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, 690-

693 (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. 
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting: 

Over the past 15 years, we have remanded this case four times. 

During the same period, we have reversed the same district 

court twice in a nearly identical Freedom of Information Act

(FOIA) case. That makes six opinions from this court. I share 

the majority’s displeasure with the resulting waste of judicial 

resources, especially because “fee litigation [is] one of the last 

things lawyers and judges should be spending their time on.” 

Baylor v. Mitchell Rubenstein & Assocs., P.C., 857 F.3d 939, 

960 (D.C. Cir. 2017) (Henderson, J., concurring). Jefferson 

Morley, however, is not to blame for this “staggering” saga. 

Maj. Op. 2. But for the district court’s repeated misapplication

of FOIA precedent, this case could have ended as early as 2006. 

If it had been correctly decided the first time, “Morley would 

already have his fees, and this litigation would have long since 

concluded.” Morley v. CIA, 719 F.3d 689, 693 (D.C. Cir. 2013)

(Kavanaugh, J., concurring). Unfortunately, the district court 

got it wrong again. The majority, it appears to me, overlooks 

the district court’s latest errors in order to “bring the case to an 

end.” Maj. Op. 2. In the process, it distorts our settled fourfactor test for awarding attorney fees under FOIA and replaces 

it with a single-factor reasonableness inquiry of its own design.

What’s worse, the majority misapplies its own test. It 

holds that the Central Intelligence Agency (CIA) reasonably

declined to produce any documents in response to Morley’s 

FOIA request and instead directed him to another agency. The

holding is plainly contrary to Tax Analysts v. DOJ, which

declared that “an agency must itself make disclosable agency 

records available to the public and may not on grounds of 

administrative convenience avoid this statutory duty by 

pointing to another public source for the information.” 845 

F.2d 1060, 1067 (D.C. Cir. 1988) (emphasis in original), aff’d, 

492 U.S. 136 (1989). To avoid this precedent—and to explain 

away the district court’s contrary conclusions—the majority 

leans heavily on the standard of review, declaring that it 

requires “[d]eference piled on deference.” Maj. Op. 11. In my 
2

view, my colleagues pile their deference far too high. Our 

abuse-of-discretion review, although forgiving, is not an empty 

formality: here, the district court’s discretion was constrained 

by our earlier opinions in this very case and by our closely 

related decision in Davy v. CIA, 550 F.3d 1155 (D.C. Cir. 2008). 

Because the district court failed to follow precedent and

because it misapplied our four-factor test—for the third time—

I believe it abused its discretion. Accordingly, I respectfully 

dissent. 

I. BACKGROUND

In brief, the facts of this case are as follows:

Morley is a journalist and news editor. On July 

4, 2003, Morley submitted a request under 

FOIA to the CIA for “all records pertaining to 

CIA operations officer George Efythron 

Joannides.” The letter makes clear that Morley 

sought information connected to President John 

F. Kennedy’s assassination. The CIA responded 

in the beginning of November, 2003, with a 

letter explaining that the National Archives and 

Records Administration (“NARA”) had a 

public collection of CIA records related to the 

JFK assassination, which was searchable 

online. The CIA directed him to submit his 

request to NARA and did not release any 

records directly to Morley at that time.

Morley subsequently filed suit in this Court on 

December 16, 2003, to enforce his FOIA 

request. After further processing of the request, 

along with an appeal up to our Circuit, the CIA 

ultimately provided Morley with a total of 524 

responsive records (some of which were 
3

segmented and/or redacted). Of those records, 

113 were from the files the CIA previously had 

transferred to NARA.

Morley v. CIA, 245 F. Supp. 3d 74, 76 (D.D.C. 2017) (Morley 

X) (quoting Morley v. CIA (Morley VIII), 59 F. Supp. 3d 151, 

153-54 (D.D.C. 2014)).

The majority truncates the history of this case, which, with 

this appeal, marks Morley XI. I believe more detail is needed

to explain how our earlier decisions should have limited the 

district court’s discretion here.

