First Amendment Coal. v. DOJ, No. 15-15117, 2017 WL 3548506 (9th Cir. Aug. 25, 2017) (Block, J.)

First Amendment Coal. v. DOJ, No. 15-15117, 2017 WL 3548506 (9th Cir. Aug. 25, 2017) (Block, J.)

Re:  Request for OLC memoranda concerning Anwar al-Awlaki

Disposition:  Reversing and remanding district court's denial of requester's motion for attorney fees

• Attorney Fees:  The Court of Appeals for the Ninth Circuit holds that "[it has] determined eligibility as a matter of law because there are no material facts in dispute, [and, therefore,] remand is required solely for the district court to determine the fees to which [the requester] is entitled."  The court first notes that "[b]ecause an award of fees under [FOIA] is discretionary, [the court] review[s] for an abuse of discretion."  The court then finds that "[it]should join [its] 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."  "Thus, the plaintiff in this case had to present 'convincing evidence' that the filing of the action 'had a substantial causative effect on the delivery of the information.'"  The court finds "what actually triggered the release of the OLC-CIA memo was that [the requester] sought to vacate the district court's grant of summary judgment."  "It was [the requester'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 – as acknowledged by the lower court – to 'voluntarily disclose[ ] the CIA memorandum to [the requester]].'"  Also, the court finds that "[t]here 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."
  
  Judge Berzon, concurring in the judgment, writes that "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 Berzon notes that, because of his and Judge Murguia's disagreement, "there is in fact no majority for the holding that causation has to be demonstrated"
  
  Judge Murguia, concurring in part and concurring in the judgment, writes that "[she] would reverse the district court for legal error, not for its underlying causation finding."  Judge Murguia writes that "[w]hen [the court] take[s] into account the DOJ's conduct, [the requester] has established its eligibility for an award of fees."