Davis v. United States Dep't Of Justice

• Decision Date: 06 July 2010
• Docket Number: No. 09-5189.,09-5189.
• Citation: 610 F.3d 750
• Parties: John DAVIS, Appellantv.UNITED STATES DEPARTMENT OF JUSTICE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

610 F.3d 750

John DAVIS, Appellantv.UNITED STATES DEPARTMENT OF JUSTICE, Appellee.

No. 09-5189.

United States Court of Appeals District of Columbia Circuit.

Argued April 19, 2010.

Decided July 6, 2010.

Rehearing En Banc Denied Aug. 26, 2010.

Appeal from the United States District Court for the District of Columbia (No. 1:88-cv-00130-HHK).

James H. Lesar argued the cause and filed the briefs for appellant. Daniel S. Alcorn entered an appearance.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney, Heather Graham-Oliver, Assistant U.S. Attorney, entered an appearance.

Before HENDERSON, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

For forty-four years the Freedom of Information Act (FOIA) has facilitated public access to the records of federal agencies. See Pub.L. No. 89-554, § 552, 80 Stat. 378, 383 (1966) (codified as amended at 5 U.S.C. § 552 (Supp. III 2009)). This case has been pending for half that time. The appellant, John Davis, filed a FOIA request with the Department of Justice in 1986, seeking access to tape recordings made during an FBI investigation of a New Orleans mob boss. When the Department failed to produce the recordings, Davis filed this suit. The question in this appeal-his sixth by our count-is whether the OPEN Government Act of 2007, Pub.L. No. 110-175, § 4, 121 Stat. 2524, 2525, permits Davis to recoup the attorneys' fees he incurred during the protracted litigation that followed. It does not.

I.

There is no need to linger on the facts and procedural history of this case; we have unwound that yarn before. See Davis v. DOJ (Davis IV), 460 F.3d 92 (D.C.Cir.2006); Davis v. DOJ (Davis I), 968 F.2d 1276 (D.C.Cir.1992). The salient points are that the Department voluntarily released many of the requested tapes in 1995, one additional tape in 1999, but nothing more in the decade that followed. The district court granted summary judgment in favor of the Department in 2007, concluding that it had fulfilled its obligations under FOIA. Davis v. DOJ, No. 88-00130, 2007 WL 4275512 (D.D.C. Dec.3, 2007) aff'd, No. 08-5024, Order at 1 (D.C.Cir. July 31, 2008). Davis then moved for attorneys' fees.

Section 552(a)(4)(E) of Title 5 makes plaintiffs who have “substantially prevailed” in FOIA litigation eligible for a recovery of reasonable attorneys' fees. At one time, lower courts held that FOIA plaintiffs were eligible for a fee award if the lawsuit substantially caused the agency to release the requested records. Our circuit's interpretation of § 552(a)(4)(E) reflected this approach-known as the “catalyst theory”-when the Department handed its tape recordings over to Davis in 1995 and 1999. See, e.g., Cuneo v. Rumsfeld, 553 F.2d 1360, 1364-65 (D.C.Cir.1977).

But the Supreme Court rejected the catalyst theory in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Construing two statutes allowing courts to award attorneys' fees to the “prevailing party,” the Court held that a plaintiff whose lawsuit prompts the defendant to voluntarily change its conduct does not qualify for a fee award. See id. at 600-01, 121 S.Ct. 1835. We subsequently concluded that “the existing law of our circuit must give way” to Buckhannon and held that a FOIA plaintiff has “substantially prevailed” only if he has “ ‘been awarded some relief by [a] court,’ either in a judgment on the merits or in a court-ordered consent decree.” Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO v. Dep't of Energy (OCAW), 288 F.3d 452, 456-57 (D.C.Cir.2002) (quoting Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835).

Disapproving of the effect these cases had on the disclosure policies of administrative agencies, Congress enacted the OPEN Government Act of 2007 to establish that the catalyst theory applied in FOIA cases. See Judicial Watch, Inc. v. FBI, 522 F.3d 364, 370 (D.C.Cir.2008). Under the new statute, a plaintiff “substantially prevail[s]” (and is thus eligible for a fee award) if his suit yields relief in the form of “a judicial order, or an enforceable written agreement or consent decree” or “a voluntary or unilateral change in position by the agency.” 5 U.S.C. § 552(a)(4)(E)(ii) (Supp. III 2009) [hereinafter 2007 Act].

