Judicial Watch Inc. v. United States Dep't of Justice

• Decision Date: 31 March 2011
• Docket Number: Civil Action No. 06–00406(HHK).
• Citation: 774 F.Supp.2d 225
• Parties: JUDICIAL WATCH, INC., Plaintiff,v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

774 F.Supp.2d 225

JUDICIAL WATCH, INC., Plaintiff,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 06–00406(HHK).

United States District Court, District of Columbia.

March 31, 2011.

Paul J. Orfanedes, Jason B. Aldrich, Judicial Watch, Inc., Washington, DC, for Plaintiff.Caroline Lewis Wolverton, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

HENRY H. KENNEDY, JR., District Judge.

Plaintiff Judicial Watch, Inc. brought this action against the U.S. Department of Justice (“DOJ”), seeking the release of certain records related to the government's Terrorist Surveillance Program pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. On March 3, 2010, after DOJ had released a number of documents and withheld others under FOIA's various exemptions, the parties submitted a joint stipulation of dismissal [# 29]. Judicial Watch subsequently filed a motion for attorney fees [# 30], which DOJ opposes. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion should be granted.

I. BACKGROUND

On January 6, 2006, Judicial Watch filed a FOIA request with DOJ, seeking legal opinions, orders, and other documents related to the Terrorist Surveillance Program, a domestic surveillance initiative authorized by President George W. Bush in 2002. On March 6, having received no response from DOJ, Judicial Watch initiated this action. Thereafter, the parties jointly stipulated that: (i) DOJ would complete its production of documents by September 15, 2006; (ii) DOJ would produce a Vaughn index of all records withheld from Judicial Watch by October 13, see Vaughn v. Rosen, 484 F.2d 820, 827–28 (D.C.Cir.1973); and (iii) by October 31, Judicial Watch would notify DOJ whether it intended to challenge any withholdings and if so, which ones. See Joint Stipulation [# 7] ¶¶ 1–3. The Court accepted the parties' stipulation by minute order. See Minute Order of Aug. 7, 2006.

After the agreed-upon steps were completed, DOJ moved for summary judgment as to its withholding of 294 documents pursuant to FOIA's Exemption Five. Def.'s Mem. in Supp. of Summ. J. [# 9]; see 5 U.S.C. § 552(b)(5) (protecting “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency [sic] in litigation with the agency.”). The Court granted the motion for summary judgment as to fifteen documents that Judicial Watch conceded could be withheld, but denied it in all other respects, concluding that DOJ had failed to adequately explain why the remaining documents were exempt from disclosure and why certain documents contained no segregable information. See Mem. Op. & Order of March 20, 2008 [# 19] at 13. After the Court's ruling, the parties engaged in further negotiations that resulted in DOJ's release of 68 more documents and then the dismissal of the case. Judicial Watch then moved for attorney fees.

II. ANALYSIS

A FOIA plaintiff is eligible to receive “reasonable attorney fees and other litigation costs” if she has “substantially prevailed” in the case in question. 5 U.S.C. § 552(a)(4)(E)(i). If eligible, a plaintiff must also show that she is “entitled” to a fee award; only then will she be granted fees and costs. See Judicial Watch, Inc. v. FBI, 522 F.3d 364, 371 (D.C.Cir.2008). Because eligibility is a threshold requirement, the Court turns first to that issue.

A. Judicial Watch “Substantially Prevailed” in this Action1. The Court Need Not Determine Which “Substantially Prevailed” Standard to Apply

The “substantially prevailed” requirement presents an unusual complication here because its meaning changed during the pendency of this action. From 2001 through 2007, “in order for plaintiffs in FOIA actions to become eligible for an award of attorney 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.” Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy (“OCAW”), 288 F.3d 452, 456–57 (D.C.Cir.2002) (alteration in original) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)). On the last day of 2007, however, the OPEN Government Act of 2007, Pub.L. No. 110–175, 121 Stat. 2524 (2007), took effect. Under the OPEN Government Act, a FOIA plaintiff has substantially prevailed if she has obtained relief from a court as described above or via “a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). The act's “voluntary or unilateral change” language reinstated the “catalyst” test for fee eligibility, which had been rejected by the Supreme Court in Buckhannon. See 532 U.S. at 610, 121 S.Ct. 1835.

As a result of this mid-litigation change in the governing law, the parties dispute which standard the Court should apply: the catalyst test (which took effect while this case was pending) or the stricter Buckhannon test (which was in effect when the case was filed). The Court concludes, however, that it need not resolve that question because even under the stricter Buckhannon test, Judicial Watch has substantially prevailed.

