Reaffirming Batton and the Rule of Orderliness:
FOIA Attorney-Fee Awards After Bermudez v. EOIR

I. Introduction

The Fifth Circuit’s unpublished per curiam decision in Bermudez v. Executive Office for Immigration Review, No. 24‑30617 (5th Cir. Nov. 24, 2025), sits at the intersection of immigration proceedings, the Freedom of Information Act (FOIA), and federal fee‑shifting doctrine.

The case did not turn on whether the plaintiff, Emanuel Luzardo Bermudez, should have received attorney’s fees under FOIA’s fee‑shifting provision. Instead, it turned on something more structural: whether a three‑judge panel of the Fifth Circuit could discard the circuit’s existing FOIA attorney‑fee framework (the “Batton test”) based on more recent Supreme Court decisions addressing other statutes.

Bermudez argued that the Fifth Circuit’s FOIA fee precedent in Batton v. IRS, 718 F.3d 522 (5th Cir. 2013), had been implicitly overruled by:

Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014) (Patent Act fee-shifting);
Food Marketing Institute v. Argus Leader Media (“FMI”), 588 U.S. 427 (2019) (FOIA Exemption 4); and
Lackey v. Stinnie, 604 U.S. 192 (2025) (§ 1988 civil-rights fee-shifting).

The panel rejected those arguments and affirmed the district court’s denial of fees. The opinion’s main significance is doctrinal rather than fact‑specific: it reaffirms that:

the Batton two‑step framework for FOIA attorney’s fees (eligibility and entitlement) remains binding law in the Fifth Circuit; and
the Fifth Circuit’s rule of orderliness strictly limits when a panel can treat intervening Supreme Court decisions as overruling prior circuit precedent.

For FOIA litigants—especially those seeking fees where an agency releases records only after being sued—Bermudez confirms that the status quo remains in place in the Fifth Circuit, despite evolving Supreme Court jurisprudence on fee‑shifting more generally.

II. Factual and Procedural Background

A. Removal Proceedings and the FOIA Request

In 2021, the Executive Office for Immigration Review (EOIR) began removal (deportation) proceedings against Bermudez. During those proceedings, he sought his immigration Record of Proceedings (ROP), a compilation of documents relating to his case housed within EOIR and immigration courts.

To obtain the ROP, Bermudez filed a request under the Freedom of Information Act, 5 U.S.C. § 552. On June 17, 2021, EOIR acknowledged the FOIA request by email to his counsel, warning that processing might be delayed due to the COVID‑19 pandemic and the complexity of the request. After that email, the parties exchanged no further communications.

B. Agency Processing Delays and “Behind‑the‑Scenes” Activity

Although EOIR remained silent outwardly, the agency was internally trying to assemble the requested ROP:

On August 13, 2021, the EOIR FOIA Center requested Bermudez’s ROP from the New Orleans Immigration Court.
When the file arrived, it was incomplete. Additional documents were at the Miami Immigration Court.
On January 28, 2022 (the opinion notes the year “2021” in the affidavit appears to be a typo), EOIR requested those additional documents from Miami.
The Miami documents did not arrive at EOIR’s FOIA Center until June 21, 2022—almost a year after EOIR’s initial acknowledgment email to Bermudez’s counsel.

Crucially, none of these internal developments were communicated to Bermudez, who heard nothing from EOIR beyond the original June 2021 acknowledgment.

C. The FOIA Lawsuit and Mootness

Facing prolonged silence, Bermudez filed a FOIA lawsuit against EOIR in April 2022 in the Western District of Louisiana. He claims he had twice followed up with EOIR before filing suit; EOIR disputes that, saying there is no record of such follow‑ups.

Even after he sued, EOIR did not immediately respond to the litigation. It only appeared after Bermudez moved for summary judgment in June 2022. At that point, EOIR announced that it had collected the requested ROP and had produced it to him in full, with no documents withheld. Because the records had been released, the district court denied Bermudez’s summary‑judgment motion as moot and resolved the merits of the FOIA claim.

D. The Motion for FOIA Attorney’s Fees

Having finally obtained the ROP—but only after filing suit—Bermudez sought attorney’s fees under FOIA’s fee‑shifting provision, 5 U.S.C. § 552(a)(4)(E)(i). He argued that:

since EOIR released the records only after he filed the lawsuit, the suit itself was the cause of the release; and
he therefore had “substantially prevailed” in the FOIA action and was both eligible for and entitled to attorney’s fees and costs under § 552(a)(4)(E)(i)–(ii).