Prior to the 2007 Act, we determined in Davis IV that Davis was ineligible for attorneys' fees under Buckhannon and OCAW. 460 F.3d at 105-06. We remanded for further proceedings on the merits, and Davis renewed his fee request in light of the 2007 Act. A magistrate judge agreed with Davis that the new statute governed his request for attorneys' fees and recommended an award of $112,029.48. The district court disagreed and denied Davis's motion. We affirm.

II.

Whether Davis is now eligible for attorneys' fees is a question of legislative retroactivity: Does the 2007 Act resurrect the catalyst theory for cases in which the agency voluntarily changed its position before the statute's enactment? A statute operates retroactively if it “attaches new legal consequences to events completed before its enactment.” Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). There is a “well-settled presumption” against giving statutes retroactive effect. Id. at 277, 114 S.Ct. 1483. See generally Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 840-58, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring) (tracing the historical development of the presumption); Daniel E. Troy, Retroactive Legislation 25-43 (1998) (same). The presumption prohibits courts from applying a new provision in a way that would “ ‘affect[ ] substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment,’ ” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006) (quoting Landgraf, 511 U.S. at 278, 114 S.Ct. 1483), “unless Congress has clearly manifested its intent to the contrary,” Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 946, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997).

Summers v. Department of Justice, 569 F.3d 500 (D.C.Cir.2009), largely determined the temporal scope of the 2007 Act. Summers involved a request for attorneys' fees in a FOIA lawsuit that was settled in 2005, after OCAW but before the 2007 Act. See id. at 502. The district court held the plaintiff ineligible for a fee award under OCAW. Id. The 2007 Act took effect while the appeal was pending, and the plaintiff asked us to apply the new statute. See id. at 503-04. The Summers court observed that because the government had voluntarily relinquished the records, it was not liable for attorneys' fees “under the pre-amendment rule of Buckhannon.” Id. at 503. Applying the new law would therefore “impose an ‘unforeseeable obligation’ upon the defendant by exposing it to liability for attorneys' fees for which it clearly was not liable before.” Id. at 504 (quoting Landgraf, 511 U.S. at 278, 114 S.Ct. 1483). Moreover, the court found that the text of the 2007 Act was “silent with regard to its temporal reach,” and that its legislative history contained “no evidence of a ‘clear congressional intent favoring [retroactive application].’ ” Id. (quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1522). Absent clear instructions from Congress, the Summers court declined to apply the 2007 Act retroactively.

Davis contends Summers was wrongly decided. Summers, of course, is the law of the circuit, and “[o]ne three-judge panel ... does not have the authority to overrule another three-judge panel of the court.” LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc); see also Davis IV, 460 F.3d at 106. Davis's arguments that Summers is not binding are without merit. Accordingly, we turn to his two attempts to distinguish the case.

First, Davis argues that the 2007 Act would not operate retroactively here because the statute simply reinstates the standard this court applied when the Department voluntarily released the tapes in 1995 and 1999. The government could not foresee its potential liability for fees in Summers because it settled the case after Buckhannon and OCAW. By contrast, when the government disclosed the tapes in this case, it could expect to pay attorneys' fees under the catalyst theory. At least in these circumstances, Davis contends, the 2007 Act restores but does not “ ‘ increase a party's liability for past conduct,’ ” Summers, 569 F.3d at 504 (quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1483) (emphasis added), and therefore is not impermissibly retroactive.

The Supreme Court recognized the “equitable appeal” of this line of argument in Rivers v. Roadway Express, Inc., 511 U.S. 298, 310, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994), but ultimately rejected it. At issue in Rivers, the companion case to Landgraf, was a provision of the Civil Rights Act of 1991 that “overruled” the Supreme Court's holding in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), that 42 U.S.C. § 1981 did not provide a cause of action for discriminatory termination. See Rivers, 511 U.S. at 304-05, 306-07, 114 S.Ct. 1510. The plaintiffs in Rivers were fired before the Court decided Patterson, at a time when circuit precedent would have allowed their claims to go forward. See id. at 309 n. 9, 114 S.Ct. 1510. But when the plaintiffs invoked the 1991 Act on appeal, the Court rejected their argument “that restorative statutes do not implicate fairness concerns relating to retroactivity ... when ... the new statute simply enacts a rule that the parties believed to be the law when they acted.” Id. at 309, 114 S.Ct. 1510; see id. at 309-13, 114 S.Ct. 1510. “Even when Congress intends to supersede a rule of law embodied in one of our decisions with what it views as a...