IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20401

MARK E. BATTON,

Plaintiff-Appellant

v.

INTERNAL REVENUE SERVICE,

Defendant-Appellee

Appeal from the United States District Court 

for the Southern District of Texas

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Plaintiff-Appellant Mark Batton appeals the district court’s denial of his

motion for attorneys’ fees in his Freedom of Information Act (“FOIA”) suit

against the Internal Revenue Service (“IRS”). Because we conclude that Batton

was eligible to receive attorneys’ fees, we VACATE and REMAND for

proceedings consistent with this opinion.

I. BACKGROUND

We briefly recite the facts relevant to this appeal. A full recitation of the

facts of this case may be found in Batton v. Evers, 598 F.3d 169 (5th Cir. 2010).

In November 2006, after being audited, Batton filed a FOIA request with

the IRS. In response, the IRS began sending Batton near-monthly letters to

United States Court of Appeals

Fifth Circuit

F I L E D

June 20, 2013

Lyle W. Cayce

Clerk

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notify him that the agency required additional time to process his request. In

September 2007, after receiving no responsive documents for almost one year,

Batton sued under FOIA. The United States Attorney was not properly served,

however, until January 2008. 

On December 31, 2007, the Open Government Act (“OGA”) took effect,

amending FOIA to permit awards of attorneys’ fees to parties that “substantially

prevailed” by way of an agency’s “voluntary or unilateral change in position.” 

See Pub. L. No. 110-175, § 4, 121 Stat. 2524 (codified at 5

U.S.C. § 552(a)(4)(E)(ii)(II)). On January 18, 2008, the IRS released documents

to Batton for the first time. Of the 5,318 responsive pages located, the IRS

initially released only 953 pages, and later supplemented that production with

another 249 pages. The IRS then moved for summary judgment, alleging that

certain FOIA exemptions entitled it to withhold the remaining responsive

documents. Batton moved to compel the IRS to produce a Vaughn index

identifying the documents in sufficient detail to permit him to argue against the

claimed exemptions.1 The district court denied Batton’s motion and granted

summary judgment for the IRS.

On appeal, this court reversed and remanded with instructions to order

production of a Vaughn index. Batton, 598 F.3d at 184. The district court

subsequently ordered the index’s production, and the IRS released several

thousand previously withheld pages. Ultimately, the issue of attorneys’ fees

remained unresolved, thereby prompting Batton to move for fees as the

prevailing party. The district court denied Batton’s motion, and Batton timely

appealed.

1

“A Vaughn index is a routine device through which the defendant agency describes

the responsive documents withheld or redacted and indicates why the exemptions claimed

apply to the withheld material.” Jones v. FBI, 41 F.3d 238, 241 (6th Cir. 1994) (citing Vaughn

v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973)).

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II. DISCUSSION

FOIA provides that a court “may assess against the United States

reasonable attorney fees and other litigation costs reasonably incurred in any

case under this section in which the complainant has substantially prevailed.” 

5 U.S.C. § 552(a)(4)(E)(i). “This language naturally divides the attorney-fee

inquiry into two prongs[:] . . . fee eligibility and fee entitlement. The eligibility

prong asks whether a plaintiff has substantially prevailed and thus may receive

fees. If so, the court proceeds to the entitlement prong and considers a variety

of factors to determine whether the plaintiff should receive fees.” Brayton v.

Office of the U.S. Trade Representative, 641 F.3d 521, 524 (D.C. Cir. 2011)

(citations and internal quotation marks omitted). We analyze each prong in

turn. 

A. Eligibility

We review a district court’s denial of attorneys’ fees for abuse of discretion,

assessing fact findings for clear error and legal conclusions de novo. Volk v.

Gonazlez, 262 F.3d 528, 534 (5th Cir. 2001). We review de novo the district

court’s legal conclusion that Batton does not enjoy the benefit of the OGA. See

Texas v. ICC, 935 F.2d 728, 730 (5th Cir. 1991) (reviewing de novo the legal

question of a state’s eligibility to recover attorneys’ fees under FOIA). 

This circuit has long held that a party may demonstrate that he

“substantially prevailed” in a FOIA lawsuit in one of two ways: (1) obtaining a

court order in his favor, or (2) through the catalyst theory, which requires

“show[ing] that prosecution of the action could reasonably be regarded as

necessary to obtain the information and that the action had a substantive

causative effect on the delivery of the information.” See Lovell v. Alderete, 630

F.2d 428, 432 (5th Cir. 1980). The OGA codified the catalyst theory in FOIA

cases by defining “substantially prevail[]” as “obtain[ing] relief through . . . a

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voluntary or unilateral change in position by the agency.” See § 4, 121 Stat.

2524. 

