Metropolitan News-Enterprise


Monday, August 28, 2017


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Ninth Circuit Says:

First Amendment Coalition Entitled to Attorney Fees

Judges Agree That Efforts to Secure Legal Memoranda Relating to Targeting U.S. Citizens Engaged in Terrorism Warrant an Award, but Each Member of the Panel Reaches That Result on the Basis of Different Reasoning


By a MetNews Staff Writer


Each member of a three-judge panel of the Ninth U.S. Circuit Court of Appeals voted to reverse an order denying attorney fees to the First Amendment Coalition for its part in forcing the Department of Justice to release legal memoranda justifying the killing of a U.S. citizen acting as a terrorist abroad, with each of them writing separately.

Their opinions were filed Friday.

“We all agree—although for different reasons” on the result, Senior Judge Frederic Block of the Eastern District of New York , sitting by designation, said in the lead opinion.

All agreed that there was no dispute as to the facts and that the matter must be remanded to the district court for a setting of the amount of the fees.

The First Amendment Coalition—a nonprofit public interest organization—on Oct. 5, 2011, made a Freedom of Information Act (“FOIA”) request to the Department of Justice asking for a legal memorandum that Department of Justice’s Office of Legal Counsel prepared “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.”

It alleged:

“The 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, the New York Times made a similar request, and Oct. 19, the ACLU submitted a request to three federal agencies. The government supplied no documents.

Suits Brought

The New York Timeson Dec. 20, 2011 brought suit in the U.S. District Court for the Southern District of New York; the ACLU brought its own action in that court on Feb, 1, 2012 (with the two cases being consolidated); and the First Amendment Coalition commenced litigation in the U.S. District Court for the Northern District of California on Feb. 29, 2012.

The government, claiming privileges and exemptions, sought summary judgment in both district courts. It was granted on New York on Jan. 3, 2013, and here on April 11, 2014.

After the district court in New York ruled and before the court in California acted, a “white paper” was leaked to the press summarizing the content of the legal memoranda. The paper was then officially released by the Office of Information Policy to Truthout, a non-profit news organization, in response to its FOIA request.

Confidentiality Waived

The Second U.S. Circuit Court of Appeals on June 23, 2014, held that a “waiver of secrecy and privilege as to the legal analysis” had occurred and ordered that a redacted version of one particular memorandum be disclosed and that other documents be made available to the district court for an in camera inspection.

The First Amendment Coalition sought to have the summary judgment vacated based on the intervening Second Circuit opinion. In immediate response, the government released to the organization a second legal memorandum, and the District Court judge, Claudia Wilken, ordered the parties to confer.

Further documents were provided, and the parties issued a statement saying that “these disclosures resolved all substantive disputes in the case,” but that they “disagreed regarding whether the Court should vacate its summary judgment order and whether Plaintiff is entitled to attorneys’ fees.”

Wilken vacated summary judgment in favor of the government but denied attorney fees to the coalition, declaring:

“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.”

Lead Opinion

In the lead opinion, Block recited that in 1974, Congress amended the FOIA to provide for attorney fees if the plaintiff has “substantially prevailed” which, he said would cover instances where the lawsuit had served as a “catalyst” in bringing about disclosure. In 2001, the Supreme Court rejected use of a catalyst theory in connection with recovering attorney fees under the Fair Housing Amendments Act and the Americans with Disabilities Act, prompting Congress to amend the FOIA to render the high court’s decision inapplicable to that act, the visiting judge said.

The FOIA now provides:

“(i) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably inclined 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.”

The portion relevant to the appeal, he said, is “expressly allows recovery based on “a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.”

Causation Still Required

Block said the Ninth Circuit has not interpreted that language, but six circuits have, and concluded that it reinstates the law as it was before the U.S. Supreme Court’s 2001 decision, permitting an award of attorney fees based on a catalyst theory, without abandoning the requisite of causation.

“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,” he wrote, adding:

“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.”

Causation has been established in the present case, Block said. He pointed out that “what actually triggered” the release of the second legal memorandum was the coalition’s motion to vacate the summary judgment.

‘Dogged Determination’

“It was the appellant’s ‘dogged determination,’ therefore, that led the district court to ‘direct’ the parties to discuss whether the litigation was moot, and which resulted in the Government’s decision” to release further documents, he wrote.

Based on the coalition’s efforts, he said, “the public then learned” that the memorandum released to the New York litigants “was not the first memo addressing the justification for the drone attack.”

Block commented:

“There is no reason why the district court failed to recognize, as the Second Circuit did, that the official release of the White Paper—coupled with all the prior public statements of high-ranking Government officials— constituted a waiver of any secrecy and privilege that the Government had asserted. The district court, therefore, erred in granting summary judgment and dismissing the complaint. But for this error, the district court litigation would have ended earlier.”

He said the First Amendment Coalition “had to endure unnecessarily protracted litigation,” adding that it is “counterintuitive to punish” it “for expending additional legal fees to pursue the litigation, when it would have sooner been entitled to the release of both memoranda—and the right to recoup. its counsel fees—if not for the district court’s error.”

Berzon’s Opinion

Berzon joined in the result, only. “Contrary to Judge Block’s position,” he maintained, the language added to the FOIA in 2007 “plainly does not require a causal nexus between the litigation and the agency’s disclosure,” adding:

“It is inappropriate and impermissible to read one in, even though other courts have done so.”

He stated this view:

“…Congress spelled out in detail the meaning of ‘substantially prevailed,’ but did not include any causation or motive requirement. We are not free to interpose one.”

Berzon opined that the purpose of requiring payment of attorney fees is to further the purpose of the act by rendering financially feasible the bringing of actions under the FOIA based on denial of “potentially meritorious” requests.

“Applied to the facts of this case” the judge wrote, “First Amendment Coalition is a ‘substantially prevailing’ complainant. It obtained relief—the…memo—before judgment through a voluntary change in position by the Department of Justice on a ‘not insubstantial’ claim.”

Murguia’s View

Murguia agreed with Block that the award of fees under the catalyst theory requires a showing of causation, but said the case should not be decided under that theory.

“[I]n my view, we must accept the district court’s finding of causation, even if there is some cause to doubt it,” she said, and in light of that, the “First Amendment Coalition cannot show eligibility for fees under a catalyst theory.”

What matters, she said, is that the “First Amendment Coalition failed to prevail primarily because of unilateral Government actions, outside its control,” pointing out that the Department of Justice did not adequately inform the coalition and the court of the release of the white paper.

She said that Wilkin “erred as a matter of law  by not accounting for the [Department of Justice’s] actions when analyzing First  Amendment Coalition’s eligibility for recovery, and by  limiting its analysis to actual causation.”

The case is First Amendment Coalition v. United States Department of Justice, No. 15-15117.


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