Oregon Natural Desert v. Locke ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OREGON NATURAL DESERT 
ASSOCIATION,
Plaintiff-Appellee,
v. No. 06-35851
GARY LOCKE,* Secretary, United  D.C. No.
CV-05-00210-KI
States Department of Commerce;
WILLIAM T. HOGARTH, Director, OPINION
NOAA Fisheries NATIONAL MARINE
FISHERIES SERVICES,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
October 21, 2008—Portland, Oregon
Filed July 8, 2009
Before: David R. Thompson, A. Wallace Tashima and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Thompson
* Gary Locke is substituted for his predecessor Carlos M. Gutierrez, as
Secretary, United States Department of Commerce, pursuant to Fed. R.
App. P. 43(c)(2).
8379
8382 OREGON NATURAL DESERT v. LOCKE
COUNSEL
Mark W. Pennak, United States Department of Justice, Wash-
ington D.C. for the defendants/appellants.
Peter M. Lacy, Portland, Oregon, for the plaintiff/appellee.
OREGON NATURAL DESERT v. LOCKE 8383
OPINION
THOMPSON, Senior Circuit Judge:
The Department of Commerce, National Oceanic and
Atmospheric Administration Fisheries (“NOAA Fisheries”)
and National Marine Fisheries Services (collectively, “Com-
merce”) appeal the district court’s order granting attorney fees
and costs under the Freedom of Information Act, 5 U.S.C.
§ 552 (“FOIA”), in favor of Oregon Natural Desert Associa-
tion (“ONDA”). The district court issued the attorney fees
order after it entered judgment in ONDA’s action alleging
unlawful withholding of requested documents and use of
unlawful processing regulations in violation of the FOIA and
the Administrative Procedure Act, 5 U.S.C. §§ 701-706(“APA”).
We have jurisdiction under 28 U.S.C. § 1291. We affirm in
part, reverse in part, and remand for recalculation of the attor-
ney fee award. On two of its claims, ONDA was not a sub-
stantially prevailing party under Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532
U.S. 598 (2001). As to those claims, the defendants provided
the documents ONDA requested before the district court
ordered that they be turned over. ONDA was successful in
obtaining the documents, but it succeeded by use of the cata-
lyst theory of recovery, and not by either a judgment on the
merits or a court-ordered consent decree as required by Buck-
hannon. Id. at 604.
The Openness Promotes Effectiveness in our National Gov-
ernment Act (the “2007 Amendments” to the FOIA) autho-
rizes the payment of attorney fees when documents such as
those sought by ONDA are recovered using a catalyst theory,
but those Amendments were signed into law after the district
court entered its attorney fees order, and they do not apply
retroactively to this case. ONDA is not eligible for the recov-
ery of attorney fees on its first two claims. Nor is it eligible
8384 OREGON NATURAL DESERT v. LOCKE
for attorney fees on its third claim, which it lost. But, it is eli-
gible for an award of attorney fees on its fourth claim for its
successful challenge to the cut-off regulation.1
I
Background
On March 11, 2004, ONDA submitted a FOIA request to
NOAA Fisheries, a component of an agency within the
Department of Commerce. ONDA requested documents
regarding the effects of livestock grazing on Upper and Mid-
dle Columbia River Steelhead from “2003 to the present.”
NOAA Fisheries obtained clarification of the request and then
determined the documents responsive to it were those within
its possession and control as of April 30, 2004, pursuant to the
cut-off regulation.2 15 C.F.R. § 4.5(a) (prior to amendment).
NOAA Fisheries referred the request to the agencies that had
the primary interest in the documents for a direct response to
ONDA. See 15 C.F.R. § 4.5(b).
ONDA filed a second FOIA request on January 7, 2005
seeking the same information as the first request, but for the
period from “March 2004 to the present.” NOAA Fisheries
limited its search to documents in its possession and control
before January 10, 2005, the date it received the second
request, pursuant to the cut-off regulation. See 15 C.F.R.
