Jefferson Morley v. CIA

Filing

OPINION [1739739] filed PER CURIAM OPINION (Pages: 14), DISSENTING OPINION (Pages: 17) by Judge Henderson [17-5114]

USCA Case #17-5114

Document #1739739

Filed: 07/09/2018

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2018

Decided July 9, 2018
No. 17-5114

JEFFERSON MORLEY,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-02545)

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.
Opinion for the Court filed PER CURIAM.
Dissenting opinion filed by Circuit Judge HENDERSON.

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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

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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

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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

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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 noncommercial 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

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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.

1

The first three factors have the effect of eliminating the
possibility of attorney’s fees for certain prevailing plaintiffs. We
doubt that is a proper interpretation of the statute, for reasons that
have been detailed elsewhere. See Morley v. CIA, 719 F.3d 689, 690693 (D.C. Cir. 2013) (Kavanaugh, J., concurring); Davy v. CIA, 550
F.3d 1155, 1166 (D.C. Cir. 2008) (Randolph, J., dissenting). It is
arguable that the fourth factor alone should constitute the test under
FOIA for attorney’s fees. That approach would, among other things,
greatly simplify these unnecessarily complicated FOIA attorney’s
fees cases and eliminate the unfair discrimination against certain
prevailing plaintiffs that results from the first three factors. As a
three-judge panel, however, we of course must and do adhere to our
circuit precedent.

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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
strive to meet relevant statutory deadlines. But here, the CIA
faced a large backlog of requests. Therefore, based on the
record, the District Court reasonably concluded that the agency
had a reasonable basis for missing the 20-day deadline.
Second, Morley asserts that the CIA acted unreasonably
when it initially referred Morley to the National Archives and
Records Administration to obtain records. In its initial
response to Morley, the CIA explained that it had gathered CIA
records related to the Kennedy assassination, as required by the
President John F. Kennedy Assassination Records Collection
Act of 1992, which we will refer to as the JFK Act. Pursuant

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to the Act, the CIA then transferred the records to the National
Archives. The Archives in turn made the records available to
the public. The CIA also explained to Morley that the
collection at the National Archives contained the records of
numerous other agencies and entities, and that the records were
searchable on the Internet.
In an earlier round of the underlying FOIA litigation in
Morley’s case, this Court concluded that the JFK Act did not
relieve the CIA of its duty to search for and produce Kennedy
assassination records in response to a FOIA request – even
when the exact same records were publicly available at the
Archives. This Court ruled that the CIA therefore acted
incorrectly when it initially referred Morley to the National
Archives. See Morley v. CIA, 508 F.3d 1108, 1119-20 (D.C.
Cir. 2007).
Of course, the purpose of the fourth factor of the attorney’s
fees inquiry is to determine not whether the agency acted
correctly, but rather “whether the agency has shown that it had
any colorable or reasonable basis for not disclosing” the
relevant material. Davy, 550 F.3d at 1163. Here, the CIA
initially directed Morley to the Archives because the collection
at the Archives would include the relevant CIA records that
were responsive to Morley’s FOIA request, as well as other
potentially relevant documents from other government
agencies. In doing so, the CIA relied on the JFK Act, which
had been enacted by Congress to centralize all of the Federal
Government’s Kennedy assassination records in one place: the
National Archives. And the CIA believed that Congress’s
decision to maintain all the records at the Archives relieved
individual agencies of the unnecessary burden of producing
duplicate copies of those same records in response to FOIA
requests. As a general matter, an agency cannot avoid a FOIA
request by simply saying that the documents are already

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publicly available. See Department of Justice v. Tax Analysts,
492 U.S. 136, 150-55 (1989). But the CIA analogized the
situation here to a principle articulated by this Court in Tax
Analysts: “an agency need not respond to a FOIA request for
copies of documents where the agency itself has provided an
alternative form of access.” Tax Analysts v. Department of
Justice, 845 F.2d 1060, 1065 (D.C. Cir. 1988); see also Tax
Analysts, 492 U.S. at 152 (stating “an agency need not disclose
materials that it has previously released”). With respect to
Kennedy assassination records, Congress itself had provided
an “alternative form of access,” or so the CIA reasoned.
In light of the detailed statutory scheme and the analogous
FOIA case law, the CIA’s decision to direct Morley to the
central Archives repository of records related to the Kennedy
assassination was hardly unreasonable. Indeed, the CIA’s
initial letter responding to Morley sought to be helpful by
informing Morley that other agencies’ records were also
available at the Archives. To be sure, the CIA turned out to be
incorrect legally (or so this Court later ruled) in thinking that
the public availability of documents at the Archives entirely
relieved the agency of its duty to search for its own copies of
those same documents. But the CIA’s ultimately incorrect
legal view was not unreasonable, at least in the unique context
of the statute governing the Kennedy assassination records.
Indeed, it would seem inefficient (to put it mildly) to require an
agency such as the CIA to expend scarce agency resources
repeatedly gathering anew copies of documents that the agency
had already gathered and made available to the public at the
Archives. In short, given the statute and given the language of
Tax Analysts, the CIA had a strong legal argument that
referring Morley to the Archives was legally permissible and
appropriate.

