Case 2:06-cv-00497-LDG-PAL Document 77 Filed 12/05/2008 Page 1 of 2

7 UNITED STATES DISTRICT COURT

8 DISTRICT OF NEVADA
9

10 WINNEMUCCA INDIAN COLONY, et

al.,
11 Case No. 2:06-cv-00497-LDG (PAL)
Plaintiffs,
12 ORDER
v.
13
UNITED STATES OF AMERICA, et al.,
14
Defendants.
15

16

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19 which the defendants have since withdrawn.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

21 prevailing party (#73)1, which motion the defendants oppose (#74).

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

25
1
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

1 must obtain an enforceable judgment or comparable relief through a consent decree or

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

4 the “catalyst theory” as a permissible basis to find a plaintiff to be a prevailing party.

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

8 parties’ necessary to permit an award of attorney’s fees.” Id., at 604.

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12 arguing that, but for their complaint, the government would not have withdrawn its decision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

16 matter, it lacks judicial sanction. Accordingly,

17 THE COURT ORDERS that Plaintiffs’ Motion for Attorney’s Fees (#73) is DENIED.

18

19 DATED this ______ day of December, 2008.

20

21 Lloyd D. George
United States District Judge
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