Shaklee & Oliver PS et al v. United States Citizenship and Immigration Services
Filing
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ORDER denying Plaintiff's 16 Motion for Attorney Fees. Defendant's motion to strike references to settlement discussions is GRANTED. Dkt. # 19 . Signed by Judge Richard A. Jones.(MW)
Case 2:20-cv-00806-RAJ Document 24 Filed 09/13/21 Page 1 of 7
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HONORABLE RICHARD A. JONES
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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SHAKLEE & OLIVER, P.S., and
JONATHAN SHAKLEE,
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v.
ORDER
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendant.
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Case No. 20-cv-0806-RAJ
Plaintiff,
I.
INTRODUCTION
This matter comes before the Court on Plaintiffs Shaklee & Oliver, P.S., and
Jonathan Shaklee’s (collectively, “Plaintiffs”) motion for attorney fees. Dkt. # 16.
Defendant United States Citizenship and Immigration Services (“USCIS”) opposes this
motion. Dkt. # 19. Having reviewed the briefing and applicable law, the Court DENIES
Plaintiffs’ motion.
II. BACKGROUND
Plaintiffs Jonathan Shaklee and his law firm, Shaklee & Oliver, P.C. practice
immigration law. Dkt. # 16 at 2. In March of 2020, Mr. Shaklee submitted three
ORDER – 1
Case 2:20-cv-00806-RAJ Document 24 Filed 09/13/21 Page 2 of 7
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Freedom of Information Act (“FOIA”) requests to USCIS for “Alien Files,” also referred
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to as “A-Files,” related to his clients. Id. at 2-3. The first request was submitted on
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March 5, 2020; the second on March 26, 2020; and the third on March 27, 2020. Id. at 3.
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On March 10, 2020, USCIS sent Plaintiffs a letter confirming receipt of their
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March 5, 2020 FOIA request and informing Plaintiffs of the FOIA request processing
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policy. Dkt. # 19 at 3. Specifically, USCIS explained that to process the significant
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number of FOIA requests received by USCIS, the agency uses a policy of processing
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requests on a first-in/first-out basis (“FIFO”). Id. at 2. USCIS also informed Plaintiffs
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that there may be a delay in processing the request due to the increasing number of FOIA
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requests received by USCIS. Dkt. # 20 ¶ 7. At the time Plaintiffs’ A-File was located on
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March 10, 2020, USCIS had approximately 5,996 similar FOIA requests in the queue to
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be processed ahead of Plaintiffs’ request. Dkt. # 19 at 3. About a week or two later, the
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onset of the COVID-19 pandemic significantly affected USCIS’s operations and
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productivity as most USCIS employees transitioned to telework. Id. at 3-4.
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On May 8, 2020, USCIS scanned the requested documents into USCIS’s
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electronic FOIA processing system. Id. at 4. Once the records were processed, USCIS
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transmitted the non-exempt requested documents and a final action letter to Plaintiffs on
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July 28, 2020. Id.
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After receiving Plaintiffs’ second request, submitted on March 26, 2020, USCIS
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again sent Plaintiffs a letter confirming receipt of the request and informing Plaintiffs of
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the FIFO process and the potential delay in processing. Id. At this time, USCIS had
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approximately 27,012 similar FOIA requests in the queue ahead of Plaintiffs’ request. Id.
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Shortly after receiving the request, USCIS determined that the requested A-File was at
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the National Archives Federal Records Center (“FRC”), which was closed due to
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COVID-19 and was not processing any records requests except on an emergency basis,
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defines as “cases where life, safety or national security were at stake.” Id.
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Around June 24, 2020, the FRC began to gradually resume some operations. Id.
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USCIS requested the records from the FRC five days later. Id. On July 2, 2020, USCIS
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received the requested records and scanned them into the FOIA processing system. Id.
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Two weeks later, on July 15, 2020, USCIS sent the records to Plaintiffs after processing
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was complete. Id.
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Consistent with its response to Plaintiffs’ first two requests, USCIS sent Plaintiffs
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a letter confirming receipt of Plaintiffs’ third FOIA request and again informed them of
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the possible delays in processing. Id. at 4-5. Because the A-File in Plaintiffs’ third
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request was also located at the FRC, which was closed due to COVID-19, USCIS faced a
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similar hurdle in processing. Id. at 5. In addition, USCIS had approximately 27,124
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similar FOIA requests in the queue ahead of Plaintiffs’ third request. Id.
