Ed Brayton v. Office of the US Trade Rep.

Filing

OPINION filed [1303872] (Pages: 13) for the Court by Judge Griffith. [09-5402]

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 2010

Decided April 19, 2011

No. 09-5402
ED BRAYTON,
APPELLANT
v.
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-00855)

Adina H. Rosenbaum argued the cause for appellant.
With her on the briefs was Scott L. Nelson.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.

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GRIFFITH, Circuit Judge: Ed Brayton filed suit under the
Freedom of Information Act seeking disclosure of a classified
international trade agreement. While the case was pending
before the district court, the United States Trade
Representative declassified and released the agreement to the
public. The question before us is whether Brayton is entitled
to recover attorney fees for his lawsuit. The district court
determined he was not because the government was justified
in withholding the document as a matter of law. We agree and
affirm.
I

On December 17, 2007, during negotiations under the
auspices of the World Trade Organization, the United States
and the European Union signed a joint agreement outlining
various trade concessions the U.S. would make to offset the
costs imposed by its policy restricting access to Internet
gambling. Two days later, Ed Brayton filed a FOIA request
with the United States Trade Representative (USTR) seeking
disclosure of the agreement. Although the Freedom of
Information Act generally provides that government agencies
“shall make available to the public” certain information upon
request, 5 U.S.C. § 552(a), the Act expressly exempts the
disclosure of information that is “properly classified,”
id. § 552(b)(1). In January 2008, USTR denied Brayton’s
request on the ground that the agreement he sought was
classified pending completion of the ongoing trade
negotiations.
Two months later, the Freedom of Information Appeals
Committee within USTR affirmed the agency’s decision to
withhold the document. See Letter from Mark Linscott, Chair,
Freedom of Info. Appeals Comm., to Ed Brayton (Mar. 25,

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2008). The Committee determined that the document had
been properly classified pursuant to Executive Order 12,958,
60 Fed. Reg. 19,825 (Apr. 17, 1995), as amended by
paragraph 1.4(b) of Executive Order 13,292, which provides
that “foreign government information” may be treated as
“classified national security information.” 68 Fed. Reg.
15,315, 15,315, 15,317 (Mar. 25, 2003). Executive Order
13,292 paragraph 6.1(r) defines “foreign government
information” to include “information produced by the United
States Government pursuant to or as a result of a joint
arrangement with a foreign government or governments, or an
international organization of governments, or any element
thereof, requiring that the information, the arrangement, or
both, are to be held in confidence.” Id. at 15,331.* The
agreement Brayton sought was the product of negotiations
conducted under WTO rules requiring agreements to be held
in confidence until negotiations conclude. See General
Council, Procedures for the Circulation and Derestriction of
WTO Documents, WT/L/452 (May 16, 2002).
In May 2008, Brayton filed a complaint in federal district
court seeking an order disclosing the agreement on the ground
that it was not properly classified. After he moved for
summary judgment, USTR explained to the court that the case
might soon become moot because:
[A] representative of the European Community (“EC”)
contacted USTR staff about the possibility of releasing
the document publically in the future. Although USTR
believes that a unilateral release would be inconsistent
with WTO obligations, the agency is exploring the
*

Executive Order 12,958 and all amendments thereto have since
been superseded by Executive Order 13,526, 75 Fed. Reg. 707
(Dec. 29, 2009).

