# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2008 Decided April 11, 2008

No. 07-5158

J UDICIAL W ATCH

, I NC

., A PPELLANT

v.

F EDERAL B UREAU OF I NVESTIGATION

, A PPELLEE

Appeal from the United States District Court
for the District of Columbia (No. 06cv01135)

Paul J. Orfanedes argued the cause for appellant. With
him on the briefs were Dale L. Wilcox and Meredith L. Di
Liberto

.

Michael E. Robinson , Attorney, U.S. Department of Justice, argued the cause for a ppellee. With him on the briefs

were Jeffrey S. Bucholtz , Acting Assistant Attorney General, Jeffrey A. Taylor , U.S. Attorney, and Leonard Schaitman

, Attorney.

Before: T ATEL and G ARLAND

, Circuit Judges , and

E DWARDS

, Senior Circuit Judge

.2

Opinion for the Court filed by Circuit Judge T ATEL

.

T ATEL

, Circuit Judge : Pursuant to the Freedom of Information Act, appellant Judi cial Watch obtained two court orders directing the government to release by specified dates videotapes relevant to the tr agic events of September 11, 2001. After receiving the tapes, Judicial Watch moved for attorneys’ fees. The government argued, and the district court agreed, that the organization was ineligible for an award of
fees because it had failed to “subs tantially prevail[]” as FOIA requires. 5 U.S.C. § 552(a)(4)(E ). Because we have thrice
held that court orders like the ones at issue here render plaintiffs prevailing parties fo r purposes of FOIA’s attorney fee provision, we reverse.

I.

Designed “to facilitate pub lic access to Government documents,” Dep’t of State v. Ray , 502 U.S. 164, 173 (1991),
the Freedom of Information Act requires federal agencies to
disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions. 5 U.S.C. § 552. In December 2004, Judicial Watch, a non-profit organization, filed a FOIA request with the FBI seeking disclosure of videotapes showing “the deliberate crash of Flight 77 in to the Pentagon on September 11, 2001.” Appellants’ Opening Br. 3. Responding to the request, the FBI stated that al though it possessed some of the videotapes, it would withhold them pursuant to FOIA Exemption 7(A). See 5 U.S.C. § 552(b)(7)(A) (exempting from disclosure documents “compiled for law enforcement purposes” that “could reasonably be expected to interfere with enforcement proceedings”). After filing an administrative appeal that the FBI ignored fo r over a year, Judicial Watch
sued the Bureau in federal dist rict court in June 2006. In the meantime, Judicial Watch obt ained two of the requested3

videotapes directly from the De partment of Defense, leaving only one in dispute.

Less than a month after Judicial Watch filed suit, the parties entered into a “Sti pulation and Agreed Order” whereby the FBI acknowledged that it possessed the final videotape and agreed to disclo se it, but requested additional time to redact the tape to protect personal privacy. Judicial Watch raised no objection, and the order concluded: “Upon completion of the redaction, Defendant shall produce the videotape to Plaintiff without any other redactions and without imposing search or duplic ation fees on Plaintiff in this case.” Stipulation and Agreed Order ¶ 5, Judicial Watch

v. FBI , No. 06-1135 (July 19, 2006). Two days after the parties reached agreement the district court approved the order, which set an October 18 di sclosure deadline. Pursuant to this order, the FBI produced a redacted version of the videotape.

About a week after bringing su it, Judicial Watch filed a second and related FOIA request with the FBI. This request sought another videotape showing the attack on the Pentagon, which was recorded by a nearby Doubletree Hotel’s security camera. Having received no response from the Bureau regarding this second request , Judicial Watch amended its complaint, then pending in district court, to include a demand for the Doubletree tape. Once again, the FBI and Judicial Watch reached agreement, entering into a second “Stipulation and Agreed Order.” And once again, the FBI acknowledged that it possessed the requested videotape and agreed to disclose it after making certain redactions. The order commanded, “Defendant shall have until and including November 9, 2006 in which to co mplete its redaction of the Doubletree Hotel videotape and to produce the videotape to Plaintiff without any other re dactions and without imposing4

any search or duplication fees on Plaintiff in this case.” Stipulation and Agreed Order ¶ 7, Judicial Watch , No. 06- 1135 (Aug. 14, 2006). Four days later, the district court signed off on the order. After a final stipulation and order granting the FBI additional time to complete its redactions, Judicial Watch received the Doubletree tape.

With the records it sought in hand, Judicial Watch requested approximately $12,000 in attorneys’ fees pursuant to 5 U.S.C. § 552(a)(4)(E), which allows courts to “assess against the United States reasonable attorney fees and other litigation costs reas onably incurred in any case under this section in which the complainant has substantially prevailed.” Judicial Watch argued that it ha d “substantially prevailed” by securing enforceable court orders requiring the videotapes’ release by dates certain. The di strict court denied Judicial Watch’s motion, and this appeal followed. Because determining whether a plaintiff has “substantially prevailed” under FOIA section 553(a)(4)(E ) presents a question of statutory interpretation, we review the district court’s decision
de novo. See Davy v. CIA , 456 F.3d 162, 164 (D.C. Cir. 2006).

