United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2008 Decided June 26, 2009
No. 07-5315
ANTHONY SUMMERS,
APPELLANT
v.
DEPARTMENT OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 98cv01837)
James H. Lesar argued the cause and filed the briefs for
appellant.
Darrell C. Valdez, 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: GINSBURG and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: Anthony Summers brought
this action to obtain certain records from the Federal Bureau
of Investigation pursuant to the Freedom of Information Act.
In 2005, after Summers and the Government had settled the
case, Summers sought an award of attorneys’ fees. The
district court denied Summers’s request because, having
settled, he could not be said to have “substantially prevailed”
in the case and was therefore ineligible to receive an award
under the FOIA. Summers argues the amendment to the
FOIA in the OPEN Government Act of 2007 applies
retroactively, thereby making him eligible to recover
attorneys’ fees. We hold the 2007 Act does not apply
retroactively and affirm the judgment of the district court
denying Summers’s fee request.
I. Background
Summers sought from the FBI records relating to Charles
Gregory (aka “Bebe”) Rebozo to aid him in writing a
biography of former President Richard Nixon. When the FBI
had not timely complied with his request, Summers filed this
suit under the FOIA. The FBI then released certain of the
documents it had located. The parties filed cross-motions for
summary judgment with respect to some of the still-disputed
documents. The district court granted the FBI’s motion and
Summers appealed.
This court denied the FBI’s motion for summary
affirmance and referred the matter to mediation. In 2005 the
FBI agreed to disclose three names from a single document in
exchange for Summers’s voluntary dismissal of the case; the
parties entered into a Settlement Agreement that self-
referentially provides it “shall not constitute an admission of
3
success on the merits for purposes of any claim for attorneys’
fees.” The Agreement notwithstanding, Summers moved the
district court for an award of attorneys’ fees. The district
court referred the matter to a magistrate judge, who denied the
motion. The district court denied Summers’s motion to
reconsider because Summers had not received any court-
ordered relief and was therefore ineligible to receive a fee
award under the FOIA. Summers v. U.S. Dep’t of Justice, No.
98cv01837, 2007 WL 2111049, *2-3 (July 23, 2007).
Summers now appeals that decision.
II. Analysis
The district court “may assess against the United States
reasonable attorney fees and other litigation costs reasonably
incurred in any [FOIA] case ... in which the complainant has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). Prior to
2002 this court applied the “catalyst theory” to determine
whether a plaintiff had “substantially prevailed” and was
therefore eligible for an award of attorneys’ fees. Oil, Chem.
& Atomic Workers Int’l Union v. DOE, 288 F.3d 452, 454
(2002) (OCAW). Under the catalyst theory, “[s]o 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.” Id. (internal quotation marks omitted).
If the catalyst theory still governed, then Summers would be
eligible to receive attorneys’ fees; the district court, however,
would retain discretion to deny an award, see Tax Analysts v.
U.S. Dep’t of Justice, 965 F.2d 1092, 1094 (D.C. Cir. 1992).
In Buckhannon Board and Care Home, Inc. v. West
Virginia Department of Health and Human Resources, the
Supreme Court rejected the catalyst theory, as applied to fee
provisions in the Americans with Disabilities Act of 1990 and
4
the Fair Housing Amendments Act of 1988, because “[i]t
allows an award where there is no judicially sanctioned
change in the legal relationship of the parties.” 532 U.S. 598,
605 (2001). In OCAW, we applied the teaching of
Buckhannon to a request for attorneys’ fees under the FOIA,
stating 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.” 288 F.3d at 456-
57 (quoting Buckhannon, 532 U.S. at 603).
As part of the OPEN Government Act of 2007, the
Congress amended the FOIA to incorporate the catalyst
theory. A plaintiff now qualifies as having “substantially
prevailed” regardless whether he obtained a judicial order or
consent decree or “obtained relief through ... a voluntary or
unilateral change in position by the agency, if [his] claim is
not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii).
Summers argues the 2007 Act applies retroactively to his
2005 settlement of the case, thereby making him eligible to
recover attorneys’ fees. Alternatively, Summers argues the
district court erred in holding him ineligible under the pre-Act
version of the FOIA.
A. Retroactivity
In Landgraf v. USI Film Products, 511 U.S. 244, 272-73
(1994), the Supreme Court reiterated the general rule that a
statute should not be applied retroactively and then set forth
the analysis to be used in determining whether a particular
statute stands as an exception to that rule. If the statute does
not clearly indicate either prospective-only or retroactive
application, then:
5
[T]he court must determine whether the new
statute would have retroactive effect, i.e.,
whether it would impair rights a party
possessed when he acted, increase a party’s
liability for past conduct, or impose new duties
with respect to transactions already completed.
If the statute would operate retroactively, [the]
traditional presumption [against retroactive
application] teaches that it does not govern
absent clear congressional intent favoring such
a result.
Id. at 280.
Neither the 2007 Act nor the FOIA as amended says
anything about the temporal reach of the amendment. We
must therefore consider whether retroactive application
“would impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed.” Id.
Application of the 2007 Act to facts predating its passage
obviously would expose the Government to increased liability
for past conduct by raising the possibility the Government
would be liable for attorneys’ fees in a case that was settled
and, therefore, not an occasion for paying attorneys’ fees
under the pre-amendment rule of Buckhannon. The
Government’s calculus in settling Summers’s case would
have been different had it known the Buckhannon rule would
not apply; its decision to settle reflects a calculation that the
cost associated with disclosing the disputed information to
Summers was less than the cost of further litigation, including
the uncertainty concerning both the outcome and whether the
district court would award the plaintiff attorneys’ fees. If
Summers’s action had been filed after the effective date of the
6
2007 Act, and the Government therefore knew it might be
liable for attorneys’ fees, then it might not have settled the
case.
