Ctr. for Popular Democracy v. Bd. of Governors of the Fed. Rsrv. Sys., No. 16-5829, 2021 WL 4452202 (E.D.N.Y. Sept. 29, 2021) (Garaufis, J.)

Ctr. for Popular Democracy v. Bd. of Governors of the Fed. Rsrv. Sys., No. 16-5829, 2021 WL 4452202 (E.D.N.Y. Sept. 29, 2021) (Garaufis, J.)

Re:  Request for records concerning Federal Reserve leadership

Disposition:  Adopting magistrate judge's report and recommendation; awarding plaintiff $156,545.93 in fees and costs

• Attorney Fees, Eligibility:  The court adopts the portion of the magistrate judge's opinion recommending "that the District Court find [that plaintiff] substantially prevailed, and is eligible for attorneys' fees and costs, only with respect to the supplemental searches . . . ."  First, the magistrate judge relates that "[plaintiff] contends that it substantially prevailed in this litigation and is eligible for a fee award pursuant to a judicial order, namely, the Court's July 16, 2019 Order requiring the Board to conduct an expanded search of the requested records."  "The Board concedes that [plaintiff] substantially prevailed as to the supplemental searches given the Court's July 16, 2019 Order."  "Given the Board's concession on this point, [the magistrate judge] finds [plaintiff] is eligible for fees and costs for work performed with respect to the supplemental searches."  However, the magistrate judge finds that "'[i]f rather than the threat of an adverse court order . . . an unavoidable delay accompanied by due diligence in the administrative processes was the actual reason for the agency's failure to respond to a request, then it cannot be said that the complainant substantially prevailed.'"  "As such, this Court finds CPD is not eligible for fees and costs for work performed with respect to the Board's five document productions made prior to the July 16, 2019 Order."
   
• Attorney Fees, Entitlement:  The court adopts the portion of the magistrate judge's opinion that states that "[c]onsidering all four factors together, [the magistrate judge] finds that [plaintiff] is both eligible and entitled to attorney's fees under FOIA's fee-shifting provision for the work related to the supplemental searches."  The magistrate judge finds that "[t]he first factor, the public benefit, weighs in favor of an award to [plaintiff]."  "The documents requested by [plaintiff] (1) related to a matter of great public concern – whether the Federal Reserve abides by the Federal Reserve Act by appointing diverse members to leadership roles and (2) had the potential to illustrate the criteria and processes used by the Federal Reserve to appoint such leadership."  Additionally, the magistrate judge "finds that [plaintiff] meets the second and third factors of eligibility for an award of fees."  The magistrate judge notes that "[plaintiff] contends that as a non-profit organization [it] 'advocat[es] for a more diverse and inclusive leadership at the Fed' . . . ."  The magistrate judge finds that "[t]he record does not raise any doubt that [plaintiff] filed the FOIA Request and pursued litigation for a[ny] reason other than 'to increase the public fund of knowledge about a matter of public concern.'"  Regarding the fourth factor, the magistrate judge finds that "[a]lthough [plaintiff] did not prevail on some of its claims, the Court granted most of [plaintiff's] motion."  "On balance, this Court finds factor four weighs in favor of [plaintiff] as to the documents sought on summary judgment because the Court rejected the Board's contention that it had conducted a reasonable search for responsive documents as to many of [plaintiff's] requests."
   
• Attorney Fees, Calculations:  The court adopts the portion of the magistrate judge's opinion that states that "[t]he requested hourly rates are not in line with the prevailing rates in the Eastern District of New York or even in the Southern District of New York."  "A 40% discount on all rates proposed by [plaintiff] for attorneys and law clerks would bring the rates of the timekeepers within the ranges granted in this District for complex litigation."  "A reduction to $100.00 per hour for paralegal work is also appropriate given the prevailing rates in this District."  Additionally, "[a]s [the magistrate judge] determined that [plaintiff] substantially prevailed only with respect to the documents produced subsequent to the July 16, 2019 Order, [the magistrate judge] reviews the time expended in this litigation to award fees for those tasks that were necessary to securing the supplemental searches."  The magistrate judge then proceeds to analyze both plaintiff's claimed attorney fees amounts and plaintiff's claimed litigation costs.