In response to Morley’s initial FOIA request, the CIA 

referred him to NARA without producing any of the requested 

documents. Morley filed suit. After the CIA produced three 

documents in full and 112 documents in segregable form, the 

district court granted its motion for summary judgment. 

Morley v. CIA (Morley I), 453 F. Supp. 2d 137, 142 (D.D.C. 

2006). We affirmed in part but reversed in the main, giving

seven remand instructions. Morley v. CIA (Morley II), 508 F.3d 

1108, 1129 (D.C. Cir. 2007). We instructed the district court to 

direct the CIAto: (1) search operational files; (2) search records 

transferred to NARA; (3) supplement its explanation regarding 

missing monthly reports; (4) provide details regarding the 

scope of its search; (5) explain why withheld information was 

not segregable; (6) substantiate its Glomar response; and (7) 

provide further justification for its reliance on FOIA 

Exemptions 2, 5 and 6. See id. 

As most relevant here, we explained that FOIA reflects “a 

‘settled policy’ of ‘full agency disclosure,’” id. at 1119 (quoting 

Tax Analysts, 845 F.2d at 1064), and “an agency has ‘withheld’

a document under its control when, in denying an otherwise 

valid request, it directs the requester to a place outside of the 

agency where the document may be publicly available,” id.
4

(alterations omitted) (quoting DOJ v. Tax Analysts, 492 U.S. 

136, 150 (1989)). Because the CIA directed Morley to NARA 

rather than searching its own records, we held that it had failed 

to meet its duties under FOIA. Id. at 1120.

Over the course of two years on remand, the CIA released 

409 additional documents to Morley. The district court then 

granted the CIA’s renewed motion for summary judgment. 

Morley v. CIA (Morley III), 699 F. Supp. 2d 244 (D.D.C. 2010). 

On appeal, we affirmed in large part but remanded the case so

the district court could examine Exemption 21in light of a thenrecently decided Supreme Court case, Milner v. Department of 

Navy, 562 U.S. 562 (2011). Morley v. CIA (Morley V), 466 F. 

App’x 1 (D.C. Cir. 2012) (per curiam). On remand, the district 

court dismissed the case as moot. Morley v. CIA (Morley VI), 

No. 03-2545, 2013 WL 140245 (D.D.C. Jan. 9, 2013). Thus

ended Morley’s merits dispute.

While the CIA was defending on the merits of Morley’s 

FOIA suit, the same district judge heard an attorney’s fees 

dispute in another case involving a journalist (William Davy) 

who sought documents from the CIA regarding President 

Kennedy’s assassination. Davy v. CIA (Davy I), 357 F. Supp. 

2d 76 (D.D.C. 2004). After obtaining documents through a 

consent order, Davy sought attorney’s fees. Davy v. CIA (Davy 

II), 456 F.3d 162 (D.C. Cir. 2006). The district court first 

denied Davy’s request. Id. at 163. We reversed, concluding

that Davy was a prevailing party. Id. at 166. We then remanded 

for the district court to determine whether Davy was entitled to 

fees and, if so, to calculate those fees. Id.

 

1 Exemption 2 protects from disclosure agency material that is 

“related solely to the internal personnel rules and practices of an 

agency.” 5 U.S.C. § 552(b)(2).
5

On remand, the district court again denied Davy’s request 

for fees. Davy v. CIA (Davy III), 496 F. Supp. 2d 36 (D.D.C. 

