It was a rare trial court ruling to award attorney fees to a defendant—about $41,000 for the work Davis Wright Tremaine did to counter claims that federal agents stepped all over the Constitution in searching a Muslim family’s home in Virginia in a terrorist-related investigation.
Yesterday, the U.S. Court of Appeals for the 4th Circuit, voting 2-1, struck the fee award.
Judge Robert King wrote in Unus v. Kane, Katz, et al. that “this record lacks any indication that the plaintiffs were somehow motivated out of spite to prolong the litigation or increase the litigation costs.” He was joined by Judge William Traxler Jr. Chief Judge Karen Williams wrote in a separate opinion that she would have upheld the attorney fees.
All three appellate judges agreed with the lower court that the search of the Unus home was lawful. “To be sure, the federal agent defendants’ forced entry into the Unus residence must have been a harrowing experience for the plaintiffs,” King wrote. “The federal agent defendants were entitled, however, to exercise lawful force” in entering the home and drawing their weapons.
“The main event is the dismissal of the constitutional tort claims, and that was unanimous and very strong,” says Davis Wright Tremaine partner Laura Handman, co-chair of the firm's appellate practice. Handman says defendants have a high bar in seeking attorney fees.
Davis Wright Tremaine represented Rita Katz, whom the 4th Circuit describes as a “self-professed expert on the tracking of terrorist organizations” and the author of a book about researching terrorist-related activities in the United States. Katz, co-founder of SITE Intelligence Group, has worked with the federal government to provide and develop information about extremist organizations. Katz is not a federal agent.
The plaintiffs, Aysha and Hanaa Unus, allege Katz conspired with federal agents in fabricating evidence to support a search warrant for the Unus family home in Herndon, Va. Eleven federal agents, along with three police officers, executed the warrant in March 2002. Aysha and Hanaa Unus were handcuffed for nearly four hours.
In 2004, the Unus family, represented by DLA Piper, sued Katz and a group of federal agents in U.S. District Court for the Eastern District of Virginia. Judge Leonie Brinkema granted summary judgment against the plaintiffs. Brinkema concluded the Unus complaint was groundless and awarded fees to Katz.