Oil, Chemical and Atomic Workers v. D.O.E.

• Decision Date: 10 May 2002
• Docket Number: No. 01-5163.,01-5163.
• Citation: 288 F.3d 452
• Parties: OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, and James K. Phillips, Jr., Vice President of Oil, Chemical and Atomic Workers International Union, AFL-CIO, Appellees, v. DEPARTMENT OF ENERGY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 452

288 F.3d 452

OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, and James K. Phillips, Jr., Vice President of Oil, Chemical and Atomic Workers International Union, AFL-CIO, Appellees, v. DEPARTMENT OF ENERGY, Appellant.

No. 01-5163.

United States Court of Appeals, District of Columbia Circuit.

Argued March 7, 2002.

Decided May 10, 2002.

Appeal from the United States District Court for the District of Columbia, 141 F.Supp.2d 1, Gladys Kessler, J.

Douglas Hallward-Driemeier, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Roscoe C. Howard, Jr., U.S. Attorney, and Leonard Schaitman, Attorney, U.S. Department of Justice.

Daniel Guttman argued the cause for appellees. With him on the brief were Brian P. McCafferty, Reuben A. Guttman and Traci L. Buschner.

Before: RANDOLPH and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge ROGERS.

RANDOLPH, Circuit Judge:

This is an appeal of an award of attorney's fees for actions brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Government in the Sunshine Act, 5 U.S.C. § 552b. The question is whether Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), decided while this appeal was pending, applies to FOIA cases.

I.

Congress created the United States Enrichment Corporation ("USEC") to operate uranium enrichment plants in the country. See 42 U.S.C. § 2297a (1992). There are two such facilities, one in Kentucky, the other in Ohio. The Oil, Chemical, and Atomic Workers International Union represented employees at both plants. In 1996, Congress decided to "privatize" USEC by having a private entity lease the facilities. See USEC Privatization Act, Pub.L. No. 104-134, 110 Stat. 1321-335 (1996) (codified at 42 U.S.C. § 2297h). Concerned that privatization would affect its members' employment, the union sought information about what was planned. USEC refused to provide the information voluntarily. The union then sent a FOIA request to USEC. On June 30, 1998, after USEC failed to provide the information, the union filed this action in the district court. A few weeks later the union brought a separate suit under the Government in the Sunshine Act, 5 U.S.C. § 552b, seeking to open USEC's board meetings on privatization to the public. The district court denied the union's request for a temporary restraining order that would have required an "open" board meeting. Privatization occurred a few weeks later, on July 28, 1998.

In August 1998, the government moved to dismiss the FOIA and Sunshine Act suits, arguing that the court's jurisdiction ended when USEC ceased to be a public entity. Rather than grant the motion, the district court substituted the Department of Energy as defendant on the grounds that the Privatization Act called for the government to fulfill obligations incurred by USEC, and that there was a "Record Agreement" to the same effect. Several status hearings took place after this order. On December 10, 1999, the parties (the union and the Energy Department) filed a Stipulation and Order of Dismissal stating that the government had provided "substantial amounts of material" and dismissing the claims with prejudice, although reserving the union's right to seek attorney's fees. The district court endorsed the stipulation.

The parties were unable to resolve the attorney's fees issue amongst themselves, so the union filed an application for fees with the district court on April 17, 2000. On March 16, 2001, the court ruled that the union was entitled to receive fees, but not in the full amount it sought. (The court stated that the union could recover any Sunshine Act fees in its motion for fees under FOIA, but it also denied the union's request for fees related to its failed attempt to get injunctive relief halting the USEC board meeting or opening it to the public. The union does not appeal this decision, so our analysis is limited to the request for fees under FOIA.) After the court's order, the parties stipulated that the proper amount of fees and costs totaled $108,173.25, reserving the Energy Department's right to appeal. The court ordered the payment of this amount on March 30, 2001. Shortly after the government noted its appeal, the Supreme Court issued its opinion in Buckhannon, holding that attorney's fees are not authorized under the Fair Housing Amendments Act or Americans with Disabilities Act to a plaintiff who achieves the desired result without a judgment on the merits or a court-ordered consent decree. See 532 U.S. at 600-01, 121 S.Ct. at 1838.

II.

In order to recover attorney's fees in a FOIA case, the plaintiff must have "substantially prevailed": 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." 5 U.S.C. § 552(a)(4)(E). In determining whether plaintiffs are eligible for an award, we have followed the "catalyst theory." So 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. Chesapeake Bay Found., Inc. v. Dep't of Agric., 11 F.3d 211, 216 (D.C.Cir. 1993) (citing Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509, 513 (2d Cir.1976)); see also Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C.Cir.1977).

