This has been a busy week in the legal world — but not in the D.C. Circuit’s corner of it.* The Court issued just two decisions, neither of which, frankly, is likely to make much of a splash in the media. In Holland v. Arch Coal, Inc., Judge Ginsburg (joined by Judges Tatel and Srinivasan) addressed the Coal Industry Retiree Health Benefit Act of 1992 and concluded that Arch Coal is required to provide security for a benefits plan. The details of that analysis I will leave to you, dear reader. One sentence in particular, however, stood out:
The reason why this sentence stood out is because in this week’s other case, Grand Canyon Trust v. Bernhardt, Judge Randolph disputed whether, in fact, the D.C. Circuit always begins with the language of the statute.
Grand Canyon Trust — authored by a per curiam panel of Chief Judge Garland and Judge Katsas — concerns attorney’s fees in the context of FOIA. The Court holds that the clearly-erroneous standard of review applies to a district court’s factual conclusions about fee eligibility and that this particular lawsuit did not cause the government to release documents.
Here, however, is how the opinion begins, which lays out the relevant statutory language:
This paragraph prompts a question: Is the D.C. Circuit correct that the second prong equates to the catalyst theory? A series of cases say it. But is that what the statute says? Judge Randolph — endorsing Judge Berzon’s analysis from the Ninth Circuit — doesn’t think so:
Nor does Judge Randolph think his Court carefully considered the question when it opined — in “dicta,” says Randolph — about the catalyst theory. “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.”
I doubt Grand Canyon Trust gets press coverage. But I wouldn’t be surprised to see Judge Randolph’s concurrence cited someday in a cert petition.
* The D.C. Circuit did make an appearance this week in the Supreme Court:
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