First Amendment Coalition v. Usdoj ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIRST AMENDMENT COALITION, No. 15-15117
Plaintiff-Appellant,
D.C. No.
v. 4:12-cv-01013-
CW
UNITED STATES DEPARTMENT OF
JUSTICE, ORDER AND
Defendant-Appellee. AMENDED
OPINION
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted December 15, 2016
San Francisco, California
Filed August 25, 2017
Amended November 29, 2017
Before: Marsha S. Berzon and Mary H. Murguia, Circuit
Judges, and Frederic Block,* District Judge.
Order;
Opinion by Judge Block;
*
The Honorable Frederic Block, Senior District Judge for the Eastern
District of New York, sitting by designation.
2 FIRST AMENDMENT COALITION V. USDOJ
Concurrence by Judge Berzon;
Concurrence by Judge Murguia
SUMMARY**
Attorney’s Fees
The panel reversed the district court’s denial of the First
Amendment Coalition’s request for attorney’s fees under the
Freedom of Information Act (“FOIA”).
The panel unanimously held – albeit for three different
reasons – that the First Amendment Coalition was eligible for
attorney’s fees and remanded solely for the district court to
determine the fees to which the First Amendment Coalition
was entitled.
Judge Block, in the lead opinion, first held that there had
to be a causal connection between the litigation and the
voluntary disclosure of the memorandum in this Freedom of
Information Act (“FOIA”) litigation. In her concurring
opinion, Judge Murguia agreed, but in her concurring
opinion, Judge Berzon disagreed, believing that under the
FOIA statute causation was not required.
Judge Block next held that reversal was required because
the district court, in denying fees, employed an incorrect legal
standard because it failed to consider and apply the factors
set forth in Church of Scientology v. United States Postal
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FIRST AMENDMENT COALITION V. USDOJ 3
Serv., 700 F.2d 486 (9th Cir. 1983). Judge Murguia disagreed
with this part of Judge Block’s opinion because the factual
finding which the district court made was not clearly
erroneous, but nonetheless held that fees were warranted
under the facts of this case. Judge Berzon believed that fees
were recoverable simply because there was no causation
requirement.
4 FIRST AMENDMENT COALITION V. USDOJ
COUNSEL
Jonathan L. Segal (argued), Davis Wright Tremaine LLP, Los
Angeles, California; Diana Palacios and Thomas R. Burke,
Davis Wright Tremaine LLP, San Francisco, California; for
Plaintiff-Appellant.
Sushma Soni (argued) and Sharon Swingle, Attorneys;
Douglas N. Letter, Director, Appellate Staff; Hashim M.
Mooppan, Deputy Assistant Attorney General; Chad A.
Readler, Acting Attorney General; Civil Division, United
States Department of Justice, Washington, D.C.; for
Defendant-Appellee.
Bruce D. Brown, Katie Townsend, and Adam A. Marshall,
Washington, D.C., as and for Amicus Curiae Reporters
Committee for Freedom of the Press.
ORDER
The opinion filed on August 25, 2017, and published at
869 F.3d 868, is amended as follows:
On page 49 of the slip opinion, within Judge Murguia’s
opinion concurring in part and concurring in the judgment,
add a footnote after the sentence “First Amendment Coalition
failed to prevail primarily because of unilateral Government
actions, outside its control.” The footnote—new footnote
four—reads: “In her opinion, Judge Berzon suggests that my
reasoning implies bad faith on the part of the government in
this case. I am not aware of the circumstances surrounding
the DOJ’s action, but the fact that the district court was not
made aware of the White paper’s disclosure was critical for
FIRST AMENDMENT COALITION V. USDOJ 5
First Amendment Coalition’s inability to prevail on the merits
and establish eligibility for attorney fees.”
With this amendment, Defendant-Appellee’s motion to
amend the opinion and stay the mandate (Docket Entry No.
57) is DENIED as moot.
OPINION
BLOCK, District Judge:
In September 2011, Anwar al-Awlaki,1 an American
citizen who had been targeted by the Central Intelligence
Agency (“CIA”) as a terrorist, was killed in a drone attack in
Yemen. This spawned parallel litigations under the Freedom
of Information Act (“FOIA”) for the release of legal
memoranda prepared by the Department of Justice’s (“DOJ”)
Office of Legal Counsel (“OLC”) addressing the legality of
the targeted killing of U.S. citizen terrorists. Plaintiff-
appellant First Amendment Coalition (“FAC”) sued in the
Northern District of California (“NDCA”), while—in
consolidated litigation—the American Civil Liberties Union
(“ACLU”) and the New York Times (“NY Times”) sued in
the Southern District of New York (“SDNY”).
After the SDNY granted summary judgment in the
Government’s favor, the Second Circuit reversed and ordered
the release of one responsive OLC memorandum (“OLC-
1
This spelling is used by the district court and in the parties’ briefs.
We adopt it, except in some quotations in which the name is spelled “al-
Aulaqi” or “al-Aulaki.”
6 FIRST AMENDMENT COALITION V. USDOJ
DOD memo”). Thereafter, the DOJ disclosed a second
responsive memorandum (“OLC-CIA memo”) in the NDCA
litigation. Nonetheless, the district court denied FAC’s
request for attorney’s fees under FOIA.
We all agree—although for different reasons—that FAC
is eligible for attorney’s fees. Accordingly, we REVERSE
and REMAND to the district court to determine the fees to
which FAC is entitled.2
I
More than a year prior to al-Awlaki’s death, two NY
Times reporters, Scott Shane and Charlie Savage, submitted
separate FOIA requests to OLC. Shane’s request, submitted
in June 2010, sought “all Office of Legal Counsel opinions or
memoranda since 2001 that address the legal status of
targeted killings, assassinations, or killing of people
suspected of ties to Al-Qaeda or other terrorist groups by
employees or contractors of the United States government.”
New York Times v. United States Dep’t of Justice, 756 F.3d
100, 105 (2d Cir. 2014).
Savage’s request, submitted in October 2010, sought “a
copy of all Office of Legal Counsel memorandum analyzing
the circumstances under which it would be lawful for United
States Armed Forces or intelligence community assets to
target for killing a United States citizen who is deemed to be
a terrorist.” Id.2
A determination of eligibility “does not automatically entitle the
plaintiff to attorney’s fees.” Church of Scientology v. United States Postal
Serv.,700 F.2d 486, 489 (9th Cir. 1983). “Entitlement to attorney’s fees
is left to the discretion of the district court.” Id.FIRST AMENDMENT COALITION V. USDOJ 7
FAC was the first to file a FOIA request after al-Awlaki’s
death. On October 5, 2011, it asked the DOJ for “a legal
memorandum prepared by OLC concerning the legality of the
lethal targeting of Anwar al-Awlaki, an American-born
radical cleric who, according to federal government officials,
was killed September 30, 2011 in a U.S. drone strike in
Yemen.” FAC alleged that “[t]he memorandum was the
subject of a story (‘Secret U.S. memo sanctioning killing of
Aulaqi’) in the September 30, 2011 Washington Post, in
which multiple (albeit unnamed) administration officials
discussed the memorandum and internal government debates
on the legal issues addressed in it.”
Two days later, on October 7, 2011, the NY Times made
another FOIA request, identical to the Savage request, and
twelve days later, on October 19, 2011, the ACLU submitted
FOIA requests to three agencies—DOJ, the Department of
Defense (“DOD”), and the CIA—seeking various documents
concerning the targeted killings of United States citizens in
general, and al-Awlaki, his son, and another American
citizen, Samir Khan, in particular.
All FOIA requests were met with resistance by the
agencies; they were the subject of either a so-called “no
number, no list” response or a so-called Glomar response.3
Not surprisingly, FAC, the NY Times, and the ACLU sued.
The NY Times was the first to strike. It initiated its action in
the SDNY on December 20, 2011; the ACLU brought suit,
3
“A no number, no list response acknowledges the existence of
documents responsive to the request, but neither numbers nor identifies
them by title or description.” New York Times, 756 F.3d at 105. A
Glomar response “neither confirms nor denies the existence of documents
pertaining to the request.” Id.
8 FIRST AMENDMENT COALITION V. USDOJ
also in the SDNY, on February 1, 2012, and the two cases
were consolidated. FAC commenced its lawsuit in the
NDCA later that month, on February 29, 2012.
On June 21, 2013, the DOJ issued a modified response to
FAC’s FOIA request, “acknowledging the existence of one
responsive OLC opinion pertaining to the Department of
Defense”—the OLC-DOD Memo—but “refusing to confirm
or deny the existence of responsive records related to any
other agency.” A similar acknowledgment had previously
been made a year before in the SDNY litigation by the OLC,
DOD, and CIA.4 See New York Times, 756 F.3d at 108; see
also New York Times v. United States Dep’t of Justice, 915 F.
Supp. 2d 508, 519 (S.D.N.Y. 2013) (citing Declaration of
John E. Bies, Deputy Assistant Attorney General, ¶ 30 (“Bies
Decl.”)); Declaration of Robert E. Neller, Lt. General, United
States Marine Corps, Director of Operations for the Joint
Staff at the Pentagon, ¶ 17 (“Neller Decl.”)). The OLC-DOD
Memo was an “OLC opinion pertaining to the Department of
Defense marked classified . . .[t]hat . . . contain[ed]
confidential legal advice to the Attorney General, for his use
in interagency deliberations, regarding a potential military
4
Unlike the NY Times and FAC, which only submitted FOIA
requests to the OLC, the “ACLU submitted FOIA requests to three
agencies: DOJ (including two of DOJ’s component agencies, [the Office
of Information Policy] and OLC), DOD, and CIA.” New York Times,
756 F.3d at 106. Therefore, each agency was responsible for responding
to the ACLU’s request, and all three “modified their original responses in
light of statements by senior Executive Branch officials on the legal and
policy issues pertaining to United States counterterrorism operations and
the potential use of lethal force by the United States Government against
senior operational leaders of al-Qaeda who are United States citizens.” Id.
at 105–07.