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It is true that the JFK Act itself provided that members of
the public still had a right to “file” FOIA requests with an
executive agency. President John F. Kennedy Assassination
Records Collection Act of 1992, Pub. L. No. 102-526, § 11(b).
But that statutory language – “file” – said nothing to suggest
that an agency had a duty to collect and produce copies of the
exact same documents that the agency had already collected
and transferred to the Archives and that would be available to
the public there. In other words, it was at least arguable that
the JFK Act did not require agencies to conduct entirely
redundant searches for copies of those documents that the
agency had already transferred to the Archives. As noted, such
a scheme would seem highly inefficient to the point of
absurdity. So it was at least reasonable – even if not ultimately
correct – for the CIA to read the JFK Act’s provision
referencing FOIA to speak only to those records that might be
responsive to a FOIA request and that the CIA had not
transferred to the Archives.
In that vein, Morley is on somewhat stronger ground in
saying that the CIA should have realized that his FOIA request
– even though it expressly referenced the Kennedy
assassination – asked the CIA for some categories of CIA
documents that may not have been transferred to the Archives.
We agree with Morley that the CIA’s initial response to him
was not entirely sufficient, as was revealed when the CIA
ultimately produced some responsive documents that had not
been transferred to the Archives. But was the CIA’s initial
response at least reasonable? In light of the unique nature of
the JFK Act and the CIA’s extraordinarily extensive efforts to
gather records under that Act for transfer to the Archives (as
detailed in the various CIA declarations in this case), it was at
least reasonable for the CIA to believe that Morley’s request as
phrased would lead only to records that the agency had already
gathered and produced to the Archives.

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In any event, the District Court’s conclusion – namely, that
the CIA’s response was reasonable – was at least within the
zone of reasonableness. This is where the double dose of
deference in reviewing the District Court’s analysis of factor
four may matter. Recall that the very narrow question for us is
simply whether the District Court reasonably concluded that
the CIA acted reasonably in initially directing Morley to the
Archives. Deference piled on deference. We answer the
question in the affirmative.
Third, Morley argues that the CIA unreasonably delayed
the release of responsive operational files. Operational files
describe certain foreign intelligence or counterintelligence
activities. See 50 U.S.C. § 431(b). Typically, operational files
are exempt from FOIA requests. See 50 U.S.C. § 431(a). But
the statute exempting those files also contains several
exceptions. See 50 U.S.C. § 431(c). The CIA argued that the
relevant operational files did not fall into any of those statutory
exceptions and thus were exempt. This Court later rejected the
CIA’s interpretation of that statute, but we noted that the CIA
had relied “on the only opinion by a circuit court of appeals to
address” the relevant provision. Morley, 508 F.3d at 1118. For
our purposes here, what matters is that it was entirely
reasonable for the CIA to rely on the only available court of
appeals precedent when the agency withheld operational
records. In short, the District Court reasonably concluded that
the agency acted reasonably in withholding the operational
records.
Fourth, Morley contends that the CIA unreasonably
asserted a Glomar response to a certain category of requested
covert activities records. When an agency is not willing to
confirm or deny the existence of certain documents, it may
submit a Glomar response. Here, the CIA believed that
confirming or denying certain of Joannides’s covert activities

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could damage national security. This Court ultimately
concluded that the Glomar response, once it was sufficiently
detailed, was lawful. See Morley v. CIA, 466 Fed. App’x 1
(D.C. Cir. 2012). It follows that the District Court reasonably
concluded that the CIA’s Glomar response was reasonable.
Fifth, Morley argues that the CIA unreasonably asserted
Exemption 2 (the FOIA exemption for internal personnel rules
and practices) as to records concerning internal procedures and
clerical information. The agency’s position was correct under
this Court’s law at the time. To be sure, during the pendency
of this multi-decade litigation, the Supreme Court decided a
case that disagreed with this Circuit’s longstanding
interpretation of Exemption 2. See Milner v. Department of the
Navy, 562 U.S. 562 (2011). Afterwards, the CIA withdrew its
Exemption 2 assertion in this case. See Morley, 466 Fed.
App’x at 1. Given the state of the law at the time that the CIA
initially asserted Exemption 2, the District Court reasonably
concluded that the CIA reasonably asserted Exemption 2.
In sum, each of the positions that the CIA advanced to
initially withhold records was reasonable – or at least the
District Court could reasonably conclude as much. Therefore,
the District Court did not abuse its discretion in concluding that
the fourth factor weighed in favor of the Government.
The remaining question is whether the District Court
reasonably balanced the four factors. To review, factors one
through three favored Morley, albeit only slightly. Because the
first three factors favored Morley, Morley argues that the
District Court should have awarded him attorney’s fees. But
the District Court reasonably concluded that the fourth factor
heavily favored the CIA. And as explained above, when the
four factors point in different directions, the district court has
very broad discretion how to balance the factors and whether

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to award or deny fees. There are many reasonable approaches
a district court might take in balancing the factors, and it is
difficult for an appellate court – with our deferential standard
of review – to second-guess that balancing. And in this case,
especially with factor four heavily favoring the agency and the
other three factors only slightly favoring Morley, we cannot say
that the District Court abused its discretion in concluding that
the fourth factor tilted the balance in favor of denying
attorney’s fees.
***
In closing, we note a few respectful points in response to
the dissent.
First, the dissent says that the District Court did not heed
this Court’s prior remand. We disagree. The dissent appears
to be conflating our prior decision in Morley’s case and our
prior decision in Davy. In Davy, our decision required the
District Court to award attorney’s fees. By contrast, in
Morley’s case, our prior decision simply remanded for the
District Court to “consider the remaining factors and the
overall balance afresh.” Morley v. CIA, 810 F.3d 841, 845
(D.C. Cir. 2016). On remand here, the District Court did just
that. We can disagree about whether the District Court
correctly evaluated and balanced the four factors. But in our
view, it is inaccurate to say that the District Court in any way
flouted or disregarded our prior decision.
Second, the dissent contends that we have disregarded
circuit precedent and replaced this Court’s four-factor test with
an inquiry that looks only to the fourth factor: whether the CIA
acted reasonably in withholding documents. The dissent is
incorrect. In this opinion, we have considered both the District
Court’s analysis of each individual factor and the District

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Court’s balancing of the four factors. We first concluded that
the District Court did not abuse its discretion in its analysis of
the individual factors. We then concluded that the District
Court acted within its discretion when it concluded that the
fourth factor outweighed the other three. And to prove that we
have not ditched the four-factor test, we will be crystal clear:
If the District Court had awarded attorney’s fees in this case,
we would have affirmed. In other words, when the first three
factors favor the plaintiff, but the fourth does not, a district
court retains very broad discretion under the four-factor test
about how to balance the factors and whether to award
attorney’s fees. We have faithfully and carefully applied the
four-factor test set forth by our precedents.
In light of the statutory text of the FOIA attorney’s fees
provision – in particular, the word “may” – and our deferential
standard of review, we affirm the judgment of the District
Court denying attorney’s fees.
So ordered.

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KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
Over the past 15 years, we have remanded this case four times.
During the same period, we have reversed the same district
court twice in a nearly identical Freedom of Information Act
(FOIA) case. That makes six opinions from this court. I share
the majority’s displeasure with the resulting waste of judicial
resources, especially because “fee litigation [is] one of the last
things lawyers and judges should be spending their time on.”
Baylor v. Mitchell Rubenstein & Assocs., P.C., 857 F.3d 939,
960 (D.C. Cir. 2017) (Henderson, J., concurring). Jefferson
Morley, however, is not to blame for this “staggering” saga.
Maj. Op. 2. But for the district court’s repeated misapplication
of FOIA precedent, this case could have ended as early as 2006.
If it had been correctly decided the first time, “Morley would
already have his fees, and this litigation would have long since
concluded.” Morley v. CIA, 719 F.3d 689, 693 (D.C. Cir. 2013)
(Kavanaugh, J., concurring). Unfortunately, the district court
got it wrong again. The majority, it appears to me, overlooks
the district court’s latest errors in order to “bring the case to an
end.” Maj. Op. 2. In the process, it distorts our settled fourfactor test for awarding attorney fees under FOIA and replaces
it with a single-factor reasonableness inquiry of its own design.
What’s worse, the majority misapplies its own test. It
holds that the Central Intelligence Agency (CIA) reasonably
declined to produce any documents in response to Morley’s
FOIA request and instead directed him to another agency. The
holding is plainly contrary to Tax Analysts v. DOJ, which
declared that “an agency must itself make disclosable agency
records available to the public and may not on grounds of
administrative convenience avoid this statutory duty by
pointing to another public source for the information.” 845
F.2d 1060, 1067 (D.C. Cir. 1988) (emphasis in original), aff’d,
492 U.S. 136 (1989). To avoid this precedent—and to explain
away the district court’s contrary conclusions—the majority
leans heavily on the standard of review, declaring that it
requires “[d]eference piled on deference.” Maj. Op. 11. In my

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view, my colleagues pile their deference far too high. Our
abuse-of-discretion review, although forgiving, is not an empty
formality: here, the district court’s discretion was constrained
by our earlier opinions in this very case and by our closely
related decision in Davy v. CIA, 550 F.3d 1155 (D.C. Cir. 2008).
Because the district court failed to follow precedent and
because it misapplied our four-factor test—for the third time—
I believe it abused its discretion. Accordingly, I respectfully
dissent.
I. BACKGROUND
In brief, the facts of this case are as follows:
Morley is a journalist and news editor. On July
4, 2003, Morley submitted a request under
FOIA to the CIA for “all records pertaining to
CIA operations officer George Efythron
Joannides.” The letter makes clear that Morley
sought information connected to President John
F. Kennedy’s assassination. The CIA responded
in the beginning of November, 2003, with a
letter explaining that the National Archives and
Records Administration (“NARA”) had a
public collection of CIA records related to the
JFK assassination, which was searchable
online. The CIA directed him to submit his
request to NARA and did not release any
records directly to Morley at that time.
Morley subsequently filed suit in this Court on
December 16, 2003, to enforce his FOIA
request. After further processing of the request,
along with an appeal up to our Circuit, the CIA
ultimately provided Morley with a total of 524
responsive records (some of which were

