Brayton v. Office of United States Trade Representative

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.

2

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,

3

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).

4

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

5

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,

6

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

7

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

8

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 fee-

entitlement 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

9

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. 110-

59, at 4 (2007) (“The bill clarifies that Buckhannon does not

10

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. 110-

45, 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).

11

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,

12

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

13

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.