First Amendment Coalition v. United States Department of Justice, 878 F.3d 1119

Background

In 2011 First Amendment Coalition (FAC), the NY Times, and the ACLU submitted FOIA requests seeking OLC memoranda analyzing the legality of targeted killings of U.S. citizens (e.g., Anwar al‑Awlaki).
Government responses included either ‘‘no number, no list’’ or Glomar refusals; litigation ensued in the SDNY (NYT/ACLU) and NDCA (FAC).
A DOJ "White Paper" summarizing OLC legal reasoning leaked and was later officially disclosed; the Second Circuit concluded that disclosure waived privilege and ordered release of a redacted OLC‑DOD memorandum.
After the Second Circuit’s decision, DOJ produced a second memorandum (OLC‑CIA memo) to FAC; the NDCA district court vacated its summary judgment but denied FAC attorney fees, finding the disclosures resulted from the NYT litigation rather than FAC’s suit.
The Ninth Circuit panel reversed: a majority held FAC is eligible for FOIA attorney’s fees and remanded to the district court to determine the amount; the judges disagreed on whether the FOIA fee statute requires proof that litigation caused the disclosure.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FAC is eligible for FOIA attorney's fees after voluntary agency disclosure	FAC argued it “substantially prevailed” because DOJ voluntarily released the OLC‑CIA memo during FAC litigation	DOJ argued disclosures flowed from the SDNY/Second Circuit litigation and not FAC’s action, so FAC is not a prevailing party entitled to fees	Majority: FAC is eligible; case reversed and remanded for fee determination
Whether the 2007 FOIA fee amendment requires a causal nexus between litigation and disclosure	FAC urged causation (catalyst) is relevant here to show substantial causation	DOJ (and some circuits) argued causation is required to prevent windfalls; causation shows litigation produced the release	Lead opinion (Block): causation requirement remains under the catalyst theory and must be shown for fee eligibility when relying on voluntary disclosure
Whether the district court clearly erred in its factual finding on causation	FAC contended the district court ignored DOJ conduct and FAC’s efforts were a substantial cause of disclosure	DOJ contended the record supports the district court’s finding that the Second Circuit/NYT litigation triggered disclosure	Judge Murguia: district court’s factual causation finding is not clearly erroneous (would have affirmed on that ground); but still joined reversal on a different legal ground
Proper legal standard for fee eligibility under § 552(a)(4)(E)(ii)(II)	FAC: entitlement follows from voluntary agency change on a non‑insubstantial claim	Three‑judge split: Block reads statute to retain causation (Church of Scientology test); Berzon reads plain text to require no causation and that statutory elements alone suffice; Murguia offers an alternate theory (agency unilateral conduct preventing merits adjudication)	Judgment: FAC eligible; majority applies Church‑type factors to find eligibility and remands for fee calculation, though judges differ on statutory interpretation (no single majority rule on causation)

Key Cases Cited

New York Times Co. v. United States Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (White Paper disclosure led Second Circuit to order release of OLC‑DOD memo)
Church of Scientology of Cal. v. U.S. Postal Serv., 700 F.2d 486 (9th Cir. 1983) (articulated pre‑Buckhannon "catalyst" test for FOIA fee eligibility)
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001) (rejected catalyst theory for fee awards under other statutes)
Oregon Nat. Desert Ass’n v. Locke, 572 F.3d 610 (9th Cir. 2009) (discussed effect of 2007 FOIA amendment and Buckhannon)
Milner v. Dep’t of Navy, 562 U.S. 562 (2011) (FOIA’s broad‑disclosure purpose and narrow construction of exemptions)
Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011) (one circuit holding the 2007 amendment reinstated catalyst‑style recovery)