II.

In a string of recent cases, we have considered whether plaintiffs have “substantially prevailed” for purposes of FOIA’s attorney fee provision. See Campaign for Responsible Transplantation v. FDA , 511 F.3d 187 (D.C. Cir. 2007) (“ CRT ”); Davy , 456 F.3d 162; Edmonds v. FBI , 417 F.3d 1319 (D.C. Cir. 2005); Oil, Chem. & Atomic Workers Int’l Union v. Dep’t of Energy , 288 F.3d 452 (D.C. Cir. 2002) (“ OCAW ”). Because we recently led interested readers on a thorough tour of this case law, see CRT , 511 F.3d at 192-95; Davy , 456 F.3d at 164-65, we decline to repeat the exercise here even though, at least as far as the FBI is concerned, our5

holdings apparently maintain so me aura of mystery. For present purposes, we offer the following brief summary.

This court once followed the so-called “catalyst theory” for attorneys’ fees in FOIA cas es, meaning that “[s]o long as the ‘litigation substantially cause d the requested records to be released,’ [a] FOIA plaintiff could recover attorney’s fees even though the district court had not rendered a judgment in the plaintiff’s favor.” OCAW , 288 F.3d at 454 (quoting Chesapeake Bay Found., Inc. v. Dep’t of Agric. , 11 F.3d 211, 216 (D.C. Cir. 1993)). After the Supreme Court rejected that approach in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources , 532 U.S. 598, 605 (2001), we held in OCAW that a FOIA plaintiff has “substantially prevailed” if he has “‘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 (quoting Buckhannon , 552 U.S. at 603). The question now
before us is whether the two court orders Judicial Watch secured, which required the FBI to disclose specified videotapes by certain dates, sa tisfy these criteria, rendering the organization a prevailing part y eligible for a fee award.

We need not dwell long on this question, for Davy v.
CIA answers it for us. There, an author filed a FOIA request seeking documents related to the CIA’s alleged role in the
assassination of President John F. Kennedy. 456 F.3d at 163. After the CIA denied this request and the plaintiff sued, the parties “reached a Joint Sti pulation for the production of responsive documents,” which provided that the “CIA will provide Plaintiff all responsive documents, if any . . . by
certain dates.” Id. at 164 (internal quotation marks omitted). Once “[t]he district court appr oved the Joint Stipulation and memorialized it in a court order,” the CIA complied and
disclosed the documents. Id. Observing that the order6

“provide[d] Davy with the precise relief his complaint sought,” we held that the plaintiff had “substantially prevailed” because “the order changed the ‘legal relationship between [the plaintiff] and th e defendant,’” and because the plaintiff “was awarded some relief on the merits of his
claim.” Id. at 165 (quoting Buckhannon , 532 U.S. at 604).
We saw no functional difference between a joint stipulation and order and a “settlement ag reement enforced through a consent decree,” which the Buckhannon Court held may serve as the basis for an award of attorneys’ fees. Id. at 166. Prior to the parties’ joint stipulation and order, we explained, “the CIA was not under any judici al direction to produce documents by specific dates; th e . . . order changed that by requiring the Agency to produce all responsive documents by the specified dates.” Id. (internal quotation marks omitted). And “[i]f the Agency failed to comply with the order,” we noted, “it faced the sanction of contempt.” Id.

This should sound familiar. If not, consider our even more recent opinion in CRT , a case concerning another district court order requiring an agency to disclose certain records to a requesting plai ntiff. 511 F.3d at 197. Reaffirming our holding in Davy , we explained that in the earlier case, “[e]ven though the parties arri ved at a mutually acceptable agreement, . . . the order memorializing the agreement created the necessary judicial imprimatur for plaintiffs to be a prevailing party.” Id. Because the agency in
CRT “released the disputed documents only after the order was issued, and it released the documents pursuant to that order,” we concluded that “our decision in Davy control[led].” Id. Accordingly, we hel d, in language hardly difficult to decipher, that “[o] nce an order has been adopted by the court, requiring the agency to release documents , the legal relationship between the parties changes.” Id. ; see also
Edmonds , 417 F.3d at 1323 (holding that an order requiring7

the FBI “to turn over all non exempt documents by a date certain,” along with an order requiring expedited processing of the plaintiff’s request, rend ered the plaintiff a prevailing party eligible for attorney s’ fees under FOIA).

