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Smith v. EOUSA, No. 19-3572, 2022 WL 2237517 (S.D.N.Y. June 22, 2022) (Swain, C.J.)

Date

Smith v. EOUSA, No. 19-3572, 2022 WL 2237517 (S.D.N.Y. June 22, 2022) (Swain, C.J.)

Re:  Request for records concerning plaintiff's transfer between state and federal custody in 2011

Disposition:  Denying in part and granting in part plaintiff's motion for reconsideration to the extent it seeks an award of plaintiff's costs incurred in this action

  • Litigation Considerations & Attorney's Fees:  "Liberally construed, Plaintiff's motion seeks reconsideration of the Court's February 9 Order on five grounds, including (1) that the Court should reconsider its determination that the EOUSA did not respond to Plaintiff's FOIA requests in bad faith, (2) that the Court should reconsider its FOIA Exemption 3 analysis because the information in the documents withheld by the EOUSA has already been made public, (3) that some information in those documents is segregable from any properly-withheld portions, (4) that certain non-parties 'fraudulently informed' Plaintiff about the basis of his transfer from state to federal custody in 2011, such that Plaintiff needs disclosure of the withheld documents to pursue claims arising from that transfer, and (5) that Plaintiff should be awarded his costs in litigating this action."  "To warrant reconsideration, the moving party bears the burden of showing 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'"  "Plaintiff's first three arguments in favor of reconsideration raise issues which the Court has previously considered and decided in the EOUSA's favor, and do not present any intervening change of controlling law, availability of new evidence, or need to correct a clear error or prevent manifest injustice as to those issues."  Regarding plaintiff's fourth [non-FOIA] argument, "Plaintiff's speculation that disclosure of the withheld writ could theoretically assist him in framing a separate claim in this or another proceeding does not warrant an order from this Court directing disclosure of the withheld documents pursuant to Federal Rule of Criminal Procedure 6(e)(3)(E)(i)."  Regarding plaintiff's fifth argument, "[w]hile the February 9 Order denied Plaintiff's application for an award of attorneys' fees—which are not recoverable by pro se parties in FOIA actions . . . —the Court did not consider the question of costs."  "On the peculiar facts of this case, Plaintiff is both eligible for and entitled to an award of costs."  Regarding eligibility, "[t]wice this Court issued judicial orders granting Plaintiff some relief, first through an Order directing the EOUSA to perform a search for responsive documents in the first instance . . . and second through an order directing the agency to perform a more thorough search for responsive documents after its initial search was inconsistent and incomplete . . . ."  "These searches—which would not have occurred at all but for Plaintiff's lawsuit—yielded the production to Plaintiff of at least one document, as well as the identification of the relevant writ of habeas corpus ad testificandum, the existence of which Plaintiff had long sought to confirm."  "This relief may be relatively minimal—like the amount of Plaintiff's requested costs—but is sufficient to trigger section [5 U.S.C. §] 552(a)(4)(E)(i)."  "Once a plaintiff has shown his or her eligibility for an award of fees and costs under section 552(a)(4)(E), many courts have applied a four-factor test long applied in the D.C. Circuit to determine whether that eligible plaintiff is also 'entitled' to such an award."  "The Second Circuit has never been presented the explicit question whether to adopt the D.C. Circuit's four-factor test, however, and several judges within the D.C. Circuit have opined that the four-factor test should be abandoned."  "Even assuming the applicability of the above-referenced four-factor test, Plaintiff is also entitled to the small award he seeks."  "The public has little interest in this action, and the second and third factors are essentially neutral given that disclosure was sought principally for Plaintiff's personal (albeit noncommercial) use, based on his interest in understanding the process by which he was transferred to and from federal custody."  "Even if that interest did not overcome [Federal Rule of Criminal Procedure] 6(e)'s secrecy protections, it is a legitimate one."  "Moreover, the Court concludes that the fourth factor—the reasonableness of the agency's withholding of the requested documents—weighs in favor of an award and outweighs the other factors in this case."  "While they did not constitute bad faith, the EOUSA's failure to conduct any search at all in response to at least two separate FOIA requests from the Plaintiff until ordered to do so by the Court, and subsequent flawed search for responsive records, were sufficiently unreasonable to justify an award of costs against the agency."  "That is particularly so where Plaintiff's FOIA requests were relatively tailored to the issue as to which he sought information—the documentation (or lack thereof) of his transfer to and from federal custody."  "The three-year period between Plaintiff's first FOIA request to the agency and the agency's revelation that such documentation indeed existed also warrants an award of costs to the Plaintiff here." 
     
  • "Plaintiff requests $500 in costs, consisting of Plaintiff's $350 filing fee and 'more than $150.00 in mailing and copy fees.'"  "Plaintiff is entitled to reimbursement of his statutorily required filing fee, which he paid in full on July 28, 2020."  "Moreover, while the Court may not award costs which Plaintiff has not documented . . . and Plaintiff has not proffered any admissible evidence of his mailing and copy fees here—the envelopes of Plaintiff's mailings to the Court evidence, by the Court's calculation, no less than $51.89 in postage fees incurred in litigating this case."  "The Court therefore awards Plaintiff a total of $401.89 ($350 + $51.89) in costs incurred."
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Updated July 20, 2022