Morley v. Cent. Intelligence Agency, 17-5114

894 F.3d 389

Jefferson MORLEY, Appellant

v.CENTRAL INTELLIGENCE AGENCY, Appellee

No. 17-5114

United States Court of Appeals, District of Columbia Circuit.

Argued March 19, 2018

Decided July 9, 2018

James H. Lesar argued the cause and filed the briefs for appellant.

Benton G. Peterson, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: Henderson, Kavanaugh, and Katsas, Circuit Judges.

Dissenting opinion filed by Circuit Judge Henderson.

Per Curiam:

This FOIA case has dragged on for a staggering 15 years. The litigation over attorney’s fees alone has taken 8 years. It is time to bring the case to an end.

The sole question at this point is whether plaintiff Morley is entitled to attorney’s fees under the FOIA attorney’s fees statute. In 2003, Morley submitted a FOIA request to the CIA. Morley sought records related to former CIA Officer George Joannides. Morley stated that the records about Joannides would "shed new light on" the assassination of President Kennedy. After several years of litigation, the CIA supplied Morley with some responsive records. In 2010, Morley requested attorney’s fees from the Government. Under FOIA, the district court "may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E)(i) (emphasis added).

Because the FOIA attorney’s fees statute provides that the district court "may" award fees to a prevailing plaintiff—and not "must" or "shall" award fees—courts have struggled for years to determine when attorney’s fees should be awarded to a prevailing FOIA plaintiff. This Court has said that district courts should consider four rather amorphous factors: (i) the public benefit from the case; (ii) the commercial benefit to the plaintiff; (iii) the nature of the plaintiff’s interest in the records; and (iv) the reasonableness of the agency’s withholding of the requested documents. See Davy v. CIA , 550 F.3d 1155, 1159 (D.C. Cir. 2008). We have left the balancing of the factors to the discretion of the district court.

How does the court of appeals review a district court’s attorney’s fees decision under the FOIA statute and the judicially created four-factor test? Deferentially. We review the district court’s attorney’s fees determination only for abuse of discretion. In other words, was the district court’s decision on attorney’s fees at least within the zone of reasonableness, even if we might disagree with the decision? We apply that deferential standard, we have said, because the district court is "better suited to make the initial determination" about whether a litigant is entitled to attorney’s fees, given that the district court closely monitored the litigation. Davy v. CIA , 456 F.3d 162, 167 (D.C. Cir. 2006).

It is important to unpack what abuse-of-discretion review means in the context of FOIA attorney’s fees litigation. First, we review for abuse of discretion the district court’s analysis of each of the four individual factors (to the extent the appellant raises such an argument on appeal). Second, we review for abuse of discretion the district court’s balancing of the four factors (to the extent the appellant raises such an argument on appeal). With respect to that latter inquiry, when all four factors point in favor of the plaintiff or in favor of the defendant, the attorney’s fees analysis is ordinarily straightforward. But when the four factors point in different directions, the district court has very broad discretion in deciding how to balance those factors and whether to award attorney’s fees. Indeed, if the four factors point in different directions, assuming no abuse of discretion in the district court’s analysis of the individual factors, it will be the rare case when we can reverse a district court’s balancing of the four factors and its ultimate decision to award or deny attorney’s fees. See Tax Analysts v. Department of Justice , 965 F.2d 1092, 1094, 1096 (D.C. Cir. 1992) ; LaSalle Extension University v. FTC , 627 F.2d 481, 484 (D.C. Cir. 1980).

This is the third time that this Court has considered whether Morley is entitled to attorney’s fees. In each of the first two appeals, we remanded the case back to the District Court for additional analysis. In its most recent decision, the District Court denied fees.

One can debate whether the District Court’s decision denying attorney’s fees was correct. But the question for us is not whether the District Court’s decision was correct, but rather whether the District Court’s decision was at least reasonable. Applying the deferential abuse-of-discretion standard, we conclude that the District Court’s decision was reasonable, and we therefore affirm the judgment of the District Court denying attorney’s fees.