The IRS argues that applying the OGA would be giving it retroactive

effect. We disagree. Even assuming that the catalyst theory was not viable until

the OGA took effect,2this case does not involve retroactive application. Unlike

cases that refused to apply the OGA because all of the events necessary for

liability took place before the OGA’s effective date, see, e.g., Judicial Watch, Inc.

v. Bureau of Land Mgmt., 610 F.3d 747 (D.C. Cir. 2010), here, most of the

relevant events took place after the effective date. Although Batton sued in

September 2007, the IRS was not properly served until January 2008—after the

OGA’s effective date. The IRS failed to produce a single document or take any

other action other than issuing delay letters until after it was served in January

2008. Thus, other than the original FOIA request and the filing of the lawsuit,

all relevant events took place after the OGA’s effective date. We conclude that

the OGA applies to this case. 

The district court here appears to have defined “substantially prevailed”

only in terms of the first Lovell criteria—obtaining a court order. See 630 F.2d

at 432. The fact that Batton obtained no such order, in conjunction with the

district court’s conclusion that the OGA did not apply, led the court to conclude

that Batton was not a prevailing party and, therefore, was ineligible to receive

attorneys’ fees. 

2

In 2001, the Supreme Court rejected the catalyst theory in the context of the Fair

Housing Amendments Act and the Americans with Disabilities Act. See Buckhannon Bd. &

Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 600-01 (2001).

Thereafter, some circuits extended Buckhannon’s reasoning to eliminate the catalyst theory

in FOIA cases. See, e.g., Oil, Chem. & Atomic Workers Int’l Union v. Dep’t of Energy, 288 F.3d

452, 456-57 (D.C. Cir. 2002). The OGA overruled these decisions. See § 4, 121 Stat. 2524.

Importantly, however, this circuit never applied Buckhannon to FOIA claims. Accordingly,

the effect of Buckhannon, if any, on the catalyst theory of FOIA attorneys’ fees recovery, as

expressed in Lovell, remained unaddressed in this circuit until Congress passed the OGA.

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Applying the OGA, however,leadsus to conclude that Batton substantially

prevailed.3 See Cazalas v. DOJ, 660 F.2d 612, 623 (5th Cir. Unit A Nov. 1981)

(where district court incorrectly applied entitlement factors to eligibility

analysis, court “appli[ed] the correct standard of analysis to [the] situation,” to

find that plaintiff’s “FOIA complaint had a substantial causative impact on the

release of the documents”). Indeed, Batton filed his FOIA suit after enduring the

IRS’s continued and unexplained delays in responding to his request for almost

one year. Only after he filed and served this lawsuit did the IRS first begin to

produce a fraction of the responsive documents, with reticence to provide even

a Vaughn index. The remaining documents still were not produced for years

following further litigation. Accordingly, we conclude that Batton is eligible to

receive attorneys’ fees.

B. Entitlement

Next, we address the entitlement prong. We review the district court’s

determination that Batton is not entitled to attorneys’ fees for abuse of

discretion. See Texas v. ICC, 935 F.2d at 730, 733. District courts must consider

3 Contrary to the dissenting opinion’s analysis, it is appropriate in this case for us to

determine eligibility under our circuit’s precedents. While there may be cases where disputed

facts need to be resolved before the question of eligibility can be addressed, this case is not one

of them. In Cazalas, we examined the history of the case and determined that the plaintiff’s

lawsuit had caused the release of the documents without remanding for fact findings on this

issue. 660 F.2d at 623. We remanded only on the question of entitlement. Id. The D.C.

Circuit, upon which the dissenting opinion relies, has only required factual findings where

there are disputed facts necessary to the eligibility determination. Compare Davy v. CIA, 456

F.3d 162, 164 (D.C. Cir. 2006) (“We review whether [plaintiff] was eligible for attorney

fees—that is, whether he ‘substantially prevailed’—de novo because it rests on an

interpretation of the statutory terms that define eligibility for an award.” (some quotation

marks omitted)) (decided pre-OGA when the D.C. Circuit applied Buckhannon to FOIA), with

Union of Concerned Scientists v. U.S. Nuclear Regulatory Comm’n, 824 F.2d 1219, 1224 (D.C.

Cir. 1987) (addressing a situation where the parties made “contradictory arguments” about

the facts and the district court both stated that the litigation was premature and that it

caused the FOIA compliance). In any event, we are bound by our own precedent. Here, the

facts are much more similar to Cazalas than to the D.C. Circuit cases. Batton made requests

for over a year and received nothing; only after filing a lawsuit and engaging in protracted

litigation did he finally receive thousands of documents.

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four factors in the entitlement analysis: “(1) the benefit to the public deriving

from the case; (2) the commercial benefit to the complainant; (3) the nature of

the complainant’s interest in the records sought; and (4) whether the

government’s withholding of the records had a reasonable basis in law.” Id. at

730.

