*2 EDWARDS, Before TAMM and Circuit HAYNSWORTH,* Judges, and Senior Cir Judge, Appeals cuit United States Court for the Fourth Circuit.
Opinion for the by Court filed Circuit Judge T. HARRY EDWARDS. opinion
Dissenting by filed Senior Circuit Judge HAYNSWORTH. EDWARDS, Judge:
HARRY T. Circuit 1982, plaintiffs In March Emily Martin brought and David West suit employer, the Office Juvenile Justice (OJJDP), Delinquency Prevention administrator, agency's acting Charles argued Lauer. im- right posing various restrictions on their counsel, communicate with OJJDP and (the defendants) Lauer had violated the * 294(d) (1982). by designation pursuant Sitting U.S.C. § disclosing any materials or producing provisions various Amendment and First ex- those materials Reform Act of Service Civil §§ (1982). Although appropri- cept approval U.S.C. dismissed in this Department claims were official which ate Lauer, Court, No. 82- District be the Assistant Attor- matter would 19, 1982) (“Martin I"), (D.D.C. Mar. Division. ney General of Civil *3 appeal by this reversed on this decision was requests the Freedom of Any under grounds. Mar Amendment court on First respond- Act should not Information be (D.C.Cir.1982) Lauer, 686 F.2d tin v. informed of the ed to until I have been II”). settling the remain ("Martin After request nature of the and the informa- case, plaintiffs suc ing disputes in the in re- you propose tion that to release attorneys’ cessfully applied for an award sponse request. to that I will then Act, Equal Access to Justice fees under the the Office of General consult with § (1982). F.Supp. 503. 28 U.S.C. concerning the Counsel release of review this appeal In this we are asked to is information. This restriction intend- After careful consideration award. ed to allow the Federal Government to contentions, conclude that the parties' may any exemptions that it be assert part and re must be affirmed in award to under the Freedom of Infor- entitled part. versed in § 735.206). (5Act C.F.R. mation Background employees al- you your 5. If or have employed by OJJDP are ready provided information or docu- management positions. On De- senior-level attorney, directly either ments to 3, 1981, they and other OJJDP em- cember report indirectly, I want a concern- ployees received notification that because provided and a ing all oral information budgetary constraints the would OJJDP all documents delivered to copy of such (RIF). in force Al- soon have a reduction by February 26. me though the defendants indicate that Lauer To Emi- Memorandum From Charles secure, plaintiffs’ jobs were 1982). (Feb. 24, ly Martin & David West joined majority employees OJJDP that senior-level The memorandum warned retaining personnel counsel to contest this permitted to take managers would “not be 23, 1982, February plain- action. On regulations or which violate DOJ actions par- tiffs notified defendant Lauer of their ability impinge upon the of DOJ counsel to ticipation anticipated in an lawsuit chal- effectively litiga- defend Government lenging the RIF. I not hesitate to take immediate tion. will responded day the next Lauer disciplinary to as- appropriate action prospective imposing and ret- memorandum interests are that the Government’s sure rospective on the restrictions protected.” Id. at 3. Paragraphs with counsel. communications 1, 1982, filed suit provid- On March three and five of the memorandum alleging that these restrictions violated the ed as follows: and the First Amendment “whistleblower” may provide 3. You information or in the Service Reform Act provisions Civil attorney represent- documents to the §§ 2301, (1982). of 1978. 5 U.S.C. ing employees or to other these considering plaintiffs’ request While employees person assisting the or that relief, injunctive the District Court addition, attorney. there is a De- parties attempt an judge directed the regulatory proce- partment of Justice dispute. After informal resolution of governing release of dure informa- met, (See parties counsel for the Lauer issued involving litigation tion C.F.R. § pro- temporary “Clarification Memorandum” seq.). Employees 16.21 et information, releasing any modifying paragraphs March three and hibited from original emphasized five memorandum in the It should 4March following manner: temporary. modifications were As this Paragraph prior been court observed in has narrowed its consideration you
prohibit
disclosing any
II,
“[ajlthough
in Martin
the clar
Government information which could
appeared
ification memorandum
to narrow
subject
Act and that
case,
the issues in this
may
result
an unwarranted invasion
opposing [plaintiffs’]
brief
pre
motion for a
personal privacy
if
released.
liminary injunction made clear that
This includes
information contained
government would return to the broader
personnel
agency
the official
file
anof
requirements of the February 24th memo
(other
file)
employee
your
than
own
prevailed
if
randum it
before the district
may
other information which
(D.C.
court.” Martin
identifying
particu-
characteristics to a
Cir.1982) (footnote omitted). See Defend
employee
lar
and which
amount to
ants’ Memorandum of Points and Authori
*4
personal
unwarranted invasion
in Opposition
ties
To Plaintiffs’ Motion For
privacy
Any questions
if released.
