E. Schoenberg v. Fbi ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
E. RANDOL SCHOENBERG, No. 20-55607
Plaintiff-Appellant,
D.C. No.
v. 2:18-cv-01738-
JAK-AGR
FEDERAL BUREAU OF
INVESTIGATION,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted May 11, 2021 *
Pasadena, California
Filed June 30, 2021
Before: John B. Owens, Ryan D. Nelson, and
Bridget S. Bade, Circuit Judges.
Opinion by Judge R. Nelson
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 SCHOENBERG V. FBI
SUMMARY **
Freedom of Information Act / Attorney’s Fees
The panel affirmed the district court’s order denying
plaintiff’s request for attorney’s fees following his
successful suit under the Freedom of Information Act
(“FOIA”) to obtain redacted information from the Federal
Bureau of Investigation related to a 2016 search warrant,
investigating then-Secretary of State Hillary Clinton’s email
practices.
A plaintiff must show entitlement to fees, and four
factors inform the entitlement inquiry. The district court
held that the first three factors – public benefit, plaintiff’s
commercial benefit, and the nature of plaintiff’s interest in
the information – favored fees. As to the fourth factor – the
legal reasonableness of the FBI’s withholding – the district
court held this factor disfavored fees and outweighed the
other factors. The district court concluded that plaintiff was
a prevailing party for attorney’s fees under FOIA, but denied
fees after balancing the relevant factors.
The panel reviewed the district court’s denial of
attorney’s fees under FOIA for abuse of discretion.
Concerning whether the fourth entitlement factor
favored fees, the panel held the FBI was reasonable to think
that the District Court for the Southern District of New York
(“SDNY”)’s order sealing the warrant and its related
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SCHOENBERG V. FBI 3
materials limited its ability to disclose information to
plaintiff. The panel held that because the FBI’s reliance on
the SDNY sealing order was reasonable, the district court’s
same conclusion was reasonable too.
Concerning whether the district court erred in balancing
the factors, the panel held that the district court did not abuse
its discretion in analyzing the individual factors. The panel
held further that the record did not suggest that this was a
rare case when reversal was warranted. Accordingly, the
district court reasonably held that the fourth factor
outweighed the other three factors.
COUNSEL
Paul D. Murphy and Jodi M. Newberry, Murphy Rosen LLP,
Santa Monica, California, for Plaintiff-Appellant.
Nicola T. Hanna, United States Attorney; Daniel Tenny and
Joseph F. Busa, Appellate Staff; Civil Division, United
States Department of Justice, Washington, D.C.; for
Defendant-Appellee.
4 SCHOENBERG V. FBI
OPINION
R. NELSON, Circuit Judge:
After a successful suit under the Freedom of Information
Act (“FOIA”), E. Randol Schoenberg obtained redacted
information related to a 2016 search warrant, investigating
then-Secretary of State Hillary Clinton’s email practices.
Though Schoenberg was a prevailing party eligible for
attorney’s fees under FOIA, the district court denied fees
after balancing the relevant factors. Applying our
deferential standard of review, we affirm.
I
In October 2016, the District Court for the Southern
District of New York (“SDNY”) issued a search warrant as
part of a confidential investigation into then-Secretary
Clinton’s email practices. Specifically, the warrant allowed
the FBI to recover emails on former Congressman Anthony
Weiner’s laptop. To further the “confidential nature of this
investigation,” the FBI asked the SDNY to seal the warrant
and its related materials “until the Court orders otherwise.”
The SDNY granted the request.
Schoenberg filed a FOIA request with the FBI, seeking
to obtain the warrant, the application for the warrant, the
supporting affidavit, and the warrant receipts (“warrant
materials”). Schoenberg also asked the SDNY to unseal the
warrant materials. The FBI agreed to unseal but asked the
SDNY to redact Weiner’s and an FBI agent’s identifying
information. Again, the SDNY granted the FBI’s request.
But the SDNY also independently redacted other
information about Weiner’s wife “to protect a person, who
ha[d] not been publicly identified by the government” and
because “the strong common law presumption of access
SCHOENBERG V. FBI 5
ha[d] been overcome” by countervailing privacy interests.
The SDNY then placed the redacted warrant materials on its
public docket (“first release”).
When the FBI gave Schoenberg a copy of the first
release, it justified the redactions because (1) they fell within
FOIA Exemption 7(C) as disclosure could invade reasonable
expectations of privacy; and (2) they were part of sealed
court records, ineligible for release under FOIA.