§ 4.5(a) (prior to amendment).
1
ONDA moved to dismiss this appeal on the ground that “[t]he OPEN
Government Act invalidates Commerce’s sole basis for the appeal.” For
the reasons set forth in this opinion, we deny that motion.
2
Although the cut-off regulation, prior to amendment, specified that
responsive documents were only those in the possession and control of the
agency as of the date the request was received, Commerce explained its
guidelines also provided that responsive documents would include those
in the possession and control of the agency as of the date the agency
received clarification of the request in the event clarification was sought.
NOAA Fisheries received clarification of ONDA’s request on April 30,
2004.
OREGON NATURAL DESERT v. LOCKE 8385
On February 14, 2005, ONDA filed this lawsuit under the
FOIA and the APA to compel the production of the docu-
ments it had requested on March 11, 2004 and January 7,
2005. ONDA also challenged Commerce’s use of the referral
regulation and cut-off regulation as violations of the FOIA.
ONDA sought both declaratory and injunctive relief pursuant
to the FOIA and the APA.
Within two months of the initiation of the lawsuit, NOAA
Fisheries and other agencies to which ONDA’s request for
documents had been referred completed the production on
both FOIA requests. Commerce then moved to dismiss this
action, arguing the claims had been rendered moot by produc-
tion of the requested documents. ONDA opposed the motion
to dismiss and cross-moved for summary judgment, arguing
it was entitled to declaratory relief on Commerce’s pattern
and practice of delay, and injunctive relief on its claims that
the processing regulations violated the FOIA.
The district court determined that NOAA Fisheries’s
untimely response violated the FOIA, but that the referral reg-
ulation complied with the FOIA. After the parties submitted
additional briefing, the district court granted ONDA summary
judgment on its challenge to the cut-off regulation and
enjoined Commerce from relying on it when responding to
future FOIA requests. The cut-off regulation was amended
thereafter to define responsive documents as those within the
possession and control of the agency as of the date it begins
its search for them. 15 C.F.R. § 4.5(a).
ONDA then moved for attorney fees and costs under the
FOIA, or in the alternative, under the Equal Access to Justice
Act, 28 U.S.C. § 2412(d) (“EAJA”). The district court
awarded ONDA attorney fees and costs of $46,889.02 under
the FOIA. Commerce appeals that award.
8386 OREGON NATURAL DESERT v. LOCKE
II
Discussion
An award of attorney fees is reviewed for an abuse of dis-
cretion; whether the district court applied the correct legal
standard is reviewed de novo. See Childress v. Darby Lumber,
Inc., 357 F.3d 1000, 1011 (9th Cir. 2004).
Commerce does not challenge the relief granted in the
underlying judgment. An award of attorney fees raises legal
issues collateral to and separately appealable from the deci-
sion on the merits. Budinich v. Becton Dickinson & Co., 486
U.S. 196, 200 (1988); White v. N.H. Dep’t of Employment
Sec., 455 U.S. 445, 451-52 (1982). Therefore, we review the
attorney fees award without disturbing the underlying judg-
ment.
[1] The FOIA requires federal agencies to disclose informa-
tion upon request unless such information is exempt from dis-
closure. 5 U.S.C. § 552. Congress enacted the FOIA to enable
citizens “to check against corruption and to hold the gover-
nors accountable to the governed.” Pac. Fisheries, Inc. v.
United States, 539 F.3d 1143, 1147 (9th Cir. 2008) (citation
omitted). Agencies must determine within twenty working
days after receipt of a request whether to comply with it. 5
U.S.C. § 552(a)(6). When an agency improperly withholds
documents from a requester, the FOIA authorizes the courts
to order their production. 5 U.S.C. § 552(a)(4)(B).
To obtain an award of attorney fees under the FOIA, a
plaintiff must demonstrate both eligibility and entitlement to
the award. Long v. IRS, 932 F.2d 1309, 1313 (9th Cir. 1991).