FIRST AMENDMENT COALITION V. USDOJ 9
operation in a foreign country.” New York Times, 756 F.3d at
112 (citing Bies Decl. ¶ 30).
Despite acknowledging its existence, the Government
refused to disclose the OLC-DOD memo—as well as any
other related documents—in both litigations, claiming an
assortment of FOIA exemptions and privileges.5 Each district
court granted the Government’s summary judgment motions.
The SDNY decision came first, on January 3, 2013, and the
NY Times and ACLU appealed to the Second Circuit. The
NDCA decision came more than a year later, on April 11,
2014, while the Second Circuit appeal was sub judice.
In between the SDNY and NDCA decisions, there were
a number of public disclosures that subsequently impacted the
Second Circuit’s decision. As recounted by the circuit court,
[a]fter the [SDNY] entered judgment for the
Defendants, one document and several
statements of Government officials . . .
became publicly available. The document was
captioned “DOJ White Paper” and titled
“Lawfulness of a Lethal Operation Directed
Against a U.S. Citizen Who Is a Senior
5
In the SDNY action, the Government submitted Vaughn
indices—filings identifying records withheld with explanations for why
they were withheld—which identified unclassified documents, such as “an
e-mail chain reflecting internal deliberations concerning the legal basis for
the use of lethal force against United States citizens in a foreign country
in certain circumstances” and “e-mail traffic regarding drafts of the speech
given by [Jeh] Johnson at Yale Law School and a speech delivered by
Attorney General Holder at Northwestern University School of Law.”
New York Times, 756 F.3d at 107.
10 FIRST AMENDMENT COALITION V. USDOJ
Operational Leader of Al-Qaeda or an
Associated Force”
(“White Paper”).6 New York Times, 756 F.3d at 110. In the
White Paper “the Government ma[de] public a detailed
analysis of nearly all the legal reasoning contained in the
OLC-DOD Memo,” which the Second Circuit had reviewed
in camera. Id. at 116. As the circuit court noted, the White
Paper had been “leaked to the press” on February 4,
2013—soon after the SDNY granted summary judgment for
defendants—and it was subsequently “officially disclosed”
four days later by the Office of Information Policy “in
response to a FOIA request submitted by Truthout,” a non-
profit political news organization. Id. at 110 n.9, 116.
Based upon the release of the White Paper and the
Government officials’ statements, the Second Circuit
concluded that “waiver of secrecy and privilege as to the legal
analysis in the [OLC-DOD Memo] ha[d] occurred.” Id. It
accordingly ordered, inter alia, the disclosure of a redacted
version of the OLC-DOD Memo, and submission to the
district court of “other legal memoranda prepared by OLC . . .
6
The “several statements of Government officials” to which the
Second Circuit refers include John O. Brennan, “testifying before the
Senate Select Committee on Intelligence on February 7, 2013, on his
nomination to be director of CIA, [who] said, among other things, ‘The
Office of Legal Counsel advice establishes the legal boundaries within
which we can operate.’” New York Times, 756 F.3d at 111 (quoting Open
Hearing on the Nomination of John O. Brennan to be Director of the
Central Intelligence Agency Before the S. Select Comm. on Intelligence,
113 Cong. 57 (Feb. 7, 2013)). They also include a May 2013 letter
Attorney General Eric Holder wrote to Senator Patrick J. Leahy, Chairman
of the Senate Judiciary Committee, in which Holder stated that “[t]he
decision to target Anwar al-Aulaki was lawful . . . .” Id.
FIRST AMENDMENT COALITION V. USDOJ 11
for in camera inspection and determination of waiver of
privileges and appropriate redaction.”7 Id. at 124.
In so holding, the Second Circuit paused to distinguish the
NDCA’s decision denying FAC’s FOIA request for the OLC-
DOD memo, even though that decision—unlike the
SDNY’s—was rendered after the White Paper had surfaced.
It believed that the NDCA had been “under the impression
that there ha[d] been no official disclosure of the White
Paper,” and therefore, “did not assess its significance,”
whereas before the circuit court, “the Government ha[d]
conceded that the White Paper, with its detailed analysis of
7
On June 30, 2014, in response to the Second Circuit’s mandate,
Judge McMahon—the presiding SDNY judge—ordered the Government
to disclose for in camera review “[u]nredacted copies of the ‘other legal
memoranda prepared by OLC and at issue here’” within twenty-one days
of the order. New York Times v. United States Dep’t of Justice, No. 11-
9336 (S.D.N.Y. June 30, 2014) (order instituting circuit court mandate)
(citing New York Times, 756 F.3d at 124). On July 9, 2014, Judge
McMahon approved “a short postponement of the date by which the
Government must produce the documents contemplated by the mandate”
to August 15, 2014. New York Times v. United States Dep’t of Justice,
No. 11-9336 (S.D.N.Y. July 9, 2014) (order approving postponement of
in camera lodging). The procedure for the in camera review “g[ave] the
Government an opportunity to explain, under seal and in camera, why it
ha[d] not waived potentially applicable privileges . . . .” Id.
12 FIRST AMENDMENT COALITION V. USDOJ
legal reasoning, ha[d] in fact been officially disclosed.”8 New
York Times, 756 F.3d at 116.
Not surprisingly, FAC sought to vacate—by a timely
motion for reconsideration—the NDCA’s order granting the
DOJ’s motion for summary judgment. It also moved for
attorney’s fees and costs.
The district court directed that before the Government
filed its response to FAC’s motion, the parties should “meet
and discuss whether the Second Circuit’s order that the DOJ
disclose the OLC-DOD memorandum mooted the instant
case.” Thereafter, on August 28, 2014, the parties submitted
a joint status report, stating that “[o]n August 15, 2014,
Defendant United States Department of Justice (“Defendant”)
8
The Second Circuit’s effort to distinguish the NDCA’s failure to
order the release of the OLC-DOD memo because it believed that the
district court was of the “impression” that it was not officially disclosed
was charitable since, in addition to being officially disclosed to Truthout,
the White Paper was also disclosed to the Senate Judiciary Committee,
Senate Select Intelligence Committee, House Judiciary Committee, and
House Permanent Select Committee on Intelligence. Morever, in its
memorandum in opposition to the Government’s summary judgment
motion, FAC expressly advised the district court of the release of the
White Paper and the various prior statements of the Government officials.
See Pl. Opp. to MSJ at 2–4, 12, 21, First Amendment Coalition v. United
States Dep’t of Justice (N.D.C.A. 2013) (No. 12-1013). The memorandum
was filed on October 3, 2013, six months prior to the NDCA’s decision of
April 11, 2014, granting the Government’s motion and dismissing the
complaint. Specifically, FAC told the court that when it was released, “the
President’s spokesman confirmed that the White Paper was authentic, that
it was the official position of the Government, and that it was adapted
from classified memoranda which had been provided to Congress.” Id. at
3. The memorandum also alluded to the fact that the White Paper “along
with copious other pieces of official evidence” had previously “been
submitted to the [district court.]” Id. at 4.
FIRST AMENDMENT COALITION V. USDOJ 13
released to Plaintiff First Amendment Coalition (“Plaintiff’)
a second memorandum pertaining to a contemplated CIA
operation against Anwar al-Aulaqi.” Joint Status Report at 2,
First Amendment Coalition v. United States Dep’t of Justice
(N.D.C.A. 2014) (No. 12-1013) (emphasis added).9 This
second memorandum (“OLC-CIA memo”) was largely
redacted but had concluded, as had the OLC-DOD memo,
that “we do not believe the Constitution prohibits the
proposed lethal action” that was being contemplated against
al-Awlaki. Both memoranda were addressed to the Attorney
General, but differed in two respects: The OLC-DOD memo,
written on July 16, 2010, discussed the legality, under both
the Constitution and federal criminal laws, of lethal
operations by the DOD and CIA against al-Awlaki. The
OLC-CIA memo was written on February 19, 2010, six
months earlier, and discussed only the constitutionality of
lethal operations by the CIA against al-Awlaki.
The parties agreed that “these disclosures resolved all
substantive disputes in the case,” but “disagreed regarding
whether the Court should vacate its summary judgment order
and whether Plaintiff is entitled to attorneys’ fees.”
The district court vacated its summary judgment order,
but held that based upon the parties’ concession that “no
substantive issues remain,” the case had been rendered moot
9
Deputy Assistant Attorney General Bies stated, in a written
declaration, that the Government also released on August 15, 2014 a
redacted version of the OLC-CIA memo to the NY Times and ACLU
“consistent with a court order from the [SDNY],” notwithstanding the
SDNY’s order that all documents be submitted in camera. Since the
Government publicly disclosed the OLC-CIA memo in the NDCA
litigation, there was obviously no longer a reason to submit it for in
camera review.
14 FIRST AMENDMENT COALITION V. USDOJ
since the parties had decided “to abandon their right to
review.” In so holding, the court reasoned that “Plaintiff
abandoned its right to pursue its motion for reconsideration,
to appeal this Court’s summary judgment order and to
challenge the redactions to the OLC-DOD memorandum and
the CIA memorandum.” And as for the defendant, “[n]ot
only did the government abandon its right to seek en banc
review in the Second Circuit or to file a petition for a writ of
certiorari, it voluntarily disclosed the CIA memorandum to
Plaintiff in this case . . . .” (emphasis added). The district
court then denied FAC’s motion for attorney’s fees because
“Defendant in this case released the documents largely as a
result of the Second Circuit’s ruling in NY Times, not as a
result of the ruling in this case.”
