PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Galanda Broadman PLLC 8606 35th Avenue NE, Ste. L1 Mailing: P.O. Box 15146 Seattle, WA 98115 (206) 557-7509 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE RUDY ST. GERMAIN, MICHELLE ROBERTS, enrolled Nooksack Tribal members, Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERIOR; BUREAU OF INDIAN AFFAIRS; SALLY JEWELL, Secretary of the Interior; KEVIN K. WASHBURN, Assistant Secretary of Indian Affairs; SCOTT AKIN, Acting Northwest Regional Director; JUDITH R. JOSEPH, Superintendent for the Puget Sound Agency, Defendants. NO. C-13-945-RAJ PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS I. INTRODUCTION Plaintiffs Rudy St. Germain and Michelle Roberts move this Court for award of attorneys’ fees and costs, pursuant to Fed. R. Civ. Proc. 54(d), 5 U.S.C. § 552(a)(4)(E)(i), and this Court’s Order Granting Plaintiffs’ Motion for Voluntary Dismissal, Dkt. # 59. In March of 2013, Plaintiffs learned that consorted efforts were taking place to strip them of their tribal identity. They believed that the Secretary of the Interior and its Bureau of Indian Affairs (“BIA”) were abetting these efforts by failing to properly review a proposed change to the Constitution of the Nooksack Indian Tribe (“Tribe”)—a task that Defendants are statutorily required to undertake, per 25 U.S.C. § 476. Plaintiffs thus requested from the BIA the most recent thirty days worth of publicly available information referring or relating to the amendment of the Tribe’s Constitution. AR000001. Case 2:13-cv-00945-RAJ Document 60 Filed 10/21/15 Page 1 of 21
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PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 1
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE RUDY ST. GERMAIN, MICHELLE ROBERTS, enrolled Nooksack Tribal members, Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERIOR; BUREAU OF INDIAN AFFAIRS; SALLY JEWELL, Secretary of the Interior; KEVIN K. WASHBURN, Assistant Secretary of Indian Affairs; SCOTT AKIN, Acting Northwest Regional Director; JUDITH R. JOSEPH, Superintendent for the Puget Sound Agency, Defendants.
NO. C-13-945-RAJ PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
I. INTRODUCTION
Plaintiffs Rudy St. Germain and Michelle Roberts move this Court for award of
attorneys’ fees and costs, pursuant to Fed. R. Civ. Proc. 54(d), 5 U.S.C. § 552(a)(4)(E)(i), and
this Court’s Order Granting Plaintiffs’ Motion for Voluntary Dismissal, Dkt. # 59.
In March of 2013, Plaintiffs learned that consorted efforts were taking place to strip them
of their tribal identity. They believed that the Secretary of the Interior and its Bureau of Indian
Affairs (“BIA”) were abetting these efforts by failing to properly review a proposed change to
the Constitution of the Nooksack Indian Tribe (“Tribe”)—a task that Defendants are statutorily
required to undertake, per 25 U.S.C. § 476. Plaintiffs thus requested from the BIA the most
recent thirty days worth of publicly available information referring or relating to the amendment
of the Tribe’s Constitution. AR000001.
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PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 2
specifically passed to address the “concern that . . . Federal agencies have an incentive to delay
compliance with FOIA requests until just before a court decision is made that is favorable to a
FOIA requestor.” Id.
Here, that is precisely what has occurred. If there ever were a factual scenario tailor-
made for a fee award under this provision, it is here. Plaintiffs are entitled to an award of fees
and costs due to Defendants about-face, just before this Court was poised to render a decision
favorable to FOIA requestors Mr. St. Germain and Ms. Roberts.
II. BACKGROUND
A. Factual Background.
On July 1, 2013, Plaintiffs sent a request for documents to the BIA’s Northwest Regional
Office. AR000001. This request sought the following:
Any and all documents, records, correspondence, notes, faxes, voicemails, emails or other information, which refer or relate to a 2013 Secretarial election concerning any amendment to the Constitution and/or Bylaws of the Nooksack Indian Tribe of Washington (“Constitution”).
Reference is made to: (1) a Nooksack Secretarial Election held on June 21, 2013 and certified on June 24, 2012[3]; (2) an April 25, 2013, Notice of Secretarial Election from the Bureau of Indian Affairs Puget Sound Agency to the Nooksack “Tribal Voter[s]”; and (3) the Nooksack Indian Tribe Communications Page on Facebook, which is publicly available at https://www.facebook.com/NooksackIndianTribe?fref=ts, whereby the Tribe indicates that a Tribal website with voter registration information is “updated
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PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 4
regularly as we receive updates from the BIA.” Your response should include, without limitation, each and every such BIA “update” to the Tribe.