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possibility of de-restricting the document with
representatives of the EC. If, based on the mutual request
of the EC and the United States, the WTO does derestrict the document, USTR will promptly de-classify it,
make it publically available, and send a courtesy copy to
Plaintiff.
Def’s Consent Mot. to Enlarge Time to File Reply in Supp.
Of Mot. for S.J. 2.
After the parties filed cross motions for summary
judgment but before the district court issued a decision, the
Europeans agreed to release the trade agreement, which
USTR declassified and sent to Brayton. Brayton then moved
for attorney fees on the ground that he had “substantially
prevailed,” 5 U.S.C. § 552(a)(4)(E)(i), in his FOIA lawsuit.
The district court denied Brayton’s motion, following the
two-step analysis described in Weisberg v. U.S. Dep’t of
Justice, 745 F.2d 1476 (D.C. Cir. 1984). First, in order to be
“eligible” for fees, a plaintiff must have “substantially
prevailed” on his FOIA claim. Id. at 1495. Second, the
plaintiff must show that he is “entitled” to fees based on a
combination of factors, including the reasonableness of the
government’s initial refusal to disclose the requested
information. Id. at 1498. Applying this framework, the court
held that even if Brayton had substantially prevailed under his
FOIA request and was thus “eligible” for fees, he was not
“entitled” to them “because the defendant’s decision to
withhold the Agreement was correct as a matter of law.”
Brayton v. Office of U.S. Trade Representative, 657 F. Supp.
2d 138, 145 (2009).
On appeal, Brayton does not dispute the district court’s
holding that USTR was correct as a matter of law to withhold

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the agreement he requested, but he claims the court still
should have considered awarding him fees because his claim
for disclosure was “not insubstantial.” The statute provides
that a complainant “may” recover attorney fees if his “claim is
not insubstantial.” 5 U.S.C. § 552(a)(4)(E). But the district
court held that a plaintiff may not receive attorney fees if his
claim is incorrect as a matter of law. Thus, according to
Brayton, “[p]laintiffs will never receive fees if their claims are
not insubstantial unless the defendants’ decision to withhold
the documents also was incorrect on the merits.” Appellant’s
Br. 13. Brayton argues that this result conflicts with the
statutory text, which requires only that a plaintiff’s claim be
“not insubstantial.”
We have jurisdiction over this appeal under 28 U.S.C.
§ 1291, and we review the district court’s refusal to award
attorney fees for abuse of discretion. See Davy v. CIA, 550
F.3d 1155, 1158 (D.C. Cir. 2008). A “district court abuses its
discretion if it did not apply the correct legal standard . . . or if
it misapprehended the underlying substantive law.” Kickapoo
Tribe v. Babbit, 43 F.3d 1491, 1497 (D.C. Cir. 1995) (internal
quotation marks omitted). We examine de novo whether the
district court applied the correct legal standard. See FTC v.
H.J. Heinz Co., 246 F.3d 708, 713 (D.C. Cir. 2001).
II
A
The Freedom of Information Act provides that courts
“may assess against the United States reasonable attorney fees
and other litigation costs reasonably incurred in any
case . . . in which the complainant has substantially
prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). This language
naturally divides the attorney-fee inquiry into two prongs,

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which our case law has long described as fee “eligibility” and
fee “entitlement.” Judicial Watch, Inc. v. U.S. Dep’t of
Commerce, 470 F.3d 363, 368-69 (D.C. Cir. 2006). The
eligibility prong asks whether a plaintiff has “substantially
prevailed” and thus “may” receive fees. Id. at 368. If so, the
court proceeds to the entitlement prong and considers a
variety of factors to determine whether the plaintiff should
receive fees. Id. at 369.
Over the last decade, the law of FOIA fee awards has
been in considerable flux. Before 2001, the D.C. Circuit
construed fee eligibility broadly under what was known as the
“catalyst theory.” Under this doctrine, a plaintiff
“substantially prevailed” not only when he obtained an
official disclosure order from a court, but also when he
substantially caused the government to release the requested
documents before final judgment. See generally Summers v.
Dep’t of Justice, 569 F.3d 500, 502 (D.C. Cir. 2009)
(describing the operation of the old catalyst theory).
If a plaintiff substantially prevailed and was thus
“eligible” for fees, the court would then consider several
factors to determine whether the plaintiff was “entitled” to
fees, including whether the government’s initial decision to
withhold the requested documents was reasonable. See Tax
Analysts v. Dep’t of Justice, 965 F.2d 1092, 1093-94
(D.C. Cir. 1992). If the government’s initial decision to
withhold was clearly justified, that was the end of the
analysis. As one case put it, “a party is not entitled to fees if
the Government’s legal basis for withholding requested
records is correct.” Chesapeake Bay Found. v. USDA, 11 F.3d
211, 216 (D.C. Cir. 1993).
In 2001, the Supreme Court held that plaintiffs generally
would only be eligible for attorney fees if they were “awarded

