                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 JOHN DAVIS,

                           Plaintiff,

                      v.                            Civil Action 88-00130 (HHK)

 DEPARTMENT OF JUSTICE,

                           Defendant.




                            MEMORANDUM OPINION AND ORDER

       Before the court is John Davis’s motion for the attorney’s fees and costs he has incurred

in prosecuting this lawsuit brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. §

552, et seq. [#266]. This motion was referred to Magistrate Judge Alan Kay for his report and

recommendation pursuant to LCvR 72.3. The central question before the court is whether a

statutory provision, enacted into law while this case was still pending, and authorizing the award

of attorney’s fees in situations like those presented in this case, operates retroactively. The

Magistrate Judge concluded that it did and recommended that Davis’s motion be granted. Report

and Recommendation at 18 (“Rep. & Rec.”) [#276]. The Department of Justice (“DOJ”) objects

to the Rep. & Rec., and argues that the statutory provision does not apply retroactively and that

Davis cannot recover any attorney’s fees or costs. Upon consideration of Davis’s motion, the

DOJ’s opposition, the Rep. & Rec., the DOJ’s objection thereto, and Davis’s response to the

DOJ’s objection, the court concludes that the DOJ’s objection has merit, and that Davis’s motion

for attorney’s fees and costs must be denied.
                                       I. BACKGROUND

       Davis brought this case under FOIA seeking audiotapes recorded during a criminal

investigation from the Federal Bureau of Investigation (“FBI”). The facts and procedural history

of the case are thoroughly described in the Magistrate Judge’s Rep. & Rec. and will not be

repeated here. The court will, however, give a brief explanation of the history of the attorney’s

fees dispute.

       In 2000, Davis moved the court to award him attorney’s fees and costs. This court denied

the motion, holding that the Court of Appeals for the District of Columbia Circuit (“Court of

Appeals”) had foreclosed the award of attorney’s fees in this case in Oil, Chemical & Atomic

Workers Int’l Union, AFL-CIO v. Dep’t of Energy (“OCAW”). Order, Davis v. Dep’t of Justice,

Civ. No. 88-130 (D.D.C. July 23, 2002) [#230]. OCAW held that to be eligible for an award of

attorney’s fees under FOIA, a plaintiff must have achieved relief as a result of a court judgment

or court-ordered consent decree. OCAW, 288 F.3d 452, 456 (D.C. Cir. 2002). On appeal, the

Court of Appeals upheld this court’s order, citing OCAW. Davis v. Dep’t of Justice, 460 F.3d 92,

105 (D.C. Cir. 2006). While Davis had received 158 tapes from the FBI, a considerable amount

of relief, the Court of Appeals concluded that “none were produced as the result of a judgment on

the merits or a court-ordered consent decree,” and therefore Davis could not receive attorney’s

fees. Id. at 105-06 (internal quotations omitted). As it had in OCAW, the Court of Appeals

rejected the proposition that Davis could be awarded attorney’s fees under a “catalyst theory,”

i.e., that he could receive attorney’s fees because the lawsuit brought about a voluntary change in

the defendant’s conduct. See id.




                                                 2
       In 2007, Congress passed the Open Government Act of 2007, which amended the

standard for determining whether a litigant is eligible for attorney’s fees under FOIA. See 5

U.S.C. § 552(a)(4)(E). This new provision authorizes the award of attorney’s fees in the case

where “the complainant has obtained relief through . . . a voluntary or unilateral change in

position by the agency, if the complainant’s claim is not insubstantial.” Id. Congress thus

codified the “catalyst theory” rejected in OCAW and Davis. Davis now seeks to revisit the issue

of attorney’s fees in light of this enactment.

                                          II. ANALYSIS

       The central question before the court is whether the provision of the Open Government

Act of 2007, authorizing attorney’s fees under the circumstances of this case, has retroactive

effect and thus applies to Davis’s request for attorney’s fees. In his Rep. & Rec., the Magistrate

Judge concluded that the provision has retroactive effect and recommended that the court award

Davis attorney’s fees. Rep. & Rec. at 8, 14. The DOJ strongly objects to this conclusion and

argues that principles of sovereign immunity bar the retroactive application of the attorney’s fees

provision. The DOJ is correct.

       The Magistrate Judge’s Rep. & Rec. acknowledged the traditional presumption against

applying statutes retroactively, but cited to the Supreme Court’s decisions in Bradley and

Landgraf for the proposition that this presumption does not apply to attorney’s fees. Rep. & Rec.

at 6-8. In Bradley, the Supreme Court addressed whether plaintiffs in a desegregation action

were entitled to attorney’s fees when the statute authorizing those fees was enacted after the case

was submitted to the appeals court. Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 698-99

(1974). The Court based its holding “on the principle that a court is to apply the law in effect at


                                                 3
the time it renders its decision, unless doing so would result in manifest injustice or there is

statutory direction or legislative history to the contrary,” and determined that the attorney’s fees

provision was retroactive. Id. at 711. Two decades later, in Landgraf, the Court recognized the

tension between the traditional presumption against retroactivity and Bradley, but held that fee

shifting statutes do not resemble the types of cases in which the traditional presumption against

retroactivity has been invoked because “[a]ttorney’s fee determinations . . . are collateral to the

main cause of action and uniquely separable from the cause of action to be proved at trial.”

