United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 25, 2008 Decided April 11, 2008
No. 07-5158
JUDICIAL WATCH, INC.,
APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 06cv01135)
Paul J. Orfanedes argued the cause for appellant. With
him on the briefs were Dale L. Wilcox and Meredith L. Di
Liberto.
Michael E. Robinson, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the briefs
were Jeffrey S. Bucholtz, Acting Assistant Attorney General,
Jeffrey A. Taylor, U.S. Attorney, and Leonard Schaitman,
Attorney.
Before: TATEL and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Pursuant to the Freedom of
Information Act, appellant Judicial Watch obtained two court
orders directing the government to release by specified dates
videotapes relevant to the tragic events of September 11,
2001. After receiving the tapes, Judicial Watch moved for
attorneys’ fees. The government argued, and the district court
agreed, that the organization was ineligible for an award of
fees because it had failed to “substantially prevail[]” as FOIA
requires. 5 U.S.C. § 552(a)(4)(E). Because we have thrice
held that court orders like the ones at issue here render
plaintiffs prevailing parties for purposes of FOIA’s attorney
fee provision, we reverse.
I.
Designed “to facilitate public access to Government
documents,” Dep’t of State v. Ray, 502 U.S. 164, 173 (1991),
the Freedom of Information Act requires federal agencies to
disclose information to the public upon reasonable request
unless the records at issue fall within specifically delineated
exemptions. 5 U.S.C. § 552. In December 2004, Judicial
Watch, a non-profit organization, filed a FOIA request with
the FBI seeking disclosure of videotapes showing “the
deliberate crash of Flight 77 into the Pentagon on September
11, 2001.” Appellants’ Opening Br. 3. Responding to the
request, the FBI stated that although it possessed some of the
videotapes, it would withhold them pursuant to FOIA
Exemption 7(A). See 5 U.S.C. § 552(b)(7)(A) (exempting
from disclosure documents “compiled for law enforcement
purposes” that “could reasonably be expected to interfere with
enforcement proceedings”). After filing an administrative
appeal that the FBI ignored for over a year, Judicial Watch
sued the Bureau in federal district court in June 2006. In the
meantime, Judicial Watch obtained two of the requested
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videotapes directly from the Department of Defense, leaving
only one in dispute.
Less than a month after Judicial Watch filed suit, the
parties entered into a “Stipulation and Agreed Order”
whereby the FBI acknowledged that it possessed the final
videotape and agreed to disclose it, but requested additional
time to redact the tape to protect personal privacy. Judicial
Watch raised no objection, and the order concluded: “Upon
completion of the redaction, Defendant shall produce the
videotape to Plaintiff without any other redactions and
without imposing search or duplication fees on Plaintiff in
this case.” Stipulation and Agreed Order ¶ 5, Judicial Watch
v. FBI, No. 06-1135 (July 19, 2006). Two days after the
parties reached agreement the district court approved the
order, which set an October 18 disclosure deadline. Pursuant
to this order, the FBI produced a redacted version of the
videotape.
About a week after bringing suit, Judicial Watch filed a
second and related FOIA request with the FBI. This request
sought another videotape showing the attack on the Pentagon,
which was recorded by a nearby Doubletree Hotel’s security
camera. Having received no response from the Bureau
regarding this second request, Judicial Watch amended its
complaint, then pending in district court, to include a demand
for the Doubletree tape. Once again, the FBI and Judicial
Watch reached agreement, entering into a second “Stipulation
and Agreed Order.” And once again, the FBI acknowledged
that it possessed the requested videotape and agreed to
disclose it after making certain redactions. The order
commanded, “Defendant shall have until and including
November 9, 2006 in which to complete its redaction of the
Doubletree Hotel videotape and to produce the videotape to
Plaintiff without any other redactions and without imposing
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any search or duplication fees on Plaintiff in this case.”
Stipulation and Agreed Order ¶ 7, Judicial Watch, No. 06-
1135 (Aug. 14, 2006). Four days later, the district court
signed off on the order. After a final stipulation and order
granting the FBI additional time to complete its redactions,
Judicial Watch received the Doubletree tape.
With the records it sought in hand, Judicial Watch
requested approximately $12,000 in attorneys’ fees pursuant
to 5 U.S.C. § 552(a)(4)(E), which allows courts to “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.”
Judicial Watch argued that it had “substantially prevailed” by
securing enforceable court orders requiring the videotapes’
release by dates certain. The district court denied Judicial
Watch’s motion, and this appeal followed. Because
determining whether a plaintiff has “substantially prevailed”
under FOIA section 553(a)(4)(E) presents a question of
statutory interpretation, we review the district court’s decision
de novo. See Davy v. CIA, 456 F.3d 162, 164 (D.C. Cir.
2006).
II.