Summers, citing Bradley v. School Board of Richmond,
416 U.S. 696 (1974), correctly points out that there is no per
se rule against retroactive application of a statute amending or
creating a provision for attorneys’ fees. Bradley was a school
desegregation case in which the district court awarded
attorneys’ fees to the plaintiffs based upon equitable
principles. Id. at 706-07. While the appeal was pending, the
Congress passed a statute specifically authorizing a fee award
to the prevailing party in a school desegregation case. Id. at
709. The Supreme Court held the new fee provision
applicable to that case. Id. at 724.
The Court in Landgraf distinguished Bradley as follows:
“In light of the prior availability of a fee award, and the
likelihood that fees would be assessed under pre-existing
theories, we concluded [in Bradley] that the new fee statute
simply ‘d[id] not impose an additional or unforeseeable
obligation’ upon the school board.” 511 U.S. at 278 (quoting
416 U.S. at 721). The present situation is also markedly
different from that in Bradley. First, here there is no
indication the district court would have awarded fees had it
the statutory authority or equitable power to do so. On the
contrary, the magistrate judge held Summers would not be
entitled to an award even if he were eligible for one. Second,
application of the fee statute in this case, unlike in Bradley,
would impose an “unforeseeable obligation” upon the
defendant by exposing it to liability for attorneys’ fees for
which it clearly was not liable before the passage of the 2007
Act. Moreover, “[b]ecause retroactivity raises special policy
concerns, the choice to enact a statute that responds to a
judicial decision is quite distinct from the choice to make the
7
responding statute retroactive.” Rivers v. Roadway Exp., Inc.,
511 U.S. 298, 305 (1994).
Summers argues the presumption of the general rule
against retroactive application of a statute is overcome by the
clear intent of the Congress in passing the 2007 Act, but the
evidence of intent he adduces is neither powerful nor even
relevant. Summers first points to the committee report on the
bill that became the Act, which states the purpose of
amending the FOIA was “to clarify that a complainant has
substantially prevailed in a FOIA lawsuit, and is eligible to
recover attorney fees ... if the pursuit of a claim was the
catalyst for the voluntary or unilateral change in position by
the opposing party.” S. REP. No. 110-59, at 6 (2007).
Second, Summers points to this floor statement by Senator
Leahy, a sponsor of the legislation: “The bill clarifies that
Buckhannon does not apply to FOIA cases.” 153 CONG. REC.
S15701-04 (daily ed. Dec. 14, 2007). Putting aside the
general problem that neither a committee nor a single Senator
can speak for “the Congress,” these specific statements
simply do not speak to the issue of retroactivity.
In sum, the 2007 Act is silent with regard to its temporal
reach; its application here would have “retroactive effect”
because it would “increase a party’s liability for past conduct”
and there is no evidence of a “clear congressional intent
favoring such a result.” Landgraf, 511 U.S. at 280. Therefore
the Act does not apply to Summers’s claims for attorneys’
fees.
B. Pre-Amendment Eligibility
We now turn to Summers’s argument that he is eligible to
receive a fee award pursuant to the FOIA standard in effect
prior to the passage of the 2007 Act. To grant a FOIA
8
plaintiff an award of attorneys’ fees under that standard, the
district court must have determined the plaintiff was not only
eligible for but also entitled to an award. Tax Analysts, 965
F.2d at 1093. In the present case the district court (unlike the
magistrate judge) went no further than to hold Summers was
not eligible to receive a fee award inasmuch as he had not
“substantially prevailed” in his FOIA action. Summers, 2007
WL 2111049, at *1 n.1. We review that determination de
novo “because it rests on an interpretation of the statutory
terms that define eligibility for an award.” Davy v. CIA, 456
F.3d 162, 164 (2006) (internal quotation marks omitted).
To be eligible under the applicable standard, a plaintiff
“must have 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 (internal quotation marks
omitted). Summers points to three identical orders issued by
the district court as evidence he received court-ordered relief.
In each the district court “ordered that the parties file another
joint status report by [a specific date] indicating the additional
disclosures defendant has made to plaintiff and whether
plaintiff intends to compel the release of any withholdings.”
Summers argues these orders required the FBI to make
disclosures but that is not correct.
The orders required the FBI to do no more than to join
with the plaintiff in filing status reports updating the court on
any voluntary disclosures the agency may have made. The
FBI would not have violated the orders if it had refused to
disclose a single document or datum. Consequently, the
status reports do not affect a “court-ordered change in the
legal relationship between the plaintiff and the defendant.”
OCAW, 288 F.3d at 458 (holding similar status reports did not
constitute relief ordered by a court).
9
Finally, Summers argues the settlement agreement he
executed with the FBI makes him eligible for a fee award
because his dismissal of the action was made contingent upon
the FBI’s disclosing certain information. This argument fails
the requirement that the plaintiff “ha[ve] been awarded some
relief by the court.” Buckhannon, 532 U.S. at 603. Neither
the district court nor this court compelled the FBI to disclose
anything. Again, we rejected a similar argument in OCAW.
288 F.3d. at 458-49.
Like the district court, we conclude Summers is not
eligible to receive an award of attorneys’ fees under the pre-
amendment FOIA. Because he is ineligible to receive a fee
award, like the district court, we do not consider whether he
would be entitled to an award if he were eligible.
III. Conclusion
The amendment to the FOIA in the OPEN Government
Act of 2007 does not apply to this case because its application
would increase the Government’s liability for pre-enactment
conduct and there is no clear evidence the Congress intended
it to apply retroactively. Under the standard applicable to
cases arising before the effective date of the 2007 Act,
Summers is ineligible to receive an award of attorneys’ fees
because he received no court-ordered relief. The judgment of
the district court is therefore
Affirmed.