Brayton v. Office of The United States Trade Representative, 09–5402.

• Decision Date: 19 April 2011
• Docket Number: No. 09–5402.,09–5402.
• Citation: 395 U.S.App.D.C. 155,641 F.3d 521
• Parties: Ed BRAYTON, Appellantv.OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

641 F.3d 521

395 U.S.App.D.C. 155

Ed BRAYTON, Appellant

v.OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, Appellee.

No. 09–5402.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 21, 2010.Decided April 19, 2011.

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.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, 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, 15,316, 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 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 de-restrict 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 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. Babbitt, 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, 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 some relief by [a] court.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (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, 121 S.Ct. 1835).

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...