Kevin Poulsen v. Department of Defense ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN POULSEN, No. 19-16430
Plaintiff-Appellant,
D.C. No.
v. 3:17-cv-03531-
WHO
DEPARTMENT OF DEFENSE; OFFICE
OF THE DIRECTOR OF NATIONAL
INTELLIGENCE; UNITED STATES OPINION
DEPARTMENT OF JUSTICE,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted October 15, 2020
San Francisco, California
Filed April 16, 2021
Before: Kim McLane Wardlaw and Daniel P. Collins,
Circuit Judges, and Richard K. Eaton, * Judge.
*
Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
2 POULSEN V. DEP’T OF DEFENSE
Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Collins;
Dissent by Judge Eaton
SUMMARY **
Freedom of Information Act / Attorneys’ Fees
The panel reversed the district court’s denial of a motion
for attorneys’ fees in a Freedom of Information Act
(“FOIA”) lawsuit against the Department of Justice
(“DOJ”), and remanded.
Plaintiff initially submitted a FOIA request for records
related to the alleged surveillance of President Trump and
his advisors during the 2016 election. The DOJ responded
with a Glomar response that neither confirmed nor denied
the existence of such records. After plaintiff filed this
lawsuit, President Trump declassified a memorandum that
divulged the existence of responsive records; and the DOJ
subsequently agreed to turn over any newly revealed, non-
exempt documents by a specific date.
The panel held that plaintiff “substantially prevailed”
under 5 U.S.C. § 552(a)(4)(E) because be obtained relief
through a judicial order that changed the legal relationship
between the parties, and concluded that he was “eligible” for
a fee award under 5 U.S.C. § 552(a)(4)(E)(ii)(I). The panel
noted that Congress passed the OPEN Government Act of
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
POULSEN V. DEP’T OF DEFENSE 3
2007 (the “2007 Amendments”), which provided that a
plaintiff may establish eligibility for FOIA attorneys’ fees in
one of two ways. The panel remanded to the district court to
determine in the first instance whether plaintiff was
“entitled” to those fees given the unique circumstances due
to the government’s change in position in the case.
Judge Collins concurred in part and concurred in the
judgment. He joined the majority opinion except as to
footnote 7, which he concluded cited legislative history that
made no difference to the outcome of the case where the
words of the statute were unambiguous.
Court of International Trade Judge Eaton dissented, and
would find that plaintiff was not eligible for attorneys’ fees
under either category provided for by the 2007
Amendments. He would hold that plaintiff had only shown
that the agency’s change in position, due to the President’s
declassification, was memorialized in an enforceable court
order, but plaintiff had not shown that his lawsuit was a
substantial cause (or any cause at all) of the relief he
obtained.
COUNSEL
W. Gordon Kaupp (argued) and Beth Feinberg, Kaupp &
Feinberg LLP, San Francisco, California; Colleen Flynn,
Los Angeles, California; for Plaintiff-Appellant.
Leif Overvold (argued) and Charles W. Scarborough,
Appellate Staff; David L. Anderson, United States Attorney;
Ethan P. Davis, Principal Deputy Assistant Attorney
General; Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellees.
4 POULSEN V. DEP’T OF DEFENSE
OPINION
WARDLAW, Circuit Judge:
Kevin Poulsen appeals the district court’s denial of his
motion for attorney fees in this Freedom of Information Act
(“FOIA”) lawsuit against the Department of Justice
(“DOJ”). Poulsen initially submitted a FOIA request for
records related to the alleged electronic surveillance of
President Trump and his advisors during the 2016 election.
The DOJ responded to that request with a Glomar response,
neither confirming nor denying the existence of those
records. After Poulsen filed this lawsuit, however, President
Trump declassified a memorandum that divulged the
existence of responsive records. The DOJ subsequently
agreed to turn over any newly revealed, non-exempt
documents by a specific date. The district court adopted the
DOJ’s proposal in a written order.
We must decide whether Poulsen “substantially
prevailed” under 5 U.S.C. § 552(a)(4)(E), thereby making
him eligible for an award of attorney fees. We conclude that
because Poulsen obtained relief through a judicial order that
changed the legal relationship between the parties, he is
eligible for a fee award under 5 U.S.C. § 552(a)(4)(E)(ii)(I).
We remand to the district court to determine whether
Poulsen is “entitled” to those fees given the unique
circumstances underlying the government’s change of
position in this case.
I.
