United States District Court, District of Columbia
ASSASSINATION ARCHIVES AND RESEARCH CENTER, INC. Plaintiff,
CENTRAL INTELLIGENCE AGENCY Defendant.
N. McFADDEN, U.S.D.J.
Assassination Archives and Research Center
(“Assassination Archives”) sued to enforce its
Freedom of Information Act (“FOIA”) request, the
Central Intelligence Agency released a document that has been
publicly available since 2000, but with 96 words and a cover
page newly unredacted. The litigation was neither protracted
nor complex, but Assassination Archives now seeks
attorney's fees of nearly $1, 000 per word added to the
public domain. The Magistrate Judge's Report and
Recommendation (“Report”) recommends denying
Assassination Archives' request for fees. Over
Assassination Archives' objections, the Court will accept
the Report and deny Assassination Archives' motion for
an original and amended FOIA request, Assassination Archives
sought records about any plots to assassinate Adolf Hitler,
including the CIA's study of such plots in 1963 for plans
to overthrow Fidel Castro. See Compl., Ex. 2 at 1,
ECF No. 1-2. Assassination Archives also sought all records
relating to Allen Dulles's communications about such
plots during his service in the CIA or its predecessors.
Id. The factual background of the case is more fully
set forth in the Report. See Report at 1-4, ECF No.
Assassination Archives sued, the CIA released a document
titled “Propagandist's Guide to Communist
Dissensions” (“Propagandist's Guide”)
and five records related to its search for responsive
records. See Shiner Decl. ¶¶
3-4, ECF No. 31-5. The parties filed cross-motions for
summary judgment, and this Court granted the CIA's motion
and denied Assassination Archives' motion. See
Assassin'n Arch's & Res'rch Ctr., Inc. v.
CIA, 317 F.Supp.3d 394, 405 (D.D.C. 2018)
(“Assassin'n Arch's I”). But
because the CIA had disclosed the Propagandist's Guide
during the litigation, Assassination Archives moved for
attorney's fees and costs, totaling $103, 858.00.
Pl.'s Mot. for Fees at 16, ECF No. 30; Pl.'s Reply
for Fees (“Pl. Reply”) at 19, ECF No. 32. The
case was referred to Magistrate Judge Harvey for full case
management, and his Report recommends denying Assassination
Archives' fee request. Report at 15. Assassination
party objects to a magistrate judge's Report, the Court
reviews de novo any part of the magistrate
judge's disposition to which a party properly objects.
Fed.R.Civ.P. 72(b)(3). The district court may then
“accept, reject, or modify the recommended
“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). The
attorney fee inquiry is divided into
“eligibility” and “entitlement”
prongs. See 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.”
Brayton v. Office of the U.S. Trade Rep., 641 F.3d
521, 524 (D.C. Cir. 2011) (internal quotation marks omitted).
To “substantially prevail, ” a plaintiff must
show that he has obtained relief through a judicial order or
“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);
see also Brayton, 641 F.3d at 524-25.
plaintiff is eligible for fees, courts consider four factors
to determine whether it has a right to fees: “(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.” Morley
v. CIA, 719 F.3d 689, 690 (D.C. Cir. 2013)
(“Morley 2013”). “No one factor is
dispositive.” Davy v. CIA, 550 F.3d 1155, 1159
(D.C. Cir. 2008). The “sifting of those criteria over
the facts of a case is a matter of district court
discretion.” Tax Analysts v. U.S. Dep't of
Justice, 965 F.2d 1092, 1094 (D.C. Cir. 1992).
Archives raises three objections to the Report. Assassination
Archives first objects to the Report's reasoning in the
four-factor entitlement analysis. It alternatively argues
that the Court should abandon the four-factor test because it
does not follow the plain language of FOIA. But Assassination
Archives' arguments are unpersuasive, and the Court
accepts the Report's recommendation denying Assassination
Archives attorney's fees.
Assassination Archives complains that the Report undervalued
the public benefit from its request. See Pl.'s
Obj. to Report (“Pl. Obj.”) at 7-9, ECF No. 36.
Evaluating the public benefit factor “requires
consideration of both the effect of the litigation for which
fees are requested and the potential public value of the
information sought.” Davy, 550 F.3d at 1159.
Viewed solely afterward, Assassination Archives' request
required a significant expenditure of federal resources with
scant payoff for the public. From this perspective, a request
for attorneys' fees is highly unwarranted. But the
“effect of the litigation inquiry” asks
“simply whether the litigation caused the release of
requested documents, without which the requester cannot be
said to have substantially prevailed.” Morley v.
CIA, 810 F.3d 841, 844 (D.C. Cir. 2016)
event, the public benefit analysis mainly requires an ex
ante assessment of “the potential public value of
the information requested, with little or no regard to
whether any documents supplied prove to advance the public
interest.” Id. To have “potential public
value” the request “must have at least a modest
probability of generating useful new information about a
matter of public concern.” Id. The public
benefit factor weighs in a complainant's favor
“where the complainant's victory is likely to add
to the fund of information that citizens may use in making
vital political choices.” Fenster v. Brown,
617 F.2d 740, 744 (D.C. Cir. 1979) (quoting Blue v.
Bureau of Prisons, 570 F.2d 529, 534 (5th Cir. 1978)).
Archives sought records related to plots to assassinate
Hitler and the CIA's later study of those plots related
to overthrowing Castro. Assassination Archives claims the
potential public benefit of its FOIA request is strong
because it is related ...