 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 25, 2013              Decided June 18, 2013

                       No. 12-5032

                   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 Peterson, 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: KAVANAUGH, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.

    Opinion for the Court filed PER CURIAM.

    Concurring opinion filed by Circuit Judge KAVANAUGH.
                               2

     PER CURIAM:        Jefferson Morley submitted a Freedom
of Information Act request to the CIA for records related to
CIA officer George E. Joannides. Morley believed the
records might shed light on the assassination of President
John F. Kennedy because Joannides had served as the CIA
case officer “in charge of” a Cuban group whose officers had
contact with Lee Harvey Oswald in the months before the
assassination. After not obtaining documents from the CIA,
Morley filed a FOIA suit and as a result subsequently
received some documents from the CIA. Morley then sought
attorney’s fees as a substantially prevailing party. See 5
U.S.C. § 552(a)(4)(E)(i). The District Court applied the four-
factor standard that this Circuit has set forth for considering a
substantially prevailing party’s entitlement to attorney’s fees
in FOIA cases. See Morley v. CIA, 828 F. Supp. 2d 257, 261
(D.D.C. 2011). Those four factors are: (1) the public benefit
derived from the case, (2) the commercial benefit to the
requester, (3) the nature of the requester’s interest in the
information, and (4) the reasonableness of the agency’s
conduct. Applying those four factors, the District Court
determined that Morley should not receive attorney’s fees. Id.

     This Court recently elaborated on one of those four
factors, the public-benefit factor, which looks to the public
benefit derived from the plaintiff’s FOIA suit. See Davy v.
CIA, 550 F.3d 1155 (D.C. Cir. 2008). Davy, like this case,
concerned a request for records related to President
Kennedy’s assassination. In Davy, this Court said that
records “about individuals allegedly involved in President
Kennedy’s assassination[] serve[] a public benefit.” Id. at
1159. We also noted that the standard for entitlement to
attorney’s fees does not “disqualify plaintiffs who obtain
information that, while arguably not of immediate public
interest, nevertheless enables further research ultimately of
                              3
great value and interest, such as here the public understanding
of a Presidential assassination.” Id. at 1162 n.3. We
concluded, moreover, that “a balancing of the factors can only
support the conclusion that Davy is entitled to an award of
attorney’s fees.” Id. at 1163.

    In this case, the District Court did not consider the Davy
Court’s analysis of the public-benefit factor. See Morley, 828
F. Supp. 2d at 262-64. We therefore vacate and remand for
the District Court to apply the four-factor standard in a
manner consistent with Davy. We take no position here on
whether the District Court should award fees.

                                                   So ordered.
     KAVANAUGH, Circuit Judge, concurring: The Freedom
of Information Act provides: “The court 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). In determining whether a substantially
prevailing FOIA plaintiff is entitled to attorney’s fees, this
Court has long applied a four-factor standard that looks to (1)
the public benefit derived from the case, (2) the commercial
benefit to the requester, (3) the nature of the requester’s
interest in the information, and (4) the reasonableness of the
agency’s conduct. See Cuneo v. Rumsfeld, 553 F.2d 1360,
1365 (D.C. Cir. 1977); see also Nationwide Building
Maintenance, Inc. v. Sampson, 559 F.2d 704, 714 (D.C. Cir.
1977).

     We should ditch the four-factor standard. As Judge
Randolph has cogently explained, the four factors have no
basis in the statutory text. See Davy v. CIA, 550 F.3d 1155,
1166 (D.C. Cir. 2008) (Randolph, J., dissenting); Burka v.
HHS, 142 F.3d 1286, 1293-94 (D.C. Cir. 1998) (Randolph, J.,
concurring).      And Congress’s decision not to include the
four factors in the statutory text appears to have been
deliberate: The four factors were in the original Senate bill
addressing FOIA attorney’s fees, but the final bill did not
include them. To be sure, the factors were mentioned in a
Senate committee report, but the Supreme Court recently
reiterated – in an eight-Justice opinion by Justice Kagan in a
FOIA case – that we should heed the statutory text of FOIA,
not committee reports. See Milner v. Department of the Navy,
131 S. Ct. 1259, 1267 (2011). In short, the text of FOIA does
not require this four-factor standard.