This trust-duty and FOIA request is limited to any such information generated or dated within the last thirty days (30), but is intended to be ongoing and open- ended. To the extent new material is produced after the date of this letter, please produce it as you would produce that material currently in the Bureau’s custody or control. This request is not intended to be duplicative of those records that are responsive to Mr. St. Germain and Ms. Roberts’ March 8, 2013, March 29, 2013, or May 6, 2013 FOIA requests submitted to your attention.
Id.
In response to this request, the BIA wrote that there were 1,000 responsive pages for the
30-day period requested and that Plaintiffs needed to pay an astonishing $10,116.00 to receive
these documents because they—as tribal members and officers of the Tribe’s government—were
somehow categorized as “commercial use” requesters. AR000003-05.
On July 19, 2013, Plaintiffs requested that the BIA revise its assessment. AR000006-08.
The BIA replied on July 31, 2013, tersely stating that “[w]e stand by our fee estimate.”
AR000009-12. The BIA’s reply also indicated, however, that a waiver might apply to the
Councilmembers through 43 C.F.R. § 2.48(a) and 43 C.F.R. § 2.45(a)(1). Id. Director Speaks
requested that Plaintiffs “supply additional information” that addresses the criteria found at 43
CFR § 2.48(a). Id.
In response, Plaintiffs wrote the following: The records concern the federal government’s approval of a Nooksack Secretarial Election that seeks to remove aspects of the Nooksack Constitution so that certain persons no longer qualify as Nooksack. . . . The records seek to determine whether the Federal government has violated federal law, as codified in the Indian Reorganization Act (“IRA”), 25 U.S.C. § 476(c)(2)(B), by failing to notify the Tribe that the proposed amendment is in conflict with federal law. . . . The records will be meaningfully informative to all members of the Nooksack Indian Tribe; all of whom will suffer if the Federal government fails to properly carry out its trust and fiduciary duties – as well as the general public; which also has an interest in assuring that the Federal government fulfills its duties. . . . Pursuant to 25 U.S.C. § 476(c)(2) the federal government must “review the final draft of the constitution and bylaws, or amendments thereto to determine if any provision therein is contrary to applicable laws.” 25 U.S.C. § 476(c)(2). . . . The content of the records
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PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 5
sought bares directly upon the federal government’s operations and activities in fulfilling these mandates. . . . The requested change in the Nooksack Constitution will remove Nooksack membership from over three hundred Indians. The disclosure will contribute to the understanding of the disenrollment proceedings to those members being disenrolled, the entire Nooksack membership, and the general public – who are clearly interested in the subject. . . . The information will be released to media outlets, such as The Seattle Times and the Bellingham Herald, for decimation to the general public. The information will also be made part of the public record in a federal court lawsuit filed on behalf of the targeted 275 Nooksacks. . . . [W]e have proficiency and experience in disseminating information to broad audiences. After our analysis, the information will be made available to a number of news organizations, as well as being made part of the public record in court filings. . . . The information being requested is new, as it relates to (1) a Nooksack Secretarial Election held on June 21, 2013 and certified on June 24, 2012[3]; and (2) an April 25, 2013, Notice of Secretarial Election from the Bureau of Indian Affairs Puget Sound Agency to the Nooksack “Tribal Voter[s].” . . . Thus far, we have received little to no information from the Federal government on this issue. . . . The information sought is not already publically available.
AR000013-17. In reply, the BIA wrote that the “request for disclosure of records of the Federal
Government’s approval of the Nooksack Secretarial Election is not being sought for informative
value.” AR000018. In addition, Director Speaks wrote:
You are requesting the disclosure of the 2013 Secretarial election documents to support . . . conclusory and unsupported allegations of misconduct of the Federal government . . . is completely contrary to (i) being meaningfully informative in contributing to public understanding of government operations or activities; (ii) providing a logical connection between the content of the records and government operations or activities; (iii) contributing to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to individual understanding; and (iv) disclosing the information in a manner informative to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to your individual understanding, including specifying any qualifications or expertise regarding same. You are requesting these disclosures for a narrow segment of interested persons to support an individual understanding of conclusory and unsupported allegations of misconduct of the Federal government in addition to a private interest in how individuals voted, rather than to contribute to public understanding of any government operations or activities. . . . [Y]ou seek records which would serve a private interest concerning a specific Secretarial election and disclosure would only benefit a narrow segment of interested persons. You seek intrinsic informational content of specific records and do not seek records for their informative value with respect to any specifically identified government operations or activities.
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PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 6
AR000018-23. On October 19, 2013, Plaintiffs appealed Director Speaks’ FOIA decision to the
Department of the Interior, Office of the Solicitor’s FOIA Appeals Office. AR000024-27. The
Appeals Office received the appeal on October 21, 2013, but did not respond. AR000024.
