dissenting:
I cannot assent to the court’s disposition of this case. The majority would be correct in deeming the Pyramid Lake Paiute Tribe ineligible for an award of attorney fees if the Tribe’s lawsuit had in fact played no “significant role” in the ultimate release of Senator Laxalt’s October 1981 letter to Attorney General Smith. Maj. op. at 120. Although we have made clear that fees may not be denied under the Freedom of Information Act merely because a plaintiff “might have ultimately received the documents in question in the absence of litigation,” Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 871 (D.C. Cir.1981), we nevertheless have consistently required some kind of “causal nexus” between the plaintiff’s court action and the surrender of the requested information, e.g., id. But I do not believe that the district court in this case tested properly for causal nexus, or that we are in a position to make the necessary factual determination in the district court’s stead.
The district court found that the Department of Justice had released the letter only because Senator Laxalt had earlier made the document public “on his own initiative.” On that basis, the district court concluded that the Tribe had “failed to establish the causal nexus between this action and the letter’s release” — ignoring the Tribe’s claim, uncontroverted below, that information garnered through the litigation led directly to the Tribe’s receipt of the letter from one of Senator Laxalt’s Nevada offices. If that claim is true, the causal nexus requirement is fully satisfied. See Education-Instruccion v. United States Department of Housing & Urban Development, 87 F.R.D. 112, 114-15 (D.Mass. 1980), aff'd on other grounds, 649 F.2d 4 (1st Cir.1981).
On the record before us, I cannot say with confidence that the information provided in the government’s summary judgment motion did not play a “significant role” in helping the Tribe to obtain a copy of the withheld document. Perhaps Senator Laxalt’s office would have responded just as positively to a more general request; perhaps not. That question ought not be answered in the dark. And, since the factual predicate of the Tribe’s argument was not challenged before the district court, I do not think the Tribe should be prejudiced by its failure to file a supporting affidavit.
I would remand this case with instructions to the district court to make the necessary factual determination.