United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 24, 2000 Decided March 7, 2000
No. 99-5217
Daniel S. Jacobs,
Appellant
v.
Lois J. Schiffer, in her official capacity
as Assistant Attorney General for the
Environment and Natural Resources Division
of the U.S. Department of Justice,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00506)
Kathleen L. Jennings argued the cause for appellant.
With her on the briefs was Robert A. Van Kirk.
Thomas M. Bondy, Attorney, United States Department of
Justice, argued the cause for appellee. With him on the brief
were David W. Ogden, Acting Assistant Attorney General,
Barbara C. Biddle, Assistant Director, and Wilma A. Lewis,
United States Attorney.
Before: Ginsburg, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: Having obtained a partial judgment
in his favor, see Jacobs v. Schiffer, 47 F. Supp.2d 16 (D.D.C.
1999), Daniel S. Jacobs appeals the denial of attorney's fees
under the Equal Access to Justice Act, 28 U.S.C. s 2412
("EAJA"). Jacobs contends that the district court misper-
ceived the relevant inquiry under EAJA and that as a matter
of law the government was not substantially justified in its
position that Jacobs obtain its advance approval before shar-
ing information with his attorney in the course of obtaining
legal advice about a potential lawsuit against his employing
agency. We agree, and reverse, remanding the case for the
district court to determine the amount of attorney's fees to
award Jacobs.
I.
The underlying litigation stems from the reaction that
Jacobs, a trial lawyer in the Environment and Natural Re-
sources Division, Environmental Enforcement Section, of the
United States Department of Justice, received when he re-
ported his "qualms" about the propriety of certain strategies
and tactics by the Section in cases to which he was assigned
to his supervisors--ultimately, to Lois J. Schiffer, Assistant
Attorney General for the Environment and Natural Re-
sources Division of the Department of Justice. See Jacobs,
47 F. Supp.2d at 17-18. During the same period Jacobs
reported his qualms, Jacobs' performance rating was lowered
and he was involuntarily transferred to a different litigating
group. Id. at 18. Jacobs consulted a private attorney to
determine "whether the conduct that he reported within the
[Department] constituted wrongdoing, whether his supervi-
sors improperly retaliated against him, and what public dis-
closures he might lawfully make under the Whistleblower
Protection Act, 5 U.S.C. s 2302(b)(8)." Id.
Recognizing the potentially sensitive nature of some of the
materials Jacobs sought to disclose, Jacobs' attorney at the
time, Jonathon Turley, asked Assistant Attorney General
Schiffer to notify Division management that he "would have
to review internal memoranda on the specific litigation that is
the subject of the retaliation claims," and that "any confiden-
tiality or departmental objections to such a review be made as
soon as possible so as to expedite this matter." The Depart-
ment's response on behalf of the Assistant Attorney General
was that the Freedom of Information Act ("FOIA"), 5 U.S.C.
s 552 (1996), controlled, and hence any records that Jacobs
wanted to disclose to his attorney had to be identified before
the Department could authorize their disclosure. Citing its
FOIA regulations, 28 C.F.R. s 16 (1996), the Department
advised that Jacobs " 'must describe the records sought in
sufficient detail to enable Department personnel to locate the
records with a reasonable amount of effort.' "
Jacobs responded through counsel that a whistle-blower
does not make documents "public" by showing them to his or
her attorney, and that he was entitled "to seek legal advice
and discuss internal matters without such discussions being
classified as an unauthorized or public disclosure." Jacobs
asked whether the Department would consider certain com-
munications by him to his attorney without prior approval to
violate Department rules, specifically: (1) oral communica-
tions between a whistle-blower and his attorney discussing
the basis of his claim and the handling of specific cases that
are material to the whistle-blower complaint; (2) internal
electronic messages and memoranda from or to supervisors
concerning the whistle-blower's internal complaints; and (3)
internal electronic messages and memoranda concerning the
handling of cases that are material to the whistle-blower
complaint. The Department's position was that these com-
munications were not exempt from the general restrictions on
the release of non-public information.
