United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 29, 2019             Decided January 17, 2020

                        No. 18-5232

                  GRAND CANYON TRUST,
                      APPELLANT

                              v.

 DAVID LONGLY BERNHARDT, SECRETARY OF THE INTERIOR,
           IN HIS OFFICIAL CAPACITY, ET AL.,
                       APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:17-cv-00849)


    Matt G. Kenna argued the cause and filed the briefs for
appellant.

    Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Jessie K. Liu,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

    Before: GARLAND, Chief Judge, KATSAS, Circuit Judge,
and RANDOLPH, Senior Circuit Judge.

    Opinion for the Court filed PER CURIAM.
                                 2

    Opinion filed by Senior Circuit Judge RANDOLPH
concurring in the judgment.

     PER CURIAM: Under the Freedom of Information Act
(FOIA), a court “may” award attorney’s fees to a requester “in
any case under this section in which the complainant has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). In the
OPEN Government Act of 2007, Congress amended FOIA to
clarify that “a complainant has substantially prevailed if the
complainant has obtained relief” through either of the following:
“(I) a judicial order, or an enforceable written agreement or
consent decree; or (II) a voluntary or unilateral change in
position by the agency, if the complainant’s claim is not
insubstantial.” Id. § 552(a)(4)(E)(ii). This case concerns Grand
Canyon Trust’s eligibility for fees under the second prong,
known as the “catalyst theory.” Brayton v. Office of the U.S.
Trade Representative, 641 F.3d 521, 524-25 (D.C. Cir. 2011).

     In August 2016, the Trust requested records from the
Bureau of Land Management (BLM) and the Office of the
Secretary of the Interior. All parties agree that the Trust
received the lion’s share of the records it requested only after it
filed suit. But the parties draw different conclusions from more
or less the same timeline.

     The Trust maintains that it brought about a change in the
agencies’ positions, at least to the extent that its suit caused a
“sudden acceleration” in the processing of its requests. Trust Br.
16 (quoting EPIC v. U.S. Dep’t of Homeland Sec., 218 F. Supp.
3d 27, 41 (D.D.C. 2016)). The agencies answer that the Trust’s
suit caused no such change: they produced all the requested
documents on approximately the schedule they had predicted
before the suit was filed. The district court sided with the
agencies, finding that the Trust failed to show that its suit caused
the agencies to change their positions. See Grand Canyon Trust
                                3

v. Zinke, 311 F. Supp. 3d 381, 390 (D.D.C. 2018). The Trust
now appeals.

                                I

     We begin our analysis by resolving the parties’ dispute over
our standard of review.

     The Trust maintains that we must review de novo the
district court’s finding that it did not cause the release of the
requested documents, whether more quickly or at all. The
agencies’ view is that the question of causation is reviewed only
for clear error. The agencies are correct. To explain why, we
start with a brief retelling of the history of the attorney’s fees
provision of the Freedom of Information Act.

     For much of FOIA’s history, this court held that a plaintiff
could show that it “substantially prevailed,” and thus was
eligible for fees under then § 552(a)(4)(E), either by pointing to
a favorable action by a court (now codified in the first prong of
§ 552(a)(4)(E)(ii)), or through the catalyst theory (now codified
in the second prong). See Brayton, 641 F.3d at 524-25. In the
2001 Buckhannon case, the Supreme Court disagreed,
concluding that “the ‘catalyst theory’ is not a permissible basis
for the award of attorney’s fees” under the comparable language
of the Americans with Disabilities Act and the Fair Housing
Amendments Act. Buckhannon Bd. & Care Home, Inc. v. W.
Va. Dep’t of Health & Human Res., 532 U.S. 598, 610 (2001).
Rather, fees could only be obtained by litigants who were
“awarded some relief by [a] court.” Id. at 603. Taking the hint,
we shelved the catalyst theory for FOIA actions as well. See
Oil, Chem. & Atomic Workers Int’l Union v. DOE, 288 F.3d
452, 456-57 (D.C. Cir. 2002).
                                 4

     In the OPEN Government Act of 2007, however, Congress
disagreed with the Supreme Court and amended FOIA. As we
have recounted several times, “[t]he purpose and effect of this
law . . . was to change the ‘eligibility’ prong back to its pre-
Buckhannon form,” Brayton, 641 F.3d at 525, and thus to
“reinstate[] the catalyst theory in FOIA actions,” Judicial Watch,
Inc. v. FBI, 522 F.3d 364, 370 (D.C. Cir. 2008).1 We have
therefore returned to our original understanding, whereby a
plaintiff can prove fee eligibility by showing that its lawsuit
“substantially caused the government to release the requested
documents before final judgment.” Brayton, 641 F.3d at 524-
25.

