Davis v. Department of Justice - Opposition

No. 06-1131

In the Supreme Court of the United States

JOHN DAVIS, PETITIONER

v.

UNITED STATES DEPARTMENT OF JUSTICE

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
LEONARD SCHAITMAN
MICHAEL E. ROBINSON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether a plaintiff may recover attorney's fees under the fee-shifting provision of the Freedom of Infor mation Act, 5 U.S.C. 552(a)(4)(E), pursuant to the "cata lyst theory" that this Court rejected in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001).

2. Whether petitioner is otherwise entitled to re cover attorney's fees under Buckhannon.

In the Supreme Court of the United States

No. 06-1131

JOHN DAVIS, PETITIONER

v.

UNITED STATES DEPARTMENT OF JUSTICE

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-25) is reported at 460 F.3d 92. The order of the district court (Pet. App. 26-27) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on August 22, 2006. A petition for rehearing was denied on November 13, 2006 (Pet. App. 30). The petition for a writ of certiorari was filed on February 12, 2007 (Mon day). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1986, petitioner submitted a request under the Freedom of Information Act (FOIA), 5 U.S.C. 552, to the Federal Bureau of Investigation (FBI), seeking all audiotapes recorded during BRILAB, a criminal investi gation of bribery and racketeering activities involving Louisiana politicians and labor unions in the late 1970s and early 1980s. Portions of those tapes were played at the trial of various individuals in 1981. After the FBI refused to release the tapes, petitioner filed suit against respondent under 5 U.S.C. 552(a)(4)(B), seeking a judi cial order compelling their release. Pet. App. 3-4.

2. The district court initially granted petitioner's request and ordered the release of the tapes. Pet. App. 3-4. It reasoned that, to the extent the tapes had been played in open court, they could not be withheld under FOIA, ibid., and that the government bore the burden of showing that the withheld tapes had not been played in open court. Id. at 4. The court of appeals reversed and remanded. 968 F.2d 1276 (D.C. Cir. 1992). It held that petitioner, and not the government, bore the bur den of production on the question whether the withheld tapes had been played in open court, and remanded to give petitioner the opportunity to make a showing on that issue. Id. at 1282.

3. On remand, petitioner produced various materials from the criminal trial record demonstrating which au diotapes had been played in open court; in response, the FBI voluntarily produced 157 of the 163 tapes that it had initially withheld (and stated that it would have re leased another tape, but could not find it). The FBI con tinued to withhold the remaining five tapes, citing FOIA Exemption 7(C), which permits an agency to withhold records that were compiled for law-enforcement pur poses but whose production "could reasonably be ex pected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. 552(b)(7)(C). The district court held that the FBI's withholding of those tapes was proper. Pet. App. 4. The court of appeals affirmed in part and remanded. No. 98-5080, 1998 WL 545422 (D.C. Cir. July 31, 1998). The court held that the government's efforts to find the missing tape were sufficient, but remanded for a determination whether "any of the five tapes with held in their entirety * * * contains material that can be segregated and disclosed without unwarrantably im pinging upon anyone's privacy." Id. at *1.

4. After the case was remanded to the district court, the FBI voluntarily produced one of the remaining five tapes, on the ground that the principal speaker on the tape had died. The FBI continued to withhold the other four tapes, averring in an affidavit that it could not de termine whether the speakers on those tapes were living or dead. The district court held that the FBI's withhold ing of those tapes was proper. Pet. App. 5. The court of appeals reversed and remanded. No. 00-5414, 2001 WL 1488882 (D.C. Cir. Oct. 17, 2001). The court held that the affidavit that the FBI had submitted to the district court was insufficient to allow that court to evaluate whether the FBI had made adequate efforts to deter mine whether the speakers on those tapes were living or dead, and remanded to allow the FBI to "document what sources it consulted." Id. at *1.

