Edmonds v. FBI, 04-5177.

• Decision Date: 09 August 2005
• Docket Number: No. 04-5177.,04-5177.
• Citation: 417 F.3d 1319
• Parties: S.D. EDMONDS, Appellant v. FEDERAL BUREAU OF INVESTIGATION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

417 F.3d 1319

S.D. EDMONDS, Appellant v. FEDERAL BUREAU OF INVESTIGATION, Appellee.

No. 04-5177.

United States Court of Appeals, District of Columbia Circuit.

Argued March 18, 2005.

Decided August 9, 2005.

David K. Colapinto argued the cause and filed the briefs for appellant. Mark S. Zaid and Roy W. Krieger entered appearances.

Scott L. Nelson and Brian Wolfman were on the brief for amicus curiae Public Citizen, Inc. in support of appellant.

H. Thomas Byron, III, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Douglas N. Letter and Leonard Schaitman, Attorneys.

Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

Sibel Edmonds filed a Freedom of Information Act (FOIA) request for certain Federal Bureau of Investigation (FBI) records relating to the FBI's decision to terminate her employment. She also sought expedited processing of that request. When the FBI failed to grant or deny expedition, she obtained an order from the district court, compelling expedited processing and directing the Bureau to release all nonexempt documents by a specified date. The FBI ultimately released a total of 346 pages. Concluding that Edmonds "substantially prevailed" in her district court action, we reverse the court's determination that she was ineligible for an award of attorney's fees.

I

Edmonds worked as a contract linguist for the FBI between September 2001 and March 2002. She alleges that she "witnessed and reported to governmental authorities systemic quality problems and breaches in security within the FBI's language division concerning translations relating to the FBI's counter-terrorism and counter-intelligence operations," and that she was terminated after her repeated "efforts to report these problems." Appellant's Br. at 9. By letters dated April 19 and April 29, 2002, Edmonds submitted FOIA requests for FBI documents concerning herself, her security clearance, her allegations of wrongdoing at the Bureau, and investigations of persons related to her. Although she requested expedited processing of her requests, the FBI did not release any documents or make any determination regarding whether she was entitled to expedited processing under the statute and associated regulations. Edmonds v. FBI, No. 02-1294, Order at 2, 2002 WL 32539613 (D.D.C. Dec. 3, 2002) ("December 3, 2002 Order").¹

On June 27, 2002, Edmonds sued the FBI under FOIA, seeking an order to require production of the requested documents. See 5 U.S.C. § 552(a)(4)(B). On July 15, she filed an amended complaint alleging a statutory right to expedited processing of her FOIA requests and seeking an order directing expedition. Am. Compl. ¶¶ 21-22. Thereafter, Edmonds moved for partial summary judgment, asking the district court to order the FBI to expedite the processing of her requests. Edmonds relied on 5 U.S.C. § 552(a)(6)(E)(i), which requires agencies to promulgate regulations "providing for expedited processing of requests for records" in certain circumstances, and on § 552(a)(6)(E)(iii), which provides that "failure by an agency to respond in a timely manner" to a request for expedited processing "shall be subject to judicial review." The FBI opposed the motion and cross-moved for a stay until April 1, 2003, under Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C.Cir. 1976).²

On December 3, 2002, the district court granted Edmonds' motion for partial summary judgment and denied the FBI's motion for a stay. December 3, 2002 Order at 8. The court concluded that Edmonds' request "easily met the standard" set by the Department of Justice's FOIA regulation, which provides for expedited processing in a "`matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence.'" Id. at 6 (quoting 28 C.F.R. § 16.5(d)(1)(iv)). On December 16, the court ordered the FBI to "complete the expedited processing of plaintiff's FOIA request and provide plaintiff with all documents as to which no exemption is being claimed" by January 31, 2003. Edmonds v. FBI, No. 02-1294, Order at 1 (D.D.C. Dec. 16, 2002). The court subsequently extended the deadline to February 10. See Edmonds v. FBI, 310 F.Supp.2d 55, 56-57 (D.D.C.2004).

