# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 2008 Decided June 26, 2009

No. 07-5315

A NTHONY S UMMERS
, A PPELLANT

v.

D EPARTMENT OF J USTICE
, A PPELLEE

Appeal from the United States District Court
for the District of Columbia (No. 98cv01837)

James H. Lesar argued the cause and filed the briefs for appellant.

Darrell C. Valdez , 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: G INSBURG and B ROWN
, Circuit Judges , and
W ILLIAMS
, Senior Circuit Judge

.2

Opinion for the Court filed by Circuit Judge G INSBURG

.

G INSBURG
, Circuit Judge : Anthony Summers brought
this action to obtain certain records from the Federal Bureau of Investigation pursuant to the Freedom of Information Act. In 2005, after Summers and the Government had settled the case, Summers sought an award of attorneys’ fees. The district court denied Summers’s request because, having settled, he could not be said to have “subs tantially prevailed”
in the case and was therefore in eligible to receive an award under the FOIA. Summers argues the amendment to the FOIA in the OPEN Government Act of 2007 applies retroactively, thereby making him eligible to recover attorneys’ fees. We hold the 2007 Act does not apply retroactively and affirm the j udgment of the district court denying Summers’s fee request.

I. Background

Summers sought from the FBI records relating to Charles Gregory (aka “Bebe”) Rebozo to aid him in writing a biography of former Presiden t Richard Nixon. When the FBI had not timely complied with hi s request, Summers filed this
suit under the FOIA. The FBI th en released certain of the documents it had located. The parties filed cross-motions for summary judgment with respect to some of the still-disputed
documents. The district cour t granted the FBI’s motion and Summers appealed.

This court denied the FBI’s motion for summary
affirmance and referred the matter to mediation. In 2005 the FBI agreed to disclose three na mes from a single document in exchange for Summers’s voluntar y dismissal of the case; theparties entered into a Settlement Agreement that selfreferentially provides it “shall not constitute an admission of3

success on the merits for purposes of any claim for attorneys’ fees.” The Agreement notw ithstanding, Summers moved the
district court for an award of attorneys’ fees. The district
court referred the matter to a ma gistrate judge, who denied the
motion. The district court denied Summers’s motion toreconsider because Summers had not received any courtordered relief and was therefor e ineligible to receive a fee
award under the FOIA. Summers v. U.S. Dep’t of Justice , No. 98cv01837, 2007 WL 2111049, *2-3 (July 23, 2007). Summers now appeals that decision.

II. Analysis

The district court “may assess against the United States reasonable attorney fees and ot her litigation costs reasonably incurred in any [FOIA] case ... in which the complainant has substantially prevailed.” 5 U.S. C. § 552(a)(4)(E)(i). Prior to 2002 this court applied the “cata lyst theory” to determine whether a plaintiff had “substa ntially prevailed” and was therefore eligible for an aw ard of attorneys’ fees. Oil, Chem.
& Atomic Workers Int’l Union v. DOE , 288 F.3d 452, 454 (2002) ( OCAW ). Under the catalyst theory, “[s]o long as the litigation substantially caused the requested records to be released, the FOIA plaintiff c ould recover attorney’s fees even though the district court had not rendered a judgment in the plaintiff’s favor.” Id. (internal quotation marks omitted). If the catalyst theo ry still governed, then Summers would be eligible to receive attorneys’ f ees; the district court, however, would retain discretion to deny an award, s ee Tax Analysts v. U.S. Dep’t of Justice , 965 F.2d 1092, 1094 (D.C. Cir. 1992).

In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources , the Supreme Court rejected the catalyst theory, as applied to fee provisions in the Americans with Disabilities Act of 1990 and4

the Fair Housing Amendments Act of 1988, because “[i]t
allows an award where there is no judicially sanctioned change in the legal relationship of the pa rties.” 532 U.S. 598, 605 (2001). In OCAW , we applied the teaching of
Buckhannon to a request for attorneys’ fees under the FOIA, stating that “in order for plainti ffs 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 c onsent decree.” 288 F.3d at 456- 57 (quoting Buckhannon , 532 U.S. at 603).

