                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

 JUDICIAL WATCH, INC.,                              )
                                                    )
                      Plaintiff,                    )
                                                    )
               v.                                   )   Civil Case No. 00-2973 (RJL)
                                                    )
 FOOD & DRUG ADMINISTRATION,                        )
 et al.,                                            )
                                                    )
                      Defendants.                   )
                                             f.,.
                               MEMORANDUM ORDER
                                (March li, 2009) [# 100]

       Presently before the Court is Judicial Watch, Inc.'s ("plaintiff') motion for an

award of attorney's fees and litigation expenses (hereinafter "fees and expenses") in this

action arising under the Freedom ofInformation Act ("FOIA"), 5 U.S.c. § 552. Because

I find that the provision of the statute on which plaintiff relies to support its motion does

not have retroactive effect, plaintiffs motion will be DENIED.

                                     BACKGROUND

       Plaintiff filed this lawsuit in December 2000 alleging that defendant Food & Drug

Administration ("FDA") had failed to substantially respond to plaintiffs October 2000

FOIA request seeking records regarding the abortion drug mifepristone (a/kJa RU-486).

On July 18,2001, Chief Judge Royce C. Lamberth of this Court granted defendant's

motion to stay the proceedings and ordered defendant to produce all releasable

documents by October 15, 2001. Defendant complied and thereafter moved for summary

judgment, which this Court granted. Judicial Watch, Inc. v. Food & Drug Admin., 407 F.


                                               1
Supp. 2d 70, 73 (D.D.C. 2005). On appeal, the D.C. Circuit reversed in part, holding that

defendant had produced an inadequately detailed Vaughn index. Judicial Watch, Inc. v.

Food & Drug Admin., 449 F.3d 141, 144 (D.C. Cir. 2006). On remand, the FDA

produced a revised Vaughn index and a batch of records previously withheld. The parties

thereafter stipulated to entry of judgment for defendants, which this Court granted.

(Minute Order, Jan. 2S, 200S.) Plaintiff filed the present motion on March 6, 200S.

                                         DISCUSSION

        Plaintiff s motion is based on § 4( a) of the Open Government Act of 2007

("OGA"), Pub. L. No. 110-175, 121 Stat. 2524 (2007), which expanded the conditions

under which a FOIA plaintiff could recover fees and expenses to include cases where

"the complainant has obtained relief through ... (i) a judicial order ... or, (ii) a voluntary

or unilateral change in position by the agency, if the complainant's claim is not

insubstantial." Id § 4(a), 121 Stat. at 2525, codified at 5 U.S.C. § 552(a)(4)(E). Plaintiff

concedes that it is not eligible for fees and expenses based on the law as it existed before

the OGA's enactment.! (Pl.'s Reply at 4, n.1 [Dkt. #105]). Accordingly, whether

plaintiff is now eligible turns, at the outset, on whether § 4(a) of the OGA applies

retroactively? Notably, three other judges in this district have recently passed on this


        Before the OOA's enactment, a plaintiff could only be awarded fees and expenses under
FOIA if they had "been awarded some relief by a court, either in a judgment on the merits or in a
court-ordered consent decree." Oil, Chemical & Atomic Workers Intern. Union, AFL-CIO v.
Dep '( of Energy, 288 F.3d 452, 456-57 (D.C. Cir. 2002) (following Buckhannon Bd. & Care
Home, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598,603 (2001)) (internal
quotation marks omitted).
2       Even if the Court were to find that the changes set forth in § 4(a) of the OOA applied
retroactively, which it does not, the Court would still need to weigh the following four factors to
determine if an award is appropriate: "(1) the public benefit derived from the case; (2) the


                                                2
same Issue: Chief Judge Lamberth in Judicial Watch, Inc. v. Bureau of Land Mgmt., 562

F. Supp. 2d 159, 166 (D.D.C. 2008), held that the provision does apply retroactively,

while Judge Walton in NYC Apparel F.z.E. v. Us. Customs & Border Prot. Bureau, 563

F. Supp. 2d 217,227 (D.D.C. 2008), and Judge Kennedy in Davis v. Dep 't of Justice, No.

88-l30, 2009 WL 755192, at *1 (D.D.C. Mar. 24, 2009), both held that it does not. For

the following reasons, I concur with Judges Walton and Kennedy and hold that it does

not.

