First Amendment Coal. v. U.S. Dep't of Justice

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: BLOCK, District Judge:
• Citation: First Amendment Coal. v. U.S. Dep't of Justice, 878 F.3d 1119 (9th Cir. 2017)
• Decision Date: 25 August 2017
• Docket Number: No. 15-15117,15-15117
• Parties: FIRST AMENDMENT COALITION, Plaintiff–Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant–Appellee.

878 F.3d 1119

FIRST AMENDMENT COALITION, Plaintiff–Appellant,

v.UNITED STATES DEPARTMENT OF JUSTICE, Defendant–Appellee.

No. 15-15117

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 15, 2016 San Francisco, California

Filed August 25, 2017

Amended November 29, 2017

Jonathan L. Segal (argued), Davis Wright Tremaine LLP, Los Angeles, California; Diana Palacios and Thomas R. Burke, Davis Wright Tremaine LLP, San Francisco, California; for Plaintiff–Appellant.

Sushma Soni (argued) and Sharon Swingle, Attorneys; Douglas N. Letter, Director, Appellate Staff; Hashim M. Mooppan, Deputy Assistant Attorney General; Chad A. Readler, Acting Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendant–Appellee.

Bruce D. Brown, Katie Townsend, and Adam A. Marshall, Washington, D.C., as and for Amicus Curiae Reporters Committee for Freedom of the Press.

Before: Marsha S. Berzon and Mary H. Murguia, Circuit Judges, and Frederic Block,^* District Judge.

Concurrence by Judge Berzon ;

Concurrence by Judge Murguia

ORDER

The opinion filed on August 25, 2017, and published at 869 F.3d 868, is amended as follows:

On page 49 of the slip opinion, within Judge Murguia’s opinion concurring in part and concurring in the judgment, add a footnote after the sentence "First Amendment Coalition failed to prevail primarily because of unilateral Government actions, outside its control." The footnote—new footnote four—reads: "In her opinion, Judge Berzon suggests that my reasoning implies bad faith on the part of the government in this case. I am not aware of the circumstances surrounding the DOJ’s action, but the fact that the district court was not made aware of the White paper’s disclosure was critical for First Amendment Coalition’s inability to prevail on the merits and establish eligibility for attorney fees."

With this amendment, Defendant–Appellee’s motion to amend the opinion and stay the mandate (Docket Entry No. 57) is DENIED as moot.

BLOCK, District Judge:

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.

We all agree—although for different reasons—that FAC is eligible for attorney’s fees. Accordingly, we REVERSE and REMAND to the district court to determine the fees to which FAC is entitled.²

I

More than a year prior to al-Awlaki’s death, two NY Times reporters, Scott Shane and Charlie Savage, submitted separate FOIA requests to OLC. Shane’s request, submitted in June 2010, sought "all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassinations, or killing of people suspected of ties to Al-Qaeda or other terrorist groups by employees or contractors of the United States government." New York Times v. United States Dep’t of Justice , 756 F.3d 100, 105 (2d Cir. 2014).

Savage’s request, submitted in October 2010, sought "a copy of all Office of Legal Counsel memorandum analyzing the circumstances under which it would be lawful for United States Armed Forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist." Id.

FAC was the first to file a FOIA request after al-Awlaki’s death. On October 5, 2011, it asked the DOJ for "a legal memorandum prepared by OLC 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." FAC alleged that "[t]he 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, on October 7, 2011, the NY Times made another FOIA request, identical to the Savage request, and twelve days later, on October 19, 2011, the ACLU submitted FOIA requests to three agencies—DOJ, the Department of Defense ("DOD"), and the CIA—seeking various documents concerning the targeted killings of United States citizens in general, and al-Awlaki, his son, and another American citizen, Samir Khan, in particular.

All FOIA requests were met with resistance by the agencies; they were the subject of either a so-called "no number, no list" response or a so-called Glomar response.³ Not surprisingly, FAC, the NY Times, and the ACLU sued. The NY Times was the first to strike. It initiated its action in the SDNY on December 20, 2011; the ACLU brought suit, also in the SDNY, on February 1, 2012, and the two cases were consolidated. FAC commenced its lawsuit in the NDCA later that month, on February 29, 2012.