Because Jacobs and the Department were at loggerheads
concerning how Jacobs could obtain legal advice with respect
to his contemplated lawsuit against the Department, Jacobs
filed suit against Assistant Attorney General Schiffer in 1997,
seeking injunctive relief for what he considered to be a denial
of his rights secured by the First and Fifth Amendments.1
Jacobs' first cause of action, claiming a First Amendment
right to communicate with his attorney, was premised largely
on Martin v. Lauer, 686 F.2d 24 (D.C. Cir. 1982) ("Martin
II"). Jacobs' second cause of action went beyond Martin II,
alleging that his First Amendment associational interests
gave him the right to disclose FOIA-exempt information in
the course of seeking legal advice from his attorney and from
"public interest and professional organizations committed to
civil rights, whistle-blower rights, government accountability,
and environmental enforcement." His third cause of action
alleged an unconstitutional impairment of attorney-client
communications that impeded his access to the courts in
violation of the Due Process Clause.
The district court granted summary judgment for Jacobs
on his first cause of action, ruling that the Department's
"absolute embargo" on Jacobs' communications with his attor-
ney constituted "a prior restraint ... considerably more
onerous than the one that the D.C. Circuit found unconstitu-
tional in [Martin II]," and thus violated Jacobs' free speech
rights. Jacobs, 47 F. Supp.2d at 20, 22, 24. After reviewing
in camera documents Jacobs proposed to show his attorney,
the district court found that "it is clear on this record that
__________
1 Jacobs sought three orders: (1) that the prohibition on unautho-
rized disclosures of non-public information in attorney-client com-
munications, or any requirement of pre-communication review of
such disclosures, violates the right of freedom of speech under the
First Amendment; (2) that the prohibitions on such disclosures in
attorney-client communications, or any requirement of pre-
communication review of the same, violates freedom of association
under the First Amendment; and (3) that such prohibition or
requirement violates the right to unimpeded access to the courts
under the Due Process Clause of the Fifth Amendment. The
prayer for relief also sought orders enjoining the Department from
enforcing pre-disclosure restrictions and awarding Jacobs reason-
able attorney's fees and costs under EAJA.
Mr. Jacobs could show his attorney some, if not all, of the
documents that he would like to disclose without violating any
statute or regulation." Id. The district court likewise reject-
ed the Department's position that a government lawyer,
under D.C. Rules of Professional Conduct Rule 1.6(a), " 're-
veal[s]' his client's confidences and secrets when he discloses
to his personal attorney--with the express understanding
that the information should go no further--only those confi-
dences and secrets that the latter needs in order to advise the
government lawyer of his rights and obligations as a possible
whistle-blower." Id. at 20-21. The district court concluded,
therefore, that the Department's restraint "is broader than
that imposed by law or professional ethics," id. at 21, and,
relying on Martin II, 686 F.2d at 31-35, the court ruled that
the restraint violated Jacobs' First Amendment rights. Ja-
cobs, 47 F. Supp.2d at 24. In the district court's view, to
address the Department's concerns about the disclosure of
confidential information, "[a]ll that is required ... is an order
directing Mr. Jacobs' attorney to keep in confidence, and to
use only for the purpose of rendering advice to Mr. Jacobs,
any nonpublic information that his client may impart to him."
Id. at 24.2 While concluding that Jacobs had no right to
disclose FOIA-exempt information to public interest groups,
the court found it unnecessary to resolve Jacobs' second and
third causes of action. Id.
Although Jacobs had succeeded on his free speech claim,
the district court denied Jacobs attorney's fees under EAJA,
explaining only that:
__________
2 The district court also permanently enjoined the Department
from requiring [Jacobs] to notify the [Department] and obtain
authorization before disclosing to counsel hereinafter identified
any nonpublic information without which, according to counsel's
good-faith belief, counsel cannot formulate effective legal advice
to [Jacobs] regarding matters arising from events giving rise to
this action....
Jacobs, 47 F. Supp.2d at 25. The district court's order provided
that "nothing in this Order shall be read to authorize [Jacobs] or
counsel to violate any law or rule of professional conduct...." Id.
Mr. Jacobs' prayer for relief generally exempting him
from inhibitions on the disclosure of nonpublic informa-
tion to any sympathetic third party likely to offer to
advise him represents an extreme to which the Court has
not found him entitled. In the circumstances the Court
concludes that [the Department] was substantially justi-
fied in resisting Jacobs' request for carte blanche permis-
sion to disclose without following the rules.
Id. at 24-25. The Department did not appeal the judgment
on Jacobs' free speech claim, and our review, therefore, is
limited to Jacobs' contention that the district court erred in
denying him attorney's fees under EAJA.