This appeal followed.10
II
“Because an award of fees under [FOIA] is discretionary,
we review for an abuse of discretion. A trial court abuses its
discretion when its decision is based on clearly erroneous
factual findings or an incorrect legal standard.” United Ass’n
of Journeymen & Apprentices of Plumbing & Pipefitting
Indus., Local 598 v. Dep’t of Army Corps of Engineers,
10
In oral argument before this panel, Jonathan Segal, counsel for
appellant, disclosed confidential information related to offers made by his
opponent in mediation before the Ninth Circuit Mediation Program. This
is in clear violation of Ninth Circuit Rule 33-1(c)(4), which states that any
written or oral communication made in Ninth Circuit Mediation Program
settlement discussions may not be disclosed to anyone who is not a
participant in the mediation. The panel reiterates the importance of
maintaining confidentiality in the Ninth Circuit Mediation Program. The
wrongfully disclosed information was not considered in deciding the case.
FIRST AMENDMENT COALITION V. USDOJ 15
841 F.2d 1459, 1461 (9th Cir. 1988) (abrogated on other
grounds by United States Dep’t of Justice v. Reporters
Comm. For Freedom of Press, 489 U.S. 749 (1989))
(citations omitted).
FOIA was enacted in 1966. “Without question, the Act
is broadly conceived. It seeks to permit access to official
information long shielded unnecessarily from public view
. . . .” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
In other words, “the statute’s goal is ‘broad disclosure,’ and
the exemptions [to disclosure] must be ‘given a narrow
compass.’” Milner v. Dep’t of Navy, 562 U.S. 562 (2011)
(quoting Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151
(1989)).
Congress passed substantial amendments in 1974, among
them an attorney’s fees provision awarding fees and costs to
a FOIA plaintiff who had “substantially prevailed.” 1974
Amendment to the Freedom of Information Act, Pub. L. No.
93-502, 88 Stat. 1561. The fees provision “has as its
fundamental purpose the facilitation of citizen access to the
courts to vindicate the public’s statutory rights,” and “‘a
grudging application’ of the attorney fees provision ‘would be
clearly contrary to congressional intent.’” Exner v. Fed.
Bureau of Investigation, 443 F. Supp. 1349, 1351 (S.D. Cal.
1978) (citing Nationwide Building Maintenance, Inc. v.
Sampson, 559 F.2d 704, 715 (D.C. Cir. 1977)), aff’d 612 F.2d
1202 (9th Cir. 1980). In keeping with FOIA’s broad reach,
the statute contemplates that there may well be parallel
litigation in different venues. See Taylor v. Sturgell, 553 U.S.
880, 903 (2008); see also Smith v. Bayer Corp., 564 U.S. 299,
317 (2011).
16 FIRST AMENDMENT COALITION V. USDOJ
Congress did not provide any context to the cryptic
“substantially prevailed” standard, but decisional law did. In
Church of Scientology, we explained:
To be eligible for an award of attorney’s fees
in a FOIA suit, the plaintiff must present
convincing evidence that two threshold
conditions have been satisfied. The plaintiff
must show that: (1) the filing of the action
could reasonably have been regarded as
necessary to obtain the information; and
(2) the filing of the action had a substantial
causative effect on the delivery of the
information.
700 F.2d at 489.
Although we did not specifically employ the word
“catalyst,” we remanded to the district court to assess whether
the plaintiff had substantially prevailed—and therefore was
eligible for attorney’s fees—in light of the disclosure of a
number of documents during the course of litigation before
the complaint was dismissed. Church of Scientology,
therefore, represented a “catalyst theory of recovery”;
namely, an “alternate theory for determining the prevailing
party if no relief on the merits is obtained.” Kilgour v. City
of Pasadena, 53 F.3d 1007, 1010, as modified on denial of
reh’g (9th Cir. 1995). Thereafter, the catalyst theory was, for
a number of years, consistently applied in FOIA fee award
cases within the Ninth Circuit, and was similarly employed
by our sister circuits both before and after Church of
Scientology. See, e.g., Long v. I.R.S., 932 F.2d 1309 (9th Cir.
1991) (reciting Church of Scientology standard); Nationwide
Bldg. Maint. Inc. v. Sampson, 559 F.2d 704 (D.C. Cir. 1977);
FIRST AMENDMENT COALITION V. USDOJ 17
Maynard v. C.I.A., 986 F.2d 547 (1st Cir. 1993); Vermont
Low Income Advocacy Council v. Usery, 546 F.2d 509 (2d
Cir. 1976);11 Cazalas v. United States Dep’t of Justice,
660 F.2d 612 (5th Cir. 1981); Clarkson v. I.R.S., 678 F.2d
1368 (11th Cir. 1982).
In 2001, however, the Supreme Court rejected the
application of the catalyst theory to the recovery of attorney’s
fees under the Fair Housing Amendments Act and the
Americans with Disabilities Act, holding that the theory
would impermissibly “allow[] an award where there is no
judicially sanctioned change in the legal relationship of the
parties.” Buckhannon Bd. & Care Home, Inc. v. West
Virginia Dep’t. of Health & Human Res., 532 U.S. 598, 605
(2001). We then held, in Oregon Nat. Desert Ass’n v. Locke,
572 F.3d 610, 614 (9th Cir. 2009), that Buckhannon, by
analogy, would also apply to FOIA and, therefore, abrogated
our decision in Church of Scientology. But, as we explained
in Locke, in 2007 Congress “modified FOIA’s provision for
the recovery of attorney fees to ensure that FOIA
complainants who relied on the catalyst theory to obtain an
award of attorney fees would not be subject to the
Buckhannon proscription.” Id. at 615. Since then, the FOIA
attorney’s fees statute has read:
(i) The court may assess against the United
States reasonable attorney fees and other
litigation costs reasonably incurred in any
11
The district court in Exner embraced the catalyst theory language
in Vermont Low Income, 443 F. Supp at 1353. We conclusorily affirmed
the result, simply commenting that “[t]he record supports both the findings
and the court’s conclusion,” Exner, 612 F.2d at 1207, but did not, until
Church of Scientology, specifically adopt and apply the catalyst theory.
18 FIRST AMENDMENT COALITION V. USDOJ
case under this section in which the
complainant has substantially prevailed.
(ii) For purposes of this subsection, 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 position by
the agency, if the complainant’s claim is not
insubstantial.
5 U.S.C. § 552(a)(4)(E).
Subsection (E)(i) is identical to FOIA’s earlier fee award
provision. But subsection E(ii)(II), relevant to this appeal,
expressly allows recovery based on “a voluntary or unilateral
change in position by the agency, if the complainant’s claim
is not insubstantial.”12
As we further explained in Locke, this new provision
“addresse[d] a relatively new concern that, under [the prior
statute], Federal agencies ha[d] an incentive to delay
compliance with FOIA requests until just before a court
decision [was] made that [was] favorable to a FOIA
requester.” Id. (quoting 153 Cong. Rec. S15701-04 (daily ed.
Dec. 14, 2007) (statement of Sen. Leahy, sponsor of the 2007
Amendments)). Section E(ii)(II) was designed to clarify,
therefore, “that Buckhannon does not apply to FOIA cases,”
since under that provision, “a FOIA requester can obtain
attorney’s fees when he or she files a lawsuit to obtain
12
The Government appropriately concedes that FAC’s claim was not
insubstantial.
FIRST AMENDMENT COALITION V. USDOJ 19
records from the Government and the Government releases
those records before the court orders them to do so.” Id.We have not had an opportunity since the passage of the
2007 amendment to decide whether it restores the causation
standard under the catalyst theory applied in Church of
Scientology. But six circuit courts to have addressed the
impact of the amendment have held that it simply reinstated
the pre-Buckhannon catalyst theory of recovery. See Brayton
v. Office of the United States Trade Representative, 641 F.3d
521 (D.C. Cir. 2011); Warren v. Colvin, 744 F.3d 841 (2d
Cir. 2014); Havemann v. Colvin, 537 Fed. Appx. 142 (4th
Cir. 2013); Batton v. I.R.S., 718 F.3d 522 (5th Cir. 2013);
Cornucopia Institute v. United States Dep’t of Agriculture,
560 F.3d 673 (7th Cir. 2009); Zarcon, Inc. v. N.L.R.B.,
578 F.3d 892 (8th Cir. 2009). In doing so, they have
implicitly rejected the notion that subsection E(ii)(II) should
be construed literally to allow for the recovery of attorney’s
fees without the need to establish causation once there is a
voluntary disclosure or change in position subsequent to the
initiation of FOIA litigation.
Judge Murguia and I believe that we should join our sister
circuits in holding that, under the catalyst theory, there still
must be a causal nexus between the litigation and the
voluntary disclosure or change in position by the
Government. Thus, the plaintiff in this case had to present
“convincing evidence” that the filing of the action “had a
substantial causative effect on the delivery of the
information.” Church of Scientology, 700 F.2d at 489.13
13
Notably, although we are not bound by their view of the law, the
parties agree that the Church of Scientology causation standard applies,
although they, of course, disagree as to its application in the present case.
20 FIRST AMENDMENT COALITION V. USDOJ
In doing so we explicitly reject the notion that the 2007
amendment eliminated the need to establish causation once a
lawsuit has been initiated. The statute cannot plausibly be
read that way. There may be a host of reasons why the
Government has voluntarily released information after the
filing of a FOIA lawsuit. One obvious example is that
previously classified information may have subsequently
become unclassified for reasons having nothing to do with the
litigation, or “administrative compliance with statutory
production requirements, rather than. . . [the] FOIA suit
triggered the release of the bulk of the documents.” Van
Strum v. Thomas, No. 88-4153, 1989 WL 90175, at *1 (9th
Cir. Aug. 2, 1989). Thus, as we recognized in Church of
Scientology, while it is true that “the mere fact that
defendants have voluntarily released documents does not
preclude an award of attorney’s fees to the plaintiff,” it is
equally true that “the mere fact that information sought was
not released until after the lawsuit was instituted is
insufficient to establish that a complainant has ‘substantially
prevailed.’” 700 F.2d at 491–92 (citing with approval Cox v.
United States Dep’t of Justice, 601 F.2d 1, 6 (D.C. Cir.
