Former employees of a classified Air Force facility brought an action against the Air Force and the United States Environmental Protection Agency (EPA), alleging violations of the Resource Conservation and Recovery Act (RCRA).[1] The district court granted summary judgment for the Air Force, found the action against EPA moot, and granted the employees' motion for attorney fees. Kasza and Frost (collectively employees) appealed, and EPA cross-appealed. The Ninth Circuit affirmed in part, reversed in part, and remanded. On remand in both Kasza v. Whitman and Frost v. Rumsfeld the district court unsealed a court transcript after approving redaction of parts of the transcript. On remand in Frost v. Rumsfeld the district court denied the employees' motions for attorney fees. The employees appealed the redaction of the transcript and the denial of attorney fees. The Ninth Circuit affirmed the district court's actions in redacting the transcript and denying attorney fees.
This case started as two separate suits. In Kasza v. Browner,[2] Kasza brought a citizen suit under RCRA against EPA alleging the agency had failed to carry out its nondiscretionary duties of inspection, inventory, and public disclosure and seeking declaratory and injunctive relief.[3] In Frost v. Perry,[4] Frost (the widow of a former employee) and other employees brought a citizen suit against the Air Force under RCRA alleging the Air Force violated numerous provisions of RCRA related to reporting, inventory, and disposal of hazardous waste and seeking declaratory and injunctive relief.[5] The appeals from Kasza and Frost were combined.
The Ninth Circuit affirmed the denial of attorney fees because the party asking for attorney fees, Frost, was not a prevailing party. Under RCRA, attorney fees are awarded only to the "prevailing or substantially prevailing party."[6] The Ninth Circuit found that Frost did not qualify as a substantially prevailing party because there was no "gain by judgment or consent decree a material alteration of the legal relationship of the parties."[7]
Kasza argued that the district court did not properly adhere to the remand order because it limited its consideration to the transcript, rather than examining other materials the remand order had unsealed. The Ninth Circuit rejected Kasza's argument because "Kasza's argument on the original appeal focused on the transcript, as did her argument on remand" and Kasza failed to ask for more.[8] Kasza also argued that the court did not thoroughly evaluate the proposed redactions. The Ninth Circuit reviewed the redactions under an abuse of discretion standard. The Ninth Circuit held that the district court did not abuse its discretion in choosing portions of the transcript to redact because the court had already found the material subject to the state secrets privilege. The Ninth Circuit also rejected Kasza's argument that the district court should have given her hearings regarding the merits of the specific redactions. The Ninth Circuit rejected this argument because Kasza had already lost the state secrets privilege argument in Kasza v. Browner;[9] therefore, the issue had already been litigated and decided. Finally, Kasza and DR Partners doing business as Las Vegas Review-Journal (intervenors) argued that the First Amendment right of access to court records mandated the disclosure of the redacted information. The Ninth Circuit rejected this claim, stating that the risk of harm to national security had already been established in Browner and the district court had acted within its discretion.
The Ninth Circuit affirmed the findings of the district court in rejecting the award of attorney fees to the employees and approving the order for redaction of court transcripts. Judge Wood wrote a separate concurrence urging the government either to release information that might help the plaintiffs or to enter into a settlement.
