the deadline to February 10. See Edmonds v. FBI, 310
F. Supp. 2d 55, 56-57 (D.D.C. 2004).
On February 10, 2003, the FBI released 343 pages to
Edmonds, but advised the court that it was withholding another
1143 pages responsive to her FOIA request. The FBI then
moved for summary judgment, contending that the withheld
2
FOIA permits a court to “retain jurisdiction and allow the agency
additional time to complete its review of the records” if the
“Government can show exceptional circumstances exist and the
agency is exercising due diligence in responding to the request.” 5
U.S.C. § 552(a)(6)(C)(i). In Open America, the court held that
exceptional circumstances exist when an agency “is deluged with a
volume of requests for information vastly in excess of that anticipated
by Congress, . . . the existing resources are inadequate to deal with the
volume of requests within the time limits of subsection (6)(A), and .
. . the agency can show that it ‘is exercising due diligence’ in
processing the requests.” Open America, 547 F.2d at 616 (quoting 5
U.S.C. § 552(a)(6)(c)).
5
documents were exempt from disclosure. See 5 U.S.C. § 552(b).
On July 24, the district court granted the FBI’s motion with
respect to all but three of the remaining pages. As to those
pages, the court asked the FBI to provide additional information
justifying withholding. See id. Thereafter, the FBI released the
three pages without being ordered to do so. See id.
On December 12, 2003, Edmonds filed a motion for
attorney’s fees relating to the December 16, 2002 order
requiring expedited treatment of her FOIA request, and to the
FBI’s release of the additional three pages. The district court
denied Edmonds’ fee motion, concluding that she had not
“substantially prevailed” on her FOIA claim, as required for fee
eligibility under the statute. See 5 U.S.C. § 552(a)(4)(E)
(providing that “[t]he 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 prevailed”). Edmonds now appeals from the
denial of her motion.
II
In Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health and Human Resources, 532 U.S. 598
(2001), the Supreme Court considered the attorney’s fees
provisions of the Fair Housing Amendments Act, 42 U.S.C. §
3601 et seq., and the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq., which permit courts to award fees only to a
“prevailing party.” Id. §§ 3613(c)(2), 12205. The Court
rejected the plaintiffs’ contention, which it characterized as the
“catalyst theory,” that “a plaintiff is a ‘prevailing party’ if it
achieves the desired result because the lawsuit brought about a
voluntary change in the defendant’s conduct.” Buckhannon, 532
U.S. at 601. Rather, the Court ruled, for a litigant to be a
“prevailing party,” there must have been a “judicially sanctioned
6
change in the legal relationship of the parties.” Id. at 605.
“[E]nforceable judgments on the merits and court-ordered
consent decrees,” the Court said, suffice to create such a change.
Id. at 604.
In Oil, Chemical & Atomic Workers International Union v.
Department of Energy (OCAW), this circuit extended the
holding of Buckhannon to the fee-shifting provision of FOIA.
288 F.3d 452, 454-57 (D.C. Cir. 2002). The OCAW court
concluded that “the ‘substantially prevail’ language in FOIA [is]
the functional equivalent of the ‘prevailing party’ language
found in” the statutes interpreted in Buckhannon. Id. at 455-56.
It “therefore h[e]ld 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.” Id. at 456-57
(quoting Buckhannon, 532 U.S. at 603).
Edmonds asserts that she satisfied the requirements of
Buckhannon and OCAW by obtaining partial summary judgment
on the question of expedited review, an order from the district
court directing release of nonexempt documents by February 10,
2003, and the actual release of 343 pages that day. 3 She
contends that she further prevailed by ultimately obtaining the
release of the three additional pages. We review the district
court’s contrary determination, which rests on “an interpretation
of the statutory terms that define eligibility for an award,” de
3
As a fallback, Edmonds “respectfully argues that Buckhannon
does not apply in FOIA” cases. Appellant’s Br. at 32. In light of our
disposition, Edmonds does not need a fallback argument; but if she
did, the contrary decision in OCAW would deprive this panel of the
authority to consider such an argument. See, e.g., Air Line Pilots
Ass’n, Int’l v. United States Dep’t of Transp., 838 F.2d 563, 565 n.3
(D.C. Cir. 1988).