1979)).14
III
In Church of Scientology we remanded to the district
court to make factual findings regarding three factors which
14
It is difficult to conceptually square Judge Berzon’s opinion that
causation is irrelevant with the reality that the bringing of the litigation
was itself a cause for what subsequently occurred. Causation, therefore,
is very much in play, requiring the plaintiff to establish under the plain
reading of the statute—both before and after the amendment—that it
thereafter “substantially prevailed.”
FIRST AMENDMENT COALITION V. USDOJ 21
a court should consider in determining whether the plaintiff
had substantially prevailed: (1) “when the documents were
released,” (2) “what actually triggered the documents’
release,” and (3) “whether [the plaintiff] was entitled to the
documents at an earlier time.” Id. at 492.
Unlike Church of Scientology, there is no need to remand
to determine eligibility since the undisputed material facts
meet those criteria.15 Pullman-Standard v. Swint, 456 U.S.
273, 292 (1982) (citing Kelley v. Southern Pacific Co.,
419 U.S. 318, 331–332 (1974)) (“[A] remand is the proper
course unless the record permits only one resolution of the
factual issue. All of this is elementary.” (emphasis added)).16
A. When the Document Was Released
The NDCA litigation spanned almost two and a half
years, from its inception on February 29, 2012 until the OLC-
CIA memo was released on August 15, 2014. In Church of
Scientology we embraced the district court’s observation in
Exner “that when information is delivered may be as
important as what information is delivered.” 700 F.2d at 490
15
There may be other factors in a given case that may be relevant to
whether the plaintiff had substantially prevailed, but these three factors
clearly suffice in the present case.
16
Judge Murguia does not join in Part III because she “do[es] not
agree that the district court clearly erred in its causation finding.”
Murguia Concurrence at 42. But reversal is required whenever a district
court employs “an incorrect legal standard,” United Ass’n of Journeymen,
841 F.2d at 1461, and I believe, as explained in this Part, that the district
court committed legal error in its cryptic causation conclusion by failing
to recognize and apply the correct legal standard, namely the factors
articulated in Church of Scientology.
22 FIRST AMENDMENT COALITION V. USDOJ
(citing Exner, 443 F. Supp. at 1353). We also noted the
district court’s “support” in Exner for the requisite causal
nexus “in that plaintiff faced formidable opposition by the
government at every juncture,” and “[i]t was unlikely, in the
district court’s view, that the action would have produced
such favorable results, without the ‘dogged determination’ of
plaintiff.” Id.The same can be said of the present case. FAC was met
with abject resistance throughout the entire litigation until the
OLC-CIA memo was produced roughly two and a half years
after the lawsuit was initiated, and almost a year and seven
months after the Government waived any secrecy or privilege
with the official release of the White Paper.
B. What Actually Triggered the Document’s Release
There is no question that the Second Circuit’s decision in
the SDNY litigation was an impetus for FAC to continue its
litigation. But what actually triggered the release of the
OLC-CIA memo was that FAC sought to vacate the district
court’s grant of summary judgment. It was the appellant’s
“dogged determination,” therefore, that led the district court
to “direct” the parties to discuss whether the litigation was
moot, and which resulted in the Government’s decision—as
acknowledged by the lower court—to “voluntarily disclose[]
the CIA memorandum to [FAC].” Because of FAC’s efforts,
the public then learned that the OLC-DOD memo was not the
first memo addressing the justification for the drone attack,
nor was it identical to the prior OLC-CIA memo. Plaintiff’s
litigation, therefore, “triggered the release of additional or
key documents.” Van Strum, 1989 WL 90175, at *1.
FIRST AMENDMENT COALITION V. USDOJ 23
C. Whether Plaintiff Was Entitled to the Document at
an Earlier Time
There is no reason why the district court failed to
recognize, as the Second Circuit did, that the official release
of the White Paper—coupled with all the prior public
statements of high-ranking Government officials—
constituted a waiver of any secrecy and privilege that the
Government had asserted. The district court, therefore, erred
in granting summary judgment and dismissing the complaint.
But for this error, the district court litigation would have
ended earlier. Thus, FAC had to endure unnecessarily
protracted litigation. It is counterintuitive to punish FAC for
expending additional legal fees to pursue the litigation, when
it would have sooner been entitled to the release of both
memoranda—and the right to recoup its counsel fees—if not
for the district court’s error.
IV
In sum, the district court abused its discretion when it
failed to consider and apply the relevant factors that we
articulated in Church of Scientology for determining whether
FAC had substantially prevailed. Its limited view of
causation was at odds with Church of Scientology’s more
enlightened view that, as here, multiple factors may be at
play. It was, moreover, inconsistent with Congress’
intent—once again—that the award of FOIA counsel fees
“has as its fundamental purpose the facilitation of citizen
access to the courts,” and should not be subject to “a grudging
application.” Exner, 443 F. Supp. at 1351–52 (citing
Nationwide Building, 559 F.2d at 715).
24 FIRST AMENDMENT COALITION V. USDOJ
Since we have determined eligibility as a matter of law
because there are no material facts in dispute, remand is
required solely for the district court to determine the fees to
which FAC is entitled.
REVERSED and REMANDED.
BERZON, Circuit Judge, concurring in the judgment:
I agree with the result reached by both of my colleagues.
But I have a fundamental disagreement with both of them
regarding the reach of the Freedom of Information Act
(FOIA) fees provision, and so concur only in the judgment.1
Contrary to Judge Block’s position, the text of the fees
provision, 5 U.S.C. § 552(a)(4)(E), plainly does not require
a causal nexus between the litigation and the agency’s
disclosure. It is inappropriate and impermissible to read one
in, even though other courts have done so.
Judge Block represents that a majority of the panel holds
that a FOIA plaintiff “ha[s] to” present evidence that the
litigation had a “substantial causative effect” on the
disclosure to be eligible for fees absent a judgment in her
favor. Lead Op. at 19 (internal citations omitted); see also id.(reading other circuits’ law to affirm “the need to establish
causation” between the litigation and a voluntary agency
disclosure for a plaintiff to be eligible for fees) (emphasis
1
With the exception of footnote 10 of Judge Block’s opinion, which
I join.
FIRST AMENDMENT COALITION V. USDOJ 25
added).2 Judge Murguia says that she concurs in this part of
the lead opinion. Concurring Op. at 42. But the alternative
theory of fee eligibility propounded in Judge Murguia’s
concurrence—which, as I shall explain, is as textually
insupportable as the causal nexus requirement— necessitates
neither a final judgment in favor of the plaintiff nor a
showing of causation. Because Judge Murguia and I,
although for different reasons, would hold that even absent a
judgment, causation is not always a necessary condition of
fee eligibility for FOIA complainants, there is in fact no
majority for the holding that causation has to be
demonstrated.
I
Our inquiry begins with the statute. If the text is clear, as
it is here, it ends there as well. United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989).
A FOIA complainant is eligible for attorney fees if she
has “substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). A
person has “substantially prevailed” if she “has obtained
relief through either – (I) a judicial order . . . or (II) a
voluntary or unilateral change in position by the agency, if
the complainant’s claim is not insubstantial.” Id.§ 552(a)(4)(E)(ii). We are concerned with subsection (II).
Parsing that subsection, it has three elements. First, the
complainant must have “obtained relief”; in this context, the
requestor must have received from the agency some of the
information she was suing for. Second, the relief must have
2
I will refer to Judge Block’s opinion for the court as the “lead
opinion.”
26 FIRST AMENDMENT COALITION V. USDOJ
been obtained through “a voluntary or unilateral change” in
the agency’s position. This element contemplates the willing
disclosure of information to the complainant by an agency, in
contrast to one brought about by “judicial order” or
“enforceable written agreement or consent decree,” as
envisioned in subsection (I). Lastly, the claim must be “not
insubstantial.” Id. No more, no less. Conspicuously absent
from Congress’s definition of a “substantially prevailing”
complainant is the existence of a “causal nexus between the
litigation and the voluntary disclosure or change in position
by the Government.” Lead Op. at 19.
Nor does the text of the applicable provision offer any
language that could include a hidden causation requirement.
First, to “obtain relief” from an agency simply means to
receive the information a requestor is seeking, whether that be
documents, a Vaughn index, or a response acknowledging the
existence of relevant documents. The fact of relief does not
relate to the impetus behind the agency’s action.
The next element of the provision—“a voluntary or
unilateral change in position by the agency”—if anything cuts
against a reading that requires a “substantially prevailing”
complainant to demonstrate causation. “Voluntary” may
mean “done without any present legal obligation” to do so,
but in another sense it means “not constrained, impelled, or
influenced by another.” Webster’s Third New Int’l
Dictionary 2499 (1971) (emphasis added). A “unilateral”
disclosure is one “done, made, undertaken, or shared by one
of two or more persons or parties,” id. at 2564, which
includes actions taken by one party independently of the
other. These words, standing alone, indicate independent
action not caused by the complainant’s litigation.
FIRST AMENDMENT COALITION V. USDOJ 27
The last stone to turn over—the “not insubstantial”
element—yields no implicit causal nexus requirement, either.
Whether a claim is “substantial,” or “not insubstantial,”3
bears on whether the claim has or may have merit. That the
claim could have merit may well explain why the agency
turned over the requested information after the lawsuit was
filed. So the substantiality of the claim may serve as a proxy
or substitute for causation (a notion borne out by the
legislative history, discussed later). But it is not itself a
causation requirement; substantiality is a different inquiry
from motive or causation.
Those three elements are all a FOIA complainant needs
to “substantially prevail[]” and thus be eligible for attorney
fees.4 This provision obviously embraces cases in which a
requestor could demonstrate that the lawsuit did spur an
agency’s hand-over of documents before the case matures to
judgment, but it extends equally to instances in which the
agency decides to release the document for other reasons.
In short, Congress spelled out in detail the meaning of
“substantially prevailed,” but did not include any causation or
motive requirement. We are not free to interpose one.
