Poulsen v. Department of Defense, No. 19-16430 (9th Cir. 2021)
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The Ninth Circuit reversed the district court's denial of plaintiff's motion for attorneys' fees in this Freedom of Information Act (FOIA) action against the DOJ. The panel concluded that plaintiff obtained relief through a judicial order that changed the legal relationship between the parties, and thus he is eligible for a fee award under 5 U.S.C. 552(a)(4)(E)(ii)(I). In this case, plaintiff 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 with a Glomar response. After plaintiff filed suit, President Trump declassified a memorandum that divulged the existence of responsive records and the DOJ then agreed to turn over any newly revealed, non-exempt documents by a specific date.
The panel explained that Congress passed the OPEN Government Act of 2007, which provided that a plaintiff may establish eligibility for FOIA attorneys' fees in one of two ways: (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. The panel remanded to the district court to determine whether plaintiff is entitled to fees given the unique circumstances underlying the government's change of position.
Court Description: 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 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.
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