     We have not revisited our standard of review since
Congress restored the catalyst theory. Before Buckhannon,
however, we repeatedly held that whether a plaintiff’s suit
caused the production of documents “is, of course, a question of
fact entrusted to the District Court and the appellate court is to
review that decision under a clearly-erroneous standard.”
Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1496 (D.C. Cir.
1984); see also, e.g., Weisberg v. Dep’t of Justice, 848 F.2d
1265, 1268 (D.C. Cir. 1988); Crooker v. Dep’t of the Treasury,
663 F.2d 140, 142 (D.C. Cir. 1980); Cox v. Dep’t of Justice, 601
F.2d 1, 6 (D.C. Cir. 1979). That should come as no surprise.
Appellate courts review findings of fact only for clear error, see
Pierce v. Underwood, 487 U.S. 552, 558 (1988); FED. R. CIV. P.
52(a)(6), and actual causation is as much a question of fact in
the FOIA context as it is in any other, cf. Pub. Citizen Health
Res. Grp. v. Young, 909 F.2d 546, 549 (D.C. Cir. 1990)
(reviewing but-for causation for clear error under the Equal


    1
       Accord Summers v. Dep’t of Justice, 569 F.3d 500, 502-03
(D.C. Cir. 2009); Davis v. Dep’t of Justice, 610 F.3d 750, 752 (D.C.
Cir. 2010); see also S. Rep. No. 110-59, at 6 (2007) (describing 5
U.S.C. § 552(a)(4)(E)(ii) as the “Buckhannon fix”)
                               5

Access to Justice Act); Hitchcock v. United States, 665 F.2d
354, 357-58 (D.C. Cir. 1981) (same in a negligence case).

     The Trust notes that, in several cases decided after
Buckhannon, we reviewed a district court’s conclusion about fee
eligibility de novo. We did -- but only to the extent that it
“rest[ed] on an interpretation of the statutory terms that define
eligibility for an award.” Edmonds v. FBI, 417 F.3d 1319, 1322
(D.C. Cir. 2005) (quoting Nat’l Ass’n of Mfrs. v. Dep’t of Labor,
159 F.3d 597, 599 (D.C. Cir. 1998)). Where parties dispute a
question of law -- such as the meaning of a statutory term or of
a judicial precedent like Buckhannon -- we apply the de novo
standard. See Pierce, 487 U.S. at 557. In Edmonds, for
example, we reviewed de novo whether a plaintiff who had won
a court order requiring expedited processing had “been awarded
some relief by [a] court” within the meaning of Buckhannon.
Edmonds, 417 F.3d at 1322 (quoting, inter alia, Buckhannon,
532 U.S. at 603); see also Judicial Watch, 522 F.3d at 367 (same
regarding a court-approved stipulation to disclose specified
documents by dates certain); Davy v. CIA, 456 F.3d 162, 164
(D.C. Cir. 2006) (same). But in none of those cases did we
purport to alter the established clearly-erroneous standard for
questions of fact. Accordingly, we apply that standard here.

                               II

      As the plaintiff acknowledges, “the question under th[e]
‘catalyst theory’ is whether the ‘institution and prosecution of
the litigation cause[d] the agency to release the documents
obtained.’” Pl.’s Mot. for Attorney’s Fees and Costs, at 2 (ECF
No. 17) (quoting Church of Scientology v. Harris, 653 F.2d 584,
587 (D.C. Cir. 1981)). Accord Brayton, 641 F.3d at 524; see
also Buckhannon, 532 U.S. at 610 (noting that, under the
“catalyst theory,” the test was “whether the lawsuit was a
substantial . . . cause of the defendant’s change in conduct”).
                                6

Here, the parties agree that the Trust 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.” Weisberg,
745 F.2d at 1496; see also Cox, 601 F.2d at 6 (“[A]n allegedly
prevailing complainant must assert something more than post
hoc, ergo propter hoc.”). Rather, as the parties again agree, the
plaintiff has the burden of showing “that it is more probable than
not that the government would not have performed the desired
act absent the lawsuit.” Pub. Citizen Health Res. Grp., 909 F.2d
at 550; Trust Br. 16; Sec’y Br. 35.

     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.” Grand Canyon
Trust, 311 F. Supp. 3d at 388. Neither agency suggested it
would fail to comply with the request; to the contrary, both gave
the plaintiff their predictions as to when production would be
completed. Moreover, both “completed their disclosures within
four months of the start of litigation, and these disclosures were
satisfactory to the plaintiff.” Id.; see also Trust Br. 12 (noting
that “the Trust determined that it would not challenge any of the
agencies’ redactions”). These facts were sufficient for the
district court to find that the “plaintiff has failed to show that
this suit ‘cause[d] the agenc[ies] to release the documents.’” Id.
at 388-89 (quoting Church of Scientology, 653 F.2d at 587)).

