23-137-cv Wilson v. Federal Bureau of Investigation

United States Court of Appeals For the Second Circuit August Term 2023

Argued: December 15, 2023 Decided: January 29, 2024

No. 23-137-cv

JOHN WILSON,

Plaintiff-Appellant,

v.

FEDERAL BUREAU OF INVESTIGATION,

Defendant-Appellee,

Appeal from the United States District Court for the Southern District of New York No. 1:20CV10324, Lewis A. Kaplan, Judge.

Before: PARKER, NATHAN, AND MERRIAM, Circuit Judges.

Plaintiff-Appellant John Wilson appeals from the District Court’s November 28, 2022, judgment denying his motion for attorneys’ fees and costs under the Freedom of Information Act (“FOIA”),

(a)(4)(E)(i). Wilson, dissatisfied with the response of Defendant-Appellee Federal Bureau of Investigation (“FBI”) to several FOIA requests, brought suit in federal court asserting that the FBI had conducted an inadequate search. The District Court granted Wilson’s motion for summary judgment in part, ordering the FBI to conduct a search of an additional database. The additional search resulted in no new disclosures to Wilson. Thereafter, Wilson filed a motion seeking an award of attorneys’ fees and costs as a substantially prevailing party under FOIA’s fee- shifting provision. The District Court denied Wilson’s motion, finding that although Wilson was statutorily eligible for fees, he was not entitled to fees under the criteria articulated by this Court in Pietrangelo v. United States Army,

(2d Cir. 2009) (per curiam). We conclude that the District Court correctly applied the Pietrangelo factors and did not abuse its discretion in holding that those factors weighed against an award of attorneys’ fees and costs.

AFFIRMED.

DAVID B. RANKIN (Katherine “Q” Adams, on the brief), Beldock Levine & Hoffman LLP, New York, NY, for Plaintiff-Appellant.

DANA WALSH KUMAR (Christopher Connolly, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Defendant- Appellee.

PER CURIAM:

Plaintiff-Appellant John Wilson appeals from the District Court’s

November 28, 2022, judgment denying his motion for attorneys’ fees and costs

under the Freedom of Information Act (“FOIA”),

(a)(4)(E)(i).

This appeal is the culmination of Wilson’s efforts to obtain records about

himself from Defendant-Appellee Federal Bureau of Investigation (“FBI”).

2 Between June 2013 and October 2019, Wilson submitted three FOIA requests to

the FBI. The March 26, 2014, request, which was his second FOIA request and

primary focus of his complaint, states: “I request disclosure of all agency records

concerning, naming, or relating to me.” App’x at 14. In response to this request,

the FBI produced ten pages of records. Wilson then submitted a third request,

again seeking all records pertaining to him. In response to that request, the FBI

informed Wilson that it had already produced all responsive records.

After exhausting his administrative remedies, Wilson filed suit in the

Southern District of New York, alleging that the FBI had failed to conduct an

adequate search under FOIA,

(a)(3), (a)(4)(B). In April 2021, while

the suit was pending, the FBI made a revised production, which contained five

pages that had not been produced in response to Wilson’s FOIA requests. Each of

the five new pages was largely duplicative of pages already produced, but one

page contained a handwritten note that had previously been redacted.

Wilson and the FBI each moved for summary judgment; the District Court

granted the motions in part and denied them in part. Specifically, the District

Court found that the FBI’s records search was adequate, except for its failure to

search the Delta system — its record-keeping system for records pertaining to

3 confidential sources. The District Court therefore ordered the FBI to search the

Delta system for responsive records. The FBI complied and informed the court

that it had found no responsive records.

Thereafter, Wilson filed a motion seeking attorneys’ fees and costs under

FOIA’s fee-shifting provision,

(a)(4)(E)(i). The Magistrate Judge

recommended denying Wilson’s motion, concluding that Wilson was statutorily

eligible for fees under FOIA’s fee-shifting provision but was not entitled to fees

under the criteria articulated by this Court in Pietrangelo v. United States Army,

(2d Cir. 2009) (per curiam). The District Judge adopted the

Magistrate Judge’s report and recommendation over Wilson’s objection, denying

the motion for fees.