As part of the OPEN Government Act of 2007, the Congress amended the FOIA to incorporate the catalyst theory. A plaintiff now qualif ies as having “substantially prevailed” regardless whether he obtained a judicial order or
consent decree or “obtained re lief through ... a voluntary or unilateral change in position by the agency, if [his] claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii).

Summers argues the 2007 Act a pplies retroactively to his 2005 settlement of the case, th ereby making him eligible to recover attorneys’ fees. A lternatively, Summers argues the district court erred in holding him ineligible under the pre-Act
version of the FOIA.

A. Retroactivity

In Landgraf v. USI Film Products , 511 U.S. 244, 272-73 (1994), the Supreme Court reiterat ed the general rule that a statute should not be applied re troactively and then set forth the analysis to be used in determining whether a particular statute stands as an exception to that rule. If the statute does not clearly indicate either pr ospective-only or retroactive application, then:5

[T]he court must determine whether the new statute would have retroactive effect, i.e.

, whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, [the] traditional presumption [against retroactive application] teaches that it does not govern absent clear congressional intent favoring such
a result.

Id. at 280.

Neither the 2007 Act nor the FOIA as amended says anything about the temporal re ach of the amendment. We
must therefore consider whet her retroactive application “would impair rights a party possessed when he acted, increase a party’s liability fo r past conduct, or impose new duties with respect to transactions already completed.” Id.

Application of the 2007 Act to facts predating its passage obviously would expose the Govern ment to increased liability for past conduct by raising the possibility the Government would be liable for attorneys’ fees in a case that was settled and, therefore, not an occasion for paying attorneys’ fees under the pre-amendment rule of Buckhannon . The Government’s calculus in settling Summers’s case would
have been different had it known the Buckhannon rule would not apply; its decision to settle reflects a calculation that the
cost associated with disclosi ng the disputed information to Summers was less than the cost of further litigation, including the uncertainty concerning both the outcome and whether the district court would award the pl aintiff attorneys’ fees. If
Summers’s action had been filed after the effective date of the6

2007 Act, and the Government therefore knew it might be liable for attorneys’ fees, then it might not have settled the

case.

Summers, citing Bradley v. School Board of Richmond

, 416 U.S. 696 (1974), correctly points out that there is no per

se rule against retroactive applic ation of a statute amending or creating a provision for attorneys’ fees. Bradley was a school desegregation case in which the district court awarded attorneys’ fees to the plai ntiffs based upon equitable principles. Id. at 706-07. While the appeal was pending, the Congress passed a statute specifi cally authorizing a fee award to the prevailing party in a school desegregation case. Id . at 709. The Supreme Court he ld the new fee provision applicable to that case. Id. at 724.

The Court in Landgraf distinguished Bradley as follows: “In light of the prior availabi lity of a fee award, and the
likelihood that fees would be assessed under pre-existing theories, we concluded [in Bradley ] that the new fee statute simply ‘d[id] not impose an additional or unforeseeable obligation’ upon the school board.” 511 U.S. at 278 (quoting 416 U.S. at 721). The present situation is also markedly
different from that in Bradley . First, here there is no
indication the district court w ould have awarded fees had it the statutory authority or equ itable power to do so. On the contrary, the magistrate judge held Summers would not be
entitled to an award even if he were eligible for one. Second, application of the fee statute in this case, unlike in Bradley

, would impose an “unforeseeable obligation” upon the defendant by exposing it to liability for attorneys’ fees for which it clearly was not liable before the passage of the 2007 Act. Moreover, “[b]ecause retr oactivity raises special policy concerns, the choice to enact a statute that responds to a judicial decision is quite distin ct from the choice to make the7

responding statute retroactive.” Rivers v. Roadway Exp., Inc.

, 511 U.S. 298, 305 (1994).

