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17 The plaintiffs brought this action to challenge the Defense Threat Reduction
18 Agency’s decision to conduct the “Divine Strake” test at the Nevada Test Site, a decision
19 which the defendants have since withdrawn. The court subsequently granted (#72) the
20 defendants’ motion to dismiss (#59). The plaintiffs now move for attorney’s fees as the
22 The critical issue to plaintiffs’ motion is whether they qualify as a “prevailing party”
23 pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412(d)(1)(A). In Farrar v. Hobby,
24 506 U.S. 103, 111 (1992), the Supreme Court held that, to be a prevailing party, a plaintiff
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26 The plaintiffs previously moved for attorney’s fees, which motion the court
denied as premature as a final order had not yet been entered in the litigation.
Case 2:06-cv-00497-LDG-PAL Document 77 Filed 12/05/2008 Page 2 of 2
2 settlement. In Buckhannon Board and Care Home, Inc. v. West Virginia Dep’t of Health
3 and Human Resources, 432 U.S. 598, 610 (2001), the Supreme Court squarely rejected
5 Rather, the court reiterated that a prevailing party “is one who has been awarded some
6 relief by the court.” Id., at 603. In short, “enforceable judgments on the merits and court-
7 ordered consent decrees create the ‘material alteration of the legal relationship of the
9 The plaintiffs do not, and cannot, direct the court’s attention to an enforceable
10 judgment or court-ordered consent decree that materially altered the legal relationship of
11 the parties. The plaintiffs, instead, rely upon the rejected “catalyst theory,” expressly
12 arguing that, but for their complaint, the government would not have withdrawn its decision
13 to conduct the Divine Strake test. Even assuming the existence of this but for causality
14 between the plaintiff’s complaint and the decision to not conduct the Divine Strake test as
15 argued by plaintiffs, such relationship does not support an award of fees if, as in this
17 THE COURT ORDERS that Plaintiffs’ Motion for Attorney’s Fees (#73) is DENIED.
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21 Lloyd D. George
United States District Judge
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