UNITED STATES DISTRICT COURT WESTERN DISTRICT OF...

PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 1

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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 of 21


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For this public information, the BIA demanded that Plaintiffs pay tens of thousands of

dollars. AR000004. Plaintiffs appealed this determination via the BIA’s administrative appeals

process, as required by 43 C.F.R. § 2.59, but the appeal was ignored. AR000024.

Plaintiffs also sought to obtain this information via the discovery process in this action,

but were fought tooth and nail. Rather than producing one iota of evidence that they had

complied with the law, Defendants filed “a motion to absolve Defendants of ordinary discovery

obligations,” which was denied. Dkt. # 33, at 4-5. Plaintiffs then propounded a mere one and a

half pages of interrogatories, requesting information related to “any actions or steps taken while

reviewing the proposed amendment to the Nooksack Constitution.” Dkt. # 38-1, at 4.

Defendants responded with a Motion for Protective Order. Dkt. # 38. While the Court did “not

conclude that Plaintiffs are barred from pursuing discovery,” it did dismiss Plaintiff’s 25 U.S.C.

§ 476 claim on mootness grounds, and found that Plaintiffs’ discovery requests were therefore no

longer “relevant to their remaining claims.” Dkt. # 44, at 5, 16.

On July 15, 2015, Plaintiffs filed a Motion for Summary Judgment on their Freedom of

Information Act (“FOIA”) claim, which pertained to the ignored 2013 FOIA appeal requesting

this same information. Dkt. # 50. In that Motion, Plaintiffs argued that (1) “the BIA cannot

provide any evidence that the Plaintiffs have requested documents solely to further their business

interests” and that “Defendants violated FOIA when they improperly inflated fees in an effort to

deny Plaintiffs access to the information.” Dkt. # 50, at 13, 17. Instead of responding to this

motion, however, Defendants—conveniently, after roughly two years of ignoring Plaintiffs—

issued a letter agreeing to waive all fees associated with the FOIA request. AR000029.

Plaintiffs received a portion of the requested material on August 24, 2015.1

1 Although glaringly absent from the material received is any proof that the BIA reviewed or analyzed the Tribe’s proposed constitutional amendment.



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Congress passed the OPEN Government Act in 2007, adding to the previous FOIA

statute a provision awarding fees and costs to a complainant who obtains relief though “a

voluntary or unilateral change in position by the agency.” 5 U.S.C. § 552(a)(4)(E). As

explained by Sen. Leahy, the sponsor of the bill, the purpose of this addition was to mandate that

a FOIA requestor “obtain attorneys’ fees when he or she files a lawsuit to obtain records from

the Government and the Government releases those records before the court orders them to do

so.” 153 Cong. Rec. S15701–04 (daily ed. Dec. 14, 2007). Indeed, 5 U.S.C. § 552(a)(4)(E) was

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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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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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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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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necessary to obtain the requested information and the plaintiff received a significant portion of

the information requested. See e.g. Browder v. Fairchild, No. 08-0015, 2009 WL 2240388, at *2

(W.D. Ky. July 24, 2009); Baker v. Dept’ of Health and Human Serv., No. 11-0588, 2012 WL

5876241, at *6 (M.D. Pa. Nov. 20, 2012); Mobley v. Dept’ of Health and Human Serv., 908 F.

Suppp. 2d 42, 48 (D.C.C. 2012); Dixie Fuel Co. v. Callahan, 136 F. Supp. 2d 659, 663-64 (E.D.

Ky. 2001); Ellis v. United States, 941 F. Supp. 1068, 1077-78 (D. Utah 1996); Ettlinger v. F.B.I.,

596 F. Supp. 867, 879 (D. Mass. 1984); Marschner v. Dep't of State, Sec'y of State, 470 F. Supp.

196, 199-200 (D. Conn. 1979); Deininger & Wingfield, P.A. v. I.R.S., No. 08-0500, 2009 WL

2241569, at *4 (E.D. Ark. July 24, 2009).

Here, prior to litigation, the BIA failed to provide any documents responsive to Plaintiffs’

request. The BIA’s waiver of $10,116.00 in fees previously associated with Plaintiffs’ FOIA

request on July 24, 2015, and subsequent release of the requested records represents “a voluntary

or unilateral change in position by the agency” that renders Plaintiffs’ eligible for award of

attorneys’ fees and costs. The change in position was not insubstantial. Plaintiffs received the

exact relief requested in their FOIA appeal and their Second Amended Complaint. Plaintiffs are

eligible to receive attorneys’ to fees and costs.