5. The FBI then filed two additional affidavits in the district court, identifying the steps it had taken to deter mine whether the speakers on the remaining tapes were living or dead. In the course of proceedings on remand, the district court denied petitioner's motion for attor ney's fees under FOIA's fee-shifting provision, 5 U.S.C. 552(a)(4)(E). Pet. App. 26-27. The district court ulti mately held that the FBI's efforts were adequate and granted summary judgment on petitioner's underlying FOIA claim to the FBI. Id. at 28-29.

6. The court of appeals affirmed in part, reversed in part, and remanded. Pet. App. 1-25. The court con cluded that the methods used by the FBI to determine whether the speakers on the remaining tapes were living or dead appeared to be insufficient, and remanded "to permit the agency an opportunity to evaluate the alter natives, and either to conduct a further search or to ex plain satisfactorily why it should not be required to do so." Id. at 22.

As is relevant here, however, the court of appeals agreed with the district court that petitioner was not entitled to attorney's fees. The fee-shifting provision of FOIA permits a district court to "assess against the United States reasonable attorney fees * * * reason ably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. 552(a)(4)(E). The court of appeals noted that, in Buck hannon Board & Care Home, Inc. v. West Virginia De partment of Health & Human Resources, 532 U.S. 598 (2001), this Court had held that, under fee-shifting stat utes that permitted courts to award fees to a "prevailing party," a plaintiff could not obtain fees pursuant to the "catalyst theory," whereby a plaintiff claims to be pre vailing because its lawsuit brought about a voluntary change in the defendant's conduct. Pet. App. 23. The court of appeals further noted that, in Oil, Chemical & Atomic Workers International Union v. Department of Energy, 288 F.3d 452 (D.C. Cir. 2002) (OCAW), it had applied the rule of Buckhannon to the fee-shifting provi sion of FOIA, on the ground that "the 'substantially pre vail[ed]' language in FOIA [is] the functional equivalent of the 'prevailing party' language" in the statutes interpreted in Buckhannon. Pet. App. 23-24 (second brac kets in original; quoting OCAW, 288 F.3d at 455-456). The court determined that petitioner could not other wise recover fees under Buckhannon because petitioner had not obtained any relief in the litigation as a result of a judgment or order, as Buckhannon requires. Id. at 24.

7. The court of appeals denied petitioner's petition for rehearing en banc without recorded dissent. Pet. App. 30.

ARGUMENT

Petitioner contends (Pet. 14-22) that the court of ap peals erred by holding that a plaintiff may not recover attorney's fees under the fee-shifting provision of the Freedom of Information Act, 5 U.S.C. 552(a)(4)(E), pur suant to the "catalyst theory." Petitioner further con tends (Pet. 22-26) that the court of appeals erred by holding that, even apart from the "catalyst theory," he was not entitled to recover fees. The court of appeals' decision was correct and does not conflict with any deci sion of this Court or of another court of appeals. Fur ther review is therefore unwarranted.

1. Petitioner first contends (Pet. 14-22) that this Court should grant review to determine whether a plain tiff may recover attorney's fees under FOIA pursuant to the "catalyst theory." That contention lacks merit.

a. Relying on its earlier decision in Oil, Chemical & Atomic Workers International Union v. Department of Energy, 288 F.3d 452 (D.C. Cir. 2002) (OCAW), the court of appeals correctly held that a plaintiff may not recover attorney's fees under FOIA pursuant to the "catalyst theory." In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), this Court held that, under fee-shifting statutes that permit courts to award fees to a "prevailing party," a plaintiff that achieved its desired result because its lawsuit brought about a volun tary change in the defendant's conduct is not entitled to recover fees on the theory that its lawsuit served as a "catalyst" for that result. Id. at 600. Instead, the Court held, a "prevailing party" means a party that had ob tained either an "enforceable judgment[] on the merits" or a "court-ordered consent decree[]." Id. at 604. Those forms of relief, the Court explained, embody the type of "'material alteration of the legal relationship of the par ties' necessary to permit the award of attorney's fees." Ibid. (citation omitted). In OCAW, the court of appeals applied the rule of Buckhannon to the fee-shifting provi sion of FOIA. 288 F.3d at 454-457.