7
novo. National Ass’n of Mfrs. v. Department of Labor, 159 F.3d
597, 599 (D.C. Cir. 1998).
III
The district court concluded, and the government argues on
appeal, that Edmonds was not a prevailing party because “a
court order requiring expedited processing does not rise to the
level of a ‘material alteration of the legal relationship of the
parties necessary to permit an award of attorney’s fees.’”
Edmonds, 310 F. Supp. 2d at 58 (quoting Buckhannon, 532 U.S.
at 604 (internal quotation marks omitted). We disagree. Prior
to the December 16, 2002 order, the FBI was not under judicial
direction to produce any category of documents by any specified
date. Once the court issued that order, the Bureau was under
judicial direction to produce all nonexempt documents, first by
January 31 and then by February 10, 2003. The order thus
amounted to a “judicially sanctioned change in the legal
relationship of the parties.” Buckhannon, 532 U.S. at 605.
Thereafter, timely production of nonexempt documents by the
FBI could no longer be described as a “voluntary change in the
defendant’s conduct.” Id. at 600. To the contrary, the plaintiff
then had an “enforceable judgment,” id. at 607 n.9, and if the
defendant failed to comply, it faced the sanction of contempt.
1. The district court thought OCAW stood for the
proposition that the requirements of Buckhannon could not be
satisfied until there was a “judgment by the Court regarding the
legality of the government’s withholding of documents.”
Edmonds, 310 F. Supp. 2d at 58. That is incorrect. OCAW --
which did not involve FOIA’s expedited processing provision --
did hold that an August 23, 1999 order in that case “requir[ing]
that the Energy Department complete its record review in 60
days” did not materially alter the legal status of the parties. 288
F.3d at 458. But as the OCAW court described it, that order was
8
quite different from the one issued by the district court in this
case.
According to OCAW, “[b]efore August 23, the court had not
ordered the Energy Department to turn over any documents;
after August 23, the Energy Department still had no obligation
to do so.” Id. In the instant case, by contrast, the district court’s
December 16, 2002 order did not merely direct the FBI to
“complete its record review.” Id. Rather, it ordered the Bureau
to turn over all nonexempt documents by a date certain. After
the court issued that order (and the subsequent extension), the
FBI had a clear obligation to turn over such documents by
February 10. And the FBI did release 343 nonexempt
documents that day.
Even so, the government maintains that an order directing
expedited processing “does not meaningfully alter the legal
obligations between a FOIA requester and the government; it
merely allows one person to push aside the prior claims of
others and jump to the head of the line.” Appellee’s Br. at 10.
But whether or not an expedition order changes the
government’s obligations to the universe of all FOIA requesters,
there is no question that it changes the government’s obligations
to the plaintiff requester. Not only must the agency permit the
plaintiff to “jump to the head of the line” -- a meaningful
obligation in itself -- it must produce the documents by the
court-designated deadline.
2. Nor is it correct to argue, as the government does, that a
party who obtains an expedition order has not “prevailed on the
merits of at least some of [her] claims.” Buckhannon, 532 U.S.
at 603 (quoting Hanrahan v. Hampton, 446 U.S. 754, 758
(1980)) (emphasis added). Unlike the OCAW order, which the
court described as a “scheduling order[]” that did not award the
plaintiff “judicial relief on the merits of [its] complaint,” 288
9
F.3d at 458-59, expedited processing of a FOIA request is a
statutory right, not just a matter of court procedure. See Al-
Fayed v. CIA, 254 F.3d 300, 304 (D.C. Cir. 2001) (treating a
plaintiff’s entitlement to expedited processing as a merits
question).