II.
Under EAJA, a party is entitled to attorney's fees when (1)
the party "prevailed" in the underlying litigation by "suc-
ceed[ing] on a significant issue in litigation that achieves some
of the benefits the party sought in bringing suit," Anthony v.
Sullivan, 962 F.2d 586, 589 (D.C. Cir. 1993), (citing Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983)), and (2) the govern-
ment cannot demonstrate substantial justification for its posi-
tion. See, e.g., F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 594
(D.C. Cir. 1996). The government's "position" includes both
its pre-litigation and litigation positions, id., and is "substan-
tially justified if it is 'justified in substance or in the main--
that is, justified to a degree that could satisfy a reasonable
person. That is no different from ... [having] a reasonable
basis both in law and fact.' " Id. at 595 (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). The government
bears the burden of demonstrating substantial justification.
Id. The district court ruled that the Department had met its
burden, and our review of the district court's denial of
attorney's fees is for abuse of discretion. See, e.g., Pierce,
487 U.S. at 562-63; Vollmer, 102 F.3d at 596.
It is well established that a party "prevails" under EAJA's
first inquiry even if success is only partial, Farrar v. Hobby,
506 U.S. 103, 111 (1996); Texas State Teachers Ass'n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989), and it is
undisputed that Jacobs prevailed on his first cause of action:
the district court ruled that the Department's position requir-
ing preclearance was an "absolute embargo" and an unconsti-
tutional prior restraint. Jacobs, 47 F. Supp.2d at 20, 24. In
such circumstances, the district court's task with respect to
the EAJA inquiry was to determine whether the govern-
ment's position with respect to the issue on which the party
prevailed was substantially justified. See, e.g., Air Transport
Ass'n. of Canada v. FAA, 156 F.3d 1329, 1332 (D.C. Cir.
1998); Cinciarelli v. Reagan, 729 F.2d 801, 804-05 (D.C. Cir.
1984).
The district court's terse denial of attorney's fees effective-
ly precluded inquiry into the reasonableness of the Depart-
ment's position with respect to the issue upon which Jacobs
prevailed, namely his right to disclose information to his
attorney without first revealing that information to the De-
partment for preclearance. Instead, the district court evalu-
ated the Department's position primarily as a reaction to
Jacobs' broader contentions concerning public interest groups
on which he did not prevail. The court has explained that
such a "holistic" approach to the government's position is
contrary to EAJA, see Air Transport Ass'n of Canada, 156
F.3d at 1332, and that the relevant "position" of the govern-
ment is that which corresponds to the claim or aspect of the
case on which the private party prevailed. Thus, even if the
Department was, as the district court found, justified in
refusing to authorize carte blanche disclosure of non-public
information to public interest organizations, the question for
the district court under EAJA was whether the Department's
preclearance restraint on Jacobs' communications with his
attorney was reasonable. By lumping together the Depart-
ment's positions on Jacobs' first and second causes of actions,
involving disclosure to his attorney and public interest organi-
zations, respectively, the district court never addressed that
crucial question.
The district court's failure to make the appropriate inquiry
under EAJA was an error of law, which, by definition, was an
abuse of discretion. See Cooter & Gell v. Hartmax Corp., 496
U.S. 384, 405 (1990). Because the question of whether the
Department's position was substantially justified can be an-
swered as a matter of law, a remand is unnecessary, see, e.g.,
George Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 1539
(D.C. Cir. 1992); Shaw v. FBI, 749 F.2d 58, 63 (1984), and we
turn to the critical question that the district court did not
address.
In view of the district court's judgment on the merits of
Jacobs' free speech claim, which the government did not
appeal,3 the appropriate inquiry under EAJA is whether the
Department was substantially justified in placing on Jacobs'
communications with his attorney a prior restraint consider-
ably more onerous than the one that the court held unconsti-
tutional in Martin II.4 On the undisputed facts, the answer
can only be "No." The Department has been consistently
unwilling to recognize that communication of government
information by a federal government employee to the employ-
ee's attorney, where the attorney is bound to keep such
information confidential, is not a public disclosure of such
information, and that the employee enjoys rights under the
First Amendment to engage in such communications in addi-
tion to those the employee enjoys as a member of the general
public under FOIA. In response to Jacobs' initial request for
__________
3 The Department in its brief to this court takes issue with the
district court's characterization of the government's position as
requiring Jacobs to receive advance approval before disclosing
information to his attorney and as a restriction more severe than
that at issue in Martin II. This it cannot do; it did not appeal that
judgment. See, e.g., Trahan v. Brady, 907 F.2d 1215, 1218 (D.C.