On June 29, 2020, after the FRC began to resume operations, USCIS requested the
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records for Plaintiffs’ third FOIA request from the FRC. Id. On July 2, 2020, USCIS
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received the records and scanned them into the FOIA processing system. Id. USCIS
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finished processing the records and sent them to Plaintiffs on July 15, 2020. Id.
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Before receiving the requested A-Files, Plaintiffs filed this lawsuit, on May 29,
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2020, to challenge USCIS’s delays in responding to the A-File requests. Dkt. # 16 at 3.
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Most issues were resolved when USCIS responded to Plaintiffs’ FOIA requests and
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provided all requested documents. Dkt. # 19 at 5. The remaining unresolved issue
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between the parties was an attorney fees award. Dkt. # 16 at 3. On October 16, 2020,
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Plaintiff moved the Court to resolve the matter in the pending motion for fees and costs
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under FOIA. Id.
III.
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DISCUSSION
As an initial matter, the Court addresses USCIS’s request to strike all references to
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settlement discussions in Plaintiffs’ motion for attorney fees. Dkt. # 19 at 6. USCIS
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contends that such references are irrelevant to Plaintiffs’ request for attorney fees,
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inadmissible under Rule 408 of the Federal Rules of Evidence, and unfairly prejudicial to
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USCIS. Id. Plaintiffs argue that the Ninth Circuit has, in fact, held that settlement
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communications are permissible when considering a motion for attorney fees. Dkt. # 22
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at 4.
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Plaintiffs reliance on Ninth Circuit case law, however, is misplaced. In the Ninth
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Circuit case cited by Plaintiffs, the court held that “settlement negotiations [are
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permissible] for the purpose of deciding a reasonable attorney fee award.” Ingram v.
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Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011). All of the cases cited by Plaintiffs
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similarly hold that settlement communications are admissible on a limited basis: to
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determine a reasonable amount of attorney fees. See Miranda-Olivares v. Clackamas
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Cnty., No. 3:12-cv-02317-ST (D. Or. Aug. 28, 2015); Lohman v. Duryea Borough, 574
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F.3d 163, 167 (3d Cir. 2009); Parke v. First Reliance Standard Life Ins. Co., 368 F.3d
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999, 1012 (8th Cir. 2004); Moriarty v. Svec, 233 F.3d 955, 967 (7th Cir.2000). As the
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Ninth Circuit explained, “other circuits have held that settlement negotiations may be
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considered by the district court as a factor in determining a fee award.” Ingram, 647
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F.3d at 927 (emphasis added).
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The settlement communications here are not proffered by Plaintiff for the purpose
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of determining a reasonable fee amount. Plaintiff makes no representation to the
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contrary. As such, the Court GRANTS USCIS’s request to strike references to the
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settlement discussions in Plaintiffs’ attorney fees motion. Dkt. # 19 at 6.
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Next, the Court considers whether Plaintiffs are entitled to attorney fees under
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FOIA. Plaintiffs note that the issue presented in this motion “is substantially similar” to
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an attorney fee motion in Rich v. United States Citizenship & Immigr. Servs., No. C20-
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0813JLR, 2020 WL 7490373 (W.D. Wash. Dec. 21, 2020). The same counsel represents
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the plaintiffs in both matters and the argument in the two motions is “materially
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identical.” Dkt. # 16 at 2. After the pending motion was filed in the instant matter, the
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fee motion in Rich was denied by the Honorable James L. Robart, United Stated District
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Judge for the Western District of Washington. Having reviewed the facts here and
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applicable law, the Court reaches the same conclusion.
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ORDER – 4
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FOIA’s “fee-shifting” provision authorizes the “assess[ment] against the United
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States [of] reasonable attorney fees and other litigation costs reasonably incurred in any
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case . . . in which the complainant has substantially prevailed.” 5 U.S.C.
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§ 552(a)(4)(E)(i). “To obtain an award of attorney fees under the FOIA, a plaintiff must
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demonstrate both eligibility and entitlement to the award.” Or. Nat. Desert Ass’n v.
