United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2007 Decided December 28, 2007
No. 06-5333
CAMPAIGN FOR RESPONSIBLE TRANSPLANTATION,
APPELLANT
v.
FOOD & DRUG ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02849)
Howard M. Crystal argued the cause for appellant. With
him on the briefs was Katherine A. Meyer.
Alan Burch, 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: GRIFFITH, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Appellant, Campaign for
Responsible Transplantation (“CRT”), is a not-for-profit
organization dedicated to educating the public about the health
2
risks associated with xenotransplantation, a relatively new
procedure whereby animal organs or tissues are transplanted to
the human body. Since the late 1990s, the Food and Drug
Administration (“FDA”) has permitted clinical trials of
xenotransplantation products. In order to learn more about these
trials, CRT submitted a request to FDA under the Freedom of
Information Act (“FOIA”), seeking records regarding
applications to conduct clinical trials that involve
xenotransplantation and past and present clinical trials involving
xenotransplantation. CRT subsequently narrowed its FOIA
request to include only records pertaining to xenotransplantation
clinical trials in 35 investigational new drug (“IND”)
applications involving xenotransplantation. After CRT’s FOIA
request was constructively denied through agency nonresponse,
CRT initiated suit in the District Court to compel the release of
responsive documents.
During the course of litigation, CRT filed a motion to
require FDA to produce an index of all documents under
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), and FDA filed
a cross-motion to submit a sample Vaughn index of a
representative IND. The trial court granted FDA’s request and
denied CRT’s motion. Campaign for Responsible
Transplantation v. FDA, 180 F. Supp. 2d 29 (D.D.C. 2001)
(memorandum opinion) (“CRT I”). After FDA submitted two
sample Vaughn indices, both parties moved for summary
judgment on whether the sample Vaughn indices were sufficient
to satisfy FDA’s burden of proof that the withheld documents
were exempt from disclosure. The trial court ruled against FDA,
holding that the sample Vaughn indices were inadequate.
Campaign for Responsible Transplantation v. FDA, 219 F.
Supp. 2d 106 (D.D.C. 2002) (memorandum opinion) (“CRT II”).
After FDA produced the revised Vaughn indices, the parties
again moved for summary judgment. This time, the trial court
found that the indices were adequate and that the exemptions
3
claimed by FDA were valid. In its memorandum opinion, the
District Court also ordered FDA to release documents in all
other requested INDs that were similar in kind to the documents
that had been released for the sample INDs. Campaign for
Responsible Transplantation v. FDA, Civ. Action No. 00-2849,
mem. op. at 22 (D.D.C. Sept. 24, 2004), reprinted in Joint
Appendix (“JA”) 109 (“CRT III”).
CRT moved for attorney’s fees, pursuant to 5 U.S.C.
§ 552(a)(4)(E) under which a court may assess “reasonable
attorney fees” when a “complainant has substantially prevailed.”
The District Court denied the request for fees on the ground that
CRT had not substantially prevailed in its litigation. Campaign
for Responsible Transplantation v. FDA, 448 F. Supp. 2d 146
(D.D.C. 2006) (memorandum opinion) (“CRT IV”).
On this record, we reverse in part the judgment of the
District Court and hold that CRT was a prevailing party by
virtue of the September 24, 2004 memorandum opinion and
order. A complainant substantially prevails in litigation only if
the court grants some “judicial relief.” Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S.
598, 606 (2001) (emphasis and quotation marks omitted). The
trial court’s final order in this case – requiring FDA to release
documents – was sufficient judicial relief to make CRT a
prevailing party. CRT is therefore eligible for attorney’s fees.
Before fees are awarded, however, a party must not only be
eligible for attorney’s fees – the party must also be entitled to
those fees. See Edmonds v. F.B.I., 417 F.3d 1319, 1327 (D.C.
Cir. 2005). Because the trial court found CRT to be ineligible,
it did not reach the question of whether CRT was entitled to
attorney’s fees. We therefore remand to the District Court for
a determination of whether CRT is entitled to attorney’s fees.
4
I. BACKGROUND
On March 9, 2000, CRT submitted a written FOIA request
to FDA for “all records concerning applications for approval to
conduct clinical trials that involve xenotransplantation, and all
information concerning currently on-going and concluded
clinical trials involving xenotransplantation.” Letter from
Katherine A. Meyer, Attorney representing CRT, to Betty
Dorsey, Director, FOIA Office, FDA (Mar. 9, 2000), JA 43.