2007). Eventually, applying our “familiar four-factor test,” we

again reversed. Davy v. CIA (Davy IV), 550 F.3d 1155, 1157

(D.C. Cir. 2008).2 We first addressed the “public benefit” 

factor, noting that the Kennedy assassination was an “event of 

national importance” and the information Davy obtained might 

help the public make “vital political choices.” Id. at 1160. We 

then examined the second and third factors in tandem and 

concluded that, although Davy may enjoy some pecuniary 

benefit from publishing books or articles as a result of his 

search, “that alone cannot be sufficient to preclude an award of 

attorney’s fees under FOIA.” Id. at 1160. Therefore, we held,

the district court abused its discretion in finding that the second 

and third factors weighed against Davy. Id. at 1162. As to the 

fourth factor, we explained that, because the CIA failed even to

respond to Davy’s request for documents until after he filed 

suit, the CIA was unreasonable in its initial withholding. Id. at 

1163. Accordingly, all four factors favoring Davy, we

remanded to the district court for it to award fees. Thus ended 

Davy’s fees dispute.

Meanwhile, Morley filed an application for attorney’s

fees. Morley v. CIA (Morley IV), 828 F. Supp. 2d 257 (D.D.C. 

2011). The district court denied his request, finding that all 

 

2 As discussed infra, the four factors are: (1) the public benefit 

derived from the case; (2) the commercial benefit to the plaintiff; (3) 

the nature of plaintiff’s interest in the records; and (4) the 

reasonableness of the agency’s withholding of the requested 

documents. Davy IV, 550 F.3d at 1159. Some of our sister circuits 

have adopted the same four-factor test. See, e.g., Pietrangelo v. U.S. 

Army, 568 F.3d 341, 343 (2d Cir. 2009); Texas v. ICC, 935 F.2d 728, 

730 (5th Cir. 1991); Church of Scientology of Cal. v. U.S. Postal 

Serv., 700 F.2d 486, 492 (9th Cir. 1983).
6

four factors weighed against him. Id. at 260. Continuing a 

trend, we vacated the decision and remanded. Morley v. CIA

(Morley VII), 719 F.3d 689 (D.C. Cir. 2013) (per curiam). In 

doing so, we directed the district court to our previous opinion 

in Davy IV, which stated that records “about individuals 

allegedly involved in President Kennedy’s assassination serve 

a public benefit.” Id. at 690 (alterations omitted) (quoting Davy 

IV, 550 F.3d at 1159). Moreover, we quoted Davy IV’s 

instruction that the public-benefit factor should not “disqualify 

plaintiffs who obtain information that, while arguably not of 

immediate public interest, nevertheless enables further 

research ultimately of great value and interest, such as here the 

public understanding of a [p]residential assassination.” Id.

(quoting Davy IV, 550 F.3d at 1162 n.3). We remanded for the 

district court to consider Davy IV but did not express any 

position on whether it should award fees. Id.

On remand, the district court again denied fees. Morley 

VIII, 59 F. Supp. 3d at 153. After analyzing the 524 documents 

the CIA ultimately produced in response to Morley’s request, 

the district court held that the “litigation has benefited the 

public only slightly, if at all.” Id. at 158. Without providing 

detail, it decided that its “analysis of the other factors 

remain[ed] the same” and denied Morley’s application. Id. 

For the fourth time, we remanded, concluding that “the 

district court improperly analyzed the public-benefit factor by 

assessing the public value of the information received rather 

than the ‘potential public value of the information sought.’” 

Morley v. CIA (Morley IX), 810 F.3d 841, 842 (D.C. Cir. 2016) 

(quoting Davy IV, 550 F.3d at 1159). We declared that, when 

evaluated ex ante, “Morley’s request had potential public 

value.” Id. at 844. We remanded for the district court to 

evaluate all four factors anew. Id. at 845.
7

This protracted history brings us to the district court’s most 

recent fees order. Morley v. CIA, 245 F. Supp. 3d 74 (D.D.C. 

2017) (Morley X). In view of Morley IX, the district court 

found that the “expectation-adjusted value of the public benefit 

that plaintiff sought to provide was small.” Id. at 77. The court 

saw the second and third factors as a “close call.” Id. at 78. 