Poulsen is a journalist and contributing editor for the
news media outlet The Daily Beast. On March 4, 2017,
Poulsen submitted a FOIA request to the DOJ and other
agencies seeking several categories of records related to the
POULSEN V. DEP’T OF DEFENSE 5
alleged electronic surveillance of Donald Trump and his
advisors during the 2016 election. On April 4, the DOJ
issued a Glomar response. “A Glomar response ‘neither
confirms nor denies the existence of documents pertaining
to the request’” because even that initial step would threaten
one of the interests protected by a FOIA exemption. First
Amend. Coal. v. DOJ, 878 F.3d 1119, 1122 n.3 (9th Cir.
2017) (quoting N.Y. Times Co. v. DOJ, 756 F.3d 100, 105
(2d Cir. 2014)). 1
Separately, in March 2017, the House Permanent Select
Committee on Intelligence (“HPSCI”) announced an
investigation into the alleged Russian interference in the
2016 election. As part of the HSPCI’s investigation, it
sought and ultimately obtained access to classified Foreign
Intelligence Surveillance Act (“FISA”) applications and
orders to conduct surveillance of Carter Page—an advisor to
the Trump presidential campaign during the relevant period.
1
“The Glomar doctrine originated in a FOIA case concerning
records pertaining to the Hughes Glomar Explorer, an oceanic research
vessel.” Wilner v. NSA, 592 F.3d 60, 67 (2d Cir. 2009) (citing Phillippi
v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)). In that case, a journalist filed
a FOIA request with the Central Intelligence Agency (“CIA”), seeking
all records related to the agency’s efforts to convince members of the
media not to publish what they had learned about the Glomar Explorer.
Phillippi, 546 F.2d at 1011. In response, the CIA asserted that the
“existence or nonexistence of the requested records was itself a classified
fact exempt from disclosure under . . . FOIA,” and “that, in the interest
of national security, involvement by the U.S. Government in the
activities which are the subject matter of [the] request can neither be
confirmed nor denied.” Id. at 1012. Thus, “[t]his principle—that an
agency may, pursuant to FOIA’s statutory exemptions, refuse to confirm
or deny the existence of certain records in response to a FOIA request—
has since become known as the Glomar doctrine.” Wilner, 592 F.3d
at 67; see also Hunt v. CIA, 981 F.2d 1116, 1118 (9th Cir. 1992).
6 POULSEN V. DEP’T OF DEFENSE
On June 19, 2017, Poulsen filed this lawsuit, contending
that defendants’ FOIA responses were either untimely or
legally deficient. 2 In November, the agencies moved for
summary judgment to confirm the adequacy of their
responses. In early February 2018, however, while
defendants’ motion for summary judgment was pending,
President Trump declassified a memorandum written by
HSPCI Chairman Devin Nunes (the “Nunes Memo”). As
described in a declaration supporting the agencies’ summary
judgment motion, the Nunes Memo “summarizes,
characterizes, and offers opinions about the . . . FISA
applications submitted by the [DOJ] to the Foreign
Intelligence Surveillance Court (FISC), and the orders
obtained from the FISC in response . . . .” Thus, although
the President’s declassification publicly revealed the
existence of the Carter Page FISA applications, it did not
“broadly declassify all information contained in or related to
the Carter Page FISA applications and orders.” Moreover,
the Nunes Memo did not “quote any portions of the FISA
applications or FISC orders on Carter Page.”
Following the President’s declassification of the Nunes
Memo, the DOJ withdrew its Glomar response “as to the
existence of the Page FISA applications and orders identified
in the Nunes Memo.” The defendant agencies
simultaneously moved to withdraw their motion for
summary judgment to determine whether the
declassification and dissemination of the Nunes Memo
“impact[ed] their response[s]” and whether they could now
acknowledge or produce documents responsive to Poulsen’s
2
Poulsen originally filed this action against the DOJ, the
Department of Defense, and the Office of the Director of National
Intelligence. However, he sought attorney fees from only the DOJ, and
thus the DOJ is the only defendant in this appeal.
POULSEN V. DEP’T OF DEFENSE 7
request. On February 16, the district court granted the
motion over Poulsen’s objection.
