United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 12, 2007 Decided December 28, 2007

No. 06-5333

CAMPAIGN FOR RESPONSIBLE TRANSPLANTATION,

APPELLANT

v.

FOOD & DRUG ADMINISTRATION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 00cv02849)

Howard M. Crystal argued the cause for appellant. With

him on the briefs was Katherine A. Meyer.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee. With him on the brief were Jeffrey A. Taylor, U.S.

Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: GRIFFITH, Circuit Judge, and EDWARDS and

WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Appellant, Campaign for

Responsible Transplantation (“CRT”), is a not-for-profit

organization dedicated to educating the public about the health
2

risks associated with xenotransplantation, a relatively new

procedure whereby animal organs or tissues are transplanted to

the human body. Since the late 1990s, the Food and Drug

Administration (“FDA”) has permitted clinical trials of

xenotransplantation products. In order to learn more about these

trials, CRT submitted a request to FDA under the Freedom of

Information Act (“FOIA”), seeking records regarding

applications to conduct clinical trials that involve

xenotransplantation and past and present clinical trials involving

xenotransplantation. CRT subsequently narrowed its FOIA

request to include only records pertaining to xenotransplantation

clinical trials in 35 investigational new drug (“IND”)

applications involving xenotransplantation. After CRT’s FOIA

request was constructively denied through agency nonresponse,

CRT initiated suit in the District Court to compel the release of

responsive documents.

 During the course of litigation, CRT filed a motion to

require FDA to produce an index of all documents under

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), and FDA filed

a cross-motion to submit a sample Vaughn index of a

representative IND. The trial court granted FDA’s request and

denied CRT’s motion. Campaign for Responsible

Transplantation v. FDA, 180 F. Supp. 2d 29 (D.D.C. 2001)

(memorandum opinion) (“CRT I”). After FDA submitted two

sample Vaughn indices, both parties moved for summary

judgment on whether the sample Vaughn indices were sufficient

to satisfy FDA’s burden of proof that the withheld documents

were exempt from disclosure. The trial court ruled against FDA,

holding that the sample Vaughn indices were inadequate.

Campaign for Responsible Transplantation v. FDA, 219 F.

Supp. 2d 106 (D.D.C. 2002) (memorandum opinion) (“CRT II”).

After FDA produced the revised Vaughn indices, the parties

again moved for summary judgment. This time, the trial court

found that the indices were adequate and that the exemptions
3

claimed by FDA were valid. In its memorandum opinion, the

District Court also ordered FDA to release documents in all

other requested INDs that were similar in kind to the documents

that had been released for the sample INDs. Campaign for

Responsible Transplantation v. FDA, Civ. Action No. 00-2849,

mem. op. at 22 (D.D.C. Sept. 24, 2004), reprinted in Joint

Appendix (“JA”) 109 (“CRT III”). 

CRT moved for attorney’s fees, pursuant to 5 U.S.C.

§ 552(a)(4)(E) under which a court may assess “reasonable

attorney fees” when a “complainant has substantially prevailed.”

The District Court denied the request for fees on the ground that

CRT had not substantially prevailed in its litigation. Campaign

for Responsible Transplantation v. FDA, 448 F. Supp. 2d 146

(D.D.C. 2006) (memorandum opinion) (“CRT IV”). 

On this record, we reverse in part the judgment of the

District Court and hold that CRT was a prevailing party by

virtue of the September 24, 2004 memorandum opinion and

order. A complainant substantially prevails in litigation only if

the court grants some “judicial relief.” Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S.

598, 606 (2001) (emphasis and quotation marks omitted). The

trial court’s final order in this case – requiring FDA to release

documents – was sufficient judicial relief to make CRT a

prevailing party. CRT is therefore eligible for attorney’s fees.

Before fees are awarded, however, a party must not only be

eligible for attorney’s fees – the party must also be entitled to

those fees. See Edmonds v. F.B.I., 417 F.3d 1319, 1327 (D.C.

Cir. 2005). Because the trial court found CRT to be ineligible,

it did not reach the question of whether CRT was entitled to

attorney’s fees. We therefore remand to the District Court for

a determination of whether CRT is entitled to attorney’s fees.
4

I. BACKGROUND

On March 9, 2000, CRT submitted a written FOIA request

to FDA for “all records concerning applications for approval to

conduct clinical trials that involve xenotransplantation, and all

information concerning currently on-going and concluded

clinical trials involving xenotransplantation.” Letter from

Katherine A. Meyer, Attorney representing CRT, to Betty

Dorsey, Director, FOIA Office, FDA (Mar. 9, 2000), JA 43.

