Majority Determines A Causative Or Catalyst Test Applies, While Another Concurring Circuit Judge Determines No Causal Nexus Required.
The Ninth Circuit’s opinion in First Amendment Coalition v. Dept. of Justice, No. 15-15117 (9th Cir. Aug. 25, 2017) (published) is an interesting opinion on what level of causation or nature of the catalyst theory allows fee eligibility to plaintiff in a Freedom of Information Act (FOIA) case where the plaintiff seeks fees for forcing the government to change its position on production of documents.
In this one, the underlying scenario involved several plaintiffs’ efforts both in New York and federal courts to obtain DOJ memorandum, under FOIA, addressing the legality of the U.S. efforts to target the killing of U.S. citizens as terrorists. Two memoranda were eventually produced as a result of the two litigations, although one can say that both were somewhat instrumental in producing the FOIA disclosure. One of the plaintiffs (First Amendment Coalition, “FAC”) moved for attorney’s fees under FOIA, but the district court denied them based on the theory that the disclosure was based on activities in the New York litigation, not the California case.
The Ninth Circuit reversed and remanded, determining FAC was eligible for a fee award under FOIA, although the opinion produced three opinions, a majority and two concurrences. Assigned District Judge Block (E.D.N.Y.) authored the overall opinion, while Circuit Judges Berzon and Murguia wrote separate concurring opinions.
A lot of discussion centered upon whether a substantive causative effect or catalyst theory was still viable under FOIA after 2007 amendments, with the majority (Judges Block and Murguia) agreeing it was still intact to some degree (although disagreeing on what test must be satisfied)—meaning the FOIA plaintiff still needs to show a causal nexus between plaintiff’s litigation and governmental disclosure/change in position leading to disclosure. Judge Block liked the classic catalyst test, with Judge Murguia agreeing some causal nexus was required but saying a district court can apply a causative test which is based on special facts and circumstances short of a catalyst test (including looking at government conduct as far as proving causation). In contrast, Judge Berzon did not believe a causative test was necessary under FOIA at all as detailed in an extensive concurrence. However, all judges seemed to agree that FAC’s effort to vacate a summary judgment in the California case did lead to governmental production of the second memorandum.
Where does that leave us in the Ninth Circuit? We don’t know, because the fractured opinion leaves a lot more case law to elucidate certainty in this area.