FOIA’s expedited-processing provision, added by the
Electronic Freedom of Information Act Amendments of 1996,
requires each agency to “promulgate regulations . . . providing
for expedited processing of requests for records -- (I) in cases in
which the person requesting the records demonstrates a
compelling need; and (II) in other cases determined by the
agency.” 5 U.S.C. § 552(a)(6)(E)(i). The same amendments
make the right to expedition judicially enforceable, stating that
“[a]gency action to deny or affirm denial of a request for
expedited processing pursuant to this subparagraph, and failure
by an agency to respond in a timely manner to such a request[,]
shall be subject to judicial review under paragraph (4).” Id. §
552(a)(6)(E)(iii).4 Thus, the district court order granting
Edmonds partial summary judgment and compelling production
of nonexempt documents by February 10 was not, as the
government suggests, a mere “procedural timing order.”
Appellee’s Br. at 25. Rather, it vindicated a statutory right that
Edmonds’ complaint expressly claimed, see Am. Compl. ¶ 21,
and granted her relief that she specifically sought, see id. ¶ 22.
In short, it provided the plaintiff with full relief “on the merits”
of her claim to expedited treatment.
We reject the government’s further suggestion that
4
The judicial review provision referenced in the quotation grants
district courts “jurisdiction to enjoin the agency from withholding
agency records and to order the production of any agency records
improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B);
see Al-Fayed, 254 F.3d at 305.
10
whatever benefit Edmonds obtained from expedited processing
was too insubstantial to entitle her to a fee award. See Oral Arg.
Tape at 21:30-:40. Plainly, there is value to obtaining something
earlier than one otherwise would. That is why people
commonly pay -- and delivery services commonly charge -- a
premium for next-day delivery of important documents. Cf.
H.R. REP . NO. 93-876, at 6 (1974) (report on the 1974 FOIA
amendments) (“[I]nformation is often useful only if it is timely.
Thus, excessive delay by the agency in its response is often
tantamount to denial.”). The 1996 FOIA amendments
underlined Congress’ recognition of the value in hastening
release of certain information, by creating a statutory right to
expedited processing and providing for judicial review of its
denial. When, pursuant to court order, the FBI finished
processing Edmonds’ request two months earlier than it would
have in the absence of the order, she vindicated that statutory
right.5
3. That the district court’s order vindicated Edmonds’ right
to expedited processing midway through the proceeding, rather
than at its end, is of no import. The government reads our
5
Amicus curiae Public Citizen suggests that, even where a
plaintiff does not rely on FOIA’s expedited processing provision,
court-ordered disclosure of nonexempt documents can make the
plaintiff eligible for attorney’s fees. See Public Citizen Br. at 13 (“[A]
plaintiff who obtains an enforceable court order that . . . denies the
government’s request for an Open America stay to allow additional
time to respond, and that accordingly compels the government to
respond to her request on an accelerated basis, satisfies the
Buckhannon/OCAW standard for recognition as a prevailing party.”);
id. at 8 (“FOIA requesters, even in the ordinary case, [have] an
enforceable substantive entitlement to have their requests acted upon
as promptly as possible . . . .”). Because Edmonds does rely on the
statute’s expedited review provision, we have no need to address this
suggestion.
11
opinion in Thomas v. National Science Foundation, 330 F.3d
486 (D.C. Cir. 2003), as foreclosing the award of attorney’s fees
based on a grant of partial summary judgment or a preliminary
injunction. But that is a misreading. What failed to suffice in
Thomas was “partial summary judgment [that] did not afford
appellees any concrete relief, beyond [a] mere legal
declaration”; what was necessary for a fee award, we said, was
a declaration that “requir[ed] some action . . . by the defendant.”
Id. at 493-94 (internal quotation marks omitted). Similarly, the
deficiency in the Thomas injunction was not that it was
preliminary, but that it did nothing more than “preserve[] the
status quo pending final adjudication of the case,” after which
it was vacated and its existence adjudged by this court to have
had no consequence. Id. at 493. The case was “easily
distinguishable,” we said, from those in which the “specific
relief granted . . . was concrete and could not be reversed.” Id.
Our recent decision in Select Milk Producers, Inc. v.
Johanns, 400 F.3d 939 (D.C. Cir. 2005), confirms this reading.