On February 24, 2018, the HSPCI’s Democratic
members released a memorandum authored by ranking
member Adam Schiff (the “Schiff Memo”). The release of
certain information in the Schiff Memo “was a consequence
of the President’s decision to declassify the Nunes Memo,”
and the redacted portions of the Schiff Memo remained
“properly classified.” Like the Nunes Memo, the Schiff
Memo “summarizes, characterizes, and offers opinions”
about the FISA applications submitted by the DOJ to the
FISC, and the resulting FISC orders.
In light of the President’s declassification of the Nunes
Memo and the publication of the Schiff Memo, defendants
reevaluated what information “must now be disclosed under
the FOIA” by, in part, “analyz[ing] each piece of
information in the FISA materials to determine whether it
matche[d] information disclosed in the Nunes and Schiff
Memos.” The DOJ formally agreed to review and process
the Page FISA records for release during the March 27, 2018
case management conference among the parties. The district
court adopted defendants’ proposed disclosure schedule in a
minute order dated that day (the “March 27 Order”), and
directed the DOJ to “complete processing and production of
responsive, non-exempt documents subject to FOIA by July
20, 2018.” 3 In accordance with the district court’s order, the
3
Several parallel lawsuits adopted an identical disclosure schedule.
See James Madison Project v. DOJ, No. 17-cv-597-APM (D.D.C. Mar.
19, 2018) (minute entry); Gizmodo Media Grp., LLC v. DOJ, No. 17-cv-
3566-DLC (S.D.N.Y. Mar. 30, 2018) (ECF No. 44); N.Y. Times Co. v.
DOJ, No. 18-cv-2054-AT (S.D.N.Y. Apr. 10, 2018) (ECF No. 11);
Judicial Watch, Inc. v. DOJ, No. 18-cv-245-CRC (D.D.C. Apr. 23, 2018
and May 18, 2018) (ECF Nos. 7, 8).
8 POULSEN V. DEP’T OF DEFENSE
DOJ produced 412 pages of responsive documents on July
20. The DOJ then moved for summary judgment to confirm
the accuracy of its responses to Poulsen’s remaining FOIA
requests. Granting the motion, the district court concluded
that “the government has demonstrated substantial grounds
to maintain the Glomar responses to everything except the
documents necessarily covered by the limited public
acknowledgement of the electronic surveillance of Carter
Page.”
With some of the documents he initially sought in hand,
Poulsen moved for attorney fees pursuant to 5 U.S.C.
§ 552(a)(4)(E), arguing that he was both eligible and entitled
to an award. The district court denied Poulsen’s motion,
concluding that he was not eligible for attorney fees because
he “did not secure a change in the legal relationship between
the parties nor [did he] prevail on the merits of his
arguments.” Because the district court concluded that
Poulsen was ineligible for fees, it did not decide whether
Poulsen was entitled to fees. This timely appeal followed.
II.
We have jurisdiction under 28 U.S.C. § 1291. Although
we review a district court’s ultimate decision regarding
whether to award attorney fees for abuse of discretion, we
review de novo whether the district court applied the correct
legal standard. Or. Nat. Desert Ass’n v. Locke, 572 F.3d 610,
613–14 (9th Cir. 2009); see also Grand Canyon Tr. v.
Bernhardt, 947 F.3d 94, 96–97 (D.C. Cir. 2020) (per curiam)
(explaining that the district court’s determination regarding
fee eligibility is reviewed de novo to the extent that it
“rest[ed] on an interpretation of the statutory terms that
define eligibility for an award” (citation omitted)).
POULSEN V. DEP’T OF DEFENSE 9
III.
FOIA provides that a “court may assess against the
United States reasonable attorney fees and other litigation
costs reasonably incurred in any case under this section in
which the complainant has substantially prevailed.”
5 U.S.C. § 552(a)(4)(E)(i). A complainant has
“substantially prevailed” if he has “obtained relief through
either” (1) “a judicial order, or an enforceable written
agreement or consent decree,” id. § 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,” id.
§ 552(a)(4)(E)(ii)(II). A complainant is deemed “eligible”
for a fee award by satisfying either subsection.
But simply because a party is eligible for an award of
fees and costs does not mean that the district court must grant
such an award. See Church of Scientology of Cal. v. U.S.
Postal Serv., 700 F.2d 486, 489 (9th Cir. 1983), abrogated
on other grounds by Buckhannon Bd. & Care Home, Inc. v.
W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 605
(2001). “If the plaintiff demonstrates that he is eligible for
fees (i.e., proves that he has ‘substantially prevailed’), ‘the
district court may, in the exercise of its discretion, determine
that the [complainant] is entitled to an award of attorney’s
fees.’” Long v. IRS, 932 F.2d 1309, 1313 (9th Cir. 1991)
(per curiam) (quoting Church of Scientology, 700 F.2d
at 492).
