254 F.3d 300 (D.C. Cir. 2001)
Mohamed Al-Fayed and Punch Limited, Appellantsv.Central Intelligence Agency, et al., Appellees
No. 00-5457
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 17, 2001Decided July 13, 2001

Appeal from the United States District Court  for the District of Columbia (No. 00cv02092)
Mark S. Zaid argued the cause and filed the briefs for  appellants.
Gregg P. Leslie, Lucy A. Dalglish, David Sobel, Arthur B.  Spitzer and Kate Martin were on the brief for amici curiae  Reporters Committee for Freedom of the Press, et al., in  support of appellants.
Thomas M. Bondy, Attorney, U.S. Department of Justice,  argued the cause for appellees.  With him on the brief were  Wilma A. Lewis, U.S. Attorney at the time the brief was  filed, and Mark B. Stern, Attorney, U.S. Department of  Justice.
Before:  Henderson, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
This case raises an issue of first  impression:  the standard of judicial review applicable to  agency denials of expedited processing under the Freedom of  Information Act (FOIA), 5 U.S.C. 552.  We conclude that  district courts must review such denials de novo, rather than  defer to agency determinations.  We further conclude that  the denials of expedition in this case survive de novo review  and, accordingly, we affirm the district court's refusal to  grant plaintiffs injunctive relief.


2
* The plaintiffs in this case are Mohamed Al Fayed and  Punch Limited, a British magazine of political satire owned  and published by Al Fayed.  They seek documents concerning events associated with the death of Diana Spencer,  Princess of Wales, and of Al Fayed's son, Dodi Al Fayed. Together with their driver, Henri Paul, the two died in an  automobile accident in Paris on August 31, 1997.  The French  government investigated the accident and concluded that it  was caused by Paul's intoxication and excessive speed.  First  Am. Compl. pp 14-15.


3
Plaintiffs allege that the National Security Agency (NSA)  may have secretly recorded Princess Diana's telephone conversations.  Id. p 63.  They also contend that following the  automobile accident, a former British intelligence officer provided French investigators with evidence that Paul had been  secretly employed by the British foreign intelligence service  ("MI6").  Id. p 18.  Plaintiffs further allege, "[u]pon information and belief," that in 1998, at the behest of the British government, the United States denied that former officer  entry into this country to tell his story.  Id. p 20.


4
Plaintiffs next claim that, later in 1998, Al Fayed was the  victim of an attempted fraud by Oswald LeWinter, a man  claiming connections to the Central Intelligence Agency  (CIA), who tried to sell Al Fayed fabricated documents  indicating that MI6 was involved in the automobile crash. After alerting the CIA and Federal Bureau of Investigation  (FBI), Al Fayed's representatives arranged to meet with  LeWinter in Vienna.  When LeWinter arrived, he was arrested and incarcerated by Austrian authorities.  Id. pp 24-42. In a post-complaint affidavit, plaintiffs allege that the United  States Attorney's Office for the District of Columbia promised  to prosecute those involved in LeWinter's fraudulent scheme,  but failed to do so.  Macnamara Aff. p 25.  They further  contend that the CIA and FBI may have been involved in  efforts to prevent those prosecutions.  Id.;  First Am. Compl. pp 51, 52.


5
In July and August 2000, plaintiffs filed FOIA requests  with ten federal agencies and agency components, seeking the  expedited release of documents relating to the abovedescribed events.1  Shortly thereafter, they filed a complaint  in the United States District Court for the District of Columbia, charging that the agencies had wrongfully withheld the  requested records.  See 5 U.S.C. 552(a)(4)(B).  Plaintiffs also filed a motion for a preliminary injunction directing the  agencies to expedite the processing of the FOIA requests. See id. 552(a)(6)(E).  In September 2000, the district court  denied the request for preliminary injunctive relief, Al-Fayed  v. CIA, No. 00-cv-2092 (D.D.C. Sept. 20, 2000), and plaintiffs  returned to the agencies to supplement the administrative  record and to seek expedition through administrative appeals. Two months later, after amending their complaint, plaintiffs  filed a second motion asking the court to issue a preliminary  injunction requiring expedited processing.  The court again  denied the motion.  Al-Fayed v. CIA, No. 00-cv-2092 (D.D.C.  Dec. 11, 2000) ("December Opinion").2