Xenotransplantation is defined as “any procedure that involves
the transplantation, implantation, or infusion into a human
recipient of either (a) live cells, tissues, or organs from a
nonhuman animal source or (b) human body fluids, cells, tissues
or organs that have had ex vivo contact with live nonhuman
animal cells, tissues, or organs.” UNITED STATES PUBLIC
HEALTH SERVICE, OMB CONTROL NO. 0910-0456, GUIDELINE
ON INFECTIOUS DISEASE ISSUES IN XENOTRANSPLANTATION 4
(2001); see 66 Fed. Reg. 8,120 (Jan. 29, 2001). It is not disputed
that FDA has authority under several statutes to regulate
xenotransplantation products as drugs or medical devices. See,
e.g., 21 U.S.C. §§ 321(g)(1), 355(a), (b); 42 U.S.C. § 262(a); 21
C.F.R. pts. 312, 601. At the time of the FOIA request, FDA had
approved over 30 IND applications, authorizing pharmaceutical
and biotechnology companies to conduct xenotransplantation
clinical trials in humans.
FOIA is a disclosure statute “enacted to facilitate public
access to Government documents.” Dep’t of State v. Ray, 502
U.S. 164, 173 (1991). A federal agency that receives a FOIA
request must make a determination within 20 working days
whether to release the requested documents. 5 U.S.C.
§ 552(a)(6)(A)(i). Although an agency may seek a brief
extension of this deadline, id. § 552(a)(6)(B), it may only
continue to withhold responsive records if they fall within one
or more of the nine exemptions to the statute’s disclosure
mandate. Id. § 552(b)(1)-(9).
5
In a letter dated March 14, 2000, FDA acknowledged
CRT’s FOIA request and stated that it would respond to the
request “as soon as possible.” CRT I, 180 F. Supp. 2d at 31.
When CRT did not receive a response by August 2, 2000, it
appealed to the agency. Id. After FDA failed to respond to the
appeal, CRT filed suit in the District Court on November 27,
2000. Id. Under 5 U.S.C. § 552(a)(4)(B), when responsive
documents have been unjustifiably withheld, a district court has
the power to “enjoin the agency from withholding agency
records and to order the production of any agency records
improperly withheld.” The agency bears the burden of proving
that withheld information is exempt from disclosure. Dep’t of
Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.
749, 755 (1989).
Over the course of the litigation, CRT refined its FOIA
request. Initially, CRT sought information submitted to FDA
by third parties, but CRT eventually narrowed its request to
include only FDA-created documents. CRT I, 180 F. Supp. 2d
at 31. In an effort to identify all responsive documents held by
FDA, and further narrow the scope of the litigation, CRT moved
for a Vaughn index of all FDA-generated documents, stating,
“once defendant produces such an index, plaintiff may have a
basis for deciding which, if any, such records it wishes to
pursue.” Id. (quoting plaintiff’s motion) (brackets omitted). A
Vaughn index is created by an agency to assist courts and FOIA
requesters when the agency claims that responsive documents
are exempt from disclosure. The index is supposed to “describe
with reasonable specificity the material withheld” and justify
why each responsive document is exempt from disclosure under
FOIA. King v. Dep’t of Justice, 830 F.2d 210, 221 (D.C. Cir.
1987). When creating a Vaughn index, “[a] withholding agency
must describe each document or portion thereof withheld, and
for each withholding it must discuss the consequences of
disclosing the sought-after information.” Id. at 223-24
(emphasis omitted).
6
FDA balked at CRT’s request for a comprehensive Vaughn
index. The agency argued that it would take two years to
compile the index sought by CRT and require review of nearly
a quarter of a million pages of documents. CRT I, 180 F. Supp.
2d at 33 (citing defendant’s motion). In response to CRT’s
motion, FDA filed a cross-motion for a sample Vaughn index
whereby a representative IND would be selected, and FDA
would compile a Vaughn index of the responsive documents for
that IND.
The trial court ruled in favor of FDA, allowing the agency
to produce a representative sample Vaughn index. The trial
court “accord[ed] FDA deference in its description of the
documents in each IND as essentially uniform.” Id. at 34
(quotation marks omitted). FDA indicated that it planned to
assert the same exemptions for the documents in the sample IND
and the same types of documents in the other INDs. In other
words, in FDA’s view, the sample Vaughn index would provide
CRT and the trial court with all necessary information for all of
the INDs. Id. In order to “further ensure the representativeness
of the sample, . . . the court [allowed] CRT to choose the IND to
be indexed.” Id. CRT chose IND G to be the subject of the
sample Vaughn index.
