D.C. Court of Appeals So Rules in Two Cases.
Two and a half years ago, Congress enacted the Open Government Act, making it easier for plaintiffs to recover attorney’s fees in Freedom of Information Act (FOIA) lawsuits. Prior to the new Act, only FOIA plaintiffs actually awarded relief could recover fees. However, the Open Government Act broadened recovery of fees to lawsuits that led to “a voluntary or unilateral change in position by the agency.”
However, which fee entitlement scheme applies to FOIA plaintiffs litigating before enactment of the Open Government Act?
The District of Columbia Court of Appeals apparently has answered that question recently in Judicial Watch v. Bureau of Land Management and John Davis v. U.S. Department of Justice. Judicial Watch had $3,605 in fees involved, while the Davis situation involved more than $112,000 in fees from litigation stretching back more than two decades. The federal appellate court, however, found that the broader fee entitlement from the Open Government Act did not apply to the two FOIA plaintiffs. Even when Congress intends to supersede case law, “its intent to reach conduct preceding the ‘corrective’ amendment must clearly appear.” In these instances, the broader fee entitlement could not be retroactively applied.
For more on these two decisions, see Brian Westley’s July 7, 2010 post entitled “Two victories for government in FOIA fee award disputes,” available for reading at the website for The Reporters Committee for Freedom of the Press.
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