United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2018

Decided July 9, 2018
No. 17-5114

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 G. Peterson, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: HENDERSON, KAVANAUGH, and KATSAS, Circuit
Judges.
Opinion for the Court filed PER CURIAM.
Dissenting opinion filed by Circuit Judge HENDERSON.

 2
PER CURIAM: This FOIA case has dragged on for a
staggering 15 years. The litigation over attorney’s fees alone
has taken 8 years. It is time to bring the case to an end.
The sole question at this point is whether plaintiff Morley
is entitled to attorney’s fees under the FOIA attorney’s fees
statute. In 2003, Morley submitted a FOIA request to the CIA.
Morley sought records related to former CIA Officer George
Joannides. Morley stated that the records about Joannides
would “shed new light on” the assassination of President
Kennedy. After several years of litigation, the CIA supplied
Morley with some responsive records. In 2010, Morley
requested attorney’s fees from the Government. Under FOIA,
the district court “may assess against the United States
reasonable attorney fees and other litigation costs reasonably
incurred in any case under this section in which the
complainant has substantially prevailed.”
5 U.S.C. §
552(a)(4)(E)(i) (emphasis added).
Because the FOIA attorney’s fees statute provides that the
district court “may” award fees to a prevailing plaintiff – and
not “must” or “shall” award fees – courts have struggled for
years to determine when attorney’s fees should be awarded to
a prevailing FOIA plaintiff. This Court has said that district
courts should consider four rather amorphous factors: (i) the
public benefit from the case; (ii) the commercial benefit to the
plaintiff; (iii) the nature of the plaintiff’s interest in the records;
and (iv) the reasonableness of the agency’s withholding of the
requested documents. See Davy v. CIA, 550 F.3d 1155, 1159
(D.C. Cir. 2008). We have left the balancing of the factors to
the discretion of the district court.
How does the court of appeals review a district court’s
attorney’s fees decision under the FOIA statute and the
judicially created four-factor test? Deferentially. We review

 3
the district court’s attorney’s fees determination only for abuse
of discretion. In other words, was the district court’s decision
on attorney’s fees at least within the zone of reasonableness,
even if we might disagree with the decision? We apply that
deferential standard, we have said, because the district court is
“better suited to make the initial determination” about whether
a litigant is entitled to attorney’s fees, given that the district
court closely monitored the litigation. Davy v. CIA, 456 F.3d
162, 167 (D.C. Cir. 2006).
It is important to unpack what abuse-of-discretion review
means in the context of FOIA attorney’s fees litigation. First,
we review for abuse of discretion the district court’s analysis
of each of the four individual factors (to the extent the appellant
raises such an argument on appeal). Second, we review for
abuse of discretion the district court’s balancing of the four
factors (to the extent the appellant raises such an argument on
appeal). With respect to that latter inquiry, when all four
factors point in favor of the plaintiff or in favor of the
defendant, the attorney’s fees analysis is ordinarily
straightforward. But when the four factors point in different
directions, the district court has very broad discretion in
deciding how to balance those factors and whether to award
attorney’s fees. Indeed, if the four factors point in different
directions, assuming no abuse of discretion in the district
court’s analysis of the individual factors, it will be the rare case
when we can reverse a district court’s balancing of the four
factors and its ultimate decision to award or deny attorney’s
fees. See Tax Analysts v. Department of Justice, 965 F.2d
1092, 1094, 1096 (D.C. Cir. 1992); LaSalle Extension
University v. FTC, 627 F.2d 481, 484 (D.C. Cir. 1980).
This is the third time that this Court has considered
whether Morley is entitled to attorney’s fees. In each of the
first two appeals, we remanded the case back to the District

