Appeal from the United States District Court for the District of Oregon Garr M. King, District Judge, Presiding D.C. No. CV-05-00210-KI.
The opinion of the court was delivered by: Thompson, Senior Circuit Judge
Argued and Submitted October 21, 2008 -- Portland, Oregon.
Before: David R. Thompson, A. Wallace Tashima and Milan D. Smith, Jr., Circuit Judges.
The Department of Commerce, National Oceanic and Atmospheric Administration Fisheries ("NOAA Fisheries") and National Marine Fisheries Services (collectively, "Commerce") appeal the district court's order granting attorney fees and costs under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), in favor of Oregon Natural Desert Association ("ONDA"). The district court issued the attorney fees order after it entered judgment in ONDA's action alleging unlawful withholding of requested documents and use of unlawful processing regulations in violation of the FOIA and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA").
We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for recalculation of the attorney fee award. On two of its claims, ONDA was not a substantially prevailing party under Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't. of Health & Human Res., 532 U.S. 598 (2001). As to those claims, the defendants provided the documents ONDA requested before the district court ordered that they be turned over. ONDA was successful in obtaining the documents, but it succeeded by use of the catalyst theory of recovery, and not by either a judgment on the merits or a court-ordered consent decree as required by Buck-hannon. Id. at 604.
The Openness Promotes Effectiveness in our National Government Act (the "2007 Amendments" to the FOIA) authorizes the payment of attorney fees when documents such as those sought by ONDA are recovered using a catalyst theory, but those Amendments were signed into law after the district court entered its attorney fees order, and they do not apply retroactively to this case. ONDA is not eligible for the recovery of attorney fees on its first two claims. Nor is it eligible for attorney fees on its third claim, which it lost. But, it is eligible for an award of attorney fees on its fourth claim for its successful challenge to the cut-off regulation.*fn2
On March 11, 2004, ONDA submitted a FOIA request to NOAA Fisheries, a component of an agency within the Department of Commerce. ONDA requested documents regarding the effects of livestock grazing on Upper and Middle Columbia River Steelhead from "2003 to the present." NOAA Fisheries obtained clarification of the request and then determined the documents responsive to it were those within its possession and control as of April 30, 2004, pursuant to the cut-off regulation.*fn3 15 C.F.R. § 4.5(a) (prior to amendment). NOAA Fisheries referred the request to the agencies that had the primary interest in the documents for a direct response to ONDA. See 15 C.F.R. § 4.5(b).
ONDA filed a second FOIA request on January 7, 2005 seeking the same information as the first request, but for the period from "March 2004 to the present." NOAA Fisheries limited its search to documents in its possession and control before January 10, 2005, the date it received the second request, pursuant to the cut-off regulation. See 15 C.F.R. § 4.5(a) (prior to amendment).
On February 14, 2005, ONDA filed this lawsuit under the FOIA and the APA to compel the production of the documents it had requested on March 11, 2004 and January 7, 2005. ONDA also challenged Commerce's use of the referral regulation and cut-off regulation as violations of the FOIA. ONDA sought both declaratory and injunctive relief pursuant to the FOIA and the APA.
Within two months of the initiation of the lawsuit, NOAA Fisheries and other agencies to which ONDA's request for documents had been referred completed the production on both FOIA requests. Commerce then moved to dismiss this action, arguing the claims had been rendered moot by production of the requested documents. ONDA opposed the motion to dismiss and cross-moved for summary judgment, arguing it was entitled to declaratory relief on Commerce's pattern and practice of delay, and injunctive relief on its claims that the processing regulations violated the FOIA.
The district court determined that NOAA Fisheries's untimely response violated the FOIA, but that the referral regulation complied with the FOIA. After the parties submitted additional briefing, the district court granted ONDA summary judgment on its challenge to the cut-off regulation and enjoined Commerce from relying on it when responding to future FOIA requests. The cut-off regulation was amended thereafter to define responsive documents as those within the possession and control of the agency as of the date it begins its search for them. 15 C.F.R. § 4.5(a).
ONDA then moved for attorney fees and costs under the FOIA, or in the alternative, under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) ("EAJA"). The district court awarded ONDA attorney fees and costs of ...