Specifically, it found that Morley received “some 

compensation for writing news articles” and saved time and 

energy by not having to seek documents in NARA’s Kennedy 

collection. Id. at 77. “Thankfully,” the court concluded, “the 

final factor breaks the tie—it weighs heavily against Morley 

and is ultimately dispositive.” Id. at 78. Accordingly, the 

district court denied Morley’s motion for attorney’s fees a third 

time. Id.

II. DISCUSSION

Under the traditional “American Rule,” each party to a 

lawsuit pays its own attorney’s fees. See Alyeska Pipeline Serv. 

Co. v. Wilderness Soc’y, 421 U.S. 240, 245 (1975). FOIA 

creates a statutory exception to the American Rule; it provides 

that the “court may assess against the United States reasonable 

attorney fees . . . in any case under this section in which the 

complainant has substantially prevailed.” 5 U.S.C. 

§ 552(a)(4)(E)(i). We have explained that “FOIA’s attorney’s 

fees provision . . . was designed to lower the ‘often . . . 

insurmountable barriers presented by court costs and attorney 

fees to the average person requesting information under the 

FOIA.’” Tax Analysts v. DOJ, 965 F.2d 1092, 1095 (D.C. Cir. 

1992) (quoting Cuneo v. Rumsfeld, 553 F.2d 1360, 1364 (D.C. 

Cir. 1977)). “[T]he award of FOIA counsel fees has as its 

fundamental purpose the facilitation of citizen access to the 

courts, and should not be subject to a grudging application.” 

First Amendment Coal. v. DOJ, 878 F.3d 1119, 1130 (9th Cir. 

2017) (internal quotation marks omitted).
8

We review the district court’s application of the four-factor

test for abuse of discretion. Id. at 1158. The district court’s

discretion has two important limits. First, it is constrained by 

precedent. Koon v. United States, 518 U.S. 81, 100 (1996) (“A 

district court by definition abuses its discretion when it makes 

an error of law.”). Second, the district court’s discretion is 

limited by the mandate rule, which provides that “an inferior 

court has no power or authority to deviate from the mandate 

issued by an appellate court.” Briggs v. Penn. R.R., 334 U.S. 

304, 306 (1948); see United States v. Kpodi, 888 F.3d 486, 491 

(D.C. Cir. 2018) (“A district court commits legal error and 

therefore abuses its discretion when it fails to abide by . . . the 

mandate rule.”). In long-running litigation like this, the district 

court is especially constrained because it may not “do anything 

which is contrary to either the letter or spirit of the mandate” 

which we issued in our four previous remands. City of 

Cleveland v. Fed. Power Comm’n, 561 F.2d 344, 346 (D.C. Cir. 

1977) (quoting Yablonski v. United Mine Workers of Am., 454 

F.2d 1036, 1038 (D.C. Cir. 1971)).

My colleagues do not discuss these two constraints, 

instead focusing on the “double dose of deference” they believe 

we owe the district court’s fourth-factor “reasonableness” 

assessment. Maj. Op. 6. Hence, they acknowledge our fourfactor test but do not apply it. See Maj. Op. 6 n.1 (“[W]e of 

course must and do adhere to our circuit precedent.”). In a 

telling footnote, they “doubt” that the first three factors have 

any role to play in “a proper interpretation of the statute.” Id. 

They suggest instead that “the fourth factor alone should 

constitute the test under FOIA for attorney’s fees.” Id. There 

may be good reason to question our FOIA precedent but, as a 

three-judge panel, we are bound to apply it.3 With respect, I 

 

3 Some members of our court question the four-factor FOIA 

test and call for en banc review. See Morley VII, 719 F.3d at 690-91 
9

believe the majority fails to do so. Indeed, the majority accepts

that the first three factors favor Morley but does not review the 

district court’s reasoning and, worse, does not adequately

evaluate the weight of the first three factors in light of Morley 

IX or Davy IV.

