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Judicial Watch, Inc. v. Bureau of Land Management

June 27, 2008


The opinion of the court was delivered by: Chief Judge Royce C. Lamberth


Now before the Court comes plaintiff Judicial Watch, Inc.'s Verified Motion for an Award of Attorney's Fees and Litigation Expenses [14]. Upon consideration of the motion, defendant Bureau of Land Management's opposition [18], plaintiff's reply [20], defendant's supplement [21], the entire record herein, and the applicable law, the Court will GRANT plaintiff's motion.


Plaintiff Judicial Watch, Inc. filed a suit under the Freedom of Information Act seeking to compel defendant Bureau of Land Management to release certain requested documents. After both parties filed pleadings, defendant released to plaintiff the relevant documents, and the parties settled all claims without court intervention. Plaintiff now seeks $3,605.57 from defendant as compensation for attorney's fees and expenses associated with this litigation. Defendant, in response, contests plaintiff's right to collect such fees and expenses.

A. Factual Background

Plaintiff Judicial Watch, Inc. is a not-for-profit organization dedicated to promoting transparency and accountability in government through investigation and dissemination to the public of information regarding official misconduct. About Judicial Watch - Our Mission (June 20, 2008), Attempting to further this mission, plaintiff on March 8, 2007 submitted to defendant Bureau of Land Management ("BLM") a request for certain information, pursuant to the Freedom of Information Act ("FOIA"). (Compl. ¶ 5.) Specifically, plaintiff sought release of all documents regarding the activities of three high-ranking federal officials in connection with land transactions in Coyote Springs Valley, Nevada. (Id.) Defendant subsequently acknowledged receipt of the request in an e-mail dated March 9, 2007. (Decl. B. Brown ¶ 2.) After processing the request, defendant's FOIA Coordinator distributed copies to the appropriate divisions in the Washington, D.C. office and forwarded a copy to defendant's Nevada office. (Id. ¶¶ 3-4.)

Though FOIA requires governmental response within twenty days after a request is received, see Freedom of Information Act, 5 U.S.C. § 552(a)(6)(A) (2007), defendant failed to substantively address plaintiff's response until April 27, 2007, fifty days after its initial receipt (see Opp. Ex. 1).*fn1 In the events giving rise to the underlying action, plaintiff continually asked defendant for updates as to the status of its requests. (See id.) Defendant responded four separate times with the following anticipated dates of completion of the review process: May 11, 2007; July 20, 2007; August 3 2007; August 7, 2007. (See id.) Each date passed, however, without any explanation, forcing plaintiff to continue to seek updates. (See id.) Defendant, as justification for its delays, pointed to the paucity of personnel handling FOIA issues and the emergence of "hot issues" meriting immediate attention, but it nevertheless continued to set self-imposed deadlines that it failed to meet. (See id.)

Almost a month after defendant's fourth anticipated release date passed without explanation, plaintiff filed this action on September 5, 2007, seeking a court order compelling defendant to disclose to it the relevant documents. (Compl. ¶ 10.) Defendant, on September 20, 2007, responded to the suit by producing and sending to plaintiff thirty-five pages of documents relevant to the initial request, excepting one phone number which qualified for an exemption. (Opp. 5-6.) Plaintiff, however, expressed its concern to defendant about the sufficiency of the search. (See Opp. Ex. 1.) The two parties then met on October 16, 2007 in an effort to resolve the impasse without further litigation. (See Pl. Mot. 3.) Defendant agreed to conduct a supplemental search, but it found no additional information relevant to plaintiff's query. (Id.)

Satisfied with the supplemental search, plaintiff elected not to challenge the adequacy of defendant's response to its initial request. (Id.) Accordingly, the parties on January 7, 2008 submitted to this Court a Stipulation of Entry of Judgment ("Stipulation"). (See id.) The Stipulation briefly recited the preceding factual history and provided for the termination of plaintiff's claims, as all relevant documents had been produced. (See Stipulation.) Important to this stage of the litigation, the Stipulation expressly stated that "[p]laintiff reserves the right to seek an award of attorney's fees and litigation expenses pursuant to 5 U.S.C. § 552(a)(4)(E), and

[d]efendant reserves the right to oppose any such request." (Stipulation.) Plaintiff took advantage of this provision in filing on January 22, 2008 its Verified Motion for an Award of Attorney's Fees and Litigation Expenses.

B. Statutory Background

1. Overarching Principles of FOIA

Congress reaffirmed its commitment to transparency in government in passing the OPEN Government Act of 2007, which included amendments to the FOIA statute. See OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. Indeed, the legislature maintained that FOIA was signed into law because "[the] American people firmly believe that our system of government must itself be governed by a presumption of openness." Id. § 2. Congress felt the need to amend FOIA based on its recognition that attainment of the statute's ambitious objectives had too often been impeded in practice. See id. (noting further that regular review of FOIA is necessary to ensure that disclosure of governmental conduct is premised not on the "'need to know'" but rather on the "fundamental 'right to know.'").

