MEMORANDUM OPINION
ROSEMARY M. COLLYER United States District Judge.
Nada
Bakos, a former analyst for the Central Intelligence Agency
(CIA), finished a manuscript for a book about her life as a
CIA operative in October 2015. “The Manuscript reveals
the inner workings of the Agency and the largely hidden world
of intelligence gathering post 9/11.” Compl. [Dkt. 1]
¶ 6. Pursuant to CIA policy, she submitted her
manuscript to the CIA Publication Review Board (Board) for
redaction of classified material. Id. ¶¶
5, 11-12. Over the course of two years, the Board, in
consultation with the Department of Defense (DoD) and other
interested agencies, evaluated that manuscript. Id.
¶ 7. In August 2017, the Board notified Ms. Bakos that
it had completed its review and that certain material in the
manuscript had to be removed prior to publication. Ex. 1,
Board Review Letter (Aug. 2, 2017) [Dkt. 15-1] at 1. Ms.
Bakos sought an in-person meeting to discuss the proposed
redactions, but was informed that while the CIA was willing,
the other agencies did not meet with authors “as part
of their standard process.” Ex. A, Board Review Email
(Dec. 12, 2017) [Dkt. 17-1] at 1. Apparently frustrated with
the process, Ms. Bakos filed suit in April 2018. See
Compl.
In
response, the CIA offered to convene a meeting with the
relevant stakeholders, all of whom were now willing to
negotiate with Ms. Bakos. Mem. of P. & A. in Opp'n to
Pl.'s Mot. for Att'y's Fees & Costs.
(Opp'n) [Dkt. 17] at 3. This Court granted the CIA a
series of extensions to answer the Complaint so that the
parties could resolve the issues on their own. See
06/06/2018 Min. Order; 09/06/2018 Min. Order; 09/27/2018 Min.
Order. Accordingly, the parties held meetings and exchanged
drafts and by the end of September 2018 the government
determined that, subject to a few remaining redactions, Ms.
Bakos' re-writes had sufficiently obscured any classified
information in her manuscript. See Ex. 2, Board
Review Letter (Sept. 7, 2018) [Dkt. 15-2]; Ex. 3, DoD Review
Letter (Sept. 26, 2018) [Dkt. 15-3]; Ex. 4, Board Review
Letter (Sept. 27, 2018) [Dkt. 15-4]. Satisfied with the
remaining redactions, and having reached an amicable
resolution, the parties filed a joint motion to excuse the
CIA from answering the Complaint and to set a briefing
schedule for Ms. Bakos to file an application for
attorney's fees under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412(d)(1)(A). See Joint
Mot. for Briefing Schedule on Atty's Fees & Costs
(Joint Mot.) [Dkt. 13]. That briefing is now
ripe.[1]
I.
LEGAL STANDARD
The
American rule is that parties must bear their own
attorney's fees unless a statute or contract explicitly
authorizes fee-shifting. Select Milk Producers, Inc. v.
Johanns, 400 F.3d 939, 952 (D.C. Cir. 2005). The EAJA is
one such statute and provides that a court “shall award
to a prevailing party other than the United States
fees and other expenses . . . unless the court finds that the
position of the United States was substantially justified or
that special circumstances make an award unjust.” 28
U.S.C. § 2412(d)(1)(A) (emphasis added).
In
Buckhannon Board and Care Home, Inc. v. West Virginia
Department of Health and Human Resources, 532 U.S. 598
(2001), the Supreme Court held that a party is only a
prevailing party if there has been a “material
alteration of the legal relationship of the parties.”
Id. at 604 (quoting Tex. State Teachers Ass
'n v. Garland Indep. School Dist., 489 U.S. 782,
792-93 (1989)). Although Buckhannon was decided in
the context of the Fair Housing Act and Americans with
Disabilities Act, the D.C. Circuit has relied on
Buckhannon to articulate a generally applicable
three-part test for determining whether a party is a
prevailing party for fee-shifting purposes: “(1) there
must be a ‘court-ordered change in the legal
relationship' of the parties; (2) the judgment must be in
favor of the party seeking the fees; and (3) the judicial
pronouncement must be accompanied by judicial relief.”
District of Columbia v. Straus, 590 F.3d 898, 901
(D.C. Cir. 2010) (quoting Thomas v. Nat'l Sci.
Found., 330 F.3d 486, 492-93 (D.C. Cir. 2003)). This
standard has been applied to other fee-shifting statutes
which share identical-or even merely comparable-language,
[2] and
it is “now clear” that this standard “also
applies to fee claims arising under EAJA.” Select
Milk, 400 F.3d at 945.
II.
ANALYSIS
A.
Ms. Bakos Does Not Satisfy the Buckhannon
Standard
Ms.