In August 2001, FDA provided CRT with the sample
Vaughn index for all records concerning IND G, and an
additional Vaughn index for FDA records concerning
xenotransplantation that were not related to any particular IND.
Br. of Appellant at 12. At that time, FDA stated that it would
release all nonexempt documents associated with IND G (which
were not included in the sample Vaughn index because they
were not exempt). Id. CRT challenged the adequacy of the
sample Vaughn index, and complained that FDA still had
refused to actually release responsive, nonexempt documents.
On December 4, 2001, the District Court entered an order setting
a briefing schedule and ordering FDA to release responsive,
7
nonexempt documents before December 17, 2001. Id. at 12-13.
Subsequent to that order, FDA released hundreds of responsive
documents to CRT. Id. at 13.
CRT and FDA moved for summary judgment on the
question of whether FDA’s search was reasonable, and also on
the question of whether the sample Vaughn indices satisfied
FDA’s burden of showing that the withheld documents were in
fact exempt from disclosure. On September 3, 2002, the District
Court reviewed the steps that FDA had taken to search for
responsive documents, and ruled that the agency’s search was
reasonable and therefore adequate. CRT II, 219 F. Supp. 2d at
110-11. The trial court then turned to the question of the
adequacy of the Vaughn indices. The court found that they were
flawed, because “[t]he description, reason for withholding, and
cross-references do not provide enough information to give this
court and the requester a clear indication of the justification for
each exemption.” Id. at 112. The District Court reasoned that
the purpose of the Vaughn index was to give the requester
sufficient information to challenge an agency’s claim that a
document was exempt, and give the court the ability to rule on
the withheld documents without having to review voluminous
information in camera. Id. at 111. The trial court found that
“many of the descriptions” given by FDA “only provide[d] a
vague hint at the possible contents of the documents.” Id. at
112. The trial court also found that simply listing “terms from
the general legal standard for the relevant FOIA exemptions”
did not provide a “clear explanation” for why documents were
being withheld. Id. at 114 (quotation marks omitted). Finally,
the trial court held that FDA’s cross-references to other
documents violated the requirement that the index be “one
complete document.” Id. at 114-15. The trial court ordered
FDA to file new Vaughn indices.
After this ruling, CRT agreed to further narrow its FOIA
request to include only documents concerning clinical trials
8
involving pigs and nonhuman primates, leaving 19 INDs at
issue. Br. for Appellee at 3. The agency then produced roughly
a thousand additional records and parts of records, and
substantially revised the Vaughn indices for those records that
it continued to maintain were exempt from disclosure. Br. of
Appellant at 15. The parties again filed cross-motions for
summary judgment.
On September 24, 2004, the District Court issued an
opinion holding that the revised indices were adequate and that
the exemptions claimed by FDA were valid. CRT III, mem. op.,
JA 88. The court addressed two provisions of FOIA. First,
under 5 U.S.C. § 552(b)(4), FOIA’s disclosure requirements
“[do] not apply to matters that are . . . trade secrets and
commercial or financial information obtained from a person and
privileged or confidential.” The trial court, after reviewing the
updated Vaughn index as well as supporting affidavits, held that
for the five documents that the agency claimed the trade secrets
exemption, “the FDA [had] fulfilled its burden of justifying non-
disclosure” because the documents “contained confidential,
commercial information and trade secrets which, if disclosed,
would cause a substantial competitive injury.” Id. at 9, JA 96.
Second, under 5 U.S.C. § 552(b)(5), agencies need not release
“inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency.” The District Court agreed with FDA
that 16 withheld documents were deliberative, and therefore
excludable. Id. at 13, JA 100.
As part of its motion for summary judgment, CRT sought
not only the withheld documents for the sample INDs, but also
the “immediate disclosure of the other 18 INDs that [were]
similar in kind to the representative sample IND G.” Id. at 4, JA
91 (quotation marks omitted). In response to this request, the
District Court ordered FDA to disclose all records that were
9
“similar in kind” to the records that it disclosed for IND G. Id.
at 22, JA 109.