On February 10, 2003, the FBI released 343 pages to Edmonds, but advised the court that it was withholding another 1143 pages responsive to her FOIA request. The FBI then moved for summary judgment, contending that the withheld documents were exempt from disclosure. See 5 U.S.C. § 552(b). On July 24, the district court granted the FBI's motion with respect to all but three of the remaining pages. As to those pages, the court asked the FBI to provide additional information justifying withholding. See id. Thereafter, the FBI released the three pages without being ordered to do so. See id.

On December 12, 2003, Edmonds filed a motion for attorney's fees relating to the December 16, 2002 order requiring expedited treatment of her FOIA request, and to the FBI's release of the additional three pages. The district court denied Edmonds' fee motion, concluding that she had not "substantially prevailed" on her FOIA claim, as required for fee eligibility under the statute. See 5 U.S.C. § 552(a)(4)(E) (providing that "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 prevailed"). Edmonds now appeals from the denial of her motion.

II

In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the Supreme Court considered the attorney's fees provisions of the Fair Housing Amendments Act, 42 U.S.C. § 3601 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., which permit courts to award fees only to a "prevailing party." Id. §§ 3613(c)(2), 12205. The Court rejected the plaintiffs' contention, which it characterized as the "catalyst theory," that "a plaintiff is a `prevailing party' if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant's conduct." Buckhannon, 532 U.S. at 601, 121 S.Ct. 1835. Rather, the Court ruled, for a litigant to be a "prevailing party," there must have been a "judicially sanctioned change in the legal relationship of the parties." Id. at 605, 121 S.Ct. 1835. "Enforceable judgments on the merits and court-ordered consent decrees," the Court said, suffice to create such a change. Id. at 604, 121 S.Ct. 1835.

In Oil, Chemical & Atomic Workers International Union v. Department of Energy (OCAW), this circuit extended the holding of Buckhannon to the fee-shifting provision of FOIA. 288 F.3d 452, 454-57 (D.C.Cir.2002). The OCAW court concluded that "the `substantially prevail' language in FOIA is the functional equivalent of the `prevailing party' language found in" the statutes interpreted in Buckhannon. Id. at 455-56. It "therefore held 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." Id. at 456-57 (quoting Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835).

Edmonds asserts that she satisfied the requirements of Buckhannon and OCAW by obtaining partial summary judgment on the question of expedited review, an order from the district court directing release of nonexempt documents by February 10, 2003, and the actual release of 343 pages that day.³ She contends that she further prevailed by ultimately obtaining the release of the three additional pages. We review the district court's contrary determination, which rests on "an interpretation of the statutory terms that define eligibility for an award," de novo. National Ass'n of Mfrs. v. Department of Labor, 159 F.3d 597, 599 (D.C.Cir.1998).

III

The district court concluded, and the government argues on appeal, that Edmonds was not a prevailing party because "a court order requiring expedited processing does not rise to the level of a `material alteration of the legal relationship of the parties necessary to permit an award of attorney's fees.'" Edmonds, 310 F.Supp.2d at 58 (quoting Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835) (internal quotation marks omitted). We disagree. Prior to the December 16, 2002 order, the FBI was not under judicial direction to produce any category of documents by any specified date. Once the court issued that order, the Bureau was under judicial direction to produce all nonexempt documents, first by January 31 and then by February 10, 2003. The order thus amounted to a "judicially sanctioned change in the legal relationship of the parties." Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835. Thereafter, timely production of nonexempt documents by the FBI could no longer be described as a "voluntary change in the defendant's conduct." Id. at 600, 121 S.Ct. 1835. To the contrary, the plaintiff then had an "enforceable judgment," id. at 607 n. 9, 121 S.Ct. 1835, and if the defendant failed to comply, it faced the sanction of contempt.

1. The district court thought OCAW stood for the proposition that the requirements of Buckhannon could not be satisfied until there was a "judgment by the Court regarding the legality of the government's withholding of documents." Edmonds, 310 F.Supp.2d at 58. That is incorrect. OCAW — which did not involve FOIA's expedited processing provision — did hold that an August 23, 1999 order in that case "requiring that the Energy Department complete its record review in 60 days" did not materially alter the legal status of the parties....