Schoenberg administratively appealed, and the FBI denied
the request on the same grounds.
In March 2018, Schoenberg filed a FOIA suit in the
Central District of California to obtain the information
redacted in the first release. Around that time, the Office of
the Inspector General was working on a report that related,
in part, to the warrant materials (“2018 IG Report”). So the
FBI asked the SDNY to unseal some of the information
redacted in the first release to facilitate the 2018 IG Report’s
publication. The SDNY granted the request, redacting only
the FBI agent’s name and Weiner’s wife’s personal email
address (“second release”). The FBI sent Schoenberg a copy
of the second release, and the 2018 IG Report went public. 1
Back in the Central District of California, Schoenberg
moved for attorney’s fees under FOIA, arguing he had
“substantially prevailed” by obtaining the information
disclosed between the first and second releases. See 5 U.S.C.
§ 552(a)(4)(E). The district court recognized that
Schoenberg was not responsible for all the unredactions
1
After the second release, the Central District of California granted
the FBI’s motion for summary judgment in Schoenberg’s FOIA suit on
the remaining redactions, and we affirmed. Schoenberg v. FBI, No. LA
CV18-01738, 2019 WL 2605629 (C.D. Cal. Apr. 29, 2019), aff’d, 820 F.
App’x 609 (9th Cir. 2020).
6 SCHOENBERG V. FBI
since the 2018 IG Report had disclosed most of the same
information. Instead, Schoenberg was only responsible for
the information unredacted in the second release but not
included in the 2018 IG Report. This information consisted
of an FBI agent’s background information, identifying
information of Weiner and his wife, and Weiner’s laptop
serial and service tag numbers (“unredacted information”).
Analyzing Schoenberg’s eligibility for fees, the district
court held that the FBI’s reasons for withholding the
unredacted information were legally insufficient. In other
words, the SDNY sealing order and Exemption 7(C) did not
justify the FBI’s decision to withhold unredacted
information from Schoenberg. As to Schoenberg’s
entitlement, however, the district court held that the relevant
factors balanced against awarding fees. The first three
factors—public benefit, Schoenberg’s commercial benefit,
and the nature of Schoenberg’s interest in the information—
favored fees. But the fourth factor—the legal
reasonableness of the FBI’s withholding—disfavored fees
and outweighed the other factors. Schoenberg appealed.
II
We have jurisdiction under 28 U.S.C. § 1291. We
review a district court’s denial of attorney’s fees under FOIA
for abuse of discretion and questions of law de novo. See
Hiken v. Dep’t of Def., 836 F.3d 1037, 1042 (9th Cir. 2016).
Generally, abuse of discretion review means we will not
reverse unless “the district court reaches a result that is
illogical, implausible, or without support in inferences that
may be drawn from the record.” United States v. Hinkson,
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) (citation
omitted).
SCHOENBERG V. FBI 7
III
FOIA allows courts to assess “reasonable attorney fees
and other litigation costs” against the federal government
when a plaintiff has “substantially prevailed.” 5 U.S.C.
§ 552(a)(4)(E)(i). This occurs when a plaintiff obtains
information as part of a FOIA suit through either “a judicial
order, or an enforceable written agreement or consent
decree” or “a voluntary or unilateral change in position by
the agency.” Id. § 552(a)(4)(E)(ii). If a plaintiff
substantially prevails, the plaintiff is eligible for fees. Id.
§ 552(a)(4)(E).
That said, granting fees to an otherwise eligible plaintiff
is still “within the sound discretion of the trial court.” Hiken,
836 F.3d at 1044 (citation omitted); see also 5 U.S.C.
§ 552(a)(4)(E)(i) (a district court “may assess” fees even if a
plaintiff substantially prevails). Thus, a plaintiff must show
entitlement to fees as well. Hiken, 836 F.3d at 1043. Four
factors inform this entitlement inquiry: “(1) the public
benefit from disclosure, (2) any commercial benefit to the
plaintiff resulting from disclosure, (3) the nature of the
plaintiff’s interest in the disclosed records, and (4) whether
the government’s withholding of the records had a
reasonable basis in law.” Id. at 1044 (citation omitted).
These factors are not exhaustive. “[T]he court may take into
consideration whatever factors it deems relevant in
determining whether an award of attorney’s fees is
appropriate.” Long v. IRS, 932 F.2d 1309, 1313 (9th Cir.