 4
Court for additional analysis. In its most recent decision, the
District Court denied fees.
One can debate whether the District Court’s decision
denying attorney’s fees was correct. But the question for us is
not whether the District Court’s decision was correct, but rather
whether the District Court’s decision was at least reasonable.
Applying the deferential abuse-of-discretion standard, we
conclude that the District Court’s decision was reasonable, and
we therefore affirm the judgment of the District Court denying
attorney’s fees.
***
Applying this Circuit’s four-factor inquiry, the District
Court concluded that the first factor favored Morley because
there was at least a small public benefit from the information
sought by Morley. The District Court concluded that factors
two and three – relating to the plaintiff’s possible commercial
benefit and commercial interest – did not count against Morley.
See Morley v. CIA, 245 F. Supp. 3d 74, 78 n.2 (D.D.C. 2017).
In short, as Morley’s counsel acknowledged at oral argument,
the District Court “found that three of the four factors favored
Morley.” Tr. of Oral Arg. at 4.
But Morley contends that the District Court’s analysis of
those three factors afforded them insufficient weight and did
not square with our prior decision in this case. We disagree.
In our prior decision, we held that factor one favored
Morley, but only to the extent that some of the records sought
by Morley might have “marginally” supported one of Morley’s
theories, meaning that there was “at least a modest probability”
of generating useful information. Morley v. CIA, 810 F.3d 841,
844-45 (D.C. Cir. 2016). Our decision did not precisely

 5
quantify the public benefit. But our use of the word
“marginally” suggested that the public benefit might be small.
The District Court’s assessment on remand that a public benefit
existed, but was “small,” was entirely consistent with our prior
decision. Morley, 245 F. Supp. 3d at 77. Moreover, given
Morley’s disjointed explanations in this case, the District Court
did not abuse its discretion in concluding that the public benefit
here was small.
On factors two and three, the District Court likewise did
not abuse its discretion. In similar cases involving noncommercial requesters, we have upheld a district court’s
analysis of factors two and three when the district court stated
(as the District Court did here) that those factors at least did not
count against an award of attorney’s fees. See McKinley v.
FHFA, 739 F.3d 707, 712 (D.C. Cir. 2014); cf. Davy v. CIA,
550 F.3d 1155, 1160 (D.C. Cir. 2008).
We therefore turn to the fourth factor, which is the heart of
this case. That factor evaluates why the agency initially
withheld the records. In particular, the “fourth factor considers
whether the agency’s opposition to disclosure had a reasonable
basis in law and whether” the agency was “recalcitrant in its
opposition to a valid claim or otherwise engaged in obdurate
behavior.” Davy, 550 F.3d at 1162; see also Tax Analysts v.
Department of Justice, 965 F.2d 1092, 1097 (D.C. Cir. 1992);
Fenster v. Brown, 617 F.2d 740, 744 (D.C. Cir. 1979);
Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d
704, 712 (D.C. Cir. 1977). Under the fourth factor, the
question for a district court is not whether the agency’s legal
and factual positions were correct. The question is whether the

 6
agency’s positions were reasonable. See Davy, 550 F.3d at
1162. 1
Here, in applying the fourth factor, the District Court
determined that the CIA had “advanced a reasonable legal
position and did not engage in any recalcitrant or obdurate
behavior.” Morley, 245 F. Supp. at 78. Morley disagrees.
To reiterate, our standard of review of the District Court’s
conclusion on the fourth factor is deferential: We ask only
whether the District Court’s decision was reasonable. And in
reviewing the District Court’s conclusion on the fourth factor
(which in turn asks whether the agency’s position was
reasonable), we end up applying what is in essence a double
dose of deference. The question for us is whether the District
Court reasonably (even if incorrectly) concluded that the
agency reasonably (even if incorrectly) withheld documents.
Morley advances five main arguments that the CIA acted
unreasonably in response to his FOIA request.

1

The first three factors have the effect of eliminating the
possibility of attorney’s fees for certain prevailing plaintiffs. We
doubt that is a proper interpretation of the statute, for reasons that
have been detailed elsewhere. See Morley v. CIA, 719 F.3d 689, 690693 (D.C. Cir. 2013) (Kavanaugh, J., concurring); Davy v. CIA, 550
F.3d 1155, 1166 (D.C. Cir. 2008) (Randolph, J., dissenting). It is
arguable that the fourth factor alone should constitute the test under
FOIA for attorney’s fees. That approach would, among other things,
greatly simplify these unnecessarily complicated FOIA attorney’s
fees cases and eliminate the unfair discrimination against certain
prevailing plaintiffs that results from the first three factors. As a
three-judge panel, however, we of course must and do adhere to our
circuit precedent.