B. Plaintiffs Are Entitled To Recover Fees And Costs In This Matter.

Having resolved Plaintiffs’ eligibility, the Court must next address whether Plaintiffs are

entitled to attorneys’ fees and costs. United Ass’n of Journeymen & Apprentices, Plumbing &

Pipefitting Indus., Local 598 v. Dep’t of the Army, 841 F.2d 1459, 1461 (9th Cir. 1988). “To

determine whether a ‘prevailing’ FOIA plaintiff is entitled to fees award, the district court must

assess four factors: (1) the public benefit derived from the case; (2) the commercial benefit to the

plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) the reasonableness of the



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agency's withholding.” Elec. Privacy Info. Ctr. v. Fed. Bureau of Investigation, 72 F. Supp. 3d

338, 345 (D.D.C. 2014) (quotation omitted).

These four criteria are not exhaustive, however, and the district court may take into

consideration “whatever factors it deems relevant in determining whether an award of attorney’s

fees is appropriate.” United Ass’n of Journeyman, 841 F.2d at 1461. This includes, for instance,

“stubbornness in refusing to conduct a reasonable search for the documents,” Los Angeles Gay &

Lesbian Cmty. Servs. Ctr. v. IRS, 559 F. Supp. 2d 1055, 1060 (C.D. Cal. 2008); the assertion of

an “unreasonable rationale,” Rosenfeld v. U.S. Dep't of Justice, 903 F. Supp. 2d 859, 871 (N.D.

Cal. 2012); or taking an “unreasonable stance.” Hajro v. U.S. Citizenship & Immigration Servs.,

900 F. Supp. 2d 1034, 1049 (N.D. Cal. 2012).

In addition to looking to these factors “as a guide to exercising their discretion,” district

courts must also “keep[] in mind ‘the basic policy of the FOIA to encourage the maximum

feasible public access to government information.’” Sierra Club v. United States Envtl. Prot.

Agency, 75 F. Supp. 3d 1125, 1142 (N.D. Cal. 2014) (citing Nationwide Bldg. Maint., Inc. v.

Sampson, 559 F.2d 704, 715 (D.C. Cir. 1977))

1. Public Benefit.

The public benefit factor “speaks for an award [of attorney fees] when the [plaintiff’s]

victory is likely to add to the fund of information that citizens may use in making vital political

choices.” Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995). This goes to the central

purpose of the FOIA: to assist the citizenry in making the informed choices so vital to “the

maintenance of a popular form of government.” S.Rep.No.854, 93d Cong., 2d Sess. 19 (1974).

District courts should also take into account the “degree of dissemination and the likely public

impact that might result from disclosure.” Church of Scientology v. U.S. Postal Serv., 700 F.2d

486, 493 (9th Cir. 1983).



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Here, Plaintiffs’ FOIA request concerned the federal government’s involvement in a

federal election. AR000001. Specifically, Plaintiffs sought information pertaining whether the

Federal government had violated federal law in conducting a Secretarial election—a “federal

election” that fundamentally affects “federal rights,” i.e. rights conferred by the Federal

government. Shakopee Mdewakanton Sioux (Dakota) Cmty. v. Babbitt, 906 F. Supp. 513, 520-

21 (D. Minn. 1995), aff’d, 107 F.3d 667 (8th Cir. 1997). Plaintiffs have submitted evidence that

“[t]he 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.” Dkt. # 50-3, at 13-17. Plaintiffs have also noted that “[t]he

information will be released to media outlets, such as The Seattle Times and the Bellingham

Herald, for decimation to the general public.” Id. In short, Plaintiffs have sought information in

order to increase public oversight over Defendants’ management of the Nooksack Secretarial

Election—which, again, is a federal election that implicates the entire U.S. polity and informs

them of how the government officials currently in office conduct themselves in this regard.