1991) (per curiam) (internal quotation marks and citation
omitted).
We have not previously explained how abuse of
discretion review applies in the FOIA attorney’s fees
context. We find the two-step approach in Morley v. CIA,
894 F.3d 389 (D.C. Cir. 2018) (per curiam), persuasive.
8 SCHOENBERG V. FBI
First, “we review for abuse of discretion the district court’s
analysis of each of the four individual factors.” Id. at 391.
Second, “we review for abuse of discretion the district
court’s balancing of the four factors.” Id.On appeal, the parties do not dispute Schoenberg’s
eligibility or that the first three entitlement factors favored
fees. Instead, this case turns on two issues: whether the
fourth entitlement factor favored fees and whether the
district court erred in balancing the factors. We see no error
on either issue and affirm the denial of attorney’s fees.
A
Under the fourth entitlement factor, “a court would not
award fees where the government’s withholding had a
colorable basis in law but would ordinarily award them if the
withholding appeared to be merely to avoid embarrassment
or to frustrate the requester.” Church of Scientology of Cal.
v. U.S. Postal Serv., 700 F.2d 486, 492 n.6 (9th Cir. 1983)
(citation omitted), abrogated in part on other grounds as
recognized in First Amendment Coal. v. U.S. Dep’t of Just.,
878 F.3d 1119, 1127 (9th Cir. 2017). Thus, an agency must
“analyze the relevant law” and base its nondisclosure on
legal authority that reasonably applies. United Ass’n of
Journeymen & Apprentices of Plumbing & Pipefitting
Indus., Loc. 598 v. Dep’t of Army, Corps of Eng’rs, 841 F.2d
1459, 1463 (9th Cir. 1988), abrogated in part on other
grounds as recognized in First Amendment Coal., 878 F.3d
at 1126. Similarly, the district court must decide whether it
was reasonable for the agency to rely on that authority. Id.
The district court can only consider authority the agency
relied on and any contrary authority the plaintiff cites. Id.
Again, the lodestar of this analysis is not whether the agency
was correct, but whether the application of its legal basis was
SCHOENBERG V. FBI 9
“colorable.” Church of Scientology, 700 F.2d at 492 n.6
(citation omitted).
As a reviewing court, our analysis is slightly different.
Instead of analyzing an agency’s reasonableness in the first
instance, we review whether the district court was
reasonable in its conclusions. See Hiken, 836 F.3d at 1042.
As the D.C. Circuit in Morley put it: “The question for us is
whether the District Court reasonably (even if incorrectly)
concluded that the agency reasonably (even if incorrectly)
withheld documents.” 894 F.3d at 393. Thus, our review of
the district court’s fourth-entitlement-factor determination is
highly deferential.
Schoenberg argues that the district court failed to explain
why the FBI’s reliance on Exemption 7(C) and the SDNY
sealing order was reasonable. Though the district court’s
analysis was not expansive, we can affirm the denial of
attorney’s fees “on any ground supported by the record.”
Classic Media, Inc. v. Mewborn, 532 F.3d 978, 990 (9th Cir.
2008) (citation omitted). And here, the record supports the
finding that the FBI reasonably relied on the SDNY sealing
order to withhold the unredacted information from
Schoenberg. 2
In its correspondence to Schoenberg, the FBI cited GTE
Sylvania, Inc. v. Consumers Union of the United States, Inc.,
445 U.S. 375 (1980), for the proposition that the SDNY
sealing order disallowed disclosure under FOIA. And as
Schoenberg points out, the FBI’s nondisclosure policy stems
2
Schoenberg also argues that the FBI’s reliance on Exemption 7(C)
was unreasonable. Because an agency needs only “a reasonable basis in
law,” Hiken, 836 F.3d at 1044 (emphasis added) (citation omitted), our
analysis of the SDNY sealing order answers the issue presented.
10 SCHOENBERG V. FBI
in part from Morgan v. U.S. Department of Justice, 923 F.2d
195 (D.C. Cir. 1991). Applied to the facts surrounding the
SDNY sealing order, these cases reasonably justified the
FBI’s decision to withhold the unredacted information.
GTE Sylvania held that when an agency is enjoined from
disclosing information, it has “no discretion . . . to exercise.”
445 U.S. at 386. Thus, the agency could not have
“improperly” withheld documents under FOIA because it
could not disclose them in the first place. Id.; see also
5 U.S.C. § 552(a)(4)(B). An injunction prevents disclosure
under FOIA “even if [an agency] ha[s] proper grounds to
object to the order.” GTE Sylvania, 445 U.S. at 386(citations omitted).