Petitioner and his amici contend (Pet. 15-17; Public Citizen Br. 8-12) that the court of appeals erred in OCAW by applying Buckhannon because the fee-shift ing provision of FOIA is triggered where a plaintiff "has substantially prevailed," 5 U.S.C. 552(a)(4)(E), whereas the fee-shifting provisions at issue in Buckhannon re quire the plaintiff to be a "prevailing party." The court of appeals in OCAW, however, correctly concluded that "the 'substantially prevail[ed]' language in FOIA [is] the functional equivalent of the 'prevailing party' language" of the statutes interpreted in Buckhannon. OCAW, 288 F.3d at 455-456. As the court explained, "all must agree that a 'prevailing party' and a 'party who prevails' are synonymous"; thus, while "FOIA's addition of the modi fier 'substantially' might possibly be taken as limiting the category of 'prevailing parties,' * * * it cannot be taken as expanding the universe of parties eligible for a fee award." Id. at 455 (emphasis added). Where "a FOIA plaintiff * * * seek[s] thousands of documents but wind[s] up with a judgment providing only a handful of insignificant documents," therefore, such a plaintiff may not have "substantially prevailed," even if the plain tiff has "prevailed." Ibid. Moreover, as the court of ap peals noted, this Court has itself treated statutes using the "substantially prevailed" and "prevailing party" for mulations as "interchangeable." Ibid. In Buckhannon, the Court cited a long list of statutes using each formu lation (including the statute at issue here) before stating that it had "interpreted these fee-shifting statutes con sistently." 532 U.S. at 603 & n.4 (citing Marek v. Chesney, 473 U.S. 1, 43-51 (1988) (appendix to dissent ing opinion of Brennan, J.)). There is therefore no tex tual basis for concluding that a plaintiff that must show that it has "substantially prevailed" can avail itself of the "catalyst theory," when a plaintiff that need only show that it is a "prevailing party" cannot.

In support of his interpretation, petitioner heavily relies (Pet. 17-20) on the legislative history of FOIA's fee-shifting provision. Petitioner notes (Pet. 18) that Congress considered statutory language that specifically would have allowed for an award of attorney's fees only where the court had issued an injunction or order against the government, but ultimately adopted the "substantially prevailed" language instead. The court of appeals in OCAW, however, correctly rejected the iden tical argument, reasoning that the legislative history was "inconclusive" because "[n]one of the Committee reports mentions awarding fees in the absence of a judg ment." 288 F.3d at 456. The court further noted that "both the House and the Senate reports contain state ments suggesting that the FOIA provision was modeled after fee-shifting provisions allowing fees for a 'prevail ing party,' which further supports treating FOIA no differently than the statutes interpreted in Buck hannon." Ibid. Moreover, this Court rejected a similar argument in Buckhannon itself. The Court determined that the legislative history of another statute was "at best ambiguous as to the availability of the 'catalyst the ory' for awarding attorney's fees" and did not compel the conclusion that the "catalyst theory" was available, "[p]articularly in view of the 'American Rule' that attor ney's fees will not be awarded absent 'explicit statutory authority.'" 532 U.S. at 608 (citations omitted).