A.
Poulsen contends that he substantially prevailed because
he obtained relief through the March 27 Order, thus
establishing eligibility for a fee award under 5 U.S.C.
§ 552(a)(4)(E)(ii)(I). He relies on the portion of the order
that provides:
10 POULSEN V. DEP’T OF DEFENSE
[I]t is ORDERED that: . . . With respect to
the schedule for processing the remaining
records and DOJ entities, I adopt the
defendants’ schedule: they shall . . . complete
processing and production of responsive,
non-exempt documents subject to FOIA by
July 20, 2018 . . . .
The district court rejected this argument because the DOJ’s
change in position was not caused by Poulsen’s lawsuit, but
instead resulted from the President’s declassification of the
Nunes Memo and the subsequent release of the Schiff
Memo—matters “occurring outside of the litigation.”
However, in light of the 2007 Amendments to FOIA, we
think it clear that a complainant need not show a causal
connection between the FOIA lawsuit and the government’s
change in position to establish that he has “substantially
prevailed” under 5 U.S.C. § 552(a)(4)(E)(ii)(I). 4
B.
“[O]ur inquiry begins with the statutory text.”
Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th
Cir. 2009) (citation omitted). “If the text is clear, as it is
here, it ends there as well.” First Amend. Coal., 878 F.3d at
1131 (Berzon, J., concurring in the judgment). Section
552(a)(4)(E)(ii)(I) provides that a plaintiff has “substantially
prevailed” if he has “obtained relief through . . . a judicial
order, or an enforceable written agreement or consent
4
Because we conclude that Poulsen was eligible for attorney fees
by obtaining relief through a “judicial order” under 5 U.S.C.
§ 552(a)(4)(E)(ii)(I), we do not address his alternative argument that he
was eligible through a “voluntary or unilateral change” in the agency’s
position under § 552(a)(4)(E)(ii)(II).
POULSEN V. DEP’T OF DEFENSE 11
decree.” As written, nothing in the subsection’s text
suggests that we are to look behind the judicial order and
ascertain how it came into existence. Rather, it requires only
the entering of an order of the sort described in that
subsection. 5
The history of FOIA’s fee-shifting provision also
supports this interpretation of § 552(a)(4)(E)(ii)(I). Before
5
Our decision in First Amendment Coalition focused solely on
interpreting § 552(a)(4)(E)(ii)(II) (an agency’s “voluntary or unilateral
change in position”), and therefore does not dictate the outcome here.
See First Amend. Coal., 878 F.3d at 1127 (“But subsection E(ii)(II),
relevant to this appeal . . . . ”); id. at 1131 (Berzon, J., concurring in the
judgment) (“We are concerned with subsection (II).”).
We note, however, that the panel in First Amendment Coalition
sharply divided on whether § 552(a)(4)(E)(ii)(II) requires a complainant
to demonstrate causation in every instance. Compare First Amend.
Coal., 878 F.3d at 1128 (majority opinion) (“Judge Murguia and I
believe that we should join our 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.”),
with id. at 1141 (Murguia, J., concurring in part and concurring in the
judgment) (“In the majority of FOIA fee cases, the catalyst theory of
recovery will be the appropriate way to analyze the plaintiff’s eligibility
for fees. But, to my mind, a catalyst theory of recovery does not suit the
facts of this case.” (emphases added)). Thus, it remains unclear whether
a majority of the panel in fact endorsed the case’s purported holding that
a causal connection must be established under § 552(a)(4)(E)(ii)(II). See
First Amend. Coal., 878 F.3d at 1131 (Berzon, J., concurring in the
judgment) (“Because Judge Murguia and I, although for different
reasons, would hold that even absent a judgment, causation is not always
a necessary condition of fee eligibility for FOIA complainants, there is
in fact no majority for the holding that causation has to be
demonstrated.”); see also Grand Canyon Tr., 947 F.3d at 99–100
(Randolph, J., concurring in the judgment) (rejecting the D.C. Circuit’s
interpretation that § 552(a)(4)(E)(ii)(II) requires a showing of causation
as mere dicta and endorsing Judge Berzon’s analysis in First Amendment
Coalition).