 7
First, Morley contends that the CIA unreasonably missed
the initial 20-day statutory deadline for responding to the FOIA
request. Morley is correct that the CIA failed to properly
respond to the request within 20 days, as required by statute.
See 5 U.S.C. § 552(a)(6)(A)(i). But that is true of a vast number
of FOIA requests. The statute itself imposes consequences on
the agency for delay past the 20-day mark. See Citizens for
Responsibility and Ethics in Washington v. FEC, 711 F.3d 180,
189 (D.C. Cir. 2013). But the statute does not suggest that an
award of attorney’s fees should be automatic in those
situations. And some delay past the 20-day mark is not
necessarily so unreasonable in and of itself as to require an
award of attorney’s fees to an ultimately prevailing plaintiff.
We are aware of no court of appeals case that has suggested
otherwise.
This case is a fine example of why that is so. According
to the responsible CIA official, when the CIA processed
Morley’s FOIA request, “the Agency had 1,675 FOIA and”
Privacy Act “requests in queue in various stages of
processing.” Herman Declaration ¶ 31. Of those outstanding
requests, “approximately 940 in the same queue as” Morley’s
request were still in process. Id. To be sure, agencies should
strive to meet relevant statutory deadlines. But here, the CIA
faced a large backlog of requests. Therefore, based on the
record, the District Court reasonably concluded that the agency
had a reasonable basis for missing the 20-day deadline.
Second, Morley asserts that the CIA acted unreasonably
when it initially referred Morley to the National Archives and
Records Administration to obtain records. In its initial
response to Morley, the CIA explained that it had gathered CIA
records related to the Kennedy assassination, as required by the
President John F. Kennedy Assassination Records Collection
Act of 1992, which we will refer to as the JFK Act. Pursuant

 8
to the Act, the CIA then transferred the records to the National
Archives. The Archives in turn made the records available to
the public. The CIA also explained to Morley that the
collection at the National Archives contained the records of
numerous other agencies and entities, and that the records were
searchable on the Internet.
In an earlier round of the underlying FOIA litigation in
Morley’s case, this Court concluded that the JFK Act did not
relieve the CIA of its duty to search for and produce Kennedy
assassination records in response to a FOIA request – even
when the exact same records were publicly available at the
Archives. This Court ruled that the CIA therefore acted
incorrectly when it initially referred Morley to the National
Archives. See Morley v. CIA, 508 F.3d 1108, 1119-20 (D.C.
Cir. 2007).
Of course, the purpose of the fourth factor of the attorney’s
fees inquiry is to determine not whether the agency acted
correctly, but rather “whether the agency has shown that it had
any colorable or reasonable basis for not disclosing” the
relevant material. Davy, 550 F.3d at 1163. Here, the CIA
initially directed Morley to the Archives because the collection
at the Archives would include the relevant CIA records that
were responsive to Morley’s FOIA request, as well as other
potentially relevant documents from other government
agencies. In doing so, the CIA relied on the JFK Act, which
had been enacted by Congress to centralize all of the Federal
Government’s Kennedy assassination records in one place: the
National Archives. And the CIA believed that Congress’s
decision to maintain all the records at the Archives relieved
individual agencies of the unnecessary burden of producing
duplicate copies of those same records in response to FOIA
requests. As a general matter, an agency cannot avoid a FOIA
request by simply saying that the documents are already

