UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) NADA BAKOS, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-743 (RMC) ) CENTRAL INTELLIGENCE ) AGENCY, ) ) Defendant. ) __________________________________ )

MEMORANDUM OPINION

Nada Bakos, a former analyst for the Central Intelligence Agency (CIA), finished

a manuscript for a book about her life as a CIA operative in October 2015. “The Manuscript

reveals the inner workings of the Agency and the largely hidden world of intelligence gathering

post 9/11.” Compl. [Dkt. 1] ¶ 6. Pursuant to CIA policy, she submitted her manuscript to the

CIA Publication Review Board (Board) for redaction of classified material. Id. ¶¶ 5, 11-12.

Over the course of two years, the Board, in consultation with the Department of Defense (DoD)

and other interested agencies, evaluated that manuscript. Id. ¶ 7. In August 2017, the Board

notified Ms. Bakos that it had completed its review and that certain material in the manuscript

had to be removed prior to publication. Ex. 1, Board Review Letter (Aug. 2, 2017) [Dkt. 15-1] at

1. Ms. Bakos sought an in-person meeting to discuss the proposed redactions, but was informed

that while the CIA was willing, the other agencies did not meet with authors “as part of their

standard process.” Ex. A, Board Review Email (Dec. 12, 2017) [Dkt. 17-1] at 1. Apparently

frustrated with the process, Ms. Bakos filed suit in April 2018. See Compl.

In response, the CIA offered to convene a meeting with the relevant stakeholders,

all of whom were now willing to negotiate with Ms. Bakos. Mem. of P. & A. in Opp’n to Pl.’s 1 Mot. for Att’y’s Fees & Costs. (Opp’n) [Dkt. 17] at 3. This Court granted the CIA a series of

extensions to answer the Complaint so that the parties could resolve the issues on their own. See

06/06/2018 Min. Order; 09/06/2018 Min. Order; 09/27/2018 Min. Order. Accordingly, the

parties held meetings and exchanged drafts and by the end of September 2018 the government

determined that, subject to a few remaining redactions, Ms. Bakos’ re-writes had sufficiently

obscured any classified information in her manuscript. See Ex. 2, Board Review Letter (Sept. 7,

2018) [Dkt. 15-2]; Ex. 3, DoD Review Letter (Sept. 26, 2018) [Dkt. 15-3]; Ex. 4, Board Review

Letter (Sept. 27, 2018) [Dkt. 15-4]. Satisfied with the remaining redactions, and having reached

an amicable resolution, the parties filed a joint motion to excuse the CIA from answering the

Complaint and to set a briefing schedule for Ms. Bakos to file an application for attorney’s fees

under the Equal Access to Justice Act (EAJA),

(d)(1)(A). See Joint Mot. for

Briefing Schedule on Atty’s Fees & Costs (Joint Mot.) [Dkt. 13]. That briefing is now ripe. 1

I. LEGAL STANDARD

The American rule is that parties must bear their own attorney’s fees unless a

statute or contract explicitly authorizes fee-shifting. Select Milk Producers, Inc. v. Johanns,

(D.C. Cir. 2005). The EAJA is one such statute and provides that a court “shall

award to a prevailing party other than the United States fees and other expenses . . . unless the

court finds that the position of the United States was substantially justified or that special

circumstances make an award unjust.”

(d)(1)(A) (emphasis added).

In Buckhannon Board and Care Home, Inc. v. West Virginia Department of

Health and Human Resources,

(2001), the Supreme Court held that a party is only

1 See Pl.’s Mot. for Att’y Fees & Costs (Pl.’s Mot.) [Dkt. 15]; Opp’n; Pl.’s Reply in Supp. of Mot. for Att’y’s Fees & Costs [Dkt. 19].