In Buckhannon, the Supreme Court rejected the "catalyst theory." Plaintiffs there had alleged that certain "self-preservation" provisions of a state fire code violated the Fair Housing Amendments and Americans with Disabilities Acts as applied to an assisted-living facility. See 532 U.S. at 600, 121 S.Ct. at 1838. Before the district court ruled, the state legislature repealed the provisions. See id. at 601, 121 S.Ct. at 1838. Plaintiffs then moved for attorney's fees, arguing that under the fee-shifting statutes at issue they were "prevailing parties" because their lawsuit had prompted the change in the law. See id. The Supreme Court held that absent some sort of judicial imprimatur, a plaintiff could not be considered a "prevailing party" and an award of attorney's fees was therefore impermissible.

The Energy Department argues that Buckhannon's rejection of the catalyst theory applies also to FOIA, a possibility we have already noticed. See Students Against Genocide v. Dep't of State, 257 F.3d 828, 841 n. 14 (D.C.Cir.2001). As the Court pointed out in Buckhannon, 532 U.S. at 602-03, 121 S.Ct. at 1838-40, there are dozens of fee-shifting statutes, some worded slightly differently from others. A wide range of statutes uses the "substantially prevails" formulation. See, e.g., 5 U.S.C. § 552a(g)(2)(B) (Privacy Act); 5 U.S.C. § 552b(i) (Government in the Sunshine Act); 15 U.S.C. § 26 (Clayton Act); 16 U.S.C. § 470w-4 (National Historic Preservation Act); 28 U.S.C. § 2465(b)(1) (return of forfeited or condemned property); 42 U.S.C. § 300aa-31(c) (National Vaccine Injury Compensation Program). Many other statutes use "prevailing party." As to a litigant's eligibility for an award of attorney's fees, we have treated these statutes as substantially similar. See, e.g., Pub. Citizen Health Research Group v. Young, 909 F.2d 546, 549 (D.C.Cir.1990) (Equal Access to Justice Act) ("It is enough that the lawsuit was a `causal, necessary, or substantial factor in obtaining the result' plaintiff sought."); Comm'rs Court of Medina County, Tex. v. United States, 683 F.2d 435, 442 (D.C.Cir.1982) (Voting Rights Act). Buckhannon expressly endorsed this approach. After citing to a long list of such statutes, a list including FOIA, the Court stated that it had "interpreted these fee-shifting statutes consistently," 532 U.S. at 603 & n. 4, 121 S.Ct. at 1839 & n. 4 (citing Marek v. Chesny, 473 U.S. 1, 43-51, 105 S.Ct. 3012, 3034-38, 87 L.Ed.2d 1 (1985) (Appendix to opinion of Brennan, J., dissenting); Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 76 L.Ed.2d 40 (1983)). Five circuits have applied Buckhannon to other fee-shifting statutes. See, e.g., Smyth v. Rivero, 282 F.3d 268, 274-76 (4th Cir.2002) (42 U.S.C. § 1988); Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir.2002) (Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)); J.C. v. Reg'l Sch. Dist. 10, 278 F.3d 119, 124 (2d Cir.2002) (Individuals with Disabilities in Education Act, 20 U.S.C. § 1415(i)(3)(B)); N.Y. State Fed'n of Taxi Drivers, Inc. v. Westchester County Taxi & Limousine Comm'n, 272 F.3d 154, 158 (2d Cir.2001) (42 U.S.C. § 1988); Chambers v. Ohio Dep't of Human Servs., 273 F.3d 690, 693 & n. 1 (6th Cir.2001) (42 U.S.C. § 1983); Crabill v. Trans Union, L.L.C., 259 F.3d 662, 667 (7th Cir.2001) (Fair Credit Reporting Act, 15 U.S.C. §§ 1681n, 1681o); cf. Bennett v. Yoshina, 259 F.3d 1097, 1100 (9th Cir.2001) ("There can be no doubt that the Court's analysis in Buckhannon applies to statutes other than the two at issue in that case.").

We therefore adhere to the proposition, well-established in this court and in the Supreme Court, that eligibility for an award of attorney's fees in a FOIA case should be treated the same as eligibility determinations made under other fee-shifting statutes unless there is some good reason for doing otherwise. One such reason, the union argues, is the contrast between the language of the statutes in Buckhannon, which authorized fees for the "prevailing party," see 42 U.S.C. §§ 3613(c)(2) & 12205, and FOIA, which allows fees if "the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). It is true, as the union points out, that Buckhannon treated "prevailing party" as a "legal term of art." 532 U.S. at 603, 121 S.Ct. at 1839. Yet all must agree that a "pr...