Preliminary Injunction
(Mar.
1982)
a
8,
concerning
particular
information (The
parties
discussions between the
“re
presented
the
should be
to me
to
sulted in
subsequent
a
memorandum to
Office of General
Counsel. Because
plaintiffs
4,
from Mr. Lauer dated March
your
inherent conflict between
1982 which clarified and modified some of
manager
duties as
and Government
the restrictions contained in the February
employee
your participation
and
in the
government
memorandum.
If the
pre
lawsuit,
preparations
proposed
for the
action,
vails
this
scope
infor
you
it would be
improper
make
mation
is
which
restricted
being dis
from
concerning
any
decision
the release of
closed will
broadened
to include
such information. This
modification
government
information.’’)
(emphasis
until
effective
further notice.
added). Hence,
II,
in Martin
this court
characterized the
“position”
defendants’
Paragraph
5. The deadline under
5 is
before the trial court as follows: “the clari
extended until
is a
there
resolution of
fication
memorandum withdrew
need
this
matter
the District Court or
relief,
preliminary injunctive
but [the
agreement
parties
between
in-
plaintiffs’] case on the merits should be
volved.
respect
original
decided with
to the
memo
Memorandum Prom Charles Lauer To Emi
randum.” Martin
ing disciplinary that this new memorandum violated the fense to action.” Martin 24, ground court’s decision on the (D.C.Cir.1982). harrow that F.2d 29 n. 19 The required of all disclosure information dis- court also indicated that no live controver orally plaintiffs’ attorney. sy respect closed Mo- remained pre to documents 19, viously by plaintiffs tion For Clarification of March disclosed to their attor Or, (Mar. Stay Alternatively, ney Order For a following because the had — 22, 1982). rejected this conten- District Court’s already re decision — tion, indicating that the word “entire” had vealed these documents the defendants. Id. unintentionally previous Next, been omitted its n. 24. the court declined to say it had meant to any Privacy issue, decision and that resolve holding Act6 require plain- the defendants could not necessary a remand so that tiffs “to reveal the entire content of their District Court could “determine whether attorneys regard- Privacy conversations with Act restrictions are in fact I, lawsuit.” ing case, proposed so, No. contested and if [the court] 1982) (Order (D.D.C. Mar. Con- 82-0587 should assess whether there are dis cerning puted of March Clarification Or- facts that would aid the court’s reso der). holding indicating that its Id. at 31. While lution this difficult issue.” “unaltered,” the District otherwise Court Turning to the defendants’ restrictions plain- delineated as applied to Freedom of Information Act tiffs were to disclose: (FOIA)7 material, in Martin II plaintiffs, compliance with Para- held that the across-the-board limitation on graph 3 the March memoran- disclosure FOIA-exempt information to dum, may disclose, prior ap- without attorney was unconstitutional and it proval government, govern- from the therefore the lower reversed court’s deci documents, ment information con- explained It in evaluating sion. re documents, tained those which could rights strictions the First Amendment subject Act and that public employees, required courts were result the unwarranted invasion employees’ to balance interests *6 personal privacy if it is releaed [sic]. government’s the “balance will [that] —a plaintiffs any respond Nor can to Free- type to according -speech, differ the the requests dom of Information Act without agency, nature of the and context in approval. defendants’ Id. at 31 speech which the is uttered.” compli- The Court further finds that in (footnotes omitted). undertaking In Paragraph ance with 5 of the memoran- balancing, the court first looked to the da, plaintiffs must to disclose the defend- plaintiffs’ interests and found that the re documents, government ants or in- “seriously hamper[ could strictions initial ]” documents, formation contained in those employees consultations between and attor has already which been revealed Id. at 33. neys. Thus, it found that counsel, plaintiffs’ which could sub- plaintiffs’ “speech only interests are not Act, ject Privacy exempt under but, legitimate they implicate because ... Act, Freedom of Information or could plaintiffs’] right fundamental of access [the result in the unwarranted invasions of courts, deserving rigorous to the personal if privacy it is released. protection.” Id. Id. Against in this interest the court Martin relief from II balanced the sought government’s then in interest case, restricting In reviewing broadly court. the court disclosure of FOIA-ex- summarily rejected plaintiffs’ empt acknowledging “whistle- material. While claim, government’s legitimate reasoning statutory that the with re- blower” interest (1982). (1982). 552a 7. 5 U.S.C. § § 6. U.S.C. material, the as on the FOIA-exempt should be dismissed moot based