In a string of recent cases, we have considered whether
plaintiffs have “substantially prevailed” for purposes of
FOIA’s attorney fee provision. See Campaign for
Responsible Transplantation v. FDA, 511 F.3d 187 (D.C. Cir.
2007) (“CRT”); Davy, 456 F.3d 162; Edmonds v. FBI, 417
F.3d 1319 (D.C. Cir. 2005); Oil, Chem. & Atomic Workers
Int’l Union v. Dep’t of Energy, 288 F.3d 452 (D.C. Cir. 2002)
(“OCAW”). Because we recently led interested readers on a
thorough tour of this case law, see CRT, 511 F.3d at 192-95;
Davy, 456 F.3d at 164-65, we decline to repeat the exercise
here even though, at least as far as the FBI is concerned, our
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holdings apparently maintain some aura of mystery. For
present purposes, we offer the following brief summary.
This court once followed the so-called “catalyst theory”
for attorneys’ fees in FOIA cases, meaning that “[s]o long as
the ‘litigation substantially caused the requested records to be
released,’ [a] FOIA plaintiff could recover attorney’s fees
even though the district court had not rendered a judgment in
the plaintiff’s favor.” OCAW, 288 F.3d at 454 (quoting
Chesapeake Bay Found., Inc. v. Dep’t of Agric., 11 F.3d 211,
216 (D.C. Cir. 1993)). After the Supreme Court rejected that
approach in Buckhannon Board & Care Home, Inc. v. West
Virginia Department of Health & Human Resources, 532
U.S. 598, 605 (2001), we held in OCAW that a FOIA plaintiff
has “substantially prevailed” if he has “‘been awarded some
relief by [a] court,’ either in a judgment on the merits or in a
court-ordered consent decree.” OCAW, 288 F.3d at 456-57
(quoting Buckhannon, 552 U.S. at 603). The question now
before us is whether the two court orders Judicial Watch
secured, which required the FBI to disclose specified
videotapes by certain dates, satisfy these criteria, rendering
the organization a prevailing party eligible for a fee award.
We need not dwell long on this question, for Davy v.
CIA answers it for us. There, an author filed a FOIA request
seeking documents related to the CIA’s alleged role in the
assassination of President John F. Kennedy. 456 F.3d at 163.
After the CIA denied this request and the plaintiff sued, the
parties “reached a Joint Stipulation for the production of
responsive documents,” which provided that the “CIA will
provide Plaintiff all responsive documents, if any . . . by
certain dates.” Id. at 164 (internal quotation marks omitted).
Once “[t]he district court approved the Joint Stipulation and
memorialized it in a court order,” the CIA complied and
disclosed the documents. Id. Observing that the order
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“provide[d] Davy with the precise relief his complaint
sought,” we held that the plaintiff had “substantially
prevailed” because “the order changed the ‘legal relationship
between [the plaintiff] and the defendant,’” and because the
plaintiff “was awarded some relief on the merits of his
claim.” Id. at 165 (quoting Buckhannon, 532 U.S. at 604).
We saw no functional difference between a joint stipulation
and order and a “settlement agreement enforced through a
consent decree,” which the Buckhannon Court held may serve
as the basis for an award of attorneys’ fees. Id. at 166. Prior
to the parties’ joint stipulation and order, we explained, “the
CIA was not under any judicial direction to produce
documents by specific dates; the . . . order changed that by
requiring the Agency to produce all responsive documents by
the specified dates.” Id. (internal quotation marks omitted).
And “[i]f the Agency failed to comply with the order,” we
noted, “it faced the sanction of contempt.” Id.
This should sound familiar. If not, consider our even
more recent opinion in CRT, a case concerning another
district court order requiring an agency to disclose certain
records to a requesting plaintiff. 511 F.3d at 197.
Reaffirming our holding in Davy, we explained that in the
earlier case, “[e]ven though the parties arrived at a mutually
acceptable agreement, . . . the order memorializing the
agreement created the necessary judicial imprimatur for
plaintiffs to be a prevailing party.” Id. Because the agency in
CRT “released the disputed documents only after the order
was issued, and it released the documents pursuant to that
order,” we concluded that “our decision in Davy
control[led].” Id. Accordingly, we held, in language hardly
difficult to decipher, that “[o]nce an order has been adopted
by the court, requiring the agency to release documents, the
legal relationship between the parties changes.” Id.; see also
Edmonds, 417 F.3d at 1323 (holding that an order requiring
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the FBI “to turn over all nonexempt documents by a date
certain,” along with an order requiring expedited processing
of the plaintiff’s request, rendered the plaintiff a prevailing
party eligible for attorneys’ fees under FOIA).