12 POULSEN V. DEP’T OF DEFENSE
2001, courts construed fee eligibility broadly under what
was known as the “catalyst theory.” First Amend. Coal.,
878 F.3d at 1126–27 (recounting the history of FOIA’s fee-
shifting provision). “Under this doctrine, a plaintiff
‘substantially prevailed’ not only when he obtained an
official disclosure order from a court, but also when he
substantially caused the government to release the requested
documents before final judgment.” Brayton v. Office of the
U.S. Trade Rep., 641 F.3d 521, 524–25 (D.C. Cir. 2011)
(emphasis added). Then, in 2001, the Supreme Court
rejected the catalyst theory in Buckhannon, holding that
plaintiffs “generally would only be eligible for attorney fees
if they were ‘awarded some relief by [a] court.’” Id. at 525
(quoting Buckhannon, 532 U.S. at 603). The Court noted
that a “defendant’s voluntary change in conduct, although
perhaps accomplishing what the plaintiff sought to achieve
by the lawsuit, lacks the necessary judicial imprimatur on
the change.” Buckhannon, 532 U.S. at 605 (emphasis in
original). 6
6
In other words, by eliminating the catalyst theory for establishing
fee eligibility, Buckhannon eliminated the substantial cause requirement
that went with it. See 532 U.S. at 604–05. Indeed, the Buckhannon Court
rejected the catalyst theory in part because the Court thought its inquiry
into “whether the lawsuit was a substantial rather than an insubstantial
cause of the defendant’s change in conduct” would unduly complicate
what was supposed to be a readily administrable standard. Id. at 610.
The dissent nonetheless asserts that, pre-Buckhannon, a causation
requirement applied across-the-board, even when the plaintiff prevailed
through a judicial order, and that Buckhannon left that rule in place as to
judicial orders. Dissent at 20. That is hard to square with Buckhannon’s
critique of inquiries into causation, and the dissent cites nothing in the
Court’s opinion that supports a causation requirement in the case of
judicial orders, court-ordered consent decrees, and the like.
POULSEN V. DEP’T OF DEFENSE 13
But less than a decade later, the winds again shifted when
Congress passed the OPEN Government Act of 2007, Pub.
L. No. 110-175, 121 Stat. 2524 (2007) (the “2007
Amendments”). The 2007 Amendments “abrogated the rule
of Buckhannon in the FOIA context and revived the
possibility of FOIA fee awards in the absence of a court
decree.” Brayton, 641 F.3d at 525 (emphasis added). Thus,
in addition to the post-Buckhannon requirement for
establishing fee eligibility through a court order, the 2007
Amendments “redefined ‘substantially prevail[ing]’ to
include ‘obtain[ing] relief through . . . a voluntary or
unilateral change in position by the agency, if the
complainant’s claim is not insubstantial.’” Id. (quoting
5 U.S.C. § 552(a)(5)(E)(ii)) (emphasis added).
In other words, following the enactment of the 2007
Amendments, a plaintiff may establish eligibility in one of
two ways. Under § 552(a)(5)(E)(ii)(I), which codified the
post-Buckhannon but pre-2007 Amendments avenue, a
plaintiff must show that he “obtained relief through . . . a
judicial order, or an enforceable written agreement or
consent decree.” Alternatively, under § 552(a)(5)(E)(ii)(II),
which has been widely understood as reinstating the pre-
Buckhannon catalyst theory, a plaintiff must demonstrate a
“voluntary or unilateral change in position by the agency, if
At bottom, the dissent, citing the Buckhannon concurrence,
misunderstands the role of causation in relation to § 552(a)(5)(E)(ii)(I),
the judicial order subsection. See Dissent at 20. The Buckhannon
concurrence merely confirms that, for a plaintiff to have substantially
prevailed, “the outcome” must have been “at least the product of, and
bear[] the sanction of, judicial action.” 532 U.S. at 618 (Scalia, J.,
concurring) (emphasis added). The only “causation” requirement
referenced in this language is that the judicial order caused the outcome,
i.e., altered the legal relationship between the parties, not that the
independent actions of one of the litigants did.
14 POULSEN V. DEP’T OF DEFENSE
[his] claim is not insubstantial.” See First Amend. Coal.,
878 F.3d at 1128 (collecting cases). It is only the latter
avenue that potentially requires a showing of causation. 7 See
id.
C.