A public benefit also exists to hold an agency accountable to the law, including the

FOIA. For instance, in Wildlands CPR v. U.S. Forest Service, the plaintiff brought suit under

FOIA against the United States Forest Service (“USFS”) seeking release of documents pertaining

to the agency’s travel management plans. 558 F.Supp.2d 1096 (D. Mont. 2008). In granting the

plaintiff’s motion for attorneys’ fees and costs, the court focused on the fact that the plaintiff had

brought suit to determine whether USFS was in compliance with the environmental policies

Congress has established through the enactment of laws—laws that USFS is legally obligated to

implement and enforce. Id. at 1101. The court emphasized that a suit brought to ensure an

agency’s compliance with the law is the very purpose of FOIA. Id. The court opined that the



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disclosure of such information allows the public to evaluate its own political decisions that

ultimately produce the character of the agencies charged with this obligation. Id. (citing Cotton

v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995)).

Similarly, in O’Neil, Lysaght & Sun v. Drug Enforcement Admin., the plaintiffs sought

release of documents from the Drug Enforcement Agency (“DEA”) regarding the misconduct

and abusive practices of an informant. The information sought was for use in a criminal case

related to the plaintiffs’ client. 951 F.Supp. 1413, 1420 (C.D. Cal. 1996). The court held that

using the documents solely for a private purpose is not dispositive in determining whether a

public benefit is served, reasoning that the actual information sought “need not be of public

interest as long as there is a public benefit from the fact of its disclosure.” Id. at 1423. The court

recognized a public benefit in urging government compliance with statutory functions, and

therefore granted the plaintiffs’ motion for attorneys’ fees. Id.

Likewise, in Yonemoto, the plaintiff’s filing of suit prompted the Department of Veterans

Affairs (“VA”) to voluntarily produce emails sought to show that the VA discriminated against

him. 2012 WL 1980818. The court found that litigation resulted in a public benefit by shedding

light on the VA’s treatment of its personnel, forcing the VA to comply with FOIA, and

uncovering emails bearing on problems with VA’s operations. Id. at *4.

Similarly, here, Plaintiffs sought the information requested to uncover the BIA’s

compliance with the IRA, and to ensure that the Federal government has properly carried out its

trust, fiduciary, and statutory duties to the Tribe, its members, and the American citizenry.

Clearly, the “public benefit” prong weighs in Plaintiffs’ favor.

2. The Commercial Benefit To The Plaintiff And The Nature Of The Plaintiff’s Interests In The Records.

The second and third factors, the commercial benefit to the plaintiff and the nature of the

plaintiff’s interests in the records, are closely related, and district courts often consider the



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factors together. Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092, 1095 (D.C. Cir. 1992).

Ninth Circuit precedent instructs district courts evaluating these two factors to award fees if the

plaintiff’s interest in the information sought was public oriented. Long, 932 F.2d at 1316

(quoting Church of Scientology, 700 F.2d at 496 n.6). The fact that a plaintiff possesses a

commercial or personal gain does not negate the public interest served by plaintiff’s suit. See,

e.g., Aronson v. Dept. of Housing and Urban Development, 866 F.2d 1, 3 (1st Cir. 1989); Windel

v. United States, No. 02-0306, 2006 WL 1036786, at *3 (D. Alaska Apr. 19, 2006); Yonemoto,

2012 WL 1980818, at *2; Harjo, 900 F. Supp. 2d at 1048.

Here, as discussed thoroughly in Plaintiffs’ Motion for Summary Judgment, Plaintiffs

stand to gain nothing commercially from the documents requested—their sole purpose for

obtaining the documents is to benefit the Tribe, its members, and the U.S. Polity. Dkt. # 50; see

also Dkt. # 50-3, at 13-17 (Plaintiffs noting that they are seeking information to “contribute to

the understanding of the disenrollment proceedings to those members being disenrolled, the

entire Nooksack membership, and the general public.”). The nature of Plaintiffs’ interest in the

disclosed records, in other words, is neither private nor personal.

While it is true that the information related to the enrollment of over 300 Nooksack

Indians—at least tangentially—tribal citizenship is a political classification, not a commercial

one, as a matter of law. Morton v. Mancari, 417 U.S. 535, 554–55 (1974); Rice v. Cayetano, 528

U.S. 495, 532 (2000). And although it is true that benefits are derived from tribal citizenship,

those benefits can hardly be described as commercial or profiteering. Mancari, 417 U.S. at 554–

55; Dkt. # 50-1, at ¶ 5; Samuelson v. Little River Band of Ottawa Indians-Enrollment Comm’n,

2007, WL 6900788, at *2 (Little River Ct. App. Jun. 24, 2007).

Even assuming, arguendo, that the general public has no interest in the BIA’s

administration of the Secretarial election, at minimum, the members of the Tribe in general—and



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the over 300 members targeted for disenrollment in particular—have a public interest in the

documents requested. The purpose of this line of analysis is to weed out “large corporate

interest[s].” Cottone v. F.B.I., No. 94-1598 (D.D.C. Mar. 16, 2001), ECF No. 147, at 3. Here,

this group of Nooksack Indians are, for all intents and purposes, the functional equivalent of an

“indigent or a nonprofit public interest group”—the opposite of a large corporate interest.

Rosenfeld v. U.S. Dep't of Justice, 903 F. Supp. 2d 859, 870 (N.D. Cal. 2012); see also Dkt. # 50-

1, at 2 (Plaintiffs are not “seeking to further any business interests” or “a monetary judgment,”

but are instead “fulfilling [their] public duty, as members of the Nooksack Tribal Council.”).

And in the Ninth Circuit, “where plaintiff is indigent or a nonprofit public interest group,” an

award of attorney’s fees should in most instances be categorically granted. Church of

Scientology, 700 F.2d at 494.

3. Reasonableness Of The Agency’s Withholding. The fourth factor, reasonableness of the agency’s withholding, is intended to weed out

those cases in which the government was “recalcitrant in its opposition to a valid claim of

otherwise engaged in obdurate behavior.” Cuneo v. Rumsfled, 553 F.2d 1360, 1366 (D.C. Cir.

1977). The burden rests on the government to demonstrate that it had a “reasonable or colorable

basis for the withholding.” Aviation Data Serv., 687 F.2d at 1323; Davy, 550 F.3d at 1162-63.

What is more, even where an agency’s withholding would otherwise be reasonable, courts will

award fees where the agency is acting in a manner that is “determined, dilatory, and expensive to

confront.” Cottone, No. 94-1598, at 3-4.

Here, in response to Plaintiffs’ July 1, 2013, FOIA request, Defendants claimed that

1,000 responsive pages existed and that Plaintiffs’ must pay $10,116.00 to receive the documents

since Defendants deemed Plaintiffs to be “commercial users.” AR000004. For the reasons

outlined in Plaintiffs’ Motion for Summary Judgment, which need not be repeated here in full



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here—but was sufficient enough to cause the BIA to change its position—the BIA’s

determination was absolutely unreasonable. Dkt. # 50.

C. Plaintiffs’ Attorneys’ Fees And Costs Are Reasonable

To obtain attorneys’ fees and litigation costs, a plaintiff should submit a lodestar amount:

the product of the hours of work performed and the corresponding billable rate, which the Court

has the discretion to adjust. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (lodestar is

defined generally as the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate). The lodestar is presumed reasonable if the hours and rates are both

reasonable. Long, 932 F.2d at 1313-14. The hourly rate to be applied is the “rate prevailing in

the community for similar work performed by attorneys of comparable skill, experience, and

reputation.” Barjon v. Dalton, 132 F.3d 496, 502 (9th Cir. 1997) (quotation omitted).

The lodestar may be modified in the court's discretion based upon factors including: the

time and labor required, the novelty and difficulty of the questions involved, the skill requisite to

perform the legal service properly, the preclusion of other employment by the attorney due to

acceptance of the case, the customary fee, whether the fee is fixed or contingent, time limitations

imposed by the client or the circumstances, the amount involved and the results obtained, the

experience, reputation, and ability of the attorneys, the “undesirability” of the case, the nature

and length of the professional relationship with the client, and awards in similar cases. Kerr v.

Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975). Modifications are the exception

rather than the rule, however, since the lodestar amount is presumed to constitute a reasonable

fee. Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987).

As to FOIA, specifically, a higher-than-normal award of attorneys’ fees may be justified

where the government’s “recalcitrance and resistance” to complying with the FOIA request

required additional work by the plaintiff. See e.g. O’Neill, 951 F. Supp. at 1413. “Recovery of



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fees for resolving an attorney’s fee request is normally allowed even after the merits of the

dispute have been settled.” Rodriguez v. Luchey & Mitchell Recovery Solutions, LLC, No. 12-

3035, 2013 WL 6068458, at *3 (D. Colo. Nov. 18, 2013) (citing Hernandez v. George, 793 F.2d

264, 269 (10th Cir. 1986)).