 9
publicly available. See Department of Justice v. Tax Analysts,
492 U.S. 136, 150-55 (1989). But the CIA analogized the
situation here to a principle articulated by this Court in Tax
Analysts: “an agency need not respond to a FOIA request for
copies of documents where the agency itself has provided an
alternative form of access.” Tax Analysts v. Department of
Justice, 845 F.2d 1060, 1065 (D.C. Cir. 1988); see also Tax
Analysts, 492 U.S. at 152 (stating “an agency need not disclose
materials that it has previously released”). With respect to
Kennedy assassination records, Congress itself had provided
an “alternative form of access,” or so the CIA reasoned.
In light of the detailed statutory scheme and the analogous
FOIA case law, the CIA’s decision to direct Morley to the
central Archives repository of records related to the Kennedy
assassination was hardly unreasonable. Indeed, the CIA’s
initial letter responding to Morley sought to be helpful by
informing Morley that other agencies’ records were also
available at the Archives. To be sure, the CIA turned out to be
incorrect legally (or so this Court later ruled) in thinking that
the public availability of documents at the Archives entirely
relieved the agency of its duty to search for its own copies of
those same documents. But the CIA’s ultimately incorrect
legal view was not unreasonable, at least in the unique context
of the statute governing the Kennedy assassination records.
Indeed, it would seem inefficient (to put it mildly) to require an
agency such as the CIA to expend scarce agency resources
repeatedly gathering anew copies of documents that the agency
had already gathered and made available to the public at the
Archives. In short, given the statute and given the language of
Tax Analysts, the CIA had a strong legal argument that
referring Morley to the Archives was legally permissible and
appropriate.

 10
It is true that the JFK Act itself provided that members of
the public still had a right to “file” FOIA requests with an
executive agency. President John F. Kennedy Assassination
Records Collection Act of 1992, Pub. L. No. 102-526, § 11(b).
But that statutory language – “file” – said nothing to suggest
that an agency had a duty to collect and produce copies of the
exact same documents that the agency had already collected
and transferred to the Archives and that would be available to
the public there. In other words, it was at least arguable that
the JFK Act did not require agencies to conduct entirely
redundant searches for copies of those documents that the
agency had already transferred to the Archives. As noted, such
a scheme would seem highly inefficient to the point of
absurdity. So it was at least reasonable – even if not ultimately
correct – for the CIA to read the JFK Act’s provision
referencing FOIA to speak only to those records that might be
responsive to a FOIA request and that the CIA had not
transferred to the Archives.
In that vein, Morley is on somewhat stronger ground in
saying that the CIA should have realized that his FOIA request
– even though it expressly referenced the Kennedy
assassination – asked the CIA for some categories of CIA
documents that may not have been transferred to the Archives.
We agree with Morley that the CIA’s initial response to him
was not entirely sufficient, as was revealed when the CIA
ultimately produced some responsive documents that had not
been transferred to the Archives. But was the CIA’s initial
response at least reasonable? In light of the unique nature of
the JFK Act and the CIA’s extraordinarily extensive efforts to
gather records under that Act for transfer to the Archives (as
detailed in the various CIA declarations in this case), it was at
least reasonable for the CIA to believe that Morley’s request as
phrased would lead only to records that the agency had already
gathered and produced to the Archives.

 11
In any event, the District Court’s conclusion – namely, that
the CIA’s response was reasonable – was at least within the
zone of reasonableness. This is where the double dose of
deference in reviewing the District Court’s analysis of factor
four may matter. Recall that the very narrow question for us is
simply whether the District Court reasonably concluded that
the CIA acted reasonably in initially directing Morley to the
Archives. Deference piled on deference. We answer the
question in the affirmative.
Third, Morley argues that the CIA unreasonably delayed
the release of responsive operational files. Operational files
describe certain foreign intelligence or counterintelligence
activities. See 50 U.S.C. § 431(b). Typically, operational files
are exempt from FOIA requests. See 50 U.S.C. § 431(a). But
the statute exempting those files also contains several
exceptions. See 50 U.S.C. § 431(c). The CIA argued that the
relevant operational files did not fall into any of those statutory
exceptions and thus were exempt. This Court later rejected the
CIA’s interpretation of that statute, but we noted that the CIA
had relied “on the only opinion by a circuit court of appeals to
address” the relevant provision. Morley, 508 F.3d at 1118. For
our purposes here, what matters is that it was entirely
reasonable for the CIA to rely on the only available court of
appeals precedent when the agency withheld operational
records. In short, the District Court reasonably concluded that
the agency acted reasonably in withholding the operational
records.
Fourth, Morley contends that the CIA unreasonably
asserted a Glomar response to a certain category of requested
covert activities records. When an agency is not willing to
confirm or deny the existence of certain documents, it may
submit a Glomar response. Here, the CIA believed that
confirming or denying certain of Joannides’s covert activities

