### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 t he district court’s denial of his motion for a ttorneys’ fees in his Freedom o f Information A ct (“FOIA”) suit against the I nternal R evenue Service (“IRS”). Because we conclude that Batton

was eligible to receive attorneys’ fees, we V ACA T E and R EMAND for proceedings consistent with this opinion. I. BACKGROUND We briefly recite the facts relevant to this appeal. A f ull recitation of the facts o f 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. I n response, the IRS b egan sending Batton near-monthly l etters to U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 20, 2013 Ly l e W . Cay ce Clerk Case: 12-20401 Document: 00512281239 Page: 1 Date Filed: 06/20/2013No. 12-20401

n o t ify him that the agency required additional time to p rocess his request. In S eptember 2007, after receiving no responsive documents for a lmost one year , Batton s ued under FOIA. The United States Attorney was not properly served, however, until January 2008. On December 31, 2 007, the Open G overnment Act (“OGA”) t o o k e f fect, amending FOIA to permit a wards of a ttorneys’ fees to p a rties that “substantially prevailed” by way of a n agency’s “voluntary or unilateral c hange in p o s i t i o n.” See Pub. L. No. 110-175, § 4, 121 S tat. 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 locat e d , t he IRS initially released only 9 53 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 t h e remaining responsive documents. B atton moved to compel t h e IRS to produce a Vaughn index identifying the documents in sufficient detail to permit h im to argue against the claimed exemptions. 1 The distr i c t c ourt denied Batton’s motion and granted summary judgment for the IRS. On appeal, this court reversed and remanded with instructions to ord e r production of a V

a u g hn i ndex. Batton , 598 F.3d at 184. T he district court subsequently ordered the index’s production , a nd the IRS released several thousand previously withheld p ages. Ulti m ately, the issue of attorneys’ fees remained unr e solved, thereby prompting Batton to move f or f ees as the prevailing party. The district court denied Batton’s motion, and Batton timely appealed.

1 “A V a ughn ind ex is a routine d evice through w h i c h the d ef end ant agency d es cribes the res p ons ive docum ents w i t hheld or red acted and ind icates w hy the exem p tions claim ed ap p ly to the w ithheld m aterial. ” Jones v
. FBI , 41 F. 3d 238, 241 ( 6th Cir. 1994) ( citing V a ughn
v
. Rosen , 484 F. 2d 820, 826- 27 ( D

. C. Cir. 1973) )

. 2 Case: 12-20401 Document: 00512281239 Page: 2 Date Filed: 06/20/2013No. 12-20401 II. DISCUSSION F O I A p rovides t hat a court “may assess against t he United States

r easonable attorney fees and other litigation costs reasonably incurred in a n y case under this section in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). “This language naturally d ivides the a ttorn e y - fee inquiry into two p rongs[:]

. . . 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 t o determine w hether t h e plaintiff should receive fees.” B r ayton v. Office of the U.S. Trade Representative , 6 41 F.3d 521, 524 (D.C. Cir. 2 011) (citations and i nternal quotation marks o m i t t ed). We analyze each prong in turn. A. Eligibility We review a district court’s denial o f attorneys’ fees for abuse of discretion, assessing f

a c t f indings for c lear error and legal conclusions de novo. Volk v. Gonazlez , 262 F.3d 528, 534 (5th C ir. 2001). We revie w d e novo the district court’s legal conclusion that Batton does not enjoy the benefit of the OGA. See Texas v. ICC , 935 F.2d 7 28, 730 (5th Cir. 1991) (reviewing de no v o t h e l e g a l question of a state’s eligibility to recover attorneys’ fees under FOIA). This circuit h as long held that a p a r t y may demonstrate that he “substantially prevailed” in a FOIA lawsuit in o ne of two ways: (1) obtaining a

co u r t o r d e r in his f

avor, or (2) through t h e catalyst theory, which requires “show[ing] that prosecution of the action co u ld reasonably be regarded as necessary to obtai n t he information and that the action had a substantive causative effect on the delivery of the information.” See Lovell v. Alderete , 630 F.2d 4 28, 432 ( 5 t h C i r
. 1 9 8 0). The O GA codified the catalyst theory i n FOIA

cases b y defining “substantially prevail[]” as “obtain[ i n g ] r e lief through

. . . a

3 Case: 12-20401 Document: 00512281239 Page: 3 Date Filed: 06/20/2013No. 12-20401

v o l u n tary or unilateral change in position by the agency.” See § 4, 121 Stat. 2524. The IRS argues that applying the O GA w o u l d b e giving it retroactive effect. W e disagree. Even assuming that the c atalyst theory was not v iable until the OGA took effect, 2 this case does not involve retroactive application. Unlike

cases t hat refused to apply the OGA because a l l o f t h e e vents necessary for liability t ook 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), h e r e , m ost of the relevant events took place af t e r the effective date. Although Batton sued in September 2 007, the I RS 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 t he OGA’s effective date. We c o nclude that the OGA applies to this case. The district court here appears to have defined “ s ubstantially prevailed” only in terms of the first Lovell criteria—obtaining a c o urt order. See 630 F.2d

a t 4 3 2

. T h e fact t hat B atton obtained no s u ch order, in conjunction with the district court’s c onclusion that the OGA did not apply, led the court to conclude that Batton was n ot a prevailing party and, therefore, was ineligible to receive attorneys’ fees.