    Rather than mandating a four-factor standard, FOIA
grants courts discretion to determine when attorney’s fees
should be awarded. It is not inappropriate for courts to flesh
out that discretion with specific rules or standards that are
                               2
rational and consistent with the structure and purposes of
FOIA. But the four-factor standard adopted by this Court is
arbitrary and inconsistent with the structure and purposes of
FOIA.

     FOIA is an equal-opportunity disclosure statute. For
disclosure purposes, FOIA treats all requests and requesters
the same – no matter the identity of the requesters, the
specific benefit that might be derived from the documents, or
the requesters’ overt or subtle motives. See 5 U.S.C.
§ 552(a)(3)(A) (“each agency . . . shall make the [requested]
records promptly available to any person”) (emphasis added).
With that backdrop, three of the four factors in the four-factor
standard for attorney’s fee awards make little sense in the
FOIA context – namely, the three factors that require
evaluation of the public benefit derived from the case, the
commercial benefit to the requester, and the nature of the
requester’s interest. Those three factors incentivize and
reward only certain kinds of FOIA requests and requesters,
notwithstanding that FOIA deliberately renders the nature of
the request and the identity of the requester irrelevant to
whether a request should be granted. Those three factors are
therefore in tension with the basic structure and purposes of
FOIA.

    Apart from the three factors’ basic incompatibility with
FOIA’s structure and purposes, the three factors in application
generate additional problems. With respect to the first factor,
the public benefit from the case, how can courts know
whether some disclosures of government documents benefit
the public more than others? How does a judge evaluate
“public benefit” in a principled way? Doesn’t this factor
inevitably devolve into what the judge subjectively thinks is
important, rather than an objective determination? And what
about cases where the degree of public benefit may become
                               3
apparent only years later, after the litigation has ended? After
all, information sometimes becomes meaningful only when
later pieced together with other information. And more
broadly, even if the information is of value only to a small
group or segment of the public, why treat those citizens as
second class in determining who gets attorney’s fees? Put
simply, the public-benefit factor is riddled with arbitrariness
in addition to contravening the basic equality-of-requester
principle embodied in FOIA. See Burka, 142 F.3d at 1293-94
(Randolph, J., concurring).

     The second and third factors – the commercial benefit to
the requester and the nature of the requester’s interest – are
similarly flawed. Courts have stated that the requester’s
potential commercial benefit from the information counsels
against a fee award. But no business is a bottomless well, and
that is especially true of small businesses and individual
proprietors. And if attorney’s fees are not available, some
businesses presumably will not litigate some FOIA disputes
that they might otherwise have litigated. Yet FOIA doesn’t
prioritize certain kinds of requests or requesters over others.
Moreover, the case law has drawn an odd distinction between
an ordinary business’s commercial interests (which count
against an award of fees) and a news organization’s
commercial interests (which do not count against an award of
fees). But one of the broad purposes of FOIA was to enable
all citizens to directly access government information without
having to rely on filters. So why penalize non-media
businesses that directly seek more information about how the
government is carrying out its responsibilities? And to add a
further complication, who qualifies and doesn’t qualify as a
news organization today? In short, the second and third
factors also rest on arbitrary and ill-considered distinctions.
See Burka, 142 F.3d at 1293-94 (Randolph, J., concurring).
                               4
     When taken together, these factors cause even more
problems for FOIA plaintiffs and for the courts. The factors
are so vague and malleable that they provide very little
guidance to district courts. That leads to unpredictable and
inconsistent fees results from case to case and judge to judge.
And that unpredictability undermines whatever incentive the
four-factor standard is supposed to create in the first place for
plaintiffs with meritorious FOIA claims. In light of the
uncertainty, how can would-be FOIA plaintiffs count on fees
even if they have a meritorious claim?

