Davy v. C.I.A.

• Decision Date: 19 December 2008
• Docket Number: No. 07-5200.,07-5200.
• Citation: 550 F.3d 1155
• Parties: William A. DAVY, Jr., Appellant v. CENTRAL INTELLIGENCE AGENCY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

550 F.3d 1155

William A. DAVY, Jr., Appellant v. CENTRAL INTELLIGENCE AGENCY, Appellee.

No. 07-5200.

United States Court of Appeals, District of Columbia Circuit.

Argued September 10, 2008.

Decided December 19, 2008.

Appeal from the United States District Court for the District of Columbia (No. 00cv02134).

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

Meredith Fuchs, Lucy A. Dalglish, and Gregg P. Leslie were on the brief for amicus curiae Reporters Committee for Freedom of the Press in support of appellant.

Alan Burch, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Charlotte A. Abel, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS and TATEL, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Circuit Judge TATEL.

Dissenting opinion by Senior Circuit Judge RANDOLPH.

ROGERS, Circuit Judge:

This is the second time William Davy has appealed the denial of his request for an award of attorney's fees and costs under the Freedom of Information Act ("FOIA"). Davy first appealed the district court's finding that he was ineligible, and this court reversed, holding that he was eligible as a prevailing party and remanding the case for the district court to determine whether Davy was entitled to fees upon applying a familiar four-factor test. Davy v. CIA ("Davy I"), 456 F.3d 162 (D.C.Cir.2006). On remand the district court again denied fees. This court must reverse and remand again. Because the district court's findings on some factors are unsupported by the record, and the record indicates that Davy is the quintessential requestor of government information envisioned by FOIA, he is entitled to an award of fees and costs, and upon remand the district court shall enter an appropriate order.

I.

The details of Davy's two FOIA requests are set forth in Davy I. Suffice it to say, in 1999, six years after Davy, acting pro se, filed his first FOIA request, the agency responded by refusing disclosure, stating that it could neither confirm nor deny the existence of responsive records due to national security reasons, citing FOIA exemptions (1) and (3). 456 F.3d at 163. Davy obtained a lawyer but no relief by administrative appeal and filed suit against the agency. The district court dismissed his complaint with leave to amend on the ground that it was based on a FOIA request made in 1993 and so was untimely. Davy then filed a second FOIA request in November 2000, renewing his initial request and seeking additional documents. In December 2000, having received no response from the agency, Davy amended his complaint to focus on his second FOIA request. On May 4, 2001, the district court entered an order adopting the parties' agreement on a schedule for the agency to produce documents pursuant to Davy's second FOIA request. Thereafter the agency produced on schedule some documents but not others and moved for summary judgment. Davy also moved for summary judgment. After the agency filed a superseding motion for summary judgment, the district court granted the agency's motion.

Davy thereafter timely filed a motion for attorney's fees under 5 U.S.C. § 552(a)(4)(E),¹ which the district court denied. On appeal, this court held that Davy had substantially prevailed and was therefore eligible for fees and remanded the case so that the district court could, in the first instance, apply a four-factor test for determining entitlement. Davy I, 456 F.3d at 166-67. Davy now appeals the district court's finding on remand that he was not entitled to an award of fees. Our review of the district court's application of the four-factor test is for abuse of discretion. Tax Analysts v. U.S. Dep't of Justice, 965 F.2d 1092, 1094 (D.C.Cir.1992); see generally Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C.Cir.1995).

II.

This court, drawing on the Senate and House Committee reports for FOIA and its amendments,² explained long ago that the provision for attorney's fees "was not enacted to provide a reward for any litigant who successfully forces the government to disclose information it wished to withhold," but instead "had a more limited purpose — to remove the incentive for administrative resistance to disclosure requests based not on the merits of exemption claims, but on the knowledge that many FOIA plaintiffs do not have the financial resources or economic incentives to pursue their requests through expensive litigation." Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 711 (D.C.Cir.1977) (citing S.REP. NO. 93-854, at 17). The court embraced the view that a distinction is to be drawn between the plaintiff who seeks to advance his private commercial interests and thus needs no incentive to file suit, and a newsman who seeks information to be used in a publication or the public interest group seeking information to further a project benefitting the general public. Id. at 712-13 (quoting S.REP. NO. 93-854, at 19). The court observed in conclusion that:

The touchstone of a court's discretionary decision under section 552(a)(4)(E) must be whether an award of attorney fees is necessary to implement the FOIA. A grudging application of this provision, which would dissuade those who have been denied information from invoking their right to judicial review, would be clearly contrary to congressional intent.