Cir. 1990); Trahan v. Reagan, 824 F.2d 96, 103 (D.C. Cir. 1987),
vacated on other grounds, 866 F.2d 1424 (D.C. Cir. 1988). In any
event, we find no basis on which to conclude that the district court
clearly erred in its characterization. See Cooter & Gell, 496 U.S. at
403-05; Vollmer, 102 F.3d at 596.
4 Subsequently, the court affirmed the district court's judgment
that even in the absence of specific precedent regarding a federal
employee's rights to communicate with the employee's attorney, the
government's position had not been substantially justified under
EAJA. See Martin v. Lauer, 740 F.2d 36, 45-47 (D.C. Cir. 1984)
(Martin III).
the Department to register its objections to any of Jacobs'
contemplated disclosures to his attorney, the Department
responded: "[W]e know of no authority under which the
types of communications described in your letters are except-
ed from the general restrictions on the release of confidential
information." Jacobs, 47 F. Supp.2d at 18 n.2. Once Jacobs
filed his lawsuit, the Department's position changed only to
refer to additional statutory and regulatory obstacles to dis-
closure,5 but at no point did the Department yield from its
preclearance position as to the first cause of action on which
Jacobs ultimately prevailed.
Yet the Department's position--its professed unawareness
of any authority that might justify Jacobs' contemplated
communications with his attorney--failed to acknowledge that
the First Amendment, superior to the statutory and regulato-
ry provisions relied upon by the Department, might provide
such authority. This failure was inexplicable in light of
Martin II, which was decided more than a decade earlier. In
Martin II, the Department had required two employees who
were challenging the legality of a reduction-in-force to inform
it of what non-public, FOIA-exempt information they had
revealed to their attorney. 686 F.2d. at 26-27. Noting that a
balancing test to weigh the First Amendment rights of gov-
ernment employees against the government's interests will
vary according to the type and context of the speech at issue,
id. at 31 (citing Pickering v. Bd. of Education, 391 U.S. 563,
568 (1968)), the court concluded that:
Since the [Department's] memorandum works to restrict
communications between government employees and
__________
5 The additional statutes and regulations cited by the Department
included the Privacy Act, 5 U.S.C. s 552a(b) (1996); the Trade
Secrets Act, 18 U.S.C. s 1905 (1996); an ethics regulation concern-
ing use of non-public information by a government employee, 5
C.F.R. s 2635.703 (1996); the so-called "Touhy" regulations govern-
ing production or disclosure in federal and state proceedings, 28
C.F.R. s 16.21-16.29 (1996); and a regulation prohibiting the im-
proper use of official information, 28 C.F.R. s 45.735-10 (1996).
Schiffer also cited Department Order 2710.8A (1997), regarding
removal and maintenance of documents.
their attorneys, it implicates the fundamental right of
those employees to meaningful access to the courts.
Absent grounds to believe that discussions in this limited
context would significantly impair any governmental in-
terest, we conclude that the ... memorandum provisions,
as applied to FOIA-exempt information violate appel-
lants' first amendment rights.
Id. at 32.6 Observing that there is a critical distinction
between disclosures in the attorney-client context and public
disclosures, id. at 32, 34-35, the court further concluded that
"the government may protect its interest in prohibiting public
disbursal of any sensitive information without intruding on
the employee's substantial interest in freely discussing his
legal rights with his attorney." Id. at 34. While the govern-
ment arguably "could protect its interest in preventing public
disclosure of government information by requiring the em-
ployee not to authorize any subsequent disclosure of sensitive
government information by his or her attorney," the court
stated that a "broad restriction, undermining the confidential-
ity of the attorney-client relationship and chilling discussions
with counsel in order to protect the government's unclear
interest in monitoring all discussions of FOIA-exempt infor-
mation cuts too deeply into the employee's first amendment
rights." Id. at 34-35.
