First Amendment Coalition v. United States Department of Justice
869 F.3d 868
9th Cir.2017Background
- In 2011 the DOJ's Office of Legal Counsel (OLC) prepared memoranda analyzing the legality of targeted lethal action against U.S. citizen Anwar al‑Awlaki; FOIA requests for those OLC opinions were filed by First Amendment Coalition (FAC), the New York Times, and the ACLU.
- Agencies initially refused to confirm or deny records (Glomar / "no number, no list" responses); FAC sued in the NDCA, NYT and ACLU sued in the SDNY (consolidated there).
- The Second Circuit (in the SDNY litigation) found the DOJ’s public "White Paper" and officials’ statements waived secrecy as to OLC legal analysis and ordered release of a redacted OLC‑DOD memorandum; subsequently the DOJ produced a separate OLC‑CIA memorandum to FAC.
- FAC moved for reconsideration and attorney’s fees in the NDCA; the district court vacated its summary judgment but denied fees, reasoning the disclosures resulted from the Second Circuit decision, not FAC’s case, and that the case was moot.
- The Ninth Circuit majority held FAC is eligible for FOIA attorney’s fees under the amended FOIA fee statute, reversed the denial, and remanded to determine the amount; the panel split on whether a causation requirement applies to fee eligibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FAC is eligible for FOIA attorney's fees where DOJ voluntarily disclosed records before a favorable judgment | FAC: Suit was necessary, and its litigation substantially caused the DOJ to disclose the OLC‑CIA memo, so FAC "substantially prevailed" | DOJ: Disclosures resulted from Second Circuit NYT ruling and other public releases, not FAC’s litigation in NDCA | Reversed district court: FAC is eligible for fees; remanded to determine amount (panel unanimous on eligibility, differing reasoning) |
| Whether the 2007 FOIA amendment eliminated the need to prove causation for voluntary disclosures | FAC: Causation (litigation as catalyst) supports fee award here | DOJ: No causal link between FAC suit and DOJ's voluntary disclosures | Majority (Lead Op.): A causation ("substantial causative effect") showing remains required under catalyst theory; remand limited to fee calculation |
| Whether courts must treat statutory text as excluding causation (textualist challenge) | FAC: statutory amendment preserves catalyst test with causation | DOJ: statutory language does not require causation; voluntary change alone suffices if claim not insubstantial | Concurrence (Berzon): Statute does not require causation; eligibility satisfied because DOJ voluntarily changed position and claim was not insubstantial |
| Whether district court clearly erred in factual causation finding | FAC: District court erred by not accounting for DOJ's inconsistent disclosures and conduct; FAC's litigation triggered release | DOJ: District court reasonably found Second Circuit action was the primary trigger | Concurring (Murguia): Would affirm district court factual causation finding but still reverse on separate ground — DOJ’s litigation conduct prevented FAC from prevailing, making FAC eligible; overall judgment reversed and remanded |
Key Cases Cited
- Church of Scientology v. U.S. Postal Serv., 700 F.2d 486 (9th Cir. 1983) (articulated "catalyst" factors for FOIA fee eligibility including causation)
- Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598 (U.S. 2001) (rejected catalyst theory for fee recovery under certain statutes)
- Oregon Natural Desert Ass’n v. Locke, 572 F.3d 610 (9th Cir. 2009) (discussed Buckhannon's application to FOIA and effect of 2007 amendment)
- N.Y. Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (held White Paper and official statements waived privilege and ordered disclosure of OLC memo)
- Dep’t of Air Force v. Rose, 425 U.S. 352 (U.S. 1976) (describes FOIA’s broad disclosure purpose)