Union of Needletrades v. U.S. I.N.S.

• Decision Date: 16 July 2003
• Docket Number: Docket No. 02-6188.
• Citation: 336 F.3d 200
• Parties: UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES, AFL-CIO, CLC, Plaintiff-Appellant, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

336 F.3d 200

UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES, AFL-CIO, CLC, Plaintiff-Appellant, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee.

Docket No. 02-6188.

United States Court of Appeals, Second Circuit.

Argued: March 12, 2003.

Decided July 16, 2003.

Ranjana Natarajan, Washington Square Legal Services, Inc., New York City (Michael Wishnie, Washington Square Legal Services, Inc., New York City, of counsel), for Appellant.

Edward Scarvalone, Assistant United States Attorney, Southern District of New York, New York City (James B. Comey, United States Attorney for the Southern District of New York, Gideon A. Schor, Assistant United States Attorney, Southern District of New York, New York City, of counsel), for Appellee.

Before: OAKES, MESKILL and CABRANES, Circuit Judges.

MESKILL, Circuit Judge.

Plaintiff-appellant Union of Needletrades, Industrial and Textile Employees, AFL-CIO, CLC (UNITE) appeals from a judgment of the United States District Court for the Southern District of New York, Marrero, J., and seeks review of the denial of UNITE's request for an award of attorney's fees. We affirm.

This appeal requires us to decide whether, in view of the Supreme Court's decision in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (Buckhannon), a plaintiff in an action brought under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, can recover an award of attorney's fees where, despite achieving the release of the requested information, it does not secure any judicially sanctioned relief such as a judgment on the merits or a court-ordered consent decree.

BACKGROUND

UNITE is a union of approximately 300,000 members, many of whom are immigrants. On November 16, 1998, the defendant-appellant Immigration and Naturalization Service (INS)¹ conducted a raid of Poly-Pak Industries (Poly-Pak), a garment factory in Melville, New York that employed numerous UNITE members. According to UNITE, the INS had conducted similar raids of UNITE-organized factories in the past, arresting workers it believed to be illegal or undocumented aliens. UNITE had become concerned that employers were using INS raids to retaliate against workers engaged in union-organizing activities. It also had received reports that INS officers conducting these raids were mistreating workers and engaging in race-based selective prosecution tactics.

In the late 1990s, as part of its effort to investigate and explore the above-mentioned concerns, UNITE began submitting FOIA requests to the INS aimed at gathering information relating to workplace raids. This action stems from UNITE's May 5, 1999 FOIA request to the INS, which sought all documents in the INS's possession concerning the November 1998 Poly-Pak raid "and the events preceding and following its occurrence." The INS's New York district office denied the request on August 18, 1999, claiming that, under FOIA exemption 7(A), 5 U.S.C. § 552(b)(7)(A), the information sought reasonably could be expected to interfere with an open investigation and law enforcement proceedings. According to the INS, its investigation unit had made the decision earlier that year to institute administrative enforcement proceedings against Poly-Pak due to the company's employment of illegal or undocumented aliens.

On September 16, 1999, UNITE filed an administrative appeal with the Department of Justice's Office of Information and Privacy in which it challenged the INS's denial of its request. That office denied UNITE's appeal on March 10, 2000, again relying on FOIA exemption 7(A). In response, on March 30, 2000, UNITE filed this action in the district court seeking an order directing the INS to comply with its FOIA request.

On June 12, 2000, the INS concluded its enforcement proceeding against Poly-Pak and entered into a settlement that required the company to pay a fine. The INS's FOIA office subsequently obtained the Poly-Pak file and copied the materials relating to the investigation and enforcement action. In August 2000, several months after UNITE had initiated its action in federal court, the INS produced 1,325 documents. It withheld twenty-five pages and made a number of redactions to prevent disclosure of attorney-client and work product material, personal information concerning individuals' names and social security numbers, and documents that potentially could reveal the investigative techniques used by the INS. Following this initial production, the parties engaged in numerous discussions relating to the withheld documents, and on April 27, 2001, the INS released several more documents. The parties subsequently informed the district court that they had "settled all of the substantive issues in the case" and that the only remaining matter was attorney's fees. Accordingly, the district court directed that the case be conditionally discontinued, subject to its being restored on UNITE's application in the event that resolution of the issue of attorney's fees was not achieved within sixty days. The district court never rendered a judgment on the merits or endorsed a consent decree or settlement agreement, nor was it asked to do so by the parties.

