MEMORANDUM OPINION
N.Y.C. Aрparel F.Z.E. initiated this civil lawsuit on December 3, 2004, seeking to compel the disclosure of certain records requested from the United States Customs and Border Protection Bureau pursuant to the Freedom of Information Act, 5 U.S.C. §§ 552-552b (2000) (the “FOIA”). Currently before the Court is the Plaintiffs Motion for an Award of Attorney Fees
I. Background
The Court has previously described the facts underlying this case in some detail in separate memorandum opinions,
see generally NYC Apparel FZE v. U.S. Customs and Border Prot.,
No. Civ. A. 04-2105(RBW),
After this action was initiated, the FOIA Appeals Officer (the “Appeals Officer”) issued her decision in a letter dated February 23, 2005.
Id.
at 83. In thаt letter, the Appeals Officer determined that thirty-five of the eighty-four pages discovered by the defendant should be released to the plaintiff, that nineteen pages were properly withheld by the defendant, and that the remaining thirty pages were duplicates of the pages subject to disclosure or properly withheld.
Id.
In response to the Appeals Officer’s decision, the parties filed cross-motions for summary judgment with respect to the adequacy of the defendant’s search for responsive documents and with respect to whether the documents withheld by the dеfendant were exempt from disclosure under the FOIA.
Id.
at 83-84. In an unpublished memorandum opinion issued on January 23, 2006, this Court concluded that neither party was entitled to summary judgment based on the record before it, but that the defendant could remedy its evidentiary deficiencies within thirty days of the order executing the Court’s memorandum opinion.
NYC Apparel I,
As permitted by the Court’s memorandum opinion and order, the defendant renewed its search for documents responsive to the plaintiffs FOIA request.
NYC Apparel II,
The plaintiff filed its motion for attorney’s fees and costs on January 31, 2008. In support of its motion, the plaintiff argues that (1) it is entitled to attorney’s fees and costs because the Court’s NYC Apparel I decision and accompanying order led to the production of five pages of documents by the defendant, and because the relevant factors used to determine whether a prevailing party is entitled to an award favor the plaintiff, Pl.’s Mot. at 3-8, and that (2) the fees requested by the plaintiff are reasonable, id. at 8. The defendant contests both of these assertions in its opposition, Def.’s Opp’n at 7-19, and further argues that the comparatively more lenient standard for a plaintiff to succeed on its request for attorney’s fees under the attorney fee provision in the FOIA as amended on December 31, 2007, 5 U.S.C. § 552(a)(4)(E)® (2000), should not apply to the plaintiffs request in this case because the Court granted the defendant’s motion for summary judgment prior to that time, Def.’s Opp’n at 3-6. The plaintiff counters that the amendment made to the fee-shifting provision of the FOIA only codified pre-existing law, Pl.’s Reply at 2-6, and notes that the Court did not resolve its motion for reconsideration until after the amendment to the provision went into effect, id. at 3.
II. Standard of Review
Under the FOIA, a court “may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)®. To recover such fees, a party must demonstrate that (1) it has substantially prevailed in the litigation and is therefore “eligible” for the award, and (2) it is “entitled” to fees based on the trial court’s assessment of four criteria: (1) the public benefit derived from the case, (2) the commercial benefit to the plaintiff, (3) the nаture of the plaintiffs interest in the records, and (4) the reasonableness of the agency’s withholding.
Tax Analysts v. U.S. Dep’t of Justice,
III. Legal Analysis
Based upon the positions framed by the parties in their memoranda of law, the issues before the Court are (1) whether § 4 of the OPEN Government Act of 2007, Pub.L. 110-175, 121 Stat. 2524 (2007) (the “OGA”), which exрanded the conditions under which a plaintiff could recover attorney’s fees under § 552(a)(4)(E), applies retroactively to the plaintiffs fee-shifting request, (2) whether the plaintiff has “substantially prevailed” in its lawsuit, and therefore is eligible for a fee award under the amended statute, and (3) whether the plaintiff is “entitled” to attorney’s fees and costs under the four criteria set forth by the District of Columbia Circuit in Tax Analysts. Because the Court concludes that § 4 of the OGA cannot be applied retroactively to the circumstances of this case, it need not address the latter two issues in dispute. It will therеfore confine its analysis to the issue of retroac-tivity.