6
In its December 2000 opinion, the district court concluded  that none of the factors relevant to granting preliminary  relief pointed in plaintiffs' favor.  Plaintiffs could not show  that:  (1) they had a substantial likelihood of success on the  merits;  (2) they would suffer irreparable injury if the injunction were not granted;  (3) granting the injunction would not  injure other parties (for example, those requestors over whom  plaintiffs would take precedence if the injunction were issued);  or (4) the public interest would be furthered by the  injunction.  Id. at 4, 13-16.  The court focused primarily on  the first factor--plaintiffs' likelihood of success--and noted  that under FOIA, plaintiffs are entitled to expedited processing of their requests only if they demonstrate a "compelling  need" for expedition.  5 U.S.C. 552(a)(6)(E)(i)(I).  As a threshold matter, the court determined that it should not  review de novo the agencies' findings concerning "compelling  need," but rather should apply "an 'abuse of discretion' or  'arbitrary and capricious' standard of review."  December  Opinion at 6.  Applying that standard, the district court  concluded that the agencies did not abuse their discretion in  determining that there was no "compelling need" for expedited processing.  Id. at 13.3

II

7
Plaintiffs appeal the district court's December 2000 denial  of their motion for a preliminary injunction requiring expedited processing of their FOIA requests.  The only issue before  this court is whether those requests qualify for expedited  treatment under the statute.  Because the agencies have not  yet completed processing the document requests themselves,  the sufficiency of their searches for responsive documents, as  well as the merits of any exemptions from production they  might eventually claim, are not before us.


8
As the district court noted, in considering a plaintiff's  request for a preliminary injunction a court must weigh four  factors:  (1) whether the plaintiff has a substantial likelihood  of success on the merits;  (2) whether the plaintiff would  suffer irreparable injury were an injunction not granted;  (3)  whether an injunction would substantially injure other interested parties;  and (4) whether the grant of an injunction  would further the public interest.  See, e.g., Serono Labs.,  Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C. Cir. 1998).  We  "review the district court's weighing of the preliminary injunction factors under the abuse of discretion standard, and  its findings of fact under the clearly erroneous standard. [T]o the extent the district court's decision hinges on questions of law, however, our review is essentially de novo."  Id.  at 1318 (citations and internal quotations omitted).  On this  appeal, the parties principally dispute the first factor--whether plaintiffs have a substantial likelihood of success on the  merits.  For the reasons stated in the district court's opinion,  we agree that the other factors counsel against granting  plaintiffs relief.  See December Opinion at 14-16.  Accordingly, our decision regarding plaintiffs' likelihood of success on  the merits will effectively decide whether plaintiffs are entitled to a preliminary injunction.  See Serono Labs., Inc., 158  F.3d at 1326.


9
Plaintiffs raise two challenges to the district court's decision that they are unlikely to succeed on the merits.  First,  they argue that the court applied an improperly deferential  standard of review to the agencies' determinations that there  is no "compelling need" for expedited treatment.  Plaintiffs  claim that the court should have reviewed those determinations de novo--anew, without any deference to the agencies. Second, plaintiffs contend that there is in fact a "compelling  need" for expedited treatment, and that the court therefore  erred in denying them preliminary relief.  The Reporters  Committee for Freedom of the Press, joined by other public  interest organizations, has filed an amicus curiae brief supporting plaintiffs' contention that de novo review is required,  but taking no position as to whether expedited review is  warranted in this case.  We consider the appropriate standard of review--both for the district court and for this  court--in this Part, and the application of that standard to  plaintiffs' request for expedition in Part III.