[2] “A complainant in a FOIA action is deemed to be eligi-
ble for fees if he has ‘substantially prevailed’ on his claim.”
Id. If a plaintiff is eligible for fees under the FOIA, the district
OREGON NATURAL DESERT v. LOCKE 8387
court has discretion to determine whether the plaintiff is enti-
tled to fees. Id.3
Prior to its most recent amendments, the FOIA had a basic
fee provision: “The 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 complain-
ant has substantially prevailed.” 5 U.S.C. § 552 (a)(4)(E)
(prior to amendment).
[3] In 2001, the Supreme Court addressed the issue of
whether the term “prevailing party,” as found in the Fair
Housing Amendments Act (“FHAA”) and Americans with
Disabilities Act (“ADA”), included a party that achieved a
desired result through a voluntary change in the position of
the opposing party. See Buckhannon, 532 U.S. at 600. Buck-
hannon addressed what is known as the catalyst theory, which
allowed a plaintiff to recover attorney fees despite the fact
that a court had not rendered a judgment in the plaintiff ’s
favor if the litigation caused the defendant to change its posi-
tion. Id. at 601. In Buckhannon, the Court disclaimed the cata-
lyst theory’s application to the FHAA and ADA fee
provisions, stating the theory would impermissibly “allow[ ]
an award where there is no judicially sanctioned change in the
legal relationship of the parties.” Id. at 605. The Court limited
the definition of “prevailing party” to those plaintiffs who
achieve the desired outcome through either judgment on the
merits or a court-ordered consent decree. Id. at 604.
Although Buckhannon rejected the application of the cata-
lyst theory to the recovery of attorney fees under the FHAA
and the ADA, the D.C. Circuit later applied Buckhannon’s
3
We discuss only ONDA’s eligibility for attorney fees because Com-
merce did not challenge ONDA’s entitlement to fees in its briefs filed with
this court. Fed. R. App. P. 28(a)(9); Indep. Towers of Wash. v. Washing-
ton, 350 F.3d 925, 929 (9th Cir. 2003) (noting this court will not address
claims not argued in the opening brief).
8388 OREGON NATURAL DESERT v. LOCKE
analysis and rejected the catalyst theory for the recovery of
attorney fees under the FOIA. Oil, Chem. & Atomic Workers
Int’l Union, AFL-CIO v. Dep’t of Energy, 288 F.3d 452, 456-
57 (D.C. Cir. 2002). The Second Circuit followed suit. Union
of Needletrades, Indus. & Textile Employees, AFL-CIO v.
INS, 336 F.3d 200, 203 (2d Cir. 2003).
Until now, our circuit has not had occasion to determine
whether Buckhannon applies to a FOIA case. We have, how-
ever, determined that Buckhannon extends to two statutes
other than the FHAA and ADA. See Perez-Arellano v. Smith,
279 F.3d 791, 794 (9th Cir. 2002) (applying Buckhannon
analysis to Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412(d)(1)(A)); Bennett v. Yoshina, 259 F.3d 1097, 1100
(9th Cir. 2001) (applying Buckhannon analysis to Civil Rights
Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988).
[4] In December 2007, President Bush signed into law the
2007 Amendments, which modified FOIA’s provision for the
recovery of attorney fees to ensure that FOIA complainants
who relied on the catalyst theory to obtain an award of attor-
ney fees would not be subject to the Buckhannon proscription.
See 5 U.S.C. § 552(a)(4)(E)(i) & (ii). Following the 2007
Amendments, the FOIA’s attorney fee provision states:
The court may assess against the United States rea-
sonable attorney fees and other litigation costs rea-
sonably incurred in any case under this section in
which the complainant has substantially prevailed.
For purposes of this subsection, a complainant 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 insub-
stantial.
