Bermudez v. EOIR, No. 22-01032, 2024 WL 3570022 (W.D. La. July 29, 2024) (Perez-Montes, Mag. J.)

Bermudez v. EOIR, No. 22-01032, 2024 WL 3570022 (W.D. La. July 29, 2024) (Perez-Montes, Mag. J.)

Re:  Request for plaintiff’s immigration court case

Disposition:  Denying plaintiff’s motion for attorney fees

• Attorney Fees, Eligibility:  The court relates that “[plaintiff] asserts he substantially prevailed through the latter theory – referred to by courts as the ‘catalyst theory.’”  The court finds that, “[h]ere, no judicial order compelled EOIR to respond to [plaintiff’s] FOIA request.”  “Thus, he must show that his suit had a ‘substantive causative effect on the delivery of the information.’”  “The evidence is clear that EOIR had initiated the processing of [plaintiff’s] request well before his suit was filed.”  “And nothing indicates EOIR asserted any exemptions, or refused to produce the file and changed its response as a result of this litigation.”  “[Plaintiff] fails to demonstrate he obtained relief through either a court order or a ‘voluntary or unilateral change in position by the agency.’”  “Thus, this suit had no substantive causative effect on the delivery of the FOIA records.”  “And ‘[t]he mere fact that the information sought was not released until after the suit was instituted without more is insufficient to establish that [a plaintiff] “substantially prevailed.”’”

• Attorney Fees, Entitlement:    The court further finds that, “even if the Court were to presume [plaintiff] could show he ‘substantially prevailed,’ the relevant factors do not per se establish that [plaintiff] should receive fees.”  “First, the disclosure of [plaintiff’s] records is of private concern, pertaining to his individual removal case.”  “Here, there is no public value in the information, other than to [plaintiff].”  “The second and third factors weight in favor of an award.”  “[Plaintiff and his attorney] had a personal and commercial interest in obtaining [plaintiff’s] immigration case file.”  “[Plaintiff] retained counsel, seeking to protect his private interests.”  “[F]ederal courts recognize that this interest, while personal, implicates a strong public interest in obtaining information for use in a deportation proceeding, where there is no formal discovery available to a respondent.”  “Because of the same distinction here, the second and third factor favor a fee award.”  Regarding the fourth factor, the court finds that “the Government shows that at no time did it withhold or deny the request.”  “Instead, the Government began processing the request many months prior to learning of this suit, including the request of both [plaintiff’s] file and the lead file.”  “This factor weighs against awarding attorney’s fees.”