Case Detail
| Case Title | JUDICIAL WATCH, INC. v. BUREAU OF LAND MANAGEMENT | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2007cv01570 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2007-09-05 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2008-11-28 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Chief Judge Royce C. Lamberth | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | JUDICIAL WATCH, INC. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | Judicial Watch submitted a FOIA request to the Bureau of Land Management for records concerning communications between the agency and Nevada's two senators or Rep. Jim Gibbons concerning land swaps with Coyote Springs Investments. The agency acknowledged receipt of the request, but after hearing nothing further from the agency, Judicial Watch filed suit. Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | BUREAU OF LAND MANAGEMENT | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Appeal | D.C. Circuit 08-5379 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Opinion/Order [22] FOIA Project Annotation: Six months after President Bush signed the OPEN Government Act into law, the question of whether the changes in the attorney's fees provisions apply to pending cases is still hotly disputed. There have been two district court decisionsâ€"one in Missouri saying the amendments do not apply retroactively and one in Montana saying they do. The weight of the retroactive application argument seemed to gain steam when a magistrate judge in the District of Columbia concluded that the provisions did apply. But a split between two judges in the Districtâ€"Royce Lamberth and Reggie Waltonâ€"provides fresh evidence that the issue is far from settled and probably will not be until appellate courts begin to weigh in. It is somewhat startling to see two judges reach completely different conclusions on the same issue at nearly the same time, but there are some factual distinctions between the cases which may help to account for their contrasting conclusions. In Lamberth's case, Judicial Watch sued the Bureau of Reclamation for its failure to meet four self-imposed deadlines in releasing information. Judicial Watch and the agency reached a stipulation which included the right of Judicial Watch to apply for fees and the right of BLM to challenge that application. In Walton's case, N.Y.C. Apparel, an exporter of merchandise from the United Arab Emirates, sued Customs and Border Protection for records concerning the seizure of two of its containers at Long Beach. The agency withheld some documents and Walton approved the exemption claims, but declined to grant summary judgment, indicating that the agency should consider conducting a further search. The agency did so and released an additional five documents. Walton then granted summary judgment and N.Y.C. Apparel filed a motion for attorney's fees nine months later. While Judicial Watch had clearly received the relief requested, it is difficult to see how N.Y.C. Apparel could even be considered the prevailing party. Regardless, both plaintiffs argued that the OPEN Government Act amendments on attorney's fees applied retroactively and that under the catalyst theoryâ€"that the litigation caused the agency to provide documentsâ€"they were both entitled to fees. The interpretation of the sparse case law on the issue of retroactivity starts with the Supreme Court's ruling in Landgraf v. USI Film Productions, 511 U.S. 244 (1994), in which the Court found that if Congress did not directly address the issue of retroactive application in the statute itself, a court must then assess whether retroactivity 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." Of particular note, the Court in Landgraf indicated that attorney's fees provisions typically did not raise concerns about retroactivity because they were "collateral to the main cause of action" and "uniquely separable from the cause of action to be proved at trial." But in Martin v. Hadix, 527 U.S. 343 (1998), the Court subsequently denied the retroactive application of a provision that would decrease attorney's fees awards. Lamberth distinguished Martin by indicating that it dealt with equitable concerns, since the decreasing provision would have affected fees ten years after they were awarded by the trial court. From this review, Lamberth concluded that "retroactive application of the OPEN Government Act would not produce an impermissible retroactive effect. Although modified by Martin and hence not an absolute mandate, the Supreme Court's general rule persists that alterations to attorney's-fees provisions would not operate impermissibly if applied retroactively." Lamberth also found support in Sen. Patrick Leahy's statements about the effect of the provisions. Lamberth pointed out that "with regard to the adoption of the OPEN Government Act, Senator Patrick Leahy, the bill's sponsor, stressed '[t]he bill clarifies that Buckhannon does not apply to FOIA cases.' Senator Leahy's use of the word 'clarify,' along with his use of the present tense in stating that the bill 'does not apply' (rather than, for instance, 'will not apply as of enactment'). . .indicates an intent that the amended fee provision be applied retroactively." Lamberth also found equitable concerns in retroactive application, noting that "to deprive plaintiff of an award of fees would be tantamount to ignoring the overarching goals of FOIA and sanctioning defendant's lackadaisical attitude toward dissemination of government information to the interested public. . .