10
* The standard of review to be applied by a district court to  agency expedition determinations is a question of law, which  this court must itself decide de novo.  Id. at 1318.  The  district court concluded that it should apply the deferential  standard set forth in the Administrative Procedure Act  (APA), which empowers a reviewing court to set aside agency  action only when it is "arbitrary, capricious, an abuse of  discretion, or otherwise not in accordance with law."  December Opinion at 8 (quoting 5 U.S.C. 706(2)(A)).  The APA,  however, "provides a default standard of judicial review ... where a statute does not otherwise provide a standard." Dickson v. Sec'y of Def., 68 F.3d 1396, 1404 n.12 (D.C. Cir.  1995);  see Workplace Health & Safety Council v. Reich, 56  F.3d 1465, 1467 (D.C. Cir. 1995).  In this case, FOIA sets  forth its own standard of judicial review, rendering the APA  standard inapposite.


11
In 1996, Congress amended FOIA to provide for expedited  processing of requests for agency records.  See Electronic  Freedom of Information Act Amendments of 1996, Pub. L.  104-231, 8, 110 Stat. 3048, 3051-52.  Pursuant to those  amendments, codified at paragraph 6(E) of 5 U.S.C. 552(a),  agencies are to promulgate regulations "providing for expedited processing of requests for records--(I) in cases in which  the person requesting the records demonstrates a compelling  need;  and (II) in other cases determined by the agency."  5  U.S.C. 552(a)(6)(E)(i).  Agencies are directed to "process as  soon as practicable any request for records to which [they  have] granted expedited processing."  Id. 552(a)(6)(E)(iii). The amendments further provide that an agency decision "to  deny ... a request for expedited processing ... shall be  subject to judicial review under paragraph (4), except that the  judicial review shall be based on the record before the agency  at the time of the determination."  Id.


12
The cross-referenced paragraph (4) is the provision that  authorizes judicial review of an agency's decision to withhold  records from a FOIA requestor.  It states in relevant part:


13
On complaint, the district court ... has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.  In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.


14
Id. 552(a)(4)(B) (emphasis added).  Although it is not absolutely clear that the cross-reference in paragraph 6(E) was intended to include paragraph (4)'s de novo standard of  review, that is surely the most straightforward reading of the  statute.  Indeed, that reading is virtually compelled by the  language of paragraph 6(E), which states that the denial of  expedition "shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the  record before the agency at the time of the determination." Id. 552(a)(6)(E)(iii) (emphasis added).  Because paragraph  (6)(E) directs that paragraph (4) shall govern review of  denials of expedition with only one exception, and because  that exception does not involve the de novo review mandated  by paragraph (4), the logical conclusion is that de novo review  is the proper standard for a district court to apply to a denial  of expedition.4


15
The government defends the deferential review employed  by the district court on three principal grounds.  First, it  argues that review limited to "the record before the agency at  the time of the determination," id., is a hallmark of deferential review under the APA.  But while that language plainly  instructs courts as to which record to review, and directs  them not to look to material submitted after the agency has  made its decision, it does not command courts to review that  record deferentially rather than de novo.  Indeed, that de  novo review is compatible with a limitation on the scope of the  record to be reviewed is confirmed by another paragraph of  FOIA.  That paragraph authorizes judicial review of agency  decisions regarding fee waivers for processing FOIA requests.  Id. 552(a)(4)(A)(vii).  Although Congress likewise  limited that review "to the record before the agency," it  nonetheless expressly provided that "the court shall determine the matter de novo."  Id.


16
Seizing upon this express provision for de novo review of  fee-waiver decisions, the government next argues that Congress must not have intended that de novo review apply to  decisions regarding expedition, else it would have expressly  said so--just as it did for fee waivers--rather than ambiguously cross-reference paragraph (4).  We disagree.  As discussed above, although the cross-reference is not absolutely  clear, it can hardly be called ambiguous.  Moreover, the  provision regarding expedited processing was added to FOIA in 1996.  At that time, the sections providing for de novo  review of decisions to deny fee waivers and to withhold  documents were already in place.  That being the case, it is  not surprising that Congress chose merely to cross-reference  an existing paragraph, rather than to restate the applicable  standard of review.5


17
Third, the government argues that courts should give deference to the agencies' determinations because the agencies  have particular expertise concerning which FOIA requests  merit expedition.  But even if the statute's language were not  dispositive with respect to the standard of review, this would  not be a case for deference to agency expertise.  FOIA  directs the agencies to provide expedited processing where a  requestor demonstrates "compelling need," id.  552(a)(6)(E)(i)(II), and there is no reason to believe that the  agencies have expertise on that subject.