CRT then moved for an award of attorney’s fees under 5
U.S.C. § 552(a)(4)(E). In order to be eligible for attorney’s fees,
a plaintiff must substantially prevail in its suit. CRT argued that
the court order stating that FDA’s original Vaughn indices were
inadequate, the subsequent release of thousands of requested
documents, and the September 24, 2004 order requiring the
additional release of documents similar in kind to previously
released documents were sufficient victories for CRT to be a
prevailing party. The District Court disagreed and denied
CRT’s motion. CRT IV, 448 F. Supp. 2d at 153-54. This appeal
followed.
II. ANALYSIS
A. Standard of Review
CRT argues that the District Court committed legal error in
construing FOIA’s prevailing party requirement. Cf. Thomas v.
Nat’l Sci. Found., 330 F.3d 486, 491 (D.C. Cir. 2003). We
review de novo the District Court’s denial of the award of
attorney’s fees, inasmuch as it “rests on an interpretation of the
statutory terms that define eligibility for an award.” Davis v.
Dep’t of Justice, 460 F.3d 92, 97 (D.C. Cir. 2006) (quotation
marks omitted).
B. The Legal Framework for the Assessment of Attorney Fee
Claims
1. The Buckhannon Decision
The law governing when a plaintiff is a “prevailing party”
for purposes of fee-shifting statues is stated in Buckhannon and
its progeny. Buckhannon interpreted the meaning of the term
“prevailing party” in the Fair Housing Amendments Act of 1988
and the Americans with Disabilities Act of 1990. 532 U.S. at
600-01 (noting that the term appears in “[n]umerous federal
10
statues [that] allow courts to award attorney’s fees and costs”).
The Court rejected the “catalyst theory,” pursuant to which a
plaintiff might be found to be a “prevailing party” if the plaintiff
achieves a “desired result because the lawsuit [brings] about a
voluntary change in the defendant’s conduct.” Id. at 601-02.
Buckhannon thus “establish[ed] a framework for construing
and applying the ‘prevailing party’ requirement.” Thomas, 330
F.3d at 493. Under that framework, a “prevailing party is one
who has been awarded some relief by the court.” Buckhannon,
532 U.S. at 603 (quotation marks omitted). A claimant is
successful in litigation when there has been a “court-ordered
change in the legal relationship between the plaintiff and the
defendant.” Id. at 604 (quotation marks and brackets omitted).
Something more than a mere “judicial pronouncement” is
necessary – there must also be “judicial relief” on the merits of
the plaintiff’s claim. Id. at 606 (emphasis and quotation marks
omitted).
2. Buckhannon Applied to FOIA Cases
In Oil, Chemical & Atomic Workers International Union v.
Department of Energy, 288 F.3d 452 (D.C. Cir. 2002)
(“OCAW”), we held that Buckhannon applied to FOIA cases:
“eligibility for an award of attorney’s fees in a FOIA case
should be treated the same as eligibility determinations made
under other fee-shifting statutes unless there is some good
reason for doing otherwise.” OCAW, 288 F.3d at 455. We
found no good reason to treat FOIA differently than the statutes
at issue in Buckhannon. Id. at 455-56. Therefore, “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.” Id. at 456-57 (quotations marks and brackets omitted).
11
3. The Voluntary Release of Documents Versus Court-
Ordered Relief
Under the Buckhannon standard, an agency’s voluntary
release of documents does not make a plaintiff a “prevailing
party” in FOIA litigation, even if the FOIA lawsuit is a catalyst
for the voluntary release. In OCAW, a union sought documents
under FOIA from the United States Enrichment Corporation and
the Department of Energy. Id. at 453. After the Energy
Department began reviewing and releasing documents, id. at
457, the trial court approved a “Stipulation and Order” which
stated: “In light of defendant’s production of substantial
amounts of material responsive to plaintiff’s claim for relief in
this action, the action is hereby dismissed with prejudice . . . .”
Id. We determined that the agency’s voluntary release of
documents “did not constitute a decision on the merits.” Id.
Therefore, there was no judicial relief that would make the
union a prevailing party. Id. at 459. Likewise, in Davis, the
voluntary release of tapes by the Federal Bureau of Investigation
(“FBI”) did not make the plaintiff a prevailing party, even when
the FBI released the tapes because they had been played at trial.