    The Trust does not dispute this point on appeal. Rather than
claim that its lawsuit caused the agencies to release documents
they otherwise would not have released, it argues that the
lawsuit “caus[ed] the Government to accelerate its final
determinations and productions of documents.” Trust Br. 13
(emphasis added). “The record shows,” the Trust maintains, that
                                7

its “lawsuit prompted the agencies to produce the requested
documents more quickly than the agencies planned or said they
would prior to when the suit was filed.” Id.

     We 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. The plaintiff alleges that the BLM
said in October of 2016 before suit was filed that it would take
“at least a year to compile and produce the responsive
documents.” Compl. ¶ 54 (App. 15). In fact -- without any
court-imposed deadlines -- the agency wrapped production with
the release of a final 57,112 pages on August 31, 2017, just six
weeks before the earliest date it had predicted. See Grand
Canyon Trust, 311 F. Supp. 3d at 385-86; Joint Status Report
(App. 40-41); Levine Decl. ¶ 10 (App. 113).

     As for the Office of the Secretary, before the onset of
litigation it represented that it would need at least two more
months -- and probably some undefined further amount of time
-- to finish processing its remaining 8,100 pages because of the
need for attorney review. See Trust Br. at 18; Compl. ¶ 43
(App. 13). In the end -- again without any deadlines imposed by
the court -- it completed its work just two weeks earlier than
predicted. See Grand Canyon Trust, 311 F. Supp. 3d at 385-86;
Joint Status Report (App. 40-41).

     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. The
routine administrative and legal tasks required before agencies
                                    8

can release documents readily explain the minor timeline
discrepancies here, particularly given the thousands of
documents involved.2 Whatever we might have made of those
discrepancies if we were deciding the question in the first
instance, the district court certainly did not clearly err in finding
that the plaintiff’s lawsuit did not cause a change in the
agencies’ positions.3

                                   III

     In order to establish eligibility for attorney’s fees, a FOIA
plaintiff must show that its lawsuit caused a change in the
agency’s position regarding the production of requested
documents. We review a district court’s fact-finding regarding
causation only for clear error. Because we find no such error
here, the judgment of the district court is


     2
        See CREW v. FEC, 711 F.3d 180, 189 n.8 (D.C. Cir. 2013)
(noting that FOIA itself “acknowledge[s] that some requests may
require significant processing time to search for, collect, examine, and
consult about documents before a ‘determination’ can be made”). In
this case, some delay and uncertainty resulted from the agencies’
obligation to notify third-parties of the opportunity to object to
disclosure of confidential information they had submitted to the
agencies, and to review whether those objections in fact satisfied an
exemption. See 43 C.F.R. § 2.27 (so requiring); id. § 2.30 (providing
a process for submitters to object); see also Compl. ¶ 43 (App. 13)
(recounting that the “Office of the Secretary further stated that it could
not release the remaining 8,000 pages of records . . . until after review
by the attorneys in its office, and that it could not estimate how long
those attorneys would need to complete their review”); App. 82-85
(letter from the Office of the Secretary to a submitter, notifying it of
its right to raise trade secret objections).
     3
      Although we have considered the plaintiff’s additional
arguments, we find them insufficient to warrant further discussion.
9

    Affirmed.
     RANDOLPH, Senior Circuit Judge, concurring in the
judgment: Every case about the meaning of a statute begins
with a question. Here the initial question is whether, under the
2007 amendment to the Freedom of Information Act, the
government changed its position after the plaintiff filed its
lawsuit. My colleagues answer that the government did not
change its position and so the plaintiff was not eligible for
attorney fees. If they restricted their opinion to that issue I
would be with them. But their opinion goes further and
perpetuates what I consider to be a misunderstanding about the
meaning of the 2007 FOIA amendment.

     The misunderstanding, stated in one early case and then
leapfrogged into three more of our opinions,1 is that the 2007
FOIA amendment reinstated the so-called “catalyst theory”
rejected in Buckhannon v. West Va. Dep’t of Health & Human
Resources, 532 U.S. 598, 601 (2001). The catalyst theory is as
follows. Even if the FOIA plaintiff obtained relief without a
favorable judgment, the plaintiff could still recover attorney fees
by proving that its lawsuit “caused” the government to change
its position by disclosing previously withheld documents or
producing documents on an accelerated timeline.

