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Poett v. United States

September 30, 2010


The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge


Pending for determination by the undersigned Magistrate Judge is Plaintiff's Motion for Attorney's Fees and Costs of Suit. ("Plaintiff's Motion"), (Document No. 38). Upon consideration of the motion, the memoranda in support thereof and in opposition thereto, and the entire record herein, Plaintiff's motion will be denied.*fn1


Plaintiff is employed as a chemist at the United States Department of Agriculture. (Complaint) ("Compl.") (Document No. 1), ¶ 10. On September 11, 2006, Plaintiff was served with an Official Notice that his employer had submitted an application on his behalf for clearance to access select agents and toxins. Id. ¶ 11. This same Official Notice informed Plaintiff that his application had been denied because the Attorney General determined, from the results of an FBI investigation, that Plaintiff was suspected of knowing involvement with an organization that engages in intentional crimes of violence. Id. ¶ 12. Plaintiff filed the instant suit seeking reversal of that decision, attorney fees, costs of suit and "any other relief the court deems just and fair." Id. ¶¶ 32, 39.

The focus of the parties' dispute was a letter, dated January 9, 1992, written by Plaintiff to the British Ambassador September 29, 2009. Memorandum Opinion ("Mem. Op.") (Document No. 31) at 6; see also Administrative Record ("A.R.") (Document 22-2) at 4. In this letter, Plaintiff expressed regret over his past involvement with a terrorist organization named the Irish Northern Aid Committee in America ("NORAID"). A.R. at 4. The decision to deny Plaintiff access to select agents and toxins was predicated upon this letter. Mem. Op. at 6.

The Court ultimately found inconsistencies in the record that precluded a determination of whether the FBI suspected Plaintiff's involvement with NORAID to have been "knowing." Id. at 19. Consequently, the Court denied the parties' cross motions for summary judgment and remanded the case to the agency for further clarification on that point. Id. at 20-21.

On December 18, 2009, Defendants filed a Notice of FBI's Final Decision (Document No. 34), indicating that the FBI no longer reasonably suspected Plaintiff of knowing involvement with an organization that engages in domestic or international terrorism. Notice of FBI's Final Decision (Document No. 34) at 1. The court dismissed the case on January 18, 2010. (January 18, 2010 Memorandum Opinion) (Document No. 37) at 2. The Court referred the remaining issue of attorney's fees and costs to the undersigned Magistrate Judge on February 24, 2010.


Plaintiff contends that the Court's September 29, 2009 remand altered the legal relationship between the parties by requiring Defendant to further investigate whether Plaintiff's involvement with NORAID was "knowing." Plaintiff's Memorandum in Support of his Motion for Attorney's Fees and Costs of Suit ("Plaintiff's Memorandum") at 6. Plaintiff argues that as a result of the change in the legal relationship, the remand rendered him a prevailing party. Id. Moreover, Plaintiff contends that Defendant's actions were not substantially justified, because they had no basis in law. Id. at 11-12. Plaintiff further avers that he is entitled to uncapped discretionary fees under 28 U.S.C. § 2412(b), because the facts of the case illustrate that Defendant acted in bad faith. Id. at 13.

Defendant contends that Plaintiff is not a prevailing party, because Plaintiff received no court-ordered relief. Defendants' Opposition to Plaintiff's Motion for Attorney's Fees ("Defendants' Opposition") (Document No. 40) at 5. The remand, according to Defendant, did not grant the specific relief requested by the Complaint. Id. Accordingly, Defendant argues that Plaintiff is ineligible for fees and costs. Id. at 5-6. Furthermore, Defendant avers that Plaintiff's actions and statements led the FBI to reasonably suspect Plaintiff of being involved with a terrorist organization. Id. at 6-7. Because the Bioterrorism Act only requires the Government to have a "reasonable suspicion" in order to deny access to select agents and toxins, Defendant contends that the Government's position was substantially justified. Id.


In order to be eligible for attorneys fees under 28 U.S.C. § 2412 (a)(1), the movant must be a prevailing party. 28 U.S.C. § 2412 (d)(1)(A). District of Columbia v. Straus delineated a three-part test for determining whether a litigant qualifies as a prevailing party under Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001):

(1) there must be a "court ordered change in the legal relationship" of the parties; (2) the judgment must be in favor of the party seeking fees; and (3) the judicial pronouncement must be accompanied by judicial relief.

District of Columbia v. Straus, 590 F.3d 898, 901 (D.C. Cir. 2010) (quoting Thomas v. Nat'l Sci. Found., 330 F.3d 486, 492-493 (D.C. Cir. 2003)) (internal quotation marks and alterations omitted); see also Turner v. Nat'l. Transp. Bd., 608 F.3d 12, 16 (D.C. Cir. 2010). While the second step of the Straus test is relatively straightforward, the first and third steps are substantially linked by the requirement of "judicial imprimateur." Buckhannon, 532 U.S. at 605. Stated another way, these two steps combine to require the movant to demonstrate the existence of some form of court-ordered judicial relief that ...

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