460 F.3d at 105-06.
In OCAW, however, we noted that if the “stipulation
between the union and the Energy Department outlined
documents the government still needed to disclose to the union,
matters might be different.” 288 F.3d at 458. We addressed
exactly that question in Davy v. C.I.A., 456 F.3d 162 (D.C. Cir.
2006). There, the plaintiff and the Central Intelligence Agency
(“CIA”) “reached a Joint Stipulation for the production of
responsive documents. The district court approved the Joint
Stipulation and memorialized it in a court order. . . . The order
provide[d] that the ‘CIA will provide Plaintiff all responsive
documents, if any’ . . . by certain dates.” 456 F.3d at 164
(quoting order of the District Court). We held that this order
“changed the legal relationship between the plaintiff and the
12
defendant.” Id. at 165 (quotation marks and brackets omitted).
We further held that “[t]he order . . . is functionally a settlement
agreement enforced through a consent decree” and, therefore,
clearly within the meaning of judicial relief under Buckhannon.
Id. at 166.
4. Orders Issued During the Course of Litigation
In some cases, the court has been required to determine
whether a plaintiff is a prevailing party in a FOIA action when
the trial court issues an order in plaintiff’s favor during the
course of the litigation. Two principal rules guide the
disposition of such cases. First, in assessing whether a plaintiff
is a prevailing party, “it is of no import” whether an order comes
“midway through the proceeding, rather than at its end.”
Edmonds, 417 F.3d at 1324. Second, a favorable order does not
make a plaintiff a prevailing party unless the order constitutes
judicial relief on the merits resulting in a “court-ordered change
in the legal relationship between the plaintiff and the defendant.”
Buckhannon, 532 U.S. at 604 (brackets and quotation marks
omitted).
In OCAW, the plaintiff was able to defeat a motion to
dismiss for lack of jurisdiction. However, that victory was not
judicial relief within the meaning of Buckhannon, because it
merely allowed the plaintiff to move forward with the lawsuit;
it did not “alter the legal relationship between [the] parties.”
OCAW, 288 F.3d at 458. Likewise, an order from the trial court
to the Energy Department to “complete its record review” within
a fixed timetable was not judicial relief. Id.; see also Edmonds,
417 F.3d at 1323 (discussing OCAW). Even though the
defendant was required to act, the order did not provide any
relief to the plaintiff – it simply forwarded the litigation process.
In Thomas, a preliminary injunction barring defendant from
spending money from a contested fund did not make plaintiff a
prevailing party. 330 F.3d at 493-94. That preliminary
injunction merely preserved the status quo and thus did not
13
change the legal relationship between the parties, as required by
Buckhannon. Id. at 493. Even a finding by the District Court
that the defendant’s conduct was unconstitutional was held to be
inadequate to make the plaintiff eligible for fees, because the
finding did not constitute a judicial order affording discernible
relief to the plaintiff. Id. at 493-94.
In Edmonds, however, we held that a partial summary
judgment granting a plaintiff expedited review of a FOIA
request, coupled with an order to the agency to release
nonexempt documents by a date certain, was sufficient to render
the plaintiff a prevailing party. 417 F.3d at 1322-23. The court
noted that expedited review of a FOIA request is a “statutory
right, not just a matter of court procedure.” Id. at 1323.
Therefore, the court concluded that the order requiring the
agency to grant the plaintiff expedited review vindicated the
rights of the plaintiff and afforded plaintiff discernible relief on
the merits of the FOIA claim. This satisfied the Buckhannon
standard and made the plaintiff eligible for fees.
C. Application of the Legal Principles to the Facts of the
Case
1. CRT’s Claims in This Case
CRT argues that two decisions of the trial court were
sufficient to support a finding that it was a prevailing party:
first, the trial court’s holding on September 3, 2002 that FDA’s
first Vaughn index was inadequate; second, the September 24,
2004 order requiring FDA to release documents similar in kind
to documents it had released under the sample IND. Applying
the above legal framework to these decisions, we find that the
grant of summary judgment in favor of CRT with respect to the
Vaughn indices was not judicial relief sufficient to make CRT
a prevailing party. However, the September 24, 2004 order –
requiring FDA to release documents sought by CRT –
constituted court-ordered relief on the merits of CRT’s claim
14
that changed the legal relationship between the parties. That
order therefore made CRT a prevailing party eligible for
attorney’s fees under FOIA.