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some relief by [a] court.” Buckhannon Bd. & Care Home, Inc.
v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 603
(2001). In 2002, we confirmed that Buckhannon applied to
FOIA cases, holding that “in order for plaintiffs in FOIA
actions to become eligible for an award of attorney’s fees,
they must have ‘been awarded some relief by [a] court.’” Oil,
Chem. & Atomic Workers Int’l Union, AFL-CIO v. Dep’t of
Energy, 288 F.3d 452, 456-57 (D.C. Cir. 2002) (alteration in
original) (quoting Buckhannon, 532 U.S. at 603).
The strict Buckhannon rule drew some criticism for
allowing the government to stonewall valid FOIA claims but
prevent an award of attorney fees by disclosing the documents
at the last moment before judgment. An agency could simply
refuse a FOIA request, wait for a lawsuit to be filed, drag its
heels through the litigation process, and then release the
requested documents at the last moment if the plaintiff
appeared likely to win a judgment. Agencies could force
FOIA plaintiffs to incur litigation costs while simultaneously
ensuring that they could never obtain the merits judgment
they needed to become eligible for attorney fees. To address
this problem, Congress passed the OPEN Government Act of
2007, Pub. L. No. 110-175, which abrogated the rule of
Buckhannon in the FOIA context and revived the possibility
of FOIA fee awards in the absence of a court decree. The Act
redefined “substantially prevail[ing]” to include “obtain[ing]
relief through . . . a voluntary or unilateral change in position
by the agency, if the complainant’s claim is not insubstantial.”
5 U.S.C. § 552(a)(4)(E)(ii).
The purpose and effect of this law, which remains in
effect today, was to change the “eligibility” prong back to its
pre-Buckhannon form. The result is that plaintiffs can now
qualify as “substantially prevail[ing],” and thus become
eligible for attorney fees, without winning court-ordered relief

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on the merits of their FOIA claims. See Davis v. U.S. Dep’t of
Justice, 610 F.3d 750, 752 (D.C. Cir. 2010) (“Disapproving of
the effect [Buckhannon and its progeny] had on the disclosure
policies of administrative agencies, Congress enacted the
OPEN Government Act of 2007 to establish that the catalyst
theory applied in FOIA cases.”). Yet despite this shift in the
standard for fee eligibility, the OPEN Government Act did not
have any effect on the standard for fee entitlement, which has
remained essentially unchanged since the days of the catalyst
theory. For purposes of fee entitlement, the rule remains that
if the government was “correct as a matter of law” to refuse a
FOIA request, “that will be dispositive.” Davy, 550 F.3d at
1162 (quoting Chesapeake Bay Found., 11 F.3d at 216).
Plaintiffs who sue to force disclosure in such circumstances
are not entitled to attorney fees.
B
Brayton’s argument relies chiefly on the statute’s
provision that courts “may” award fees to plaintiffs whose
FOIA claims are “not insubstantial.” He observes that the
district court’s approach prevents plaintiffs with “not
insubstantial” claims from receiving fees if the government
was correct as a matter of law to withhold the requested
documents. He argues that this effectively nullifies the
statute’s lenient “not insubstantial” standard, replacing it with
the stricter requirement that a plaintiff’s claim be correct on
the merits to qualify for an award.
The problem with Brayton’s argument is that the feeentitlement rule that the district court applied does leave room
for fee awards in some cases where a plaintiff has a “not
insubstantial” claim that falls short on the merits. Under the
district court’s rule, fees are only barred where the
government can demonstrate that its basis for nondisclosure

