Angela Clemente v. FBI (ORDER) , 714 F. App'x 2 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 16-5067 September Term, 2017
1:08-cv-01252-BJR
Filed On: March 9, 2018
Angela Clemente,
Appellant
v.
Federal Bureau of Investigation, et al.,
Appellees
BEFORE: Garland, Chief Judge; Henderson, Rogers, Tatel, Griffith,
Kavanaugh*, Srinivasan, Millett, Pillard, Wilkins, and Katsas, Circuit
Judges; Edwards, Senior Circuit Judge
ORDER
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 request 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.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Ken R. Meadows
Deputy Clerk
* A separate statement by Circuit Judge Kavanaugh, concurring in the denial of rehearing
en banc, is attached.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 16-5067 September Term, 2017
Kavanaugh, Circuit Judge, concurring in the denial of rehearing en banc:
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 re-examine 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.
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