B. Procedural Background.
Plaintiffs filed a Second Amended Complaint2 in this matter on June 15, 2015, pursuant
to a stipulation between the parties. Dkt. # 47-49. Plaintiffs’ second amended complaint alleged
a single cause of action based on the BIA’s failure to timely respond to Plaintiffs’ July 1, 2013,
FOIA request. Dkt. # 49, ¶¶ 19-20.
Plaintiffs moved for summary judgment on July 15, 2015. Dkt. # 50. Defendants
opposed the motion, and in response, filed a cross-motion for summary judgment, arguing that
the Court lacked subject matter jurisdiction. Dkt. # 53
On July 31, 2015, Defendants filed the Administrative Record for Plaintiffs’ July 1, 2013,
FOIA request. Dkt. # 52. The Administrative Record indicated that on July 24, 2015, BIA
waived all fees associated with Plaintiffs’ July 1, 2013, FOIA request. AR000028. Plaintiffs’
administrative appeal from the BIA’s decision regarding processing fees was therefore dismissed
as moot, and the BIA was directed to commence processing Plaintiffs’ FOIA request.
AR000029-30. Based on the BIA’s voluntary change in position, Plaintiffs filed a motion for
voluntary dismissal pursuant to Fed. R. Civ. P. 41(a)(2) on August 13, 2015. Dt. # 56.
2 Plaintiffs filed their first Complaint on May 31, 2013, alleging a single cause of action based on FOIA request submitted on March 8, 2013. Dkt. # 1. Plaintiffs filed an Amended Complaint on June 17, 2015, adding claims pursuant to the IRA, Fifth and Fifteenth Amendments to the United States Constitution, the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and for breach of trust based on allegations that Defendants acted wrongly in conducting a secretarial election concerning a proposed amendment to the Nooksack Constitution relating to tribal membership eligibility. Dkt. # 3. This Court dismissed most of Plaintiffs’ claims on May 20, 2015, in ruling on Defendants’ motion for partial summary judgment. Dkt. # 44. Plaintiffs are not, of course, seeking attorneys’ fees and costs for preparation of these pleadings, anything unrelated to FOIA, or anything filed before the Second Amended Complaint was filed in June of 2015. Instead Plaintiffs seek only FOIA-related fees incurred since their last complaint filing.
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On September 22, 2015, this Court determined that it possessed jurisdiction over
Plaintiffs’ FOIA claim, denied Defendants’ motion for summary judgment, and granted the
Plaintiffs’ motion for voluntary dismissal. Dkt. # 59. The Court also invited this Motion. Id.
III. ARGUMENT
The FOIA permits the court “to assess against the United States reasonable attorney fees
and other litigation costs reasonably incurred in any [FOIA] case . . . in which the [plaintiff] has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E). To obtain an award of attorney fees under
FOIA, a plaintiff must demonstrate both eligibility and entitlement. Long v. IRS, 932 F.2d 1309,
1313 (9th Cir. 1991).
A. Plaintiffs Are Eligible To Recover Fees And Costs In This Matter. A plaintiff in a FOIA action is deemed to be eligible for fees if he has “substantially
prevailed” on his claim. Id. at 1313. A plaintiff substantially prevails by “obtain[ing] relief
through either (i) a judicial order, or an enforceable written agreement or consent decree; or (ii) a
voluntary or unilateral change in position by the agency, if the complainant’s claim is not
insubstantial.” 5 U.S.C. §§ 552(a)(4)(E)(i)-(ii).
An agency’s voluntary release of documents after litigation has commenced renders a
plaintiff eligible. See e.g. Yonemoto v. Veterans Affairs, No. 06-0378, 2012 WL 1980818, *2, *5
(D. Haw. June 1, 2012) (finding plaintiff substantially prevailed were emails were voluntarily
produced during litigation and there was no indication from the record that plaintiff could have
obtained the requested documents without filing suit); Waage v. Internal Revenue Serv., 656 F.
Supp. 2d 1235, 1241 (S.D. Cal. July 15, 2009) (same); Judicial Watch, Inc. v. U.S. Dep't of
Homeland Sec., No. 08-2133, 2009 WL 1743757, at *6 (D.D.C. June 15, 2009) (same); Frankel
v. D.C. Office for Planning & Econ. Dev., 110 A.3d 553, 556 (D.C. 2015) (same, under parallel
D.C. law). Courts have found claims “not insubstantial” if, as here, the lawsuit was reasonably
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PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 8
community are sufficient to establish the appropriate billing rate for lodestar purposes.” Davis v.
City and County of San Francisco, 976 F.2d 1536, 1545-46 (9th Cir. 1992).