Judicial Watch argues that “this case is factually indistinguishable from Davy ” because here, as there, “the parties had stipulated that the defendant agency would produce the requested records by a date certain and the trial court approved the parties’ jo int stipulation.” Appellant’s Opening Br. 12. We agree. Th e first joint stipulation and order, duly signed by the district court, stated that “[u]pon completion of the redaction, [the FBI] shall produce the videotape to Plaintiff” by Oc tober 18, 2006. Stipulation and Agreed Order ¶ 5, Judicial Watch , No. 06-1135 (July 19, 2006) (emphasis added). Simila rly, the second agreed-upon
order stated that the FBI “ shall have until and including November 9, 2006 in which to complete its redaction of the Doubletree Hotel videotape and to produce the videotape to Plaintiff . . . .” Stipulation and Agreed Order ¶ 7, Judicial
Watch , No. 06-1135 (Aug. 14, 2006) (emphasis added). Merely recapitulating these terms, the third stipulation and
order extended the disclosure d eadline by some seven weeks. Stipulation and Agreed Order ¶¶ 7-9, Judicial Watch , No. 06- 1135 (Nov. 8, 2006). As we said in CRT , “[g]iven this record, our decision in Davy controls the disposition here.”
CRT , 511 F.3d at 197. Indeed, if anything, this case is even stronger than Davy . There, the order directed the CIA to “provide Plaintiff all responsive documents, if any ,” Davy

, 456 F.3d at 164 (quotation marks omitted) (emphasis added), while the orders at issue here specifically identified and required disclosure of the pr ecise records Judicial Watch sought, see Stipulation and Agreed Order ¶ 5, Judicial Watch

, No. 06-1135 (July 19, 2006) (requiri ng the FBI to redact and disclose “the Nexxcom/Citgo vi deotape”); Stipulation and8

Agreed Order ¶ 7, Judicial Watch , No. 06-1135 (Aug. 14, 2006) (requiring the FBI to re dact and disclose “the Doubletree Hotel videotape”).

In spite of all this, the FBI argues that OCAW rather than Davy controls this case. OCAW involved an order, dated August 23, 1999, that the court ch aracterized as a “status report” directing the Department of Energy to search its files and release any nonexempt record s to a FOIA requester. 288 F.3d at 457. Over a dissent, the OCAW court found that order insufficient to support an award of attorneys’ fees. According to the FBI, the order in this case is indistinguishable from the
OCAW order, and like the OCAW plaintiff, Judicial Watch is ineligible for a fee award. As for Davy ’s and CRT ’s contrary holdings, the FBI simply says that the “panel in Davy was mistaken,” Appellee’s Br. 21, that the CRT panel similarly “misread[] OCAW ,” id. at 27, and that we must therefore
follow OCAW rather than the later opinions. See Haynes v.
Williams , 88 F.3d 898, 900 n.4 (10th Cir. 1996) (“[W]hen
faced with an intra-circuit conflict, a panel should follow earlier, settled precedent ove r a subsequent deviation therefrom.”)

Given that three post- OCAW decisions have rejected the FBI’s proposed reading of th at case, we must deny the Bureau’s request that we revisit OCAW ’s underlying facts and resurrect the dispute between the dissent and majority in that
case. The OCAW majority, focusing exclusively on the order’s “requirement that the [agency] complete its record review in 60 days,” explaine d: “Before August 23, the court had not ordered the Energy Department to turn over any documents; after August 23, the Energy Department still had no obligation to do so.” 288 F.3d at 458. Characterizing that
order in Edmonds , we said, “ as the OCAW court described

it ,” the August 23 order “merely direct[ed] the FBI to9

‘complete its record review.’” Edmonds , 417 F.3d at 1323 (quoting OCAW , 288 F.3d at 458) (em phasis added). We made the same point even more starkly in Davy , explaining
that in OCAW , “[w]e highlighted the order’s interim nature, which was procedural—conduct a search—as opposed to substantive—produce documents.” Davy , 456 F.3d at 165. And we repeated ourselves yet again in CRT

. See 511 F.3d at 194 (“An order from the trial court to the Energy Department to ‘complete its record review’ within a fixed timetable was not judicial relief.” (quoting OCAW , 288 F.3d at 458)). True,
the OCAW dissent read the August 23 order differently, viewing it as a directive to disclose documents. See OCAW

, 288 F.3d at 465 (Rogers, J., dissenting). But the majority disagreed, stating that if a stipulation between the parties had “outlined documents the government still needed to disclose to the [plaintiff], matters might be different.” Id. at 458. As we explained in CRT , we “addressed exactly that question in Davy v. CIA ,” and concluded that such orders render the plaintiffs who secure them pr evailing parties eligible for attorneys’ fees. CRT , 511 F.3d at 193. In short, the FBI asks
us to reach back in time and a dopt the dissent’s reading of the
factual record in a case over a contrary interpretation by the majority, as reaffirmed in three subsequent unanimous decisions by this court. As the government well knows, a three-judge panel has no such authority. See LaShawn A. v. Barry , 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc) (“One three-judge panel . . . does not have the authority to overrule another three-judge panel of the co urt.”).

