Grand Canyon Trust v. Bernhardt, No. 18-5232, 2020 WL 253019 (D.C. Cir. Jan. 17, 2020) (per curiam)

Grand Canyon Trust v. Bernhardt, No. 18-5232, 2020 WL 253019 (D.C. Cir. Jan. 17, 2020) (per curiam)

Re:  Requests for records concerning certain order issued by Secretary of the Interior

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

• Litigation Considerations, Standard of Review:  The Court of Appeals for the District of Columbia Circuit holds that "[t]he agencies are correct" "that the question of causation is reviewed only for clear error."  The court explains that "[a]ppellate courts review findings of fact only for clear error, . . . and actual causation is as much a question of fact in the FOIA context as it is in any other."  The court further explains that "[w]here parties dispute a question of law – such as the meaning of a statutory term or of a judicial precedent . . . – [the court] appl[ies] the de novo standard."
   
• Attorney Fees, Eligibility:  The Court of Appeals for the District of Columbia Circuit hold that "the district court certainly did not clearly err in finding that the [requester's] lawsuit did not cause a change in the agencies' positions."  The court relates that "the parties agree that the [requester] received the bulk of the documents responsive to its request only after it filed suit."  "But 'the mere filing of the complaint and the subsequent release of the documents is insufficient to establish causation.'"  "As the district court's opinion observed, the plaintiff's own evidence 'makes clear that both [agencies] had begun processing the plaintiff's request well before this lawsuit was initiated and that both agencies had even made partial releases . . . before the complaint was filed.'"  The court relates that the requester "argues that the lawsuit 'caus[ed] the Government to accelerate its final determinations and productions of documents.'"  The court finds that "[it] need not decide whether a 'sudden acceleration' of production can, of itself, represent a 'change in position' within the meaning of the statute."  "Here, even accepting the plaintiff's own characterization of the agencies' pre-suit predictions about their compliance timelines, those predictions were reasonably close to the final outcomes."  "These facts show that the agencies produced all of the requested documents roughly within the schedules that they had estimated before the litigation began."  "At most, the timeline reflects a modest acceleration from those earlier predictions."  "But predictions, by their very nature, are not perfect."
  
  Senior Circuit Judge Randolph, concurring in the judgment, writes separately to state that "the majority's statement ["that the plaintiff must prove that its lawsuit caused the government to change positions"] is dictum because the government did not change positions."  Judge Randolph also "believe[s] it appropriate to counter dicta with my own dictum."  Judge Randolph writes that "[5 U.S.C. § 552(a)(4)(E)(ii)] does not embody the catalyst theory."  "It does not do so because the provision requires only correlation not causation."