Xenotransplantation is defined as “any procedure that involves

the transplantation, implantation, or infusion into a human

recipient of either (a) live cells, tissues, or organs from a

nonhuman animal source or (b) human body fluids, cells, tissues

or organs that have had ex vivo contact with live nonhuman

animal cells, tissues, or organs.” UNITED STATES PUBLIC

HEALTH SERVICE, OMB CONTROL NO. 0910-0456, GUIDELINE

ON INFECTIOUS DISEASE ISSUES IN XENOTRANSPLANTATION 4

(2001); see 66 Fed. Reg. 8,120 (Jan. 29, 2001). It is not disputed

that FDA has authority under several statutes to regulate

xenotransplantation products as drugs or medical devices. See,

e.g., 21 U.S.C. §§ 321(g)(1), 355(a), (b); 42 U.S.C. § 262(a); 21

C.F.R. pts. 312, 601. At the time of the FOIA request, FDA had

approved over 30 IND applications, authorizing pharmaceutical

and biotechnology companies to conduct xenotransplantation

clinical trials in humans. 

FOIA is a disclosure statute “enacted to facilitate public

access to Government documents.” Dep’t of State v. Ray, 502

U.S. 164, 173 (1991). A federal agency that receives a FOIA

request must make a determination within 20 working days

whether to release the requested documents. 5 U.S.C.

§ 552(a)(6)(A)(i). Although an agency may seek a brief

extension of this deadline, id. § 552(a)(6)(B), it may only

continue to withhold responsive records if they fall within one

or more of the nine exemptions to the statute’s disclosure

mandate. Id. § 552(b)(1)-(9). 
5

In a letter dated March 14, 2000, FDA acknowledged

CRT’s FOIA request and stated that it would respond to the

request “as soon as possible.” CRT I, 180 F. Supp. 2d at 31.

When CRT did not receive a response by August 2, 2000, it

appealed to the agency. Id. After FDA failed to respond to the

appeal, CRT filed suit in the District Court on November 27,

2000. Id. Under 5 U.S.C. § 552(a)(4)(B), when responsive

documents have been unjustifiably withheld, a district court has

the power to “enjoin the agency from withholding agency

records and to order the production of any agency records

improperly withheld.” The agency bears the burden of proving

that withheld information is exempt from disclosure. Dep’t of

Justice v. Reporters Comm. for Freedom of the Press, 489 U.S.

749, 755 (1989).

Over the course of the litigation, CRT refined its FOIA

request. Initially, CRT sought information submitted to FDA

by third parties, but CRT eventually narrowed its request to

include only FDA-created documents. CRT I, 180 F. Supp. 2d

at 31. In an effort to identify all responsive documents held by

FDA, and further narrow the scope of the litigation, CRT moved

for a Vaughn index of all FDA-generated documents, stating,

“once defendant produces such an index, plaintiff may have a

basis for deciding which, if any, such records it wishes to

pursue.” Id. (quoting plaintiff’s motion) (brackets omitted). A

Vaughn index is created by an agency to assist courts and FOIA

requesters when the agency claims that responsive documents

are exempt from disclosure. The index is supposed to “describe

with reasonable specificity the material withheld” and justify

why each responsive document is exempt from disclosure under

FOIA. King v. Dep’t of Justice, 830 F.2d 210, 221 (D.C. Cir.

1987). When creating a Vaughn index, “[a] withholding agency

must describe each document or portion thereof withheld, and

for each withholding it must discuss the consequences of

disclosing the sought-after information.” Id. at 223-24

(emphasis omitted).
6

FDA balked at CRT’s request for a comprehensive Vaughn

index. The agency argued that it would take two years to

compile the index sought by CRT and require review of nearly

a quarter of a million pages of documents. CRT I, 180 F. Supp.

2d at 33 (citing defendant’s motion). In response to CRT’s

motion, FDA filed a cross-motion for a sample Vaughn index

whereby a representative IND would be selected, and FDA

would compile a Vaughn index of the responsive documents for

that IND.