spect to some pre- “in following stipulation: to the interest pointed lesser infor- venting much of the dissemination of Department policy provides of Justice by exemption mation covered two—infor- personnel that certain basic information relating solely personnel to internal mation released, (1) name; (2) including may be § 552(b)(2).” practices. rules and 5 U.S.C. titles; (3) past position present and explained particular, the court at 34. Id. (4) past grades; present and present and that, are ex- the extent that matters "[t]o salaries; (5) past present past and and exemption empted from disclosure under stations-; (6) partic- duty information burden, grounds of administrative two on ularly pertaining professional represent exemption certainly does qualifications employees. federal em- government preventing interest post-graduate Such information includes discussing such ployees openly preparation technical education in ” It also ‘government Id. information.’ employee’s profession; prior em- all only a that this case involved emphasized ployment State and Federal Govern- attor- limited disclosure prior positions; employment ment public than neys rather dissemination private employee’s sector related information. Id. The court observed duties; received; awards and honors specific allegation that the there was membership professional groups. attorneys would the information reveal represent Plaintiffs did not dis- publicly, and that means were available to their close counsel prevent such might, which respect employees with to other federal Hence, 34, 35. public revelations. Id. at beyond the scope that was of the above concluded that “a broad restric- categories. tion, undermining confidentiality of the Lauer, (D.D.C. No. 82-0587 Oct. attorney-client chilling relationship and dis- 15, 1982)(Stipulation and Order of Dismiss- protect cussions counsel in order to al), (“J.A.”) Appendix in Joint reprinted in moni- unclear interest toring FOIA-exempt in- all discussions of employ- deeply
formation cuts too into the With the merits the case thus re rights.” ee’s first amendment Id. at 34-35. solved, District applied to the attorneys’ an award of fees and Following this the Court decision Martin Equal expenses under the Access to Justice returned to the re District Court for § (“EAJA”), (1982). Privacy Act In Act U.S.C. consideration of issues. Court, enti proceeding before the The court held the District attorneys’ prevailing parties understanding indicated their tled to regard restrictions party no information covered “with *7 FOIA-exempt controversy and materials.” Mar placed at issue hence no live was 503, (D.D.C. concerning Lauer, F.Supp. the merits of the case. 562 505 remained tin v. 1983). response judge’s It also ruled In District Court that compensated suggestion aspect spent that this of the case was for time “on should beginning,” “moot from probably their whistleblower claim” because this incorrectly8 legal theory defendants’ counsel informed “an alternative intended was judge only yesterday” remedy injury.” that “it that the same Id. at 505-06. was However, represented “Privacy that Act plaintiffs’ counsel had because claim protected Privacy in conceivably litigated never have been in the first “no should Transcript place,” was the court held formation” involved. 15, 15, (Oct. Proceeding, compensated spent 1982 at time
October 5 should not be 1982). judge’s Pursuant to the recommen on this issue. Id. at 505. The defendants dation, parties agreed appeal judgment. that the action from this 5, accompanying supra, text. 8. See note
43
noted,
recently
has
adoption
been
any
Discussion
per
such
se rule would mean that “attor
pertinent language
the Equal
in
ney’s fees never could be
in
provides
awarded
favor
Access to Justice Act
that:
appellant
of an
against
government.”
