Ctr. for Popular Democracy v. Bd. of Governors of the Fed. Reserve Sys.

CENTER FOR POPULAR DEMOCRACY, Plaintiff, v. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM, Defendant.

No. 16-CV-5829 (NGG) (VMS)

United States District Court, E.D. New York

September 29, 2021

ORDER

NICHOLAS G. GARAUFIS, United States District Judge

Pending before the court is Plaintiff Center for Popular Democracy's motion for attorneys' fees and costs from Defendant Board of Governors of the Federal Reserve System pursuant to the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(E). (See Mot. for Attys' Fees and Costs (Dkt. 66).) This motion was referred to Magistrate Judge Vera M. Scanlon for a report and recommendation (“R&R”). (See Feb. 9, 2021 Order Referring Mot.) Judge Scanlon issued the annexed R&R on August 20, 2021, recommending the court grant in part and deny in part Plaintiff's motion. (See R&R (Dkt. 71).)

No party has objected to Judge Scanlon's R&R, and the time to do so has passed. See Fed. R. of Civ. P 72(b)(2). Therefore, the court reviews the R&R for clear error. See Velasquez v. Metro Fuel Oil Corp., 12 F.Supp.3d 387, 397 (E.D.N.Y. 2014).

Having found none, the court ADOPTS the R&R in full and awards Plaintiff $156, 545.93 in fees and costs, for the reasons stated in the R&R.

SO ORDERED.

REPORT AND RECOMMENDATION

Vera M. Scanlon, United States Magistrate Judge

Before the Court is Plaintiff Center for Popular Democracy's (“CPD”) motion seeking attorneys' fees and costs from Defendant Board of Governors of the Federal Reserve System (the “Board”) pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C § 552(a)(4)(E). See ECF No. 66. The Honorable Nicholas G. Garaufis referred the motion for a report and recommendation to the undersigned.

For the reasons that follow, this Court respectfully recommends that the District Court grant in part and deny in part CPD's motion for attorneys' fees and costs.

I. BACKGROUND

a. Factual Background And Procedural History

On August 5, 2016, CPD submitted a FOIA request (the “FOIA Request”) to the Board. ECF No. 49 at 3. The FOIA Request was 27-pages long and contained Parts I through VI, with numerous parts to each subsection. See ECF No. 1-3. The Board acknowledged receipt of the FOIA Request and extended its time to respond by the statutory maximum of 10 days, to September 19, 2016, but failed to provide a response by that date. ECF No. 49 at 3-4. On October 19, 2016, after “having heard nothing further from the Board, ” CPD filed its complaint challenging the Board's lack of production of documents only as to Parts II through VI of the FOIA Request. See CPD's Memo., ECF No. 66-1 at 4; Compl., ECF No. 1 ¶ 28.

According to sworn statements from the Board, their search and review process commenced when the FOIA Request was received in August 2016, and the Board's search for documents was well underway by mid-August 2016. See Board's Memo., ECF No. 67 at 1, 6; Declaration of David G. Caperton (“Caperton Decl.”), ECF No. 67-1 ¶ 4. The Board explains that their untimely response to the FOIA Request was due to the “unusual length and complexity of the Request, ” given that the “27-page, single-spaced” “FOIA Request [is] comprised of Parts I through VI, each with multiple subparts, totaling 221 separate items.” See Board's Memo. at 1-2, 6-7; Caperton Decl. ¶ 3. The Board also explained that responding to CPD's FOIA Request involved three separate divisions of the Board, three offices of the Board, numerous Board employees, consultation with subject-matter experts, and a team of attorneys and paralegals. Board's Memo. at 12; Caperton Decl. ¶ 3.

The Board made its first production of documents to CPD in November 2016, approximately two months after its response was due, and it made additional productions roughly once a month through March 2017. See ECF No. 49 at 3-4; CPD's Memo. at 4; Board's Memo. at 2. In March 2017, the Board requested clarification about certain of CPD's requests. ECF No. 49 at 4; CPD's Memo. at 4; Board's Memo. at 2. According to sworn statements from the Board, after its initial investigation for documents pursuant to certain subparts, the Board determined those requests were unduly vague and overly broad, and it invited CPD to submit clarifying and narrowing language. ECF No. 40-4 ¶¶ 61-62. CPD submitted the clarification in April 2017. Id. ¶ 62; CPD's Memo. at 4. The Board produced an additional 562 pages with exempt information redacted under FOIA exemptions 5, 6 and 8 in February 2018, the day before CPD's summary judgment motion was due. See Caperton Decl. ¶ 4; Declaration of Connie K. Chan (“Chan Decl.”), ECF No. 66-4 ¶ 5. In total, the Board produced 1, 167 pages of documents across five productions prior to the filing of CPD's summary judgment motion. See Capteron Decl. ¶ 4; Chan Decl. ¶¶ 5-6.