5 U.S.C. § 552(a)(4)(E)(i) & (ii).
OREGON NATURAL DESERT v. LOCKE 8389
Congress expressly conveyed concerns about Buckhannon
in explaining the need for the 2007 Amendments:
The bill also addresses a relatively new concern that,
under current law, Federal agencies have an incen-
tive to delay compliance with FOIA requests until
just before a court decision is made that is favorable
to a FOIA requester. The Supreme Court’s decision
in [Buckhannon] eliminated the “catalyst theory” for
attorneys’ fees recovery under certain federal civil
rights laws. When applied to FOIA cases, Buckhan-
non precludes FOIA requesters from ever being eli-
gible to recover attorneys’ fees under circumstances
where an agency provides the records requested in
the litigation just prior to a court decision that would
have been favorable to the FOIA requester. The bill
clarifies that Buckhannon does not apply to FOIA
cases. Under the bill, a FOIA requester can obtain
attorneys’ fees when he or she files a lawsuit to
obtain records from the Government and the Gov-
ernment releases those records before the court
orders them to do so.
153 Cong. Rec. S15701-04 (daily ed. Dec. 14, 2007) (state-
ment of Sen. Leahy, sponsor of the 2007 Amendments).
Eligibility for Attorney Fees
The first issue is whether ONDA was a substantially pre-
vailing party, making it eligible for attorney fees under the
FOIA.
ONDA brought four claims in this lawsuit. Claim one is a
FOIA claim in which ONDA sought records and obtained a
ruling in its favor. Claim two is an APA claim in which
ONDA sought injunctive and declaratory relief for the same
violation of the FOIA and for which it also obtained a ruling
in its favor. Claim four is a claim in which ONDA sought and
8390 OREGON NATURAL DESERT v. LOCKE
obtained injunctive relief against the cut-off regulation used
in processing requests which violated the FOIA. Claim three,
the only claim on which ONDA did not obtain relief, chal-
lenged the referral regulation used in processing FOIA
requests.
In ruling on ONDA’s attorney fees request, the district
court pointed out that ONDA obtained summary judgment on
claims one, two and four while the court dismissed claim
three with prejudice. The ruling by the district court was
issued before the 2007 Amendments made Buckhannon inap-
plicable to FOIA cases. The district court applied the Buck-
hannon rule. It held that to recover attorney fees, a plaintiff
had to be a substantially prevailing party, and to be that, the
plaintiff had to have obtained an enforceable judgment which
materially altered the legal relationship of the parties. See
Buckhannon, 532 U.S. at 605. The district court concluded
that ONDA satisfied the Buckhannon standard.
While we agree ONDA prevailed on claim four and is enti-
tled to recover attorney fees for obtaining injunctive relief, we
disagree with the district court’s conclusion that under Buck-
hannon ONDA is entitled to recover attorney fees on claims
one and two. ONDA eventually obtained a judgment under
the FOIA that it was entitled to the documents it had
requested in its claims one and two, but the defendants had
turned those documents over to ONDA before the court made
its decision. Thus, ONDA prevailed on claims one and two
under the catalyst theory, but Buckhannon rejected the cata-
lyst theory as a basis for the recovery of attorney fees against
the government.
Before the 2007 Amendments became effective, the Second
and D.C. Circuits applied Buckhannon’s analysis to the FOIA
and precluded the recovery of attorney fees against the gov-
ernment under a catalyst theory. See Union of Needletrades,
336 F.3d at 209; Oil, Chem. & Atomic Workers, 288 F.3d at
456. Both the Second and D.C. Circuits compared FOIA’s
OREGON NATURAL DESERT v. LOCKE 8391
fee-shifting provisions to similar provisions in the two statutes
considered in Buckhannon and concluded that Buckhannon’s
holding extended to the FOIA. We agree with this analysis. In
the present case, Buckhannon would apply to preclude a
recovery of attorney fees on claims one and two unless the
2007 Amendments to the FOIA, or the earlier 1974 Amend-
ments to that statute (“1974 Amendments”), authorize a con-
trary result.
