                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 06 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RONALD M. YONEMOTO,                              No. 12-16662

              Plaintiff - Appellee,              D.C. No. 1:06-cv-00378-BMK

  v.
                                                 MEMORANDUM*
DEPARTMENT OF VETERANS
AFFAIRS,

              Defendant - Appellant.



RONALD M. YONEMOTO,                              No. 12-16793

              Plaintiff - Appellant,             D.C. No. 1:06-cv-00378-BMK

  v.

DEPARTMENT OF VETERANS
AFFAIRS,

              Defendant - Appellee.


                   Appeals from the United States District Court
                             for the District of Hawaii
                   Barry M. Kurren, Magistrate Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                          Submitted November 13, 2013**
                             San Francisco, California

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

      These are cross-appeals from the district court’s order granting in part and

denying in part Plaintiff Ronald M. Yonemoto’s motion for attorneys’ fees and

litigation costs pursuant to 5 U.S.C. § 552(a)(4)(E).

      (1) The district court did not abuse its discretion in concluding that

“Plaintiff’s action has resulted in a public benefit by shedding light on the

[Department of Veterans Affairs’ (“VA”)] treatment of its personnel, forcing the

VA to comply with [the Freedom of Information Act (“FOIA”)], and uncovering

other emails bearing on problems with the agency’s operations.” The district

court’s finding identifying these public benefits was not “illogical, implausible, or

without support in the . . . record.” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir.

2010).

      Nor was it an abuse of discretion to conclude that Yonemoto’s “personal and

commercial interest” in the materials sought is “outweighed by the public benefit

of the action and the VA’s failure to disclose the disputed documents earlier.” In

light of the VA’s continuing refusal to disclose the requested documents in

         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
compliance with FOIA, during the seven years of this litigation, Yonemoto might

well have abandoned the case “absent the high probability that fees and costs of

suit would be awarded against the intransigent agency.” United Ass’n of

Journeymen & Apprentices of Plumbing & Pipefitting Indus., Local 598 v. Dep’t of

Army Corps of Eng’rs, Walla Walla Dist., 841 F.2d 1459, 1462 (9th Cir. 1988),

abrogated on other grounds by U.S. Dep’t of Justice v. Reporters Comm. For

Freedom of Press, 489 U.S. 749, 771 (1989).

      (2) The district court may, however, have abused its discretion in assessing

another factor supporting Yonemoto’s entitlement to attorneys’ fees: whether the

VA’s “withholding of the records sought had a reasonable basis in law.” Church

of Scientology of Cal. v. U.S. Postal Serv., 700 F.2d 486, 492 (9th Cir. 1983)

(emphasis added). Although the district court cited the correct standard, it may

have failed to apply it. The court held that

      this factor weighs in favor of awarding attorneys’ fees, because the
      VA’s failure to disclose the 157 emails prior to Plaintiff’s appeal was
      not completely reasonable. . . . Looking at the totality of the
      circumstances . . . it would have been prudent for the VA to disclose
      the 157 emails prior to the appeal. Although the Court does not find
      that the VA acted in bad faith, . . . the VA’s initial refusal to disclose
      the 157 emails to Yonemoto was not entirely reasonable.

      Our cases do not require that the government’s withholding be “completely”

or “entirely” reasonable, in the sense that all its bases for withholding were


                                           3
reasonable. We require only that “the agency’s decision . . . be based upon legal

authority that reasonably supports its position that the documents should be

withheld.” United Ass’n of Journeymen, 841 F.2d at 1463. If the district court

meant to say otherwise, then it applied the wrong standard.

      (3) The district court, on the other hand, may have used the terms

“completely” and “entirely” only for emphasis, and so applied the correct standard.

In any event, we agree with the VA that “there is no need for this Court to remand

to the district court for an assessment of Yonemoto’s entitlement to fees under the

proper standards. . . .” “[W]e can affirm on any ground supported by the record,”

Classic Media, Inc. v. Mewborn, 532 F.3d 978, 990 (9th Cir. 2008), and because

Yonemoto would necessarily prevail under the correct legal standard, any other

conclusion would be an abuse of discretion.

      The VA’s conduct over the past seven years supports the conclusion that its

withholding was, overall, unreasonable. The VA has repeatedly changed its

position as to which exemptions support withholding — first, relying on

Exemptions 2, 5, and 6; then abandoning reliance on Exemptions 2 and 5 at the

time of the second appeal; and finally disclosing a vast majority of remaining

documents “because the burden of producing a Vaughn index for them was not

justified given their trivial nature.” The VA also defended the district court’s


                                          4
mootness ruling in the second appeal, despite some recognition in the district court

that it was erroneous. Yonemoto has incurred significant legal fees responding to

arguments that the VA either knew were tenuous or would ultimately abandon, and

supporting his claim to documents that the VA would ultimately disclose. Further,

Yonemoto did so without the benefit of a proper Vaughn index from which to

determine the VA’s reason for the asserted exemptions. See Yonemoto v. Dep’t of

Veterans Affairs, 686 F.3d 681, 695 (9th Cir. 2012) (holding that “the VA’s

Vaughn index falls short with regard to many of the records”).

      On balance, consideration of the factors set forth in Church of Scientology,

700 F.2d at 492, as well as an additional factor, the overall reasonableness of the

government’s litigation behavior, supports Yonemoto’s entitlement to attorneys’

fees. We therefore affirm the district court.

      (4) The district court did not abuse its discretion in reducing Yonemoto’s

fee award to reflect his limited success. “[T]he extent of a plaintiff’s success is a

crucial factor in determining the proper amount of an award of attorney’s fees . . . .

[W]here the plaintiff achieved only limited success, the district court should award

only that amount of fees that is reasonable in relation to the results obtained.”

Hensley v. Eckerhart, 461 U.S. 424, 440 (1983).




                                           5
      It was not an abuse of discretion for the district court to conclude that

Yonemoto “is not entitled to fees with respect to the documents produced in

response to the EEOC discovery process” because the “Court did not order the VA

to produce the EEOC emails, and the VA did not ‘voluntarily’ change its position

with respect to those emails.” There is no indication that, as Yonemoto contends,

the district court failed to consider whether the FOIA action “had a substantial

causative effect on the delivery of the information” in the EEOC proceedings.

Church of Scientology, 700 F.2d at 489.

      AFFIRMED.




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