Bakos argues that the Court's acceptance of the
Parties' voluntary stipulation is the “legal and
functional equivalent” of a dismissal with prejudice
and therefore satisfies Buckhannon. Pl.'s Mot.
at 6 (citing Green Aviation Mgmt. Co. v. FAA, 676
F.3d 200, 205 (D.C. Cir. 2012)). This argument is
unsuccessful for two reasons.
First,
the Court's acceptance of the Parties' joint
stipulation does not provide judicial relief. When testing
purported relief against Buckhannon, the germane
inquiry is whether a party was afforded
“judicial relief that materially altered the
rights of the parties.” Oil, Chem. & Atomic
Workers, 288 F.3d at 458 (quotations omitted) (emphasis
added). Thus, judgment on the merits (a
“judicial pronouncement” that a party is
entitled to relief) and binding consent decrees enforced
by the court (which afford a party new rights or
obligate some future action) are properly classified as
judicial relief. See Buckhannon, 532 U.S. at 600,
606 (emphasis added). But plaintiffs may “dismiss an
action without a court order by filing . . . a
notice of dismissal before the opposing party serves . . . an
answer.” Fed.R.Civ.P. 41(a)(1)(A)(i) (emphasis added);
see also Id. at 41(a)(1)(A)(ii) (permitting
dismissal without a court order upon “a stipulation of
dismissal signed by all parties who have appeared”);
cf. Id. at 41(a)(1)(B) (“Unless the notice or
stipulation states otherwise, the dismissal is without
prejudice.”). When that happens, a court's
acceptance of the parties' voluntary dismissal is
“merely a formality, ” “properly viewed as
a procedural ruling that cannot serve as the basis for a
determination that [a party] prevailed.” Oil, Chem.
& Atomic Workers, 288 F.3d at 45-58. So too here:
the Court made no decision on the merits and imposed no
obligations on the parties; rather, the parties themselves
withdrew this case from consideration of the merits. Without
action by the Court, there is no judicial relief.
Second,
even if the Court's acceptance of the parties' joint
stipulation were equivalent to a dismissal with prejudice,
the Court could not say that Ms. Bakos had prevailed. To be
sure, a dismissal with prejudice may sometimes satisfy
Buckhannon. For example, in Green Aviation
Management Co. v. FAA, 676 F.3d 200, the D.C. Circuit
found that dismissal with prejudice of the FAA's civil
penalty case against the defendant was judicial relief, both
because a court order was necessary-by regulation-to dismiss
the case, and more importantly because the dismissal with
prejudice provided the defendant res judicata
protection from similar lawsuits brought by the FAA.
Id. at 205. But here, Ms. Bakos' situation is
reversed. Because she is the plaintiff, her voluntarily
dismissal of her Complaint with prejudice relieved her
opponent of potential liability and precludes
her from bringing further proceedings. Thus,
whatever relief came with the Court's order, it was not
in Ms. Bakos' favor.
Ms.
Bakos further argues that she is the prevailing party because
her litigation induced the government to negotiate on the
redactions, which was her desired outcome. See
Pl.'s Mot. at 3-4. However, this same argument has been
squarely rejected by the Supreme Court. Specifically, the
plaintiffs in Buckhannon, as here, “argued
that they were entitled to attorney's fees under the
‘catalyst theory,' which posits that a plaintiff is
a ‘prevailing party' if it achieves the desired
result because the lawsuit brought about a voluntary change
in the defendant's conduct.” Buckhannon,
532 U.S. at 601. The Supreme Court rejected the argument,
holding that “the ‘catalyst theory' falls on
the other side of the line from” “the
‘material alteration of the legal relationship of the
parties' necessary to permit an award of attorney's
fees.” Id. at 604-05 (quoting Tex. State
Teachers Ass 'n, 489 U.S. at 792-93). The
government's voluntary change in position, even if
induced by litigation, is not tantamount to a court-ordered
change in the parties' legal relationship and is not
“the type of legal merit that . . . plain language and
congressional intent[] have found necessary.”
Buckhannon, 532 U.S. at 605.
B.
There Is No. Good Reason to Depart from Buckhannon
Standard
In the
alternative, Ms. Bakos contends that this is a case of
“limited first impression” and that there is a
good reason for this Court to depart from the
Buckhannon standard here. Pl.'s Mot. at 5-6. She
relies on D.C. Circuit caselaw to the effect that a court may
deviate from the Buckhannon standard where there is
“good reason” to do so. See Oil, Chem. &
Atomic Workers, 288 F.3d at 455 (“[Eligibility for
an award of attorney's fees . . . should be treated the
same as eligibility determinations made under other
fee-shifting statutes unless there is some good reason for
doing otherwise.”). Ms. Bakos argues that such good
reason exists here because ...