Petitioner and his amici also suggest (Pet. 20-22; Public Citizen Br. 6-8) that the purpose of the FOIA fee- shifting provision would be frustrated if a FOIA plaintiff were unable to obtain fees pursuant to the "catalyst the ory." Petitioner's policy arguments, however, are no different in kind from the policy arguments that this Court considered and rejected in Buckhannon. There, the Court expressed skepticism about the contentions that "the 'catalyst theory' is necessary to prevent defen dants from unilaterally mooting an action before judg ment in an effort to avoid an award of attorney's fees" and that "rejection of the 'catalyst theory' will deter plaintiffs with meritorious but expensive cases from bringing suit," on the ground that those contentions were "entirely speculative and unsupported by any em pirical evidence." Buckhannon, 532 U.S. at 608. The Court added that those contentions "discount[ed] the disincentive that the 'catalyst theory' may have upon a defendant's decision to voluntarily change its conduct, conduct that may not be illegal." Ibid. There is no justi fication for treating FOIA differently from other stat utes with fee-shifting provisions based on petitioner's similarly speculative assertion (Pet. 16) that the govern ment voluntarily produces documents, without being subject to a court order, "in many if not most [FOIA] cases."

b. In any event, further review is not warranted be cause the decision of the court of appeals in this case does not conflict with the decision of any other court of appeals. The only other court of appeals to have consid ered the issue since this Court's decision in Buckhannon has held that a plaintiff may not recover attorney's fees under the fee-shifting provision of FOIA pursuant to the "catalyst theory." See Union of Needletrades, Indus. & Textile Employees v. INS, 336 F.3d 200, 206-207 (2d Cir. 2003) (UNITE).1 Notably, that court, like the court in OCAW, concluded that the language of FOIA's fee-shift ing provisions and of the provisions at issue in Buck hannon was "substantially similar," id. at 207 (citation omitted), and rejected the arguments that the legislative history of, and policy considerations animating, FOIA supported the conclusion that a FOIA plaintiff should be able to take advantage of the "catalyst theory." Id. at 208-210.

Petitioner contends (Pet. 10-11) that this Court should nevertheless grant review because the court of appeals' decision conflicts with decisions of other courts of appeals that were issued before this Court's decision in Buckhannon. Notwithstanding his suggestion (Pet. 11) that "in most if not all circuits there are solid prece dents applying the 'catalyst theory' to FOIA cases," however, petitioner cites only two court of appeals cases so holding-and those cases were decided by the same two circuits that have since held, in the wake of the Court's decision in Buckhannon, that a FOIA plaintiff may not recover attorney's fees pursuant to the "cata lyst theory." See Pet. 11 (citing Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977), and Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 509 (2d Cir. 1976)). In each of their post-Buckhannon decisions, those courts cited their contrary pre-Buckhannon deci sions but concluded that, "[b]ecause Buckhannon con trols, the existing law of our circuit must give way." OCAW, 288 F.3d at 457; see UNITE, 336 F.3d at 210 (concluding that, while "one panel of this Court cannot overrule a prior decision of another panel," "an excep tion to this general rule arises where there has been an intervening Supreme Court decision that casts doubt on our controlling precedent"). And even if petitioner had cited any pre-Buckhannon decisions of other courts of appeals with which the decision of the court of appeals would appear to conflict, such an apparent conflict would not warrant the Court's review because it is unclear whether those courts of appeals would continue to apply the same rule in the wake of Buckhannon.

Petitioner suggests (Pet. 13-14) that, even in the ab sence of a circuit conflict, this Court should grant review because "the D.C. Circuit's rulings have a dominant im pact on FOIA law due to the fact that a particularly large number of FOIA decisions are brought in the Dis trict of Columbia." The question presented in this case, however, has already arisen in other courts since this Court's decision in Buckhannon, and will undoubtedly continue to do so-as the Second Circuit's decision in UNITE, and the decisions of various district courts cited by petitioner, see, e.g., Pet. 10, amply demonstrate. And while the Second Circuit in UNITE followed the D.C. Circuit's earlier decision in OCAW, see 336 F.3d at 205- 206, it did not defer to the D.C. Circuit's special exper tise in FOIA in doing so. There is therefore no compel ling reason in this case for this Court to deviate from its ordinary practice of awaiting a circuit conflict before granting plenary review.2

2. Petitioner also contends (Pet. 22-26) that the court of appeals erred by holding that, even apart from the "catalyst theory," he was not entitled to recover fees under Buckhannon. That fact-bound contention lacks merit and in any event does not warrant further review.

