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First Amendment Coalition v. United States Department of Justice

United States Court of Appeals, Ninth Circuit

August 25, 2017

First Amendment Coalition, Plaintiff-Appellant,
v.
United States Department of Justice, Defendant-Appellee.

          Argued and Submitted December 15, 2016 San Francisco, California

         Appeal from the United States District Court No. 4:12-cv-01013-CW for the Northern District of California Claudia Wilken, District Judge, Presiding

          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, Appellate Staff; Brian J. Stretch, United States Attorney; 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.

          Before: Marsha S. Berzon and Mary H. Murguia, Circuit Judges, and Frederic Block, [*] District Judge.

         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 death in a drone attack in Yemen of Anwar al-Awlaki, an American citizen targeted by the Central Intelligence Agency as a terrorist, spawned parallel litigation under FOIA for the release of legal memoranda prepared by the Department of Justice's Office of Legal Counsel addressing the legality of the targeted killing of U.S. citizen terrorists. The First Amendment Coalition sued in the Northern District of California, while the American Civil Liberties Union and the New York Times sued in the Southern District of New York. After the Southern District of New York granted summary judgment in the government's favor, the Second Circuit reversed and ordered the release of one responsive Office of Legal Counsel memorandum. Thereafter, the Department of Justice disclosed a second responsive memorandum in the Northern District of California litigation.

         The panel held that the First Amendment Coalition was eligible for attorney's fees. The panel held that the district court abused its discretion when it failed to consider and apply the relevant factors in Church of Scientology v. United States Postal Serv., 700 F.2d 486 (9th Cir. 1983), for determining whether the First Amendment Coalition had substantially prevailed. The panel held that the district court's limited view of causation was at odds with the Church of Scientology's view that, as in this case, multiple factors may be at play. The panel also held that the district court's decision was inconsistent with Congress's intent that the award of FOIA counsel fees should not be grudgingly applied.

         Because there were no material facts in dispute, the panel remanded solely for the district court to determine the fees to which the First Amendment Coalition was entitled.

         Judge Berzon concurred in the judgment, but disagreed with the other panel members regarding the reach of FOIA's fee provisions. Judge Berzon stated that there was no majority for the holding that causation has to be demonstrated as a necessary condition of eligibility for FOIA complainants.

         Judge Murguia concurred in part and concurred in the judgment. Judge Murguia joined in the analysis of part II of the panel opinion, finding that recovery under a catalyst theory continued to require causation. She did not join in the opinion's analysis concerning whether the district court clearly erred in its factual finding on causation. Judge Murguia concurred 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.

          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-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.

         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, 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 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 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 . . . 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 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") 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 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, 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).

         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); 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 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 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]

         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 ...


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