4

 See Maj. Op. 4-5. As a result, the majority 

necessarily relies on the “fourth factor alone” in affirming the 

district court’s determination that Morley is not entitled to 

attorney’s fees. Id.5 Under a faithful application of our fourfactor test, I believe the district court abused its discretion.6

 

(Kavanaugh, J., concurring); Davy IV, 550 F.3d at 1166 (Randolph, 

J., dissenting).

4 As discussed infra, it is not clear that the district court itself 

found that the first three factors favor Morley.

5

 In attempting to establish that it does not rely only on the 

“reasonableness” factor of our test, the majority declares: “If the 

District Court had awarded attorney’s fees in this case, we would 

have affirmed.” Maj. Op. 14. This is pure dictum. The district court 

did not award fees and my colleagues’ declaration of what they 

would do in a hypothetical is entirely speculative. Moreover, had the 

district court awarded fees, there would have been no legal error to 

correct and no basis for remand.

6

 Some of our opinions suggest that each of the four factors has 

a threshold that must be met. See Morley IX, 810 F. 3d at 844 (“[I]f

it’s plausible ex ante that a request has a decent chance of yielding a 

public benefit, the public-benefit analysis ends there.”). Other 

opinions suggest that the inquiry is akin to a freestanding balancing 

test. See Cuneo, 553 F.2d at 1367 (“[T]he trial court must weigh the 

facts of each case against the criteria of the existing body of law on 

the award of attorney fees and then exercise its discretion in 

determining whether an award is appropriate . . . .”). In either event, 

the majority’s approach is flawed. If each factor can be met with by 

a “yes” or “no” answer, three in favor should outweigh one against. 

On the other hand, if the factors should be weighed against each other 
10

A. Factor One: Public Benefit

The district court found the potential public benefit of 

Morley’s request “small.” Its finding understates the

importance of the Kennedy assassination.

7 At least three times, 

we have recognized the potential public benefit of JFK-related 

FOIA inquiries. In Davy IV, we noted that the documents Davy 

sought provided “important new information bearing on the 

controversy over former District Attorney Jim Garrison’s 

contention that the CIA was involved in the assassination plot.” 

550 F.3d at 1159 (quoting Davy Decl.) (alterations omitted). 

Then, in Morley VII, we vacated and remanded the district 

court order denying fees so that it could reconsider its publicbenefit analysis in light of Davy IV. Morley VII, 719 F.3d at 

690.

 

in a balancing test, the majority errs by failing to review fully the 

district court’s assessment of the first three factors.

7 Few events in our national history have garnered as much 

attention as the assassination of President Kennedy. Three times 

since 1963, the Congress has investigated the details of the 

assassination. In 1964, the Warren Commission concluded that Lee 

Harvey Oswald killed President Kennedy alone and unaided. Joint 

Appendix (JA) 66. In 1978, however, the House Select Committee 

on Assassinations (HSCA) reopened the Kennedy investigation. JA 

68. Ultimately, the HSCA concluded that Oswald had killed 

President Kennedy with unidentifiable co-conspirators; thereafter, 

the conspiracy theories multiplied. Id. In 1992, the Congress reentered the fray, enacting the President John F. Kennedy 

Assassination Records Collection Act of 1992, Pub. L. 102-526

(codified at 44 U.S.C. § 2107 Note) (JFK Act), which charged the 

Assassination Records Review Board to collect and release all 

unclassified documents related to the assassination.
11

Finally, we have expressly recognized the usefulness of 

Morley’s specific request. Morley IX, 810 F.3d at 844. 

Acknowledging that “a requester’s mere claim of a relationship 

to the assassination” does not “ipso facto satisf[y] the public 

interest criterion,” we noted that, if the subject of the request 

“is the Kennedy assassination—an event with few rivals in 

national trauma and in the array of passionately held 

conflicting explanations—showing potential public value is 

relatively easy.” Id. at 844 (second emphasis added). We 

continued:

Morley’s request had potential public value. He 

has proffered—and the CIA has not disputed—

that Joannides served as the CIA case officer for 

a Cuban group, the DRE, with whose officers 

Oswald was in contact prior to the 

assassination. Travel records showing a very 

close match between Joannides’s and Oswald’s 

times in New Orleans might, for example, have 

(marginally) supported one of the hypotheses 

swirling around the assassination. In addition, 

this court has previously determined that 

Morley’s request sought information “central” 

to an intelligence committee’s inquiry into the 

performance of the CIA and other federal 

agencies in investigating the assassination. 