The parties cross-moved for summary judgment. See ECF Nos. 40-43. CPD's motion for summary judgment challenged the adequacy of the Board's searches with respect to three of the five parts of the FOIA Request about which it had filed the complaint, namely Parts IV, V and multiple subparts of Part II of the FOIA Request. See ECF No. 41-1 at 10-25. On July 16, 2019, the District Court granted CPD's motion to the extent it directed Defendants to

(1) search the documents of all members of the Board of Governors from the relevant period; (2) expand the search terms used to search emails and other records to include obvious alternative search terms, including keywords and the names or e-mail addresses of all relevant individuals, or provide sufficient explanations as to why particular proposed searches would constitute an unreasonable burden; (3) search records at the Reserve Banks that constitute “Records of the Board” within the meaning of 12 C.F.R. § 261.2(i)(1), including those records concerning presidential appointments and assessments that might be responsive to Part II of the FOIA Request, records relating to the Board's oversight of appointments of Reserve Bank directors that might be responsive to Parts IV and V of the FOIA Request, and records of annual assessments of Reserve Bank presidents; [] (4) search for the Annotated Bank Evaluation summaries and documents referencing them in connection with presidential appointments[; and (5)] produce all responsive documents not covered by a FOIA exemption.”

ECF No. 49 at 24-25. The Court denied CPD's motion for summary judgment with respect to its challenge of the Board's search pursuant to certain subparts of Part II of the FOIA Request, to the extent it found the Board to have adequately searched for records documenting assessment discussions about Reserve Bank Presidents between Reserve Bank Directors and the Board of Governor's Committee on Federal Reserve Bank Affairs (“BAC”) at BAC's meetings. Id. at 22-23. The Court granted the Board's motion for summary judgment with respect to the Board's withholding of seventeen documents under FOIA exemptions 5 and 6, which CPD did not contest at summary judgment. Id. at 24.

The parties thereafter had a conference with the Court and filed periodic status reports about the Board's compliance with the Court's July 16, 2019 Order on the cross-motions for summary judgment (the “July 16, 2019 Order”). See ECF Nos. 52-55. As a result of the Court's July 16, 2019 Order, the Board produced an additional 435 pages over the course of a year. See CPD's Memo. at 6; Board's Memo. at 3-4; Caperton Decl. ¶ 13; CPD's Reply Memo., ECF No. 68 at 2. According to Benjamin Dulchin, director of the Fed Up Campaign, CPD's 2020 Data Brief, The Federal Reserve Is a Public Institution but Is it Built to Represent the Public?, June 2020, https://populardemocracy.org/sites/default/files/FedUp-Diversity-Data-Brief7-20Web.pdf (the “Data Brief”), relied on the documents released pursuant to the FOIA Request and the July 16, 2019 Order. Declaration of Benjamin Dulchin (“Dulchin Decl.”), ECF No. 66-5 ¶¶ 6-8. CPD states that the FOIA-produced documents revealed that the Board “makes only minimal efforts to scrutinize seriously those put forward for leadership positions, ” and that there is “an urgent need to diversify the leadership of the nation's most powerful monetary policymakers, as board members from the business and banking sectors continue to dominate leadership positions at the Fed.” Id. ¶¶ 7-8.

On August 17, 2020, the parties informed the Court that the Board had complied with the Order to CPD's satisfaction, and the Court dismissed the action and entered judgment without prejudice to CPD to move for attorneys' fees and litigation costs after the entry of judgment. See ECF Nos. 55-58. CPD's instant motion for attorneys' fees and litigation costs followed. See ECF No. 66. The Board opposed, see ECF No. 67, and CPD replied in further support of its motion, see ECF No. 68.

b. Altshuler Berzon LLP

CPD offers the following uncontested information about its counsels' qualifications. Altshuler Berzon LLP (“Altshuler Berzon”) is “a boutique law firm located in San Francisco, California that specializes in complex civil litigation, especially in cases that advance the public interest.” Declaration of Stephen P. Berzon (“Berzon Decl. I”), ECF No. 66-2 ¶ 6.

Stephen P. Berzon (“Berzon”) is a founding partner of the law firm Altshuler Berzon. Id. ¶ 1. He graduated from Harvard Law School in 1968, and prior to founding Altshuler Berzon, worked at the National Housing and Economic Development Law project of the law school at the University of California at Berkeley and with the Legal Aid Society of Alameda County; he also served as Legal Director of the Children's Defense Fund in Washington, D.C Id. ¶ 3. Berzon clerked for the Honorable Alvin B. Rubin of the United States District Court for the Eastern District of Louisiana. Id. Berzon specializes in ...