2 a prevailing party if there has been a “material alteration of the legal relationship of the parties.”

at 604 (quoting Tex. State Teachers Ass’n v. Garland Indep. School Dist.,

, 792-

93 (1989)). Although Buckhannon was decided in the context of the Fair Housing Act and

Americans with Disabilities Act, the D.C. Circuit has relied on Buckhannon to articulate a

generally applicable three-part test for determining whether a party is a prevailing party for fee-

shifting purposes: “(1) there must be a ‘court-ordered change in the legal relationship’ of the

parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial

pronouncement must be accompanied by judicial relief.” District of Columbia v. Straus,

(D.C. Cir. 2010) (quoting Thomas v. Nat’l Sci. Found.,

(D.C. Cir. 2003)). This standard has been applied to other fee-shifting statutes which share

identical—or even merely comparable—language, 2 and it is “now clear” that this standard “also

applies to fee claims arising under EAJA.” Select Milk,

.

II. ANALYSIS

Ms. Bakos Does Not Satisfy the Buckhannon Standard

Ms. Bakos argues that the Court’s acceptance of the Parties’ voluntary stipulation

is the “legal and functional equivalent” of a dismissal with prejudice and therefore satisfies

Buckhannon. Pl.’s Mot. at 6 (citing Green Aviation Mgmt. Co. v. FAA,

(D.C.

Cir. 2012)). This argument is unsuccessful for two reasons.

First, the Court’s acceptance of the Parties’ joint stipulation does not provide

judicial relief. When testing purported relief against Buckhannon, the germane inquiry is

2 See, e.g., Oil, Chem. & Atomic Workers Int’l Union, AFL-CIO v. Dep’t of Energy,

(D.C. Cir. 2002) (applying the standard to FOIA), superseded by statute OPEN Government Act of 2007,

(a)(4)(E)(ii); Alegria v. District of Columbia,

(D.C. Cir. 2004) (applying the standard to the Individuals with Disabilities Education Act).

3 whether a party was afforded “judicial relief that materially altered the rights of the parties.” Oil,

Chem. & Atomic Workers,

(quotations omitted) (emphasis added). Thus,

judgment on the merits (a “judicial pronouncement” that a party is entitled to relief) and binding

consent decrees enforced by the court (which afford a party new rights or obligate some future

action) are properly classified as judicial relief. See Buckhannon,

(emphasis added). But plaintiffs may “dismiss an action without a court order by filing . . . a

notice of dismissal before the opposing party serves . . . an answer.” Fed. R. Civ. P.

41(a)(1)(A)(i) (emphasis added); see also id. at 41(a)(1)(A)(ii) (permitting dismissal without a

court order upon “a stipulation of dismissal signed by all parties who have appeared”); cf. id. at

41(a)(1)(B) (“Unless the notice or stipulation states otherwise, the dismissal is without

prejudice.”). When that happens, a court’s acceptance of the parties’ voluntary dismissal is

“merely a formality,” “properly viewed as a procedural ruling that cannot serve as the basis for a

determination that [a party] prevailed.” Oil, Chem. & Atomic Workers,

. So

too here: the Court made no decision on the merits and imposed no obligations on the parties;

rather, the parties themselves withdrew this case from consideration of the merits. Without

action by the Court, there is no judicial relief.

Second, even if the Court’s acceptance of the parties’ joint stipulation were

equivalent to a dismissal with prejudice, the Court could not say that Ms. Bakos had prevailed.

To be sure, a dismissal with prejudice may sometimes satisfy Buckhannon. For example, in

Green Aviation Management Co. v. FAA,

, the D.C. Circuit found that dismissal

with prejudice of the FAA’s civil penalty case against the defendant was judicial relief, both

because a court order was necessary—by regulation—to dismiss the case, and more importantly

because the dismissal with prejudice provided the defendant res judicata protection from similar

4 lawsuits brought by the FAA.

. But here, Ms. Bakos’ situation is reversed. Because

she is the plaintiff, her voluntarily dismissal of her Complaint with prejudice relieved her

opponent of potential liability and precludes her from bringing further proceedings. Thus,

whatever relief came with the Court’s order, it was not in Ms. Bakos’ favor.

