United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2008 Decided April 11, 2008 

No. 07-5158 

JUDICIAL WATCH, INC., 

APPELLANT

v. 

FEDERAL BUREAU OF INVESTIGATION, 

APPELLEE

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 appellee. With him on the briefs 

were Jeffrey S. Bucholtz, Acting Assistant Attorney General, 

Jeffrey A. Taylor, U.S. Attorney, and Leonard Schaitman, 

Attorney. 

Before: TATEL and GARLAND, Circuit Judges, and 

EDWARDS, Senior Circuit Judge. 
2 

Opinion for the Court filed by Circuit Judge TATEL. 

TATEL, Circuit Judge: Pursuant to the Freedom of 

Information Act, appellant Judicial Watch obtained two court 

orders directing the government to release by specified dates 

videotapes relevant to the tragic 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 “substantially 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 for purposes of FOIA’s attorney 

fee provision, we reverse. 

I. 

Designed “to facilitate public 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 into the Pentagon on September 

11, 2001.” Appellants’ Opening Br. 3. Responding to the 

request, the FBI stated that although 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 for over a year, Judicial Watch 

sued the Bureau in federal district court in June 2006. In the 

meantime, Judicial Watch obtained two of the requested 
3 

videotapes directly from the Department of Defense, leaving 

only one in dispute. 

Less than a month after Judicial Watch filed suit, the 

parties entered into a “Stipulation and Agreed Order” 

whereby the FBI acknowledged that it possessed the final 

videotape and agreed to disclose 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 duplication 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 disclosure deadline. Pursuant 

to this order, the FBI produced a redacted version of the 

videotape. 

 

About a week after bringing suit, 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 complete its redaction of the 

Doubletree Hotel videotape and to produce the videotape to 

Plaintiff without any other redactions and without imposing 
4 

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 reasonably incurred in any case under this 

section in which the complainant has substantially prevailed.” 

Judicial Watch argued that it had “substantially prevailed” by 

securing enforceable court orders requiring the videotapes’ 

release by dates certain. The district 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, our 
5 

holdings apparently maintain some 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 cases, meaning that “[s]o long as 

the ‘litigation substantially caused 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, satisfy these criteria, rendering 

the organization a prevailing party 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 Stipulation 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 approved the Joint Stipulation and 

memorialized it in a court order,” the CIA complied and 

disclosed the documents. Id. Observing that the order 
6 

“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 the 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 agreement 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 judicial direction to produce 

documents by specific dates; the . . . 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 plaintiff. 511 F.3d at 197. 

Reaffirming our holding in Davy, we explained that in the 

earlier case, “[e]ven though the parties arrived 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 held, 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 requiring 
7 

the FBI “to turn over all nonexempt documents by a date 

certain,” along with an order requiring expedited processing 

of the plaintiff’s request, rendered the plaintiff a prevailing 

party eligible for attorneys’ 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’ joint stipulation.” Appellant’s 

Opening Br. 12. We agree. The 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 October 18, 2006. Stipulation and 

Agreed Order ¶ 5, Judicial Watch, No. 06-1135 (July 19, 

2006) (emphasis added). Similarly, 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 deadline 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 precise records Judicial Watch 

sought, see Stipulation and Agreed Order ¶ 5, Judicial Watch, 

No. 06-1135 (July 19, 2006) (requiring the FBI to redact and 

disclose “the Nexxcom/Citgo videotape”); Stipulation and 
8 

Agreed Order ¶ 7, Judicial Watch, No. 06-1135 (Aug. 14, 

2006) (requiring the FBI to redact 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 characterized as a “status 

report” directing the Department of Energy to search its files 

and release any nonexempt records 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 over a subsequent deviation 

therefrom.”) 

Given that three post-OCAW decisions have rejected the 

FBI’s proposed reading of that 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,” explained: “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 to 
9 

‘complete its record review.’” Edmonds, 417 F.3d at 1323 

(quoting OCAW, 288 F.3d at 458) (emphasis 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 prevailing parties eligible for 

attorneys’ fees. CRT, 511 F.3d at 193. In short, the FBI asks 

us to reach back in time and adopt 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 court.”). 

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 called 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 rehearing—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 petition. 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 dust 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 immediate 
11 

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 videotapes. It got two 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 been 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 debating 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 substantially 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) (emphasis added). Because Judicial 

Watch “substantially prevailed” by securing court orders 

requiring the government to disclose documents, we need not 

interpret the new statute or decide 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 obtain those fees, the organization 

must first demonstrate that it is “entitled” to them. See 

Edmonds, 417 F.3d at 1327. In making 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). Balancing 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.