“There is a basic difference between filling a gap left by
3
“The double negative in the amendment was not my proposal and
I accept no responsibility for that grammatical infraction.” 153 Cong.
Rec. S10,989 (daily ed. Aug. 3, 2007) (statement of Sen. Kyl).
4
A complainant who is “eligible” for fees is not necessarily “entitled”
to them; I am only concerned here with the effect of the statutory
amendments on eligibility for fees. See Or. Nat. Desert Ass’n v. Locke,
572 F.3d 610, 614 (9th Cir. 2009) (“To obtain an award of attorney fees
under the FOIA, a plaintiff must demonstrate both eligibility and
entitlement to the award.”).
28 FIRST AMENDMENT COALITION V. USDOJ
Congress’ silence and rewriting rules that Congress has
affirmatively and specifically enacted.” Lamie v. U.S.
Trustee, 540 U.S. 526, 538 (2004) (internal quotation marks
and citations omitted). We may not read into this quite
specific statute something that is not there. See, e.g., United
States v. Ressam, 553 U.S. 272, 273 (2008) (holding that a
plain reading of “carrying an explosive ‘during the
commission of’” a felony foreclosed a relational requirement
between the felony and the explosives).
II
The lead opinion does not (and could not) locate the
causal nexus requirement in the amended statutory text.
Instead, it finds the causation requirement in cases pre-dating
both Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598(2001), and the statutory amendments to FOIA. See Lead Op.
at 19–20 (citing Church of Scientology v. U.S. Postal Serv.,
700 F.2d 486, 489, 491–92 (9th Cir. 1983)).
As the lead opinion notes, Lead Op. at 17,
Buckhannon was understood by this Court to foreclose
attorney fees under the “catalyst theory” that had been
embraced by most courts of appeals. See Or. Nat. Desert
Ass’n, 572 F.3d at 616 (agreeing with two other circuits that
Buckhannon applied to FOIA). Oregon Natural Desert
Association also recognized that the 2007 FOIA amendments
legislatively overruled Buckhannon with respect to attorney
fees under FOIA.5 Id. at 617.
5
Oregon Natural Desert Association states that the statutory
amendments reinstated the pre-Buckhannon catalyst theory, perhaps
implying a causation requirement. 572 F.3d at 614–15. The statement to
FIRST AMENDMENT COALITION V. USDOJ 29
Where I part ways with the lead opinion is in interpreting
precisely what the statutory amendments did—specifically,
how they overruled Buckhannon. The lead opinion represents
that the amendments “simply reinstated the pre-Buckhannon
catalyst theory of recovery,” Lead Op. at 19, including the
requirement of a causal nexus. In adopting this
characterization, the lead opinion is in good company—as it
notes, several other circuits have assumed that the
amendments restored the status quo ante. See, e.g., Summers
v. U.S. Dep’t of Justice, 569 F.3d 500, 503 (D.C. Cir. 2009)
(“Congress amended the FOIA to incorporate the catalyst
theory.”); Batton v. IRS, 718 F.3d 522, 525 (5th Cir. 2013)
(construing the statutory amendments to “codif[y]” the
catalyst theory, including the requirement that the litigation
had a “substantive causative effect” on the disclosure);
Zarcon, Inc. v. NLRB, 578 F.3d 892, 894 (8th Cir. 2009)
(reading the statutory amendments to “definitively establish[]
that the ‘catalyst theory’” applies to attorney fees under
FOIA). These courts, like the lead opinion, have understood
the amendments simply to effect an erasure of Buckhannon
as applied to FOIA, reinstating the pre-Buckhannon case law
that requires a causal nexus. See, e.g., Conservation Force v.
Jewell, 160 F. Supp. 3d 194, 202, 205–06 (D.D.C. 2016)
(rejecting a FOIA plaintiff’s eligibility for fees because “the
catalyst analysis is all about causation” and the plaintiff failed
to demonstrate a causal link) (citing among others Cox v. U.S.
Dep’t of Justice, 601 F.2d 1 (D.C. Cir. 1979)); Lead Op. at 20
(citing Church of Scientology, 700 F.2d at 489). But none of
those opinions did business with the language of the statute,
that effect is dicta, however. The Court decided in that case only that the
amended fees provision did not apply retroactively, and therefore did not
address the appropriate application of the new provision.
30 FIRST AMENDMENT COALITION V. USDOJ
or explained why the courts should add to the statute a
requirement that is simply not in the text.
Notably, the causation requirement often led, as it does
here, to complicated, fact-bound determinations. See
Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476, 1496 (D.C.
Cir. 1984) (explaining that the causation analysis required
consideration of whether the agency “made a good faith effort
to search out material and to pass on whether it should be
disclosed” as well as inquiry into the number of requests
pending before the agency and how time-consuming the
search process could be) (internal quotation marks and
citations omitted); Church of Scientology, 700 F.2d at 492(instructing the district court to determine on remand “what
actually triggered the documents’ release” to the plaintiff)
(emphasis added). Congress surely could have reinstated the
body of pre-Buckhannon case law, with its fact-intensive
inquiry into causation, by adopting language similar to that
used in that case law. For example, it could have borrowed
Judge Friendly’s formulation that “a plaintiff must show at
minimum that the prosecution of the action could reasonably
have been regarded as necessary and that the action had
substantial causative effect on the delivery of the
information.” Vt. Low Income Advocacy Council, Inc. v.
Usery, 546 F.2d 509, 513 (2d Cir. 1976), abrogated by Union
of Needletrades, Indus. & Textile Emps. v. INS, 336 F.3d 200(2d Cir. 2003); see also Church of Scientology, 700 F.2d at
489 (using the language from Usery); Lovell v. Alderete,
630 F.2d 428, 432 (5th Cir. 1980) (same).
But Congress did not do that. Instead, Congress opted
explicitly to define “substantially prevail[ing]” when it
FIRST AMENDMENT COALITION V. USDOJ 31
amended the statute,6 and to do so differently than the pre-
Buckhannon cases had. See 5 U.S.C. § 552(a)(4)(E)(ii).
III
The lead opinion, and the decided cases reading the new
statute to incorporate pre-Buckhannon law on the catalyst
theory, make two points: (1) legislative history indicates that
Congress meant to overrule Buckhannon and restore the
status quo ante for FOIA suits;7 and (2) a reading of the
statute in which complainants can “substantially prevail[]”
without in any way causing the disclosure is implausible.
Where the statutory text is clear, it should not be defeated
by legislative history unless the plain meaning threatens
entirely to frustrate Congress’s intentions in enacting the
statute. See, e.g., King v. Burwell, 135 S. Ct. 2480, 2495–96
(2015) (adopting a reading of the Affordable Care Act in line
with Congress’s aim to “improve health insurance markets,
not to destroy them”). Legislative history can, however,
sometimes throw new light on statutory language that may
seem straightforward but that takes on a different coloration
in light of a specialized context or linguistic understandings,
demonstrated by “how the legislators considering the bill
were speaking about the statute” at the time of enactment.
James v. City of Costa Mesa, 700 F.3d 394, 409 n.2 (9th Cir.
6
Before 2007, the terse fees provision in FOIA provided for fees and
costs “in any case under this section in which the complainant has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E) (2006).
7
See, e.g., Lead Op. at 18 (quoting floor statement); Or. Nat. Desert
Ass’n, 572 F.3d at 616 (same); Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 526 (D.C. Cir. 2011) (citing extensively the
committee reports and floor statements for the FOIA amendments).
32 FIRST AMENDMENT COALITION V. USDOJ
2012) (Berzon, J., concurring in part and dissenting in part).
It can also clarify ambiguities created by “the evolution of
language over time, a not-infrequent source of error in
interpreting statutes of long-standing vintage.” United States
v. Kimsey, 668 F.3d 691, 699 (9th Cir. 2012); see also
Spencer v. World Vision, Inc., 633 F.3d 723, 752–55 (9th Cir.
2011) (Berzon, J., dissenting) (interpreting “religious
corporation” as a term of art in light of old common-law
usage and statutory history).
Examining the legislative history in this instance is useful
to confirm that there is no nonobvious reading of the statutory
language compelled, or even supported, by that history. To
the contrary, the history affirmatively indicates a purposeful
decision to avoid the factually difficult causation question.
The lead opinion is correct that the amendments appear to
have been motivated by concern about the effect of
Buckhannon on fees in FOIA cases.8 The so-called
“Buckhannon fix” was drafted to “clarif[y] that
Buckhannon’s holding does not and should not apply to FOIA
litigation.” S. Rep. No. 110-59, at 6 (2007). But that
explanation does not include an account of what standard
should apply instead of “Buckhannon’s holding” and so in no
way indicates that the straightforward language of Congress
does not mean what it says.
8
In particular, the sponsors of the bill worried about the strategic
timing of FOIA disclosures by agencies to avoid paying fees. See S. Rep.
No. 110-59, at 3–4 (2007) (“[F]ederal agencies have an incentive to delay
compliance with FOIA requests until just before a court decision that is
favorable to a FOIA requestor.”); 153 Cong. Rec. S15,704 (daily ed. Dec.
14, 2007) (statement of Sen. Leahy) (same).
FIRST AMENDMENT COALITION V. USDOJ 33
Moreover, the drafting history of the amended statute
supports my view that § 552(a)(4)(E)(ii)(II) has no causation
requirement. Earlier versions of the bill defined a
complainant as “substantially prevailing” if she obtained
relief through a judicial order or
if the complainant’s pursuit of a nonfrivolous
claim or defense has been a catalyst for a
voluntary or unilateral change in position by
the opposing party that provides a substantial
part of the requested relief.
OPEN Government Act of 2005, S. 394, 109th Cong. § 4
(2005) (emphasis added); see also H.R. 867, 109th Cong. § 4
(2005) (same language). But the next round of bills dropped
the “catalyst” element, instead requiring only that a
complainant obtain relief through “a voluntary or unilateral
change in position by the opposing party, where the
complaintant’s [sic] claim or defense was not frivolous.” S.