Judicial Watch argues that “this case is factually
indistinguishable from Davy” because here, as there, “the
parties had stipulated that the defendant agency would
produce the requested records by a date certain and the trial
court approved the parties’ joint stipulation.” Appellant’s
Opening Br. 12. We agree. The first joint stipulation and
order, duly signed by the district court, stated that “[u]pon
completion of the redaction, [the FBI] shall produce the
videotape to Plaintiff” by October 18, 2006. Stipulation and
Agreed Order ¶ 5, Judicial Watch, No. 06-1135 (July 19,
2006) (emphasis added). Similarly, the second agreed-upon
order stated that the FBI “shall have until and including
November 9, 2006 in which to complete its redaction of the
Doubletree Hotel videotape and to produce the videotape to
Plaintiff . . . .” Stipulation and Agreed Order ¶ 7, Judicial
Watch, No. 06-1135 (Aug. 14, 2006) (emphasis added).
Merely recapitulating these terms, the third stipulation and
order extended the disclosure deadline by some seven weeks.
Stipulation and Agreed Order ¶¶ 7-9, Judicial Watch, No. 06-
1135 (Nov. 8, 2006). As we said in CRT, “[g]iven this
record, our decision in Davy controls the disposition here.”
CRT, 511 F.3d at 197. Indeed, if anything, this case is even
stronger than Davy. There, the order directed the CIA to
“provide Plaintiff all responsive documents, if any,” Davy,
456 F.3d at 164 (quotation marks omitted) (emphasis added),
while the orders at issue here specifically identified and
required disclosure of the precise records Judicial Watch
sought, see Stipulation and Agreed Order ¶ 5, Judicial Watch,
No. 06-1135 (July 19, 2006) (requiring the FBI to redact and
disclose “the Nexxcom/Citgo videotape”); Stipulation and
8
Agreed Order ¶ 7, Judicial Watch, No. 06-1135 (Aug. 14,
2006) (requiring the FBI to redact and disclose “the
Doubletree Hotel videotape”).
In spite of all this, the FBI argues that OCAW rather than
Davy controls this case. OCAW involved an order, dated
August 23, 1999, that the court characterized as a “status
report” directing the Department of Energy to search its files
and release any nonexempt records to a FOIA requester. 288
F.3d at 457. Over a dissent, the OCAW court found that order
insufficient to support an award of attorneys’ fees. According
to the FBI, the order in this case is indistinguishable from the
OCAW order, and like the OCAW plaintiff, Judicial Watch is
ineligible for a fee award. As for Davy’s and CRT’s contrary
holdings, the FBI simply says that the “panel in Davy was
mistaken,” Appellee’s Br. 21, that the CRT panel similarly
“misread[] OCAW,” id. at 27, and that we must therefore
follow OCAW rather than the later opinions. See Haynes v.
Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996) (“[W]hen
faced with an intra-circuit conflict, a panel should follow
earlier, settled precedent over a subsequent deviation
therefrom.”)
Given that three post-OCAW decisions have rejected the
FBI’s proposed reading of that case, we must deny the
Bureau’s request that we revisit OCAW’s underlying facts and
resurrect the dispute between the dissent and majority in that
case. The OCAW majority, focusing exclusively on the
order’s “requirement that the [agency] complete its record
review in 60 days,” explained: “Before 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.” 288 F.3d at 458. Characterizing that
order in Edmonds, we said, “as the OCAW court described
it,” the August 23 order “merely direct[ed] the FBI to
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‘complete its record review.’” Edmonds, 417 F.3d at 1323
(quoting OCAW, 288 F.3d at 458) (emphasis added). We
made the same point even more starkly in Davy, explaining
that in OCAW, “[w]e highlighted the order’s interim nature,
which was procedural—conduct a search—as opposed to
substantive—produce documents.” Davy, 456 F.3d at 165.
And we repeated ourselves yet again in CRT. See 511 F.3d at
194 (“An order from the trial court to the Energy Department
to ‘complete its record review’ within a fixed timetable was
not judicial relief.” (quoting OCAW, 288 F.3d at 458)). True,
the OCAW dissent read the August 23 order differently,
viewing it as a directive to disclose documents. See OCAW,
288 F.3d at 465 (Rogers, J., dissenting). But the majority
disagreed, stating that if a stipulation between the parties had
“outlined documents the government still needed to disclose
to the [plaintiff], matters might be different.” Id. at 458. As
we explained in CRT, we “addressed exactly that question in
Davy v. CIA,” and concluded that such orders render the
plaintiffs who secure them prevailing parties eligible for
attorneys’ fees. CRT, 511 F.3d at 193. In short, the FBI asks
us to reach back in time and adopt the dissent’s reading of the
factual record in a case over a contrary interpretation by the
majority, as reaffirmed in three subsequent unanimous
decisions by this court. As the government well knows, a
three-judge panel has no such authority. See LaShawn A. v.
Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc) (“One
three-judge panel . . . does not have the authority to overrule
another three-judge panel of the court.”).
