Schoenberg v. FBI, No. 20-55607, 2021 WL 2673148 (9th Cir. June 30, 2021) (Nelson, J.)

Schoenberg v. FBI, No. 20-55607, 2021 WL 2673148 (9th Cir. June 30, 2021) (Nelson, J.)

Re:  Request for records concerning 2016 search warrant regarding investigating then-Secretary of State Hillary Clinton's email practices

Disposition:  Affirming district court's denial of requester's motion for attorney fees

• Litigation Considerations, Standard of Review & Attorney Fees:  The Court of Appeals for the Ninth Circuit relates that "[it has] not previously explained how abuse of discretion review applies in the FOIA attorney's fees context."  "[The court] find[s] the two-step approach [from the D.C. Circuit] persuasive."  "First, '[the court] review[s] for abuse of discretion the district court's analysis of each of the four individual factors.'"  "Second, '[the court] review[s] for abuse of discretion the district court's balancing of the four factors.'"
   
• Attorney Fees, Entitlement & Litigation Considerations, Standard of Review:  The Court of Appeals for the Ninth Circuit relates that "[o]n appeal, the parties do not dispute [the requester'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."  "[The court] see[s] no error on either issue and affirm the denial of attorney's fees."  The court finds that "[a]s a reviewing court, our analysis is slightly different."  "Instead of analyzing an agency's reasonableness in the first instance, [the court] review[s] whether the district court was reasonable in its conclusions."  "Thus, [the court's] review of the district court's fourth-entitlement-factor determination is highly deferential."  The court relates that "[the requester] 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, [the court] can affirm the denial of attorney's fees 'on any ground supported by the record.'"  "And here, the record supports the finding that the FBI reasonably relied on the SDNY sealing order to withhold the unredacted information from [the requester]."  The court finds that "the agency could not have 'improperly' withheld documents under FOIA because it could not disclose them in the first place."  "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."  The court finds that "because the FBI's reliance on the SDNY sealing order was reasonable, the district court's same conclusion was reasonable too."
   
  Regarding the balancing of the four factors, the court finds that "[a] district court's discretion is 'very broad' when the factors point in different directions."  "And so long as the district court did not abuse its discretion in analyzing each individual factor, 'it will be the rare case' that [the court] reverse[s] a district court's balancing analysis."  "[The court] owe[s] 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 [the court has] a 'definite and firm conviction' that the district court clearly erred, [the court] leave[s] the relative weighing of those sliding scales to the district court."  The court finds that "[t]he district court did not abuse its discretion in analyzing the individual factors."