849, 110th Cong. § 4 (2007); see also H.R. 1309, 110th Cong.
§ 4 (2007) (same except “in a case in which” instead of
“where”). In response to a few members’ concerns, “not
frivolous” became “not insubstantial,” the language that was
ultimately included in the statute as enacted.
The remarks by drafters of the final bill directly confirm
that the decision to leave out a causation concept was
deliberate. “Floor statements by the sponsors of the
legislation are given considerably more weight than floor
statements by other members, . . . and they are given even
more weight where, as here, other legislators did not offer any
contrary views.” Kenna v. U.S. Dist. Court for C.D. Cal.,
435 F.3d 1011, 1015 (9th Cir. 2006).
34 FIRST AMENDMENT COALITION V. USDOJ
Senator Kyl, a proponent of the amendment that became
the statutory language, believed the substantiality test was
“well-suited” to evaluating fee requests because “courts
should be able to apply [it] without further factual inquiry
into the nature of a complaint.” 153 Cong. Rec. S10,989
(daily ed. Aug. 3, 2007). By so providing, Senator Kyl
reported, the amendment “addresse[d] one of the Supreme
Court’s major concerns in the Buckhannon case, that ‘a
request for attorney’s fees should not result in a second major
litigation.’” Id. (citing Buckhannon, 532 U.S. at 609)).
Senator Kyl, in other words, explained Congress’s move
away from the earlier “catalyst” language as a quest for a
more administrable standard—one in which substantiality,
and not causation, is the basis of a fee award. And Senator
Kyl recognized that his “not insubstantial” amendment was
“very generous to FOIA requesters” and “a pretty low
standard” made “in the spirit of compromise.” Id.Another sponsor of the bill, Senator Leahy, opined that “a
FOIA requester can obtain attorneys’ fees when he or she
files a lawsuit to obtain records from the Government and the
Government releases those records before the court orders
them to do so.” 153 Cong. Rec. S15,704 (daily ed. Dec. 14,
2007). Senator Leahy’s careful explanation of the new fees
provision in his own bill captures the mechanics of the
provision, which—as his statement reveals—has no causation
requirement.
One line in the Senate report accompanying S. 894 did
say that the bill “clarif[ies] that a complainant has
substantially prevailed . . . if the pursuit of a claim was the
catalyst for the voluntary or unilateral change in position by
the opposing party.” S. Rep. No. 110-59, at 6 (2007)
(emphasis added). But, as I have noted, the statutory
FIRST AMENDMENT COALITION V. USDOJ 35
language does not use the term “catalyst,” or “causation,” or
“because of,” or anything similar, in defining “substantially
prevailed.” To substitute one phrase in one line in a
committee report for the statute’s actual definition is to
commit the precise sin which has led to the near-complete
demise—in my view unfortunate—of legislative history in
interpreting statutes: Congress as a whole voted on the statute
as written, and should not be taken as instead adopting
arguably contrary language in a committee report absent
extremely good reason. See King, 135 S. Ct. at 2492–96
(relying on “context and structure” to reject the natural
reading of a word because of the “calamitous result[s]” that
would otherwise ensue). Here, there is no such reason.
Clearly, Congress could have chosen to—and initially
did—draft a provision codifying the pre-Buckhannon catalyst
theory, by using the very word “catalyst,” which courts had
construed for decades to include a causation requirement.
But it ultimately chose not to do that. The statute enacted by
Congress and signed by the president did not reinstate the
pre-Buckhannon definition of “substantially prevailing,” but
instead devised a new one. “[C]ourts must presume that a
legislature says in a statute what it means and means in a
statute what it says there.” Conn. Nat’l. Bank v. Germain,
503 U.S. 249, 253–54 (1992).
IV
We should take no comfort from the fact that other
circuits have read into the fees provision a causation
requirement, and should not join them in insisting upon this
36 FIRST AMENDMENT COALITION V. USDOJ
statutory mirage.9 In Guido v. Mount Lemmon Fire District,
this Court recently disagreed with four other circuits in
holding that the twenty-employee minimum in the Age
Discrimination in Employment Act did not apply to political
subdivisions. 859 F.3d 1168, 1172–74 (9th Cir. 2017). The
other appeals courts relied on parallel legislation and
legislative history, notwithstanding the unambiguous words
of the directly applicable statute. Id. at 1174–75. Here, as
there, the statute is clear; we need not go outside its text to
know that FOIA plaintiffs don’t need to show causation to
collect fees. The consensus of contrary authority should not
disincline us from this reading when that consensus is just
wrong. Cf. Desert Palace, Inc. v. Costa, 539 U.S. 90, 101
(2003) (overruling four circuits’ requirement of direct
evidence in mixed-motive Title VII cases because they
neglected an intervening change in statutory language).
The lead opinion suggests that the fee provision “cannot
plausibly be read” in a way that does not incorporate a
causation requirement. Lead Op. at 20. But the cases it cites
for this proposition all pre-date Buckhannon and the statutory
amendments. Id. at 20. They are evidence of nothing more
than what a pre-Buckhannon plaintiff needed to show in order
to be “substantially prevailing” under existing judge-made
law on fees for catalyst complainants. To the extent they
9
Only one court seems to have entertained the notion that the statute,
read plainly, does not include a causation requirement. See Sai v. Transp.
Sec. Admin., 155 F. Supp. 3d 1, 6 n.4 (D.D.C. 2016) (“[U]nder the literal
terms of the statute, a plaintiff need only show that the agency has
changed its position and that the plaintiff’s claim was ‘not
insubstantial.’”). Sai then noted the legislative history discussed above,
which it believed counseled in favor of such a requirement. Because
causation was “likely a non-issue” in that case, however, it did not discuss
the question further. Id.FIRST AMENDMENT COALITION V. USDOJ 37
impose a causal nexus requirement, they have been
superseded by statute and have no bearing on whether fees
are available to First Amendment Coalition or any requestor
seeking fees under § 552(a)(4)(E)(ii)(II).
But even taking the lead opinion’s concern on its merits,
my reading of the statute is an entirely plausible one. As
Senator Kyl’s statement quoted above suggests, Congress
probably wanted courts to avoid difficult determinations of
causation—as shown by this case—by creating, in effect, a
presumption of causation when agencies unilaterally change
position as to a possibly meritorious disclosure request after
a lawsuit has been filed. The pre-Buckhannon standard
required difficult multi-factor inquiries by the district courts
to determine whether the lawsuit “actually” caused the
disclosure or not. Congress could sensibly want a more
administrable test for screening out complainants who ought
not to recover attorney fees.
Additionally, Congress may have wanted to make whole
plaintiffs who simply should not have had to resort to
litigation to obtain the information they wanted, having
necessarily already made an appropriate, “not insubstantial”
request for disclosure to the agency, which was denied. See
5 U.S.C. § 552(a)(2)-(3) (providing for disclosure of non-
exempt agency documents). The agency’s subsequent release
of the information, for whatever reason, could be seen as a
likely indication that incurring the litigation expenses should
have been unnecessary. That the agency has already passed
on a chance (often more than one) to hand over requested
information before litigation and so without exposure to fees
makes FOIA litigation somewhat unusual, and helps explain
why Congress concluded that FOIA plaintiffs should at this
stage obtain attorney fees if the agency changes its mind
38 FIRST AMENDMENT COALITION V. USDOJ
about releasing information only after litigation costs have
been incurred.
In short, making FOIA complainants eligible for fees
without demonstrating a causal nexus is neither absurd nor
“threaten[s] to destroy the entire statutory scheme.” Guido,
859 F.3d at 1174 (citing King, 135 S. Ct. at 2495). Rather,
the standard stated quite plainly in the statute is perfectly
sensible. It forwards “the philosophy of full agency
disclosure” undergirding FOIA, by paying the fees of those
who make potentially meritorious requests for information to
the agency and obtain the requested information only after
filing suit.10 Dep’t of Air Force v. Rose, 425 U.S. 352,
360–61 (quoting S. Rep. No. 813, at 3 (1965)). The lead
opinion falls into error by insisting, as have other courts to
consider the issue, that the amended statute includes a
causation requirement that is just not there.
V
My objection to Judge Murguia’s analysis of fee
eligibility is fundamentally the same as my objection to the
lead opinion. Her alternative theory of eligibility is entirely
divorced from the words of the statute we must apply to
determine if FOIA plaintiffs are eligible for fees.
10
As a practical matter, where there is litigation pending and the basis
for the release of information is substantial, I suspect instances in which
the information is released for reasons entirely independent of the
litigation are likely rare. The old catalyst theory, after all, required only
a “substantial causative effect,” not that the lawsuit be the sole or
determinant cause of disclosure. Cf. ACLU v. U.S. Dep’t of Homeland
Sec., 810 F. Supp. 2d 267, 274 (D.D.C. 2011) (finding that the litigation
“substantially caused” the release of some documents even though others
were released in the course of defendant’s administrative response).
FIRST AMENDMENT COALITION V. USDOJ 39
Under Judge Murguia’s approach, First Amendment
Coalition is eligible for fees because it would have prevailed
on the merits but for unilateral government action, in this case
the failure of the government to disclose to the district court
that the White Paper had been officially released. Concurring
Op. at 49. Judge Murguia maintains that her approach is
“consistent with FOIA’s text,” Concurring Op. at 48, but her
concurrence fails to engage with the text of 5 U.S.C.
§ 552(a)(4)(E)(ii)(II) at all.
Again, a plaintiff who does not obtain a judgment may
nonetheless “substantially prevail,” and thus be eligible for
fees, if she has obtained relief through a voluntary or
unilateral change in agency position on a “not insubstantial”
claim. 5 U.S.C. § 552(a)(4)(E)(ii)(II). Judge Murguia’s
approach replaces the words of the statute with a different
substantive standard: the plaintiff is eligible if she is “correct
on the merits” (emphasis added), or would have prevailed in
the FOIA suit, but for the government’s unilateral action
“outside [the plaintiff’s] control.”11 Concurring Op. at 50.