Like the rest of this case, the government’s entreaty that
we jettison Davy for OCAW sparks a certain sense of déjà vu.
After we handed down our decision in Davy, the government
made this precise request in its petition for panel rehearing
and rehearing en banc. See Appellee’s Pet. for Panel Reh’g
and Pet. for Reh’g En Banc, Davy v. CIA, No. 05-5151 (D.C.
10
Cir. Aug. 25, 2006). There, in a brief authored less than two
years ago, the government argued that “[t]he order at issue
here and the order in OCAW are materially indistinguishable.”
Id. at 9. No judge having called for a vote on the petition, this
court unanimously denied the government’s request for
rehearing in Davy. See Order Denying Pet. for Reh’g En
Banc, Davy, No. 05-5151 (D.C. Cir. Sept. 18, 2006). After
we issued our decision in CRT, the government tried a second
time. Asking that panel for rehearing—but declining to take
the matter once more to the full court—the government,
quoting its Davy petition almost verbatim, said, “[t]he order at
issue here and the OCAW order are materially
indistinguishable.” Pet. for Reh’g 11, CRT, No. 06-5333
(D.C. Cir. Feb. 11, 2008). Unconvinced, the CRT panel
denied the government’s petition. Order Denying Pet. for
Reh’g, CRT, No. 06-5333, (D.C. Cir. Mar. 14, 2008). Today
the government asserts—or rather again reasserts—
“[b]ecause the orders here are materially indistinguishable
from the relevant court order in OCAW, this Court is
constrained by OCAW to find that Judicial Watch is not a
‘substantially prevailing party’ here.” Appellee’s Br. 8.
Faced with the same argument for the third time, we see no
reason to reach a different result today. Indeed, the
government’s decision to dust off a thoroughly discredited
argument and present it to us anew wastes both our time and
the government’s resources.
The FBI does make a passing attempt to distinguish this
case from Davy, arguing in its brief that unlike the order
there, the order here allowed the FBI to redact images for
privacy reasons before turning over the requested videotapes.
But at oral argument, counsel backed away from this
distinction, explaining that the government would have made
the same argument even if the order had required immediate
11
disclosure. See Oral Arg. 15:00-:50. It matters little, for our
conclusion would be the same in either case. Davy controls.
We return, in the end, to Buckhannon, under which a
plaintiff becomes a prevailing party once “awarded some
relief by [a] court.” Buckhannon, 532 U.S. at 603; OCAW,
288 F.3d at 456-57 (discussing Buckhannon). That’s
precisely what Judicial Watch obtained in this case. The
organization wanted two videotapes. It got two videotapes
pursuant to court orders. Had the FBI reneged on its promise
to release the tapes, forgot to do so, or even delayed
disclosure, it would have been subject to contempt. See
Davy, 456 F.3d at 166; Edmonds, 417 F.3d at 1323. Why else
would the FBI have needed a third court order allowing an
extension of time to complete its redactions? As we have
held time and again, orders like these, even when voluntarily
agreed to by the government, are sufficient to make plaintiffs
eligible for attorneys’ fees under FOIA.
Before concluding, we note that the parties spent a
significant amount of time debating the effect of a recent
congressional enactment—the OPEN Government Act of
2007—that reinstates the catalyst theory in FOIA actions. See
OPEN Government Act of 2007, Pub L. No. 110-175, §
4(a)(2), 121 Stat. 2524, 2525 (2007). Under the amended
FOIA, a plaintiff “has substantially prevailed if the
complainant has obtained relief through either (I) a judicial
order, or an enforceable written agreement or consent decree;
or (II) a voluntary or unilateral change in position by the
agency, if the complainant’s claim is not insubstantial.” 5
U.S.C. § 552(a)(4)(E)(ii) (emphasis added). Because Judicial
Watch “substantially prevailed” by securing court orders
requiring the government to disclose documents, we need not
interpret the new statute or decide whether Congress intended
it to apply to pending cases.
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III.
Because Judicial Watch “substantially prevailed” in its
FOIA action, it is eligible to receive attorneys’ fees under 5
U.S.C. § 552(a)(4)(E). To obtain those fees, the organization
must first demonstrate that it is “entitled” to them. See
Edmonds, 417 F.3d at 1327. In making this determination,
the district court assesses four factors: “(1) the public benefit
derived from the case; (2) the commercial benefit to the
plaintiff; (3) the nature of the plaintiff’s interest in the
records; and (4) the reasonableness of the agency’s
withholding.” Tax Analysts v. Dep’t of Justice, 965 F.2d
1092, 1093 (D.C. Cir. 1992). Balancing these factors is a
matter for the district court, whose decision we review for
abuse of discretion. See id. at 1094. Because the district
court found Judicial Watch ineligible for fees, it never
reached this second part of the test. We therefore reverse and
remand the case for consideration of that question.
So ordered.