Summers argues the presumption of the general rule against retroactive application of a statute is overcome by the clear intent of the Congress in passing the 2007 Act, but the
evidence of intent he adduces is neither powerful nor even relevant. Summers first points to the committee report on the bill that became the Act, which states the purpose of amending the FOIA was “to clarify that a complainant has substantially prevailed in a FOIA lawsuit, and is eligible to recover attorney fees ... if the pursuit of a claim was the catalyst for the voluntary or unilateral change in position by the opposing party.” S. R EP . No. 110-59, at 6 (2007). Second, Summers points to this floor statement by Senator Leahy, a sponsor of the legislatio n: “The bill clarifies that
Buckhannon does not apply to FOIA cases.” 153 C ONG

. R EC

. S15701-04 (daily ed. Dec. 14, 2007). Putting aside the general problem that neither a committee nor a single Senator can speak for “the Congress,” these specific statements simply do not speak to the issue of retroactivity.

In sum, the 2007 Act is silent with regard to its temporal reach; its application here w ould have “retroactive effect” because it would “increase a part y’s liability for past conduct”
and there is no evidence of a “clear congressional intent favoring such a result.” Landgraf , 511 U.S. at 280. Therefore the Act does not apply to Summers’s claims for attorneys’
fees.

B. Pre-Amendment Eligibility

We now turn to Summers’s argum ent that he is eligible to receive a fee award pursuant to the FOIA standard in effect prior to the passage of the 2007 Act. To grant a FOIA8

plaintiff an award of attorneys’ fees under that standard, the
district court must have determ ined the plaintiff was not only eligible for but also entitled to an award. Tax Analysts , 965
F.2d at 1093. In the present case the di strict court (unlike the magistrate judge) went no furthe r than to hold Summers was not eligible to receive a fee award inasmuch as he had not “substantially prevailed” in his FOIA action. Summers , 2007 WL 2111049, at *1 n.1. We revi ew that determination de

novo “because it rests on an interpretation of the statutory terms that define eligibility for an award.” Davy v. CIA , 456 F.3d 162, 164 (2006) (internal quotation marks omitted).

To be eligible under the appl icable standard, a plaintiff
“must have been awarded some re lief by [a] court, either in a judgment on the merits or in a court-ordered consent decree.”
OCAW , 288 F.3d at 456-57 (int ernal quotation marks omitted). Summers points to thre e identical orders issued by
the district court as evidence he received court-ordered relief.
In each the district court “ordered that the parties file another joint status report by [a specifi c date] indicating the additional
disclosures defendant has made to plaintiff and whether plaintiff intends to compel the release of any withholdings.” Summers argues these orders required the FBI to make
disclosures but that is not correct.

The orders required the FBI to do no more than to join with the plaintiff in filing stat us reports updating the court on any voluntary disclosures the agency may have made. The
FBI would not have violated th e orders if it had refused to disclose a single document or datum. Consequently, the status reports do not affect a “court-ordered change in the legal relationship between the pl aintiff and the defendant.”
OCAW , 288 F.3d at 458 (holding simila r status reports did not constitute relief ordered by a court).9

Finally, Summers argues the settlement agreement he
executed with the FBI makes hi m eligible for a fee award because his dismissal of the action was made contingent upon the FBI’s disclosing certain information. This argument fails the requirement that the plaint iff “ha[ve] been awarded some relief by the court.” Buckhannon , 532 U.S. at 603

. Neither the district court nor this court compelled the FBI to disclose anything. Again, we rejected a similar argument in OCAW

. 288 F.3d

. at 458-49.

Like the district court, we conclude Summers is not eligible to receive an award ofattorneys’ fees under the preamendment FOIA. Because he is ineligible to receive a fee award, like the district court, we do not consider whether he
would be entitled to an aw ard if he were eligible.

III. Conclusion

The amendment to the FOIA in the OPEN Government Act of 2007 does not apply to this case because its application
would increase the Government’s liability for pre-enactment
conduct and there is no clear evidence the Congress intended it to apply retroactively. Unde r the standard applicable to cases arising before the eff ective date of the 2007 Act, Summers is ineligible to receive an award of attorneys’ fees because he received no court-ordered relief. The judgment of
the district court is therefore

Affirmed

.