Oil, Chemical & Atomic Workers International Union v. Department of Energy

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 7, 2002 Decided May 10, 2002

No. 01-5163

Oil, Chemical and Atomic Workers
International Union, AFL-CIO, and
James K. Phillips, Jr., Vice President of
Oil, Chemical and Atomic Workers
International Union, AFL-CIO,
Appellees

v.

Department of Energy,
Appellant

Appeal from the United States District Court
for the District of Columbia
(98cv01670)

Douglas Hallward-Driemeier, Attorney, U.S. Department
of Justice, argued the cause for appellant. With him on the

briefs were Roscoe C. Howard, Jr., U.S. Attorney, and Leon-
ard Schaitman, Attorney, U.S. Department of Justice.

Daniel Guttman argued the cause for appellees. With him
on the brief were Brian P. McCafferty, Reuben A. Guttman
and Traci L. Buschner.

Before: Randolph and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Randolph.

Dissenting opinion filed by Circuit Judge Rogers.

Randolph, Circuit Judge: This is an appeal of an award of
attorney's fees for actions brought under the Freedom of
Information Act ("FOIA"), 5 U.S.C. s 552, and the Govern-
ment in the Sunshine Act, 5 U.S.C. s 552b. The question is
whether Buckhannon Bd. & Care Home, Inc. v. West Virgi-
nia Dep't of Health & Human Res., 532 U.S. 598 (2001),
decided while this appeal was pending, applies to FOIA cases.

I.

Congress created the United States Enrichment Corpora-
tion ("USEC") to operate uranium enrichment plants in the
country. See 42 U.S.C. s 2297a (1992). There are two such
facilities, one in Kentucky, the other in Ohio. The Oil,
Chemical, and Atomic Workers International Union repre-
sented employees at both plants. In 1996, Congress decided
to "privatize" USEC by having a private entity lease the
facilities. See USEC Privatization Act, Pub. L. No. 104-134,
110 Stat. 1321-335 (1996) (codified at 42 U.S.C. s 2297h).
Concerned that privatization would affect its members' em-
ployment, the union sought information about what was
planned. USEC refused to provide the information voluntari-
ly. The union then sent a FOIA request to USEC. On June
30, 1998, after USEC failed to provide the information, the
union filed this action in the district court. A few weeks later
the union brought a separate suit under the Government in
the Sunshine Act, 5 U.S.C. s 552b, seeking to open USEC's
board meetings on privatization to the public. The district

court denied the union's request for a temporary restraining
order that would have required an "open" board meeting.
Privatization occurred a few weeks later, on July 28, 1998.

In August 1998, the government moved to dismiss the
FOIA and Sunshine Act suits, arguing that the court's juris-
diction ended when USEC ceased to be a public entity.
Rather than grant the motion, the district court substituted
the Department of Energy as defendant on the grounds that
the Privatization Act called for the government to fulfill
obligations incurred by USEC, and that there was a "Record
Agreement" to the same effect. Several status hearings took
place after this order. On December 10, 1999, the parties
(the union and the Energy Department) filed a Stipulation
and Order of Dismissal stating that the government had
provided "substantial amounts of material" and dismissing the
claims with prejudice, although reserving the union's right to
seek attorney's fees. The district court endorsed the stipula-
tion.

The parties were unable to resolve the attorney's fees issue
amongst themselves, so the union filed an application for fees
with the district court on April 17, 2000. On March 16, 2001,
the court ruled that the union was entitled to receive fees, but
not in the full amount it sought. (The court stated that the
union could recover any Sunshine Act fees in its motion for
fees under FOIA, but it also denied the union's request for
fees related to its failed attempt to get injunctive relief
halting the USEC board meeting or opening it to the public.
The union does not appeal this decision, so our analysis is
limited to the request for fees under FOIA.) After the
court's order, the parties stipulated that the proper amount of
fees and costs totaled $108,173.25, reserving the Energy
Department's right to appeal. The court ordered the pay-
ment of this amount on March 30, 2001. Shortly after the
government noted its appeal, the Supreme Court issued its
opinion in Buckhannon, holding that attorney's fees are not
authorized under the Fair Housing Amendments Act or
Americans with Disabilities Act to a plaintiff who achieves the
desired result without a judgment on the merits or a court-
ordered consent decree. See 532 U.S. at 600-01.

 II.

In order to recover attorney's fees in a FOIA case, the
plaintiff must have "substantially prevailed": the "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 pre-
vailed." 5 U.S.C. s 552(a)(4)(E). In determining whether
plaintiffs are eligible for an award, we have followed the
"catalyst theory." So long as the "litigation substantially
caused the requested records to be released," the FOIA
plaintiff could recover attorney's fees even though the district
court had not rendered a judgment in the plaintiff's favor.
Chesapeake Bay Found., Inc. v. Dep't of Agric., 11 F.3d 211,
216 (D.C. Cir. 1993) (citing Vermont Low Income Advocacy
Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir. 1976)); see
also Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C. Cir. 1977).

In Buckhannon, the Supreme Court rejected the "catalyst
theory." Plaintiffs there had alleged that certain "self-
preservation" provisions of a state fire code violated the Fair
Housing Amendments and Americans with Disabilities Acts
as applied to an assisted-living facility. See 532 U.S. at 600.
Before the district court ruled, the state legislature repealed
the provisions. See id. at 601. Plaintiffs then moved for
attorney's fees, arguing that under the fee-shifting statutes at
issue they were "prevailing parties" because their lawsuit had
prompted the change in the law. See id. The Supreme
Court held that absent some sort of judicial imprimatur, a
plaintiff could not be considered a "prevailing party" and an
award of attorney's fees was therefore impermissible.

