On August 25, 2017, in First Amendment Coalition v. DOJ, the US Court of Appeals for the Ninth Circuit held that a party must establish causation under the catalyst theory to be entitled to attorneys' fees in a Freedom of Information Act (FOIA) action once there is a voluntary disclosure or change in position after the initiation of the litigation ( (9th Cir. Aug. 25, 2017)).

This case arises from the death of Anwar al-Awlaki, an American citizen the CIA targeted as a terrorist, in a drone attack. The First Amendment Coalition (FAC), New York Times, and American Civil Liberties Union (ACLU) separately filed FOIA requests for the release of legal memoranda the Department of Justice (DOJ) Office of Legal Counsel (OLC) prepared addressing the legality of the targeted killing of US citizen terrorists. After the government resisted these requests, FAC brought suit in the US District Court for the Northern District of California and the New York Times and ACLU sued in the US District Court for the Southern District of New York in a consolidated litigation.

The Southern District of New York granted summary judgment in the government's favor which the plaintiffs appealed to the US Court of Appeals for the Second Circuit. The Northern District of California followed suit one year later while the Second Circuit's appeal was under consideration. The Second Circuit reversed and ordered the release of one responsive OLC memorandum.

FAC then sought to vacate the Northern District of California's order granting summary judgment and moved for attorneys' fees under FOIA. The DOJ then released a second memorandum responsive to the Northern District of California litigation. As a result, the parties agreed that these disclosures resolved all substantive disputes in the case but disagreed as to whether the court should vacate the summary judgment order or whether FAC was entitled to attorneys' fees. The Northern District of California found that the case had been rendered moot because the parties had abandoned their right to review. The court also denied the request for attorneys' fees because the government released the memoranda as a result of the Second Circuit's ruling, not as a result of the ruling in the Northern District of California.

The Ninth Circuit reversed and remanded, finding that FAC was eligible for attorneys' fees. The court held that a causal connection was required between the litigation and the voluntary disclosure of the memorandum in order for the plaintiff to be eligible for attorneys' fees. Additionally, reversal was required because the district court, in denying fees, employed an incorrect legal standard when it failed to consider and apply the factors set out in Church of Scientology v. United States Postal Service (700 F.2d 486 (9th Cir. 1983)). The Ninth Circuit found that while the 1974 FOIA amendments awarded fees and costs to a FOIA plaintiff that substantially prevailed, its precedent in Church of Scientology required causation for a plaintiff to be eligible for attorneys' fees in a FOIA suit, representing a catalyst theory of recovery.

The court further explained that although Oregon Natural Desert Association v. Locke, 572 F.3d 610 (9th Cir. 2009), held that the US Supreme Court case, Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), abrogated Church of Scientology, later amendments to FOIA in 2007 could either:

In this decision, the Ninth Circuit joined other circuits in holding that the 2007 amendments reinstated the catalyst theory and therefore there must be a causal nexus between the litigation and the voluntary disclosure or change in position by the government in order to recover attorneys' fees in a FOIA action.