Under these circumstances, there was at least a 

modest probability that Morley’s request would 

generate information relevant to the 

assassination or later investigations.

Id. at 844-45. In other words, we held that Morley satisfied the 

public-benefit factor in this case. Id. at 844 (“[I]f it’s plausible 

ex ante that a request has a decent chance of yielding a public 

benefit, the public-benefit analysis ends there.”).
12

None of this is to say that Morley’s assassination theories 

necessarily have any merit. The point is that we have twice 

remanded the case based on the district court’s failure to assess 

properly the public benefit of Morley’s FOIA request. Thus, 

the district court’s description of the public value of the 

information sought by Morley as “small” ignores our decisions 

in Davy IV, Morley VII and Morley IX. See Kpodi, 888 F.3d at 

491 (explaining mandate rule). 

B. Factors 2 and 3: The Requester’s Interest

Factors two and three are controlled by Davy IV. See 550 

F.3d at 1162 (“[T]he district court abused its discretion in 

determining that the second and third factors weighed against 

Davy . . . .”). In addressing these factors, the majority cites the 

oral argument transcript for the proposition that “the District 

Court ‘found that three of the four factors favored Morley.’” 

Maj. Op. 4 (quoting Oral Arg. Tr. at 4). Contrary to Morley’s

counsel’s assertions, however, the district court did not hold 

that factors two and three favored Morley. Rather, the district 

court stated that “the first three factors do not clearly indicate 

whether the Court should award attorney’s fees—it is a very 

close call.” Morley X, 245 F. Supp. 3d at 78.8 Thus, it is far 

from clear how the district court viewed the second and third 

factors. If it believed the first three factors indeed favored 

Morley, the balance at that stage would have undoubtedly

 

8

In a footnote, the district court provided a caveat: “In an 

abundance of caution, therefore, I will clarify that even if costs 

avoided do not count as a commercial benefit, the public interest in 

incentivizing Morley would be low enough in this case that I would 

still find the fourth factor dispositive.” Morley X, 245 F. Supp. 3d at 

78 n.2. It is unclear how—or if—this comment affected the district 

court’s analysis but, in any event, the district court did not conclude 

that factors two or three affirmatively favored Morley. 
13

tipped in his favor and there would have been no “tie” to break. 

Id. 

Moreover, this case is indistinguishable from Davy IV on 

factors two and three.9 Like Davy, Morley is a journalist. Like 

Davy, Morley “hope[s] to earn a living plying [his] trade” and 

receives modest remuneration for the articles he writes. Davy 

IV, 550 F.3d at 1160; see also Nationwide Bldg. Maint., Inc. v. 

Sampson, 559 F.2d 704, 712 (D.C. Cir. 1977) (“For the 

purposes of applying this criterion, news interests should not 

be considered commercial interests.”). Like Davy, Morley has 

an interest in investigating President Kennedy’s assassination. 

And like Davy, Morley may not be able to publish the 

information he obtains until long after his lawsuit ends. But 

unlike in Davy’s case—where we held that factors two and 

three favored Davy—the district court here held that the first 

three factors were a “tie” or a “very close call” despite already 

having counted the public benefit in Morley’s favor. Morley X, 

245 F. Supp. 3d at 78. In my view, this holding was legal error.

Nor does it make any difference that the CIA referred 

Morley to NARA rather than denying his request outright. 