The Energy Department argues that Buckhannon's rejec-
tion of the catalyst theory applies also to FOIA, a possibility
we have already noticed. See Students Against Genocide v.
Dep't of State, 257 F.3d 828, 841 n.14 (D.C. Cir. 2001). As the
Court pointed out in Buckhannon, 532 U.S. at 602-03, there
are dozens of fee-shifting statutes, some worded slightly
differently from others. A wide range of statutes uses the
"substantially prevails" formulation. See, e.g., 5 U.S.C.
s 552a(g)(2)(B) (Privacy Act); 5 U.S.C. s 552b(i) (Govern-

ment in the Sunshine Act); 15 U.S.C. s 26 (Clayton Act); 16
U.S.C. s 470w-4 (National Historic Preservation Act); 28
U.S.C. s 2465(b)(1) (return of forfeited or condemned proper-
ty); 42 U.S.C. s 300aa-31(c) (National Vaccine Injury Com-
pensation Program). Many other statutes use "prevailing
party." As to a litigant's eligibility for an award of attorney's
fees, we have treated these statutes as substantially similar.
See, e.g., Pub. Citizen Health Research Group v. Young, 909
F.2d 546, 549 (D.C. Cir. 1990) (Equal Access to Justice Act)
("It is enough that the lawsuit was a 'causal, necessary, or
substantial factor in obtaining the result' plaintiff sought.");
Comm'rs Court of Medina County, Tex. v. United States, 683
F.2d 435, 442 (D.C. Cir. 1982) (Voting Rights Act). Buckhan-
non expressly endorsed this approach. After citing to a long
list of such statutes, a list including FOIA, the Court stated
that it had "interpreted these fee-shifting statutes consistent-
ly," 532 U.S. at 603 & n.4 (citing Marek v. Chesny, 473 U.S. 1,
43-51 (1985) (Appendix to opinion of Brennan, J., dissenting);
Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983)). Five
circuits have applied Buckhannon to other fee-shifting stat-
utes. See, e.g., Smyth v. Rivero, 282 F.3d 268, 274-76 (4th
Cir. 2002) (42 U.S.C. s 1988); Perez-Arellano v. Smith, 279
F.3d 791, 794 (9th Cir. 2002) (Equal Access to Justice Act, 28
U.S.C. s 2412(d)(1)(A)); J.C. v. Reg'l Sch. Dist. 10, 278 F.3d
119, 124 (2d Cir. 2002) (Individuals with Disabilities in Edu-
cation Act, 20 U.S.C. s 1415(i)(3)(B)); N.Y. State Fed'n of
Taxi Drivers, Inc. v. Westchester County Taxi & Limousine
Comm'n, 272 F.3d 154, 158 (2d Cir. 2001) (42 U.S.C. s 1988);
Chambers v. Ohio Dep't of Human Servs., 273 F.3d 690, 693
& n.1 (6th Cir. 2001) (42 U.S.C. s 1983); Crabill v. Trans
Union, L.L.C., 259 F.3d 662, 667 (7th Cir. 2001) (Fair Credit
Reporting Act, 15 U.S.C. ss 1681n, 1681o); cf. Bennett v.
Yoshina, 259 F.3d 1097, 1100 (9th Cir. 2001) ("There can be
no doubt that the Court's analysis in Buckhannon applies to
statutes other than the two at issue in that case.").

We therefore adhere to the proposition, well-established in
this court and in the Supreme Court, that 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. One such reason, the union argues, is the contrast
between the language of the statutes in Buckhannon, which
authorized fees for the "prevailing party," see 42 U.S.C.
ss 3613(c)(2) & 12205, and FOIA, which allows fees if "the
complainant has substantially prevailed." 5 U.S.C.
s 552(a)(4)(E). It is true, as the union points out, that
Buckhannon treated "prevailing party" as a "legal term of
art." 532 U.S. at 603. Yet all must agree that a "prevailing
party" and a "party who prevails" are synonymous. FOIA's
addition of the modifier "substantially" might possibly be
taken as limiting the category of "prevailing parties," but it
cannot be taken as expanding the universe of parties eligible
for a fee award. To put this in concrete terms, a FOIA
plaintiff may seek thousands of documents but wind up with a
judgment providing only a handful of insignificant documents.
One might say this plaintiff was a prevailing party, but
nevertheless not say that the plaintiff substantially prevailed.
Cf. Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 789-92 (1989) (discussing "significance" as it
pertains to the definition of "prevailing party"). We have
seen nothing to suggest that Congress sought to draw any
fine distinction between "prevailing party" and "substantially
prevail." The Internal Revenue Code, for instance, defines
"prevailing party" to mean a party who has "substantially
prevailed." 26 U.S.C. s 7430(c)(4)(A). Consistent with our
practice (and the Supreme Court's) of viewing the various fee-
shifting statutes as interchangeable, we have in the past
treated the "substantially prevail" language in FOIA as the
functional equivalent of the "prevailing party" language found
in other statutes. See Foster v. Boorstin, 561 F.2d 340, 342
(D.C. Cir. 1977).

The union also maintains that since FOIA cases are equita-
ble in nature, the limitations imposed in Buckhannon are not
appropriate. Judge Friendly made the argument forcefully
in an influential opinion:

To take an extreme example, Congress clearly did not
mean that where an FOIA suit had gone to trial and

 developments made it apparent that the judge was about
to rule for the plaintiff, the Government could abort any
award of attorney fees by an eleventh hour tender of the
information requested.