The trial court ruled in favor of FDA, allowing the agency

to produce a representative sample Vaughn index. The trial

court “accord[ed] FDA deference in its description of the

documents in each IND as essentially uniform.” Id. at 34

(quotation marks omitted). FDA indicated that it planned to

assert the same exemptions for the documents in the sample IND

and the same types of documents in the other INDs. In other

words, in FDA’s view, the sample Vaughn index would provide

CRT and the trial court with all necessary information for all of

the INDs. Id. In order to “further ensure the representativeness

of the sample, . . . the court [allowed] CRT to choose the IND to

be indexed.” Id. CRT chose IND G to be the subject of the

sample Vaughn index.

In August 2001, FDA provided CRT with the sample

Vaughn index for all records concerning IND G, and an

additional Vaughn index for FDA records concerning

xenotransplantation that were not related to any particular IND.

Br. of Appellant at 12. At that time, FDA stated that it would

release all nonexempt documents associated with IND G (which

were not included in the sample Vaughn index because they

were not exempt). Id. CRT challenged the adequacy of the

sample Vaughn index, and complained that FDA still had

refused to actually release responsive, nonexempt documents.

On December 4, 2001, the District Court entered an order setting

a briefing schedule and ordering FDA to release responsive,
7

nonexempt documents before December 17, 2001. Id. at 12-13.

Subsequent to that order, FDA released hundreds of responsive

documents to CRT. Id. at 13.

CRT and FDA moved for summary judgment on the

question of whether FDA’s search was reasonable, and also on

the question of whether the sample Vaughn indices satisfied

FDA’s burden of showing that the withheld documents were in

fact exempt from disclosure. On September 3, 2002, the District

Court reviewed the steps that FDA had taken to search for

responsive documents, and ruled that the agency’s search was

reasonable and therefore adequate. CRT II, 219 F. Supp. 2d at

110-11. The trial court then turned to the question of the

adequacy of the Vaughn indices. The court found that they were

flawed, because “[t]he description, reason for withholding, and

cross-references do not provide enough information to give this

court and the requester a clear indication of the justification for

each exemption.” Id. at 112. The District Court reasoned that

the purpose of the Vaughn index was to give the requester

sufficient information to challenge an agency’s claim that a

document was exempt, and give the court the ability to rule on

the withheld documents without having to review voluminous

information in camera. Id. at 111. The trial court found that

“many of the descriptions” given by FDA “only provide[d] a

vague hint at the possible contents of the documents.” Id. at

112. The trial court also found that simply listing “terms from

the general legal standard for the relevant FOIA exemptions”

did not provide a “clear explanation” for why documents were

being withheld. Id. at 114 (quotation marks omitted). Finally,

the trial court held that FDA’s cross-references to other

documents violated the requirement that the index be “one

complete document.” Id. at 114-15. The trial court ordered

FDA to file new Vaughn indices.

After this ruling, CRT agreed to further narrow its FOIA

request to include only documents concerning clinical trials
8

involving pigs and nonhuman primates, leaving 19 INDs at

issue. Br. for Appellee at 3. The agency then produced roughly

a thousand additional records and parts of records, and

substantially revised the Vaughn indices for those records that

it continued to maintain were exempt from disclosure. Br. of

Appellant at 15. The parties again filed cross-motions for

summary judgment. 

On September 24, 2004, the District Court issued an

opinion holding that the revised indices were adequate and that

the exemptions claimed by FDA were valid. CRT III, mem. op.,

JA 88. The court addressed two provisions of FOIA. First,

under 5 U.S.C. § 552(b)(4), FOIA’s disclosure requirements

“[do] not apply to matters that are . . . trade secrets and

commercial or financial information obtained from a person and

privileged or confidential.” The trial court, after reviewing the

updated Vaughn index as well as supporting affidavits, held that

for the five documents that the agency claimed the trade secrets

exemption, “the FDA [had] fulfilled its burden of justifying nondisclosure” because the documents “contained confidential,

commercial information and trade secrets which, if disclosed,

would cause a substantial competitive injury.” Id. at 9, JA 96.

Second, under 5 U.S.C. § 552(b)(5), agencies need not release

“inter-agency or intra-agency memorandums or letters which

would not be available by law to a party other than an agency in

litigation with the agency.” The District Court agreed with FDA

that 16 withheld documents were deliberative, and therefore

excludable. Id. at 13, JA 100.

As part of its motion for summary judgment, CRT sought

not only the withheld documents for the sample INDs, but also

the “immediate disclosure of the other 18 INDs that [were]

similar in kind to the representative sample IND G.” Id. at 4, JA

91 (quotation marks omitted). In response to this request, the

District Court ordered FDA to disclose all records that were
9

“similar in kind” to the records that it disclosed for IND G. Id.

at 22, JA 109. 

