First Amendment Coalition v. U.S. Department of Justice

Filing 109

ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS 96 MOTION TO VACATE AND DENYING PLAINTIFFS 103 MOTION FOR ATTORNEYS FEES AND COSTS. (ndr, COURT STAFF) (Filed on 12/15/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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FIRST AMENDMENT COALITION,

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United States District Court
For the Northern District of California

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No. C 12-1013 CW

Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE,
Defendant.
________________________________/

ORDER GRANTING
PLAINTIFF’S MOTION
TO VACATE AND
DENYING
PLAINTIFF’S MOTION
FOR ATTORNEYS’
FEES AND COSTS
Docket Nos. 96 and
103

Currently before the Court are (1) Plaintiff First Amendment

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Coalition’s motion to vacate the Court’s April 11, 2014 order

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granting Defendant Department of Justice’s motion for summary

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judgment and denying Plaintiff’s cross-motion for summary judgment

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in this Freedom of Information Act (FOIA) case; and

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(2) Plaintiff’s motion for attorneys’ fees and costs.

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opposes both motions.

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Court GRANTS Plaintiff’s motion to vacate (Docket No. 96) and

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DENIES its motion for attorneys’ fees and costs (Docket No. 103).

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Defendant

Having considered the parties’ papers, the

BACKGROUND
This case, filed February 29, 2012, stems from Plaintiff’s

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FOIA request to Defendant seeking Department of Justice, Office of

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Legal Counsel memoranda regarding the United States’ involvement

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in the targeted killing of Anwar al-Awlaki.

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Defendant acknowledged the existence of one responsive memorandum,

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the Office of Legal Counsel-Department of Defense (OLC-DOD)

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In response,

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memorandum and otherwise issued a partial Glomar1 response,

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refusing to confirm or deny the existence of OLC opinions related

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to any other agency.

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The New York Times and the American Civil Liberties Union

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(ACLU) had previously made requests encompassing the documents at

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issue in this case and a great deal of other material.

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receiving similar responses to those in this case, the New York

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Times and ACLU had filed lawsuits on December 20, 2011 and

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February 1, 2012 in the United States District Court for the

After

United States District Court
For the Northern District of California

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Southern District of New York (SDNY), seeking the records they had

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requested.

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government’s motion for summary judgment and denied the ACLU’s and

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New York Times’ cross-motions.

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the disclosure of, inter alia, the OLC-DOD memorandum at issue in

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this suit.

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Court’s order to the Second Circuit.

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The SDNY Court consolidated the cases and granted the

The SDNY Court declined to require

Both the ACLU and the New York Times appealed the SDNY

At the time this Court entered its order granting Defendant’s

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motion for summary judgment and denying Plaintiff’s cross-motion

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for summary judgment, oral argument had been heard in the Second

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Circuit and the appeals had been submitted for decision.

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after this Court entered its order, the Second Circuit issued its

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opinion, reversing the SDNY Court's order.

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rejected the government’s partial Glomar responses from the Office

Ten days

The Second Circuit

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The refusal to confirm or deny the existence of responsive
records is called a Glomar response. See Phillippi v. CIA, 546
F.2d 1009, 1013 (D.C. Cir. 1976) (discussing issue of whether CIA
could refuse to confirm or deny its ties to Howard Hughes’
submarine retrieval ship, the Glomar Explorer).
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of Legal Counsel and the Central Intelligence Agency (CIA) and

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ordered disclosure of the OLC-DOD memorandum.

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Based on the Second Circuit's opinion, Plaintiff here filed a

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motion for reconsideration of or relief from this Court’s summary

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judgment order.

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“flagged new evidence which the government should have disclosed

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or brought to this Court’s attention.”

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argued that Defendant should have disclosed that, on February 4,

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2013, Defendant produced a version of a White Paper related to the

Plaintiff noted that the Second Circuit’s opinion

Specifically, Plaintiff

United States District Court
For the Northern District of California

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OLC-DOD memorandum in response to another organization’s FOIA

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request.

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government as having “acknowledged” the White Paper, not having

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officially disclosed it.

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In this litigation, Defendant had characterized the

This Court directed the parties to meet and discuss whether

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the Second Circuit’s order that the Department of Justice disclose

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the OLC-DOD memorandum mooted the instant case.

