has found some new documents it is reviewing them it's going to file a new declaration why don't we send it back and let the judge rule in the light of the think we're going to put an opinion that the judges are part of pa the correct burden of proof as it here sir that's a beer on a i don't have an opinion either way i'm just explaining to the court that on three separate motion for some summ government provide legal explanations on adequate bonnin that there's currently still five documents outstanding that the judge has failed to refused to bring in for an interim review and is also failed to order the government to present a legal for whatever reason the the court is just not following the their their duty for do novo review or placing the burden of proof on the proper party even though the government may find additional documents they may find they said they have found understand that your own even though they have found additional documents that does not mean that the judge is going to conduct an overall review over those don those documents there was thirty eight pages initially that were not included in the first one index or five pages that were not includ there's also an issue maybe they're going to concede error that would that would be nice but there's also an issue of the adequacy of the search the search is being proven over and over again to be not a question you start with inadequate they told you so they've said we've gone back and we're not sure we did the search yes your honor they stated search was legally inadequate for one person there are actually people on both the welsh declaration well only in the last declaration that simply refused to search whatsoever and then claim response doctors have they refused to search this also goes back to an issue of whether i'm eligible for attorney's fees at the end of this the judge continues to dismiss my case an insight that since there is no judicial order i'm not eligible for attorney documents after the the lawsuit is filed then that person is eligible for attorney's fees i received four hundred thirty six pages since the initial filing of the lawsuit plus thirty three pages during the first appeal would entitle you to fisa but but ultimately of course if you've gotten documents you may have a legitimate claim to all i'm asking at this point for whatever reason the judges government's position that there are no fees due here and the catalyst here your honor ultimately we don't know what the facts are going to be in this case and that's why we've asked for it to be remanded and that's why we brought to the court and as soon as possible but documents have already been referred to ice your honour's in order to prevail under the catalyst theory you have to show that your lawsuit caused the production here the lawsuit was filed on june second which was  less than a month after u s c i s received the for your request u s c i s receives eighteen percent of all foyer requests in the nation so the fact that the lawsuit was was very quickly filed doesn't demonstrate anything other than u s c i s is moving through its administrative process so again we don't know what's going to happen on remand when these these new facts are fully fleshed out but as of the district court's original determination on what is the status of the document the latest document production to mr geoghegan your honor that is still being processed what happened is mr gagan has filed a second foyer quest this lawsuit concerns the two thousand and fourteen request just a few weeks ago he filed a second request which i'll call the two thousand and sixteen request in the two thousand and sixteen request he is seeking newts and other similar government work product on how the two thousand and fourteen search was done so they're not exactly overlapping he seeking new documents that wouldn't have been responsive but as i understood the motion to remand in this action thousand and sixteen request the agency not only found the new it's from the two thousand and fourteen search but in reviewing the notes and comparing it to the two thousand and fourteen well stack liberation the agency said it looks like there is an error and that is when they brought it to this office's attention about two weeks  so your honour's in light of the motion to remand that was filed on may twenty third my remarks today are incredibly limited it's limited to issues should the court choose to reach it there is a pure issue of law that can be affirmed and that is regarding the referral of the thirty three pages from u s c i s to ice those are two separate government agencies that are both subject to for the district court applied maccie which is out of the d c circuit held that the agency satisfied mcgee and ultimately concluded that the referral was legally bought and the agency asked that should you choose to reach it you may affirm that now the second issue is regarding the mission to him and in light of the facts which are fully developed yet the agency respectfully submit that that portion of the judgment regarding the referral and the attorney's fees are pardon regarding the legal adequacy of the search in the attorney's fees that those portions be vacated and remanded to your honor's turning into the referral for only prohibits the improper withholding of agency records it doesn't it doesn't prohibit the withholding of records under specific for you legal custodian of record of the a file if you wish to see the the remaining documents file for your request of the us he did there were four hundred thirty six pages that were identified drilling down through the four categories of what was produced in full redacted exciter and there are only thirty three pages that are referred from us c i s to ice that is because ice is the agency that originated the documents these  ice these thirty three pages are pages that were created by ice so under applicable regulations which is six c f r section five point four c u s c i asked her for those pages to ice for review and release and