1. The Hours Expended In This Litigation Are Reasonable

Counsel for Plaintiffs has provided declarations and detailed billing records documenting

the time expended, including the date, a description of the task performed and the amount of time

expended. See Declaration of Gabriel S. Galanda in Support of Plaintiff's Motion for Attorneys’

Fees and Costs (“Galanda Decl.”); Declaration of Anthony S. Broadman in Support of Plaintiff's

Motion for Attorneys’ Fees and Costs (“Broadman Decl.”); Declaration of Ryan D. Dreveskracht

in Support of Plaintiff's Motion for Attorneys’ Fees and Costs (“Dreveskracht Decl.”);

Declaration of Jared Miller in Support of Plaintiff's Motion for Attorneys’ Fees and Costs

(“Miller Decl.”); Declaration of Amber Penn-Roco in Support of Plaintiff's Motion for

Attorneys’ Fees and Costs (“Penn-Roco Decl.”); Declaration of Bree Black Horse in Support of

Plaintiff's Motion for Attorneys’ Fees and Costs (“Black Horse Decl.”). The declarations

constitute “[s]worn testimony that, in fact, it took the time claimed” and “[are] evidence of

considerable weight on the issue of the time required in the usual case.” Perkins v. Mobile

Housing Board, 847 F.2d 735, 738 (11th Cir. 1988). For the Court to deny this amount, “it must

appear that the time claimed is obviously and convincingly excessive under the circumstances.”

Id.

Here, the amount requested by Plaintiffs based on these detailed billing records is

reasonable based on the BIA’s continued refusal to comply with FOIA mandates. As discussed

above, Plaintiffs incurred significant attorneys’ fees and litigation costs as a result of almost two

years of hard fought litigation. During this period, counsel for Plaintiffs were forced to engage



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in a significant amount of additional work due to the BIA’s continued recalcitrance and

resistance in complying with Plaintiffs’ FOIA request. Such additional work included:

• Opposing the BIA’s costly, and ultimately unsuccessful motion to dismiss;

• Preparing for and drafting a motion for summary judgment, which proved futile

given the BIA’s complete change of position;

• Anticipating and preparing for a possible trial on the merits; and

• Preparing for and attending fruitless telephonic conferences and emailing back

and fourth with opposing counsel regarding dismissal and document production;

Further, the amount requested by counsel for Plaintiffs is reasonable because counsel has

reviewed its billing records and eliminated entries where work was arguably duplicative, where

issues and theories were explored but later abandoned, and where any work was considered

excessive or unnecessary. Counsel has provided declarations from all attorneys that have been

involved in this litigation, detailing their professional background and describing the nature of

the tasks they performed. See generally Galanda Decl.; Broadman Decl.; Dreveskracht Decl.;

Miller Decl.; Penn-Roco Decl.; Black Horse Decl.

2. Counsel’s Hourly Rates Are Reasonable.

Under the FOIA, district courts must award plaintiffs “an hourly rate equivalent to the

market rate for an attorney of similar skill.” Birkland v. Rotary Plaza, Inc., 643 F. 12 Supp. 223,

227 (N.D. Cal. 1986). Plaintiffs have submitted the declarations of Seattle attorneys William

Aloe and James Robenalt supporting the reasonableness of counsel’s rates, and the consistency

of those rates with those charged by attorneys of comparable skill and experience. See

Declaration of William Aloe in Support of Plaintiffs Motion for Attorneys’ Fees and Costs

(“Aloe Decl.”); Declaration of and James Robenalt in Support of Plaintiffs Motion for Attorneys’

Fees and Costs (“Robenalt Decl.”). “Declarations of the prevailing market rate in the relevant



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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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3. Plaintiffs Are Entitled To Reasonable Costs.

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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IV. CONCLUSION

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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CERTIFICATE OF SERVICE

I, Gabriel S. Galanda, say:

1. I am now and at all times herein mentioned, a legal, permanent resident of the United

States, over the age of eighteen years, not a party to the above-captioned action, and competent

to testify as a witness.

2. On October 21, 2015, I caused to be filed I filed the foregoing document, which will

provide service to the following via ECF:

Brian C Kipnis

The foregoing statement is made under penalty of perjury under the laws of the State of

Washington and is true and correct.

Signed at Seattle, Washington, this 21st day of October, 2015.

s/Gabriel S. Galanda Gabriel S. Galanda, WSBA# 30331


[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS - 1

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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


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