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that, if the parties agreed that the Second Circuit’s decision

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mooted the case, the parties should file a notice with the Court

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and could request that the Court vacate its order.

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further directed that, if the parties did not agree or agreed that

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the Second Circuit’s opinion did not moot the instant case,

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Defendant should file a response to the motion for

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reconsideration.

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The Court advised

The Court

On August 28, 2014, the parties submitted a joint status

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report, stating that Defendant had produced redacted versions of

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the OLC-DOD memorandum and of a second memorandum from the OLC to

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the CIA, and had affirmed that these were the only documents

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responsive to Plaintiff's request.
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The parties agreed that these

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disclosures resolved all substantive disputes in the case, but the

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parties disagreed regarding whether the Court should vacate its

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summary judgment order and whether Plaintiff is entitled to

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attorneys' fees.

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instant motions followed.

The Court set a briefing schedule and the

DISCUSSION

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I.

Motion to Vacate
Plaintiff moves to vacate the Court’s order granting

Defendant’s motion for summary judgment and denying Plaintiff’s

United States District Court
For the Northern District of California

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cross-motion for summary judgment.

Plaintiff first argues that,

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under Supreme Court precedent, vacatur is required because

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Defendant’s decision to release the OLC-DOD memorandum and the CIA

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memorandum in August rendered the case moot while it was still

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under review.

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Court held, “The established practice of the Court in dealing with

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a civil case from a court in the federal system which has become

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moot while on its way here or pending our decision on the merits

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is to reverse or vacate the judgment below and remand with a

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direction to dismiss.”

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Munsingwear, the Ninth Circuit has held that “automatic vacatur

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[is] the established practice, applying whenever mootness prevents

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appellate review.”

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1995) (internal quotation marks omitted).

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situation ‘eliminates a judgment the loser was stopped from

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opposing on direct review.’”

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Judicial Council, 488 F.3d 1065, 1068 (9th Cir. 2007) (quoting

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Arizonans for Official English v. Arizona, 520 U.S. 42, 71 (1997).

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Vacatur is appropriate in such a situation because otherwise, “the

In United States v. Munsingwear, Inc., the Supreme

340 U.S. 36, 39-40 (1950).

Applying

Dilley v. Gunn, 64 F.3d 1365, 1370 (9th Cir.
“Vacatur in such a

NASD Dispute Resolution, Inc. v.

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lower court’s judgment, ‘which in the statutory scheme was only

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preliminary,’ would escape meaningful appellate review thanks to

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the ‘happenstance’ of mootness.”

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U.S. at 39).

Id. (quoting Munsingwear, 340

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Plaintiff further cites a D.C. Circuit case in which the

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government unilaterally decided to release a document after a

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district court found that the document was exempt from disclosure

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and while the district court’s decision was on appeal.

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Armstrong v. Executive Office of the President, 97 F.3d 575, 582

In

United States District Court
For the Northern District of California

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(D.C. Cir. 1996), the government claimed that a document was

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covered by Exemption 3 to the FOIA.

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with the government and the plaintiff sought appellate review.

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While the appeal was pending, the government released the

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document.

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plaintiff’s argument that the case was moot and the district

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court’s decision should be vacated.

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The district court agreed

Citing Munsingwear, the D.C. Circuit agreed with the

Defendant counters that it did not take unilateral action

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that rendered this case moot.

Instead, Defendant asserts that it

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acted as the result of a court order in another jurisdiction.

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Defendant asserts that the reasoning of Munsingwear does not apply

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in such situations.

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not appropriate in this case because both parties gave up their

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right to review.

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challenged the redactions to both of the memoranda disclosed, but

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it voluntarily gave up the right to do so.

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argues that this case is more similar to a case in which the

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parties settled than a case in which the government unilaterally

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decided to change its policy.

Defendant further suggests that vacatur is

Defendant asserts that Plaintiff could have

Accordingly, Defendant

In U.S. Bancorp Mortgage v. Bonner
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Mall Partnership, the Supreme Court held, “Where mootness results

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from settlement, . . .

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his legal remedy by the ordinary processes of appeal or

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certiorari, thereby surrendering his claim to the equitable remedy

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of vacatur.”

