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Judicial Watch, Inc v. United States Department of Justice

March 31, 2011


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States 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.


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.


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 Action

1. 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 (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.

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. ยง 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 ...

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