CRT then moved for an award of attorney’s fees under 5

U.S.C. § 552(a)(4)(E). In order to be eligible for attorney’s fees,

a plaintiff must substantially prevail in its suit. CRT argued that

the court order stating that FDA’s original Vaughn indices were

inadequate, the subsequent release of thousands of requested

documents, and the September 24, 2004 order requiring the

additional release of documents similar in kind to previously

released documents were sufficient victories for CRT to be a

prevailing party. The District Court disagreed and denied

CRT’s motion. CRT IV, 448 F. Supp. 2d at 153-54. This appeal

followed.

II. ANALYSIS

A. Standard of Review

CRT argues that the District Court committed legal error in

construing FOIA’s prevailing party requirement. Cf. Thomas v.

Nat’l Sci. Found., 330 F.3d 486, 491 (D.C. Cir. 2003). We

review de novo the District Court’s denial of the award of

attorney’s fees, inasmuch as it “rests on an interpretation of the

statutory terms that define eligibility for an award.” Davis v.

Dep’t of Justice, 460 F.3d 92, 97 (D.C. Cir. 2006) (quotation

marks omitted). 

B. The Legal Framework for the Assessment of Attorney Fee

Claims

1. The Buckhannon Decision

The law governing when a plaintiff is a “prevailing party”

for purposes of fee-shifting statues is stated in Buckhannon and

its progeny. Buckhannon interpreted the meaning of the term

“prevailing party” in the Fair Housing Amendments Act of 1988

and the Americans with Disabilities Act of 1990. 532 U.S. at

600-01 (noting that the term appears in “[n]umerous federal
10

statues [that] allow courts to award attorney’s fees and costs”).

The Court rejected the “catalyst theory,” pursuant to which a

plaintiff might be found to be a “prevailing party” if the plaintiff

achieves a “desired result because the lawsuit [brings] about a

voluntary change in the defendant’s conduct.” Id. at 601-02. 

Buckhannon thus “establish[ed] a framework for construing

and applying the ‘prevailing party’ requirement.” Thomas, 330

F.3d at 493. Under that framework, a “prevailing party is one

who has been awarded some relief by the court.” Buckhannon,

532 U.S. at 603 (quotation marks omitted). A claimant is

successful in litigation when there has been a “court-ordered

change in the legal relationship between the plaintiff and the

defendant.” Id. at 604 (quotation marks and brackets omitted).

Something more than a mere “judicial pronouncement” is

necessary – there must also be “judicial relief” on the merits of

the plaintiff’s claim. Id. at 606 (emphasis and quotation marks

omitted).

2. Buckhannon Applied to FOIA Cases

In Oil, Chemical & Atomic Workers International Union v.

Department of Energy, 288 F.3d 452 (D.C. Cir. 2002)

(“OCAW”), we held that Buckhannon applied to FOIA cases:

“eligibility for an award of attorney’s fees in a FOIA case

should be treated the same as eligibility determinations made

under other fee-shifting statutes unless there is some good

reason for doing otherwise.” OCAW, 288 F.3d at 455. We

found no good reason to treat FOIA differently than the statutes

at issue in Buckhannon. Id. at 455-56. Therefore, “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.” Id. at 456-57 (quotations marks and brackets omitted).
11

3. The Voluntary Release of Documents Versus CourtOrdered Relief

Under the Buckhannon standard, an agency’s voluntary

release of documents does not make a plaintiff a “prevailing

party” in FOIA litigation, even if the FOIA lawsuit is a catalyst

for the voluntary release. In OCAW, a union sought documents

under FOIA from the United States Enrichment Corporation and

the Department of Energy. Id. at 453. After the Energy

Department began reviewing and releasing documents, id. at

457, the trial court approved a “Stipulation and Order” which

stated: “In light of defendant’s production of substantial

amounts of material responsive to plaintiff’s claim for relief in

this action, the action is hereby dismissed with prejudice . . . .”

Id. We determined that the agency’s voluntary release of

documents “did not constitute a decision on the merits.” Id.

Therefore, there was no judicial relief that would make the

union a prevailing party. Id. at 459. Likewise, in Davis, the

voluntary release of tapes by the Federal Bureau of Investigation

(“FBI”) did not make the plaintiff a prevailing party, even when

the FBI released the tapes because they had been played at trial.