Vermont Low Income Advocacy Council, 546 F.2d at 513.
But FOIA cases are not unique in this respect. There are
many potential actions in which the "prevailing party" may
sue for injunctive relief or for damages and an injunction.
See, e.g., Wagshal v. Foster, 28 F.3d 1249, 1251 (D.C. Cir.
1994) (plaintiff seeking damages and injunctive relief under 42
U.S.C. s 1983). It is hard to believe that Congress would
have intended to create a system in which a "prevailing
party" would be eligible to recover fees for the injunction
portion of the lawsuit but not for the damages portion. The
Supreme Court in Buckhannon considered a problem similar
to that posed by Judge Friendly but refused to limit its
holding to actions at law. 532 U.S. at 608-10. In the Court's
view, policy arguments could not carry the day because the
meaning of "prevailing party" was clear. See id. at 610.

The union also sees a distinction between FOIA cases and
Buckhannon stemming from FOIA's legislative history. The
argument is that Congress intended FOIA's attorney's fee
provision to be understood differently from comparable provi-
sions in other statutes such as the Americans with Disabilities
Act. The history leading to passage of FOIA is thoroughly
surveyed in Judge Friendly's opinion in Vermont Low Income
Advocacy Council. See 546 F.2d at 512-13. The original
House bill made a plaintiff's eligibility for an award of fees
turn on whether the court had issued an injunction against
the government. See id. at 512. The final House bill condi-
tioned eligibility on the government's not prevailing. See id.
The Senate bill contained the "substantially prevailed" lan-
guage, along with a list of factors for the court to consider in
determining whether to make an award. See id. The accom-
panying Senate report talked about eligibility for attorney's
fees in cases in which the plaintiffs had successfully proven
that the government had wrongfully withheld information.
See id. at 512. The final version, as it emerged from confer-
ence, deleted the Senate's list of factors. See id. at 513.

With great respect to Judge Friendly, on whose opinion we
relied in Cuneo, 553 F.2d at 1364 & nn.3-8, this record is
inconclusive. None of the Committee reports mentions
awarding fees in the absence of a judgment. And both the
House and the Senate reports contain statements suggesting
that the FOIA provision was modeled after fee-shifting provi-
sions allowing fees for a "prevailing party," which further
supports treating FOIA no differently than the statutes inter-
preted in Buckhannon. See H.R. Rep. No. 93-876 (1974),
reprinted in Legislative History of the Freedom of Informa-
tion Act, 1974 Amendments 126-27 & n.10 (1975); S. Rep. No.
93-854 (1974), reprinted in Legislative History, supra, at
170.

We therefore hold 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. Buckhannon, 532 U.S. at 603. Because
Buckhannon controls, the existing law of our circuit must
give way. See Benavides v. Bureau of Prisons, 993 F.2d 257,
258-59 (D.C. Cir. 1993) (reversing circuit precedent on the
eligibility of a pro se FOIA plaintiff for attorney's fees in light
of Kay v. Ehrler, 499 U.S. 432, 438 (1991), a case arising
under 42 U.S.C. s 1988).

III.

The union claims that even if Buckhannon applies, we
should sustain the award because the parties received a
"court-ordered settlement." The Department of Energy be-
came a defendant on March 18, 1999. The parties agreed to
dismiss the case on December 10, 1999. In the interim, the
district court had issued three orders. The first, entered on
March 31, 1999, ordered the government to review the docu-
ments the union sought and to submit a "joint report with a
proposed schedule" no later than July 10, 1999. The parties
timely filed the joint report, stating that the Energy Depart-
ment had reviewed the 4,000 documents and that "to the
greatest extent possible, the parties wish to resolve this case

without further contested proceedings." The court's second
order directed the parties to submit another "status report"
by August 20, 1999. The parties' second report stipulated
that, "[s]ubject to the approval of the Court," the government
had provided most of the materials the union had requested,
that it would search for the remaining items and release any
that did not merit withholding under FOIA's exemptions, and
that the union was dismissing its case with prejudice except
for the remaining items. The parties reiterated that they
"wish[ed] to resolve this case to the greatest extent possible
without further contested proceedings" and asked for leave of
the court to continue negotiations until December 8, 1999.
The court signed the document, which carried the heading
"Stipulation and Order." It is clear from the record that to
this point the court had not rendered any judgment about the
legality of the government's withholding any information and
that the parties had been attempting to resolve the case
through negotiation. See, e.g., 3/31/99 Tr. at 9:19-23 ("I'll
certainly read the joint report as soon as it comes in, and ...
I'll either sign off on what you've given me or set up a
conference call or an in-court status to resolve things final-
ly.").

On December 10, 1999, the court approved the parties' final
status report as a "Stipulation and Order" stating in its
entirety:

Subject to the approval of the Court, it is hereby stipu-
lated and agreed as follows by and between the under-
signed:

1. 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 and, except as provided in p 2, without fees or
costs.

2. The dismissal of this action shall be without prejudice
to the right of plaintiff to obtain in [this case], an award
of attorney's fees and litigation costs covering work
performed in this action.

This order did not constitute a decision on the merits; the
court had no contested issues before it. The "Stipulation and
Order" approved the parties' terms of dismissal, but this was
merely a formality. An "action may be dismissed ... without
order of the court ... by filing a stipulation of dismissal
signed by" all of the parties. See Fed. R. Civ. P. 41(a)(1).