* * *

Applying this Circuit’s four-factor inquiry, the District Court concluded that the first factor favored Morley because there was at least a small public benefit from the information sought by Morley. The District Court concluded that factors two and three—relating to the plaintiff’s possible commercial benefit and commercial interest—did not count against Morley. See Morley v. CIA , 245 F.Supp.3d 74, 78 n.2 (D.D.C. 2017). In short, as Morley’s counsel acknowledged at oral argument, the District Court "found that three of the four factors favored Morley." Tr. of Oral Arg. at 4.

But Morley contends that the District Court’s analysis of those three factors afforded them insufficient weight and did not square with our prior decision in this case. We disagree.

In our prior decision, we held that factor one favored Morley, but only to the extent that some of the records sought by Morley might have "marginally" supported one of Morley’s theories, meaning that there was "at least a modest probability" of generating useful information. Morley v. CIA , 810 F.3d 841, 844–45 (D.C. Cir. 2016). Our decision did not precisely quantify the public benefit. But our use of the word "marginally" suggested that the public benefit might be small. The District Court’s assessment on remand that a public benefit existed, but was "small," was entirely consistent with our prior decision. Morley , 245 F.Supp.3d at 77. Moreover, given Morley’s disjointed explanations in this case, the District Court did not abuse its discretion in concluding that the public benefit here was small.

On factors two and three, the District Court likewise did not abuse its discretion. In similar cases involving non-commercial requesters, we have upheld a district court’s analysis of factors two and three when the district court stated (as the District Court did here) that those factors at least did not count against an award of attorney’s fees. See McKinley v. FHFA , 739 F.3d 707, 712 (D.C. Cir. 2014) ; cf. Davy v. CIA , 550 F.3d 1155, 1160 (D.C. Cir. 2008).

We therefore turn to the fourth factor, which is the heart of this case. That factor evaluates why the agency initially withheld the records. In particular, the "fourth factor considers whether the agency’s opposition to disclosure had a reasonable basis in law and whether" the agency was "recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior." Davy , 550 F.3d at 1162 ; see also Tax Analysts v. Department of Justice , 965 F.2d 1092, 1097 (D.C. Cir. 1992) ; Fenster v. Brown , 617 F.2d 740, 744 (D.C. Cir. 1979) ; Nationwide Building Maintenance, Inc. v. Sampson , 559 F.2d 704, 712 (D.C. Cir. 1977). Under the fourth factor, the question for a district court is not whether the agency’s legal and factual positions were correct. The question is whether the agency’s positions were reasonable. See Davy , 550 F.3d at 1162.¹

Here, in applying the fourth factor, the District Court determined that the CIA had "advanced a reasonable legal position and did not engage in any recalcitrant or obdurate behavior." Morley , 245 F.Supp. at 78. Morley disagrees.

To reiterate, our standard of review of the District Court’s conclusion on the fourth factor is deferential: We ask only whether the District Court’s decision was reasonable. And in reviewing the District Court’s conclusion on the fourth factor (which in turn asks whether the agency’s position was reasonable), we end up applying what is in essence a double dose of deference. The question for us is whether the District Court reasonably (even if incorrectly) concluded that the agency reasonably (even if incorrectly) withheld documents.

Morley advances five main arguments that the CIA acted unreasonably in response to his FOIA request.

First , Morley contends that the CIA unreasonably missed the initial 20–day statutory deadline for responding to the FOIA request. Morley is correct that the CIA failed to properly respond to the request within 20 days, as required by statute. See 5 U.S.C. § 552(a)(6)(A)(i). But that is true of a vast number of FOIA requests. The statute itself imposes consequences on the agency for delay past the 20–day mark. See Citizens for Responsibility and Ethics in Washington v. FEC , 711 F.3d 180, 189 (D.C. Cir. 2013). But the statute does not suggest that an award of attorney’s fees should be automatic in those situations. And some delay past the 20–day mark is not necessarily so unreasonable in and of itself as to require an award of attorney’s fees to an ultimately prevailing plaintiff. We are aware of no court of appeals case that has suggested otherwise.

This case is a fine example of why that is so. According to the responsible CIA official, when the CIA processed Morley’s FOIA request, "the Agency had 1,675 FOIA and" Privacy Act "requests in queue in various stages of processing." Herman Declaration ¶ 31. Of those outstanding requests, "approximately 940 in the same queue as" Morley’s request were still in process. Id . To be sure, agencies should...