 12
could damage national security. This Court ultimately
concluded that the Glomar response, once it was sufficiently
detailed, was lawful. See Morley v. CIA, 466 Fed. App’x 1
(D.C. Cir. 2012). It follows that the District Court reasonably
concluded that the CIA’s Glomar response was reasonable.
Fifth, Morley argues that the CIA unreasonably asserted
Exemption 2 (the FOIA exemption for internal personnel rules
and practices) as to records concerning internal procedures and
clerical information. The agency’s position was correct under
this Court’s law at the time. To be sure, during the pendency
of this multi-decade litigation, the Supreme Court decided a
case that disagreed with this Circuit’s longstanding
interpretation of Exemption 2. See Milner v. Department of the
Navy, 562 U.S. 562 (2011). Afterwards, the CIA withdrew its
Exemption 2 assertion in this case. See Morley, 466 Fed.
App’x at 1. Given the state of the law at the time that the CIA
initially asserted Exemption 2, the District Court reasonably
concluded that the CIA reasonably asserted Exemption 2.
In sum, each of the positions that the CIA advanced to
initially withhold records was reasonable – or at least the
District Court could reasonably conclude as much. Therefore,
the District Court did not abuse its discretion in concluding that
the fourth factor weighed in favor of the Government.
The remaining question is whether the District Court
reasonably balanced the four factors. To review, factors one
through three favored Morley, albeit only slightly. Because the
first three factors favored Morley, Morley argues that the
District Court should have awarded him attorney’s fees. But
the District Court reasonably concluded that the fourth factor
heavily favored the CIA. And as explained above, when the
four factors point in different directions, the district court has
very broad discretion how to balance the factors and whether

 13
to award or deny fees. There are many reasonable approaches
a district court might take in balancing the factors, and it is
difficult for an appellate court – with our deferential standard
of review – to second-guess that balancing. And in this case,
especially with factor four heavily favoring the agency and the
other three factors only slightly favoring Morley, we cannot say
that the District Court abused its discretion in concluding that
the fourth factor tilted the balance in favor of denying
attorney’s fees.
***
In closing, we note a few respectful points in response to
the dissent.
First, the dissent says that the District Court did not heed
this Court’s prior remand. We disagree. The dissent appears
to be conflating our prior decision in Morley’s case and our
prior decision in Davy. In Davy, our decision required the
District Court to award attorney’s fees. By contrast, in
Morley’s case, our prior decision simply remanded for the
District Court to “consider the remaining factors and the
overall balance afresh.” Morley v. CIA, 810 F.3d 841, 845
(D.C. Cir. 2016). On remand here, the District Court did just
that. We can disagree about whether the District Court
correctly evaluated and balanced the four factors. But in our
view, it is inaccurate to say that the District Court in any way
flouted or disregarded our prior decision.
Second, the dissent contends that we have disregarded
circuit precedent and replaced this Court’s four-factor test with
an inquiry that looks only to the fourth factor: whether the CIA
acted reasonably in withholding documents. The dissent is
incorrect. In this opinion, we have considered both the District
Court’s analysis of each individual factor and the District

 14
Court’s balancing of the four factors. We first concluded that
the District Court did not abuse its discretion in its analysis of
the individual factors. We then concluded that the District
Court acted within its discretion when it concluded that the
fourth factor outweighed the other three. And to prove that we
have not ditched the four-factor test, we will be crystal clear:
If the District Court had awarded attorney’s fees in this case,
we would have affirmed. In other words, when the first three
factors favor the plaintiff, but the fourth does not, a district
court retains very broad discretion under the four-factor test
about how to balance the factors and whether to award
attorney’s fees. We have faithfully and carefully applied the
four-factor test set forth by our precedents.
In light of the statutory text of the FOIA attorney’s fees
provision – in particular, the word “may” – and our deferential
standard of review, we affirm the judgment of the District
Court denying attorney’s fees.
So ordered.