Ms. Bakos further argues that she is the prevailing party because her litigation

induced the government to negotiate on the redactions, which was her desired outcome. See Pl.’s

Mot. at 3-4. However, this same argument has been squarely rejected by the Supreme Court.

Specifically, the plaintiffs in Buckhannon, as here, “argued that they were entitled to attorney’s

fees under the ‘catalyst theory,’ which posits that a plaintiff is a ‘prevailing party’ if it achieves

the desired result because the lawsuit brought about a voluntary change in the defendant’s

conduct.” Buckhannon,

. The Supreme Court rejected the argument, holding that

“the ‘catalyst theory’ falls on the other side of the line from” “the ‘material alteration of the legal

relationship of the parties’ necessary to permit an award of attorney’s fees.”

at 604-05

(quoting Tex. State Teachers Ass’n,

). The government’s voluntary change in

position, even if induced by litigation, is not tantamount to a court-ordered change in the parties’

legal relationship and is not “the type of legal merit that . . . plain language and congressional

intent[] have found necessary.” Buckhannon,

.

There Is No Good Reason to Depart from Buckhannon Standard

In the alternative, Ms. Bakos contends that this is a case of “limited first

impression” and that there is a good reason for this Court to depart from the Buckhannon

standard here. Pl.’s Mot. at 5-6. She relies on D.C. Circuit caselaw to the effect that a court may

deviate from the Buckhannon standard where there is “good reason” to do so. See Oil, Chem. &

Atomic Workers,

(“[E]ligibility for an award of attorney’s fees . . . should be

treated the same as eligibility determinations made under other fee-shifting statutes unless there 5 is some good reason for doing otherwise.”). Ms. Bakos argues that such good reason exists here

because allowing the government to escape attorney’s fees by settling cases before final

judgment will discourage future litigants from negotiating and settling disputes. Pl.’s Mot. at 7.

Ms. Bakos misstates the “good reason” carve-out. In the several cases in which

the D.C. Circuit has had the opportunity to consider the exemption, the Circuit did not evaluate

the claims based on the circumstances of the parties or as a matter of policy but construed the

fee-shifting statutes under which relief was sought. See, e.g., Oil, Chem. & Atomic Workers,

(evaluating, as a matter of statutory construction, whether there was a difference

between “prevailing party” and “substantially prevailed”). This focus on statutory construction

is consistent with Buckhannon’s statement that “Congress employed the term ‘prevailing party’”

as a legal term of art meant to limit awards to parties “‘in whose favor a judgment is rendered.’”

Buckhannon,

(quoting Black’s Law Dictionary 1145 (7th ed. 1999)).

Buckhannon specified that absent clear congressional intent to the contrary, “respect for ordinary

language requires that a plaintiff receive at least some relief on the merits of his claim before he

can be said to prevail.”

(quoting Hewitt v. Helms,

(1987)). “To disregard

the clear legislative language and the holdings of our prior cases on the basis of such policy

arguments would be a[n] . . . assumption of . . . ‘roving authority.’”

at 610 (quoting Alyeska

Pipeline Servs. Co. v. Wilderness Soc’y,

(1975)). The D.C. Circuit has

declined to adopt such “roving authority.” Rather, based on the statutory text, “it is now clear

that Buckhannon’s construction of ‘prevailing party’ also applies to fee claims arising under

EAJA.” Select Milk,

. 3

3 Not only are policy arguments generally unavailing in the face of clear congressional language, the D.C. Circuit has already rejected the policy argument upon which Ms. Bakos relies. See

6 III. CONCLUSION

For reasons stated above, Ms. Bakos’ Motion for Attorney’s Fees and Costs, Dkt.

15, will be denied. A memorializing Order accompanies this Memorandum Opinion.

Date: August 8, 2019 ROSEMARY M. COLLYER United States District Judge

Alegria,

(“To the extent that the absence of such awards may discourage representation or settlement, such effects are insufficient to overcome the presumption established by Buckhannon.”).

7