2. Judicial Watch Has Obtained Relief Through “a Judicial Order, or an Enforceable Written Agreement or Consent Decree”

The Buckhannon test requires a plaintiff to have “obtained relief through ... a judicial order, or an enforceable written agreement or consent decree.” 5 U.S.C. § 552(a)(4)(E); see OCAW, 288 F.3d at 455–57. Judicial Watch points to two actions of this Court that ostensibly awarded relief to Judicial Watch in the necessary fashion: first, the Court's August 7, 2006 acceptance of the parties' joint stipulation; and second, the Court's March 20, 2008 partial grant and partial denial of DOJ's motion for summary judgment. DOJ responds that neither event constituted an award of relief on the merits of Judicial Watch's FOIA claim. The Court concludes that Judicial Watch substantially prevailed by virtue of the Court's August 2006 acceptance of the parties' joint stipulation.

The Court's minute order of August 7, 2006 stated that the Court “approves of the parties' stipulations ... and the parties shall be governed by the deadlines set forth therein.” Minute Order of August 7, 2006. The stipulation in question read: “On or before September 15, 2006, DOJ shall complete production of all records responsive to Plaintiff's January 6, 2006 Freedom of Information Act request that are not subject to claims of exemption.” Joint Stipulation ¶ 1. Judicial Watch asserts that the Court's adoption of the stipulation constituted a judicial award of relief on the merits; DOJ counters that the Court's minute order was merely procedural. DOJ's response is unavailing.

In the aptly titled Judicial Watch, 522 F.3d 364, the D.C. Circuit held that the plaintiff had prevailed because “the parties had stipulated that the defendant agency would produce the requested records by a date certain and the trial court approved the parties' joint stipulation.” Id. at 368 (internal quotation marks omitted). The Judicial Watch court found the case before it to be a close parallel to Davy v. CIA, 456 F.3d 162 (D.C.Cir.2006), which similarly held that the plaintiff had prevailed on the basis of a joint stipulation, approved by the district court, that the defendant would provide “all responsive documents, if any,” by certain dates. Id. at 164 (quoting Davy v. CIA, No. 00–02134 (D.D.C. May 17, 2001)). In Judicial Watch, as in Davy, the D.C. Circuit emphasized that “[p]rior to the parties' joint stipulation and order, ... ‘[the defendant] was not under any judicial direction to produce documents by specific dates; the ... order changed that by requiring the [defendant] to produce all responsive documents by the specified dates.’ ” Judicial Watch, 522 F.3d at 367–68 (quoting Davy, 456 F.3d at 166); see also Campaign for Responsible Transplantation v. FDA, 511 F.3d 187, 197 (D.C.Cir.2007); Edmonds v. FBI, 417 F.3d 1319, 1321–23 (D.C.Cir.2005).

The Court's August 7, 2006 minute order fits squarely within the holdings of these cases. The parties' stipulation, which the minute order approved, required DOJ to “complete production” of responsive, non-exempt records by a certain date. See Joint Stipulation ¶ 1. The stipulation's language is functionally indistinguishable from that in Davy, where the stipulation, approved by the district court, stated that the defendant would provide “all responsive documents, if any,” by certain dates. Davy, 456 F.3d at 164 (quoting Davy v. CIA, No. 00–02134 (D.D.C. May 17, 2001)) (internal quotation marks omitted). As in Judicial Watch and Davy, this Court's minute order “requir[ed] the [defendant] to produce all responsive documents by the specified dates.” Judicial Watch, 522 F.3d at 367–68 (quoting Davy, 456 F.3d at 166) (internal quotation marks omitted).

DOJ's response—that the Court's order was merely procedural because it did not rule on the merits of Judicial Watch's claim—is an argument that the D.C. Circuit has repeatedly rejected. DOJ's argument is based on OCAW, in which the D.C. Circuit held that an order requiring the defendant to “complete its record review in 60 days” could not serve as the basis for a determination that the plaintiff had prevailed, because the order neither created an obligation to turn over any specific documents nor rejected the defendant's justifications for withholding any information. See OCAW, 288 F.3d at 458–59. In a vacuum, DOJ's reading of OCAW would be reasonable, but Davy, Campaign for Responsible Transplantation, and Judicial Watch all expressly considered and rejected such a reading. See Judicial Watch, 522 F.3d at 369–70 (describing the government's repeated deployment of this argument). The Judicial Watch court went so far as to observe that “the...