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Jacobs v. Schiffer, 204 F.3d 259, 340 U.S.App.D.C. 221, 16 IER Cases 43

Facts

Jacobs, a trial lawyer in the Environment and Natural Resources Division, reported concerns about certain strategies and tactics to his supervisors, which led to a lowered performance rating and an involuntary transfer. He consulted a private attorney to understand his rights and the legality of his supervisors' actions. The Department of Justice imposed restrictions on his ability to disclose nonpublic information to his attorney, claiming that such disclosures required preclearance under the Freedom of Information Act (FOIA). Jacobs filed suit against the Assistant Attorney General, asserting violations of his First and Fifth Amendment rights.

The underlying litigation stems from the reaction that Jacobs, a trial lawyer in the Environment and Natural Resources Division, Environmental Enforcement Section, of the United States Department of Justice, received when he reported 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 Resources Division of the Department of Justice.

Issue

Whether the Department of Justice's requirement for Jacobs to obtain preclearance before disclosing nonpublic information to his attorney violated his First Amendment rights and whether the denial of attorney fees under EAJA was justified.

The Court of Appeals, Rogers , Circuit Judge, held that: (1) in determining whether Department's position was reasonable, District Court was required to consider Department's position with respect to claim upon which employee prevailed, and (2) Department was not justified in its position that it could required employee to obtain preclearance before disclosing information to attorney.

Rule

Under the Equal Access to Justice Act (EAJA), a party is entitled to attorney's fees if they prevail on a significant issue in litigation and the government cannot demonstrate that its position was substantially justified.

Under EAJA, a party is entitled to attorney's fees when (1) the party “prevailed” in the underlying litigation by “succeed [ing] on a significant issue in litigation that achieves some of the benefits the party sought in bringing suit,” Anthony v. Sullivan, 982 F.2d 586, 589 (D.C.Cir.1993) , (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ), and (2) the government cannot demonstrate substantial justification for its position.

Analysis

The court found that the Department's position requiring preclearance for Jacobs' communications with his attorney was not substantially justified. The Department failed to recognize that communication with an attorney, who is bound to confidentiality, does not constitute a public disclosure. The court emphasized that the First Amendment protects Jacobs' right to consult with his attorney without prior restraint, and the Department's absolute embargo was more onerous than what was deemed unconstitutional in prior case law.

The district court's terse denial of attorney's fees effectively precluded inquiry into the reasonableness of the Department'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 Department for preclearance.

Conclusion

The Court of Appeals reversed the district court's denial of attorney fees and remanded the case for the determination of the amount of fees to be awarded to Jacobs.

Accordingly, we reverse and remand the case for the district court to determine the amount of attorney's fees to award Jacobs.

Who won?

Daniel S. Jacobs prevailed in the case because the court found that the Department's restrictions on his communications with his attorney violated his First Amendment rights and were not substantially justified.

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. § 2412 (“EAJA”).

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