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was “correct as a matter of law.” Davy, 550 F.3d at 1162. This
requires the government to satisfy the summary judgment
standard by showing that there are no genuine issues of
material fact in dispute and that the government was justified
as a matter of law in refusing the plaintiff’s FOIA request. If
the government cannot carry this burden, a substantially
prevailing FOIA plaintiff may receive fee awards as long as
his claim was “not insubstantial.”
FOIA provides only that attorney fees “may” be awarded
to a substantially prevailing plaintiff. Rather than exercising
its discretion in an ad hoc and potentially inconsistent fashion,
the district court adhered to our circuit’s long-established rule
of never granting a fee award to a plaintiff whose FOIA claim
was incorrect as a matter of law. Of course, this rule means
that a particular subset of substantially prevailing plaintiffs
will never receive fees, but this is an inevitable consequence
of following any rule at all. The rule in this case does not
undermine the discretion granted by Congress but simply
ensures that like cases will be treated alike—a necessary
condition for “avoid[ing] an arbitrary discretion in the
courts.” Missouri v. Jenkins, 515 U.S. 70, 129 (1995)
(Thomas, J., concurring) (quoting THE FEDERALIST NO. 78, at
529 (J. Cooke ed. 1961) (Alexander Hamilton)).
Brayton urges that fee awards should not be foreclosed
despite the fact that the government was correct as a matter of
law to withhold the documents he requested. This
interpretation would make the law of FOIA fee entitlement
even more favorable to plaintiffs than it was before
Buckhannon. Brayton claims that the legislative history of the
OPEN Government Act bolsters his case, but if anything the
history only suggests that Congress intended to reinstate the
pre-Buckhannon rule for fee eligibility. See S. Rep. No. 11059, at 4 (2007) (“The bill clarifies that Buckhannon does not

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apply to FOIA cases.”); id. at 6 (amendment to attorney’s fee
provision is “the so-called Buckhannon fix”); id. (“This
section clarifies that Buckhannon’s holding does not and
should not apply to FOIA litigation.”); id. at 14 (Additional
Views of Sen. Kyl) (“the bill legislatively overrules the U.S.
Supreme Court’s decision in Buckhannon . . . as that decision
applies to FOIA”); id. at 20 (Justice Department’s Views
Letter) (“We understand this provision’s intent to be the
overruling of the Supreme Court’s decision in Buckhannon
. . . and of a number of recent court of appeals decisions that
have applied Buckhannon to reject the catalyst theory as a
basis for FOIA attorneys’ fee awards.”); H.R. Rep. No. 11045, at 4 (2007) (bill “clarif[ies] that Buckhannon does not
apply to FOIA cases”); id. at 6 (“This section makes clear that
the Buckhannon decision does not apply to FOIA cases and
ensures that requesters are eligible for attorney fees and other
litigation costs if they obtain relief from the agency during the
litigation.”); 153 CONG. REC. S10987 (daily ed. Aug. 3, 2007)
(Sen. Leahy) (“The bill clarifies that Buckhannon does not
apply to FOIA cases.”).
Brayton points to a floor statement Senator Kyl made
shortly before the passage of the Act, which he co-sponsored.
The Senator stated that the Act would abrogate Buckhannon
in FOIA cases and allow courts to award attorney fees to a
substantially prevailing plaintiff with a “not insubstantial”
claim. He acknowledged that this “is a pretty low standard
[that] would allow the requester to be deemed a prevailing
party for fee-assessment purposes even if the government’s
litigating position was entirely reasonable—or even if the
government’s arguments were meritorious and the
government would have won had the case been litigated to a
judgment.” 153 CONG. REC. S10989 (daily ed. Aug. 3, 2007).