Although the district court noted that Morley obtained some 

 

9 The majority suggests that I am “conflating our prior decision 

in Morley’s case and our prior decision in Davy.” Maj. Op. 13. Not 

so. I recognize that our mandate in Davy IV does not by its express 

terms apply to this case. Rather, Davy IV stands as legal precedent 

that defines the limits of the district court’s discretion to award fees. 

See Koon, 518 U.S. at 100. Hence, Davy IV is binding because it is 

factually on all fours with Morley’s case with respect to factors two 

and three. Indeed, neither the district court nor the majority attempts

to distinguish Davy IV in analyzing the second and third factors. See 

Morley X, 245 F. Supp. 3d at 77-78 (citing Davy IV but failing to 

discuss its facts or its holding); Maj. Op. 5 (citing Davy IV with “cf.” 

signal and no accompanying explanation).
14

benefit by securing documents from the CIA rather than 

searching through NARA on his own, the record is clear that 

only 113 (of the 524) documents produced were available 

through NARA. Id. No amount of searching the public records

would have unearthed those 411 documents. Unlike the 

plaintiff in Tax Analysts, who knew that the requested 

documents eventually would become public, 845 F.2d at 318-

19, Morley had no way of knowing whether the files he sought 

were available at NARA. See Davy IV, 550 F.3d at 1164 (Tatel, 

J., concurring) (“Before suing, requesters in Davy’s position 

have no idea what documents responsive to their FOIA requests 

might contain because the agency has told them nothing.”).

In sum, factors two and three cannot be “close calls,” at 

least not after Davy IV. Davy IV makes clear that factors two 

and three unquestionably weigh in Morley’s favor and the 

district court erred in concluding otherwise. Davy IV, 550 F.3d 

at 1162.

C. Factor Four: Reasonableness

Finally, with regard to the fourth factor, “the heart of this 

case,” Maj. Op. 5, the majority—mistakenly, in my view—

concludes that the CIA’s response to Morley’s request was 

reasonable. The fourth factor considers whether the agency’s 

opposition to disclosure “had a reasonable basis in law.” Tax 

Analysts, 965 F.2d at 1096. It examines whether the agency 

was “recalcitrant in its opposition to a valid claim or otherwise 

engaged in obdurate behavior.” Davy IV, 550 F.3d at 1162 

(quoting LaSalle Extension Univ. v. FTC, 627 F.2d 481, 486 

(D.C. Cir. 1980)). And the burden is on the CIA to show “that 

it had any colorable or reasonable basis for not disclosing the 

material until after [the plaintiff] filed suit.” Id. at 1163.

In Morley II, we assessed the CIA’s response to Morley’s 

FOIA request and found it lacking. Specifically, we reversed 
15

the district court’s summary judgment order and held that the 

agency’s response was legally insufficient on seven separate 

grounds. The majority discusses five in its opinion. It

acknowledges that the CIA: (1) missed the 20-day statutory 

deadline to respond, Maj. Op. 7; (2) incorrectly referred Morley 

to NARA rather than responding to his FOIA request itself, 

Maj. Op. 7-11; (3) failed to search its operational files, Maj. 

Op. 11; (4) submitted an incomplete Glomar response, Maj. 

Op. 11-12; and (5) relied on an interpretation of Exemption 2 

that was later overruled, Maj. Op. 12. It addresses these errors 

of law seriatim and labels them “incorrect legally,” Maj. Op. 9, 

but not “unreasonable.” To me, the CIA’s multiple flawed legal

positions suggests that it was “recalcitrant” in declining to 

produce any documents before being sued. Davy IV, 550 F.3d 

at 1162. At the least, the errors collectively undermine the

district court’s conclusion that the fourth factor “weighs 

heavily against Morley.” Morley X, 245 F. Supp. 3d at 78

(emphasis added).