     The statements in these four opinions about the catalyst
theory appear to be casual, offhand. No analysis, rigorous or
otherwise, backs them up. The opinions do not even attempt to
square their statements with the words of the 2007 amendment.
Still worse, none of these four cases even turned on an




    1
      See Judicial Watch, Inc. v. F.B.I., 522 F.3d 364, 370 (D.C. Cir.
2008); Summers v. Dep’t of Justice, 569 F.3d 500, 503 (D.C. Cir.
2009); Davis v. Dep’t of Justice, 610 F.3d 750, 752 (D.C. Cir. 2010);
Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 525
(D.C. Cir. 2011).
                                  2

application of the 2007 amendment. To put it in another word,
each of the statements was dicta.2

     Yet the majority opinion here cites these four opinions and,
again without analysis, endorses their dicta that the 2007
amendment incorporated the essential requirement of the
catalyst theory – namely, that the plaintiff must prove that its
lawsuit caused the government to change positions. As in the
other four opinions, the majority’s statement is dictum because
the government did not change positions.

     I am tempted to stop here. But extraneous pronouncements
in a growing number of our cases seem to be taking hold. And
so I believe it appropriate to counter dicta with my own dictum.
Which brings me to the language of the 2007 amendment,
otherwise known as the OPEN Government Act.




    2
       In the earliest case, Judicial Watch, 522 F.3d at 370, the 2007
amendment was not at issue and the court did “not interpret the new
statute.”

     In the next two cases the court held that the 2007 amendment did
not apply to the claims for attorney fees because the amendment was
not retroactive. Summers, 569 F.3d at 504; Davis, 610 F.3d at 753–55.

     In the fourth case, the court held that even if the plaintiff was
eligible to receive attorney fees he was not entitled to them because
the government was legally correct in refusing his FOIA request, a
standard unaffected by the 2007 amendment. Brayton, 641 F.3d at
526–28.
                                 3

     FOIA plaintiffs are eligible for attorney fees if they have
“substantially prevailed.”3 The 2007 amendment defined
“substantially prevailed” to mean that the plaintiff “has obtained
relief through either– (I) a judicial order, or an enforceable
written agreement or consent decree; or (II) a voluntary or
unilateral change in position by the agency, if the complainant’s
claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii).

     We are concerned with subsection II. It contains three and
only three conditions. The first is that the plaintiff “has obtained
relief through” the government’s “change in position.” Second,
the government’s change in position was “voluntary or
unilateral.” Third, the plaintiff’s lawsuit must not have been
“insubstantial.”

     The conclusion is inescapable – subsection II does not
embody the catalyst theory. It does not do so because the
provision requires only correlation not causation. Absence of
statutory language supporting a theory (here the catalyst theory)
is not evidence that Congress enacted the theory. Just the
opposite.

     Consider also Congress’s use of the word “unilateral” to
describe the government’s action that qualifies the plaintiff for
an award of attorney fees. “Unilateral” action signifies an
undertaking by one side only, without involvement of the other
side, a description quite at odds with the dicta coming from this
court.



    3
        The original provision, now contained in 5 U.S.C. §
552(a)(4)(E)(i), stated: “The court may assess against the United
States reasonable attorney fees and other litigation costs reasonably
incurred in any case under this section in which the complainant has
substantially prevailed.”
                                4

     The statute thus does not require a plaintiff to show a causal
connection between its lawsuit and the government’s
capitulation. It is fair to ask why Congress would have enacted
such a provision. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts at 34 (2012).
There is a ready answer. FOIA plaintiffs who have not received
a judgment face obstacles in proving that their lawsuits caused
the government to release previously withheld documents. Only
government employees know with certainty why an agency
changed its position. Those employees will doubtless be in the
agency’s general counsel office and the appropriate division of
the Department of Justice representing the agency. So the most
plausible way for a plaintiff to prove that its lawsuit actually
caused the government’s about-face would be to take
depositions and seek documents from FOIA officers and other
government employees. As the Grand Canyon Trust points out,
this undertaking would effectively elevate the attorneys’ fee
litigation to a “second major litigation,” a result the Supreme
Court has warned against. See Pierce v. Underwood, 487 U.S.
552, 563 (1988) (citing Hensley v. Eckerhart, 461 U.S. 424, 437
(1983)). In addition, the most important communications would
involve government attorneys and so would be protected by
attorney-client privilege, making it even more challenging for
litigants to make the required showing.

     In all of this I am impressed by Judge Berzon’s
comprehensive and well-reasoned opinion on this subject,
making many more points against our colleagues’ opinion here
and in the four prior cases I have discussed. See First
Amendment Coalition v. Dep’t of Justice, 878 F.3d 1119, 1130
(9th Cir. 2017) (Berzon, J., concurring).
