Vern Mckinley v. Fed. Housing Finance Agency
408 U.S. App. D.C. 35
| D.C. Cir. | 2014Background
- Vern McKinley (consultant/academic) filed a FOIA request to FHFA in May 2010 seeking communications about why FHFA chose conservatorship (not receivership) for Fannie Mae and Freddie Mac in Sept. 2008.
- FHFA identified three responsive documents and withheld two McKinley sought, invoking the deliberative-process and attorney work-product privileges; it later produced heavily redacted versions after litigation.
- The district court ruled the deliberative-process privilege applied, found the work-product privilege inapplicable after in camera review, and ordered disclosure of reasonably segregable, non-privileged material; FHFA produced redacted pages and later won summary judgment that it satisfied FOIA.
- McKinley moved for attorneys’ fees; the district court doubted fee eligibility but assumed arguendo eligibility and denied fees on entitlement grounds after applying a multi-factor test.
- The district court found the public benefit from disclosed material minimal (heavily redacted, few meaningful disclosures) and that FHFA’s legal positions were colorable and not recalcitrant; it balanced the factors against awarding fees.
- The D.C. Circuit affirmed, concluding the district court did not abuse its discretion in finding McKinley not entitled to attorneys’ fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McKinley was eligible for FOIA fees ("substantially prevailed") | McKinley argued producing documents (even redacted) shows success | FHFA argued the limited, redacted disclosures did not make McKinley a prevailing party | District court did not decide eligibility; assumed arguendo eligibility; appellate court did not reach eligibility issue because entitlement dispositive |
| Whether McKinley was entitled to fees under the multi-factor test | McKinley claimed public benefit from disclosures and compared himself to scholarly plaintiffs (e.g., Davy) | FHFA argued disclosures provided scant public benefit, McKinley had possible commercial incentives, and agency had a colorable legal basis for withholding | Court held entitlement factors (public benefit, commercial/private interest, reasonableness of withholding) weighed against fees; no abuse of discretion in denying fees |
| Weight of public benefit from disclosed material | McKinley pointed to unredacted phrases and an August 18, 2008 date as revealing agency considerations/timing | FHFA contended redactions left only boilerplate phrases of unclear significance and date alone was inconclusive | Court held public benefit minimal because disclosures were heavily redacted and ambiguous |
| Whether FHFA’s withholding was legally unreasonable or recalcitrant | McKinley implicitly contended FHFA’s withholdings were insufficiently justified | FHFA maintained it had a colorable basis (deliberative process; arguable work-product) and complied promptly with requests and court orders | Court held FHFA’s positions were reasonable, not obdurate; this factor strongly weighed against fee award |
Key Cases Cited
- McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331 (D.C. Cir. 2011) (deliberative-process privilege standard)
- Davy v. CIA, 550 F.3d 1155 (D.C. Cir. 2008) (treatment of scholarly plaintiffs and fee-entitlement factors)
- Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092 (D.C. Cir. 1992) (multi-factor entitlement test)
- Cotton v. Heyman, 63 F.3d 1115 (D.C. Cir. 1995) (eligibility and entitlement structure for FOIA fees)
- Loving v. Dep’t of Def., 550 F.3d 32 (D.C. Cir. 2008) (segregability requirement under deliberative-process privilege)
- Judicial Watch, Inc. v. Dep’t of Justice, 432 F.3d 366 (D.C. Cir. 2005) (work-product privilege and segregation rule)
- Chesapeake Bay Found., Inc. v. Dep’t of Agric., 11 F.3d 211 (D.C. Cir. 1993) (government need only have a colorable basis in law to avoid fee award)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn index practice)
- Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir. 2011) (standard of review for entitlement-factor balancing)
- Earle v. Dist. of Columbia, 707 F.3d 299 (D.C. Cir. 2012) (assumption arguendo practice in appellate review)
- Nationwide Bldg. Maint., Inc. v. Sampson, 559 F.2d 704 (D.C. Cir. 1977) (early articulation of multi-factor fee-entitlement framework)