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segmented and/or redacted). Of those records,
113 were from the files the CIA previously had
transferred to NARA.
Morley v. CIA, 245 F. Supp. 3d 74, 76 (D.D.C. 2017) (Morley
X) (quoting Morley v. CIA (Morley VIII), 59 F. Supp. 3d 151,
153-54 (D.D.C. 2014)).
The majority truncates the history of this case, which, with
this appeal, marks Morley XI. I believe more detail is needed
to explain how our earlier decisions should have limited the
district court’s discretion here.
In response to Morley’s initial FOIA request, the CIA
referred him to NARA without producing any of the requested
documents. Morley filed suit. After the CIA produced three
documents in full and 112 documents in segregable form, the
district court granted its motion for summary judgment.
Morley v. CIA (Morley I), 453 F. Supp. 2d 137, 142 (D.D.C.
2006). We affirmed in part but reversed in the main, giving
seven remand instructions. Morley v. CIA (Morley II), 508 F.3d
1108, 1129 (D.C. Cir. 2007). We instructed the district court to
direct the CIA to: (1) search operational files; (2) search records
transferred to NARA; (3) supplement its explanation regarding
missing monthly reports; (4) provide details regarding the
scope of its search; (5) explain why withheld information was
not segregable; (6) substantiate its Glomar response; and (7)
provide further justification for its reliance on FOIA
Exemptions 2, 5 and 6. See id.
As most relevant here, we explained that FOIA reflects “a
‘settled policy’ of ‘full agency disclosure,’” id. at 1119 (quoting
Tax Analysts, 845 F.2d at 1064), and “an agency has ‘withheld’
a document under its control when, in denying an otherwise
valid request, it directs the requester to a place outside of the
agency where the document may be publicly available,” id.

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(alterations omitted) (quoting DOJ v. Tax Analysts, 492 U.S.
136, 150 (1989)). Because the CIA directed Morley to NARA
rather than searching its own records, we held that it had failed
to meet its duties under FOIA. Id. at 1120.
Over the course of two years on remand, the CIA released
409 additional documents to Morley. The district court then
granted the CIA’s renewed motion for summary judgment.
Morley v. CIA (Morley III), 699 F. Supp. 2d 244 (D.D.C. 2010).
On appeal, we affirmed in large part but remanded the case so
the district court could examine Exemption 21 in light of a thenrecently decided Supreme Court case, Milner v. Department of
Navy, 562 U.S. 562 (2011). Morley v. CIA (Morley V), 466 F.
App’x 1 (D.C. Cir. 2012) (per curiam). On remand, the district
court dismissed the case as moot. Morley v. CIA (Morley VI),
No. 03-2545, 2013 WL 140245 (D.D.C. Jan. 9, 2013). Thus
ended Morley’s merits dispute.
While the CIA was defending on the merits of Morley’s
FOIA suit, the same district judge heard an attorney’s fees
dispute in another case involving a journalist (William Davy)
who sought documents from the CIA regarding President
Kennedy’s assassination. Davy v. CIA (Davy I), 357 F. Supp.
2d 76 (D.D.C. 2004). After obtaining documents through a
consent order, Davy sought attorney’s fees. Davy v. CIA (Davy
II), 456 F.3d 162 (D.C. Cir. 2006). The district court first
denied Davy’s request. Id. at 163. We reversed, concluding
that Davy was a prevailing party. Id. at 166. We then remanded
for the district court to determine whether Davy was entitled to
fees and, if so, to calculate those fees. Id.

1

Exemption 2 protects from disclosure agency material that is
“related solely to the internal personnel rules and practices of an
agency.” 5 U.S.C. § 552(b)(2).

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On remand, the district court again denied Davy’s request
for fees. Davy v. CIA (Davy III), 496 F. Supp. 2d 36 (D.D.C.
2007). Eventually, applying our “familiar four-factor test,” we
again reversed. Davy v. CIA (Davy IV), 550 F.3d 1155, 1157
(D.C. Cir. 2008).2 We first addressed the “public benefit”
factor, noting that the Kennedy assassination was an “event of
national importance” and the information Davy obtained might
help the public make “vital political choices.” Id. at 1160. We
then examined the second and third factors in tandem and
concluded that, although Davy may enjoy some pecuniary
benefit from publishing books or articles as a result of his
search, “that alone cannot be sufficient to preclude an award of
attorney’s fees under FOIA.” Id. at 1160. Therefore, we held,
the district court abused its discretion in finding that the second
and third factors weighed against Davy. Id. at 1162. As to the
fourth factor, we explained that, because the CIA failed even to
respond to Davy’s request for documents until after he filed
suit, the CIA was unreasonable in its initial withholding. Id. at
1163. Accordingly, all four factors favoring Davy, we
remanded to the district court for it to award fees. Thus ended
Davy’s fees dispute.
Meanwhile, Morley filed an application for attorney’s
fees. Morley v. CIA (Morley IV), 828 F. Supp. 2d 257 (D.D.C.
2011). The district court denied his request, finding that all
2

As discussed infra, the four factors are: (1) the public benefit
derived from the case; (2) the commercial benefit to the plaintiff; (3)
the nature of plaintiff’s interest in the records; and (4) the
reasonableness of the agency’s withholding of the requested
documents. Davy IV, 550 F.3d at 1159. Some of our sister circuits
have adopted the same four-factor test. See, e.g., Pietrangelo v. U.S.
Army, 568 F.3d 341, 343 (2d Cir. 2009); Texas v. ICC, 935 F.2d 728,
730 (5th Cir. 1991); Church of Scientology of Cal. v. U.S. Postal
Serv., 700 F.2d 486, 492 (9th Cir. 1983).