A. Applicability of the 2007 Amendments, or the 1974
Amendments, to the Present Case
The district court entered its attorney fees order on April
24, 2006. The 2007 Amendments were signed into law on
December 31, 2007, while this appeal was pending. ONDA
argues that, under Landgraf v. USI Film Products, 511 U.S.
244 (1994), the presumption against retroactivity does not
apply here, so the 2007 Amendments should apply to this case
and permit its recovery of attorney fees on claims one and
two.
At issue in Landgraf was a change in the law while litiga-
tion was pending on appeal with regard to an award of attor-
ney fees. The Court discussed the application of the
presumption against retroactivity in conjunction with the anal-
ysis in Bradley v. School Board of City of Richmond, 416 U.S.
696 (1974). Landgraf, 511 U.S. at 277.
In Bradley, the Supreme Court reviewed the appellate
court’s reversal of the district court’s award of attorney fees
to petitioners who were prevailing parties in a school desegre-
gation case. Bradley, 416 U.S. at 698-99. After the case had
been submitted to the appellate court but before a decision
had been reached, Congress enacted § 718 of the Education
Amendments of 1972 which allowed attorney fees to be
granted to the prevailing party upon a final order in a school
desegregation case. The appellate court reasoned that § 718
did not apply to services rendered before the date of its enact-
8392 OREGON NATURAL DESERT v. LOCKE
ment. The Court vacated that judgment and remanded the case
to the appellate court. According to Bradley, a court should
apply the law in effect at the time its decision is rendered
unless doing so would “result in manifest injustice or there is
a statutory or legislative history to the contrary.” Bradley, 416
U.S. at 711. Thereafter, the Court decided Landgraf.
The Court in Landgraf stated:
Although [the above] language [in Bradley] suggests
a categorical presumption in favor of application of
all new rules of law, we now make it clear that Brad-
ley did not alter the well-settled presumption against
application of the class of new statutes that would
have genuinely “retroactive” effect . . . . [T]he attor-
ney’s fee provision at issue in Bradley did not
resemble the cases in which we have invoked the
presumption against statutory retroactivity. Attor-
ney’s fee determinations, we have observed, are
“collateral to the main cause of action” and
“uniquely separable from the cause of action to be
proved at trial.”
Landgraf, 511 U.S. at 277 (quoting White, 455 U.S. at 451-
52).
[5] The Bradley test for whether a newly passed law should
be given retroactive effect examines (1) whether the new law
imposes new legal consequences for past conduct, (2) whether
manifest injustice would occur by applying the new law, and
(3) whether any contrary legislative history exists. Bradley,
416 U.S. at 711-12. In addition, when sovereign immunity is
an issue, as in this case, and a recovery depends upon a
waiver of that immunity, such a waiver will not be applied
retroactively if the new law provides a new waiver of sover-
eign immunity. Brown v. Sec’y of Army, 78 F.3d 645, 650-51
(D.C. Cir. 1996) (“In the usual case, that is, the case in which
no waiver of sovereign immunity is involved—Bradley
OREGON NATURAL DESERT v. LOCKE 8393
requires the court to presume that the newly enacted provision
is retroactive . . . .”). “In the special case, however, [involving
the need for a waiver of sovereign immunity] the rule of strict
construction requires the opposite,” id. at 651, because “waiv-
ers of sovereign immunity are to be read ‘no more broadly
than [their] terms require.’ ” Trout v. Sec’y of Navy, 317 F.3d
286, 290 (D.C. Cir. 2003) (quoting Brown, 78 F.3d at 649).