Landgraf v. USI Film Prods., 511 U.S. 255, 277 (1994) (internal quotations omitted). The

Magistrate Judge also cited Cuneo v. Rumsfeld, 553 F.2d 1360, 1367 (D.C. Cir. 1977), overruled

on other grounds, which held that the FOIA provision authorizing attorney’s fees enacted in

1974 could be applied to an action that was commenced in 1967 but terminated after the statute’s

effective date. Rep. & Rec. at 8. On the basis of these precedents, the Magistrate Judge

concluded that attorney’s fees provisions, such as the newly enacted FOIA provision, were

retroactive and that Davis was eligible for attorney’s fees. Id.

       The DOJ objects to the Magistrate Judge’s conclusion, arguing that applying the statute

retroactively in this case is contrary to basic principles of sovereign immunity. Instead, the DOJ

urges the court to apply the rule of strict construction under which any doubts about the scope of

a waiver of sovereign immunity must be resolved in favor of the narrower governmental liability,

and thus conclude that the provision is not retroactive. The DOJ cites Brown, in which the Court

of Appeals concluded that an amendment to the Civil Rights Act allowing the recovery of

interest on attorney’s fees should not be applied retroactively because waivers of sovereign

immunity are to be strictly construed. See Brown v. Sec’y of Army, 78 F.3d 645, 647 (D.C. Cir.


                                                  4
1996). The Court of Appeals in Brown, according to the DOJ, distinguished Bradley because

Bradley did not concern sovereign immunity. Davis rejoins that the DOJ’s argument is

undermined by Cuneo, in which the Court of Appeals applied attorney’s fees amendments to

FOIA retroactively. Cuneo, according to Davis, is clear and direct precedent that FOIA

attorney’s fees amendments waive sovereign immunity and apply retroactively. Brown, Davis

argues, is of no assistance to the DOJ because the Civil Rights Act of 1991 amendments at issue

in that case involved changes to the substantive law, such as providing for damages and jury

trials, and not merely procedural matters.

        The court concludes that Brown dictates the outcome in this case. In Brown, the Court of

Appeals addressed head on the question of how to resolve the tension between (1) the Bradley

rule that the court should apply the law in effect at the time it renders its decision and (2) the

traditional presumption against retroactivity, in the case where the United States’ sovereign

immunity is at issue. Brown, 78 F.3d at 650-61 (“As they relate to the question of whether a

statute is retroactive, then, it would seem that the Bradley presumption and the rule of strict

construction are antipodal.”). In that case, the question was whether an amendment to Title VII

that allowed the award of interest on attorney’s fees and costs was retroactive. Id. at 647. The

Court of Appeals held that “[i]n the special case . . . in which the newly enacted statute is a

wavier of sovereign immunity, the rule of strict construction requires . . . the statute . . . to be

construed no more broadly than is required by its terms.” Id. at 651. The Court of Appeals

distinguished Bradley, concluding that “[t]he statute at issue in Bradley, however, was not a

waiver of the sovereign immunity of the United States . . . . As a result, the Supreme Court in

Bradley had no occasion to advert to the special principle of statutory construction that it had


                                                   5
previously made applicable to waivers of sovereign immunity.” Id. at 649; see also id. at 651

(“Bradley was readily distinguishable: the United States was not the defendant in that case.”)

(internal quotation omitted). Thus, the Court of Appeals concluded that where the sovereign

immunity of the United States is at issue, the rule of strict construction trumps the Bradley rule.

       Davis argues that instead of Brown, the court should look to Cuneo, which held that a

FOIA attorney’s fee provision applied retroactively despite the fact that the United States was the

defendant. The court acknowledges that the holding of Cuneo appears to be in tension with

Brown. The Court of Appeals, however, distinguished Cuneo in Brown, explaining Cuneo as

follows: the “legislative history showed that Congress intended that [the] existing body of law

governing attorney’s fees be used to determine whether [an] award could be made against [the]

Government.” Id. at 652. The court concludes that to the extent that Cuneo would lead it to

reach a different holding, this is foreclosed by Brown, which considered Cuneo and necessarily

determined that Cuneo did not stand for the proposition that attorney’s fees provisions are

retroactive in cases where the government is the defendant absent a showing of Congressional

intent. Moreover, Davis’s suggestion that the amendment in Brown changed the law

substantively, and so Brown is inapplicable to this case, is belied by Brown, in which the Court

of Appeals considered only the issue of the retroactivity of interest on attorney’s fees. See

Brown, 78 F.3d at 647.

                                       III. CONCLUSION

       For the foregoing reasons, it is this 24th day of March 2009, hereby

       ORDERED that Davis’s motion for attorney’s fees [# 266] is DENIED.

                                                              Henry H. Kennedy, Jr.
                                                              United States District Judge

                                                 6