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Even if the meaning of a law could depend on the
unratified words of a single lawmaker, this statement would
provide scant support for Brayton’s argument. Senator Kyl
registered his understanding that the Act would allow some
plaintiffs with losing FOIA claims to receive attorney fees,
not all such plaintiffs. As discussed above, the district court’s
ruling is consistent with this outcome, inasmuch as it permits
fee awards where the government, while ultimately correct,
cannot show that its position is correct “as a matter of law”
under the summary judgment standard. If a court finds that
there were genuine issues of material fact in dispute before
the case settled, the court may still award fees as long as the
plaintiff has substantially prevailed on the basis of a claim
that was “not insubstantial.”
Although the vast majority of FOIA cases can be
resolved on summary judgment, which means that in most
cases finding the government’s position “correct as a matter
of law” is the same as finding it “correct,” this is not always
the case. In fact, there was a FOIA trial in our jurisdiction as
recently as 2009. See In Def. of Animals v. U.S. Dep’t of
Agric., 656 F. Supp. 2d 68 (D.D.C. 2009). That case involved
a FOIA plaintiff seeking government records of an
investigation into a research facility’s alleged violations of the
Animal Welfare Act. The research facility intervened and
opposed disclosure primarily under FOIA’s exemption for
confidential commercial information. In explaining why the
case could not be disposed of on summary judgment, the
court stated the need for a trial to probe disputed factual
questions involving “whether disclosure of the categories of
information in the context of the documents sought by IDA
would permit [the research facility’s] competitors to derive or
reverse engineer [the research facility’s] proprietary
information, thereby causing it substantial competitive harm.”
In Def. of Animals v. U.S. Dep’t of Agric., 501 F. Supp. 2d 1,

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6 (D.D.C. 2007). The opinion relied on two of our FOIA
cases in which we held summary judgment would be
inappropriate because genuine issues of material fact existed
as to the applicability of a FOIA exemption. See Niagara
Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16
(D.C. Cir. 1999); Wash. Post Co. v. U.S. Dep’t of Health and
Human Servs., 865 F.2d 320 (D.C. Cir. 1989). Although such
cases are rare, our doctrine must nonetheless take them into
account. If the government settles a FOIA case that would
have turned on disputed issues of material fact, the district
court facing a request for attorney fees may not know whether
the plaintiff’s claims were meritorious. It should not be
obligated to hold a full trial to find out.
Brayton argues that applying the summary judgment
standard to evaluate the government’s nondisclosure decisions
will open the floodgates by transforming every motion for
attorney fees into a mini-trial on the merits of the underlying
FOIA claim. But the fee-entitlement rule the district court
applied in this case has been in place for quite some time,
even before Buckhannon, and the federal judiciary has yet to
be deluged. By relying on the summary judgment standard,
the rule preserves the discretion of courts in fee
determinations to avoid the swamp of merits adjudication
whenever material facts are in dispute.
It is undeniable that considering the merits of an agency’s
nondisclosure decision will frequently complicate the
adjudication of motions for attorney fees. But on the other
side of the ledger is the concern that courts should not dole
out fee awards to plaintiffs who bring FOIA lawsuits that
cannot survive a motion for summary judgment. We resolved
this tension long ago when we stated that “there can be no
doubt that a party is not entitled to fees if the Government’s

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legal basis for withholding requested records is correct.”
Chesapeake Bay Found., 11 F.3d at 216.
In closing, we note the irony that awarding fees to
plaintiffs in Brayton’s situation might prod government
agencies to be less rather than more transparent. In this case,
USTR was under no obligation to declassify the document
and release it to the public as quickly as it did. Instead, it
could have delayed the process and withheld the documents
much longer, and its decision still would have remained
correct as a matter of law. Under the rule applied by the
district court, agencies in USTR’s position can choose to
relent for the sake of transparency and release requested
documents without exposing themselves to monetary
penalties: the fact that their initial nondisclosure decision
rested on a solid legal basis creates a safe harbor against the
assessment of attorney fees. Under Brayton’s approach,
however, agencies with legal authority to withhold requested
documents would have no such safe harbor. Thus they might
hesitate to release the documents, since doing so would risk
creating a “substantially prevail[ing]” plaintiff who might be
entitled to fees.
III
For the foregoing reasons, the district court’s judgment is
Affirmed.