                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           NOV 06 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
ELECTRONIC FRONTIER                              No. 13-16480
FOUNDATION,
                                                 D.C. No. 3:12-cv-03683-THE
              Plaintiff - Appellee,

 v.                                              MEMORANDUM*

UNITED STATES DEPARTMENT OF
COMMERCE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Northern District of California
              Thelton E. Henderson, Senior District Judge, Presiding

                      Argued and Submitted October 21, 2015
                   Stanford University School of Law, California

Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.


      The U.S. Department of Commerce (“Commerce”) appeals the district

court’s grant of summary judgment in favor of the Electronic Frontier Foundation




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
(“EFF”) on its Freedom of Information Act (“FOIA”) request. We have

jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

      In response to the request, Commerce invoked FOIA Exemption 3 to

withhold information obtained through its export licensing program, as set forth in

the Export Administration Act of 1979 (“EAA”), 50 U.S.C. app. §§ 2401–2420

(expired Aug. 21, 2001). The district court concluded that Commerce could not

rely on an expired statute to invoke Exemption 3, and it ordered Commerce to

disclose to EFF information obtained in Commerce’s export licensing applications

and withheld solely on the basis of Exemption 3. Elec. Frontier Found. v. U.S.

Dep’t of Commerce, 58 F. Supp. 3d 1008, 1013–14 (N.D. Cal. 2013).

      During the pendency of this appeal, Congress enacted the Naval Vessel

Transfer Act of 2013, Public L. 113-726 (S. 1683), 128 Stat. 2994 (Dec. 18, 2014).

Section 209 of that act declares, “Section 12(c) of the Export Administration Act of

1979 (50 U.S.C. app. 2411(c)) has been in effect from August 20, 2001, and

continues in effect on and after the date of the enactment of this Act, pursuant to

the International Emergency Economic Powers Act.” Section 209 further declared

that, “Section 12(c)(1) of the Export Administration Act of 1979 is a statute

covered by section 552(b)(3) of title 5, United States Code.”




                                          2
      A statute with retroactive effect enacted during the pendency of an appeal

applies to a FOIA request. See Ctr. for Biological Diversity v. U.S. Dep’t of Agric.,

626 F.3d 1113, 1117–18 (9th Cir. 2010); see also Landgraf v. USI Film Prods.,

511 U.S. 244, 280 (1994) (“[W]hen a case implicates a federal statute enacted after

the events in suit, the court’s first task is to determine whether Congress has

expressly prescribed the statute’s proper reach.”). Commerce urges that Congress

intended Section 209 to be retroactive; EFF contends that no retroactive effect was

intended. In light of the parties’ arguments, and because the district court did not

have the benefit of Public Law 113-276 when it considered the parties’ claims, we

vacate the judgment and remand for further consideration.

      VACATED AND REMANDED.

      The parties shall bear their own costs on appeal.




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