First Amendment Coalition v. United States Department of Justice

Concurrence by Judge BERZON;

Concurrence by Judge MURGUIA

OPINION

In September 2011, Anwar al-Awlaki, 1 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 (“SDNY”).

After 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.

*870 We all agree — although for different…

concurring in the judgment:

I agree with the result reached by both of my colleagues. But I have a fundamental disagreement with both of them regarding the reach of the Freedom of Information Act (FOIA). fees provision, and so concur only in the judgment.

Contrary to Judge Block’s position, , the text of the fees provision, 5 U.S.C. § 552 (a)(4)(E), plainly does not require a causal nexus between the litigation and the agency’s disclosure. It is inappropriate and impermissible to read one in, even though other courts have done so.

Judge Block represents that a majority of the panel holds that a FOIA plaintiff “ha[s] to” present evidence that the litigation had a “substantial causative effect” on the disclosure to be eligible for fees absent a judgment in her favor. Lead Op. at 876 (internal citations omitted); see also id. (reading other circuits’ law to affirm “the need to establish causation” between the litigation and a voluntary agency disclosure for a plaintiff to be eligible for fees) (emphasis added). 2 Judge Murguia says that she concurs in this part of the lead opinion. Concurring Op. at 887. But the alternative - theory of fee eligibility propounded in Judge…

concurring in part and concurring in the judgment:

I write separately to explain my reasoning in this challenging case.

, FOIA allows for an award of attorney fees to eligible parties who can show their entitlement to fees. Where a FOIA plaintiff prevails on the merits of her claim, eligibility for fees is straightforward. Where a FOIA plaintiff does not prevail on the merits of her claim, but the Government nonetheless releases some or all of the information sought through a unilateral disclosure, eligibility for fees is less straightforward. The leading test for analyzing eligibility in these circumstances asks whether the plaintiffs litigation was a “substantial causative effect” of the disclosure of the information. See Church of Scientology of Cal. v. U.S. Postal Serv., 700 F.2d 486 , 489 (9th Cir. 1983). In keeping with its name, the substantial causative effect test has long incorporated a causation requirement. See, e.g., Long v. IRS, 932 F.2d 1309, 1313 (9th Cir. 1991). We sometimes refer to this as a “catalyst theory” of recovery. Oregon Nat. Desert Ass’n v. Locke, 572 F.3d 610, 612, 615 (9th Cir. 2009).

*887 This ease concerns whether First Amendment Coalition, a…