18
As one part of its expertise argument, the government  contends that an agency is better positioned than a court to  assess the volume of other requests pending before the agency.  That is true, but irrelevant.  Nothing in the statute  or the legislative history suggests that "compelling need"  turns on the volume of other pending requests.  To the  contrary, FOIA provides its own definition of "compelling  need," a definition that includes no reference to the workload  of the agency:


19
For purposes of this subparagraph, the term "compelling need" means


20
(I) that a failure to obtain requested records on an expedited basis ... could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;  or


21
(II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.


22
5 U.S.C. 552(a)(6)(E)(v).  See also infra Part III (discussing legislative history).


23
Noting that the second branch of the above definition of  "compelling need" includes a requirement of "urgency to  inform the public," the government next argues that, because  agencies receive a wide range of FOIA requests, they have  expertise regarding the relative urgency of any particular  request.  But while each agency may be in a position to  assess the urgency of a request relative to that of other  requests it has previously received, no single agency is positioned to measure the urgency of a request relative to requests received throughout the government.  Because "compelling need," like other FOIA terms, sets a government-wide  rather than agency-specific standard, such agency-specific  "expertise" is of no significance.  See Tax Analysts v. IRS,  117 F.3d 607, 613 (D.C. Cir. 1997) ("The meaning of FOIA  should be the same no matter which agency is asked to  produce its records.").


24
Indeed, the government's expertise argument illuminates  the larger problem with its plea for deferential review.  Were  district courts required to defer to agency determinations of "compelling need," they would have to affirm disparate (albeit, reasonable) decisions reached by different agencies regarding the same request.  As the government agreed at oral  argument, however, Congress did not contemplate such a  result.  Indeed, it is precisely because FOIA's terms apply  government-wide that we generally decline to accord deference to agency interpretations of the statute, as we would  otherwise do under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  See, e.g.,  Tax Analysts, 117 F.3d at 613 (noting that "we will not defer  to an agency's view of FOIA's meaning" because "[n]o one  federal agency administers FOIA" and "[o]ne agency's interpretation of FOIA is therefore no more deserving of judicial  respect than the interpretation of any other agency");  Reporters' Comm. for Freedom of the Press v. United States  Dep't of Justice, 816 F.2d 730, 734 (D.C. Cir. 1987) (declining  to accord Chevron deference to Justice Department interpretation of FOIA exemptions because FOIA "applies to all  government agencies, and thus no one executive branch entity  is entrusted with its primary interpretation"), rev'd on other  grounds, 489 U.S. 749 (1989).  For the same reason, we  decline to permit district courts to defer to agency determinations of "compelling need."


25
As is true with respect to other FOIA provisions, the  provision for expedited processing authorizes an agency to  promulgate regulations to effectuate that provision.  5 U.S.C.  552(a)(6)(E)(i).  Although this mandate empowers each  agency to issue regulations setting forth the procedures by  which it will make expedition determinations,6 it does not  authorize an agency to offer its own definition of "compelling  need."  That term is defined by FOIA itself, and because the  definition applies across the government, district courts may not defer to any individual agency's effort to elaborate upon  that definition--whether through case-specific determinations  or through regulations.  See, e.g., Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1287 (D.C. Cir. 1983)  (declining to defer to an FDA regulation defining the meaning  of "trade secrets" under FOIA, because to do so "would  produce an intolerable situation in which different agencies  could adopt inconsistent interpretations of the FOIA").7