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four factors weighed against him. Id. at 260. Continuing a
trend, we vacated the decision and remanded. Morley v. CIA
(Morley VII), 719 F.3d 689 (D.C. Cir. 2013) (per curiam). In
doing so, we directed the district court to our previous opinion
in Davy IV, which stated that records “about individuals
allegedly involved in President Kennedy’s assassination serve
a public benefit.” Id. at 690 (alterations omitted) (quoting Davy
IV, 550 F.3d at 1159). Moreover, we quoted Davy IV’s
instruction that the public-benefit factor should not “disqualify
plaintiffs who obtain information that, while arguably not of
immediate public interest, nevertheless enables further
research ultimately of great value and interest, such as here the
public understanding of a [p]residential assassination.” Id.
(quoting Davy IV, 550 F.3d at 1162 n.3). We remanded for the
district court to consider Davy IV but did not express any
position on whether it should award fees. Id.
On remand, the district court again denied fees. Morley
VIII, 59 F. Supp. 3d at 153. After analyzing the 524 documents
the CIA ultimately produced in response to Morley’s request,
the district court held that the “litigation has benefited the
public only slightly, if at all.” Id. at 158. Without providing
detail, it decided that its “analysis of the other factors
remain[ed] the same” and denied Morley’s application. Id.
For the fourth time, we remanded, concluding that “the
district court improperly analyzed the public-benefit factor by
assessing the public value of the information received rather
than the ‘potential public value of the information sought.’”
Morley v. CIA (Morley IX), 810 F.3d 841, 842 (D.C. Cir. 2016)
(quoting Davy IV, 550 F.3d at 1159). We declared that, when
evaluated ex ante, “Morley’s request had potential public
value.” Id. at 844. We remanded for the district court to
evaluate all four factors anew. Id. at 845.

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This protracted history brings us to the district court’s most
recent fees order. Morley v. CIA, 245 F. Supp. 3d 74 (D.D.C.
2017) (Morley X). In view of Morley IX, the district court
found that the “expectation-adjusted value of the public benefit
that plaintiff sought to provide was small.” Id. at 77. The court
saw the second and third factors as a “close call.” Id. at 78.
Specifically, it found that Morley received “some
compensation for writing news articles” and saved time and
energy by not having to seek documents in NARA’s Kennedy
collection. Id. at 77. “Thankfully,” the court concluded, “the
final factor breaks the tie—it weighs heavily against Morley
and is ultimately dispositive.” Id. at 78. Accordingly, the
district court denied Morley’s motion for attorney’s fees a third
time. Id.
II. DISCUSSION
Under the traditional “American Rule,” each party to a
lawsuit pays its own attorney’s fees. See Alyeska Pipeline Serv.
Co. v. Wilderness Soc’y, 421 U.S. 240, 245 (1975). FOIA
creates a statutory exception to the American Rule; it provides
that the “court may assess against the United States reasonable
attorney fees . . . in any case under this section in which the
complainant has substantially prevailed.”
5 U.S.C.
§ 552(a)(4)(E)(i). We have explained that “FOIA’s attorney’s
fees provision . . . was designed to lower the ‘often . . .
insurmountable barriers presented by court costs and attorney
fees to the average person requesting information under the
FOIA.’” Tax Analysts v. DOJ, 965 F.2d 1092, 1095 (D.C. Cir.
1992) (quoting Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C.
Cir. 1977)). “[T]he award of FOIA counsel fees has as its
fundamental purpose the facilitation of citizen access to the
courts, and should not be subject to a grudging application.”
First Amendment Coal. v. DOJ, 878 F.3d 1119, 1130 (9th Cir.
2017) (internal quotation marks omitted).

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We review the district court’s application of the four-factor
test for abuse of discretion. Id. at 1158. The district court’s
discretion has two important limits. First, it is constrained by
precedent. Koon v. United States, 518 U.S. 81, 100 (1996) (“A
district court by definition abuses its discretion when it makes
an error of law.”). Second, the district court’s discretion is
limited by the mandate rule, which provides that “an inferior
court has no power or authority to deviate from the mandate
issued by an appellate court.” Briggs v. Penn. R.R., 334 U.S.
304, 306 (1948); see United States v. Kpodi, 888 F.3d 486, 491
(D.C. Cir. 2018) (“A district court commits legal error and
therefore abuses its discretion when it fails to abide by . . . the
mandate rule.”). In long-running litigation like this, the district
court is especially constrained because it may not “do anything
which is contrary to either the letter or spirit of the mandate”
which we issued in our four previous remands. City of
Cleveland v. Fed. Power Comm’n, 561 F.2d 344, 346 (D.C. Cir.
1977) (quoting Yablonski v. United Mine Workers of Am., 454
F.2d 1036, 1038 (D.C. Cir. 1971)).
My colleagues do not discuss these two constraints,
instead focusing on the “double dose of deference” they believe
we owe the district court’s fourth-factor “reasonableness”
assessment. Maj. Op. 6. Hence, they acknowledge our fourfactor test but do not apply it. See Maj. Op. 6 n.1 (“[W]e of
course must and do adhere to our circuit precedent.”). In a
telling footnote, they “doubt” that the first three factors have
any role to play in “a proper interpretation of the statute.” Id.
They suggest instead that “the fourth factor alone should
constitute the test under FOIA for attorney’s fees.” Id. There
may be good reason to question our FOIA precedent but, as a
three-judge panel, we are bound to apply it.3 With respect, I
3

