Edward Harvey, Appellant v. Jeff Sessions, et al., Appellees

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United States Court of Appeals, District of Columbia Circuit.

Edward Harvey, Appellant v. Jeff Sessions, et al., Appellees

No. 16-5200

Decided: July 14, 2017

BEFORE: Tatel, Brown, and Wilkins, Circuit Judges


Upon consideration of the motion for summary affirmance, the opposition thereto, and the reply, it is

ORDERED that the motion for summary affirmance be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The district court correctly determined appellant had not “substantially prevailed” in his lawsuit brought under the Freedom of Information Act because the agency's release of records did not result from “a voluntary or unilateral change in position by the agency. ․” 5 U.S.C. § 552(a)(4)(E)(ii)(II). Appellant failed to “show that prosecution of the action could reasonably be regarded as necessary to obtain the information ․ and that a causal nexus exists between that action and the agency's surrender of the information.” Church of Scientology of California v. Harris, 653 F.2d 584, 587 (D.C. Cir. 1981) (quoting Cox v. DOJ, 601 F.2d 1, 6 (D.C. Cir. 1979)). Therefore, appellant was not eligible to recover his litigation costs pursuant to 5 U.S.C. § 552(a)(4)(E), and the district court properly denied his motion seeking costs.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41.

Per Curiam