The district court applied the Fifth Circuit’s framework from Batton v. IRS, 718 F.3d 522 (5th Cir. 2013), and denied the motion. Bermudez appealed—but notably:

He did not argue that the district court misapplied Batton’s test. Instead, he argued that Batton itself is no longer good law because subsequent Supreme Court decisions had implicitly overruled it.

III. Summary of the Fifth Circuit’s Decision

The Fifth Circuit affirmed the denial of attorney’s fees. It held that:

The Fifth Circuit’s Batton framework for FOIA fee awards—consisting of (a) an “eligibility” prong and (b) an “entitlement” prong—remains binding law in the circuit.
None of the Supreme Court decisions cited by Bermudez—Octane Fitness, FMI, or Lackey—“unequivocally overruled” Batton as required by the Fifth Circuit’s strict rule of orderliness.
In fact, the Fifth Circuit had already reaffirmed Batton in a post‑Octane, post‑FMI FOIA case, Franklin v. United States, 49 F.4th 429 (5th Cir. 2022).

Because Bermudez’s challenge was limited to the continued validity of Batton—and because Batton remains controlling—the panel found no abuse of discretion in the district court’s reliance on Batton to deny fees. The judgment was therefore affirmed.

IV. Detailed Legal Analysis

A. FOIA Attorney-Fee Awards and the Batton Framework

1. Statutory Text

FOIA allows courts to “assess against the United States reasonable attorney fees and other litigation costs reasonably incurred” in any case:

“in which the complainant has substantially prevailed.”

5 U.S.C. § 552(a)(4)(E)(i).

Congress further clarified that a FOIA plaintiff “substantially prevails” when he obtains relief through:

a judicial order, enforceable written agreement, or consent decree; or
a voluntary or unilateral change in position by the agency, if the plaintiff’s claim is not insubstantial.

See § 552(a)(4)(E)(ii). The second route—where the agency voluntarily produces documents after being sued—is where the so‑called “catalyst theory” comes into play.

2. The Two-Pronged Batton Test

In Batton v. IRS, the Fifth Circuit formalized a two‑step analysis for FOIA fee motions:

Eligibility: Has the plaintiff “substantially prevailed” under § 552(a)(4)(E)(ii)? If the agency’s change in position was voluntary, the Fifth Circuit uses the catalyst theory:
- The plaintiff must show that the lawsuit could “reasonably be regarded as necessary” to obtain the information; and
- that the lawsuit had a “substantive causative effect” on the release of the information.
Batton, 718 F.3d at 525 (quoting Lovell v. Alderete, 630 F.2d 428, 432 (5th Cir. 1980)).
Entitlement: Even if eligible, should the court exercise its discretion to award fees? The Fifth Circuit looks to four factors:
1. the public benefit derived from the case;
2. the commercial benefit to the complainant;
3. the nature of the complainant’s interest in the records; and
4. whether the government had a reasonable legal basis for withholding the records.
See Batton, 718 F.3d at 527 (citing Texas v. ICC, 935 F.2d 728, 730 (5th Cir. 1991)).

In Bermudez, the Fifth Circuit did not revisit these standards on the merits because Bermudez did not argue that the district court misapplied them. His sole contention on appeal was that Batton itself is no longer valid precedent.

B. The Rule of Orderliness: Why the Panel Could Not Abandon Batton

The central doctrinal tool in the opinion is the Fifth Circuit’s rule of orderliness, which strictly governs how panel decisions relate to each other.

1. Basic Rule

Under the rule of orderliness:

“[O]ne panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”

Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

Key features emphasized by the panel include:

Perceived error is irrelevant: Even if a prior panel’s interpretation appears flawed, a later panel cannot discard it. (Jacobs).
Intervening decisions must be directly on point: The Fifth Circuit has repeatedly rejected the idea that later Supreme Court decisions which are merely analogous—or which “illuminate” the law—can implicitly overrule prior circuit precedent. See United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014).
“Unequivocal” overruling required: For a Supreme Court decision to override a Fifth Circuit case, it must “unequivocally” do so; “mere illumination” is insufficient. Gahagan v. U.S. Citizenship & Immigr. Servs., 911 F.3d 298, 302 (5th Cir. 2018) (quoting United States v. Petras, 879 F.3d 155, 164 (5th Cir. 2018)).
New arguments do not escape prior precedent: A panel decision is binding “even when a party raises ‘new arguments that were not presented to a prior panel.’” United States v. Wilkerson, 124 F.4th 361, 368 (5th Cir. 2024) (quoting Mendez v. Poitevent, 823 F.3d 326, 335 (5th Cir. 2016)).
Scope of binding effect: An earlier panel’s decision binds later panels even if it did not explicitly address the precise arguments later raised. United States v. Berry, 951 F.3d 632, 636 (5th Cir. 2020).
Strict and rigid application: The rule is “strict and rigidly applied.” In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021).