2. The September 3, 2002 Partial Summary Judgment and
Order
After FDA prepared the initial Vaughn indices for the
sample IND and the other responsive documents that were not
related to any particular IND, both CRT and FDA moved for
summary judgment. The District Court found that the agency
had conducted a reasonable search, but also found that the
Vaughn indices were inadequate. Therefore, on September 3,
2002, the District Court granted partial summary judgment in
favor of CRT and ordered FDA to resubmit adequate Vaughn
indices. CRT II, 219 F. Supp. 2d at 112-16. CRT argues that
the grant of partial summary judgment and the subsequent court
order were sufficient for it to be a prevailing party under FOIA.
The District Court disagreed, stating:
[B]efore September 3, 2002, the court had not ordered the
FDA to turn over any documents; after September 3, 2002,
the FDA still had no obligation to do so. Similarly, before
September 3, 2002, the FDA was under judicial direction to
produce an adequate Vaughn index; after September 3,
2002, the FDA was under judicial direction to produce an
adequate Vaughn index. In short, the 2002 order preserved
the status quo because it required the FDA to do something
it was already required to do, namely, produce a suitable
Vaughn index. Because the 2002 order preserved the status
quo, it did not alter the legal relationship between the
parties.
CRT IV, 448 F. Supp. 2d at 152 (citations omitted). The District
Court arrived at the correct conclusion, albeit for an erroneous
reason.
15
The District Court erred in suggesting that a court order is
insufficient to support a claim for attorney’s fees if it merely
“require[s an agency] to do something it was already required to
do.” This is not the law and Government counsel acknowledged
as much during oral argument before this court. Whenever a
court grants relief of the sort contemplated by Buckhannon, it
requires an agency to fulfil its existing legal obligations. There
is no basis for such a court order without a preexisting legal
obligation. Obviously, then, such an order constitutes a “court-
ordered change in the legal relationship between the plaintiff
and the defendant,” see Buckhannon, 532 U.S. at 604 (brackets
and quotation marks omitted), so as to make the plaintiff a
prevailing party. Therefore, it is clear that a court order
requiring a recalcitrant agency to release documents pursuant to
the legal mandate of FOIA is sufficient to render the plaintiff a
prevailing party.
In this case, however, a straightforward application of
OCAW and Edmonds shows that the trial court’s decision and
order relating to the Vaughn indices did not make CRT a
prevailing party. The trial court’s order to FDA to redo its
Vaughn indices is similar to the District Court’s order to the
Energy Department to “complete its record review” within a
fixed timetable in OCAW and unlike the court’s order to the FBI
to expedite review of a FOIA request in Edmonds. In OCAW,
the order was “procedural – conduct a search – as opposed to
substantive.” Davy, 456 F.3d at 165 (discussing OCAW). The
search was not the relief on the merits that plaintiff sought;
plaintiff sought the release of documents. In Edmonds, on the
other hand, the defendant was required to “permit the plaintiff
to ‘jump to the head of the line’ – a meaningful obligation in
itself” – and also to “produce the [responsive, nonexempt]
documents by the court-designated deadline.” 417 F.3d at 1323.
The court in Edmonds ordered the agency to do what the law
required – something that it had theretofore been unwilling to do
– and thus changed the legal relationship between the parties;
16
and the plaintiff prevailed on the merits of its claim by virtue of
that court-ordered relief.
Vaughn indices are not properly understood as relief on the
merits for a FOIA plaintiff. In Vaughn, this court faced a
situation in which a federal agency had denied a FOIA request,
and the trial court upheld that denial “on the basis of [a
government] affidavit” that “did not illuminate or reveal the
contents of the information sought, but rather set forth in
conclusory terms the Director’s opinion that the [documents]
were not subject to disclosure under . . . FOIA.” Vaughn, 484
F.2d at 823. Noting that “secret information is, by definition
unknown,” id., we were troubled by the fact that only the party
opposing disclosure had any knowledge about the documents
sought. We also expressed concern over the “distort[ing]”
effects of this information asymmetry on “the traditional
adversary nature of our legal system’s form of dispute
resolution.” Id. at 824. We therefore held that the District Court
should “no longer accept conclusory and generalized allegations
of exemptions” from Government agencies in FOIA cases, and
created what came to be known as the Vaughn index
requirement. Id. at 826-27.
