Islamic Shura Council of South, et al v. FBI, et al

Filing

FILED PER CURIAM OPINION (MARY M. SCHROEDER, RICHARD C. TALLMAN and MILAN D. SMITH, JR.) REVERSED; VACATED. FILED AND ENTERED JUDGMENT. [8724225]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ISLAMIC SHURA COUNCIL OF
SOUTHERN CALIFORNIA; COUNCIL
ON AMERICAN ISLAMIC RELATIONS CALIFORNIA; ISLAMIC CENTER OF
SAN GABRIEL VALLEY; ISLAMIC
CENTER OF HAWTHORNE; WEST
COAST ISLAMIC CENTER; HUMAN
ASSISTANCE AND DEVELOPMENT
INTERNATIONAL, INC.; MUZAMMIL
SIDDIQI; SHAKEEL SYED; HUSSAM
AYLOUSH; MOHAMMED ABDUL
ALEEM; RAFE HUSAIN,
Plaintiffs-Appellees,

No. 12-55305
D.C. No.
8:07-cv-01088CJC-AN

OPINION

v.
FEDERAL BUREAU OF
INVESTIGATION; UNITED STATES
DEPARTMENT OF JUSTICE,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
June 26, 2013—Seattle, Washington

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ISLAMIC SHURA COUNCIL OF SO. CAL. V. FBI
Filed July 31, 2013
Before: Mary M. Schroeder, Richard C. Tallman,
and Milan D. Smith, Jr., Circuit Judges.
Per Curiam Opinion

SUMMARY*

Sanctions/Fed. R. Civ. P. 11(c)
The panel reversed the district court’s order granting the
Islamic Shura Council of Southern California’s motion for
sanctions under Federal Rule of Civil Procedure 11(c), and
vacated the district court’s order awarding fees.
The panel noted that before Shura Council filed its motion
for sanctions, the FBI had already “corrected” the challenged
pleadings and provided all the additional documents it was
obligated to provide under the Freedom of Information Act
(FOIA) to the district court in an in camera proceeding.
Shura Council moved for sanctions long after the district
court had ruled on the adequacy of the government’s eventual
compliance with FOIA, and a fortiori after it had ruled the
FBI’s original response had been inadequate and misleading.
The panel held that the motions for sanctions should not have
been granted because it was made after the “judicial rejection
of the offending contention.” Advisory Committee’s Notes
to the 1993 Amendments to Rule 11.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Stuart F. Delery, Acting Assistant Attorney General, Andre
Birotte, Jr., United States Attorney, Beth S. Brinkmann
(argued), Deputy Assistant Attorney General, Michael S.
Raab and Daniel Tenny, Department of Justice, Washington,
D.C., for Defendants-Appellants.
Ahilan T. Arulanantham (argued), ACLU Foundation of
Southern California, Los Angeles, California, for PlaintiffsAppellees.
Clare Pastore, USC Gould School of Law, Los Angeles,
California, for Amici Curiae Professors of Legal Ethics.

OPINION
PER CURIAM:
The Federal Bureau of Investigation (“FBI”) appeals the
district court’s order granting the Islamic Shura Council of
Southern California’s (“Shura Council”) motion for sanctions
under Federal Rule of Civil Procedure 11(c). See Islamic
Shura Council of S. Cal. v. FBI, 278 F.R.D. 538, 548 (C.D.
Cal. 2011). The FBI argues that the sanctions order must be
reversed because the FBI could not avail itself of the safe
harbor provision of Rule 11(c)(2).
We agree, and
consequently reverse the district court’s award of sanctions.1

1

The factual and procedural history of this case is described in the
district court’s order granting Shura Council’s motion for sanctions. See
Islamic Shura Council, 278 F.R.D. at 539–42; see also Islamic Shura

