                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 JOSEPH POETT,

    Plaintiff,

      v.                                                      Civil No. 08-622 (CKK)
 U.S. DEPARTMENT OF JUSTICE,

    Defendant.


                                  MEMORANDUM OPINION
                                     (January 18, 2010)

       Plaintiff filed the above-captioned action alleging violations of the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiff’s lawsuit is based upon his request, under

FOIA, for certain records relating to the decision by the Division of Select Agents and Toxins

(“DSAT”), within the Centers for Disease Control and Prevention of the Department of Health

and Human Services, to deny Plaintiff access to select agents and toxins within the course of his

work as a chemist based upon his alleged knowing involvement with a terrorist organization. In

a separate, related action filed before this Court, Plaintiff has also brought suit under the

Administrative Procedures Act, 5 U.S.C. § 701 et seq. (“ADA”) challenging the actual decision

by DSAT to deny him access to select agents and toxins. See Poett v. United States, Civ. Act.

No. 07-1374 (CKK). In filing this related action under FOIA, Plaintiff indicated that access to

the requested records was necessary because, “[i]n order . . . to defend himself against the charge

of knowing involvement with an organization that engaged in intentional crimes of violence, it is

necessary that he be apprised of the date or dates, time or times, place or places of his alleged

involvement with said organization and a description of what acts he allegedly engaged in that
made him suspect [as well as] the identity of the Organization Joseph Poett was allegedly

involved with.” Complaint, Ex. 1 at p. 2.

       On December 22, 2009, the Court issued a Minute Order, in which it noted that “the

Government defendants in the related action have just advised the Court that the FBI 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.” Id. In

addition, the Court noted that, in the course of litigating the related action, the Government had

advised Plaintiff of the underlying basis for its initial decision to deny him access to select agents

and toxins and had provided him with the relevant records regarding DSAT’s decision. As such,

it appeared that Plaintiff’s purpose in filing the instant FOIA Action — i.e., to be informed of the

“the date or dates, time or times, place or places of his alleged involvement with said

organization and a description of what acts he allegedly engaged in that made him suspect [as

well as] the identity of the Organization Joseph Poett was allegedly involved with,” Complaint,

Ex. 1 at p. 2 — had been satisfied. 12/22/09 Min. Order. Accordingly, the Court ordered that,

“[g]iven these developments in the related case, the parties in this action shall file a joint status

report, no later than January 15, 2010, updating the Court as to the current status of this action

and advising the Court as to whether Plaintiff intends to continue to pursue the instant action.”

Id.

       As required, the parties filed their Joint Status Report filed on January 15, 2010. See

Joint Status Report, Docket No. [20]. The Joint Status Report contains no indication that

“Plaintiff intends to continue to pursue the instant action,” but advises only that a dispute remains


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between the parties as to whether Plaintiff is entitled to attorneys’ fees and costs. See id.

Accordingly, as Plaintiff does not indicate in the Joint Status Report that he intends to continue

to pursue this action in light of the developments in the related case, the Court shall DISMISS the

above-captioned Complaint subject to the filing of Plaintiff’s Motion for Attorneys’ Fees and

Costs. Defendant’s pending [15] Motion for Summary Judgment is therefore DENIED as

MOOT.

       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. [19]. Pursuant to the parties’ suggested briefing schedule,

Plaintiff shall file his Motion for Attorneys’ Fees and Costs by no later than February 18, 2010;

Defendants’ Opposition to Plaintiff’s Motion for Attorneys’ Fees and Costs shall be due by no

later than March 22, 2010; and Plaintiff’s Reply, if any, 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




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