The plaintiffs entire motion takes as its premise the applicability of § 552(a)(4)(E)
(a) IN GENERAL. — Section 552(a)(4)(E) of title 5, United States Code, is amended—
(1) by inserting “(i)” after “(E)”; and (2) by adding at the end of the following:
(ii) For purposes of this subpara-graph, a complainant 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 pоsition by the agency, if the complainant’s claims is not insubstantial.
OGA § 4(a),
The language added by the OGA, particularly the language found in sub-part (ii)(II) of the amended provision, essentially codifies the so-called “catalyst theory” for determining a fee request against the United States, under which a plaintiff is deemed to have “substantially prevailed” for purposes of § 552(a)(4)(E) if the “litigation substantially caused the requested records to be released.”
Chesapeake Bay Found. v. Dep’t of Agric.,
The sustainability of the plaintiffs fee-shifting request therefore turns in the first instance on the applicability of § 4 of the OGA to this case. If the newly-added statutory provision applies, then the plaintiff could conceivably prevail оn its request based on the defendant’s decision to renew its search for responsive documents in the wake of the Court’s decision in
NYC Apparel I.
If the provision does not apply, then the plaintiffs motion must fail because there was no judgment or consent
"[T]he presumption against retroactive legislation is deeply rooted in [this country's] jurisprudence, and embodies a legal doctrine centuries older than [the] Republic." Landgraf v. USI Film Prods.,
[T]he court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect[;] i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.
Landgraf,
“Accordingly, the first step in determining whether a statute has an impermissible retroactive effect is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively.”
St. Cyr,
“[D]eciding when a statute operates ‘retroactively’ is not always a simple or mechanical task.”
Landgraf,
A statute does not operate “retrospectively” merely because it is applied in a case arising from conduct antedating the statute’s enactment.... Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates “retroactively” comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of conneсtion between the operation of the new rule and a relevant past event.
Id.
at 269-70,
The plaintiff argues that § 4 of the OGA does not have any retroactive effect on the substantive rights of the defendant because the statute “affects only attorney’s fee awards[,] which are collateral to the main cause of action.” Pl.’s Reply at 5. Citing
Bradley v. School Board of City of Richmond,
The Court finds this argument unpersuasive. In
Bradley,
the plaintiffs in a school desegregation case included a request for “a significant award of attorneys’ fees” in a motion seeking injunctive relief in light of contemporary Supreme Court precedent concerning school desegregation.
Bradley,
The Supreme Court reversed the Fourth Circuit’s decision.
Id.
at 724,
Contrary to the plaintiffs cоntentions, the key determinant for the Supreme Court in
Bradley
was not the “collateral” nature of attorney fee awards. Rather, the decision turned in large part on the lack of any prejudice to the substantive rights of the defendant, coupled with the fact that the defendant was already on notice that it might have to pay attorneys’ fees before Congress passed the Education Amendments. As the Supreme Court observed in
Landgraf,
“[i]n light of the prior availability of a fee award [ ] and the likelihood that fees would be assessed under pre-existing theories, [the
Bradley
Court] concluded that the new fee statute simply did not impose an additional or unforeseeable obligation upon the school board.”