The upshot is that a three‑judge panel is structurally disabled from doing what Bermudez asked—overturning the FOIA fee framework in Batton—unless a Supreme Court or en banc decision directly and clearly abrogates it.

2. Application in Bermudez

Applying these principles, the panel concluded:

Batton is the controlling Fifth Circuit precedent on FOIA attorney’s fees.
None of the Supreme Court cases cited by Bermudez (Octane Fitness, FMI, Lackey) directly addressed FOIA’s fee provision or the Batton test.
Therefore, none of those decisions “unequivocally overruled” Batton or otherwise freed the panel from following it.

That conclusion alone largely resolves the appeal: the district court did exactly what circuit law requires by applying Batton, so its decision could not be an abuse of discretion on that ground.

C. Franklin as Tacit Reaffirmation of Batton

A critical step in the court’s reasoning is its reliance on Franklin v. United States, 49 F.4th 429 (5th Cir. 2022), a FOIA fee case that:

was decided after both Octane Fitness (2014) and FMI (2019);
explicitly applied the Batton test; and
found the plaintiff eligible for but not entitled to fees under that framework.

By relying on Franklin, the panel makes several points:

Because Franklin post‑dates Octane and FMI, it is strong evidence that the Fifth Circuit has already considered FOIA attorney’s fees in light of those Supreme Court decisions—and has continued to apply Batton.
It is irrelevant that Franklin did not expressly discuss Octane or FMI. Under Berry and Mendez, a prior panel decision binds even if it does not address every argument or case later parties might raise.
Thus, Bermudez’s contention that his case presents the Fifth Circuit’s “first chance” to consider FOIA fees after these Supreme Court decisions is incorrect: Franklin already occupied that space.

The opinion treats Franklin as a tacit reaffirmation of Batton, underscoring that Fifth Circuit FOIA fee law is settled unless and until the Supreme Court or the en banc court directly revises it.

D. Why Octane Fitness, FMI, and Lackey Do Not Overrule Batton

The heart of Bermudez’s appeal was that three Supreme Court cases, read together or separately, effectively invalidate the Batton framework. The panel disagreed, for statute‑specific and doctrinal reasons.

1. Octane Fitness (Patent Act, 35 U.S.C. § 285)

Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014), interpreted the Patent Act’s fee‑shifting provision, which authorizes courts to award fees in “exceptional cases.” The Supreme Court rejected a rigid, multi‑part test for “exceptional” and adopted a more flexible, totality‑of‑the‑circumstances standard.

Bermudez’s likely move (although not fully detailed in the opinion) was to analogize FOIA’s fee provision to § 285 and argue that Octane disfavors the kind of structured multi‑factor inquiry seen in Batton. The panel rejected that effort because:

Octane is about a different statute with different text (“exceptional cases” in patent litigation);
it does not address FOIA’s “substantially prevailed” language or FOIA fees at all; and
as Franklin shows, the Fifth Circuit has continued to apply Batton after Octane.

Under the rule of orderliness, such a statute‑specific interpretation cannot “unequivocally overrule” FOIA‑specific Fifth Circuit precedent.

2. Food Marketing Institute v. Argus Leader Media (FOIA Exemption 4)

Food Marketing Institute v. Argus Leader Media, 588 U.S. 427 (2019), was indeed a FOIA case—but not a fees case. It interpreted Exemption 4, which shields “trade secrets and commercial or financial information obtained from a person and privileged or confidential” from disclosure. FMI adopted a relatively strict, text‑driven approach to what counts as “confidential” information.

Bermudez appears to have drawn from FMI a broader methodological claim: that FOIA provisions should be interpreted more strictly and textually, perhaps undermining the judicial glosses in Batton (like the four entitlement factors or the catalyst test).

The panel’s answer is straightforward:

FMI concerns substantive disclosure exemptions, not the fee‑shifting provision; and
it does not purport to address or overturn any FOIA fee‑award doctrine, much less Batton.

Because FMI is not “directly on point” with FOIA fees, it cannot serve as an intervening change in law sufficient to displace circuit precedent.

3. Lackey v. Stinnie (§ 1988, Civil Rights Attorney’s Fees)

Lackey v. Stinnie, 604 U.S. 192 (2025), addressed whether certain Virginia drivers were “prevailing parties” entitled to fees under 42 U.S.C. § 1988(b) after state officials changed their conduct in response to litigation over driver’s license suspensions.