460 F.3d at 105-06.

In OCAW, however, we noted that if the “stipulation

between the union and the Energy Department outlined

documents the government still needed to disclose to the union,

matters might be different.” 288 F.3d at 458. We addressed

exactly that question in Davy v. C.I.A., 456 F.3d 162 (D.C. Cir.

2006). There, the plaintiff and the Central Intelligence Agency

(“CIA”) “reached a Joint Stipulation for the production of

responsive documents. The district court approved the Joint

Stipulation and memorialized it in a court order. . . . The order

provide[d] that the ‘CIA will provide Plaintiff all responsive

documents, if any’ . . . by certain dates.” 456 F.3d at 164

(quoting order of the District Court). We held that this order

“changed the legal relationship between the plaintiff and the
12

defendant.” Id. at 165 (quotation marks and brackets omitted).

We further held that “[t]he order . . . is functionally a settlement

agreement enforced through a consent decree” and, therefore,

clearly within the meaning of judicial relief under Buckhannon.

Id. at 166. 

4. Orders Issued During the Course of Litigation

In some cases, the court has been required to determine

whether a plaintiff is a prevailing party in a FOIA action when

the trial court issues an order in plaintiff’s favor during the

course of the litigation. Two principal rules guide the

disposition of such cases. First, in assessing whether a plaintiff

is a prevailing party, “it is of no import” whether an order comes

“midway through the proceeding, rather than at its end.”

Edmonds, 417 F.3d at 1324. Second, a favorable order does not

make a plaintiff a prevailing party unless the order constitutes

judicial relief on the merits resulting in a “court-ordered change

in the legal relationship between the plaintiff and the defendant.”

Buckhannon, 532 U.S. at 604 (brackets and quotation marks

omitted). 

In OCAW, the plaintiff was able to defeat a motion to

dismiss for lack of jurisdiction. However, that victory was not

judicial relief within the meaning of Buckhannon, because it

merely allowed the plaintiff to move forward with the lawsuit;

it did not “alter the legal relationship between [the] parties.”

OCAW, 288 F.3d at 458. Likewise, an order from the trial court

to the Energy Department to “complete its record review” within

a fixed timetable was not judicial relief. Id.; see also Edmonds,

417 F.3d at 1323 (discussing OCAW). Even though the

defendant was required to act, the order did not provide any

relief to the plaintiff – it simply forwarded the litigation process.

In Thomas, a preliminary injunction barring defendant from

spending money from a contested fund did not make plaintiff a

prevailing party. 330 F.3d at 493-94. That preliminary

injunction merely preserved the status quo and thus did not
13

change the legal relationship between the parties, as required by

Buckhannon. Id. at 493. Even a finding by the District Court

that the defendant’s conduct was unconstitutional was held to be

inadequate to make the plaintiff eligible for fees, because the

finding did not constitute a judicial order affording discernible

relief to the plaintiff. Id. at 493-94.

In Edmonds, however, we held that a partial summary

judgment granting a plaintiff expedited review of a FOIA

request, coupled with an order to the agency to release

nonexempt documents by a date certain, was sufficient to render

the plaintiff a prevailing party. 417 F.3d at 1322-23. The court

noted that expedited review of a FOIA request is a “statutory

right, not just a matter of court procedure.” Id. at 1323.

Therefore, the court concluded that the order requiring the

agency to grant the plaintiff expedited review vindicated the

rights of the plaintiff and afforded plaintiff discernible relief on

the merits of the FOIA claim. This satisfied the Buckhannon

standard and made the plaintiff eligible for fees.

C. Application of the Legal Principles to the Facts of the

Case

1. CRT’s Claims in This Case

CRT argues that two decisions of the trial court were

sufficient to support a finding that it was a prevailing party:

first, the trial court’s holding on September 3, 2002 that FDA’s

first Vaughn index was inadequate; second, the September 24,

2004 order requiring FDA to release documents similar in kind

to documents it had released under the sample IND. Applying

the above legal framework to these decisions, we find that the

grant of summary judgment in favor of CRT with respect to the

Vaughn indices was not judicial relief sufficient to make CRT

a prevailing party. However, the September 24, 2004 order –

requiring FDA to release documents sought by CRT –

constituted court-ordered relief on the merits of CRT’s claim
14

that changed the legal relationship between the parties. That

order therefore made CRT a prevailing party eligible for

attorney’s fees under FOIA.