In determining the prevailing market rate, the attorney’s actual billing rate is highly
relevant, and counsel’s normal billing rates carry a presumption of reasonableness. White v. City
of Richmond, 713 F.2d 458, 461 (9th Cir. 1983), Gusman v. Unisys Corp., 986 F.2d 1146, 1150
(7th Cir. 1993). Here, Plaintiffs request that the Court use the following attorney hourly rates,
which reflect the attorneys’ actual billing rates:
Timekeeper Rate
Gabriel S. Galanda $250 Anthony S. Broadman $225 Ryan D. Dreveskracht $195 Jared Miller $195 Amber Penn-Rocco $195 Bree Black Horse $195 Molly Jones (Paralegal) $75
The rates sought by counsel in this case are comparable to the rates charged by other firms for
work by attorneys of comparable skill and experience. Aloe Decl., at ¶¶ 9-11; Robenalt Decl., at
¶¶ 9-11.
In addition, Plaintiffs seek compensation for the work of paralegals. The Supreme Court
has held that reasonable attorneys’ fees include the work of attorneys and support staff such as
paralegals “whose labor contributes” to the work product. Missouri v. Jenkins, 491 U.S. 274,
285 (1989). The work performed by non-attorney professionals is to be compensated at the
market rate for their services rather than at their cost to the attorney. Id. The submitted
declarations demonstrate that the rates charged for these categories are reasonable, and that it is
local practice to bill for such services. See generally Aloe Decl.; Robenalt Decl.
This Court should award Plaintiffs’ counsels’ requested hourly rates, as they are
reflective of the Seattle market rate for lawyers of comparable experience and skill.
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PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 18
It is the routine and common practice of firms to charge fee-paying clients separately for
copying, facsimile, long distance telephone charges, word processing, postal charges, litigation
supply costs, computerized legal and database research, and other necessary out-of-pocket
expenses. Aloe Decl., ¶ 6; Robenalt Decl., at ¶¶ 5-6.
Here, the total litigation costs requested by Galanda Broadman, PLLC, on behalf of its
client are $683.86. Dreveskracht Decl., Exhibit B. This Court should award Plaintiffs’ counsels’
requested costs.
4. Summary of Fees and Costs Claimed.
Plaintiffs seek an award of $28,508.86. The basis for this request is contained in the
Declarations and Exhibits submitted with this motion. Among the exhibits are detailed time and
billing records providing the basis for the amounts sought. Here, we summarize the totals:
Timekeeper Rate Hours Amount Gabriel S. Galanda $250 3.0 $750.00 Anthony S. Broadman $225 .5 $112.50 Ryan D. Dreveskracht $195 94.9 $18,505.50 Amber Penn-Roco $195 33.0 $6,435.00 J. Jared Miller $195 6.0 $1,170.00 Bree Black Horse $195 2.6 $507.00 Molly A. Jones $75.00 4.6 $345.00 Total 144.6 $27,825.00
Category Amount
Legal Research Fees $683.86 Total $683.86
Comprehensive Total: $28,508.86
//
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PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 19
For the foregoing reasons, Plaintiffs respectfully requests that this Court grant its motion
for fees and costs, and for such other relief that this Court deems proper.
DATED this 21st day of October, 2015.
s/Gabriel S. Galanda Gabriel S. Galanda, WSBA# 30331 s/Anthony S. Broadman Anthony S. Broadman, WSBA #39508 s/Ryan D. Dreveskracht Ryan D. Dreveskracht, WSBA #42593 Attorneys for Plaintiffs GALANDA BROADMAN, PLLC P.O. Box 15146 Seattle, WA 98115 (206) 691-3631 Fax: (206) 299-7690 Email: [email protected] Email:[email protected] Email: [email protected]
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PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 20
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE RUDY ST. GERMAIN, MICHELLE ROBERTS, enrolled Nooksack Tribal members, Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERIOR; BUREAU OF INDIAN AFFAIRS; SALLY JEWELL, Secretary of the Interior; KEVIN K. WASHBURN, Assistant Secretary of Indian Affairs; SCOTT AKIN, Acting Northwest Regional Director; JUDITH R. JOSEPH, Superintendent for the Puget Sound Agency, Defendants.
NO. C-13-945-RAJ [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS
Upon consideration of plaintiffs’ motion for an award of attorneys’ fees and costs, the
supplemental declarations filed therewith, and the entire record herein, it is:
ORDERED, that plaintiffs’ motion for attorneys’ fees is granted; it is further
ORDERED that plaintiff is awarded $27,825.00 in attorney’s fees; and it is further
ORDERED that plaintiff is awarded $683.86 in costs.
DATED this __ day of October, 2015.
___________________________ The Honorable Richard A. Jones United States District Judge
Case 2:13-cv-00945-RAJ Document 60 Filed 10/21/15 Page 21 of 21