Bermudez extracted three points from Lackey:

Courts must respect the statutory text of fee‑award provisions.
Fee‑award holdings should “follow naturally” from prior Supreme Court precedent.
The Court prefers straightforward, bright‑line rules for fee awards.

Yet the panel emphasizes that Lackey—like Octane—is grounded in a different statute (§ 1988) and materially different facts. It does not:

address FOIA’s “substantially prevailed” language;
discuss FOIA’s post‑2007 “catalyst” framework; or
mention Batton or FOIA attorney’s fees.

As with Octane and FMI, Lackey cannot be read to “unequivocally overrule” Batton. It may offer general guidance on fee‑shifting, but under the Fifth Circuit’s orderliness rule, such general guidance is insufficient to displace specific, FOIA‑focused circuit precedent.

E. What the Court Did Not Decide

Just as significant as what the panel held is what it did not decide:

The court did not decide whether Bermudez would have been eligible for fees under the catalyst theory, i.e., whether his lawsuit was necessary and causally tied to EOIR’s release of his ROP.
The court did not decide whether, if eligible, he should have been entitled to fees under the four Batton factors (public benefit, commercial benefit, nature of interest, and reasonableness of withholding).
The court did not evaluate whether EOIR’s delay or conduct was reasonable—or whether it was strategically withholding records until litigation pressure increased.

All of those issues were off the table because Bermudez expressly limited his appeal to the claim that Batton had been superseded. As a result, any ordinary challenge to the district court’s application of Batton was effectively waived or abandoned.

F. Practical Impact on FOIA Litigants and Agencies

1. For FOIA Requesters and Their Counsel

Bermudez sends a clear signal to FOIA plaintiffs in the Fifth Circuit:

The Batton framework remains the law. Plaintiffs must:
- prove that the lawsuit was necessary and causally connected to the release of records (catalyst theory) to be eligible; and
- persuade the court under the four Batton factors that an award is equitable.
General arguments invoking Supreme Court fee‑shifting trends—from patent law (Octane) or civil‑rights litigation (Lackey)—will not, standing alone, convince a Fifth Circuit panel to re‑engineer FOIA fee doctrine.
Even if you “win” in the practical sense (the agency turns over documents after suit), fees are neither automatic nor guaranteed. Courts retain wide discretion at the entitlement stage.

For practitioners, this underscores the importance of:

developing a clear factual record showing the causal link between the lawsuit and the agency’s production (eligibility); and
framing the requested records and their use in a way that maximizes public benefit and minimizes any perception of purely private, self‑interested motives (entitlement).

2. For Federal Agencies (Including EOIR)

For agencies, Bermudez has mixed practical implications:

On one hand, agencies may take some comfort that releasing records after suit—even late in the day—does not automatically result in a fee award; plaintiffs must still satisfy Batton’s demanding requirements.
On the other hand, the opinion does not endorse unreasonable delay. An agency that consistently forces requesters to sue, only to release records once pressed, risks:
- adverse factual findings on the “causation” and “reasonableness” prongs in future cases; and
- fee awards where courts see a pattern of strategic withholding.

EOIR in particular—often dealing with time‑sensitive immigration cases—should recognize that ongoing FOIA litigation can compound delays and costs. Transparent communication with requesters and timely production remain the best defenses against fee liability.

3. For the Development of FOIA Fee Doctrine

At a higher level, Bermudez confirms that major doctrinal shifts in FOIA fee law will not occur at the panel level. To change Batton, one of two things would have to happen:

The Supreme Court would need to decide a FOIA fee case that directly addresses “substantially prevailed” and the catalyst theory, clearly disapproving the existing Batton framework; or
The Fifth Circuit would need to take an appropriate case en banc and revisit Batton’s approach as a matter of circuit law.

Until then, Batton—as reaffirmed by Franklin and now Bermudez—remains the roadmap for FOIA attorney‑fee motions in the Fifth Circuit.

V. Key Legal Concepts Simplified

A. “Substantially Prevailed” and the Catalyst Theory

To recover attorney’s fees under FOIA, a plaintiff must have “substantially prevailed.” There are two main ways this can happen:

Direct judicial relief: The court orders the agency to disclose records, or the parties enter an enforceable settlement or consent decree requiring disclosure.
Voluntary agency change (“catalyst” cases): The agency, facing litigation, voluntarily changes position and releases the records before any court order is entered.

The “catalyst theory” applies to the second pathway. Under that theory (as articulated in Batton and reaffirmed in Bermudez), the plaintiff must show:

the lawsuit was reasonably necessary to obtain the information; and
the lawsuit had a substantive causative effect on the agency’s decision to release the information.

It is not enough that the records were eventually produced after suit was filed; the suit must genuinely have made the difference.

B. Eligibility vs. Entitlement to Fees

FOIA fee analysis has two distinct stages:

Eligibility: Did the plaintiff “substantially prevail” as defined by § 552(a)(4)(E)(ii)? If not, the inquiry ends; no fees can be awarded.
Entitlement: If eligible, should the court, in its discretion, actually award fees? This is where the four Batton factors apply:
- Public benefit: Did the case enhance public understanding or oversight of government?
- Commercial benefit: Did the plaintiff primarily seek the records for profit?
- Nature of interest: Was the plaintiff’s interest personal/private, or civic/public?
- Reasonableness of withholding: Did the agency have a reasonable legal basis to think it could withhold the records when it did?

A plaintiff must win both stages to receive fees. Franklin shows that a plaintiff can be deemed eligible yet still denied fees at the entitlement stage.

C. Rule of Orderliness (In Plain Terms)

The rule of orderliness is essentially an internal rule of judicial hierarchy within the circuit:

A three‑judge panel must follow prior published panel decisions on the same legal question.
Only an en banc court (all active judges) or the Supreme Court can overrule a prior panel—and then only where the new decision is directly inconsistent with the old.
Parties cannot evade precedent merely by:
- pointing to “similar” Supreme Court cases under different statutes; or
- raising new theories or arguments that a prior panel did not explicitly consider.

In Bermudez, this rule is the main reason the panel refuses to reconsider Batton; the Supreme Court decisions cited simply are not close enough to FOIA attorney‑fee doctrine to permit a panel‑level override.

D. “Prevailing Party” Under § 1988 vs. FOIA’s “Substantially Prevailed”

Fee‑shifting under 42 U.S.C. § 1988(b) (civil‑rights litigation) uses the term “prevailing party”. FOIA, by contrast, uses “substantially prevailed” and defines it in § 552(a)(4)(E)(ii).

While the concepts are related, they are not identical. Supreme Court decisions interpreting “prevailing party” under § 1988—such as Lackey v. Stinnie—do not automatically control how “substantially prevailed” in FOIA should be read, especially where Congress has provided an explicit FOIA‑specific definition.

E. Unpublished Opinions in the Fifth Circuit

The opinion itself notes that it is “not designated for publication.” Under Fifth Circuit Rule 47.5:

Unpublished opinions issued after January 1, 1996 are generally not precedential but can be cited for persuasive value.
They nonetheless often provide practical guidance on how panels apply existing precedent in particular contexts.

Thus, while Bermudez does not create binding precedent in the same way a published opinion would, it offers a clear view of how the Fifth Circuit understands and applies Batton and the rule of orderliness to FOIA fee disputes.

VI. Conclusion

Bermudez v. EOIR is best understood as a stabilizing decision. Rather than charting new ground, the panel:

Reaffirms that the Fifth Circuit’s FOIA fee framework in Batton v. IRS—with its eligibility (catalyst) and entitlement (four‑factor) prongs—remains fully operative;
Emphasizes that subsequent Supreme Court decisions addressing fee‑shifting under other statutes (Octane Fitness, FMI, Lackey) do not “unequivocally overrule” Batton, and so cannot displace it under the circuit’s strict rule of orderliness; and
Relies on Franklin v. United States as a recent, post‑Supreme‑Court confirmation that Batton continues to govern FOIA fee awards.

For FOIA litigants in the Fifth Circuit—especially those suing agencies like EOIR in the immigration context—the opinion underscores that:

obtaining records after filing suit does not automatically entitle a requester to fees;
the burden remains on the requester to prove both causation (eligibility) and equitable grounds (entitlement) under Batton; and
efforts to reshape FOIA fee doctrine by invoking broader Supreme Court trends in fee‑shifting must be directed to either the Supreme Court itself or the en banc Fifth Circuit, not to a three‑judge panel constrained by the rule of orderliness.

In the broader FOIA landscape, Bermudez thus stands as a careful reaffirmation of continuity: despite evolving Supreme Court jurisprudence on attorney’s fees in other domains, the Fifth Circuit’s FOIA fee doctrine remains firmly anchored in Batton.

Reaffirming Batton and the Rule of Orderliness: FOIA Attorney-Fee Awards After Bermudez v. EOIR