United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 598 v. Department of the Army, Corps of Engineers

concurring:

I agree that we must remand to allow the district court to balance the four factors listed in Church of Scientology v. United States Postal Serv., 700 F.2d 486 , 492 (9th Cir.1983). The court erred in failing to consider all of the factors. See id. Nevertheless, I respectfully disagree with the majority’s decision to hold the Army to the case law it argued below and its conclusion that the Army lacked a reasonable basis in law for arguing that Exemption (6) applied.

The majority binds the government on appeal to the case law it argued in district court. The quality of advocacy, not the reasonableness of the government’s position, becomes the critical factor. To be sure, quality of advocacy and reasonableness are not wholly distinct inquiries; the government may not act in bad faith. Yet they surely are not congruent either. While I would take into account the government’s failure to argue helpful authority, I would not give that failure dis-positive weight. Reasonableness is an objective, not a subjective, test.

In holding the government to the case law it argued below, the majority blurs an initial request for information with a later request for fees. There is a…

This is an appeal of the district court’s denial of attorney’s fees under the Freedom of Information Act. The Union requested payroll records from the Army Corps of Engineers for the purpose of determining whether a contractor working for the Army was complying with federal prevailing-wage laws. The Army refused to disclose the names and addresses of persons on the payroll records on the ground that disclosure would be an unwarranted invasion of their privacy. The district court ordered the release of the records. It declined to award attorney’s fees to the Union, however, based on its finding that the Army had a reasonable basis in law for withholding the requested information. The Union appeals that finding. We find that the district court applied an inappropriate legal standard in making its determination, and reverse the finding that the Army’s refusal to disclose had a reasonable basis in law. We remand for reconsideration by the district court in light of the appropriate factors.

BACKGROUND

The United Association of Journeymen & Apprentices of the Plumbing and Pipe-fitting Industry, Local 598 (the Union), represents plumbing and pipefitting employees in eastern Washington…