2 In 2001, the Sup rem e Court rejected the catalys t theory in th e context of the Fair H ous ing Am end m ents Act and the Am ericans w ith D is abilities Act. See Buckha nnon Bd. & Ca re H om e, Inc. v. W. V

a
. D ep ’t of H

e a l t h & H u m a n Res. , 532 U. S. 598, 600- 01 ( 2001)

. Thereaf ter, s om e circuits extend ed Buckha nnon ’s reas oning to elim inate the catalys t theory in FO IA cas es
. See, e. g. , Oi l , Chem

. & A tom i c Workers Int’l U ni on v. D ep ’t of Energy , 288 F

. 3d 452, 456- 57 ( D

. C. Cir. 2002)

. The O G A overruled thes e decis ions

. See § 4 , 121 Stat. 2524. Im p ortantly, how ever, this circuit never ap p lied B u c k h a n non to FO I A claim s
. Accord ingly, the ef f ect of Buckha nnon , if any, on the catalys t theory of FO IA at t o r n e y s ’ f e e s recovery, as exp res s ed in Lov el l , rem ained unad d res s ed in this circuit until Congres s p as s ed the O G A.

4 Case: 12-20401 Document: 00512281239 Page: 4 Date Filed: 06/20/2013No. 12-20401

Applying the O G A , h o w e v e r , l e a d s u s t o c o n c l u d e 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] t he correct s t andard of analysis to [ the] s i t u ation,” to find that plaintiff’s “FOIA complaint had a substantial causative impact on the release o f the documents”). Indeed, Batton filed his FOIA suit after enduring the IRS’s continued and unexplained delays in responding t o his r equest for almost

one year. Only after he filed and served this l awsuit did the I RS first begin to produce a fraction of t he responsive documents, w ith reticence to provide even

a Vaughn index. The remaining docum e n t s still were not p roduced f or years following further litigation. Accordingly, we conclude that B atton is eligible to receive attorneys’ fees. B. Entitlement Next, w e address the e ntitlement prong. We review the district court’s determination that Batt o n i s not e ntitled to attorneys’ fees for abuse of discretion. S ee Texas v. ICC , 9 35 F.2d at 730, 733. District courts must consider

3 Contrary to the d is s enting op inion’s analys is , it is ap prop riate in this cas e f or us to d eterm ine eligibility und er our circuit’s p reced ents

. While there m ay be cas es w here d is p uted f acts need to be res olved bef ore the ques tion of eligibility can be ad d res s ed , this cas e is not one of them

. I n Ca z a la s , w e exam ined the his tory of the cas e and d eterm ined that the plaintif f ’s law s uit had caus ed the releas e of the d ocum ents w ithout rem and ing f or f act f ind ings on this is sue. 660 F. 2d at 623. We rem and ed only on the ques tion of entitlem ent. I d. The D

. C

. C i rcuit, up on w hich the d is s enting op inion relies , has only required f actual f ind ings w her e there are dis p uted f

acts neces s ary to the eligibility d eterm ination. Com p a re D a v y v
. CIA , 456 F. 3d 162, 164 (D

. C. Cir. 2006) ( “We review w hether [p laintif f ] was eligible f

or attorney f ees

— that is , w hether h e ‘ s u bs tantially p revailed ’— d e novo becaus e it res ts on an interp retation of t he statutory term s that d ef ine eligibility f

or an aw ard

. ” (s om e quotation
m ark s om itted ) ) ( decid ed p re- O GA w hen the D

. C. Circuit ap p lied Buckha nnon to FO IA) , wi t h U ni on of Concerned Sci enti sts v. U

. S. N ucl ea r Regul atory Com m’n , 824 F. 2d 1219, 1224 ( D

. C

. Cir. 1 9 8 7 ) ( a d d res s ing a s ituation w here the p arties m ad e “contrad ictory argum ents ” about the f acts and the d is trict court both s tated that t h e l i t i gation w as p rem ature and that it
caus ed the FO IA com p liance)

. In any event, w e are bound by our ow n p reced ent. H ere, the f acts are m uch more sim ilar to Ca za l a s than to the D

. C. Circuit cas es
. Batton m ad e reques ts f or over a year and received nothing; only af ter f iling a law s u i t a n d e n g a g ing in protracted litigation d id he f

inally receive thous and s of d ocum ents

. 5 Case: 12-20401 Document: 00512281239 Page: 5 Date Filed: 06/20/2013No. 12-20401

four factors in t he e ntitlemen t a nalysis: “(1) the benefit to the public deriving from the case; ( 2) t h e commercial benefit t o the complainant; (3) the n ature of the complainant’s interest in the records sought; and (4) w h e t her the government’s withholding of the records had a reasonable basis in law.” Id. at 730. Because w e conclude that B atton is eligible t o receive attorneys’ fees, we remand f