        The Supreme Court in Landgrafv. USI Film Prods., 511 U.S. 244, 273 (1994),

recognized the tension that exists between the "long embraced ... presumption against

statutory retroactivity" and the similarly long-embraced notion "that, in many situations,

a court should' apply the law in effect at the time it renders its decision. '" Id. (quoting

Bradley v. School Bd. ofRichmond, 416 U.S. 696, 711 (1974)). Thus, in ordinary

circumstances,

        in order to determine whether a statute has retroactive effect, the court first
        "must ask whether the new provision attaches new legal consequences to
        events completed before its enactment." [Landgraf, 511 U.S. at 269]. If
        not, then the court "is to apply the law in effect at 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." [Bradley, 416
        U.S. at 711].

Brown v. Sec'y of the Army, 78 F .3d 645, 648 (D.C. Cir. 1996). Here, plaintiff contends

that the attorney's fee provision in the OOA does not attach new legal consequences to

past events, but rather, is "collateral to the main cause of action." Landgraf, 511 U.S. at


commercial benefit to the plaintiff; (3) the nature of the plaintiffs interest in the records; and (4)
whether the Government had a reasonable basis for withholding requested information." Burka
v. Us. Dep 't of Health & Human Servs., 142 F.3d 1286, 1288 (D.C. Cir. 1998).


                                                  3
277 (citation omitted). Accordingly, given that "neither the [OGA] nor its legislative

history contain a clear indication as to whether the [OGA] should operate retroactively,"

(PI. 's Reply at 1-2), plaintiff contends that it is eligible for fees and expenses pursuant to

§ 4(a) of the OGA because it is the law in effect at the time of this Court's decision, (PI.'s

Mot. at 7-8 [Dkt. #100]). See, e.g., Bradley, 416 U.S. at 711,724 (plaintiffs in

desegregation action entitled to retroactive application of statute authorizing attorney's

fees despite lack of clear legislative intent).

       Defendant, conversely, contends that because the United States' sovereign

immunity is implicated, a stricter standard must be applied. (Def.'s Opp'n at 1O-1l.) I

agree. As Judge Walton explained, the provision at issue here "expands the scope of the

government's waiver of sovereign immunity by broadening the circumstances under

which a plaintiff in a FOIA case can recover attorney's fees." NYC Apparel F.z.E., 563

F. Supp. 2d at 227 (citing In re Jordan, 45 F.2d 1574, 1576 (D.C. Cir. 1984)). As a

general matter, courts must construe statutes waiving sovereign immunity strictly, and

such a waiver "is to be read no more broadly than its terms require." Brown, 78 F .3d at

649. In Brown, our Circuit Court expressly distinguished the "play-it-as-it-lies" principle

of retroactivity for "collateral" matters set forth in Bradley, and affirmed in Landgraf,

noting that the United States' sovereign immunity was not implicated in Bradley. Id. at

649, 651. Our Circuit Court then concluded that when sovereign immunity is implicated,

as it is here, "the rule of strict construction displaces the Bradley analysis." Id. at 654

(holding that provision of Civil Rights Act of 1991 awarding interest on attorney's fees

and costs awarded under Title VII did not apply retroactively against the U.S. Army for


                                                  4
want of specific indication that Congress intended retroactive effect); see also Trout v.

Sec yo/the Army, 317 F.3d 286,289-90 (D.C. Cir. 2003). Like Judge Kennedy, I

conclude that Brown dictates the outcome here. Davis, 2009 WL 755192, *3. As

plaintiff concedes, Congress has provided no clear indication that § 4(a) of the OGA

should operate retroactively. (Pl.'s Reply at 1-2.) Accordingly, because the Court must

construe waivers of sovereign immunity strictly, the Court holds that § 4(a) of the OGA,

as codified at 5 U.S.C. § 552(a)(4)(E), does not apply retroactively to authorize an award

of fees and expenses for plaintiff in this case. Therefore, it is hereby

       ORDERED that plaintiffs Verified Motion for an Award of Attorney's Fees and

Litigation Expenses [Dkt. #100] is DENIED.

       SO ORDERED.




                                                  ~
                                                  RICHARD        EON
                                                  United States District Judge




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