However consistent this approach is with the “purpose”
of FOIA, Concurring Op. at 48, it has no textual warrant in
the statute. Whereas the lead opinion just reads an extra
element into § 552(a)(4)(E)(ii)(II), Judge Murguia sketches
an additional theory of recovery that does not overlap at all
with § 552(a)(4)(E)(ii)(II). Where the statute requires only a
“not insubstantial” claim, her analysis demands an actually
meritorious one. Concurring Op. at 50. Where the statute
11
Judge Murguia implies bad faith on the part of the government in
this case, a suggestion on which I take no position. It is not clear if bad
faith is required under her theory of eligibility or is merely one instance
of action but for which a plaintiff would have recovered.
40 FIRST AMENDMENT COALITION V. USDOJ
requires a voluntary or unilateral change in position by the
government agency, this approach calls for “unilateral action”
that “prevent[s] [the plaintiff] from prevailing” on its claim.
Id. at 12. Whatever the merits of this set of requirements as
a policy for punishing bad-faith litigation conduct,12 it is
contrary to the text of the statute we must apply when
awarding fees to FOIA plaintiffs. The arguments against
reading a causal nexus requirement into § 552(a)(4)(E)(ii)(II),
discussed in Parts II-IV above, apply with equal, if not more,
force to an alternative basis for eligibility that finds support
in neither the text of the statute nor once-applicable (but now
superseded) circuit law on catalyst recovery.
Finally, I note once again that one result of Judge
Murguia’s alternative analysis is that there is no majority
holding as to whether, absent judicial relief, a plaintiff must
demonstrate a causal nexus between the lawsuit and the
disclosure.
VI
Applied to the facts of this case, First Amendment
Coalition is a “substantially prevailing” complainant. It
obtained relief—the OLC-CIA memo—before judgment
through a voluntary change in position by the Department of
Justice on a “not insubstantial” claim. See Lead Op. at 18
n.12 (noting the government’s concession that the claim is not
insubstantial). The statute does not require us to, and indeed
we may not, “read an absent word” (or provision) into the
statute. Lamie, 540 U.S. at 538.
12
There are other measures for dealing with bad-faith litigation
tactics, like sanctions, that have the virtue of not altering the substantive
law.
FIRST AMENDMENT COALITION V. USDOJ 41
* * * * *
For these reasons, I concur only in the judgment (with one
exception noted, see note 1, supra).
MURGUIA, Circuit Judge, concurring in part and concurring
in the judgment:
I write separately to explain my reasoning in this
challenging case.
FOIA allows for an award of attorney fees to eligible
parties who can show their entitlement to fees. Where a
FOIA plaintiff prevails on the merits of her claim, eligibility
for fees is straightforward. Where a FOIA plaintiff does not
prevail on the merits of her claim, but the Government
nonetheless releases some or all of the information sought
through a unilateral disclosure, eligibility for fees is less
straightforward. The leading test for analyzing eligibility in
these circumstances asks whether the plaintiff’s litigation was
a “substantial causative effect” of the disclosure of the
information. See Church of Scientology of Cal. v. U.S. Postal
Serv., 700 F.2d 486, 489 (9th Cir. 1983). In keeping with its
name, the substantial causative effect test has long
incorporated a causation requirement. See, e.g., Long v. IRS,
932 F.2d 1309, 1313 (9th Cir. 1991). We sometimes refer to
this as a “catalyst theory” of recovery. Oregon Nat. Desert
Ass’n v. Locke, 572 F.3d 610, 612, 615 (9th Cir. 2009).
This case concerns whether First Amendment Coalition,
a FOIA plaintiff, is eligible for an award of attorney fees.
The district court concluded that First Amendment Coalition
42 FIRST AMENDMENT COALITION V. USDOJ
did not prevail on the merits or satisfy the “substantial
causative effect” test for a catalyst recovery, and was
therefore ineligible for an award of fees. The appeal of that
decision presents three distinct questions: (1) whether the
catalyst theory and its “substantial causative effect” test still
includes a causation requirement under the amended text of
FOIA; (2) whether the district court clearly erred in its factual
finding on causation; and (3) whether First Amendment
Coalition is eligible for an award of attorney fees.
On the first question, I join in the analysis of part II of the
opinion, finding that recovery under a catalyst theory
continues to require causation. On the second question, I do
not join in the opinion’s analysis, because I do not agree that
the district court clearly erred in its causation finding. On the
third question, I conclude that First Amendment Coalition is
eligible for fees. The Department of Justice (the DOJ)
prevented First Amendment Coalition from prevailing on the
merits, and the district court erred by failing to take into
account the DOJ’s conduct when analyzing eligibility. I
therefore concur in reversing the district court’s judgment on
First Amendment Coalition’s eligibility for a fee award, and
in remanding to consider First Amendment Coalition’s
entitlement to fees.
I. Background
In 2010, lawyers in the Office of Legal Counsel (OLC) in
the DOJ wrote two memoranda analyzing the targeted killing
of an American citizen abroad: a memorandum from the OLC
to the U.S. Department of Defense (the OLC-DOD
Memorandum) and a memorandum from the OLC to the
Central Intelligence Agency (the OLC-CIA Memorandum).
These memoranda were not public, and various Government
FIRST AMENDMENT COALITION V. USDOJ 43
agencies refused to confirm or deny their existence. When
First Amendment Coalition submitted its FOIA request in
2011, these two memoranda were within the scope of the
request. DOJ did not provide these memoranda to First
Amendment Coalition, or confirm or deny their existence.
First Amendment Coalition then litigated in pursuit of the
still-undisclosed and unacknowledged responsive materials
in the United States District Court for the Northern District of
California (NDCA). Other parties brought similar FOIA
actions in the United States District Court for the Southern
District of New York (SDNY).
The SDNY plaintiffs lost on the merits of their suit in
early 2013. N.Y. Times Co. v. U.S. Dep’t of Justice (NY
Times I), 915 F. Supp. 2d 508, 516–18 (S.D.N.Y. 2013).
Later that year, the United States Government acknowledged
the OLC-DOD Memorandum after a series of other related
disclosures, most notably an internal “White Paper”
summarizing the OLC legal rationales. The DOJ and other
agencies, however, did not make the OLC-DOD
Memorandum public, and did not disclose the existence of the
OLC-CIA Memorandum.
In the NDCA litigation, the DOJ and First Amendment
Coalition filed cross-motions for summary judgment
regarding the release of the materials First Amendment
Coalition had requested. The DOJ did not mention the White
Paper in the opening brief for its second motion for summary
judgment. After First Amendment Coalition emphasized the
leaked White Paper in its briefing, the DOJ in its reply to its
motion for summary judgment and opposition to First
Amendment Coalition’s cross-motion stated: “The White
Paper is a draft document that was originally provided in
confidence to Congress; the Executive Branch later
44 FIRST AMENDMENT COALITION V. USDOJ
acknowledged the draft document.” The DOJ did not inform
First Amendment Coalition or the district court that it had
provided the White Paper to a news organization called
Truthout in response to Truthout’s separate FOIA request.
See N.Y. Times Co. v. U.S. Dep’t of Justice (NY Times III),
756 F.3d 100, 110 n.9 (2d Cir. 2014) (noting the United
States also never informed the ACLU, a plaintiff in the
SDNY litigation of this release). This action constituted an
intentional public release and disclosure of the White Paper,
rather than a mere acknowledgment, and that distinction
proved critical.
In early 2014, the NDCA district court ruled against First
Amendment Coalition on the merits of the cross-motions for
summary judgment. In its order, the district court observed
that First Amendment Coalition “makes much of the fact that
the unclassified White Paper prepared for Congress has been
leaked and acknowledged by the Government. However,
there has been no ‘official disclosure’ of the White Paper.”
The district court’s statement that there was no official
disclosure was incorrect given the prior DOJ release of the
White Paper in response to the Truthout FOIA request. Id.Ten days after the NDCA district court ruled against First
Amendment Coalition on the merits, the Second Circuit
reversed the SDNY district court and ordered the release of
a redacted version of the OLC-DOD Memorandum. N.Y.
Times Co. v. U.S. Dep’t of Justice (NY Times II), 752 F.3d
123, 126 (2d Cir.), opinion revised and superseded, 756 F.3d
100 (2d Cir. 2014). In its opinion, the Second Circuit
determined that the OLC-DOD Memorandum’s legal analysis
was no longer exempt from FOIA disclosure because of the
release of the White Paper and public statements by United
States officials. Id. at 141. The Second Circuit specifically
FIRST AMENDMENT COALITION V. USDOJ 45
noted that the White Paper made a dispositive difference,
focusing on the effect of the White Paper in showing waiver
of the United States’ privilege arguments:
Even if these statements assuring the public of
the lawfulness of targeted killings are not
themselves sufficiently detailed to establish
waiver of the secrecy of the legal analysis in
the OLC-DOD Memorandum, they establish
the context in which the most revealing
document, disclosed after the [SDNY] District
Court’s decision, should be evaluated. That
document is the DOJ White Paper[.]
Id. at 138; see id. at 141 (“Whatever protection the legal
analysis might once have had has been lost by virtue of public
statements of public officials at the highest levels and official
disclosure of the DOJ White Paper.”).
The Second Circuit’s opinion also included the following
paragraph, referencing the NDCA litigation:
The recent opinion of the District Court for
the Northern District of California, . . .
denying an FOIA request for the OLC-DOD
Memorandum, is readily distinguishable
because the Court, being under the impression
that “there has been no ‘official disclosure’ of
the White Paper,” . . . did not assess its
significance, whereas in our case, the
Government has conceded that the White
Paper, with its detailed analysis of legal
reasoning, has in fact been officially
disclosed.
