Oregon Natural Desert Ass'n v. Locke

• Decision Date: 08 July 2009
• Docket Number: No. 06-35851.,06-35851.
• Citation: 572 F.3d 610
• Parties: OREGON NATURAL DESERT ASSOCIATION, Plaintiff-Appellee, v. Gary LOCKE,<SMALL><SUP>*</SUP></SMALL> Secretary, United States Department of Commerce; William T. Hogarth, Director, NOAA Fisheries National Marine Fisheries Services, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

572 F.3d 610

OREGON NATURAL DESERT ASSOCIATION, Plaintiff-Appellee, v. Gary LOCKE,^* Secretary, United States Department of Commerce; William T. Hogarth, Director, NOAA Fisheries National Marine Fisheries Services, Defendants-Appellants.

No. 06-35851.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 21, 2008.

Filed July 8, 2009.

Mark W. Pennak, United States Department of Justice, Washington, D.C., for the defendants/appellants.

Peter M. Lacy, Portland, OR, for the plaintiff/appellee.

Appeal from the United States District Court for the District of Oregon, Garr M. King, District Judge. Presiding D.C. No. CV-05-00210-KI.

Before: DAVID R. THOMPSON, A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges.

THOMPSON, Senior Circuit Judge:

The Department of Commerce, National Oceanic and Atmospheric Administration Fisheries ("NOAA Fisheries") and National Marine Fisheries Services (collectively, "Commerce") appeal the district court's order granting attorney fees and costs under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), in favor of Oregon Natural Desert Association ("ONDA"). The district court issued the attorney fees order after it entered judgment in ONDA's action alleging unlawful withholding of requested documents and use of unlawful processing regulations in violation of the FOIA and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA").

We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for recalculation of the attorney fee award. On two of its claims, ONDA was not a substantially prevailing party under Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't. of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). As to those claims, the defendants provided the documents ONDA requested before the district court ordered that they be turned over. ONDA was successful in obtaining the documents, but it succeeded by use of the catalyst theory of recovery, and not by either a judgment on the merits or a court-ordered consent decree as required by Buckhannon. Id. at 604, 121 S.Ct. 1835.

The Openness Promotes Effectiveness in our National Government Act (the "2007 Amendments" to the FOIA) authorizes the payment of attorney fees when documents such as those sought by ONDA are recovered using a catalyst theory, but those Amendments were signed into law after the district court entered its attorney fees order, and they do not apply retroactively to this case. ONDA is not eligible for the recovery of attorney fees on its first two claims. Nor is it eligible for attorney fees on its third claim, which it lost. But, it is eligible for an award of attorney fees on its fourth claim for its successful challenge to the cut-off regulation.¹

I Background

On March 11, 2004, ONDA submitted a FOIA request to NOAA Fisheries, a component of an agency within the Department of Commerce. ONDA requested documents regarding the effects of livestock grazing on Upper and Middle Columbia River Steelhead from "2003 to the present." NOAA Fisheries obtained clarification of the request and then determined the documents responsive to it were those within its possession and control as of April 30, 2004, pursuant to the cut-off regulation.² 15 C.F.R. § 4.5(a) (prior to amendment). NOAA Fisheries referred the request to the agencies that had the primary interest in the documents for a direct response to ONDA. See 15 C.F.R. § 4.5(b).

ONDA filed a second FOIA request on January 7, 2005 seeking the same information as the first request, but for the period from "March 2004 to the present." NOAA Fisheries limited its search to documents in its possession and control before January 10, 2005, the date it received the second request, pursuant to the cut-off regulation. See 15 C.F.R. § 4.5(a) (prior to amendment).

On February 14, 2005, ONDA filed this lawsuit under the FOIA and the APA to compel the production of the documents it had requested on March 11, 2004 and January 7, 2005. ONDA also challenged Commerce's use of the referral regulation and cut-off regulation as violations of the FOIA. ONDA sought both declaratory and injunctive relief pursuant to the FOIA and the APA.

Within two months of the initiation of the lawsuit, NOAA Fisheries and other agencies to which ONDA's request for documents had been referred completed the production on both FOIA requests. Commerce then moved to dismiss this action, arguing the claims had been rendered moot by production of the requested documents. ONDA opposed the motion to dismiss and cross-moved for summary judgment, arguing it was entitled to declaratory relief on Commerce's pattern and practice of delay, and injunctive relief on its claims that the processing regulations violated the FOIA.