B

26
Having concluded that a district court must review de novo  an agency's denial of a request for expedition under FOIA,  there remains the question of what standard this court should  apply when reviewing the district court's own decision.  The  statute itself does not directly address the standard of appellate review.8  In the typical FOIA case concerning the with holding of requested documents, the appellate standard is  rarely in doubt.  In such cases, the district court normally  has decided an issue, such as the applicability of a claimed  FOIA exemption, on summary judgment, thereby reducing  the question on appeal to whether there is a genuine issue of  material fact regarding the exemption's applicability.  See,  e.g., Billington v. United States Dep't of Justice, 233 F.3d  581, 583-84 (D.C. Cir. 2000);  Summers v. Dep't of Justice,  140 F.3d 1077, 1079-80 (D.C. Cir. 1998).  Because the existence of a genuine issue of material fact is itself a question of  law, see Rich v. Dollar, 841 F.2d 1558, 1561 (11th Cir. 1988); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay  Kane, Federal Practice and Procedure 2720, at 331 (3d ed.  1998), we review such cases de novo, see Summers, 140 F.3d  at 1080.


27
In this case, however, the district court did not rule on a  motion for summary judgment, but rather ruled on plaintiffs'  motion for a preliminary injunction.  On appeal from such a  ruling, we review the district court's conclusions of law de  novo, but review its findings of fact only for clear error.  See  Serono Labs., Inc., 158 F.3d at 1318;  see also Schlefer v.  United States, 702 F.2d 233, 236 n.5 (D.C. Cir. 1983) (noting  that the court would have employed deferential rather than  de novo review had the district court's FOIA decision turned  on "resolution of a fact controversy" rather than summary  judgment);  1 James T. O'Reilly, Federal Information Disclosure 8:35, at 316-17 (3d ed. 2000) (noting that appellate  courts apply the "clearly erroneous" test in FOIA appeals  where "the issue is one of conflicting facts and competing  inferences").  The issue, then, is whether a district court's  determination of "compelling need" is a question of law or  fact.


28
As we discuss in Part III below, a number of elements go  into an analysis of whether "compelling need" exists.  Both plaintiffs and the government agreed at oral argument that  the ultimate conclusion will often rest on important underlying facts:  for example, the credibility of a claimant's allegations regarding governmental activity, the existence of a  threat to physical safety, or whether an issue is the subject of  current news coverage.  District court findings regarding  such factual matters are reviewed for clear error.  See Ornelas v. United States, 517 U.S. 690, 699 (1996);  see also Cooter  & Gell v. Hartmarx Corp., 496 U.S. 384, 402 (1990) (noting  that "[i]ssues involving credibility are normally considered  factual matters").  The ultimate question of whether a plaintiff has demonstrated "compelling need," however, involves  the application of a legal standard to a set of underlying facts,  and hence may perhaps best be classified as a mixed question  of law and fact.  See Pullman-Standard v. Swint, 456 U.S.  273, 289-90 n.19 (1982).  The appropriate standard of appellate review for such mixed questions is often difficult to  determine.  Id.  Compare Ornelas, 517 U.S. at 696-99 (holding that district court findings of "reasonable suspicion" and  "probable cause" should be reviewed de novo), with Buford v.  United States, 121 S. Ct. 1276, 1279-81 (2001) (reviewing  deferentially a district court's decision as to whether prior  convictions are "related" under the Sentencing Guidelines),  and Cooter & Gell, 496 U.S. at 399-405 (applying unitary  abuse-of-discretion standard to review of a district court's  imposition of sanctions under Federal Rule of Civil Procedure  11).


29
For two reasons, we need not decide whether our review of  the district court's decision should be deferential or de novo  in order to dispose of the present case.  First, the district  court did not conduct a de novo review to determine "compelling need," but rather deferred to the views of the agencies. See, e.g., December Opinion at 7 ("[T]he Court will not apply  de novo review to the agencies' determinations at issue in this  case.").9  Under these circumstances, were we to defer to the district court, we would effectively be deferring to the agencies;  thus, no court would have performed the de novo review  that the statute requires at least the district court to perform. Second, as discussed below, we would reach the same conclusion as that reached by the district court--that plaintiffs have  failed to demonstrate "compelling need"--regardless whether  we review the court's determination deferentially or de  novo.10  Accordingly, we will analyze the case using the  standard most favorable to the plaintiffs--de novo review-and leave for another day the question of which standard this  court should generally apply when reviewing a district court's  determination of "compelling need."