Some members of our court question the four-factor FOIA
test and call for en banc review. See Morley VII, 719 F.3d at 690-91

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believe the majority fails to do so. Indeed, the majority accepts
that the first three factors favor Morley but does not review the
district court’s reasoning and, worse, does not adequately
evaluate the weight of the first three factors in light of Morley
IX or Davy IV.4 See Maj. Op. 4-5. As a result, the majority
necessarily relies on the “fourth factor alone” in affirming the
district court’s determination that Morley is not entitled to
attorney’s fees. Id.5 Under a faithful application of our fourfactor test, I believe the district court abused its discretion.6
(Kavanaugh, J., concurring); Davy IV, 550 F.3d at 1166 (Randolph,
J., dissenting).
4

As discussed infra, it is not clear that the district court itself
found that the first three factors favor Morley.
5

In attempting to establish that it does not rely only on the
“reasonableness” factor of our test, the majority declares: “If the
District Court had awarded attorney’s fees in this case, we would
have affirmed.” Maj. Op. 14. This is pure dictum. The district court
did not award fees and my colleagues’ declaration of what they
would do in a hypothetical is entirely speculative. Moreover, had the
district court awarded fees, there would have been no legal error to
correct and no basis for remand.
6

Some of our opinions suggest that each of the four factors has
a threshold that must be met. See Morley IX, 810 F. 3d at 844 (“[I]f
it’s plausible ex ante that a request has a decent chance of yielding a
public benefit, the public-benefit analysis ends there.”). Other
opinions suggest that the inquiry is akin to a freestanding balancing
test. See Cuneo, 553 F.2d at 1367 (“[T]he trial court must weigh the
facts of each case against the criteria of the existing body of law on
the award of attorney fees and then exercise its discretion in
determining whether an award is appropriate . . . .”). In either event,
the majority’s approach is flawed. If each factor can be met with by
a “yes” or “no” answer, three in favor should outweigh one against.
On the other hand, if the factors should be weighed against each other

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A. Factor One: Public Benefit
The district court found the potential public benefit of
Morley’s request “small.”
Its finding understates the
importance of the Kennedy assassination.7 At least three times,
we have recognized the potential public benefit of JFK-related
FOIA inquiries. In Davy IV, we noted that the documents Davy
sought provided “important new information bearing on the
controversy over former District Attorney Jim Garrison’s
contention that the CIA was involved in the assassination plot.”
550 F.3d at 1159 (quoting Davy Decl.) (alterations omitted).
Then, in Morley VII, we vacated and remanded the district
court order denying fees so that it could reconsider its publicbenefit analysis in light of Davy IV. Morley VII, 719 F.3d at
690.

in a balancing test, the majority errs by failing to review fully the
district court’s assessment of the first three factors.
Few events in our national history have garnered as much
attention as the assassination of President Kennedy. Three times
since 1963, the Congress has investigated the details of the
assassination. In 1964, the Warren Commission concluded that Lee
Harvey Oswald killed President Kennedy alone and unaided. Joint
Appendix (JA) 66. In 1978, however, the House Select Committee
on Assassinations (HSCA) reopened the Kennedy investigation. JA
68. Ultimately, the HSCA concluded that Oswald had killed
President Kennedy with unidentifiable co-conspirators; thereafter,
the conspiracy theories multiplied. Id. In 1992, the Congress reentered the fray, enacting the President John F. Kennedy
Assassination Records Collection Act of 1992, Pub. L. 102-526
(codified at 44 U.S.C. § 2107 Note) (JFK Act), which charged the
Assassination Records Review Board to collect and release all
unclassified documents related to the assassination.
7

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Finally, we have expressly recognized the usefulness of
Morley’s specific request. Morley IX, 810 F.3d at 844.
Acknowledging that “a requester’s mere claim of a relationship
to the assassination” does not “ipso facto satisf[y] the public
interest criterion,” we noted that, if the subject of the request
“is the Kennedy assassination—an event with few rivals in
national trauma and in the array of passionately held
conflicting explanations—showing potential public value is
relatively easy.” Id. at 844 (second emphasis added). We
continued:
Morley’s request had potential public value. He
has proffered—and the CIA has not disputed—
that Joannides served as the CIA case officer for
a Cuban group, the DRE, with whose officers
Oswald was in contact prior to the
assassination. Travel records showing a very
close match between Joannides’s and Oswald’s
times in New Orleans might, for example, have
(marginally) supported one of the hypotheses
swirling around the assassination. In addition,
this court has previously determined that
Morley’s request sought information “central”
to an intelligence committee’s inquiry into the
performance of the CIA and other federal
agencies in investigating the assassination.
Under these circumstances, there was at least a
modest probability that Morley’s request would
generate information relevant to the
assassination or later investigations.
Id. at 844-45. In other words, we held that Morley satisfied the
public-benefit factor in this case. Id. at 844 (“[I]f it’s plausible
ex ante that a request has a decent chance of yielding a public
benefit, the public-benefit analysis ends there.”).