The district court determined that NOAA Fisheries's untimely response violated the FOIA, but that the referral regulation complied with the FOIA. After the parties submitted additional briefing, the district court granted ONDA summary judgment on its challenge to the cut-off regulation and enjoined Commerce from relying on it when responding to future FOIA requests. The cut-off regulation was amended thereafter to define responsive documents as those within the possession and control of the agency as of the date it begins its search for them. 15 C.F.R. § 4.5(a).

ONDA then moved for attorney fees and costs under the FOIA, or in the alternative, under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) ("EAJA"). The district court awarded ONDA attorney fees and costs of $46,889.02 under the FOIA. Commerce appeals that award.

II Discussion

An award of attorney fees is reviewed for an abuse of discretion; whether the district court applied the correct legal standard is reviewed de novo. See Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1011 (9th Cir.2004).

Commerce does not challenge the relief granted in the underlying judgment. An award of attorney fees raises legal issues collateral to and separately appealable from the decision on the merits. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988); White v. N.H. Dep't of Employment Sec., 455 U.S. 445, 451-52, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). Therefore, we review the attorney fees award without disturbing the underlying judgment.

The FOIA requires federal agencies to disclose information upon request unless such information is exempt from disclosure. 5 U.S.C. § 552. Congress enacted the FOIA to enable citizens "to check against corruption and to hold the governors accountable to the governed." Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1147 (9th Cir.2008) (citation omitted). Agencies must determine within twenty working days after receipt of a request whether to comply with it. 5 U.S.C. § 552(a)(6). When an agency improperly withholds documents from a requester, the FOIA authorizes the courts to order their production. 5 U.S.C. § 552(a)(4)(B).

To obtain an award of attorney fees under the FOIA, a plaintiff must demonstrate both eligibility and entitlement to the award. Long v. IRS, 932 F.2d 1309, 1313 (9th Cir.1991).

"A complainant in a FOIA action is deemed to be eligible for fees if he has `substantially prevailed' on his claim." Id. If a plaintiff is eligible for fees under the FOIA, the district court has discretion to determine whether the plaintiff is entitled to fees. Id.³

Prior to its most recent amendments, the FOIA had a basic fee provision: "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) (prior to amendment).

In 2001, the Supreme Court addressed the issue of whether the term "prevailing party," as found in the Fair Housing Amendments Act ("FHAA") and Americans with Disabilities Act ("ADA"), included a party that achieved a desired result through a voluntary change in the position of the opposing party. See Buckhannon, 532 U.S. at 600, 121 S.Ct. 1835. Buckhannon addressed what is known as the catalyst theory, which allowed a plaintiff to recover attorney fees despite the fact that a court had not rendered a judgment in the plaintiff's favor if the litigation caused the defendant to change its position. Id. at 601, 121 S.Ct. 1835. In Buckhannon, the Court disclaimed the catalyst theory's application to the FHAA and ADA fee provisions, stating the theory would impermissibly "allow[ ] an award where there is no judicially sanctioned change in the legal relationship of the parties." Id. at 605, 121 S.Ct. 1835. The Court limited the definition of "prevailing party" to those plaintiffs who achieve the desired outcome through either judgment on the merits or a court-ordered consent decree. Id. at 604, 121 S.Ct. 1835.

Although Buckhannon rejected the application of the catalyst theory to the recovery of attorney fees under the FHAA and the ADA, the D.C. Circuit later applied Buckhannon's analysis and rejected the catalyst theory for the recovery of attorney fees under the FOIA. Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO v. Dep't of Energy, 288 F.3d 452, 456-57 (D.C.Cir.2002). The Second Circuit followed suit. Union of Needletrades, Indus. & Textile Employees, AFL-CIO v. INS, 336 F.3d 200, 203 (2d Cir.2003).

Until now, our circuit has not had occasion to determine whether Buckhannon applies to a FOIA case. We have, however, determined that Buckhannon extends to two statutes other than the FHAA and ADA. See Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir.2002) (applying Buckhannon analysis to Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A)); Bennett v. Yoshina, 259 F.3d 1097, 1100 (9th Cir.2001) (applying Buckhannon analysis to Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988).

In December 2007, President Bush signed into law the 2007 Amendments, which modified FOIA...