Clemente v. Federal Bureau of Investigation

714 F. App'x 2

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 9, 2018
• Docket: 16-5067
• Status: Published

Opinion

ORDER

Per Curiam

Upon consideration of appellant’s petition for rehearing en banc and the response thereto; appellant’s motion for leave to reply; and the absence of a re"quest by any member of the court for a vote on the petition, it is

ORDERED that the motion for leave be denied. It is

FURTHER ORDERED that the petition be denied.

Kavanaugh, Circuit Judge, concurring in the denial of rehearing en bane:

As explained in my separate opinion in Morley v. CIA, 719 F.3d 689 (D.C. Cir. 2013), this Court’s four-factor test for awarding attorney’s fees in FOIA cases is inconsistent with FOIA’s text and structure, and impermissibly favors some FOIA plaintiffs over other equally deserving FOIA plaintiffs. In an appropriate case, I believe that the en banc Court should reexamine and jettison that four-factor test. But for reasons explained by the Government in its response to the petition for rehearing en banc, this case is not an appropriate vehicle for such reconsideration.