The D.C. Circuit issued a rare Monday opinion mere hours before a judge on the panel for the case—Judge Kavanaugh—was nominated to the Supreme Court. It may turn out to be the last opinion Kavanaugh ever wrote* for the D.C. Circuit.
The case, Morley v. Central Intelligence Agency, was about a man, Jefferson Morley, who was seeking documents from the CIA about JFK’s assassination. Morley sued under the Freedom of Information Act to get the documents after he was initially directed to the National Archives, where the CIA had turned over files related to the event under the JFK Act. At the end of it all, Morley asked the district judge to order the government to reimburse him for his attorney’s fees, which is something courts occasionally assess against the United States for costs reasonably incurred in a FOIA dispute. In Morley’s case, the judge said no—three times.
The D.C. Circuit reviewed that third (and final) “no.” The opinion opened with classic Kavanaugh pith: “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.” And indeed it did.
The court clarified the standard of review in FOIA attorney’s fees litigation, calling it a “double dose of deference” that required the court to review only whether the district judge “reasonably concluded that the CIA acted reasonably in” its initial response to Morley—and not to review whether the district judge or the CIA were incorrect. With “[d]eference piled on deference,” the court upheld the denial of a fee award.
Judge Henderson dissented. She chided what she saw as the district judge’s thrice-over failure to correctly apply the four-factor test for FOIA fee-shifting, noting that three of the factors favored Morley and only one went the CIA’s way. The majority, however, said its hands were tied by deference and even went so far as to say, “If the District Court had awarded attorney’s fees in this case, we would have affirmed.”
*We know, the opinion says per curiam and was joined by Judge Katsas, but we really think Kavanaugh was the author. Here’s why: (1) The writing style (see here) and (2) As Hogan Lovells associate Sean Marotta pointed out in a tweet:
Agreed, @smmarotta. With Henderson in the dissent and Katsas penning his first prose for the court just 11 days ago we believe it was him as well. Also, check Kavanaugh’s most recent opinion in US v Haight for the ***. Katsas’ sole opinion? Not a * to be found. https://t.co/4mKEcgGYJk
— Circuit Breaker (@DCCircuitBreak) July 10, 2018