Except
specifically provided
as otherwise
Broad
statute,
Laundry
Avenue
by
Tailoring
&
v.
pre-
court shall award to a
vailing
States,
1387,
party
(Fed.
other
than the
United
693 F.2d
United
1392
expenses,
Cir.1982).
States fees and other
in addi-
argument
defendants’
pursuant
tion to
costs awarded
narrowing
in
the EAJA this manner is un
(a),
by
subsection
incurred
in
party
that
convincing.
Spencer,
In
recognized
we
(other
any civil action
than eases sound-
played by
critical role
appeals
courts of
tort)
ing in
brought by
determining
government’s
whether the
po
having
States in
juris-
United
court
substantially
sition was
justified. Spencer,
action,
diction of that
unless
F.2d
563. The defendants have not
position
finds
the United pointed
single
precedent,
anything
nor
substantially justified
States was
or that
in the language
legislative history
special circumstances make an award un- EAJA,
might
justify abdicating this
just.
responsibility. Consequently, we adhere to
§ 2412(d)(1)(A)(1982).
prior
U.S.C.
Our
we recently expressed
the view
in Cinciar
principles
decisions have articulated
801,
Reagan,
(D.C.Cir.
elli v.
729 F.2d
guide
attorneys’
the award of
fees under
1984),
although
“a
victory might
trial
the EAJA. We
have held
the Act’s be
government’s position
evidence that the
position
reference to “the
the United
frivolous,
not
deciding
was
arguments
means “the
upon
States”
relied
EAJA
must independently
case
evaluate
litigation.”
Spencer
position
to determine
whether was
NLRB,
539,
(D.C.Cir.1983),
v.
712 F.2d
substantially justified.”
—
denied,
U.S.-,
1908,
cert.
104 S.Ct.
Our review of the trial court’s decision to
(1984).9
govern
45 Although appeal in this the defendants tions on the disclosure of any government explicitly have not identified their Indeed, information to given counsel. our I, before the trial court in Martin holding in Martin II government that the implies their brief they merely defend- did not have a sufficient justify interest to constitutionality ed the of the restrictions even a much narrower restriction on the narrowly as more delineated in the March disclosure of FOIA-exempt material, Mar- memorandum. This characterization finds II, tin (D.C.Cir.1982), 34-35 in absolutely support the record. To the be hard-pressed would to find that the contrary, in as we indicated Martin the government was substantially justified in the proceedings record of trial court in asserting very that a similar interest war- clearly Martin I indicates that the defend- a prior ranted restraint on disclosure of sought judicial approval ants of the broad any government information. February restrictions contained the In reaching conclusion, we wish to Indeed, memorandum. following the lower emphasize First, two considerations. opinion, court’s defendant Lauer sent the protested the have throughout plaintiffs a expressly stating memorandum proceedings, these the defendants have that the restrictions contained the Febru- never showing made ary 24 that a memorandum were in substantial effect. As we explained, by is have these interest served limiting restrictions forbade the the any government rights disclosure of First Amendment informa- plain these preclearance tion by govern- absent tiffs. Instead of demonstrating the nature ment. information that might disclose, showing and the likelihood that concluding We have no trouble this disclosure beyond would extend that the defendants were not lawyer-client relationship or that disclosure justified arguing that the com harmful, to counsel would be the defend munication with counsel could constitution rely ants have chosen simply to on self- ally limited in this manner. It is well-es serving conclusory and assertions that the tablished that restrictions on the First plaintiffs might release sensitive material. rights public Amendment employees are Second, the defendants have seriously by balancing to be tested employees’ argued government’s interest speech against govern interest in the could not have been See, adequately by served ment’s interest in the restrictions. regulation far Education, less restrictive e.g., Pickering plain Board 563, 568, Indeed, 1731, 1734, speech.16 tiffs’ stages U.S. S.Ct. at later (1968). L.Ed.2d 811 proceedings The defendants defendants were argued in appeal not even argue that such content to in balancing imposition favors of restric- protected terest by the narrower re- substantially justified sweep unnecessarily and loses.” Id. broadly thereby and invade Although sought freedoms.”); protected fees for the area of Shelton v. Tucker, 479, 488, 247, 252, spent preparing application time 364 U.S. 81 S.Ct. (2.5 hours), scarcely (1960) ("even though govern this constituted 1% of L.Ed.2d 231 substantial, purpose legitimate fee award in this case did not include mental time subsequent