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Poulsen v. DOD, No. 19-16430, 2021 WL 1432965 (9th Cir. Apr. 16, 2021) (Wardlaw, J.)

Date

Poulsen v. DOD, No. 19-16430, 2021 WL 1432965 (9th Cir. Apr. 16, 2021) (Wardlaw, J.)

Re:  Request for records concerning alleged electronic surveillance of President Trump and his advisors during 2016 election

Disposition:  Holding that requester is eligible for attorney fee award; remanding to district court to determine if requester is entitled to attorney fee award

  • Attorney Fees:  The Court of Appeals for the Ninth Circuit "conclude[s] that because [the requester] obtained relief through a judicial order that changed the legal relationship between the parties, he is eligible for a fee award."  The court relates that "[o]n March 27, 2018, the district court directed the DOJ to 'complete processing and production of responsive, non-exempt documents subject to FOIA by July 20, 2018.'"  "Prior to this order, the DOJ 'was not under any judicial direction to produce documents by specific dates; the [March 27 Order] changed that by requiring the Agency to produce all "responsive documents" by the specified date[ ].'"  "'Had the [DOJ] reneged on its promise . . . , forgot[ten] to do so, or even delayed disclosure, it would have been subject to contempt,' . . . ."  "The DOJ's subsequent production of documents could no longer be characterized as 'voluntary,' and the judicial order therefore altered the legal relationship between the parties."  "[The court] reject[s] the government's attempt to reduce the March 27 Order to a mere scheduling order that 'simply memorialized and adopted' the DOJ's changed position."  "By its plain terms, it 'ORDERED . . . [the] production of responsive, non-exempt documents subject to FOIA by July 20, 2018.'"  "Thus, the March 27 Order is distinguishable from those orders deemed 'procedural' in nature (i.e., 'conduct a search'), as opposed to 'substantive' (i.e., 'produce documents')."  "Moreover, the government's agreement to, or even its proposal of, specific terms is irrelevant to our analysis."  "The March 27 Order 'affirmatively require[d] the processing and production of documents by a date certain.'"  "We therefore reject the government’s effort to recast it as a mere scheduling order through which [the requester] obtained nothing."  "[The court] note[s], however, that our analysis does not render irrelevant issues related to how the judicial order came into existence."  "Indeed, whether the government's initial nondisclosure position was legally correct is a factor that the district court must weigh at the discretionary entitlement phase."  "[The court] remand[s] to the district court to determine whether [the requester] is 'entitled' to those fees given the unique circumstances underlying the government's change of position in this case."

    Judge Collins, concurring in part and concurring in the judgment, writes separately to object to "footnote 7, which insists on citing legislative history that can make no difference to the outcome of this case."

    Judge Eaton, dissenting, writes that "[the requester] has only shown that the agency's change in position, due primarily to the President's declassification, was memorialized in an enforceable court order."  "He has not shown that his lawsuit was a substantial cause (or indeed any cause at all) of the relief he obtained."
Court Decision Topic(s)
Court of Appeals opinions
Attorney Fees
Updated May 5, 2021