[6] Here, the newly enacted 2007 Amendments contain a
new waiver of sovereign immunity for recovery of attorney
fees under the catalyst theory, and they do not explicitly apply
that waiver retroactively. Therefore, the 2007 Amendments
do not apply retroactively to this case. Accordingly, a recov-
ery of attorney fees in this FOIA action under the catalyst the-
ory will apply only if the 1974 Amendments to the FOIA,
which created the “substantially prevail” standard, waived
sovereign immunity for the recovery of fees under the catalyst
theory.
[7] As stated in our review of Oil Workers and Union of
Needletrades above, we agree with the Second and D.C. Cir-
cuits that the 1974 FOIA Amendments did not waive the gov-
ernment’s sovereign immunity. That is, Congress, in enacting
the 1974 Amendments, did not authorize payment of attorney
fees under the catalyst theory. See Union of Needletrades, 336
F.3d at 209; Oil Workers, 288 F.3d at 456 (citing Buckhan-
non). Moreover, as we further concluded above, the 2007
Amendments did not retroactively waive sovereign immunity
against this type of fee recovery. As a result, sovereign immu-
nity prohibits ONDA from recovering its attorney fees on its
first two claims under the catalyst theory. The attorney fees
granted to ONDA for prevailing on claims one and two, there-
fore, must be reversed.
B. Claim Four
[8] Although Commerce contends claim four is an APA
claim, the APA prescribes standards for judicial review of an
8394 OREGON NATURAL DESERT v. LOCKE
agency action only when jurisdiction is otherwise established.
5 U.S.C. §§ 701-706; Gallo Cattle Co. v. U.S. Dep’t of Agric.,
159 F.3d 1194 (9th Cir. 1998). Section 706(1) of the APA
addresses the issue of agency inaction and provides that a
court will “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1). Commerce argues
that the injunction granted as to claim four was based on the
court’s determination that the cut-off regulation violated the
APA. However, even if ONDA had brought claim four as an
APA claim as Commerce argues it should have, ONDA still
would have prevailed on its challenge to the cut-off regulation
as a violation of the FOIA. We construe the phrase “any case
under this section” in 5 U.S.C. § 552(a)(4)(E) to include a
case challenging the validity of a regulation governing the
processing of FOIA requests. The relief obtained on claim
four, therefore, meets the Buckhannon standard because
ONDA obtained that relief when the district court ruled in its
favor on the merits of that claim. Buckhannon, 532 U.S. at
604.
[9] The district court awarded attorney fees and costs in
favor of ONDA in the total sum of $46,889.02. That award
was made on the basis that ONDA was the prevailing party
eligible for and entitled to attorney fees on all three of the
claims on which it prevailed. But it is eligible for attorney
fees only as to one of those claims, claim four. We therefore
remand to the district court for it to determine the amount of
attorney fees and costs that should be awarded to ONDA as
the prevailing party on claim four.
III
Conclusion
As the district court correctly determined, when the com-
plaint in this case is read as a whole, it becomes clear this is
a FOIA action. The district court ruled in favor of ONDA on
three out of four claims, but only after the defendants had
OREGON NATURAL DESERT v. LOCKE 8395
already produced the documents requested by claims one and
two. The 2007 Amendments authorizing the payment of attor-
ney fees to a prevailing plaintiff under a catalyst theory do not
apply retroactively to this case. Nor do the 1974 Amendments
permit the recovery of attorney fees under the catalyst theory.
Buckhannon, decided before the 2007 Amendments became
effective, applies to this case and precludes such a recovery
as to claims one and two. As the catalyst theory is the only
theory under which ONDA can be said to have prevailed on
claims one and two in this FOIA action, ONDA is not eligible
for the attorney fees awarded to it for its success on those
claims. But it is entitled to attorney fees for its success on
claim four. We therefore reverse the award of attorney fees
and remand to the district court for it to calculate an award of
attorney fees and costs to be awarded to ONDA for its success
as the prevailing party on claim four.
ONDA shall recover its costs for these appellate proceed-
ings.
AFFIRMED in part, REVERSED in part, and
REMANDED.