2. The September 3, 2002 Partial Summary Judgment and

Order

After FDA prepared the initial Vaughn indices for the

sample IND and the other responsive documents that were not

related to any particular IND, both CRT and FDA moved for

summary judgment. The District Court found that the agency

had conducted a reasonable search, but also found that the

Vaughn indices were inadequate. Therefore, on September 3,

2002, the District Court granted partial summary judgment in

favor of CRT and ordered FDA to resubmit adequate Vaughn

indices. CRT II, 219 F. Supp. 2d at 112-16. CRT argues that

the grant of partial summary judgment and the subsequent court

order were sufficient for it to be a prevailing party under FOIA.

The District Court disagreed, stating:

[B]efore September 3, 2002, the court had not ordered the

FDA to turn over any documents; after September 3, 2002,

the FDA still had no obligation to do so. Similarly, before

September 3, 2002, the FDA was under judicial direction to

produce an adequate Vaughn index; after September 3,

2002, the FDA was under judicial direction to produce an

adequate Vaughn index. In short, the 2002 order preserved

the status quo because it required the FDA to do something

it was already required to do, namely, produce a suitable

Vaughn index. Because the 2002 order preserved the status

quo, it did not alter the legal relationship between the

parties.

CRT IV, 448 F. Supp. 2d at 152 (citations omitted). The District

Court arrived at the correct conclusion, albeit for an erroneous

reason.
15

The District Court erred in suggesting that a court order is

insufficient to support a claim for attorney’s fees if it merely

“require[s an agency] to do something it was already required to

do.” This is not the law and Government counsel acknowledged

as much during oral argument before this court. Whenever a

court grants relief of the sort contemplated by Buckhannon, it

requires an agency to fulfil its existing legal obligations. There

is no basis for such a court order without a preexisting legal

obligation. Obviously, then, such an order constitutes a “courtordered change in the legal relationship between the plaintiff

and the defendant,” see Buckhannon, 532 U.S. at 604 (brackets

and quotation marks omitted), so as to make the plaintiff a

prevailing party. Therefore, it is clear that a court order

requiring a recalcitrant agency to release documents pursuant to

the legal mandate of FOIA is sufficient to render the plaintiff a

prevailing party. 

In this case, however, a straightforward application of

OCAW and Edmonds shows that the trial court’s decision and

order relating to the Vaughn indices did not make CRT a

prevailing party. The trial court’s order to FDA to redo its

Vaughn indices is similar to the District Court’s order to the

Energy Department to “complete its record review” within a

fixed timetable in OCAW and unlike the court’s order to the FBI

to expedite review of a FOIA request in Edmonds. In OCAW,

the order was “procedural – conduct a search – as opposed to

substantive.” Davy, 456 F.3d at 165 (discussing OCAW). The

search was not the relief on the merits that plaintiff sought;

plaintiff sought the release of documents. In Edmonds, on the

other hand, the defendant was required to “permit the plaintiff

to ‘jump to the head of the line’ – a meaningful obligation in

itself” – and also to “produce the [responsive, nonexempt]

documents by the court-designated deadline.” 417 F.3d at 1323.

The court in Edmonds ordered the agency to do what the law

required – something that it had theretofore been unwilling to do

– and thus changed the legal relationship between the parties;
16

and the plaintiff prevailed on the merits of its claim by virtue of

that court-ordered relief. 

Vaughn indices are not properly understood as relief on the

merits for a FOIA plaintiff. In Vaughn, this court faced a

situation in which a federal agency had denied a FOIA request,

and the trial court upheld that denial “on the basis of [a

government] affidavit” that “did not illuminate or reveal the

contents of the information sought, but rather set forth in

conclusory terms the Director’s opinion that the [documents]

were not subject to disclosure under . . . FOIA.” Vaughn, 484

F.2d at 823. Noting that “secret information is, by definition

unknown,” id., we were troubled by the fact that only the party

opposing disclosure had any knowledge about the documents

sought. We also expressed concern over the “distort[ing]”

effects of this information asymmetry on “the traditional

adversary nature of our legal system’s form of dispute

resolution.” Id. at 824. We therefore held that the District Court

should “no longer accept conclusory and generalized allegations

of exemptions” from Government agencies in FOIA cases, and

created what came to be known as the Vaughn index

requirement. Id. at 826-27.