Landgraf,
The basis for the plaintiffs argument is therefore not to be found in
Bradley
at all, but rather appears to arise from a passage in
Landgraf
where the Supreme Court noted that the attorney fee provision in
Bradley
“did not resemble the cases in which [the Court] ha[d] invoked the presumption against statutory retroactivity,” in part because “[attorney’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
Martin
exemplifies this point. That case involved a dispute over thе temporal scope of an attorney fee provision enacted after the merits of the litigation generating the fee dispute had concluded. Congress had passed legislation — specifically, § 803(d)(3) of the Prison Litigation Reform Act of 1995, Pub.L. 104-134,110 Stat. 1321 (1996) (the “PLRA”) — that limited
Although it reversed the Sixth Circuit’s ruling with respect to the latter conclusion,
id.
at 360,
The Supreme Court also explicitly rejected the same argument advanced by the plaintiff in this case, i.e., that statutory provisions involving attorney fee awards are “collateral” to the main litigation and therefore do not have retroactive effect. The Court’s disposition of the argument warrants quotation in full:
Petitioners ... contend that the application of a new attorney’s fee provision is “ ‘unquestionably proper,’ ” Brief for Petitioners 24 (quoting Landgraf, [511 U.S.] at 273, 114 S.Ct. [at] 1483), because fees questions “are incidental to, and independent from, the underlying substantive cause of action.” They do not, in other words, change the substantive obligations of the parties because they are “collateral to the main cause of action.” Brief for Petitioners 24-25 (quoting Landgraf, 511 U.S.[] at 277, 114 S.Ct. [at] 1483) (internal quotation marks omitted). Attaching the label “collateral” to attоrney’s fees questions does not advance the retroactivity inquiry, however. While it may be possible to generalize about types of rules that ordinarily will not raise retroactivity concerns, ... these generalizations donot end the inquiry_When determining whether a new statute operates retroactively, it is not enough to attach a label (e.g., “procedural,” “collateral”) to the statute; we must ask whether the statute operates retroactively.
Martin,
The Supreme Court went on to distinguish the case before it from the situation in Bradley:
In Bradley, the [district [c]ourt had awarded attorney’s fees, based on general equitable principles, to a group of parents who had prevailed in their suit seeking the desegregation of the Richmond schools. While the case was pending on appeal, Congress passed a statute specifically authorizing the award of attorney’s fees for prevailing parties in school desegregation cases. The Court of Appeals held that the new statute could not authorize fee awards for work performed before the effective date of the new law, but we reversed, holding that the fee award in that case wаs proper. Because attorney’s fees were available, albeit under different principles, before passage of the statute, and because the District Court had in fact already awarded fees invoking these different principles, there was no manifest injustice in allowing the fee statute to apply in that case.... In this case, by contrast, from the beginning of these suits, the parties have proceeded on the assumption that 42 U.S.C. § 1988 would govern. The PLRA was not passed until well after respondents had been declared prevailing parties and thus entitled to attornеy’s fees. To impose the new standards now, for work performed before the PLRA became effective, would upset the reasonable expectation of the parties.
Martin,
Applying the reasoning set out in
Martin
to this case, it is clear that § 4 of the OGA would “have a retroactive effect,”
id.
at 358,
Because Congress did not specify whether § 4 of the OGA should apply retroactively, and because the statute, if applied in such a fashion, would retroactively affect the substantive rights of the defendant, the “traditional presumption” against retroactivity applies,
Landgraf,
The plaintiffs remaining arguments are even less colorable. It suggests that § 4 of the OGA is merely a clarification of preexisting law based on Congress’s “con-cernid] that the holding in Buckhannon could be extended to FOIA cases.” Pl.’s Mem. at 6. However, the reality is that the District of Columbia Circuit had already extended Buckhannon into the FOIA arena in OCAW by the time thаt the OGA went into effect and that the passage of the statute did not so much clarify the operative law in this Circuit as overturn it. And while the plaintiff correctly points out that its motion for reconsideration was still pending at the time of the OGA’s enactment, it was the defendant’s voluntary decision to renew its search for documents responsive to the plaintiffs FOIA request, not the plaintiffs motion for reconsideration, that led to the production of the five documents that serve as the basis for the plaintiffs attorney fee request. Indeed, as the Court noted in its Reconsideration Order, the plaintiffs motion for reconsideration was “utterly frivolous” and did not advance its cause in the slightest. Reconsideration Order at 3.
IV. Conclusion
“Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and conform their conduct accordingly.”
Landgraf,
Notes
. An order follows denying the plaintiff's motion.