     To reiterate, if FOIA required courts to consider these
four factors, we would have to make the best of it. But FOIA
does not so require. The courts have adopted the factors on
our own. In my view, we should stop relying on these
atextual factors and stop discriminating against FOIA
requesters’ fee requests based on a necessarily ill-informed
perception of public benefit and an arbitrary assessment of the
nature of the requester’s interests. Cf. Sebelius v. Cloer, No.
12-236, slip op. at 10 (U.S. 2013) (an interpretation of an
attorney’s fees provision should not be “inconsistent with the
goals of the fees provision”); Martin v. Franklin Capital
Corp., 546 U.S. 132, 139-40 (2005) (“When applying fee-
shifting statutes, we have found limits in the large objectives
of the relevant Act . . . .”) (internal quotation marks omitted).

     We can do better. In an appropriate case, I think the
Court should jettison the four-factor standard and adopt the
rule from Newman, where the Supreme Court construed a
similarly worded civil rights fees statute and held that
prevailing plaintiffs should receive attorney’s fees – with only
a very narrow exception for “special circumstances” such as
bad faith by a prevailing plaintiff. See Newman v. Piggie
                               5
Park Enterprises, Inc., 390 U.S. 400, 402 (1968). 1 A
Newman-style rule for FOIA fee awards would be clear and
predictable, would treat FOIA requests and requesters
equally, and would incentivize would-be FOIA plaintiffs with
meritorious claims. As a narrower alternative, albeit one not
as favorable to FOIA plaintiffs as the Newman rule, we could
simply continue to use the one factor from the current four-
factor standard that makes some sense in the FOIA context:
the reasonableness of the agency’s conduct. That factor
makes some sense because it discourages a federal agency
from using its superior administrative and litigation resources
to unfairly wear down meritorious FOIA plaintiffs. Under
that approach, if the district court were to find that the agency
acted unreasonably in withholding documents or otherwise
acted unreasonably during the litigation, the district court
would award attorney’s fees to a substantially prevailing
plaintiff. Otherwise, the district court would not award fees. 2

     Either of those two alternatives would be clear, simple,
predictable, efficient, and consistent with the overarching
structure and purposes of the statute – characteristics that
courts should strive for when deciding cases and that are
sorely lacking in the current four-factor standard.


    1
        Notably, a Senate committee report cited the statute
construed in Newman as the model for FOIA attorney’s fee awards.
See S. REP. NO. 93-854, at 17-18 (1974). Of course, the same
Senate committee report elsewhere listed the four factors. Cf.
ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL
COURTS AND THE LAW 36 (1997) (using legislative history can be
like picking out your friends at a party).
     2
        That factor is substantially the same as the standard for
attorney’s fees under the Equal Access to Justice Act. See 28
U.S.C. § 2412(d)(1)(A); Burka, 142 F.3d at 1293-94 (Randolph, J.,
concurring).
                               6
     It’s tempting to think that we should leave well enough
alone given that we have applied the four-factor standard
since our 1977 decision in Cuneo. Two points together
convince me that inertia is not the right answer. First, Justice
Kagan’s majority opinion for the Supreme Court in Milner
recently rejected a similarly atextual 30-year-old FOIA
precedent from this Court. See 131 S. Ct. at 1267. The
Supreme Court emphatically concluded that it did not matter
that this Court had applied a contrary interpretation for three
decades. Id. at 1268. The obvious lesson to be drawn from
Milner is that we should not reflexively cling to FOIA
decisions that were decided on the basis of legislative history
during an era when statutory text was less central to statutory
interpretation. Second, and just as important, the four-factor
standard causes continuing real-world problems – among
other things, drawing arbitrary and unfair distinctions among
FOIA requesters and requests, and generating satellite
litigation that is wasteful and unnecessary. This case, which
is now going back for a second round in the District Court, is
a good exhibit of wasteful and unnecessary satellite litigation.
Under a Newman approach, Morley would already have his
fees, and this litigation would have long since concluded.

     As a three-judge panel, we of course have to adhere to
the four-factor standard set forth in our precedents. Applying
that four-factor standard, I accept the Court’s decision today
to vacate and remand in light of our prior decision in Davy.
But the en banc Court has the authority to correct mistaken or
outdated precedents of three-judge panels. I hope that, at
some point, the en banc Court will adopt a more coherent
approach, whether it be the Newman rule or a rule focused on
the reasonableness of the agency’s conduct. As stated above,
I prefer the Newman rule, but either of those two alternatives
would be a significant improvement over the current four-
factor standard.