Like the rest of this case, the government’s entreaty that we jettison Davy for OCAW sparks a certain sense of déjà vu.
After we handed down our decision in Davy , the government made this precise request in its petition for panel rehearing and rehearing en banc. See Appellee’s Pet. for Panel Reh’g and Pet. for Reh’g En Banc, Davy v. CIA , No. 05-5151 (D.C.10

Cir. Aug. 25, 2006). There, in a brief authored less than two years ago, the government argued that “[t]he order at issue
here and the order in OCAW are materially indistinguishable.”
Id. at 9. No judge having calle d for a vote on the petition, this court unanimously denied the government’s request for rehearing in Davy

. See Order Denying Pet. for Reh’g En Banc, Davy , No. 05-5151 (D.C. Cir. Sept. 18, 2006). After
we issued our decision in CRT , the government tried a second
time

. Asking that panel for reh earing—but declining to take the matter once more to the full court—the government, quoting its Davy petition almost verbatim, said, “[t]he order at
issue here and the OCAW order are materially indistinguishable.” Pet. for Reh’g 11, CRT , No. 06-5333 (D.C. Cir. Feb. 11, 2008). Unconvinced, the CRT panel denied the government’s petiti on. Order Denying Pet. for Reh’g, CRT , No. 06-5333, (D.C. Cir. Mar. 14, 2008). Today the government asserts—or rather again reasserts— “[b]ecause the orders here are materially indistinguishable
from the relevant court order in OCAW , this Court is constrained by OCAW to find that Judicial Watch is not a ‘substantially prevailing party’ here.” Appellee’s Br. 8. Faced with the same argument for the third time, we see no reason to reach a different result today. Indeed, the government’s decision to dus t off a thoroughly discredited argument and present it to us anew wastes both our time and the government’s resources.

The FBI does make a passing attempt to distinguish this
case from Davy , arguing in its brief that unlike the order there, the order here allowed the FBI to redact images for privacy reasons before turning over the requested videotapes. But at oral argument, counsel backed away from this distinction, explaining that the government would have made the same argument even if the order had required immediate11

disclosure. See Oral Arg. 15:00-:50. It matters little, for our
conclusion would be the same in either case. Davy controls.

We return, in the end, to Buckhannon , under which a plaintiff becomes a prevailing party once “awarded some relief by [a] court.” Buckhannon , 532 U.S. at 603; OCAW

, 288 F.3d at 456-57 (discussing Buckhannon ). That’s precisely what Judicial Watch obtained in this case. The organization wanted two videotap es. It got tw o videotapes pursuant to court orders. Had the FBI reneged on its promise to release the tapes, forgot to do so, or even delayed disclosure, it would have b een subject to contempt. See Davy , 456 F.3d at 166; Edmonds , 417 F.3d at 1323. Why else would the FBI have needed a third court order allowing an extension of time to complete its redactions? As we have held time and again, orders like these, even when voluntarily agreed to by the government, are sufficient to make plaintiffs eligible for attorneys’ fees under FOIA.

Before concluding, we note that the parties spent a significant amount of time deba ting the effect of a recent congressional enactment—the OPEN Government Act of 2007—that reinstates the catalyst theory in FOIA actions. See OPEN Government Act of 2007, Pub L. No. 110-175, § 4(a)(2), 121 Stat. 2524, 2525 ( 2007). Under the amended FOIA, a plaintiff “has subs tantially prevailed if the complainant has obtained relief through either ( I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the

agency , if the complainant’s claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii) (empha sis added). Because Judicial Watch “substantially prevailed” by securing court orders requiring the government to disc lose documents, we need not interpret the new statute or d ecide whether Congress intended it to apply to pending cases.12

III.

Because Judicial Watch “substantially prevailed” in its FOIA action, it is eligible to receive attorneys’ fees under 5 U.S.C. § 552(a)(4)(E). To obt ain those fees, the organization
must first demonstrate that it is “entitled” to them. See
Edmonds , 417 F.3d at 1327. In ma king this determination,
the district court assesses four factors: “(1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff’s interest in the records; and (4) the reasonableness of the agency’s withholding.” Tax Analysts v. Dep’t of Justice , 965 F.2d 1092, 1093 (D.C. Cir. 1992). Bala ncing these factors is a matter for the district court, whose decision we review for
abuse of discretion. See id. at 1094. Because the district court found Judicial Watch ineligible for fees, it never reached this second part of the test. We therefore reverse and remand the case for consideration of that question.

So ordered.