There, we rejected the government’s suggestion that Thomas
established a “per se rule that a preliminary injunction can never
serve as the basis for deeming a plaintiff a ‘prevailing party’”
under a fee-shifting statute. Id. at 946. “Rather,” we said,
“Thomas held that, in the particular circumstances of that case,
plaintiffs could not satisfy the ‘prevailing party’ requirement,
because the preliminary injunction at issue had not changed the
legal relationship between the parties.” Id. As we explained,
“Thomas did not suggest that, in a dispute such as the one [in
Select Milk], where a preliminary injunction effected a
substantial change in the legal relationship between the parties
and provided plaintiffs with concrete and irreversible relief,
plaintiffs could not be considered ‘prevailing parties.’” Id.
Edmonds’ eligibility for fees is consistent with Thomas and
Select Milk. Here, the plaintiff received not just a declaration of
12
her right to expedited processing, but an order that “changed the
legal relationship between the parties.” Id. And unlike the
preliminary injunction in Thomas, the December 16, 2002 order
in this case “requir[ed] some action . . . by the defendant,”
Thomas, 330 F.3d at 493-94, and “provided plaintiffs with
concrete and irreversible relief,” Select Milk, 400 F.3d at 946.
Indeed, this is an easier case than Select Milk because there was
nothing “preliminary” about the order requiring the FBI to
release all nonexempt documents by February 10; on the
contrary, the order granted Edmonds a portion of the ultimate
relief she sought in her complaint. The government is thus
wrong in contending that “‘[t]his type of judicial decree is not
enough to warrant a fee award, because it represents not the end
but the means of the litigation.’” Appellee’s Br. at 17 (quoting
Thomas, 330 F.3d at 494) (internal quotation marks omitted). In
this case, expedited processing was not just the means but an
end sought by the plaintiff. See Role Models America, Inc. v.
Brownlee, 353 F.3d 962, 966 (D.C. Cir. 2004) (concluding that
a plaintiff that obtained an injunction allowing it to compete for
excess military property was a “prevailing party,” because the
injunction “gave [the plaintiff] the precise relief it sought”).
4. Finally, the government insists that Edmonds is not a
prevailing party because the December 16, 2002 order set a date
for disclosure (initially January 31, subsequently extended to
February 10) that was later than a deadline the FBI “had earlier
agreed to meet.” Appellee’s Br. at 2. In response to Edmonds’
motion for an order compelling expedited processing, the
government did send her a letter offering to “advance the release
date” for responsive documents to January 20, 2003 -- “in order
to moot out [the] Motion.” Letter from V. Mei to D. K.
Colapinto (Oct. 8, 2002). But Edmonds declined the offer,
advancing a counterproposal seeking, inter alia, the
government’s agreement to entry of a judicial consent decree a
and payment of attorney’s fees. Letter from Colapinto to Mei
13
(Oct. 11, 2002).
Thereafter, the government did not voluntarily proceed to
expedite the process and meet the proffered January 20 date. To
the contrary, it effectively withdrew its offer, filing a motion to
stay the proceedings until April 1 and representing to the court
that it would take until then to process Edmonds’ request. See
Def.’s Opp’n to Mot. for Partial Summ. J. & Cross Mot. for
Open America Stay at 3 (Oct. 23, 2002); C. Kiefer Decl. ¶¶ 45-
46 (Oct. 23, 2002). Accordingly, once the court granted
Edmonds’ motion and compelled production by February 10, the
government’s production on that date could not be regarded as
voluntary.
Still, the government sees Edmonds as having gamed the
system in a way that courts should prevent. Citing a 1976
opinion by Judge Friendly, the government complains that
granting attorney’s fees under these circumstances would
“create perverse incentives to litigate solely for the sake of a fee
award.” Appellee’s Br. at 16 (citing Vermont Low Income
Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir.
