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Withey v. FBI, No. 18-1635, 2021 WL 2646480 (W.D. Wash. June 28, 2021) (Coughenour, J.)

Date

Withey v. FBI, No. 18-1635, 2021 WL 2646480 (W.D. Wash. June 28, 2021) (Coughenour, J.)

Re:  Request for records concerning alleged FBI informant

Disposition:  Granting in part and denying in part plaintiffs motion for attorney fees and costs; awarding plaintiffs' $21,015 in fees and $400 in costs

  • Attorney Fees, Threshold Issues:  "As a preliminary matter, the Court concludes that an attorney fee award based on [one plaintiff's] services would be inappropriate."  "[The one plaintiff's] work on the case was in the capacity of an attorney plaintiff pro se."  The court explains that "[g]iven his current and prior statements to the Court [concerning the one plaintiff publishing a book], it is clear that [the one plaintiff] has a significant personal interest in this matter that predated this suit by many years."  "Therefore, he is a plaintiff-in-fact, i.e., an attorney plaintiff pro se."  "The time he spent pursuing this case was primarily to satisfy his own interests rather than that of his fellow plaintiff."  "On this basis, a fee award based on his time and costs is inappropriate."
     
  • Attorney Fees, Calculations:  The court relates that "[t]he parties stipulated that the 'FBI will not dispute eligibility and entitlement for fees, for some portion of the time some Plaintiffs' attorneys billed to working on Plaintiffs' Complaint.'"  "That leaves, as the only remaining issue regarding complaint-related fees, the reasonableness of the fees that Plaintiffs seek."  The court reviews plaintiffs' billing records and finds that "[b]ased on the hours and rates described above, an award to Plaintiffs of $21,015 in fees and $400 in costs is reasonable."
     
  • Attorney Fees, Eligibility:  The court relates that "Defendants made ten post-complaint FOIA releases."  The court finds that, "[h]ere, no judicial order, written agreement or consent decree flowed from Plaintiffs' post-complaint efforts."  "In fact, the only substantive order the Court issued . . . favored Defendant."  "Plaintiffs argue the Court's prior minute order suggests otherwise."  "But this is not so."  "In the minute order, the Court observed that '[m]any of the issues addressed in the [parties' outstanding summary judgment] motions have since been mooted.'"  "This statement was intended to advise the parties that the Court believed some of the issues they sought summary judgment on had been mooted by (a) Defendant's production up to that point and (b) the Court's ruling on Defendant's Glomar response, but it was not clear which issues remained."  "So, the Court terminated all outstanding motions and directed the parties to file final motions once Defendant certified that it was finished producing documents."  The court finds that "[a]n order acknowledging that a plaintiff obtained relief through other means is not equivalent to an order providing relief."  "Therefore, Plaintiffs must convincingly demonstrate that their post-complaint activities resulted in a voluntary or unilateral change in Defendant's position."  "Plaintiffs have not made this showing."  "The relevant contents of the Las Vegas files were promptly released once Defendant finally located the documents through updated searches."  "This is simply the correction of an error – not a change in position."  "The public domain information was released once Defendant determined, albeit with Plaintiffs' help, that it was now publicly available."  "This is a change in circumstances – not a change in position."
Court Decision Topic(s)
District Court opinions
Attorney Fees
Updated July 22, 2021