Dissent Was Based On Plaintiff’s Failure To Show That His Lawsuit, Rather Than A Change In Circumstances, Was A Substantial Cause Of The Relief He Obtained.
The Freedom of Information Act (FOIA) allows district courts to assess reasonable attorney fees and costs against the United States in any FOIA case in which the complainant has substantially prevailed. (5 U.S.C. § 552(a)(4)(E)(i).) However, a FOIA plaintiff must show both eligibility and entitlement. To demonstrate eligibility, a plaintiff must show that he/she “substantially prevailed” by “obtain[ing] relief through either” (1) “a judicial order, or an enforceable written agreement or consent decree,” (5 U.S.C. § 552(a)(4)(E)(ii)(I)), or (2) “a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial,” (5 U.S.C. § 552(a)(4)(E)(ii)(II)). After the plaintiff has demonstrated eligibility, the district court has discretion on determining entitlement.
In Kevin Poulsen v. Department of Defense, Case No. 19-16430 (Ninth Circuit, April 16, 2021) (published), journalist Kevin Poulsen sued the Department of Justice and other agencies after receiving a Glomar response – which neither confirms nor denies the existence of responsive documents – to his FOIA request. After defendant agencies moved for summary judgment to confirm the adequacy of their responses, a declassified memo and subsequently published memo publicly revealed the existence of documents responsive to Poulsen’s records request. This prompted defendant agencies to successfully seek withdrawal of their motion and reevaluate what information “must now be disclosed under the FOIA.” Ultimately, the DOJ produced 412 pages of responsive documents pursuant to a minute order issued by the district court which adopted defendant agencies’ proposed disclosure schedule and directed the DOJ to “complete processing and production of responsive, non-exempt documents subject to FOIA.” Defendant agencies then successfully moved for summary judgment to confirm the accuracy of its Glomar responses to Poulsen’s remaining FOIA requests.
Poulsen – arguing he was both “eligible” and “entitled” – then moved for attorney fees, pursuant to 5 U.S.C. § 552(a)(4)(E). As to eligibility, Poulsen contended he substantially prevailed because he obtained relief through the district court’s minute order. However, the district court found that the DOJ’s change in position resulted from the declassified memo and subsequently published memo – not Poulsen’s lawsuit. On the basis of its conclusion that Poulsen was not “eligible” because he “did not secure a change in the legal relationship between the parties nor [did he] prevail on the merits of his arguments,” the district court denied the fees and made no determination as to whether Poulsen was “entitled.”
Poulsen appealed – obtaining a reversal and remand from the Ninth Circuit. In a 2-1 decision, Judge Kim McLane Wardlow and Judge Daniel P. Collins concurred that Poulsen had “substantially prevailed” by obtaining relief through a judicial order and was “eligible” for a fee award under 5 U.S.C. § 552(a)(4)(E)(ii)(I), and found nothing in the statutory text required an inquiry into what caused the district court to grant relief through a judicial order. It was enough that Poulsen obtained relief through a judicial order to show eligibility. On remand, the district court was instructed to weigh all factors relevant to the entitlement analysis.
U.S. Court of International Trade Judge Richard K. Eaton, sitting by designation, dissented. Citing Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011) and Davis v. DOJ, 610 F.3d 750 (D.C. Cir. 2010), Judge Eaton concluded that both categories of prevailing parties – those obtaining relief under a judicial order, and those obtaining relief due to a voluntary change in position – required a showing by plaintiff that his/her lawsuit was reasonably necessary to obtain the information, and that the filing of the lawsuit had a substantial causative effect on the delivery of the information. Because Poulsen had not shown that his lawsuit was a substantial cause of the relief he obtained, Judge Eaton would find him ineligible for attorney fees under either of the two categories.
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