and Submitted December 15, 2016 San Francisco, California
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
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
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.
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").
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.
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.
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.
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.
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.
September 2011, Anwar al-Awlaki,  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
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.
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
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).
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.
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."
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.
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.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.
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. 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.
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. 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.
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
("White Paper"). 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.
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." Id. at 124.
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." New York Times, 756
F.3d at 116.
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.
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). 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.
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
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."
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).
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)).
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
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.
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); 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
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
(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).
(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
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."
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.
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
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 ...