Our holding is in accord with that of the D.C. Circuit in
Davy v. CIA, 456 F.3d 162 (D.C. Cir. 2006). In Davy, the
plaintiff brought a FOIA lawsuit after the CIA denied his
request for documents related to the CIA’s “alleged role in
the assassination of President John F. Kennedy.” Id. at 163.
The parties then “reached a Joint Stipulation for the
production of responsive documents,” which required the
CIA to “provide Plaintiff [with] all responsive documents, if
any, . . . by certain dates.” Id. at 164 (internal quotation
marks omitted). Once the district court “approved the Joint
Stipulation and memorialized it in a court order,” the CIA
complied and produced the documents. Id.
The D.C. Circuit held that Davy “substantially
prevailed” when the district court issued that order because
(1) “the order changed the ‘legal relationship between [the
plaintiff] and the defendant,’” id. at 165 (quoting
Buckhannon, 532 U.S. at 604), and (2) “Davy was awarded
7
Although the text of the statute is clear, and we thus need not look
to legislative materials for support, we note that the 2007 Amendments’
legislative history reinforces the conclusion already made plain in
FOIA’s text. The relevant Senate Judiciary Committee report states the
2007 Amendments were intended “to clarify that a complainant has
substantially prevailed in a FOIA lawsuit . . . if the complainant has
obtained relief through a judicial or administrative order or if the pursuit
of a claim was the catalyst for the voluntary or unilateral change in
position by the opposing party.” S. Rep. No. 110-59, at 6 (2007)
(emphasis added). We decline to gloss over Congress’s use of this
disjunctive language.
POULSEN V. DEP’T OF DEFENSE 15
some relief on the merits of his claim,” id. Prior to the
issuance of the order, “the CIA was not under any judicial
direction to produce documents by specific dates.” Id.
at 166. Following the entry of the court’s order, however,
“timely production of nonexempt documents by the [CIA]
could no longer be described as a voluntary change in the
defendant’s conduct.” Id. (internal quotation marks and
citation omitted). “If the [a]gency failed to comply with the
order, it faced the sanction of contempt.” Id.; see also
Judicial Watch, Inc. v. FBI, 522 F.3d 364, 370 (D.C. Cir.
2008); Sierra Club v. EPA, 75 F. Supp. 3d 1125, 1141 (N.D.
Cal. 2014).
Here, the effect of the March 27 Order is
indistinguishable from that of the district court’s order in
Davy. On 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[].” Davy,
456 F.3d at 166. “Had the [DOJ] reneged on its promise . . . ,
forgot[ten] to do so, or even delayed disclosure, it would
have been subject to contempt,” Judicial Watch, 522 F.3d
at 370, a consequence that the government could not deny
during oral argument. 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. See Davy, 456 F.3d at 165–66; see also
Campaign for Responsible Transplantation v. FDA,
511 F.3d 187, 197 (D.C. Cir. 2007) (“Once an order has been
adopted by the court, requiring the agency to release
documents, the legal relationship between the parties
changes.” (emphasis in original)); Sierra Club, 75 F. Supp.
16 POULSEN V. DEP’T OF DEFENSE
3d at 1141; Elec. Priv. Info. Ctr. v. FBI, 72 F. Supp. 3d 338,
344 (D.D.C. 2014); Citizens for Resp. & Ethics in Wash. v.
DOJ, 820 F. Supp. 2d 39, 43–45 (D.D.C. 2011).
We reject 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”). Davy, 456 F.3d at 165 (citing Oil, Chem. &
Atomic Workers Int’l Union v. Dep’t of Energy, 288 F.3d
452, 458 (D.C. Cir. 2002)); cf. Summers v. DOJ, 569 F.3d
500, 505 (D.C. Cir. 2009) (finding the plaintiff ineligible for
a fee award where “[t]he orders required the FBI to do no
more than to join with the plaintiff in filing status reports
updating the court on any voluntary disclosures the agency
may have made”). Moreover, the government’s agreement
to, or even its proposal of, specific terms is irrelevant to our
analysis. See Judicial Watch, 522 F.3d at 370 (“[O]rders like
these, even when voluntarily agreed to by the government,
are sufficient to make plaintiffs eligible for attorneys’ fees
under FOIA.”); Campaign for Responsible Transplantation,
511 F.3d at 197 (“The agreement of the defendant to terms
that are mandated by a court order is besides the point.”).
The March 27 Order “affirmatively require[d] the
processing and production of documents by a date certain.”
