Poett v. United States of America

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSEPH POETT,

Plaintiff,

v. Civil No. 07-1374 (CKK) UNITED STATES OF AMERICA, et al.,

Defendants.

MEMORANDUM OPINION (January 18, 2010)

On September 29, 2009, this Court denied without prejudice the Defendants’ [24] and

Plaintiff’s [25] Cross-Motions for Summary Judgment and remanded this case to Defendants for

further explanation of the decision to deny Plaintiff access to select agents and toxins within the

course of his work as a chemist, consistent with the Court’s Memorandum Opinion. Thereafter,

on December 18, 2009, Defendants filed a [34] Notice of FBI’s Final Decision, advising the

Court that the FBI had completed its review on remand and had transmitted its decision to the

DSAT for a final determination on December 16, 2009. Specifically, the FBI notified DSAT that

it no longer reasonably suspects Plaintiff of knowing involvement with an organization that

engages in domestic or international terrorism or with any other organization that engages in

intentional crimes of violence and that Plaintiff is now eligible for access to select agents or

toxins.

Thereafter, on December 22, 2009, this Court issued a Minute Order observing that, in

light of the Notice of FBI’s Final Decision, “it [] appears that Plaintiff has now received the relief

requested in this lawsuit and that this case may be dismissed.” The Court further ordered that “[i]f Plaintiff disagrees” with the Court’s conclusion that this case may be dismissed, “he must

file a notice indicating why he does not believe dismissal is now warranted by no later than

January 15, 2010. If Plaintiff does not timely file any such notice, the Court shall assume that

Plaintiff agrees that this case may be dismissed and shall promptly dismiss the above-captioned

matter.” 12/22/09 Min. Order.

Plaintiff did not file any such notice on January 15, 2010, nor has he otherwise indicated

to the Court that he believes this case may not be dismissed in light of the FBI’s Final Decision.

Although Plaintiff and Defendants filed a [35] Joint Status Report on January 15, 2010, that

report advised the Court only that a dispute remains between the parties as to whether Plaintiff is

entitled to attorneys’ fees in this matter and contained no indication by Plaintiff that he opposed

dismissal of this case. Accordingly, as Plaintiff has not indicated to the Court that he “does not

believe dismissal is now warranted,” as was required by the Court’s December 22, 2009 Minute

Order, the Court “shall assume that Plaintiff agrees that this case may be dismissed and shall

promptly dismiss the above-captioned matter.” 12/22/09 Min. Order.

Finally, Plaintiff has indicated that he intends to seek attorneys’ fees in this action and

requests that a briefing schedule be set for the filing of a motion for attorneys’ fees and costs.

See Jt. Status. Rep., Docket No. [35]. Pursuant to the parties’ suggested briefing schedule,

Plaintiff shall file his Motion for Attorneys’ Fees by no later than February 18, 2010. Plaintiff’s

motion must provide specific legal authority for his apparent position that he is entitled to an

award of attorneys’ fees and costs in this action brought pursuant to the Administrative

Procedures Act, 5 U.S.C. § 701 et seq. (“ADA”). Defendants’ Opposition to Plaintiff’s Motion

for Attorneys’ Fees shall be due by no later than March 22, 2010, and Plaintiff’s Reply, if any,

2 shall be due by no later than April 12, 2010. An appropriate Order accompanies this

Memorandum Opinion.

Date: January 18, 2010

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge