                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA




DAVID TALBOT, et al.,                     )
                                          )
             Plaintiffs,                  )
                                          )
      v.                                  )    Civil Action No. 07-277 (RJL)
                                          )
CENTRAL INTELLIGENCE                      )
AGENCY, et aI.,                           )
                                          )
             Defendants.                  )


                                       .f--
                            MEMORANDUM OPINION
                           (September " ,2009) [# 43]

      Plaintiffs Jefferson Morley ("Morley") and David Talbot ("Talbot") filed

this lawsuit against the Central Intelligence Agency ("CIA") and the Department

of State ("State Department") seeking information about certain former CIA

agents under the Freedom of Information Act ("FOIA"). Plaintiffs now move the

Court to dismiss the action and award costs in the amount of$379.98. For the

following reasons, plaintiffs' Motion for Voluntary Dismissal is GRANTED and

plaintiffs' Motion for Costs is DENIED.

                                BACKGROUND

      Morley, a news editor and author, and Talbot, a journalist and founder of

Salon.com, were investigating connections between CIA operatives and the

assassinations of President John F. Kennedy and Senator Robert F. Kennedy.
(Am. Compl.    ~~   2-3,9-12, 15,26.) To that end, both plaintiffs filed FOIA

requests-Talbot with the CIA and Morley with the State Department-seeking

information about certain CIA agents.

        On September 23, 2008, this Court issued a Memorandum Opinion and

Final Order granting the State Department's motion for summary judgment and

dismissing Morley's action. Talbot v. CIA, 578 F. Supp. 2d 24 (D.D.C. 2008).

Morley's action was dismissed because the State Department properly asserted a

"Glomar response," whereby it refused to disclose the existence or non-existence

of some of the records Morley sought because to do so might reveal intelligence

sources and methods. Id. at 27-28.

        Shortly thereafter, on December 17, 2008, the CIA moved for summary

judgment against Talbot. On January 2,2009, Talbot sought an extension of

time to oppose the CIA's summary judgment motion. On January 16 t \ however,

Talbot and Morley moved instead for voluntary dismissal with an award of costs

in the amount of $378.98. The CIA and State Department agree that the action

should be dismissed, but they oppose the award of any costs to the plaintiffs.

                                   DISCUSSION

       Plaintiffs argue that they are entitled to costs other than attorney's fees

pursuant to Rule 54(d)(l) of the Federal Rules of Civil Procedure. Rule 54(d)(l)

states, in relevant part:

         Unless a federal statute, these rules, or a court order
         provides otherwise, costs-other than attorney's fees-
         should be allowed to the prevailing party. But costs


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         against the United States, its officers, and its agencies may
         be imposed only to the extent allowed by law.


Fed. R. Civ. P. 54(d)(1) (emphasis added). Because the Rule explicitly limits

awards against agencies of the United States to only those allowed by law, this

Court must determine whether applicable law-in this case, the FOIA-allows

plaintiffs to recover costs in this case. It does not!

       In December 2007, as part of the OPEN Government Act of2007,

Congress amended the FOrA's provisions on eligibility to recover fees and costs.

The Act reinstated the "catalyst theory" for determining whether a plaintiff was a

"prevailing party" and thus eligible to be awarded costs. See Judicial Watch v.

Federal Bureau of Investigation, 522 F .3d 364, 370 (D.C. Cir. 2008). Under the

reinstated "catalyst theory," 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."

Id. (quoting 5 U.S.C. § 552(a)( 4)(E)(ii)).

       At the time Talbot and Morley filed this suit in February, 2007, however,

there was a more restrictive standard for awarding attorney's fees ("the old

standard") in place in our Circuit. Indeed, unlike the "catalyst theory," plaintiffs

could not "prevail" unless they had "'been awarded some relief by [a] court,'

either in a judgment on the merits or in a court-ordered consent decree." Oil,

Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452,456-57


                                          3
(D.C. Cir. 2002) ("OCAW") (quoting Buckhannon Board & Care Home, Inc. v.

West Virginia Department 0/ Health & Human Resources, 532 U.S. 598,603

(2001)).

       Until recently, it was unclear in our Circuit whether the less restrictive

"catalyst theory" would apply retroactively to cases like Talbot and Morley's that

were pending when the OPEN Government Act went into effect. See, e.g., Short

v. United States Army Corps a/Engineers, 613 F. Supp. 2d 103,107 (noting the

split in this District as to the issue of retroactivity). That issue was resolved,

however, this past June when our Circuit Court held it was not retroactive. See

Summers v. Dep't 0/ Justice, 569 F.3d 500, 502 (D.C. Cir. 2009). Accordingly,

the only question this Court must decide is whether Talbot and Morley are

eligible to be awarded costs under the old standard. They are not.

       As noted above, Talbot and Morley are eligible for costs under the old

standard if they "substantially prevailed" by being awarded a judgment on the

merits or via a consent decree. See id. at 505. Not only did Morley not obtain

any favorable relief from this Court, he actually lost a judgment on the merits

when the Court granted the State Department's motion to dismiss his action.

Talbot, 578 F. Supp. 2d 24. And as for Talbot, he filed the instant motion for

voluntary dismissal without ever obtaining a judgment, or consent decree, in his

favor. Therefore, neither plaintiff is eligible to receive the costs they seek under

the old standard.




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      Thus for all these reasons, plaintiffs' Motion for Voluntary Dismissal is

GRANTED and plaintiffs' Motion for Costs is DENIED. An appropriate order

will issue with this Memorandum Opinion.
                                                                ,
                                                      ~~
                                                       United States District Judge




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