III

30
We now turn to an examination of plaintiffs' claim that they  have "demonstrate[d] a compelling need" for the expedited  processing of their FOIA requests.  5 U.S.C.  552(a)(6)(E)(i)(I).  As noted above, FOIA's definition of  "compelling need" has two branches:  "(I) that a failure to  obtain requested records on an expedited basis ... could  reasonably be expected to pose an imminent threat to the life  or physical safety of an individual;  or (II) with respect to a  request made by a person primarily engaged in disseminating  information, urgency to inform the public concerning actual  or alleged Federal Government activity."  Id.  552(a)(6)(E)(v).  Plaintiffs claim "compelling need" only  under the second branch, and the government does not  contest that at least one of the plaintiffs, Punch Limited, qualifies as an entity "primarily engaged in disseminating  information."  Accordingly, the remaining question is whether plaintiffs have demonstrated the requisite "urgency to  inform."


31
The relevant legislative history, to which both the government and appellants refer, offers considerable assistance in  interpreting "urgency to inform."  As an overarching principle, the legislative history declares that "[t]he specified categories for compelling need are intended to be narrowly  applied."  H.R. Rep. No. 104-795, at 26 (1996).  Congress'  rationale for a narrow application is clear:  "Given the finite  resources generally available for fulfilling FOIA requests,  unduly generous use of the expedited processing procedure  would unfairly disadvantage other requestors who do not  qualify for its treatment."  Id.  Indeed, an unduly generous  approach would also disadvantage those requestors who do  qualify for expedition, because prioritizing all requests would  effectively prioritize none.


32
The legislative history provides the following, more specific  guidance as well:


33
The standard of "urgency to inform" requires that the information requested should pertain to a matter of a current exigency to the American public and that a reasonable person might conclude that the consequences of delaying a response to a FOIA request would compromise a significant recognized interest.  The public's right to know, although a significant and important value, would not by itself be sufficient to satisfy this standard.


34
Id.  In addition, the statute requires that the request concern  "actual or alleged Federal Government activity."  5 U.S.C.  552(a)(6)(E)(v)(II).  Thus, in determining whether requestors have demonstrated "urgency to inform," and hence "compelling need," courts must consider at least three factors:  (1)  whether the request concerns a matter of current exigency to  the American public;  (2) whether the consequences of delaying a response would compromise a significant recognized  interest;  and (3) whether the request concerns federal government activity.  The legislative history also indicates that "[t]he credibility of a requestor" is a relevant consideration. H.R. Rep. No. 104-795, at 26.


35
Plaintiffs' claim of urgency founders upon the first of these  factors.  Their complaint and request for expedition focuses  on records relating to the deaths of Princess Diana and Dodi  Al Fayed in a 1997 automobile accident, and specifically on  records relating to allegations that the NSA taped the  Princess' telephone calls, that in 1998 the United States  denied entry to an informant with information about the  involvement of MI6 in the accident, and that in 1998 Mohamed Al Fayed was the victim of an attempted fraud. Assuming the credibility of these allegations, which the government disputes, plaintiffs have not demonstrated that their  FOIA requests relate to "a matter of a current exigency to  the American public."  Id.  All of the events and alleged  events occurred two to three years before plaintiffs made  their requests for expedited processing.  Although these topics may continue to be newsworthy, none of the events at  issue is the subject of a currently unfolding story.