Morgan explained how GTE Sylvania applies to a court
sealing order. In that case, the district court had dismissed
the FOIA action solely because the requested records were
under court seal. 923 F.2d at 195. But the D.C. Circuit
reversed, holding “that the mere existence of a court seal is,
without more, insufficient to justify nondisclosure under the
FOIA.” Id. at 199. Instead, a sealing order only justifies
nondisclosure if it is “intended to operate as the functional
equivalent of an injunction prohibiting disclosure.” Id. To
determine a sealing order’s intended function, a court
considers the totality of the circumstances, including the
sealing order, transcripts and papers filed with the sealing
court, sealing orders in similar cases, and the issuing court’s
general rules governing sealed records. Id. at 198.
Ultimately, this analysis boils down to two inquiries:
(1) Does the agency have discretion to disclose the
information under seal? And (2) would disclosing the
information show disrespect for the judicial process? Id.at 197–98.
SCHOENBERG V. FBI 11
Correct or not, the FBI’s reliance on the SDNY sealing
order was reasonable. Initially, the FBI asked the SDNY to
seal the warrant materials. The FBI then asked the SDNY to
remove the seal with few exceptions. The SDNY could have
simply granted that request. But it independently redacted
additional information, repeatedly explaining how privacy
interests other than the government’s justified redacting that
information. Put differently, the SDNY did not leave parts
of the warrant materials sealed because of the FBI’s requests
alone; it had additional and independent reasons to protect
the redacted information in the first release. The FBI was
therefore not unreasonable to think its discretion to disclose
the redacted information was limited or that disclosing
without permission would offend the judicial process.
Otherwise, why did the FBI ask the SDNY for further
unredactions before publishing the 2018 IG Report?
Whether obligated or acting out of comity for another
branch of government, the FBI was reasonable to think the
SDNY sealing order limited its ability to disclose
information to Schoenberg. See Morgan, 923 F.2d at 197–
98. And because the FBI’s reliance on the SDNY sealing
order was reasonable, the district court’s same conclusion
was reasonable too.
B
Schoenberg also argues that the district court abused its
discretion in balancing the four factors. True, the first three
factors favored fees and only the fourth disfavored fees. But
the district court acted within its discretion to deny
Schoenberg fees.
Though a district court has discretion to balance these
factors, we have not clarified how to review that balancing
when, as here, the factors point in different directions. See
12 SCHOENBERG V. FBI
Church of Scientology, 700 F.2d at 492 & n.6. Again, we
find Morley instructive. A district court’s discretion is “very
broad” when the factors point in different directions. See
Morley, 894 F.3d at 391–92. And so long as the district court
did not abuse its discretion in analyzing each individual
factor, “it will be the rare case” that we reverse a district
court’s balancing analysis. Id. We owe this deference
precisely because the four factors are not equally weighted—
they each involve a sliding scale, allowing one or more
factors to outweigh the others. Thus, unless the rare case
presents itself where we have a “definite and firm
conviction” that the district court clearly erred, we leave the
relative weighing of those sliding scales to the district court.
United States v. Mixon, 930 F.3d 1107, 1110 (9th Cir. 2019)
(citation omitted).
The district court did not abuse its discretion in analyzing
the individual factors. See supra Part III.A. And the record
does not suggest this is a rare case when reversal is
warranted. If anything, the district court’s balancing was
reasonable. In Morley, though the first three factors favored
fees, the agency’s bases in law were “hardly unreasonable”
and “tilted the balance in favor of denying attorney’s fees,”
even if ultimately incorrect. 894 F.3d at 394, 396. The same
is true here. Accordingly, the district court here reasonably
held that the fourth entitlement factor outweighed the other
three. 3
3
Schoenberg also argues the district court contradicted itself. We
disagree. The district court described the unredacted information as
“significant to the public,” but later said that the public benefit was
“limited.” These statements are not inherently contradictory. It was well
“within [the] broad range of permissible conclusions” to conclude that
the unredacted information, while holding some quantum of public
significance, conferred only a limited public benefit. See Kode v.
SCHOENBERG V. FBI 13
IV
The district court reasonably concluded that the FBI
reasonably based its nondisclosure on the SDNY sealing
order. The district court also acted within its discretion in
balancing the four entitlement factors.
AFFIRMED.
Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (per curiam) (citation
omitted).