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None of this is to say that Morley’s assassination theories
necessarily have any merit. The point is that we have twice
remanded the case based on the district court’s failure to assess
properly the public benefit of Morley’s FOIA request. Thus,
the district court’s description of the public value of the
information sought by Morley as “small” ignores our decisions
in Davy IV, Morley VII and Morley IX. See Kpodi, 888 F.3d at
491 (explaining mandate rule).
B. Factors 2 and 3: The Requester’s Interest
Factors two and three are controlled by Davy IV. See 550
F.3d at 1162 (“[T]he district court abused its discretion in
determining that the second and third factors weighed against
Davy . . . .”). In addressing these factors, the majority cites the
oral argument transcript for the proposition that “the District
Court ‘found that three of the four factors favored Morley.’”
Maj. Op. 4 (quoting Oral Arg. Tr. at 4). Contrary to Morley’s
counsel’s assertions, however, the district court did not hold
that factors two and three favored Morley. Rather, the district
court stated that “the first three factors do not clearly indicate
whether the Court should award attorney’s fees—it is a very
close call.” Morley X, 245 F. Supp. 3d at 78.8 Thus, it is far
from clear how the district court viewed the second and third
factors. If it believed the first three factors indeed favored
Morley, the balance at that stage would have undoubtedly
In a footnote, the district court provided a caveat: “In an
abundance of caution, therefore, I will clarify that even if costs
avoided do not count as a commercial benefit, the public interest in
incentivizing Morley would be low enough in this case that I would
still find the fourth factor dispositive.” Morley X, 245 F. Supp. 3d at
78 n.2. It is unclear how—or if—this comment affected the district
court’s analysis but, in any event, the district court did not conclude
that factors two or three affirmatively favored Morley.
8

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tipped in his favor and there would have been no “tie” to break.
Id.
Moreover, this case is indistinguishable from Davy IV on
factors two and three.9 Like Davy, Morley is a journalist. Like
Davy, Morley “hope[s] to earn a living plying [his] trade” and
receives modest remuneration for the articles he writes. Davy
IV, 550 F.3d at 1160; see also Nationwide Bldg. Maint., Inc. v.
Sampson, 559 F.2d 704, 712 (D.C. Cir. 1977) (“For the
purposes of applying this criterion, news interests should not
be considered commercial interests.”). Like Davy, Morley has
an interest in investigating President Kennedy’s assassination.
And like Davy, Morley may not be able to publish the
information he obtains until long after his lawsuit ends. But
unlike in Davy’s case—where we held that factors two and
three favored Davy—the district court here held that the first
three factors were a “tie” or a “very close call” despite already
having counted the public benefit in Morley’s favor. Morley X,
245 F. Supp. 3d at 78. In my view, this holding was legal error.
Nor does it make any difference that the CIA referred
Morley to NARA rather than denying his request outright.
Although the district court noted that Morley obtained some
The majority suggests that I am “conflating our prior decision
in Morley’s case and our prior decision in Davy.” Maj. Op. 13. Not
so. I recognize that our mandate in Davy IV does not by its express
terms apply to this case. Rather, Davy IV stands as legal precedent
that defines the limits of the district court’s discretion to award fees.
See Koon, 518 U.S. at 100. Hence, Davy IV is binding because it is
factually on all fours with Morley’s case with respect to factors two
and three. Indeed, neither the district court nor the majority attempts
to distinguish Davy IV in analyzing the second and third factors. See
Morley X, 245 F. Supp. 3d at 77-78 (citing Davy IV but failing to
discuss its facts or its holding); Maj. Op. 5 (citing Davy IV with “cf.”
signal and no accompanying explanation).
9

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benefit by securing documents from the CIA rather than
searching through NARA on his own, the record is clear that
only 113 (of the 524) documents produced were available
through NARA. Id. No amount of searching the public records
would have unearthed those 411 documents. Unlike the
plaintiff in Tax Analysts, who knew that the requested
documents eventually would become public, 845 F.2d at 31819, Morley had no way of knowing whether the files he sought
were available at NARA. See Davy IV, 550 F.3d at 1164 (Tatel,
J., concurring) (“Before suing, requesters in Davy’s position
have no idea what documents responsive to their FOIA requests
might contain because the agency has told them nothing.”).
In sum, factors two and three cannot be “close calls,” at
least not after Davy IV. Davy IV makes clear that factors two
and three unquestionably weigh in Morley’s favor and the
district court erred in concluding otherwise. Davy IV, 550 F.3d
at 1162.
C. Factor Four: Reasonableness
Finally, with regard to the fourth factor, “the heart of this
case,” Maj. Op. 5, the majority—mistakenly, in my view—
concludes that the CIA’s response to Morley’s request was
reasonable. The fourth factor considers whether the agency’s
opposition to disclosure “had a reasonable basis in law.” Tax
Analysts, 965 F.2d at 1096. It examines whether the agency
was “recalcitrant in its opposition to a valid claim or otherwise
engaged in obdurate behavior.” Davy IV, 550 F.3d at 1162
(quoting LaSalle Extension Univ. v. FTC, 627 F.2d 481, 486
(D.C. Cir. 1980)). And the burden is on the CIA to show “that
it had any colorable or reasonable basis for not disclosing the
material until after [the plaintiff] filed suit.” Id. at 1163.
In Morley II, we assessed the CIA’s response to Morley’s
FOIA request and found it lacking. Specifically, we reversed