The union claims that since the court signed the order, it is
a "court-ordered consent decree[ ]." Buckhannon, 532 U.S.
at 604. By this term, the Supreme Court meant "a court
'ordered chang[e] [in] the legal relationship between [the
plaintiff] and the defendant.' " Id. (quoting Tex. State Teach-
ers Ass'n, 489 U.S. at 792); see also Smyth, 282 F.3d at 278-
82 & n.11 (discussing the meaning of a "consent decree" in
the Buckhannon context). The Court distinguished private
settlements, which do not create a " 'material alteration of the
legal relationship of the parties' necessary to permit an award
of attorney's fees." Buckhannon, 532 U.S. at 604 & n.7
(quoting Tex. State Teachers Ass'n, 489 U.S. at 792-93). The
discussion in Buckhannon also makes clear that there must
be some sort of "judicial relief" in favor of the party seeking
an award of fees. See 532 U.S. at 606, 607 n.9; id. at 622
(Scalia, J., concurring).

The December 10 Stipulation and Order of Dismissal did
not meaningfully alter the legal relationship of the parties.
Its only effect was to dismiss the union's lawsuit with a court
order when no court order was needed. That cannot repre-
sent "judicial relief" for the union. Aside from the union's
attorney fee request, there was nothing left for the district
court to oversee. This contrasts with the consent decree in
Maher v. Gagne, 448 U.S. 122, 126 (1980), which increased
AFDC allowances and gave recipients the right to prove that
their individual expenses exceeded the standard levels. The
decree in Maher constituted "judicial relief" that "materially
altered" the rights of the parties: for example, it estopped
the government from refusing to disburse benefits in excess
of the standard level to an individual who demonstrated the
requisite personal expense level. Had the December 10
stipulation between the union and the Energy Department
outlined documents the government still needed to disclose to

the union, matters might be different. But the parties stipu-
lated that the union had received enough information to
forego continuation of its lawsuit.

Our dissenting colleague thinks that the district court's
endorsement of the August 23, 1999, stipulation qualifies as a
"settlement agreement enforced through a consent decree."
Buckhannon, 532 U.S. at 604. The union's brief never made
this argument. It argued instead that the court's denial of
the Energy Department's motion to dismiss changed the legal
relationship of the parties. Neither the union's argument,
nor the dissent's attempt to salvage the union's case, are
correct. Surviving a motion to dismiss does not alter the
legal relationship between parties. See Hanrahan v. Hamp-
ton, 446 U.S. 754, 758 (1980). The dissent's focus on the
August 23, 1999, stipulation ignores the interim nature of that
order, which is properly viewed as a procedural ruling that
cannot serve as the basis for a determination that the union
prevailed. See id. at 759. The only part of the order which
arguably changed the legal status of the parties was the
requirement that the Energy Department complete its record
review in 60 days. 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 obli-
gation to do so. Both before and after August 23 the district
court did not disallow any of the Energy Department's justifi-
cations for exempting documents, or portions of documents,
from disclosure. This is not judicial relief on the merits of
the union's complaint. Contrast Maher, 448 U.S. at 126
(settlement agreement required government to pay higher
AFDC benefits to plaintiffs). The dissent theorizes that the
August order prompted the Department to turn over enough
information so that by December the parties could agree to
dismiss the case. In other words, filing the lawsuit and
receiving some scheduling orders served as a catalyst result-
ing in the relief the union sought. Even if the dissent's
assessment had any proof behind it (it seems equally plausi-
ble that the Energy Department simply lacked the time to
review the items), Buckhannon clearly instructs that we are
not to analyze "the defendant's subjective motivations in

changing its conduct." 532 U.S. at 609. Instead, we are to
look for some form of "judicial relief," and it is clear that the
union received none.

Under the rule of Buckhannon, the union therefore was not
entitled to attorney's fees because it did not "substantially
prevail."

Reversed.

 Rogers, Circuit Judge, dissenting: Today the court decides
whether the Supreme Court's decision in Buckhannon Board
and Care Home, Inc. v. West Virginia Department of Health
and Human Resources, 532 U.S. 598 (2001), applies to suits
for attorney's fees under the Freedom of Information Act
("FOIA"). See Opinion at 2. Even assuming that the answer
to this question is in the affirmative, there are two separate
problems with the court's opinion. The first involves the
suggestion that the Supreme Court's decision in Buckhannon
bars attorney's fees in the absence of a final judgment on the
merits or a consent decree embodying a settlement. To
reach this interpretation of Buckhannon, the court, contrary
to the other circuits, glosses over the holding and underlying
rationale of Buckhannon. The second problem arises from
the court's failure to acknowledge the plain terms of the
district court's order to the government to turn over docu-
ments that Oil, Chemical and Atomic Workers International
Union ("OCAW") sought under FOIA and that the govern-
ment had previously withheld.

I.

The holding and rationale of the Supreme Court in Bu-
ckhannon is hardly as broad as some of the court's language
today suggests. The Supreme Court stated its holding as
follows: "[W]e hold that the 'catalyst theory' is not a permis-
sible basis for the award of attorney's fees under the [Fair
Housing Amendments Act of 1988], 42 U.S.C. s 3613(c)(2),
and [the Americans with Disabilities Act of 1990], 42 U.S.C.
s 12205." Buckhannon, 532 U.S. at 610. The reasons that
the Court gave were as follows. The Court first noted that
the term "prevailing party" is a legal term of art that means
"one who has been awarded some relief by the court." Id. at
603. The Court then explained that its precedent was consis-
tent with this meaning. Reviewing its previous decisions
addressing the meaning of "prevailing party," the court ex-
plained that in addition to a judgment on the merits by the
court, see id. at 603-04 (citing Hanrahan v. Hampton, 446
U.S. 754, 758 (1980) (per curiam); Hewitt v. Helms, 482 U.S.