On June 18, 2001, when the parties had failed to reach an agreement concerning attorney's fees, the district court restored the case to the active calendar. The parties subsequently filed motions on the attorney's fees issue, each addressing the applicability of the Supreme Court's then recent decision in Buckhannon. On May 28, 2002, the district court issued a written ruling denying UNITE's request for an award of attorney's fees. See Union of Needletrades, Indus. and Textile Employers, AFL-CIO, CLC v. I.N.S., 202 F.Supp.2d 265 (S.D.N.Y.2002).

This timely appeal followed.

DISCUSSION

I. Standard of Review

We generally review a district court's award of attorney's fees for an abuse of discretion. See, e.g., Mautner v. Hirsch, 32 F.3d 37, 39 (2d Cir.1994). "However, where an appellant's contention on appeal regarding an award of attorneys' fees is that the district court made an error of law in granting or denying such an award, the district court's rulings of law are reviewed de novo." Baker v. Health Mgmt. Sys., 264 F.3d 144, 149 (2d Cir. 2001).

II. The Application of Buckhannon to FOIA's Fee-Shifting Provision

According to the "American Rule," "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). "Courts may reallocate the burdens of litigation, however, when authorized or directed to do so by a statute." Peterson v. Continental Cas. Co., 282 F.3d 112, 119 (2d Cir.2002) (citing Alyeska Pipeline Serv. Co., 421 U.S. at 269-71, 95 S.Ct. 1612). FOIA is one such statute. Pursuant to its fee-shifting provision, a "court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under [FOIA] in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E) (2000).

As both parties agree, at the time UNITE commenced this action, courts determining whether a FOIA plaintiff had "substantially prevailed" applied the catalyst theory of recovery. See Vt. Low Income Advocacy Council v. Usery, 546 F.2d 509, 513 (2d Cir.1976) (Vermont Low Income); see also Chesapeake Bay Found. v. United States Dep't of Agric., 11 F.3d 211, 216 (D.C.Cir.1993), overruled by Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO v. Dep't of Energy, 288 F.3d 452 (D.C.Cir.2002) (Oil, Chem. & Atomic Workers). Under the catalyst theory, as long as the plaintiff satisfied certain criteria, see, e.g., Chesapeake Bay Found., 11 F.3d at 216, a district court could award attorney's fees even in the absence of a favorable judgment on the merits, see, e.g., Vermont Low Income, 546 F.2d at 513 (noting that "a judgment is not an absolute prerequisite" to an award of attorney's fees under FOIA).

One year into this litigation, the Supreme Court issued its decision in Buckhannon rejecting the catalyst theory as a basis for an award of fees under the Fair Housing Amendments Act of 1988 (FHAA), 42 U.S.C. § 3601, et seq., and the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101, et seq. See Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835. One of the petitioners in Buckhannon, Buckhannon Board and Care Home, Inc. (Buckhannon), operated assisted living homes and had failed a state fire marshall inspection because some of its residents were incapable of "self-preservation" under state law, meaning that they were not capable of moving themselves "from situations involving imminent danger." Id. at 600, 121 S.Ct. 1835 (citing W. Va.Code §§ 16-5H-1, 16-5H-2 (1998)). After receiving cease and desist orders requiring that it close its facilities, Buckhannon filed suit on behalf of itself and other similarly situated homes against the state, two state agencies and various individuals. See id. at 600-01, 121 S.Ct. 1835. It sought injunctive and declaratory relief, as well as damages, contending that the state's "self-preservation" law violated the ADA and the FHAA. See id. at 601, 121 S.Ct. 1835. Shortly after filing the complaint, the petitioners dropped their claim for damages, leaving only their claims for equitable relief. See id. at 601 n. 1, 121 S.Ct. 1835. While the case was still in its early stages, the state passed legislation deleting the "self-preservation" requirement. See id. at 601, 121 S.Ct. 1835. On the respondents' motion, the district court dismissed the case as moot after concluding that the new legislation had removed the offending provision. See id. The petitioners subsequently moved for an award of attorney's fees, arguing that, under the fee-shifting provisions of the ADA and the FHAA, they were the "prevailing parties" bec...