[T]he question here is whether to award plaintiff attorney's fees when defendant (i.e., the putative wrongdoer) did not expect to pay these fees, not [as in Martin] whether taking away an award long ago given to a prevailing party produced an impermissible retroactive effect." The government also argued that retroactive application would constitute an impermissible waiver of sovereign immunity. But Lamberth explained that the new provision did not create a new right for plaintiffs to the detriment of the government. Instead, he indicated, that "here, plaintiff had the right to file suit to compel production of certain documents under FOIA, even before enactment of the OPEN Government Act amendments. The new fee-shifting provision merely affected possible remedies, not rights. Consequently, even recognizing the general principle of strict construction of waivers of sovereign immunity, the FOIA amendments may apply retroactively and govern the disposition of this case." Lamberth then found Judicial Watch was eligible for attorney's fees. He noted that "the record here indicates that plaintiff may not have received an appropriate response to its FOIA request absent the filing of the lawsuit. Indeed, defendant had committed to releasing information four separate times, and it had each time reneged without any meaningful explanation. In sharp contrast to its lackadaisical response throughout the previous six months, defendant disclosed the requested documents shortly after this action was commenced by plaintiff. Such a finding certainly establishes a causal connection between the filing of the complaint and the release of documents." He then found the request met the public-interest standard and that the agency had not shown that its tardiness was reasonable. He awarded Judicial Watch $3,600 in fees. Although it seems unlikely that N.Y.C. Apparel could show that it substantially prevailed under the newly amendment FOIA, Walton pointed out that "the sustainability of the plaintiff's fee-shifting request therefore turns in the first instance on the applicability of § 4 of the [OPEN Government Act] to this case. If the newly-added statutory provision applies, then the plaintiff could conceivably prevail on its request based on the defendant's decision to renew its search for responsive documents in the wake of the Court's [previous] decision. If the provision does not apply, then the plaintiff's motion must fail because there was no judgment or consent decree compelling the defendant to undertake its second search." Walton, like Lamberth, started with Landgraf. But he first rejected N.Y.C. Apparel's claim that Bradley v. School Board of City of Richmond, 416 U.S. 696 (1974), in which the Court ruled that attorney's fees provisions were typically a collateral issue in finding that Richmond should be subject to newly-enacted fee provisions in the Education Amendments of 1972, by noting that Bradley actually turned on "the lack of any prejudice to the substantive rights of the defendant, coupled with the fact that the defendant was already on notice that it might have to pay attorneys' fees before Congress passed the Education Amendments." N.Y.C. Apparel brought up the Bradley decision because the Landgraf decision identified it as an exception to the rule against retroactive application. Walton, however, concluded that Bradley's acceptance by the Landgraf court was limited to its facts and did not stand for the proposition that fee provisions were always exceptions to the rule against retroactive application. He then interpreted the subsequent Martin decision as evidence that fee provisions should not commonly be applied retroactively. He observed that "like the fee limitation sought by the defendants in Martin, applying § 4 of the OGA to the defendant in this instance 'would upset the reasonable expectations of the parties,' and would therefore clearly have a retroactive impact on the rights of the defendant." Further, he pointed out that "it is clear that § 4 of the OGA would 'have a retroactive effect' if it were construed to cover the defendant's voluntary initiation of a new search for documents responsive to the plaintiff's FOIA request and subsequent release of newly-discovered documents. Just as the plaintiffs' attorneys in Martin monitored the defendants' compliance in that case with the understanding that they would be paid a certain fee for their work, so, too, the defendants in this case initiated a new search with the understanding that any documents produced as a result of that search would not be used as a basis for awarding attorney's fees to the plaintiff pursuant to Buckhannon. . .As for the plaintiff's argument that attorney fee awards are 'collateral' to the main litigation between the parties, its point 'does not advance the retroactivity inquiry' and accordingly provides no basis for construing § 4 of the OGA in a retroactive manner." He added that "because Congress did not specify whether § 4 of the OGA should apply retroactively, and because the statute, if applied in such a fashion, would retroactively affect the substantive rights of the defendant, the 'traditional presumption' against retroactivity applies and the Court must construe the statute as having only prospective force." Walton also found that retroactive application would impermissibly expand "the scope of the government's waiver of sovereign immunity by broadening the circumstances under which a plaintiff in a FOIA case can recover attorney's fees." Relying on the D.C. Circuit's decision in Brown v. Secretary of Army, 78 F.3d 645 (D.C. Cir. 1996), he noted that sovereign immunity could be waived only by clear legislative intent in the statute.
Issues: Litigation - Attorney's fees - Eligibility | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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