1976)). In the government’s view, “Edmonds’ rejection of the
proffered January 20 date was not based on any principled
reason -- the avowed and only purpose of litigating the motion
was an effort to obtain attorneys’ fees.” Id. Edmonds begs to
differ. She insists that she declined to accept the offer primarily
because the government refused to agree to make it judicially
enforceable, a proviso she thought necessary in light of what she
describes as the government’s “prior failure to address her
expedited processing requests . . . and [its] prior misleading and
inconsistent statements . . . as to a possible release date.”
Appellant’s Reply Br. at 5-6.
This dispute is beside the point. Indeed, it is ironic that the
government presses Judge Friendly’s opinion upon us, since in
14
OCAW it successfully urged this court to reject that same
opinion -- which had reasoned (inter alia) that the government
should not be allowed to “abort any award of attorney fees by an
eleventh hour tender of the information requested” after
“developments made it apparent that the judge was about to rule
for the plaintiff.” OCAW, 288 F.3d at 456 (quoting Vermont
Low Income Advocacy Council, 546 F.2d at 513). Accepting the
government’s view, the OCAW court read Buckhannon as
holding that “policy arguments could not carry the day because
the meaning of ‘prevailing party’ was clear.” Id. And in
Alegria v. District of Columbia, 391 F.3d 262 (D.C. Cir. 2004),
we similarly recognized that Buckhannon had given “short
shrift” to policy arguments about the impact its “judicially
sanctioned change” requirement would have on litigation
strategies. Id. at 265 (citing Buckhannon, 532 U.S. at 607-08).
For that reason, we felt ourselves likewise obliged to give short
shrift to the Alegria plaintiffs’ policy argument that refusing to
permit fee awards for private settlements would lead to
unnecessarily protracted litigation. See id. at 269.
In Buckhannon, the Supreme Court determined that,
“[g]iven the clear meaning of ‘prevailing party’ in the fee-
shifting statutes, . . . Congress ha[s] not extended any roving
authority” to the courts to consider policy arguments in
determining eligibility for attorney’s fees. 532 U.S. at 610
(internal quotation marks omitted). There is nothing in
Buckhannon or our own cases that would permit us to assume
such a roving authority when the policy arguments are made by
the government, rather than the plaintiff.
IV
We therefore conclude that Edmonds “prevailed” in her
FOIA action by obtaining court-ordered, expedited processing
of her request, which culminated in the release of 343
15
nonexempt pages. Generally, “plaintiffs may be considered
prevailing parties for attorney’s fees purposes if they succeed on
any significant issue in litigation which achieves some of the
benefit the parties sought in bringing the suit.” Farrar v. Hobby,
506 U.S. 103, 109 (1992) (internal quotation marks omitted); see
Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489
U.S. 782, 790 (1989) (“[T]he degree of the plaintiff’s success in
relation to the other goals of the lawsuit is a factor critical to the
determination of the size of a reasonable fee, not to eligibility
for a fee award at all.”). The same holds true in FOIA cases,
given our determination that “the ‘substantially prevail’
language in FOIA [is] the functional equivalent of the
‘prevailing party’ language found in other statutes.” OCAW,
288 F.3d at 455-56. Accordingly, Edmonds is eligible for an
award of attorney’s fees whether or not she also substantially
prevailed by obtaining the release of an additional three pages,
and we need not decide that issue.
That is not the end of the matter, however. Our case law
makes clear that a FOIA plaintiff who “substantially prevail[s]”
becomes eligible for attorney’s fees; whether the plaintiff is
actually entitled to a fee award is a separate inquiry that requires
a court to consider a series of factors. See, e.g., Tax Analysts v.
DOJ, 965 F.2d 1092, 1093-94 (D.C. Cir. 1992); see also 5
U.S.C. § 552(a)(4)(E) (providing that “[t]he court may assess .
. . reasonable attorney fees . . . in any case under this section in
which the complainant has substantially prevailed” (emphasis
added)). Because the district court found Edmonds ineligible for
fees, it did not address the second step of the inquiry, Edmonds,
310 F. Supp. 2d at 58 n.2, which both parties agree is not before
us. We therefore remand for the district court to consider that
question.
Reversed and remanded.