applica- purpose pursued this issue cannot be means that Moreover, broadly personal tion. the defendants have not chal- stifle fundamental liberties lenged ground achieved") narrowly this fraction of award on when can the end be more (footnote omitted). pertaining recently, distinct from those to the other Most EAJA Members --- here, Vincent, questions City Taxpayers discussed and we Council v. decline to U.S. ---, ---, sponte. raise such concerns sua 104 S.Ct. 80 L.Ed.2d (1984), the Court indicated that inci “[t]he Alabama, generally expression 16. See NAACP v. 377 U.S. dental restriction on which results 288, 307, 1302, 1313, City’s attempt S.Ct. accomplish L.Ed.2d 325 from the such (1964) (‘‘This repeatedly Court purpose [eliminating has held that con clutter] visual governmental purpose prevent justified regulation to control or ac sidered as a reasonable time, constitutionally subject regula place, tivities expression state manner of it is if narrowly tion not be achieved means which tailored to serve that interest.” *10 46 34. Even the defendants imposed by the March 4 memo- at conceded
strictions circumstances, justification II that there no we Martin randum. Under these restriction, they for plainly have for an across-the-board that the defendants conclude plaintiffs “simply that to showing that stated if the wish their not carried burden February type of material 24 restrictions disclose this the defense of [innocuous] substantially justified. personnel compile internal I was matters] Martin [on themselves, no agency has interest fare better Nor do the defendants activity." this Defendants’ prohibiting II appeal in Martin position on when their (brief II) Brief, p. 34 n. 20 in Martin they Although in II Martin examined. added). (emphasis the re- a narrow construction of defended strictions, appeal, not In this the defendants seek to position substantial- implications justified. importantly, given Most avoid this concession ly they “clearly explicit reimposition arguing in Martin II defendants’ following the trial stated that the Lauer memoranda were February 24 restrictions decision, type From meant to cover the of FOIA see Memorandum never court’s Exemption 2 Emily Lauer To Martin & David material that caused the Charles (Mar. 19, 1982), Appeals] there was no tenable Court such concern.” Defend West [of Brief, Reply p. (citation 11 argument ap- on ants’ n. 4 omit basis for the defendants’ ted). peal plaintiffs only precluded surely were This statement came a sur disclosing FOIA-exempt Privacy prise plaintiffs, to none of from the de memoranda, preclearance. prior Act material fendants’ nor the Dis without clearly narrowing interpretation in a to not trict Court’s were I, any government remotely sug the memoranda in communicate attorneys preclearance, free gested without were to dis their FOIA-exempt they some material while at for—as the defendants close admonished— acting peril prohibited disclosing “at their if the same time from were release[d] exempted FOIA-exempt what out informa- other material. First turn[ed] clearly tion Defendants’ Amendment does not tolerate such without authorization.” Brief, II). (brief p. post 40 in Martin recharacterizations of restric facto speech, particularly employ when tions Moreover, assuming arguendo that even government ees been warned that the prohibited only were “will not hesitate to take immediate and subject disclosing information to the Priva- appropriate disciplinary action to assure cy falling exemp- within FOIA pro interests Government’s tion, facts govern- on the of this tected.” Memorandum From Charles by proscription ment interest was served Emily To Martin David Lauer & West II, pointed of this breadth. In Martin (Feb. 24, 1982).17 out that the across-the-board restriction on sum, reasons, FOIA-exempt foregoing all of the disclosure material would positions prevent concerning communication certain the defendants’ assorted proceedings provide “on did personnel grounds internal matters in these not a rea though upholding administrative burden” even sonable basis for the restrictions certainly represent “exemption does issue. Because defendants have positions preventing employ- failed to establish that their interest openly discussing ‘govern- justified, ees from such we conclude that the ” properly F.2d attorneys’ ment information.’ Martin trial awarded Bullitt, cifically person persons generally Baggett so 17. See affected U.S. 360 , rights n. 373 n. 84 S.Ct. 12 L.Ed.2d remain secure and unrestrained ("‘[Statutes (1964) engage encompassed purport restrictive of or in activities not legislation.'") ing place (quoting Congress limits those United States v. [First Amendment] n 106, 141-42, narrowly Orgs., Indus. U.S. freedoms must be drawn to meet 68 S.Ct. 1349, 1366-67, legislature (1948) precise (Rutledge, evil the seeks to curb ... and L.Ed. J., proscribed spe- concurring)). must ... the conduct be defined (ii) EAJA mismanagement, gross fees under the for time on the waste of *11 claim.18 funds, First Amendment authority, abuse of aor sub- specific danger public stantial and B. The “Whistleblower” Claim or safety, health appropriate We do not think it was if such specifically pro- disclosure is not attorneys’ for the trial court award by hibited law and if such information is pursuit spent unsuccessfully time of specifically required not by or- Executive the “whistleblower” claim. This court re kept der to be secret in the interest of cently explained: national defense or the conduct or for- plaintiff may present “In some a affairs____ cases eign distinctly in one lawsuit different claims § 2302(b)(8)(1982). 5 U.S.C. See also id. for relief that are on different based § 2301(b)(9). Resolution of the whistle- legal Legal facts and theories.” work in blower claim in the instant case would have easily compartmental- such cases can be required factual determinations as In such “the ized. cases where claims whether the repris ” memoranda constituted fractionable,’ truly asserted ‘are coun- al, whether the reasonably be compensated only sel should for work lieved that one of the conditions enumerat prevailed. on those claims distinct ed present, in the statute was and whether CAB, Smoking v. Action on and Health specifically prohibited disclosure was 211, (D.C.Cir.1984) (foot 724 F.2d 215-16 by None inquiries law. of these factual omitted) (quoting Hensley *12 relevance, concern), argued and forced its im- claims and these two guish between spend responding time to plaintiffs the to spent solely for time fees properly awarded it. claim, decision on its the whistleblower on remand, On facts, be reversed. point must no reason we can discern On these determine the should compensation the lower court for denying plaintiffs the for Amendment claim However, the First attributable to the spent this issue. time principles articulat- with the in accordance Be- fully aired before us. issue was not accordingly. modify award its ed here and indicat- additional facts cause there position on this ing that the defendants’ Privacy Act Issue C. The substantially justified, issue was somehow that it remand to the District Court so the District Court remand On aspect of its decision. may reconsider this deny to its decision also reconsider should spent on the Priva attorneys’ fees for time clearly reveals cy The record Act issue. Conclusion Privacy by “claim” raised
that the Act attorneys’ fee award The District Court’s justification for partial as a the part. part defendants and reversed in is affirmed restrictions, the challenged the remanded to the District Court This case is to thereby respond forced to plaintiffs were with this proceedings further consistent for prevail establishes that a it. The case law opinion. is entitled to recover attor ing plaintiff ordered. So the EAJA for time neys’ fees under responding to defenses that are not sub HAYNSWORTH, Judge, Senior Circuit Reagan, stantially justified. Cinciarelli v. dissenting: (“if (D.C.Cir.1984) some respectfully I dissent. defenses all but not fees, awarding judge the district did In substantially justified prevailing are Equal Ac- apply the standards of the compensated party for combat- should upon Act. He relied instead not”). cess to Justice ting those that are Rights Attorneys’ of the Civil the criteria us, nothing there is the record before On § Act, 42 1988. Un- Fees Awards U.S.C.A. assertion of indicate that the defendants’ circumstances, it to me that der the seems substantially Privacy Act defense was thing appellate for an appropriate most unequivocally re- The record justified. do would be to vacate award court to early plaintiffs’ disavowal flects to the district court and remand the ease of, in, Privacy Act possession interest appropriate of the standards application accompa- supra, and material. note See which, ease, to the facts of previously con- nying text. When we course, intimately ac- the district court is in Martin this case sidered quainted. appear to be a there did not noted weigh positions of the If we are to and remanded dispute such material over standards, light of the relevant parties further determina- to the trial court for a however, posi- I would conclude that subsequent settle- matter. In tion on this substantially government were tions of the parties, negotiations between ment particular justified. finally asked some defendants plaintiffs, West, high Martin and clined question, to decide the remanded it managers, apparently having
level
access
district court
suggestion
with the
producible
documents and materials not
might
there
be no
controversy
real
under the Freedom of Information Act.
about it.