Because we conclude that Batton is eligible to receive attorneys’ fees, we

remand for the district court to assess Batton’s entitlement under each of the

aforementioned factors. Although the district court mentioned the entitlement

factors in passing, its conclusion that Batton was ineligible for attorneys’ fees did

not require the thorough consideration of the entitlement factors which is now

necessary. The entitlement assessment is a matter directed to the discretion of

the district court which should make its assessment against the backdrop of the

treble policies of the FOIA attorneys’-fees provision in (1) incentivizing private

litigants to pursue their claims by providing a means of overcoming barriers

“that government may erect in an effort to escape compliance with the law”; (2)

“deter[ring] the government from opposing justifiable requests”; and (3)

“punish[ing] the government where such opposition is unreasonable.” Cazalas

v. DOJ, 709 F.2d 1051, 1057 (5th Cir. 1983). An award of attorneys’ fees is

particularly appropriate where “‘government officials have been recalcitrant in

their opposition to a valid claim or have been otherwise engaged in obdurate

behavior.’” Id. at 1054 (quoting S. Rep. No. 93-854, at 19 (1974)). 

Finally, we note that while the district court’s order denying fees relied in

part on an assumption that Batton was under criminal investigation during the

time when the documents were being withheld, the IRS conceded at oral

argument that it decided in December 2008 not to undertake any such

investigation. Abandoned criminal investigation notwithstanding, Batton still

did not receive the remainder of the responsive documents until mid-2010. 

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III. CONCLUSION

Because Batton is eligible to receive attorneys’ fees, we VACATE the

district court’s order denying fees and REMAND for reconsideration in light of

this opinion. 

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EMILIO M. GARZA, Circuit Judge, dissenting:

I dissent from the majority’s holding that Batton is eligible for attorneys’

fees under the OGA. While I agree with majority that the OGA applies and we

should vacate the district court’s order, I would remand to allow the district

court to assess Batton’s eligibility for attorneys’ fees under the OGA in the first

instance. 

Because the district court determined the OGA did not apply, the court did

not consider whether Batton might be eligible for attorneys’ fees under the OGA. 

Batton v. Evers, No. 4-07-2852, at *1 (S.D. Tex. May 14, 2012) (order denying

attorneys’ fees). A party has “substantially prevailed” and is thus eligible for an

award of attorneys’ fees where the party obtained a court order in his favor. 

Lovell v. Alderete, 630 F.2d 428, 432 (5th Cir. 1980). Under the OGA a party has

also “substantially prevailed” if the party obtained relief through a voluntary or

unilateral change in position by the agency. 5 U.S.C. § 552(a)(4)(E)(ii). Because

the only court-ordered relief Batton obtained in this case—an order requiring the

IRS to produce a Vaughn index—is insufficient, without more, to make Batton

a “prevailing party,” Campaign for Responsible Transplantation v. FDA, 511

F.3d 187, 195–96 (D.C. Cir. 2007), the district court held Batton did not

“substantially prevail” through obtaining a court order in his favor. Batton v.

Evers, No. 4-07-2852, at *1 (S.D. Tex. May 14, 2012). Concluding the OGA did

not apply, the district court did not consider whether Batton obtained relief

through a voluntary or unilateral change in position by the IRS. Although the

district court did not make findings of fact on the issue, the majority holds

Batton is eligible for attorneys’ fees under the OGA. Ante, at 5. The majority

finds the IRS delayed in releasing the documents and Batton did not receive any

documents until after the IRS was served with suit, and holds Batton thus

substantially prevailed. Id. Because the district court has not yet had an

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opportunity to make findings of fact and conclusions of law regarding whether

Batton obtained relief through a voluntary or unilateral change by the IRS, I

would remand this case to allow the district court to determine in the first

instance whether Batton is eligible for attorneys’ fees under the OGA. See Union

of Concerned Scientists v. U.S. Nuclear Regulatory Comm’n, 824 F.2d 1219, 1220

(D.C. Cir. 1987) (“[F]ull findings of fact must be made to support a court’s belief

that a party has substantially prevailed in a lawsuit before a grant of attorney’s

fees can be awarded.”); Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1496

(D.C. Cir. 1984) (“The question whether an FOIA litigant has substantially

prevailed is, of course, a question of fact entrusted to the District Court . . . .”).1

On this record the majority cannot determine eligibility as a matter of law, and

it is not the province of the appellate courts to make factual findings. See

Pullman-Standard v. Swint, 456 U.S. 273, 291–92 (1982) (holding where district

court failed to make finding because of erroneous view of law “court of appeals

is not relieved of the usual requirement of remanding for further proceedings to

tribunal charged with the task of factfinding in the first instance”). 

Respectfully, I dissent. 

1 Contrary to assertions by the majority, Ante, at 5, Cazalas v. DOJ, 660 F.2d 612, 623

(5th Cir. 1981) supports this dissent. I agree that in Cazalas the district court applied the

incorrect legal standard to the “substantially prevailed” inquiry. However, unlike here, the

district court made findings of fact sufficient for the appellate court to conclude the plaintiff

“substantially prevailed.” 660 F.2d at 619–20. Here, the district court made no findings of fact

upon which the majority may base its holding that Batton “substantially prevailed.” 

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