The principal purpose of a Vaughn index is to facilitate the
litigation process. A Vaughn index, without more, does not
constitute court-ordered relief for a plaintiff on the merits of its
FOIA claim, so it does not change the legal relationship between
the plaintiff and the defendant. See, e.g., Davis, 460 F.3d at
105-06. Therefore, an order compelling the production of a
Vaughn index, without more, is not enough to make a plaintiff
a “prevailing party” sufficient to support a claim for attorney’s
fees.
In this case, the trial court’s decision that FDA’s Vaughn
indices were inadequate, and subsequent order requiring FDA to
produce new indices, did not constitute judicial relief of the sort
contemplated by Buckhannon. Therefore, CRT cannot
17
successfully claim to be a prevailing party based upon those
decisions.
3. The September 24, 2004 Order
After FDA produced the second version of the Vaughn
indices, both the agency and CRT again moved for summary
judgment. This time, the trial court found that the indices were
adequate and that the exemptions claimed by FDA were valid.
CRT III, mem. op. at 6-22, JA 93-109. At the end of its
memorandum opinion, however, the District Court granted
specific relief to CRT on the merits of its FOIA claim:
Finally, the court addresses the issue of the disclosure of
similar records in the 18 other INDs. In its July 23, 2001
memorandum opinion, the court granted the defendants’
motion to produce a sample Vaughn index from one IND
instead of all of the INDs at issue. Despite some initial
disagreement between the parties as to when the FDA had
to release the other IND documents, it appears that the
parties both understood that the disclosure was to occur
after the court’s ruling on the cross-motions for summary
judgment. That time has arrived. Because IND G was
supposed to be representative of all of the INDs, the FDA
must now disclose all FDA generated records that pertain
to the other 18 INDs that are similar in kind to the IND G
records that the FDA has already released.
Id. at 22, JA 109 (citations omitted) (emphasis added). The
court contemporaneously issued an order stating: “[I]t is
ordered that the FDA shall disclose all FDA generated records
that pertain to the other 18 INDs that are similar in kind to the
IND G records that the FDA has already released.” Campaign
for Responsible Transplantation v. FDA, Civ. Action No. 00-
2849 (D.D.C. Sept. 24, 2005) (order), JA 111.
Given this record, our decision in Davy controls the
disposition here. In Davy, the parties created a Joint Stipulation
18
that was approved and memorialized in an order of the trial
court. Even though the parties arrived at a mutually acceptable
agreement, we held that the order memorializing the agreement
created the necessary judicial imprimatur for plaintiffs to be a
prevailing party. A fortiori the court order here does so as well.
This is not a case in which FDA voluntarily released the
documents covered by the trial court’s September 24, 2004
order. The agency released the disputed documents only after
the order was issued, and it released the documents pursuant to
that order. It is irrelevant that the “defendant had agreed in its
. . . summary judgment motion to release non-exempt,
responsive documents related to all INDs after the court ruled on
the dispositive motions.” CRT IV, 448 F. Supp. 2d at 154. The
agreement of the defendant to terms that are mandated by a
court order is besides the point. Once an order has been adopted
by the court, requiring the agency to release documents, the
legal relationship between the parties changes.
The opinion in OCAW contains general language to the
effect that, for a party to be eligible for attorney’s fees, the court
order in question must resolve a contested issue. However, the
more critical fact in OCAW, as we have already noted, is that the
order in question was strictly procedural (requiring that a record
review be completed in 60 days) and did not afford judicial
relief on the merits of the plaintiff’s FOIA claim. In contrast,
the order here, requiring the agency to produce records, resulted
in a changed legal relationship between the parties, giving
judicial relief to CRT on the merits of its claim. This is
sufficient under Buckhannon and its progeny to support CRT’s
eligibility for attorney’s fees under FOIA.
III. CONCLUSION
For the foregoing reasons, the denial of appellant’s request
for attorney’s fees under FOIA is reversed. As we stated in
Edmonds: “Our case law makes clear that a FOIA plaintiff who
substantially prevails becomes eligible for attorney’s fees;
19
whether the plaintiff is actually entitled to a fee award is a
separate inquiry that requires a court to consider a series of
factors.” 417 F.3d at 1327 (quotation marks, brackets, and
emphasis omitted). Because the District Court found CRT
ineligible for attorney’s fees, it did not inquire into whether it
was entitled to those fees. We therefore remand to the District
Court to make a determination on that question. See Davy, 456
F.3d at 166-67.
So ordered.