Id. at 715; see also LaSalle Extension Univ. v. FTC, 627 F.2d 481, 484 (D.C.Cir. 1980).

With this understanding, the court has directed the district court to consider at least four criteria in determining whether a substantially prevailing FOIA litigant is entitled to attorney's fees: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the agency's withholding of the requested documents. Tax Analysts, 965 F.2d at 1093-94; see also S.REP. NO. 93-854 at 19. No one factor is dispositive, although the court will not assess fees when the agency has demonstrated that it had a lawful right to withhold disclosure. See Chesapeake Bay Found. v. USDA ("Chesapeake I"), 11 F.3d 211, 216 (D.C.Cir.1993), abrogated in part on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Resources, 532 U.S. 598, 601-02, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).

The first factor assesses "the public benefit derived from the case," Tax Analysts, 965 F.2d at 1093, and requires consideration of both the effect of the litigation for which fees are requested and the potential public value of the information sought, see Chesapeake Bay Found. v. USDA ("Chesapeake II"), 108 F.3d 375, 377 (D.C.Cir.1997); Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C.Cir.1995); Tax Analysts, 965 F.2d at 1093-94. The district court found that "Davy's FOIA request and subsequent litigation were intended to compel disclosure of information relating to the activities of a government agency (the CIA) in relation to a significant historical event," and thus that this factor favors Davy. There can be little question that this factor favors Davy.

The information Davy requested — about individuals allegedly involved in President Kennedy's assassination — serves a public benefit. See, e.g., Allen v. CIA, 636 F.2d 1287, 1300 (D.C.Cir.1980), overruled on other grounds by Founding Church of Scientology v. Smith, 721 F.2d 828, 830 (D.C.Cir.1983). At least one of the requested documents was not previously available to the public, and the agency did not challenge Davy's description of the released documents as providing "important new information bearing on the controversy over former [District Attorney Jim] Garrison's contention that the CIA was involved" in the assassination plot. Davy Decl. ¶ 2. Nothing in the record indicates that the releases, which occurred only after the May 4, 2001 order of the district court, were not a fruit of Davy's litigation; despite Davy's second FOIA request, the agency did not turn over any documents to him until after he filed suit. As this court stated in Davy I, it was the district court's disclosure-schedule order that "provide[d] Davy with the precise relief his request sought." 456 F.3d at 165.

The agency's position — that the district court erred by failing to focus on the value of the litigation — presents a variation on its position, rejected in Davy I, that Davy did not "substantially prevail" in his litigation and so was not eligible for fees. Davy I, 456 F.3d at 166. Because nothing in the record indicates that Davy would have received the information without filing suit, the district court's consideration of the value of the information sought necessarily entailed consideration of the value of the litigation that led to the disclosure of that information. The cases on which the agency relies are inapposite, involving a pre-litigation offer of release in Chesapeake II, 108 F.3d at 377, or litigation that produced only faster disclosure of publicly available information in Tax Analysts, 965 F.2d at 1094, or establishment of a legal precedent defining "public interest" in Cotton, 63 F.3d at 1120. The fact that some of the material turned over to Davy concerns an event of national importance and is newly released is a key distinction between this case and the litigation at issue in Tax Analysts.

Although the district court's determination that the first factor weighed in Davy's favor was not an abuse of discretion, we reach a different conclusion regarding its determination of the other factors. The second and third factors, which are often considered together, assess whether a plaintiff has "sufficient private incentive to seek disclosure" without attorney's fees. See Tax Analysts, 965 F.2d at 1095. The second factor considers the commercial benefit to the plaintiff, while the...