36
Plaintiffs contend that at least one of their requests--that  for documents regarding the fraud scheme--does not merely  concern a subject of historical interest, but extends to events  that occurred just prior to the filing of their amended complaint.  At that time, the United States Attorney's Office for  the District of Columbia advised Al Fayed's representatives  that it had insufficient evidence to prosecute participants in  the attempted fraud.  Plaintiffs allege that by declining to  prosecute, the Office broke its promise to those representatives, perhaps due to pressure from the CIA and FBI.  Again  putting the credibility of these disputed allegations to one  side, plaintiffs' claims do not meet the standard of "urgency  to inform."  Even if the information sought is properly characterized as "current," it cannot fairly be said to concern a  matter of "exigency to the American public."  There is no  evidence in the record11 that there is substantial interest, either on the part of the American public or the media, in this  particular aspect of plaintiffs' allegations.  Indeed, the record  does not contain any news reports on the subject of the  United States Attorney's alleged refusal to prosecute, other  than reports on the press conference plaintiffs held to announce the filing of their complaint.  See Pls. Ex. 12 (J.A.  324-329);  see also December Opinion at 11 n.4.  Such evidence is insufficient to demonstrate that the request concerns  a matter of current exigency.  Moreover, plaintiffs have not  demonstrated any "significant adverse consequence" that  would result if their request for expedited processing of these  or any other documents were denied, and they therefore  received the documents later rather than sooner.  See H.R.  Rep. No. 104-795, at 26 ("By requiring a 'compelling need,' the  expedited access procedure is intended to be limited to circumstances in which a delay in obtaining information can  reasonably be foreseen to cause a significant adverse consequence to a recognized interest.").12

IV

37
We conclude that a district court must apply de novo  review to agency denials of expedited processing under  FOIA.  In this case, the agencies' denials survive de novo  review because plaintiffs have not demonstrated a "compelling need" for the requested records.  We do not decide  whether plaintiffs will ultimately be entitled to the documents  they seek--only that the agencies are not required to give plaintiffs' requests priority over those made by other media  representatives or the public at large.  The order of the  district court, denying plaintiffs' motion for preliminary injunctive relief, is


38
Affirmed.



Notes:


1
  The ten were:  the CIA, NSA, FBI, Department of State,  Department of Defense, Defense Intelligence Agency, Department  of Justice, Executive Office for United States Attorneys, Immigration and Naturalization Service, and United States Secret Service. Plaintiffs' brief advises that since the filing of this appeal, one of the  agencies has been voluntarily dismissed from the case and five more  have completed processing plaintiffs' underlying document requests. Reply Br. for Pls. at 1 n.1.  The decisions of those six agencies,  therefore, are no longer subject to appeal.  See 5 U.S.C.  552(a)(6)(E)(iv) ("A district court of the United States shall not  have jurisdiction to review an agency denial of expedited processing  of a request for records after the agency has provided a complete  response to the request.").  The remaining appellees are the CIA,  NSA, FBI, and Department of State.


2
  Plaintiffs' motion was styled as a "Motion for a Temporary  Restraining Order and/or Preliminary Injunction, Or, in the Alternative, to Compel Expedited Processing."  The district court treated the motion as one seeking a preliminary injunction, noting that  the same factors apply in evaluating requests for preliminary  injunctions and temporary restraining orders, see December Opinion at 4 n.2, and that plaintiffs "offer no additional basis which  justifies an order compelling expedited processing," id. at 16. Plaintiffs still have not articulated how an "order to compel" would  differ from their requested injunctive relief.  In any event, because  the grant of any form of relief turns on whether plaintiffs can meet  the FOIA criteria for expedited processing, we will treat all three of  their requests as essentially equivalent.


3
  In a footnote, the court stated that it would have reached the  same conclusion even if it had applied a de novo standard.  December Opinion at 13 n.6;  see infra note 9.


4
  We note that although paragraph (4) also provides that where  the agency withholds records, "the burden is on the agency to  sustain its action," 5 U.S.C. 552(a)(4)(B), paragraph (6)(E) expressly provides that it is "the person requesting the records" who  must "demonstrat[e] a compelling need" for expedition, id.  552(a)(6)(E)(i)(I);  see also H.R. Rep. No. 104-795, at 25 (1996)  ("The requestor would bear the burden of showing that expedition  is appropriate.").  At oral argument, plaintiffs agreed that it is their  burden to demonstrate "compelling need."