We conclude that the District Court correctly applied the Pietrangelo

factors, and did not abuse its discretion in holding that those factors weighed

against an award of attorneys’ fees and costs. We therefore AFFIRM the

judgment of the District Court.

I. Standard of Review

We review a district court’s denial of attorneys’ fees and costs for abuse of

discretion. See Lilly v. City of New York,

(2d Cir. 2019);

4 Pietrangelo,

. Other Courts of Appeals have “explained how abuse

of discretion review applies in the FOIA attorney’s fees context. . . . First, ‘we

review for abuse of discretion the district court’s analysis of each of the four

individual factors.’ Second, ‘we review for abuse of discretion the district court’s

balancing of the four factors.’” Schoenberg v. FBI,

(9th Cir.

2021) (quoting Morley v. CIA,

(D.C. Cir. 2018) (per curiam)).

Arguments that a district court committed legal error in denying a fee award are

reviewed de novo. See Pietrangelo,

.

II. Discussion

Wilson contends on appeal that in denying his motion for attorneys’ fees,

the District Court erroneously created and applied “a heightened standard

requiring a significant degree of success in the litigation, as defined by the

amount of new information gained.” Appellant’s Br. at 14. Wilson also

challenges the District Court’s application of the first, third, and fourth

Pietrangelo factors.

The parties do not dispute that Wilson is statutorily eligible for a fee award

under FOIA’s fee-shifting provision. The only issue on appeal is whether the

District Court abused its discretion in concluding that Wilson is not entitled to a

5 fee award under the four criteria articulated in Pietrangelo. 1 For the reasons

articulated below, we conclude that the District Court did not abuse its discretion

in applying or weighing the Pietrangelo factors and it did not create or apply a

“heightened standard” for determining Wilson’s entitlement to attorneys’ fees

and costs.

A. Attorneys’ Fees Awarded Pursuant to FOIA

At the outset, we recognize that the D.C. Circuit is “something of a

specialist in adjudicating FOIA cases, given the nature of much of its caseload.”

Whitaker v. Dep’t of Com.,

, 206 n.25 (2d Cir. 2020) (citation and

quotation marks omitted). There is little precedent in this Circuit applying

FOIA’s fee-shifting provision. Accordingly, we look approvingly to the decisions

of the D.C. Circuit for guidance in this area.

Under FOIA’s fee-shifting provision, a district court may “assess against

the United States reasonable attorney fees and other litigation costs reasonably

1 The Magistrate Judge included an alternative recommendation addressing the reasonableness of the fees and costs claimed by Wilson “in the event that” the District Court determined Wilson was “‘entitled’ to attorneys’ fees and costs.” App’x at 151. Wilson also challenges this portion of the recommended ruling, contending that the Magistrate Judge improperly recommended a reduction of the fees and costs claimed. Because we conclude that the District Court acted within its discretion in finding that Wilson is not entitled to an award of attorneys’ fees or costs, we do not reach this argument. 6 incurred” by a complainant who “has substantially prevailed” in his or her FOIA

action.

(a)(4)(E)(i). If a litigant is statutorily eligible for fees under

this provision, the district court must then weigh four criteria to determine

whether the litigant is entitled to an award of fees: “(1) the public benefit derived

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

plaintiff’s interest in the records; and (4) whether the [g]overnment had a

reasonable basis for withholding requested information.” Pietrangelo,

.

B. Application of Pietrangelo Factors

1. Public Benefit

As other Courts of Appeals have observed, “[p]robably the most important

consideration in determining entitlement to fees in a FOIA case is the benefit to

the public which is to be derived from release of the information sought.” Miller

v. U.S. Dep’t of State,

(8th Cir. 1985). “[T]he public-benefit

factor 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.” Morley v. CIA,

(D.C. Cir. 2016). “To have potential public value, the request must have at least a

7 modest probability of generating useful new information about a matter of

public concern. The higher this probability and the more valuable the new

information that could be generated, the more potential public value a request

has.”