On June 21, 2013, the DOJ issued a modified response to FAC’s FOIA request, "acknowledging the existence of one responsive OLC opinion pertaining to the Department of Defense"—the OLC–DOD Memo—but "refusing to confirm or deny the existence of responsive records related to any other agency." A similar acknowledgment had previously been made a year before in the SDNY litigation by the OLC, DOD, and CIA.⁴ See New York Times , 756 F.3d at 108 ; see also New York Times v. United States Dep’t of Justice , 915 F.Supp.2d 508, 519 (S.D.N.Y. 2013) (citing Declaration of John E. Bies, Deputy Assistant Attorney General, ¶ 30 ("Bies Decl."); Declaration of Robert E. Neller, Lt. General, United States Marine Corps, Director of Operations for the Joint Staff at the Pentagon, ¶ 17 ("Neller Decl.")). The OLC–DOD Memo was an "OLC opinion pertaining to the Department of Defense marked classified ... [t]hat ... contain[ed] confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country." New York Times , 756 F.3d at 112 (citing Bies Decl. ¶ 30).

Despite acknowledging its existence, the Government refused to disclose the OLC–DOD memo—as well as any other related documents—in both litigations, claiming an assortment of FOIA exemptions and privileges.⁵ Each district court granted the Government’s summary judgment motions. The SDNY decision came first, on January 3, 2013, and the NY Times and ACLU appealed to the Second Circuit. The NDCA decision came more than a year later, on April 11, 2014, while the Second Circuit appeal was sub judice .

In between the SDNY and NDCA decisions, there were a number of public disclosures that subsequently impacted the Second Circuit’s decision. As recounted by the circuit court,

[a]fter the [SDNY] entered judgment for the Defendants, one document and several statements of Government officials ... became publicly available. The document was captioned "DOJ White Paper" and titled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qaeda or an Associated Force"

("White Paper").⁶ New York Times , 756 F.3d at 110. In the White Paper "the Government ma[de] public a detailed analysis of nearly all the legal reasoning contained in the OLC–DOD Memo," which the Second Circuit had reviewed in camera. Id. at 116. As the circuit court noted, the White Paper had been "leaked to the press" on February 4, 2013—soon after the SDNY granted summary judgment for defendants—and it was subsequently "officially disclosed" four days later by the Office of Information Policy "in response to a FOIA request submitted by Truthout," a non-profit political news organization. Id. at 110 n.9, 116.

Based upon the release of the White Paper and the Government officials’ statements, the Second Circuit concluded that "waiver of secrecy and privilege as to the legal analysis in the [OLC–DOD Memo] ha[d] occurred." Id. It accordingly ordered, inter alia , the disclosure of a redacted version of the OLC–DOD Memo, and submission to the district court of "other legal memoranda prepared by OLC ... for in camera inspection and determination of waiver of privileges and appropriate redaction."⁷ Id. at 124.

In so holding, the Second Circuit paused to distinguish the NDCA’s decision denying FAC’s FOIA request for the OLC–DOD memo, even though that decision—unlike the SDNY’s—was rendered after the White Paper had surfaced. It believed that the NDCA had been "under the impression that there ha[d] been no official disclosure of the White Paper," and therefore, "did not assess its significance," whereas before the circuit court, "the Government ha[d] conceded that the White Paper, with its detailed analysis of legal reasoning, ha[d] in fact been officially disclosed."⁸ New York Times , 756 F.3d at 116.

Not surprisingly, FAC sought to vacate—by a timely motion for reconsideration—the NDCA’s order granting the DOJ’s motion for summary judgment. It also moved for attorney’s fees and costs.

The district court directed that before the Government filed its response to FAC’s motion, the parties should "meet and discuss whether the Second Circuit’s order that the DOJ disclose the OLC–DOD...