In Buckhannon, the Court held that a party must obtain either an "enforceable judgment[] on the merits" or a "court-ordered consent decree[]" in order to qualify as a prevailing party for purposes of fee-shifting. 532 U.S. at 604. As the court of appeals correctly held (Pet. 24), petitioner does not satisfy either of those prerequi sites because he has not obtained a judgment or court- ordered consent decree; instead, petitioner has obtained a series of remand orders from the court of appeals that merely leave open the possibility that he may ultimately prevail on the merits of the remaining portion of his un derlying FOIA claim (regarding the handful of audio tapes that the government has not voluntarily pro duced).

Petitioner cites no authority for the proposition that such remand orders are sufficient to render a party "prevailing" for fee-shifting purposes. Instead, peti tioner relies (Pet. 24) only on the D.C. Circuit's prior decision in Davy v. CIA, 456 F.3d 162 (2006). In Davy, however, the district court actually entered an order, pursuant to a stipulation by the parties, whereby the government agreed to produce responsive documents by a certain date. See id. at 163-164. The court of appeals held that the plaintiff was "awarded some relief on the merits of his claim," id. at 165, because the district court's order memorializing the stipulation was "func tionally a settlement agreement enforced through a con sent decree." Id. at 166. Whatever the merit of that holding, it is inapposite here. The remand orders at is sue in this case merely required the government to con duct further investigation (or make a further evidentiary showing). Those orders thus could not be said to award relief on the merits of petitioner's underlying claim, and fall well short of the "enforceable judgment[] on the merits" or "court-ordered consent decree[]" that Buck hannon requires.3

3. Finally, this case would constitute a poor vehicle for further review because it arises in an interlocutory posture. See Brotherhood of Locomotive Firemen v. Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per curiam); American Constr. Co. v. Jacksonville, Tampa & Key West Ry., 148 U.S. 372, 384 (1893). The interlocu tory posture of the case "of itself alone furnishe[s] suffi cient ground for the denial" of the petition. Hamilton- Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916); see also Virginia Military Inst. v. United States, 508 U.S. 946 (1993) (Scalia, J., respecting the denial of the petition). The court of appeals remanded to the dis trict court for further proceedings concerning the appli cability of FOIA Exemption 7(C) to the remaining audio tapes. Pet. App. 22. It remains possible, therefore, that petitioner will prevail on the merits of the remaining portion of his FOIA claim. If he does, petitioner will presumably renew his claim that he is entitled to fees under FOIA's fee-shifting provision. And if he does not prevail on the merits of his claim, petitioner can seek this Court's review on the question presented (and any other questions) in a subsequent petition once the dis trict court enters final judgment.

3. CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
LEONARD SCHAITMAN
MICHAEL E. ROBINSON
Attorneys

MAY 2007

1 See also Kasza v. Whitman, 325 F.3d 1178, 1180 (9th Cir. 2003) (construing similarly worded fee-shifting provision in Resource Con- servation and Recovery Act of 1976, 42 U.S.C. 6972(e)).

2 In addition, Congress is currently considering legislation that would amend FOIA to permit recovery of attorney's fees based on "a voluntary or unilateral change in position by the opposing party." See S. 849, 110th Cong., 1st Sess. § 4 (2007); H.R. 1309, 110th Cong., 1st Sess. § 4 (2007).

3 In Sole v. Wyner, No. 06-531 (argued Apr. 17, 2007), the Court is considering whether a party that obtains a preliminary injunction, but fails to secure any relief on the merits of its claim, can constitute a "prevailing party" for purposes of 42 U.S.C. 1988(b). This case need not be held pending the disposition of Sole, because a party that merely obtains a remand order of the type at issue here, unlike a party that obtains a preliminary injunction, does not secure any judicially ordered relief that it was initially seeking.