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the losing party has voluntarily forfeited

513 U.S. 18, 26 (1994).

However, the Court finds that neither Munsingwear nor Bonner
Mall applies in this case.

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Circuit cases that follow them, announce a practice adopted by

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appellate courts to vacate a district court’s judgment and direct

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United States District Court
For the Northern District of California

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the district court to dismiss a case when it becomes moot while on

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appeal.

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(S.D. Fla.) (holding that Munsingwear and Bonner Mall do not apply

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where a party seeks to vacate a discovery order that has become

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moot); Railway Labor Executives’ Ass’n v. Wheeling & Lake Erie Ry.

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Co., 765 F. Supp. 249, 252 n.8 (E.D. Va. 1991) (“Munsingwear, at

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most, requires an appellate court to vacate a district court’s

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decision . . . .

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district courts.”) (internal citations omitted).

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Both of those cases, and the Ninth

See, e.g., Coty Inc. v. C Lenu Inc., 2011 WL 573837, *5

Munsingwear imposes no such requirement on

Nonetheless, the Court asked the parties to inform it whether

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they agreed that the Second Circuit’s disclosure order mooted the

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instant case.

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that they agreed that no substantive issues remain in the case.

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Docket No. 92.

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both parties’ decision to abandon their right to review.

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did the government abandon its right to seek en banc review in the

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Second Circuit or to file a petition for a writ of certioriari, it

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voluntarily disclosed the CIA memorandum to Plaintiff in this case

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and, when asked to state its position on whether this case is

Docket No. 91.

The parties responded by reporting

The Court finds that the case is moot based on

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Not only

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moot, responded that there were no issues left for this Court to

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consider.

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pursue its motion for reconsideration, to appeal this Court’s

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summary judgment order and to challenge the redactions to the OLC-

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DOD memorandum and the CIA memorandum.

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called upon to consider Plaintiff’s motion for reconsideration of

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the summary judgment order.

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and Plaintiff argued in the abandoned motion to reconsider, the

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Court may not have been fully apprised of the facts surrounding

At the same time, Plaintiff abandoned its right to

Here the Court was not

As the Second Circuit pointed out,

United States District Court
For the Northern District of California

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the White Paper related to the OCL-DOD memorandum.

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the government suggests that the Second Circuit and Plaintiff are

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mistaken in their interpretation of the significance of the White

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Paper.

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party’s position on the issue, and there is no reason to do so

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now.

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vacate its summary judgment order.

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II.

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In its papers,

However, the Court has not had occasion to consider either

Accordingly, the Court now exercises its discretion to

Motion for Attorneys’ Fees
Plaintiff next argues that it is entitled to attorneys’ fees

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under the FOIA, which provides that a “court may assess against

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the United States reasonable attorney fees and other litigation

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costs reasonably incurred in any case . . . in which the

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complainant has substantially prevailed.”

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552(a)(4)(E)(i).

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the complainant has obtained relief through either (I) a judicial

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order, or an enforceable written agreement or consent decree; or

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(II) a voluntary or unilateral change in position by the agency,

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if the complainant’s claim is not insubstantial.”

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§ 552(a)(4)(E)(ii).

5 U.S.C. §

“[A] complainant has substantially prevailed if

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5 U.S.C.

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Defendant in this case released the documents largely as a

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result of the Second Circuit’s ruling in NY Times, not as a result

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of the ruling in this case.

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requirements of § 552(a)(4)(E)(ii).

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voluntarily abandoned its motion for reconsideration of the

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Court’s order and agreed that no issues remained for litigation

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instead of pursuing an appeal.

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Plaintiff’s motion for attorneys’ fees.

United States District Court
For the Northern District of California

Moreover, Plaintiff

Accordingly, the Court denies

CONCLUSION

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This does not satisfy the

For the foregoing reasons, the Court GRANTS Plaintiff’s

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motion to vacate (Docket No. 96) and DENIES Plaintiff’s motion for

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attorneys’ fees (Docket No. 103).

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11, 2014 is VACATED.

The Court’s opinion of April

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IT IS SO ORDERED.

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Dated:

12/15/2014

CLAUDIA WILKEN
United States District Judge

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