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the district court’s summary judgment order and held that the
agency’s response was legally insufficient on seven separate
grounds. The majority discusses five in its opinion. It
acknowledges that the CIA: (1) missed the 20-day statutory
deadline to respond, Maj. Op. 7; (2) incorrectly referred Morley
to NARA rather than responding to his FOIA request itself,
Maj. Op. 7-11; (3) failed to search its operational files, Maj.
Op. 11; (4) submitted an incomplete Glomar response, Maj.
Op. 11-12; and (5) relied on an interpretation of Exemption 2
that was later overruled, Maj. Op. 12. It addresses these errors
of law seriatim and labels them “incorrect legally,” Maj. Op. 9,
but not “unreasonable.” To me, the CIA’s multiple flawed legal
positions suggests that it was “recalcitrant” in declining to
produce any documents before being sued. Davy IV, 550 F.3d
at 1162. At the least, the errors collectively undermine the
district court’s conclusion that the fourth factor “weighs
heavily against Morley.” Morley X, 245 F. Supp. 3d at 78
(emphasis added).
With respect to the CIA’s decision to refer Morley to
NARA instead of producing any documents, however, I find
the CIA’s—and the district court’s—positions entirely
unreasonable. In Tax Analysts, we held that “in response to a
FOIA request, an agency must itself make disclosable agency
records available to the public and may not on grounds of
administrative convenience avoid this statutory duty by
pointing to another public source for the information.” 845
F.2d at 1067 (emphasis in original). We reaffirmed the holding
in Morley II, declaring that “an agency has ‘withheld’ a
document under its control when, in denying an otherwise valid
request, it directs the requester to a place outside of the agency
where the document may be publicly available.” Morley II,
508 F.3d at 1119 (quoting Tax Analysts, 492 U.S. at 150).

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On its face, our holding in Tax Analysts (and the Supreme
Court’s endorsement thereof) should control this case. It is
undisputed that Morley made a valid FOIA request. It is
likewise undisputed that the CIA initially directed Morley to
“another public source for the information”—NARA—without
producing any of the documents he requested. Tax Analysts,
845 F.2d at 1067. Thus, the CIA did not “itself” disclose its
records to Morley. Id. Nonetheless, to bring this case within
the ambit of Tax Analysts, the majority reasons that “Congress
itself had provided ‘an alternative form of access’” to the
records. Maj. Op. 9 (emphasis added). But the Congress is not
the CIA and congressionally mandated access to documents is
not the same as agency access under FOIA. Simply put,
without statutory authorization, the CIA is not excused from its
FOIA obligations. Both the district court and the majority use
the JFK Act to support the reasonableness of the CIA’s initial
withholding. The JFK Act instructs executive agencies to
deliver documents related to JFK’s assassination to NARA for
publication. As the majority notes, however, the statute also
provides that “[n]othing in [the JFK] Act shall be construed to
eliminate or limit any right to file requests with any executive
agency or seek judicial review of the decisions pursuant” to
FOIA. JFK Act, Pub. L. 102-526, § 11(b). The majority
apparently reads this language to mean that the public may
“file” a FOIA request but an agency has no duty to collect and
produce documents it has already transferred to NARA. Maj.
Op. 10. If the JFK Act ensures the public’s right to “file” a
FOIA request, it necessarily preserves the agency’s duty to
respond to that request. The right to file means little if the
agency replies with nothing more than a letter. And we have
so noted: “[section] 11(b) . . . provides that the [JFK] Act does
not limit or eliminate any rights under FOIA.” Assassination
Archives & Research Ctr. v. DOJ, 43 F.3d 1542, 1544 (D.C. Cir.
1995) (emphasis added). Other circuits agree with this
common-sense interpretation of the JFK Act. See, e.g., Minier

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v. CIA, 88 F.3d 796, 802-03 (9th Cir. 1996) (“[W]e hold that
the JFK Act has no direct bearing on [a plaintiff’s] FOIA
request.”).
The CIA’s eventual document production here illustrates
the difference between FOIA and the JFK Act. When Morley
first made his request, neither he nor the CIA knew whether the
documents he requested had been transferred to NARA. As it
turns out, only 113 of the 524 documents were ever transferred.
Morley X, 245 F. Supp. 3d at 76. If not for Morley’s lawsuit,
the CIA never would have disclosed those non-transferred 411
documents. More to the point, neither statute justifies the
CIA’s withholding the documents. Under these facts, I believe
it was legal error to conclude that the CIA’s position was
reasonable. See Koon, 518 U.S. at 100.
In sum, I believe the district court erred on two levels: it
erred in evaluating each of the four factors individually and
abused its discretion in weighing them against one another.
Accordingly, this case does not call for “[d]eference piled on
deference.” Maj. Op. 11. It calls for an adherence to Davy IV
and our four earlier Morley opinions. Because I believe the
district court ignored our mandate and misapplied our
precedent, I would vacate the district court order a fifth time
and remand with instructions to award Morley the attorney’s
fees to which he is entitled.
Accordingly, I respectfully dissent.

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