The principal purpose of a Vaughn index is to facilitate the

litigation process. A Vaughn index, without more, does not

constitute court-ordered relief for a plaintiff on the merits of its

FOIA claim, so it does not change the legal relationship between

the plaintiff and the defendant. See, e.g., Davis, 460 F.3d at

105-06. Therefore, an order compelling the production of a

Vaughn index, without more, is not enough to make a plaintiff

a “prevailing party” sufficient to support a claim for attorney’s

fees.

In this case, the trial court’s decision that FDA’s Vaughn

indices were inadequate, and subsequent order requiring FDA to

produce new indices, did not constitute judicial relief of the sort

contemplated by Buckhannon. Therefore, CRT cannot
17

successfully claim to be a prevailing party based upon those

decisions.

3. The September 24, 2004 Order

After FDA produced the second version of the Vaughn

indices, both the agency and CRT again moved for summary

judgment. This time, the trial court found that the indices were

adequate and that the exemptions claimed by FDA were valid.

CRT III, mem. op. at 6-22, JA 93-109. At the end of its

memorandum opinion, however, the District Court granted

specific relief to CRT on the merits of its FOIA claim:

Finally, the court addresses the issue of the disclosure of

similar records in the 18 other INDs. In its July 23, 2001

memorandum opinion, the court granted the defendants’

motion to produce a sample Vaughn index from one IND

instead of all of the INDs at issue. Despite some initial

disagreement between the parties as to when the FDA had

to release the other IND documents, it appears that the

parties both understood that the disclosure was to occur

after the court’s ruling on the cross-motions for summary

judgment. That time has arrived. Because IND G was

supposed to be representative of all of the INDs, the FDA

must now disclose all FDA generated records that pertain

to the other 18 INDs that are similar in kind to the IND G

records that the FDA has already released.

Id. at 22, JA 109 (citations omitted) (emphasis added). The

court contemporaneously issued an order stating: “[I]t is

ordered that the FDA shall disclose all FDA generated records

that pertain to the other 18 INDs that are similar in kind to the

IND G records that the FDA has already released.” Campaign

for Responsible Transplantation v. FDA, Civ. Action No. 00-

2849 (D.D.C. Sept. 24, 2005) (order), JA 111. 

Given this record, our decision in Davy controls the

disposition here. In Davy, the parties created a Joint Stipulation
18

that was approved and memorialized in an order of the trial

court. Even though the parties arrived at a mutually acceptable

agreement, we held that the order memorializing the agreement

created the necessary judicial imprimatur for plaintiffs to be a

prevailing party. A fortiori the court order here does so as well.

This is not a case in which FDA voluntarily released the

documents covered by the trial court’s September 24, 2004

order. The agency released the disputed documents only after

the order was issued, and it released the documents pursuant to

that order. It is irrelevant that the “defendant had agreed in its

. . . summary judgment motion to release non-exempt,

responsive documents related to all INDs after the court ruled on

the dispositive motions.” CRT IV, 448 F. Supp. 2d at 154. The

agreement of the defendant to terms that are mandated by a

court order is besides the point. Once an order has been adopted

by the court, requiring the agency to release documents, the

legal relationship between the parties changes. 

The opinion in OCAW contains general language to the

effect that, for a party to be eligible for attorney’s fees, the court

order in question must resolve a contested issue. However, the

more critical fact in OCAW, as we have already noted, is that the

order in question was strictly procedural (requiring that a record

review be completed in 60 days) and did not afford judicial

relief on the merits of the plaintiff’s FOIA claim. In contrast,

the order here, requiring the agency to produce records, resulted

in a changed legal relationship between the parties, giving

judicial relief to CRT on the merits of its claim. This is

sufficient under Buckhannon and its progeny to support CRT’s

eligibility for attorney’s fees under FOIA.

III. CONCLUSION

For the foregoing reasons, the denial of appellant’s request

for attorney’s fees under FOIA is reversed. As we stated in

Edmonds: “Our case law makes clear that a FOIA plaintiff who

substantially prevails becomes eligible for attorney’s fees;
19

whether the plaintiff is actually entitled to a fee award is a

separate inquiry that requires a court to consider a series of

factors.” 417 F.3d at 1327 (quotation marks, brackets, and

emphasis omitted). Because the District Court found CRT

ineligible for attorney’s fees, it did not inquire into whether it

was entitled to those fees. We therefore remand to the District

Court to make a determination on that question. See Davy, 456

F.3d at 166-67.

So ordered.