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“An appellate court should apply an abuse-of-discretion
standard in reviewing all aspects of a district court’s Rule 11
determination.” Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 405 (1990). “A district court would necessarily abuse its
discretion if it based its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evidence.”
Id.
A party may move for Rule 11 sanctions if its adversary
makes a frivolous filing or otherwise makes a contention for
an improper purpose. G.C. & K.B. Investments, Inc. v.
Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003). Such a motion
may not be filed, however, unless there is strict compliance
with Rule 11’s safe harbor provision. See Holgate v.
Baldwin, 425 F.3d 671, 678 (9th Cir. 2005) (holding that we
“enforce [Rule 11’s] safe harbor provision strictly”); see also
Ridder v. City of Springfield, 109 F.3d 288, 296 (6th Cir.
1997) (noting that “Rule 11 cases emerging in the wake of the
1993 amendments [to Rule 11] have found [compliance with]
the ‘safe harbor’ provision to be an absolute requirement.”).
That provision provides that any motion for sanctions must be
served on the offending party at least 21 days before the
motion is filed with the court. Fed. R. Civ. P. 11(c)(2). The
safe harbor provision further dictates that the motion may not
be filed if the offending party timely “withdraw[s] or
appropriately correct[s]” the challenged contention during the
safe harbor period. Id. The purpose of the safe harbor
provision is to give the offending party an opportunity to
correct or withdraw its problematic pleading, and “thereby
escape sanctions.” Barber v. Miller, 146 F.3d 707, 710 (9th
Cir. 1998) (emphasis in original).
Council of S. Cal. v. FBI (“Islamic Shura Council II”), 635 F.3d 1160,
1162–63 (9th Cir. 2011).

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Rule 11 is intended to deter baseless filings in district
court and imposes a duty of “reasonable inquiry” so that
anything filed with the court is “well grounded in fact, legally
tenable, and not interposed for any improper purpose.”
Cooter & Gell, 496 U.S. at 393 (internal quotation marks
omitted). Therefore, fee sanctions compensate a party for the
costs of enforcing the rule when the party taking the
challenged position has refused to withdraw or correct it.
Fed. R. Civ. P. 11(c)(2). Motions for Rule 11 attorney’s fees
cannot be granted after the district court has decided the
merits of the underlying dispute giving rise to the
questionable filing. This is because once the court has
decided the underlying dispute, the motion for fees cannot
serve Rule 11’s purpose of judicial economy. See Advisory
Committee’s Notes to the 1993 Amendments to Rule 11
(noting that a party may not move for Rule 11 sanctions after
“judicial rejection of the offending contention”).
Shura Council argues that its motion complied with the
safe harbor provision of Rule 11. Shura Council notes that it
served its motion for sanctions on the FBI 25 days before it
filed the motion with the district court. Shura Council further
notes that the FBI did not withdraw or correct its challenged
pleadings during this 25-day period. What Shura Council
fails to observe, however, is that the FBI had already
“corrected” the challenged pleadings and provided all the
information it was obligated to provide to the district court
before Shura Council filed its motion for sanctions. The FBI
informed the court of the existence of additional documents
previously in an in camera proceeding. Islamic Shura
Council, 278 F.R.D. at 541. The district court ruled that the
FBI should have told the court about these documents at the
pleading stage of the litigation, when the FBI responded to
Shura Council’s 2007 FOIA complaint with redacted

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documents the FBI claimed were “outside the scope” of
Shura Council’s request. Islamic Shura Council of S. Cal. v.
FBI, 779 F. Supp. 2d 1114, 1125 (C.D. Cal. 2011); see also
Islamic Shura Council II, 635 F.3d at 1166.
No party now disputes, however, that the FBI provided
the district court with a complete and accurate account of the
facts of this case during the in camera sessions. The district
court concluded that, in light of the FBI’s in camera
submissions, Shura Council was “not entitled to any further
information regarding the Government’s previous searches
for documents, and that the Government need not conduct
any additional searches for responsive documents.” Islamic
Shura Council, 278 F.R.D. at 542. Shura Council has not
appealed that determination.
Shura Council moved for sanctions long after the district
court had ruled on the adequacy of the government’s eventual
compliance with FOIA, and a fortiori after it had ruled the
FBI’s original response had been inadequate and misleading.
See Islamic Shura Council II, 635 F.3d at 1163. We
recognize that because of the in camera nature of the
proceedings, Shura Council could not have moved for
sanctions before the inadequacy of the FBI’s original
response was made known to the court. Nevertheless, the
motion for sanctions was made after “judicial rejection of the
offending contention.” Advisory Committee’s Notes to the
1993 Amendments to Rule 11. The motion for sanctions
should not have been granted.
The order granting the motion for sanctions is
REVERSED and the order awarding fees VACATED.
Each party shall bear its own costs.

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