It thus has long been clear that the First Amendment does
not provide a federal employee seeking legal advice regarding
a dispute with the employing agency with carte blanche
authority to disclose any and all confidential government
information to the employee's attorney, but rather that the
scope of the First Amendment right is determined by balanc-
__________
6 In Martin II, the court
emphasize[d], however, that this conclusion pertains only to the
communications made to the employees' attorneys and not to
any subsequent use made of those communications. Were the
employees to reveal the FOIA-exempt information to others, or
to authorize their attorney to do so, the balance between the
government's interests and the employees' might well shift.
Id. at 32.
ing the employee's interests in communication with the gov-
ernment's interests in preventing communication. Relevant
to this balancing is whether the attorney is likely to keep this
information in confidence, as suggested by willingness to
enter into a protective order, or whether such communica-
tions to the personal attorney will operate as a de facto public
disclosure. Where, as here, there was no evidence to suggest
that Jacobs' attorney would publicly disclose the information
Jacobs sought to communicate, the First Amendment re-
quired a balancing of interests beyond the balance between
disclosure and non-disclosure under the Freedom of Informa-
tion Act. Understandably, the Department would be con-
cerned about giving carte blanche approval of unlimited dis-
closures to one of its attorneys who has access to a broad
range of potentially sensitive, non-public information and who
is challenging its management of litigation. But the reason-
ableness of the Department's position with respect to Jacobs'
free speech claim regarding his attorney must be evaluated in
light of Martin II. In that regard it is bears noting that in
Martin II the court observed, albeit in dictum, that in the
whistle-blower context, where a legal question arises as to
whether a contemplated public disclosure would be prohibited
by law, "[s]urely, [the employee] must be allowed to consult
his attorney for an answer to that question absent some
strong governmental interest in limiting such communica-
tions." Martin II, 686 F.2d at 33 n.41.
Consequently, the Department's position was not substan-
tially justified as a matter of law in light of the Department's
complete unwillingness to acknowledge that Jacobs had an
interest in communicating with his attorney on his side of the
First Amendment's scale. While the district court's judg-
ment on the merits is a separate matter, see Vollmer, 102
F.3d at 595, the gap between where the district court deter-
mined the point of First Amendment equilibrium to be and
the Department's "absolute embargo" evidences the Depart-
ment's unwillingness to confront the constitutional implica-
tions of its dispute with Jacobs. Instead, prior to the instant
litigation, the Department stated that it was aware of no
authority that would have allowed Jacobs to make his contem-
plated communications to his attorney. In the district court,
the Department continued to claim that it was unable to
assess the scope of the information that Jacobs contemplated
sharing with his attorney, even though Jacobs' attorney had
previously indicated to the Assistant Attorney General that
"the scope of the inquiry concerns primarily one case and
correspondence with the Section and yourself on that case."
Although Jacobs' attorney also acknowledged that more than
one case might be involved in Jacobs' contemplated whistle-
blower claim the Department was not faced with an employee
engaged in an unbounded fishing expedition. In this court,
the Department continues to treat Jacobs' disclosures to his
attorney as disclosures to the public and attempts to distin-
guish Martin II by maintaining, contrary to the district
court's findings by which it is bound, see supra n.3, that the
Department never required preclearance of information Ja-
cobs sought to share with his attorney, and further, but
without claiming that the protective order entered by the
district court is insufficient to address its concerns, that the
sensitive information to which Jacobs had access was funda-
mentally different from the information at issue in Martin II.
That Jacobs sought also, in his second cause of action, to
share information with third parties is irrelevant to the EAJA
issue, for he did not prevail on that claim, and thus the
Department's continued focus on that part of his complaint is
misplaced, particularly insofar as prior to Jacobs' filing suit
the Department's position was directed solely at Jacobs'
request to share information with his attorney.
Under the circumstances, the Department could not rea-
sonably insist that its interests could be protected only by
preclearing document-by-document the information Jacobs
sought to share with his attorney. Even assuming the De-
partment could have adopted a position that would have been
substantially justified short of agreeing to a protective order,
in light of Martin II and the willingness of Jacobs and his
attorney to address the Department's concerns that their
communications not be disclosed to the general public, the
Department cannot meet its burden to demonstrate that its
prior restraint on Jacobs' communications with his attorney
was substantially justified.
Accordingly, we reverse and remand the case for the
district court to determine the amount of attorney's fees to
award Jacobs.