With respect to the CIA’s decision to refer Morley to 

NARA instead of producing any documents, however, I find 

the CIA’s—and the district court’s—positions entirely 

unreasonable. In Tax Analysts, we held that “in response to a 

FOIA request, an agency must itself make disclosable agency 

records available to the public and may not on grounds of 

administrative convenience avoid this statutory duty by 

pointing to another public source for the information.” 845 

F.2d at 1067 (emphasis in original). We reaffirmed the holding 

in Morley II, declaring that “an agency has ‘withheld’ a 

document under its control when, in denying an otherwise valid 

request, it directs the requester to a place outside of the agency 

where the document may be publicly available.” Morley II, 

508 F.3d at 1119 (quoting Tax Analysts, 492 U.S. at 150). 
16

On its face, our holding in Tax Analysts (and the Supreme 

Court’s endorsement thereof) should control this case. It is 

undisputed that Morley made a valid FOIA request. It is 

likewise undisputed that the CIA initially directed Morley to 

“another public source for the information”—NARA—without 

producing any of the documents he requested. Tax Analysts, 

845 F.2d at 1067. Thus, the CIA did not “itself” disclose its 

records to Morley. Id. Nonetheless, to bring this case within 

the ambit of Tax Analysts, the majority reasons that “Congress 

itself had provided ‘an alternative form of access’” to the 

records. Maj. Op. 9 (emphasis added). But the Congress is not 

the CIA and congressionally mandated access to documents is 

not the same as agency access under FOIA. Simply put, 

without statutory authorization, the CIA is not excused from its

FOIA obligations. Both the district court and the majority use 

the JFK Act to support the reasonableness of the CIA’s initial 

withholding. The JFK Act instructs executive agencies to 

deliver documents related to JFK’s assassination to NARA for 

publication. As the majority notes, however, the statute also

provides that “[n]othing in [the JFK] Act shall be construed to 

eliminate or limit any right to file requests with any executive 

agency or seek judicial review of the decisions pursuant” to 

FOIA. JFK Act, Pub. L. 102-526, § 11(b). The majority

apparently reads this language to mean that the public may 

“file” a FOIA request but an agency has no duty to collect and 

produce documents it has already transferred to NARA. Maj. 

Op. 10. If the JFK Act ensures the public’s right to “file” a 

FOIA request, it necessarily preserves the agency’s duty to 

respond to that request. The right to file means little if the 

agency replies with nothing more than a letter. And we have

so noted: “[section] 11(b) . . . provides that the [JFK] Act does 

not limit or eliminate any rights under FOIA.” Assassination 

Archives & Research Ctr. v. DOJ, 43 F.3d 1542, 1544 (D.C. Cir. 

1995) (emphasis added). Other circuits agree with this 

common-sense interpretation of the JFK Act. See, e.g., Minier 
17

v. CIA, 88 F.3d 796, 802-03 (9th Cir. 1996) (“[W]e hold that 

the JFK Act has no direct bearing on [a plaintiff’s] FOIA 

request.”). 

The CIA’s eventual document production here illustrates 

the difference between FOIA and the JFK Act. When Morley

first made his request, neither he nor the CIA knew whether the 

documents he requested had been transferred to NARA. As it 

turns out, only 113 of the 524 documents were ever transferred. 

Morley X, 245 F. Supp. 3d at 76. If not for Morley’s lawsuit, 

the CIA never would have disclosed those non-transferred 411 

documents. More to the point, neither statute justifies the 

CIA’s withholding the documents. Under these facts, I believe 

it was legal error to conclude that the CIA’s position was 

reasonable. See Koon, 518 U.S. at 100.

In sum, I believe the district court erred on two levels: it 

erred in evaluating each of the four factors individually and 

abused its discretion in weighing them against one another. 

Accordingly, this case does not call for “[d]eference piled on 

deference.” Maj. Op. 11. It calls for an adherence to Davy IV

and our four earlier Morley opinions. Because I believe the 

district court ignored our mandate and misapplied our 

precedent, I would vacate the district court order a fifth time

and remand with instructions to award Morley the attorney’s 

fees to which he is entitled.

Accordingly, I respectfully dissent.