Department’s
initial concern was clear-
evidently
upon
This was
based
state-
ly
produce
should not
by
ments
lawyer that she
lawyers
use of their
materials which were
protected
wanted no
by
information
exempt
compulsory production
under
Act,
Privacy
but she
and the
con-
FOIA,
and that
should not be the
tinued
litigate
question.
They were
judges
they might
claim
assert that
not forced to do
They
that.
could have
specific
exempt.
materials were not
phase
ended that
controversy
short,
Department’s seems to
tendering a stipulation to the effect that no
been
employees,
that these
who had
protected by
participate
declared their
intention to
would be submitted
received
her.
adverse
the Department,
That
what occurred on
proceed
private litigants
should
as other
result,
remand. As a
proceed, obtaining
must
information in the
*13
prevailing parties
not
within the meaning
pretrial discovery process,
appro-
with an
EAJA,
of the
and on this basis alone are
priate
opportunity
Department
not entitled to attorneys’
on
this issue.
any
particular
assert
claim that
material
exemptions
was within
or more
one
Department
had no means of know-
of the FOIA.
ing
might
what information
be tendered to
plaintiffs' lawyer.
face,
It seems to me it
its
present
On
this would seem to
thoroughly justified
was
asserting
great
problem.
First Amendment
position that no
Though
protected by
material
prevailed
Privacy
Act should
First Amendment claim in
be submitted
Martin
to her.
Mar-
Lauer,
(D.C.Cir.1982),
Privacy
question
tin v.
mation disclosure, presented and that question II a court Martin which the difficult,
court characterized as notwith-
standing fact that disclosure could be lawyer.
limited to the It de- notes v. Ecker required of resolution the First hart, 424, 1933, 1940, U.S. S.Ct. by Amendment plain issue as framed (1983) Marshall, Copeland L.Ed.2d 40 & tiffs well as this court in Martin II. By (D.C.Cir.1980)(en 892 n. 18 token, the same legal issues by raised banc)). the First Amendment claim largely areWe convincedthat this is such case. a implicated by distinct from those the whist Although undisputed (princi- certain facts circumstances, leblower claim. these pally the imposed fact that Lauer restric- purposes of the EAJA would not be plaintiffs) tions on the were common to the by awarding well served at First Amendment and whistleblower torneys’ spent fees for time on the unsuc claims, these claims in- overwhelmingly pursuit cessful the whistleblower legal volved distinct and factual issues. 5 claim.19 § 2302(b)(8) prohibits U.S.C. certain em- ployees taking personnel recognize action We that even when a lawsuit claims, against any employee a reprisal “as for— inevitably involves distinct there (A) overlap requisite some in the factu- by disclosure of information an em- applicant ployee legal analysis. portion or which the al and If employee some applicant reasonably or believes evi- plaintiffs’ time was on activities dences— in furtherance of the First Amendment (i) law, rule, regu- a violation claim but was also relevant to the whistle- lation, claim, plaintiffs’ blower entitlement to implicitly recognized note We that this not which the 19. As this court in Martin II, appeal has done no more than see Martin F.2d at 29 n. and as is favor, brief, defend a district Brief, court decision in its plaintiffs’ clear from the Plaintiffs’ express no view as to the circumstances pp. reprisal provisions 34-35 n. constitut such a which defense would be ed the core Civil Service Re Here, justified. the defendants have conceded Act claim. form To extent the claim by that no interest is served a restriction as implicated provisions other in the Civil Service broad as that articulated the lower court. Act, the Reform critical issues involved the con Additionally, by arguing that the restriction did inquiry struction of the Act. The to resolve FOIA-exempt all de- not extend to material easily issues was severable from that relat such departed from the construction fendants have ing to the First Amendment claim. adopted the lower court. questions and it became pursuit of the former for the a fee award Privacy was a clearer that the Act encompass such time. How- even claim should argument oral before us bogus award should issue. At ever, attorneys’ fee defendants conced- during appeal, work on the compensation for include tangen- inquir- only made these claim that was could have ed that whistleblower proceedings. First Amendment Instead early in the trial tially related ies so, doing they raised claim. (without any legitimate basis for defense did not distin- the District Court Because