ultimately they were released directly from ice to mr hagan in november of two thousand and fourteen this court has never encountered a referral issue it is never at least in the agenc review in camera your honor the district court was presented with so you see nine pages that were withheld in full and had the mr de haven file that in the record and said your honor are thirty three pages that have been referred to ice that aren't described in the von index in u s c i s as fun and at no time did he say here are five pages these it is so it would be it's thirty eight suddenly it's thirty eight pages actually he said five documents i said five pages that was my mistake he said five documents i believe your honor it is five specific pages this court has said that there is no duty on the district court to search the record from material  fact and prison in the district court with with fifty nine pages and say you're gonna find the error without identifying for the district court that's unreasonable but moreover if you count the fifteen nine fully withheld pieces that are described in of on the next earth partner if you do if you count all of the fully withheld pages there are fifty nine pages describing that one index because i went through and i counted every one of them and so if i can't find where these five pages are described it could be that there's a just  in the in the government if you are there in a discreet legal issues that it would be helpful for us to decide now if we were to agree with huge to remand him in  light of the newly located documents in other words it's not very efficient to have things bouncing back and forth between the district court and this court if there are such issues that can be determined now your honor the referral issue is one such as to address and that is a discrete legal issue regarding the remaining standards that the district court needs to apply the district court correctly cited the applicable law at pages four forty nine two four fifty three in its original summary does not order and then subsequently a page of seven twenty seven to seven forty two the district court sided with the law what about the von index issue is that a discrete issue that can and should be decided now or and what is is there any particular reason not to decide now your honor i think any clarification on what exactly are referring to because mr gay hagen has made an argument that it all need also on the on the vine index question in this gets back a little bit to the attorney's fees question that i ask you at the beginning because the government did produce a second  index apparently as a result of the litigation isn't that doesn't that entitle mr geoghegan to attorney's fees no your honor and again there's there's two separate agencies that we're dealing with here u s is the only names party us c i s produced of on index in july of two thousand and fourteen ice when it did its thirty three page release ice did a separate release remanded well on the point you're writing about that we should decide that the referral was proper to ice that that's one of the issues you want that's the only issue you want us to deal with now and then  filed suit and you got the documents afterwards but do you agree there with i guess what some courts have called the squeaky wheel theory which is that if you can just rush to the courthouse and then automatically get attorney's fees just because the agency is still processing your requests so one day you agree that that's the law you have to show that it something changed other than how they would normally handle these requests administratively and if that is if you agree with that how can you show that in this case  government act of two thousand and seven outlawed like i said what in the statute outlaws it because my understanding is courts adopted the catalyst theory than the buckhannon case which was of a civil rights act case but says the catalyst there is no which we had a catalyst theory but also this squeaky wheel means your position you can file a foil request with the agency and then within thirty days file a lawsuit and because they have this huge stack of for your request you automatically get days the squeaky wheel theory that the judges adopted from nine hundred ninety one western district of texas case is unlawful under the judge's squeaky wheel theory any time the judge thinks that the plaintiff is just a grant attorneys these are find them eligible not that's why the government specifically not the open government to prevent in this case the d c circuit court in the supreme court from refusing to follow the catalyst but as we go back even if there was a squeaky now they're under for oil in order to compete if you want to hold a referral is lawful i'll have to see you ninety nine separate agencies in every case in order to make sure i have the right one otherwise it can be referred back and forth those documents were all in the pos then they referred them to ice where they sent i recently got a case back it's not in litigation what took guys two and a half years to get me the documents back off the u s yes if i don't go to kate to court i may be waiting another two and a half years i have to at some point follow laws and to protect my clients want to procedural due process ineffective assistance of counsel i need those documents to represent my client in court there's immigration proceedings get stayed pending your receipt of the we obviously make a lot of these requests not not a lot to make someone specific cases the judge if you want to move forward it's his court room there's no law saying that he has to wait for me what's happened in this case but it's been years this whole thing's been judges been nice enough to stay the this is a very simple fully equation as you'll see in my briefing there is never a legally adequate search conducted so this is another issue that's going to be taken up in a third appeal if this case gets remanded thank you make your your case and all of these cases are under submission and the co