(citation and quotation marks omitted).

The District Court correctly concluded that this first factor does not

support an award of fees because the documents Wilson obtained had little

public value and the records he sought were of personal, rather than public,

interest. Wilson argues that the District Court committed legal error by

considering the public value of the documents obtained because of the litigation,

rather than assessing ex ante the potential public value of his request. But even

considering only the potential public value of the request, the personal nature of

the information Wilson requested nonetheless weighs against an award of fees.

Wilson further contends that the first factor weighs in his favor because the

materials he requested would shed light on the records the government

maintains on its citizens generally. We disagree. Wilson’s FOIA requests were

very clear: he sought records pertaining only to himself. While the release of

records relating to Wilson might conceivably increase the public’s “knowledge of

its government[,] . . . Congress did not have this broadly defined benefit in mind

8 when it amended FOIA to authorize attorneys’ fees . . . .” Cotton v. Heyman,

(D.C. Cir. 1995). And Wilson’s requests were not “likely to add to

the fund of information that citizens may use in making vital political choices,” a

key inquiry under the public benefit factor.

(citation and quotation marks

omitted). Accordingly, we agree with the District Court that the public benefit

factor, the most important in the analysis, weighs against an award of fees. 2

2. The Nature of Wilson’s Interest in the Records

The District Court also correctly concluded that the third Pietrangelo

factor, the nature of Wilson’s interest in the records, weighs against an award of

fees. Wilson challenges this conclusion, contending that he (1) lacked commercial

motivation and (2) “maintains an online accounting” of his experiences to share

with the public. Appellant’s Br. at 18. But his requests can be personal in nature

even if they were not commercially motivated. The record supports the District

Court’s conclusion that Wilson sought the documents for purely personal

reasons, particularly, his desire to collect information about why he was

allegedly contacted by FBI agents. Wilson’s online accounting of his experiences

has no bearing on that fact. As the D.C. Circuit has explained, plaintiffs “who

2 Because the parties agree that the second Pietrangelo factor, commercial benefit, weighs in favor of a fee award, we do not address this second factor in our discussion. 9 have a sufficient private interest in the requested information do not need the

additional incentive of recovering their fees and costs to induce them to pursue

their request in the courts.” LaSalle Extension Univ. v. FTC,

(D.C. Cir. 1980) (per curiam); see also Davy v. CIA,

(D.C. Cir.

2008) (“[T]hose who seek documents for private advantage . . . cannot deserve a

subsidy as they benefit only themselves and typically need no incentive to

litigate.”). We thus agree with the District Court’s determination that the third

factor weighs against an award of fees.

3. The FBI’s Basis for Withholding

The District Court also correctly concluded that the fourth Pietrangelo

factor weighs against a fee award. The fourth factor “considers whether the

agency’s opposition to disclosure had a reasonable basis in law . . . .” Davy,

(citation and quotation marks omitted). Here, “[t]he question is not

whether [Wilson] has affirmatively shown that the agency was unreasonable, but

rather whether the agency has shown that it had any colorable or reasonable

basis for not disclosing the material until after [Wilson] filed suit.”

.

Wilson contends that the District Court’s order requiring the FBI to search

its Delta system establishes that the FBI’s initial decision not to conduct such a

10 search lacked a reasonable basis in law. We disagree. The FBI initially declined to

conduct the search because it believed the system contained no responsive

records. The reasonableness of that position is evidenced by the fact that the

subsequent Delta search yielded zero responsive records. We therefore agree

with the District Court’s determination that the FBI’s decision to not search the

Delta system had a reasonable basis in law.

Because three of the four Pietrangelo factors in this case weigh against the

award of fees, the District Court did not abuse its discretion in denying Wilson’s

motion for attorneys’ fees and costs under FOIA’s fee-shifting provision.

III. Conclusion

We conclude that the District Court correctly applied the Pietrangelo

factors and did not abuse its discretion in holding that those factors weighed

against an award of attorneys’ fees and costs. We therefore AFFIRM the

judgment of the District Court.

11