755, 760 (1987); and Farrar v. Hobby, 506 U.S. 103 (1992)),
settlement agreements enforced through a court-ordered con-
sent decree may also serve as the basis for an award of
attorney's fees. Id. at 604 (citing Maher v. Gagne, 448 U.S.
122 (1980)). Although consent decrees need not contain a
defendant's admission of liability, the Court viewed them as a
court-ordered " 'chang[e] [in] the legal relationship between
[the plaintiff] and the defendant.' " Id. (quoting Tex. State
Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782,
792 (1989)) (alterations in the original). The Court also
distinguished consent decrees from private settlements, not-
ing that "[p]rivate settlements do not entail the judicial
approval and oversight involved in consent decrees[, a]nd
federal jurisdiction to enforce a private contractual settlement
will often be lacking unless the terms of the agreement are
incorporated into the order of dismissal." Id. at 604 n.7
(citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375 (1994)).

Finding a common thread in its precedent, the Court in
effect established a line: a party prevails only upon obtaining
a "judicially sanctioned change in the legal relationship of the
parties." Id. at 605. On one side of the line, the Court
observed that its precedent reveals that "enforceable judg-
ments on the merits and court-ordered consent decrees create
the 'material alteration of the legal relationship of the parties'
necessary to permit an award of attorney's fees." Id. at 604
(quoting Tex. State Teachers Ass'n, 489 U.S. at 792-93). The
Court then held that the " 'catalyst theory' falls on the other
side of the line from these examples" because "[i]t allows an
award where there is no judicially sanctioned change in the
legal relationship of the parties." Id. at 605. The Court
explained that "[a] defendant's voluntary change in conduct,
although perhaps accomplishing what the plaintiff sought to
achieve by the lawsuit, lacks the necessary judicial imprima-
tur on the change." Id.

The Supreme Court's holding and rationale in Buckhannon
do not limit attorney's fees awards to cases in which there is
either a final judgment on the merits or a consent decree.
Rather than define these two forms of relief as the only

instances in which there could be a "prevailing party" for
purposes of recovering attorney's fees, the Court used these
forms of relief as discrete examples, illustrated by its prece-
dent, in which the need for "judicial imprimatur on the
change" in the parties' legal relationship is present. Id. As
the factual setting before the Supreme Court makes clear, the
Court did not have the occasion to provide an exhaustive list
of the various forms of judicial relief that the plaintiff must
obtain in order to be a "prevailing party" for purposes of an
award of attorney's fees. In Buckhannon, the petitioner's
suit for declaratory and injunctive relief coincided with the
State legislature's subsequent repeal of the allegedly offend-
ing statute, and the district court thereafter dismissed the
lawsuit as moot. Id. at 601. There was no judicial involve-
ment in the resolution of the litigation. Petitioners, however,
sought attorney's fees as prevailing parties under the FHAA
and the ADA on the theory that the lawsuit had served as a
catalyst of the repeal. Id. Not having any occasion to
consider the precise contours of the necessary judicial impri-
matur on the change in the legal relationship of the parties,
the Supreme Court did not need to, and in fact did not, seize
the opportunity to explain more than that the "catalyst theo-
ry" as applied on the facts before the Court -- where there
was no judicial involvement in the resolution -- was not
enough.

Indeed, the Supreme Court's review of its precedents dem-
onstrates that the Court did not establish a finite list of the
forms of judicial relief that are necessary to "prevail." Rath-
er, as described by the Court, on one side of the line, where
there is a "prevailing party" for purposes of recovering
attorney's fees, is precedent holding that judgments on the
merits and consent decrees are sufficient to give rise to
prevailing party status. See id. at 605-06 (discussing Farrar,
506 U.S. at 112; and Maher, 448 U.S. at 129-30). On the
other side of the line, the Court, again looking to its prece-
dent, indicated only that preliminary victories such as with-
standing a motion for a directed verdict or a motion for
summary judgment for failure to state a cause of action were
insufficient. Id. at 605-06 (citing Hewitt, 482 U.S. at 760;

and Hanrahan, 446 U.S. at 759). Although the Court in
Buckhannon only specifically listed a judgment on the merits
or a court-ordered consent decree as examples on the other
side of the prevailing party line, id. at 606 (citing Farrar, 506
U.S. at 112; and Maher, 448 U.S. at 129-30), attorney's fees
could be awarded in other circumstances. For example, two
members of the majority noted that court-approved settle-
ments in addition to consent decrees bore the necessary
judicial imprimatur. Id. at 618 (Scalia, J., concurring, joined
by Thomas, J.). Additionally, in Hanrahan, cited with ap-
proval in Buckhannon, the Court acknowledged that "[t]he
legislative history of the Civil Rights Attorney's Fees Awards
Act of 1976 [s 1988] indicates that a person may in some
circumstances be a 'prevailing party' without having obtained
a favorable 'final judgment following a full trial on the mer-
its.' " Hanrahan, 446 U.S. at 756-57 (quoting H.R. Rep. No.
94-1558, at 7 (1976)). The House Committee Report indicat-
ed that Congress had adopted the approach that the Court
had taken in Bradley v. Richmond School Board, 416 U.S.
696 (1974), in which the Court stated that " 'the entry of any
order that determines substantial rights of the parties may be
an appropriate occasion upon which to consider the propriety
of an award of counsel fees....' " Hanrahan, 446 U.S. at
757 (quoting H.R. Rep. No. 94-1558, at 8 (quoting Bradley,
416 U.S. at 723 n.28)). The Senate Committee Report stated
that "the award of counsel fees pendente lite would be
'especially appropriate where a party has prevailed on an
important matter in the course of litigation, even when he
ultimately does not prevail on all issues.' " Id. (quoting
S. Rep. No. 94-1011, at 5 (1976)). From this history, the
Court concluded:

