The FOIA blog

Another Court Grants Attorney Fees Retroactively Under New Law

Judge Royce Lamberth of the District Court for the District of Columbia has granted attorney fees retroactively to Judicial Watch under a lawsuit against the Bureau of Land Management.  During the pendency of the lawsuit, but not because of a decison of the Court, Judicial Watch received documents from the government.  Satisfied with the documents, the parties settled the lawsuit except for the issue of attorney fees and costs. 

The Court found that under the Open Government Act of 2007 (2007 FOIA Amendments) attorney fees could be granted retroactively to a plaintiff.  This meant that a plaintiff basically only needed to show that the lawsuit served as a catalyst for the release of documents--not that it had to show that an opinion of the court resulted in the release of documents (which was the standard for FOIA attorney fees prior to the 2007 FOIA Amendments.  As Judicial Watch received the documents after it filed suit against the defendant (after the defendant failed to release the documents on a number of dates it had promised a release by), the Court found that under the law, the plaintiff had  substantially prevailed.  The Court then found that Judicial Watch was both eligible and entitled to attorney fees.

This is an important decision as it is the first decision by a judge for the District Court for the District of Columbia, which is the court that handles approximately half of all FOIA lawsuits.  Other attorney fee applications seeking retroactivity are in the pipeline, so it will be interesting what the final outcome of this issue is.     

Court Finds Judicial Watch Eligible for Attorney Fees

The United States Court of Appeals for the District of Columbia has found that Judicial Watch is eligible for attorney fees in its lawsuit against the government for video tapes concerning the September 11, 2001 terrorist attack on the pentagon.  The Court remanded the case to the district court to now determine if Judicial Watch is actually entitled to attorney fees.

The reason the court found for Judicial Watch is that the government and Judicial Watch entered into a stipulated order that the district court signed, ordering the release of the tapes by a certain date.  The FOIA attorney fee eligibility standard at the time of the order was Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Services, 532 U.S. 598 (2001) which requires some type of relief to be ordered by the court for their to be entitlement of attorney fees. As this was a valid court order, the D.C. Court of Appeals found that under FOIA attorney fee law in effect at the time of the order Judicial Watch was indeed eligible for attorney fees.

Interestingly enough, I brought a lawsuit on behalf of a different requester for the same videotapes a few years ago.  My lawsuit resulted in the release of the tapes without any type of stipulation from the Court and I never moved for attorney fees.

First Ruling on Attorney Fees Provision of OPEN Government Act of 2007

According to the Department of Justice, the first decision on whether the attorney fees provision of the OPEN Government Act of 2007 has been made by the District Court for the Western District of Missouri.  In this decision, the court held that the attorneys fee provision of the Act is not retroactive and did not take effect until December 31, 2007.  So under this finding (which is only binding in the Western District of Missouri but may be looked at by other district courts) any opinions, findings, or document releases that would make a plaintiff eligible to attorney fees would have had to come about after December 31, 2007 and not prior to that date.