5
  It is true that Congress could also have used a crossreference when it added the provision for de novo review of feewaiver decisions in 1986, because the provision regarding review of  withholding decisions was already in place at that time.  See Pub.  L. No. 99-570, 1803, 100 Stat. 3207, 3207-49, 3207-50 (1986)  (codified at 5 U.S.C. 552(a)(4)(A)).  But the decision of the 1986  Congress to restate the standard tells us nothing about the intentions of the 1996 Congress in using a cross-reference.


6
  See 5 U.S.C. 552(a)(6)(E)(ii) ("[R]egulations under this subparagraph must ensure--(I) that a determination of whether to  provide expedited processing shall be made, and notice of the  determination shall be provided to the person making the request,  within 10 days after the date of the request;  and (II) expeditious  consideration of administrative appeals of such determinations of  whether to provide expedited processing.").


7
  We note one caveat concerning deference to agency FOIA  regulations.  FOIA directs each agency to promulgate regulations  providing for expedited processing, not only "in cases in which the  person requesting the records demonstrates a compelling need," but  also "in other cases determined by the agency."  5 U.S.C.  552(a)(6)(E)(i) (emphasis added).  According to the legislative  history, the latter provision gives an agency "latitude to expand the  criteria for expedited access" beyond cases of "compelling need." H.R. Rep. No. 104-795, at 26.  A regulation promulgated in response to such an express delegation of authority to an individual  agency is entitled to judicial deference, see United States v. Mead  Corp., 121 S. Ct. 2164, 2171 (2001), as is each agency's reasonable  interpretation of its own such regulations, see United States v.  Cleveland Indians Baseball Co., 121 S. Ct. 1433, 1444-45 (2001). We have examined the defendant agencies' FOIA regulations applicable to this case, and conclude that to the extent those regulations  expand the criteria for expedited processing beyond "compelling  need," the agencies reasonably determined that plaintiffs' requests  did not meet the expanded criteria.


8
  The cross-referenced judicial review provision states that  "[o]n complaint, the district court ... has jurisdiction to enjoin the  agency....  In such a case the court shall determine the matter de  novo...."  5 U.S.C. 552(a)(4)(B) (emphasis added).  Although it  could be argued otherwise, the term "the court" in the second  sentence appears to refer to the district court mentioned in the  first.  See generally S. Rep. No. 89-813, at 8 (1965) (explaining the  importance of a de novo proceeding in the district court).


9
  Although the district court stated in a footnote that it would  reach the same conclusion even if it were to apply a de novo  standard, its rationale was that plaintiffs' requests had failed to  meet "the requisite agency criteria for expedited processing."  December Opinion at 13 n.6.  As discussed above, the various agencies' criteria should play no role in a de novo review.


10
  Indeed, this case is so clear that, even reviewed deferentially,  any other conclusion would constitute an abuse of discretion. Hence, there is no reason to remand the case for redetermination  by the district court.  Cf. United States v. Fenner, 147 F.3d 360,  363 (4th Cir. 1998) ("We need not remand to permit the district  court to exercise its discretion to depart if its decision to do so on  remand would constitute an abuse of discretion.").


11
  See 5 U.S.C. 552(a)(6)(E)(iii) ("[J]udicial review shall be  based on the record before the agency at the time of the determination.").


12
  In their second request for injunctive relief from the district  court, plaintiffs suggested that their request was urgent because  they " 'question[ed] the integrity and conduct of federal government  officials' who 'with the forthcoming change of a presidential administration' " might soon leave the government.  December Opinion at  15 n.8 (quoting Zaid Aff. pp 10-11).  On the record before the  agency, the district court properly regarded this argument as  speculative, both because there was no evidence that plaintiffs'  allegations "involve[d] federal employees who will not remain with  the government," and because the claim that public officials cannot  be held accountable "if they are no longer with the government is  conjectural."  Id.