It seems apparent from these passages that Congress
intended to permit the interim award of counsel fees only
when a party has prevailed on the merits of at least some
of his claims. For only in that event has there been a
determination of the "substantial rights of the parties,"
which Congress determined was a necessary foundation
for departing from the usual rule in this country that
each party is to bear the expense of his own attorney.

Id. at 757-58. Nothing in Buckhannon suggests that the
Court has overruled this precedent; rather, the Court only
clarified that the catalyst theory fell on the other side of the
line of this precedent.

The circuits that have addressed Buckhannon have not
read it to be as broad a bar to attorney's fees as the court
suggests today. Several circuits have confronted a pure
catalyst theory claim and naturally read Buckhannon to bar
such awards of attorney's fees, notwithstanding the fee provi-
sion at issue. See, e.g., Perez-Arellano v. Smith, 279 F.3d
791, 795 (9th Cir. 2002) (Equal Access to Justice Act, 28
U.S.C. s 2412(d)(1)(A)); Chambers v. Ohio Dep't of Human
Servs., 273 F.3d 690, 693 (6th Cir. 2001) (Civil Rights Act, 42
U.S.C. s 1988). However, when confronted with a private
settlement, the Ninth Circuit in Barrios v. California Inter-
scholastic Federation, 277 F.3d 1128 (9th Cir. 2002) (Ameri-
cans with Disabilities Act of 1990, 42 U.S.C. s 12205), upheld
the award in light of circuit precedent and limited Buckhan-
non's holding to the rejection of the catalyst theory, describ-
ing as mere dictum the Supreme Court's rejection of private
settlements as sufficient to provide prevailing party status.
Id. at 1134 n.5. See also Johnson v. District of Columbia,
190 F. Supp. 2d 34, 45 & n.3 (D.D.C. 2002) (Individuals with
Disabilities Education Act, 20 U.S.C. s 1415(i)(3)(B)). But
see Perez-Arellano, 279 F.3d at 793-94 (Equal Access to
Justice Act, 28 U.S.C. s 2412(d)(1)(A)).

Other circuits, taking a less narrow reading of Buckhannon
than the Ninth Circuit, have nonetheless recognized that
Buckhannon has a limited holding in two respects. First, the
circuits have looked at the particular attorney's fees statute
at issue to determine whether Buckhannon's interpretation of
"prevailing party" applies. For example, the Tenth Circuit in
Center for Biological Diversity v. Norton, 262 F.3d 1077 (10th
Cir. 2001), declined to apply Buckhannon to the attorney's
fees provision of the Endangered Species Act, 16 U.S.C.
s 1540(g)(4), which did not require that there be a "prevailing
party" and left the decision to award fees to the discretion of
the district court. Id. at 1080 n.2. Other circuits considering

other statutes have also treated this as a threshold question
in applying Buckhannon's reasoning. In Crabill v. Trans
Union, L.L.C., 259 F.3d 662 (7th Cir. 2001), for example, the
Seventh Circuit concluded upon examining the text, structure,
and legislative history of the Fair Credit Reporting Act, 15
U.S.C. ss 1681o & 1681n, that the reasoning of Buckhannon
applied. Id. at 666-67. The Federal Court of Claims, in
Brickwood Contractors, Inc. v. United States, 49 Fed. Cl. 738
(2001), on the other hand, limited Buckhannon to the statutes
cited by the Court and declined to apply Buckhannon to the
Equal Access to Justice Act. Id. at 744-47.

Second, the circuits have looked beyond whether the relief
obtained was either a judgment on the merits or a consent
decree and instead have looked for action compelled by the
court, focusing on the underlying concern of the Supreme
Court in Buckhannon that there be some "judicial imprima-
tur on the change" in the parties' legal status. As the
Seventh Circuit explained in Crabill in rejecting a claim of
entitlement to attorney's fees in the absence of any judicially
ordered relief, "[t]he significance of the Buckhannon decision
... [is] its insistence that a plaintiff must obtain formal
judicial relief, and not merely 'success,' in order to be deemed
a prevailing or successful party under any attorneys' fee
provision comparable to the civil rights attorneys' fee stat-
ute." Crabill, 259 F.3d at 666. Thus, the Second Circuit in
J.C. v. Regional School District 10, Board of Education, 278
F.3d 119 (2d Cir. 2002), in addressing fee awards under the
Individuals with Disabilities Education Act, 20 U.S.C.
s 1415(i)(3)(B), and the Rehabilitation Act of 1973, 29 U.S.C.
s 794a(b), considered whether the relief received by the
plaintiff was more akin to a judicial consent decree or a
private settlement, and concluded that statutorily required
relief could not be a substitute for a judicial order or decree
under Buckhannon. Id. at 125. Likewise, the Fourth Cir-
cuit in Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002), applying
s 1988, considered whether the two forms of relief obtained
by the plaintiff constituted sufficient judicial relief to trigger
prevailing party status in Buckhannon by examining on
which side of the Buckhannon line the relief fell. Id. at 274-