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Locke, 572 F.3d 610, 614 (9th Cir. 2009) (citing Long v. U.S. I.R.S., 932 F.2d 1309, 1313
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(9th Cir. 1991). To establish the first step, eligibility, a plaintiff must show that he or she
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“has substantially prevailed” in its FOIA action by obtaining relief through: (1) a judicial
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order, or an enforceable written agreement or consent decree; or (2) a voluntary or
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unilateral change in position by the agency, if the plaintiff's claim is not insubstantial. 5
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U.S.C. §§ 552(a)(4)(E)(i)-(ii); First Amend. Coal. v. United States Dep’t of Just., 878
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F.3d 1119, 1126 (9th Cir. 2017). Because there is no judicial order, written agreement, or
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consent decree in the matter at hand, the Court focuses on the latter.
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In evaluating whether there has been a voluntary or unilateral change in position
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by the agency, the Ninth Circuit has held that there “must be a causal nexus” between the
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litigation and the Government’s voluntary change in position. 878 F.3d at 1128. A
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plaintiff must “present ‘convincing evidence’ that the filing of the action ‘had a
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substantial causative effect on the delivery of the information.’” Id. (citing Church of
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Scientology of California v. U.S. Postal Serv., 700 F.2d 486, 489 (9th Cir. 1983)). A
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court must consider three factors in determining whether a plaintiff substantially
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prevailed: (1) when the requested documents were released; (2) what actually triggered
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the release; and (3) whether the plaintiff was entitled to the release of documents at an
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earlier time. 878 F.3d at 1129 (citing Church of Scientology, 700 F.2d at 492).
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Similar to the plaintiff’s argument in Rich, Plaintiffs’ only argument for eligibility
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here is a temporal one, claiming that “the government was overdue providing records to
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Mr. Shaklee.” Dkt. # 16 at 7; 2020 WL 7490373, at *3. USCIS’s release of records
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after the commencement of litigation, however, is not dispositive. Controlling authority,
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ORDER – 5
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cited in Rich and reiterated here, holds that “the mere fact that information sought was
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not released until after the lawsuit was instituted is insufficient to establish that a
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complainant has substantially prevailed.” 2020 WL 7490373, at *3 (citing 878 F.3d at
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1128) (internal citation omitted).
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With respect to the second factor, Plaintiffs fail to provide evidence of what
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actually triggered the release of records. The evidence provided by USCIS, on the other
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hand, provides compelling reasons for the months-long delay: (1) USCIS’s FIFO process
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by which Plaintiffs’ requests were placed in a queue to be processed after thousands and
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then tens of thousands of other FOIA requests; and (2) substantial challenges posed by
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the COVID-19 pandemic which affected operations and productivity, and led to the
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closure of the facility housing two of the three records requested. Indeed, once the FRC
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resumed operations, USCIS requested the records, processed them, and sent them to
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Plaintiffs two weeks later. There is no evidence that the release of records was triggered
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by anything other than the normal procedure for processing such requests pursuant to the
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FIFO process and reopening of the FRC. As USCIS notes, it never refused to provide the
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documents and it had informed Plaintiffs of possible delays due to the large volume of
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FOIA requests processed on a FIFO basis.
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With respect to the third factor, whether Plaintiffs were entitled to the records at
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an earlier time, the Court recognizes that USCIS failed to process the records request
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within the 20-day statutory period. However, the Court finds that Plaintiffs did not
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“endure unnecessarily protracted litigation” as a result, as in First Amendment Coalition.
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See 878 F.3d at 1130.
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Absent evidence supporting these three factors, the Court finds that Plaintiffs’
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lawsuit did not have a substantial causative effect on the release of the records. Because
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Plaintiffs have not shown that they “substantially prevailed,” the Court concludes that
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they are not eligible for attorney fees. Plaintiff’s motion for attorney fees is therefore
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DENIED.
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IV.
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CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiffs’ motion for attorney fees.
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Dkt. # 16. Defendant’s motion to strike references to settlement discussions is
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GRANTED. Dkt. # 19.
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DATED this 13th day of September, 2021.
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The Honorable Richard A. Jones
United States District Judge
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