Citizens for Resp. & Ethics, 820 F. Supp. 2d at 44 (citing
Campaign for Responsible Transplantation, 511 F.3d at
197). We therefore reject the government’s effort to recast it
as a mere scheduling order through which Poulsen obtained
nothing.
POULSEN V. DEP’T OF DEFENSE 17
We note, 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. See, e.g., Brayton, 641 F.3d at 526–28 (holding that
even if the plaintiff was eligible to receive attorney fees, he
was not entitled to an award because the government’s initial
position refusing the FOIA request was legally correct).
IV.
Because we conclude that Poulsen is eligible for a fee
award, the district court must now determine whether he is
entitled to such an award. Or. Nat. Desert Ass’n, 572 F.3d
at 614. The district court did not reach this precise question
because it determined that Poulsen was ineligible for a fee
award. We reject Poulsen’s invitation to examine whether
he is entitled to attorney fees as a matter of law and instead
remand so that the district court may weigh all factors
relevant to the entitlement analysis in the first instance.
REVERSED AND REMANDED.
COLLINS, Circuit Judge, concurring in part and concurring
in the judgment:
I join Judge Wardlaw’s opinion except as to footnote 7,
which insists on citing legislative history that can make no
difference to the outcome of this case.
As the portion of the opinion that I join persuasively
explains, nothing in the relevant text of the statute requires
an inquiry into what caused a court to grant relief to the
18 POULSEN V. DEP’T OF DEFENSE
plaintiff through a judicial order; it is enough that the
plaintiff “obtained relief through . . . a judicial order.” See
5 U.S.C. § 552(a)(4)(E)(ii)(I). Where, as here, “the words of
a statute are unambiguous, then, this first canon”—i.e., that
the plain meaning of the text controls—“is also the last:
‘judicial inquiry is complete.’” Connecticut Nat’l Bank v.
Germain, 503 U.S. 249, 253–54 (1992) (citation omitted);
see also Maj. Opin. at 10 (“Our inquiry begins with the
statutory text,” and “[i]f the text is clear, as it is here, it ends
there as well.” (simplified)).
Resort to a Senate Report here is therefore inappropriate,
no matter what that report states: if it happens to support
what the text says, it is superfluous; and if it contradicts the
text, it can be given no weight. Moreover, this Senate Report
does not reflect “Congress’s use of . . . language,” Maj.
Opin. at 14 n.7; it reflects only the thoughts of the staff who
wrote it and the few Senators (if any) who read it. See
Zedner v. United States, 547 U.S. 489, 510 (2006) (Scalia,
J., concurring in part & in the judgment) (warning that such
use of legislative history “accustoms us to believing that
what is said by a single person in a floor debate or by a
committee report represents the view of Congress as a
whole—so that we sometimes even will say (when referring
to a floor statement and committee report) that ‘Congress has
expressed’ thus-and-so” (citation omitted)). Because
reliance on the Senate Report here is “illegitimate and ill
advised,” id. at 511, I do not join footnote 7.
POULSEN V. DEP’T OF DEFENSE 19
EATON, Judge, dissenting:
The Freedom of Information Act (“FOIA”) provides that
a party is eligible to receive attorney fees if it has
“substantially prevailed” in its lawsuit. 5 U.S.C.
§ 552(a)(4)(E)(i).
In 2007, Congress passed the OPEN Government Act,
which, for the first time, provided for two categories of
prevailing parties: (1) where the relief sought resulted from
a judicial order or consent decree and (2) where a voluntary
change in position afforded the plaintiff relief. See OPEN
Government Act of 2007, Pub. L. No. 110-175, § 4, 121 Stat.
2524, 2525 (the “2007 Amendments”); see also 5 U.S.C.
§ 552(a)(4)(E)(ii).
Both categories existed in law before the 2007
Amendments, but Congress found that explicitly providing
for the second category (voluntary change in position) would
facilitate its purpose of overruling the holding in
Buckhannon Board and Care Home, Inc. v. West Virginia
Department of Health and Human Resources, 532 U.S. 598
(2001). Buckhannon held that, to be a prevailing party, a
plaintiff needed more than a voluntary change in position. In
addition, the plaintiff needed a court-ordered judgment on
the merits or a consent decree. 1 See 532 U.S. at 604–05.
