Judicial Watch, Inc. v. F.B.I.

• Decision Date: 11 April 2008
• Docket Number: No. 07-5158.,07-5158.
• Citation: 522 F.3d 364
• Parties: JUDICIAL WATCH, INC., Appellant v. FEDERAL BUREAU of INVESTIGATION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

522 F.3d 364

JUDICIAL WATCH, INC., Appellant v. FEDERAL BUREAU of INVESTIGATION, Appellee.

No. 07-5158.

United States Court of Appeals, District of Columbia Circuit.

Argued February 25, 2008.

Decided April 11, 2008.

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.

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, 112 S.Ct. 541, 116 L.Ed.2d 526 (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 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 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 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, 121 S.Ct. 1835, 149 L.Ed.2d 855 (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, 532 U.S. at 603, 121 S.Ct. 1835). 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 "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, 121 S.Ct. 1835). 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...