or the district c ourt to a ssess B a tton’s entitlement under eac h o f the aforementioned factors. Although the d i strict court mentioned t he e ntitlement factors in passing, its c onclusion that Batton was ineligible for atto r n e ys’ fees did not require t he thorough consideration of the entitlement factors which is now necessary. The entitlement assessment is a matter d i rected to the discretion of the district court which should make its assessment a gainst the backdrop of the treble p olicies of the FOIA attorneys’-fees provision i n (1) incentivizing private litigants to pursue their claims by providi ng a means of o vercoming barriers “that government may erect in a n effort to escape c ompliance with t he law”; (2) “deter[ring] the g overnment from opposing justifiable r equests”; and (3) “punish[ing] the government where such opposition is u nreasonable.” Cazalas

v. DOJ , 709 F.2d 1051, 1057 (5th Cir. 1983). A n award of a t t o r n e y s ’ f e e s is particularly appropriate where “‘government officials have b een recalcitrant in their opposition to a valid claim or h ave b een otherwise engaged in o b d u rate behavior.’” Id. a t 1054 (quoting S. Rep. No. 93-854, at 19 (1974)). Finally, we note that w hile the district court’s order denying fees relied in part on an assumption that Batton was under criminal i nvestigation d uring the time when t he d ocuments were being withheld, the IRS co n c e d e d at oral argument that i t d e cided i n 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.

6 Case: 12-20401 Document: 00512281239 Page: 6 Date Filed: 06/20/2013No. 12-20401 III. CONCLUSION Because Batton is eligi b l e to receive attorneys’ fees, we VACATE the district court’s order denying fees a nd REMAND for reconsideration i n light of this opinion.

7 Case: 12-20401 Document: 00512281239 Page: 7 Date Filed: 06/20/2013No. 12-20401

EMILIO M. GARZA, Circuit Judge, dissenting:

I dissent from the majority’s holding t hat B atton is eligible for a ttorneys’ fees under the OGA. W hile I agree with majority that t he OGA applies and we should v acate t he district court’s order, I would rem a n d to allow the district court to assess B atton’s eligibility for attorneys’ fees under the O GA in the first instance. Because the district court determined the OGA did not apply, the court did not c onsider whether Batton m ight be eligible for attorneys’ fees u nder the OGA. Batton v. E vers , No. 4-07-2852, at * 1 (S.D. T e x . M a y 1 4, 2 012) ( order denying attorneys’ fees). A party has “substantially prevailed” and is thus eligible for an award of attorneys’ fees where the party o btaine d a c o u r t order in his favor. Lovell v. Alderete , 6 30 F .2d 428, 4 32 (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 o n l y c o u r t

- o r d e r ed relief Batton obtained in this c a se—an o rder requiring the IRS to produce a Vaughn index—is insufficient, w ithout more, to m ake Batton

a “prevail i n g p a rty,” Campaign for Responsible Transplantation v. FDA , 511 F.3d 187, 195–96 (D.C. Cir. 2007), the distric t c o u r t h e ld Batton did not “substantially prevail” through o b t a i n i n g 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 obt a i n e d 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, t he majo r i t y holds Batton is e ligible f

or attorneys’ fees unde r t he OGA. Ante , a t 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 h olds Batton thus subst antially prevailed. Id. Because the district court has not yet had an

8 Case: 12-20401 Document: 00512281239 Page: 8 Date Filed: 06/20/2013No. 12-20401

opportunity to make findings of fact and conclusions of law regarding whether Batton obtained relief through a voluntary or u nilateral c h a nge by t he IRS, I would r emand this case to allow the distr i c t court to determine in the first instance whether Batton is e ligible for attorneys’ fees under the OGA. S ee Union of Concerned Scientists v. U.S. Nuclear R egulatory Comm’n , 824 F .2d 1219, 1220 (D.C. Cir. 1987) (“[F]ull findings of fact must be made t o support a court’s belief that a party has substantially prevailed in a lawsuit before a grant of a ttorney’s fees c an be awarded.”); Weisberg v
. U

. S. Dep’t o f Justice , 745 F.2d 1476, 1496 (D.C. C ir. 1984) (“The question whether an FOIA litigant has substantially prevailed is, of c ourse, a question of fact entrusted to the District Court

. . . .”). 1 On t his record t he majority cannot determine eligibility as a matter of law, and i t i s not the province of t he appellate courts to make factual findings. S e e 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 as s ertions by the m ajority, A nte , at 5, Ca z a l a s v
. D OJ , 660 F. 2d 612, 623 ( 5th Cir. 1981) s up p orts this d is s ent. I agree that in Ca z al a s the d is t r i c t court ap p lied the incorrect legal s tand ard to the “s ubs tantially p revailed ” inquiry. H ow ever, unlik e here, the d is trict court m ad e f

ind ings of f

act s uf f icient f or the ap p ellate court to conclud e the p laintif f “s ubs tantially p revailed

. ” 660 F. 2d at 619–20. H ere, the dis trict court m ad e no f ind ings of f

act up on w hich the m ajority m ay bas e its hold ing that Batton “s ubs tantially prevailed

. ”
9 Case: 12-20401 Document: 00512281239 Page: 9 Date Filed: 06/20/2013