Buckhannon was decided in the context of the Fair Housing
1
Davy v. CIA, decided by the D.C. Circuit Court of Appeals prior to
the 2007 Amendments, and applying the Buckhannon standard, is in
accord. See 456 F.3d 162, 166 (D.C. Cir. 2006). There, the parties
entered a joint stipulation, which the Court found to be effectually a
negotiated settlement enforced by consent decree. See id. (“The order
here is functionally a settlement agreement enforced through a consent
decree.”). Here, the order scheduling disclosure did not result from
Poulsen’s lawsuit, but from the President’s declassification.
20 POULSEN V. DEP’T OF DEFENSE
Amendments Act and the Americans with Disabilities Act.
See id. at 601. A number of circuits, however, adopted the
Buckhannon rule in the FOIA context. Thereafter, Congress
enacted the 2007 Amendments to overrule Buckhannon, and
thus make eligible for attorney fees a plaintiff who could
show that it had obtained relief by a party voluntarily
changing its position as a result of the litigation, but which
had obtained neither a court order nor a consent decree. See
5 U.S.C. § 552(a)(4)(E)(ii)(II); see also, e.g., Davis v. DOJ,
610 F.3d 750, 752 (D.C. Cir. 2010).
Prior to Buckhannon, to be a prevailing party under any
set of facts, a FOIA plaintiff’s lawsuit must have been a
“substantial cause” for obtaining relief in order for there to
be eligibility for attorney fees. See Davis, 610 F.3d at 752.
Buckhannon added the requirement of a judgment or court
order for eligibility for attorney fees but did not eliminate the
substantial cause requirement. See Buckhannon, 532 U.S. at
618 (Scalia, J., concurring) (explaining that court-approved
settlements and consent decrees, along with judicial
determinations on the merits, were appropriate grounds for
eligibility because “the outcome is at least the product of,
and bears the sanction of, judicial action in the lawsuit. There
is at least some basis for saying that the party favored by the
settlement or decree prevailed in the suit.”). 2
2
The majority relies on what it characterizes as the clear text of the
statute to reach its conclusions. Prior to the 2007 Amendments the text
read “[t]he court may assess against the United States reasonable
attorney fees and other litigation costs reasonably incurred in any case
under this section in which the complainant has substantially prevailed.”
5 U.S.C. § 552(a)(4)(E) (2006) (amended 2007). Courts across the
country found that for a plaintiff to be eligible for attorney fees, its
lawsuit must somehow have caused the result. See, e.g., Davis, 610 F.3d
at 752; Campaign for Responsible Transplantation v. Food & Drug
POULSEN V. DEP’T OF DEFENSE 21
The import of Buckhannon was that the plaintiff’s
lawsuit, having been a substantial cause of obtaining relief,
was a necessary but not sufficient condition for eligibility for
attorney fees. More was needed in the form of a court order
or consent decree—i.e., a merits determination in favor of
the plaintiff. See Buckhannon, 532 U.S. at 604–05. The 2007
Amendments overruled the judicial imprimatur requirement
in a case of a voluntary change of position but left in place
the requirement that the plaintiff’s lawsuit be a substantial
cause of obtaining relief for attorney fee eligibility under
either prong.
The 2007 Amendments thus returned the law to what
several circuits, including this Circuit, had held it to be prior
to Buckhannon. See Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 524–25 (D.C. Cir. 2011)
(emphasis added) (“[Pre-Buckhannon], a plaintiff
‘substantially prevailed’ not only when he obtained an
official disclosure order from a court, but also when he
substantially caused the government to release the requested
documents before final judgment. . . . The purpose and effect
of [the 2007 Amendments], which remains in effect today,
was to change the ‘eligibility’ prong back to its pre-
Buckhannon form.”); Davis, 610 F.3d at 752; see also, e.g.,
Church of Scientology of Cal. v. U.S. Postal Serv., 700 F.2d
486, 489 (9th Cir. 1983) (citation omitted) (“The plaintiff
must show that: (1) the filing of the action could reasonably
have been regarded as necessary to obtain the information;
and (2) the filing of the action had a substantial causative
Admin., 511 F.3d 187, 193 (D.C. Cir. 2007) (quoting Buckhannon,
532 U.S. at 606). Nothing in the majority’s opinion convinces me that a
plain reading eliminates this requirement.
22 POULSEN V. DEP’T OF DEFENSE
effect on the delivery of the information.”) (stating the pre-
Buckhannon, pre-2007 Amendments standard).
Here, Poulsen 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. I would find that he is
not eligible for attorney fees under either category provided
for by the 2007 Amendments. I respectfully dissent.