In carrying out the mandate of FOIA, both Congress and the Supreme Court have tried vigilantly to establish a federal regime of cooperation and complete disclosure. See discussion infra Part I.B.1. Congress, for its part, emphasized that "disclosure, not secrecy, is the dominant objective of the Act." OPEN Government Act § 2. The Supreme Court pledged its commitment to upholding in practice the guiding ideals of the statute: "[FOIA] was intended to establish a general philosophy of full agency disclosure and to close the loopholes which allow agencies to deny legitimate information to the public." GTE Sylvania, Inc. v. Consumers Union of the U.S., Inc., 445 U.S. 375, 385 (1980) (citations and internal quotation marks omitted).

2. Fee-shifting Provision Before Buckhannon

Prior to its most recent amendments, FOIA contained a rudimentary fee-shifting provision: "[t]he 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." Freedom of Information Act, 5 U.S.C. § 552(a)(4)(E) (2002) (amended 2007). District of Columbia courts had applied the catalyst theory in order to assess a party's eligibility for fees under the statute. See Oil, Chem., and Atomic Workers Int'l Union, AFL-CIO v. Dep't of Energy, 288 F.3d 452, 454 (D.C. Cir. 2002) [hereinafter OCAW].

The catalyst theory, as interpreted by D.C. courts, allowed a FOIA plaintiff to recover attorney's fees "even though the district court had not rendered a judgment in the plaintiff's favor," providing that "the litigation substantially caused the requested records to be released." Id. (citations and internal quotation marks omitted). The causation inquiry focused on whether the plaintiff could prove that "prosecution of the action could reasonably be regarded as necessary to obtain the information and that a causal nexus exist[ed] between that action and the agency's surrender of that information." Republic of New Afrika v. F.B.I., 645 F. Supp. 117, 118-19 (D.D.C. 1986) (internal quotation marks omitted). Clearing this hurdle made a plaintiff eligible to collect attorney's fees under FOIA. Id.

A FOIA plaintiff still had to prove entitlement in order to qualify for an award of attorney's fees, even after it had been deemed eligible by the court. See Burka v. U.S. Dep't of Health and Human Serv., 142 F.3d 1286, 1288 (D.C. Cir. 1998). The entitlement stage of the analysis required the court to take into account four separate factors: (1) "public benefit derived from the case"; (2) "commercial benefit to the plaintiff"; (3) "nature of the plaintiff's interest in the records"; and (4) "whether the Government had a reasonable basis for withholding information." Id. (internal quotation marks omitted). A plaintiff was able to collect attorney's fees provided the underlying action satisfied judicial requirements drawn from these criteria. Id.

3. The Influence of Buckhannon on FOIA

The Supreme Court in 2001 substantially altered the landscape of statutory attorney's-fees collection. See Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Serv., 532 U.S. 598 (2001). The question before the Court in Buckhannon turned on 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 the voluntary change in conduct of the opposing party. See id. at 600. The Court expressly disclaimed the catalyst theory's application to these statutory fee-shifting provisions, reasoning that it impermissibly "allows an award where there is no judicially sanctioned change in the legal relationship of the parties." Id. at 605. The Court further explained that "[a] defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change." Id. The Court therefore limited the definition of "prevailing party" to include only those plaintiffs who achieved their desired outcome through either judgment on the merits or a court-ordered consent decree. Id. at 604.

Though the Buckhannon decision was technically confined to addressing fee-shifting provisions under the FHAA and ADA, courts quickly extended its principles in rejecting the catalyst theory's application to a host of other similar fee-shifting provisions. See, e.g., OCAW, 288 F.3d at 456-57. The D.C. Circuit expressly overruled precedent mandating use of the catalyst theory in assessing claims for attorney's fees under FOIA: "in order for plaintiffs in FOIA actions to become eligible for an award of attorney's 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." Id. Under this new regime, a party's gains from private settlement lacked the judicial stamp necessary for classification as a "prevailing party" for purposes of the FOIA fee-shifting provision. See Summers v. U.S. Dep't of Justice, 477 F. Supp. 2d 56, 67 (D.D.C. 2007).

4. OPEN Government Act of 2007

From the outset, critics assailed the Supreme Court's decision in Buckhannon. See, e.g., Buckhannon, 532 U.S. at 622 (Ginsburg, J., dissenting). Justice Ginsburg derided the majority's interpretation of the statute, forcefully declaring that "[n]othing in history, precedent, or plain English warrants the anemic construction of the term 'prevailing party' the Court today imposes." Id. at 623. Policy concerns were particularly salient in Justice Ginsburg's analysis, and she ruefully noted that the majority's "rejection of the 'catalyst theory' [] impede[s] access to the court for ...

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