75. Concluding that the preliminary injunction plaintiffs
obtained was more akin to the judicial relief deemed inade-
quate in Buckhannon because it was a "preliminary, incom-
plete ... merits examination," id. at 277, the Fourth Circuit
examined whether an agreement between the parties that
was referenced in the district court's final order of dismissal
was sufficient to show entitlement to attorney's fees. Id. at
273-74, 284. Observing that Buckhannon indicated that "a
determination of 'legal merit' is necessary for an award of
attorney's fees," id. at 281 (quoting Buckhannon, 532 U.S. at
605), and that the Supreme Court's focus was on "judicial
approval and oversight involved in consent decrees," id. at
281-82 (quoting Buckhannon, 532 U.S. at 604 n.7) (internal
quotation marks omitted), the Fourth Circuit declined to read
Buckhannon "so restrictively as to require that the words
'consent decree' be used explicitly," and instead concluded
that an order containing an agreement of the parties may be
the functional equivalent of a consent decree for purposes of
the Buckhannon inquiry. Id. at 281. The court concluded
that the district court's order of dismissal was insufficient,
however, because the order did not entail a judicially enforced
obligation to comply with the terms of the agreement: it
neither stated that the court retained jurisdiction to enforce
the parties' agreement nor compelled compliance with the
terms agreed to by the parties. Id. at 284. Rather, the court
concluded, the findings in the final order were "most properly
read as noting and reciting the agreement ... as a compo-
nent of its analysis of the mootness of the case...." Id.
Similarly, in a case that is closest factually to the instant case,
the First Circuit in New England Regional Council of Car-
penters v. Kinton, 284 F.3d 9 (1st Cir. 2002), also applying
s 1988, examined whether the appropriate judicial imprima-
tur on the relief was present. In Kinton, the answer turned
on whether the district court had ordered the respondent to
revise its regulations, the relief that the plaintiff sought in
court. Id. at 30. Proceeding on the assumption that some-
thing other than a final judgment or consent decree sufficed
for the judicial imprimatur required by Buckhannon, the
First Circuit concluded upon review of the district court

transcript that, although the district court had discussed the
possibility of ordering the defendant to amend its regulations,
"the [district] court eschewed an order and gave [the defen-
dant] sixty days within which to decide what (if anything) it
wished to do, reserving the possibility that the court might
enter an order at a later date." Id. at 30. Under the
circumstances, the First Circuit held that:

The district court did not compel [the defendant] to
adopt the regulations. Under the Buckhannon rule, that
ends the matter. Because the district court entered no
explicit order compelling, or even leading to, [the defen-
dant's] adoption of the regulations, we cannot say that
the district court's refusal to award attorneys' fees con-
stituted an abuse of discretion.

Id. at 30.

The few district court opinions to have addressed Buckhan-
non likewise take the position that as long as a party has
obtained some judicial relief more akin to a consent decree
rather than a private settlement, the Buckhannon test is
satisfied. The district court in Aynes v. Space Guard Prod-
ucts, Inc., 201 F.R.D. 445 (S.D. Ind. 2001), concluded that
although an accepted offer of judgment under Federal Rule
of Civil Procedure 68 was "neither a judgment on the merits
nor a court-ordered consent decree," it satisfied the Buckhan-
non test because it was both "enforceable against [the] De-
fendant by this court unlike the resolution effected by a
private settlement" and "caused a material alteration of the
legal relationship of the parties." Id. at 450-51. Similarly, in
Johnny's Icehouse, Inc. v. Amateur Hockey Association of
Illinois, No. 00-7363, 2001 WL 893840 (N.D. Ill. Aug. 7,
2001), the court refused to limit unduly the concept of court-
ordered consent decrees and concluded that an order incorpo-
rating a settlement was sufficient under Buckhannon. Id. at
*3. Likewise, in National Coalition for Students with Dis-
abilities v. Bush, 173 F. Supp. 2d 1272 (N.D. Fla. 2001), the
district court evaluated whether a settlement was the func-
tional equivalent of a consent decree, constituting the neces-

sary judicially-sanctioned change in the legal relationship
between the parties to satisfy Buckhannon, id. at 1278-79,
and concluded that it was because it was incorporated by
reference into a court order in which the court retained
jurisdiction to enforce its terms. Id.

The court today properly begins by addressing whether
Buckhannon's reasoning applies to attorney's fees suits under
FOIA, but gives short shrift to Buckhannon's reasoning and
glosses over whether the relief obtained by OCAW was
compelled by the district court. Although the court uses
language that would suggest that Buckhannon is a bar to
attorney's fees regardless of the nature of the judicial action
short of a final judgment or a consent decree, see Opinion at
8, Buckhannon and the decisions interpreting it make clear
that there is no principled basis for this suggestion. What is
key under Buckhannon is whether the particular relief ob-
tained results in a material change in the legal relationship of
the parties that bears the necessary judicial imprimatur. The
court's failure to come to grips with Buckhannon's holding
and rationale is only possible because of the second problem
in the court's opinion.

II.

