United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 2008 Decided June 26, 2009 

No. 07-5315 

ANTHONY SUMMERS, 

APPELLANT

v. 

DEPARTMENT OF JUSTICE, 

APPELLEE

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: GINSBURG and BROWN, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 
2 

 Opinion for the Court filed by Circuit Judge GINSBURG. 

 GINSBURG, 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 “substantially prevailed” 

in the case and was therefore ineligible 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 judgment 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 President Richard Nixon. When the FBI 

had not timely complied with his request, Summers filed this 

suit under the FOIA. The FBI then 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 court 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 names from a single document in 

exchange for Summers’s voluntary dismissal of the case; the 

parties entered into a Settlement Agreement that selfreferentially provides it “shall not constitute an admission of 
3 

success on the merits for purposes of any claim for attorneys’ 

fees.” The Agreement notwithstanding, Summers moved the 

district court for an award of attorneys’ fees. The district 

court referred the matter to a magistrate judge, who denied the 

motion. The district court denied Summers’s motion to 

reconsider because Summers had not received any courtordered relief and was therefore 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 other 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 “catalyst theory” to determine 

whether a plaintiff had “substantially prevailed” and was 

therefore eligible for an award 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 could 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 theory still governed, then Summers would be 

eligible to receive attorneys’ fees; the district court, however, 

would retain discretion to deny an award, see 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 and 
4 

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 parties.” 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 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.” 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 qualifies as having “substantially 

prevailed” regardless whether he obtained a judicial order or 

consent decree or “obtained relief 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 applies retroactively to his 

2005 settlement of the case, thereby making him eligible to 

recover attorneys’ fees. Alternatively, 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 reiterated the general rule that a 

statute should not be applied retroactively 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 prospective-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 reach of the amendment. We 

must therefore consider whether retroactive application 

“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.” Id. 

Application of the 2007 Act to facts predating its passage 

obviously would expose the Government 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 disclosing 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 plaintiff attorneys’ fees. If 

Summers’s action had been filed after the effective date of the 
6 

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 application 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 plaintiffs based upon equitable 

principles. Id. at 706-07. While the appeal was pending, the 

Congress passed a statute specifically authorizing a fee award 

to the prevailing party in a school desegregation case. Id. at 

709. The Supreme Court held the new fee provision 

applicable to that case. Id. at 724. 

 The Court in Landgraf distinguished Bradley as follows: 

“In light of the prior availability 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 would have awarded fees had it 

the statutory authority or equitable 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 retroactivity raises special policy 

concerns, the choice to enact a statute that responds to a 

judicial decision is quite distinct from the choice to make the 
7 

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. REP. No. 110-59, at 6 (2007). 

Second, Summers points to this floor statement by Senator 

Leahy, a sponsor of the legislation: “The bill clarifies that 

Buckhannon does not apply to FOIA cases.” 153 CONG. REC. 

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 would have “retroactive effect” 

because it would “increase a party’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 argument 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 FOIA 
8 

plaintiff an award of attorneys’ fees under that standard, the 

district court must have determined 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 district court (unlike the 

magistrate judge) went no further 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 review 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 applicable standard, a plaintiff 

“must have been awarded some relief by [a] court, either in a 

judgment on the merits or in a court-ordered consent decree.” 

OCAW, 288 F.3d at 456-57 (internal quotation marks 

omitted). Summers points to three 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 specific 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 status reports updating the court on 

any voluntary disclosures the agency may have made. The 

FBI would not have violated the 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 plaintiff and the defendant.” 

OCAW, 288 F.3d at 458 (holding similar status reports did not 

constitute relief ordered by a court). 
9 

 Finally, Summers argues the settlement agreement he 

executed with the FBI makes him 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 plaintiff “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 of attorneys’ 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 award 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. Under the standard applicable to 

cases arising before the effective 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.