46 FIRST AMENDMENT COALITION V. USDOJ
Id. at 139 (internal citations omitted).
The Second Circuit subsequently published the OLC-
DOD Memorandum in a revised decision. See NY Times III,
756 F.3d at 104. Shortly after, the DOJ disclosed the
existence of and voluntarily released the OLC-CIA
Memorandum to plaintiffs in the SDNY and to First
Amendment Coalition. The precise reasons why the DOJ
voluntarily disclosed the existence of and released the OLC-
CIA Memorandum are in dispute between the parties and
there is almost no direct evidence of why the DOJ made that
decision.
II. Catalyst Theory
First Amendment Coalition argues that the NDCA
litigation substantially caused the release of the OLC-DOD
Memorandum and the OLC-CIA Memorandum. First
Amendment Coalition’s principal theory for why it had a
“substantial causative effect” on the DOJ’s release of both the
OLC-DOD and OLC-CIA memoranda is that its NDCA
litigation—and the prospect of Ninth Circuit review—
affected the Government’s choices. First Amendment
Coalition points to the DOJ’s decision not to contest the
release of the OLC-DOD memorandum the Second Circuit
ordered, and the DOJ’s decision to release the OLC-CIA
memorandum before any federal court ordered the DOJ to do
so. The NDCA district court rejected First Amendment
Coalition’s arguments, finding that the DOJ “in this case
released the documents largely as a result of the Second
Circuit’s ruling in NY Times, not as a result of the ruling in
this case.”1
1
It appears the district court was referring to NY Times II.
FIRST AMENDMENT COALITION V. USDOJ 47
The district court’s ruling on causation is a factual
finding, and we review for clear error. See Ass’n of Cal.
Water Agencies v. Evans, 386 F.3d 879, 886 (9th Cir. 2004).
Here, there is evidence to support First Amendment
Coalition’s position, but there is also evidence consistent with
the district court’s finding.2 When one of two plausible
explanations supports the district court finding, there cannot
be a “definite and firm conviction that a mistake has been
committed.” N. Queen Inc. v. Kinnear, 298 F.3d 1090, 1095
(9th Cir. 2002) (quoting Allen v. Iranon, 283 F.3d 1070, 1076
(9th Cir. 2002)). Therefore, in my view, we must accept the
district court’s finding of causation, even if there is some
cause to doubt it. Ass’n of Cal. Water Agencies, 386 F.3d at
886. Because I think we must uphold the district court’s
factual finding with respect to both responsive memoranda,
I conclude First Amendment Coalition cannot show eligibility
for fees under a catalyst theory. See Long, 932 F.2d at 1313.
2
For instance, we have two available explanations for why the DOJ
ultimately voluntarily disclosed the OLC-CIA Memorandum to First
Amendment Coalition. The first explanation is that the DOJ concluded
that the waiver determinations the Second Circuit made regarding the
OLC-DOD Memorandum applied with equal force to the OLC-CIA
Memorandum. See NY Times III, 756 F.3d at 117. In other words, in
response to the Second Circuit decision and subsequent SDNY district
court order, the DOJ conceded. The second explanation is that the DOJ
wanted to end the NDCA litigation. (I note that the DOJ had not yet
responded to the NDCA district court’s order to provide an explanation for
why the DOJ conceded official disclosure of the White Paper in one
federal forum but made no mention of official disclosure in another. The
district court had ordered the DOJ to explain this inconsistency if the case
was not moot, and disclosing the OLC-CIA Memorandum prevented the
DOJ from needing to respond.) The first explanation supports the district
court’s finding of causation; the second explanation suggests the district
court’s finding of causation was in error, and supports First Amendment
Coalition’s eligibility for fees.
48 FIRST AMENDMENT COALITION V. USDOJ
I therefore do not join in the opinion to the extent it reverses
the district court while still applying a catalyst theory.
III. A Different Ground for Fee Eligibility
In the majority of FOIA fee cases, the catalyst theory of
recovery will be the appropriate way to analyze the plaintiff’s
eligibility for fees. But, to my mind, a catalyst theory of
recovery does not suit the facts of this case.
In my view, however, there is no need to rely on a catalyst
theory or re-write the “substantial causative effect” test.3 We
can instead resolve the case by returning to the purposes
underlying the test, and reframing them for the unique
circumstances presented here. After doing so, it is clear that
First Amendment Coalition has another viable theory for
eligibility, equally consistent with FOIA’s text and purpose.
At the time of its adoption, the substantial causative effect
test established “that a court judgment is not a prerequisite for
an attorney fees award under” FOIA. Nationwide Bldg.
Maint., Inc. v. Sampson, 559 F.2d 704, 708–09 (D.C. Cir.
1977). In practice, the test recognizes that plaintiffs in FOIA
suits do not need to secure a judgment on the merits to
receive attorney fees. The purpose behind this rule is simple:
when the Government takes unilateral action—completely
outside the plaintiff’s control—such action should not prevent
the plaintiff from receiving compensation for a meritorious
claim. See Church of Scientology, 700 F.2d at 492 (noting
that “the mere fact that defendants have voluntarily released
3
As noted above, I join in the opinion’s conclusion that causation
remains a requirement of the “substantial causative effect” test for a
catalyst theory of recovery. See Opinion, Part II.
FIRST AMENDMENT COALITION V. USDOJ 49
documents does not preclude an award of attorney’s fees to
the plaintiff”).
To illustrate, suppose the Government, on the eve of
defeat in FOIA litigation, unilaterally releases the requested
information, thereby mooting the case and preventing the
plaintiffs from securing a judgment. The plaintiffs’ efforts in
litigation compelled the disclosure of information, and the
plaintiffs would have prevailed absent the Government’s
conduct. Accordingly, we would award attorney fees to the
plaintiffs under a catalyst theory, even though they did not
secure a judgment on the merits. The instant case presents a
different variation on this situation, but the same
considerations should still apply.
First Amendment Coalition and the SDNY FOIA
plaintiffs sought the same underlying materials for the same
reasons. The DOJ then took a unilateral action that prevented
First Amendment Coalition from prevailing on the merits, by
failing to describe the White Paper candidly to the NDCA
district court. Because the DOJ did not inform First
Amendment Coalition or the NDCA district court about the
official release of the White Paper in response to the FOIA
request, the DOJ deprived the NDCA district court of the
opportunity to rule on a complete record. The district court
even admitted that it “may not have been fully apprised of the
facts surrounding the White Paper” in making its earlier
ruling, a conclusion reached only with the clarity provided by
the Second Circuit decision. The Second Circuit recognized
the White Paper was critical, and that the DOJ’s
representations to the NDCA district court had differed in a
material way. Something has gone wrong when a district
court learns of relevant information first from another court,
let alone material, case-dispositive information. E.g., United
50 FIRST AMENDMENT COALITION V. USDOJ
States v. Shaffer Equip. Co., 11 F.3d 450, 459 (4th Cir. 1993)
(holding that failure to disclose information that “could
conceivably have affected the outcome of the litigation . . .
violates the general duty of candor that attorneys owe as
officers of the court”).
First Amendment Coalition failed to prevail primarily
because of unilateral Government actions, outside its control.4
The district court erred in not recognizing the significance of
the DOJ’s litigation conduct for the FOIA eligibility analysis.
By characterizing the White Paper inconsistently between
two federal fora, the DOJ deprived First Amendment
Coalition of the fair chance for the court to hear its arguments
on the merits. The first and only federal court to consider the
merits of whether the official disclosure of the White Paper
affected the FOIA analysis concluded that the White Paper
made a decisive difference. In the course of its decision, the
Second Circuit also observed that the only apparent difference
between the case before it and the case before the NDCA
district court was that the NDCA district court had a different
understanding of the White Paper’s significance. The district
court here did not draw its understanding from the ether; it
relied on the Government’s representations. If the NDCA
district court had in front of it the same information available
to the Second Circuit, the NDCA district court likely would
have reached the same result as the Second Circuit—or we
would have, on appeal.
4
In her opinion, Judge Berzon suggests that my reasoning implies bad
faith on the part of the government in this case. I am not aware of the
circumstances surrounding the DOJ’s action, but the fact that the district
court was not made aware of the White paper’s disclosure was critical for
First Amendment Coalition’s inability to prevail on the merits and
establish eligibility for attorney fees.
FIRST AMENDMENT COALITION V. USDOJ 51
Under these circumstances, the same rationales apply as
in “substantial causative effect” cases. First Amendment
Coalition acted in good faith, brought a timely action, and
was correct on the merits. A ruling in First Amendment
Coalition’s favor would likely have made First Amendment
Coalition eligible without even the need to rely on any
alternate theory of recovery. See 5 U.S.C. § 552(a)(4)(E)(i).
First Amendment Coalition was unable to recover because of
the DOJ’s unilateral action in how the DOJ characterized the
White Paper to the court. The DOJ prevented First
Amendment Coalition from prevailing and establishing its
eligibility via a favorable judgment, id. § 552(a)(4)(E)(i), and
we therefore may look to alternate bases establishing First
Amendment Coalition’s eligibility to recover, id.
§ 552(a)(4)(E)(ii). The district court erred as a matter of law
by not accounting for the DOJ’s actions when analyzing First
Amendment Coalition’s eligibility for recovery, and by
limiting its analysis to actual causation.
Accordingly, I would reverse the district court for legal
error, not for its underlying causation finding. When we take
into account the DOJ’s conduct, First Amendment Coalition
has established its eligibility for an award of fees. I therefore
join my colleagues in reversing the district court ruling on
eligibility, and remanding for a determination of First
Amendment Coalition’s entitlement to fees.5
5
In analyzing whether First Amendment Coalition is entitled to fees,
as opposed to merely eligible, the district court will be able to consider
agency behavior or reasonableness. See Batton v. IRS, 718 F.3d 522, 527
(5th Cir. 2013); Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1390 (8th
Cir. 1985).