Buckhannon indicates that to be a "prevailing party" one
must obtain a change in the legal relationship of the parties
that bears the necessary judicial imprimatur and cited as
examples a judgment on the merits or a court-ordered con-
sent decree. Buckhannon, 532 U.S. at 605; see also id. at
622 (Scalia, J., concurring). Because the question put to this
court under Buckhannon is whether OCAW obtained a
change in the legal relationship with the government that
bears the necessary judicial imprimatur, the court's failure to
address the district court's orders in the record with any
particularity is inexplicable. OCAW, which is the appellee,
pointed out during oral argument in response to the govern-
ment's argument that the district court did not grant OCAW
any of its requested relief, that the final resolution "did not
emerge out of thin air" but resulted because on August 23,

1999 "the [district] court ordered ... the defendant ... [to]
cause a search to be made ... and release to plaintiffs all
records thus retrieved" and thus "the court was intimately
involved in approving the settlement." An examination of the
record makes clear that OCAW in fact obtained judicially
sanctioned legal relief akin to a consent decree and hence
sufficient to meet the Buckhannon test.

Overlooked almost in its entirety is the district court's
August 23, 1999 Stipulation and Order. The court's recitation
of the factual background ignores the August 23 Order.
When the court finally refers to the August 23 Order it
misrepresents and confuses its contents and mischaracterizes
it as a "report." Opinion at 9. Contrary to the court's
assertion, there is no indication in the August 23 Order that
the government had provided "most of the materials" re-
quested by OCAW. Opinion at 9. Although the August 23
Order resulted in the dismissal of OCAW's requests for some
records, the order addressed other documents that the gov-
ernment refused to turn over to OCAW despite its FOIA
request. In light of the plain terms of the August 23 Order,
it cannot fairly be described as a "report." Rather, the
court's characterization of the August 23 Order as the "par-
ties' second report," Opinion at 9, reveals the court's confu-
sion of this order with the parties' actual second report, dated
November 8, 1999, which is titled "Second Joint Report."
The August 23 Order, by contrast, is titled "Stipulation and
Order" and consists of two parts: (1) the district court's
identification of various documents that OCAW sought and
that the government had refused to release; and (2) the
district court's order to the government to search for and
release those documents (subject to applicable FOIA exemp-
tions) within 60 days. The district court signed the "Stipula-
tion and Order" stating "Approved And So Ordered." As the
parties themselves stated in their second report of November
8, 1999, "[b]y stipulation and order dated and filed August 23,
1999, the Court directed defendant to search for certain
records and to release to plaintiffs 'all records thus retrieved
except those records or portions of records determined to
merit continued withholding under applicable law....' " Sec-
ond Joint Report, Nov. 8, 1999 (quoting Stipulation & Order,
Aug. 23, 1999, at p 2) (emphasis added). The second report of

November 8 also indicated that the government had complied
with the terms of the August 23 Order.

The existence of the August 23 Order directing the govern-
ment to release documents that OCAW had sought and the
government had previously withheld is a judicially sanctioned
victory on the merits; the release of withheld documents is
the whole point of a FOIA lawsuit. See 5 U.S.C.
s 552(a)(4)(B) (2000); Students Against Genocide v. Dep't of
State, 257 F.3d 828, 841 (D.C. Cir. 2001). The court recog-
nizes as much when it notes that "[h]ad the December 10
stipulation between [OCAW] and the Energy Department
outlined documents the government still needed to disclose to
the union, matters might be different." Opinion at 10-11.
But this is precisely what the August 23 Order provided. As
a result of the August 23 Order, there is an undeniable
change in the legal relationship of the parties: the district
court ordered the government to release documents that it
previously refused to produce upon OCAW's request. In
addition, the relief obtained by OCAW in the August 23
Order bore the necessary judicial imprimatur: unlike a pri-
vate settlement or resolution through negotiations by the
parties, here, the district court's order recited the terms of
the parties' negotiations and ultimate agreement so that the
August 23 Order had elements of both "judicial approval and
oversight involved in consent decrees." Buckhannon, 532
U.S. at 604 n.7. After the August 23 Order, the government
was under an enforceable court-ordered legal obligation to
release the identified documents, potentially facing a con-
tempt citation for failure to comply. See 5 U.S.C.
s 552(a)(4)(G). The August 23 Order is thus a material
alteration of the legal relationship of the parties bearing the
necessary judicial imprimatur and hence satisfying Buckhan-
non. To reach a contrary conclusion the court is forced to
rely on factual assertions that are unsupported by the record,
to attack a theory that appears nowhere in this separate
opinion, and to ignore both the "judicial relief" that OCAW in
fact obtained and the arguments that OCAW in fact made on
appeal.

For these reasons, I conclude that in light of the district
court's August 23, 1999 Stipulation and Order directing the

government to release documents previously withheld after
being requested pursuant to FOIA, OCAW has satisfied the
Buckhannon test because there has been a judicially sanc-
tioned " 'material alteration of the legal relationship of the
parties' necessary to permit an award of attorney's fees."
Buckhannon, 532 U.S. at 604 (quoting Tex. State Teachers
Ass'n, 489 U.S. at 792-93). A remand is nonetheless re-
quired, for although the district court ruled that the govern-
ment withheld "numerous categories of documents ... with-
out any legal basis for doing so," the record is unclear
whether the district court would have reached the same
decision considering only the documents OCAW obtained
pursuant to the August 23 Order. On remand, the district
court would determine OCAW's entitlement to attorney's
fees, see Chesapeake Bay Found., Inc. v. U.S. Dep't of Agric.,
11 F.3d 211, 216 (D.C. Cir. 1993), and if necessary, proportion
the amount of attorney's fees previously awarded that are
attributable to OCAW's efforts to obtain the documents that
the government produced pursuant to the August 23, 1999
Order. Accordingly, I respectfully dissent.