Phillips v. United States Bureau of the Census

1

JUSTIN H. PHILLIPS, Plaintiff, v. UNITED STATES BUREAU OF THE CENSUS, Defendant.

No. 22-CV-9304 (JSR)

United States District Court, S.D. New York

January 22, 2024

OPINION AND ORDER

JED S RAKOFF, U.S.D.J.

On August 11, 2023, plaintiff, Justin H. Phillips, filed a motion for attorneys' fees and costs pursuant to 5 U.S.C § 552(a) (4) (E) (i) of the Freedom of Information Act ("FOIA") . See Notice of Mot., ECF No. 21. After full consideration of the parties' written submissions, the Court hereby denies plaintiff's motion for attorneys' fees and costs.

I. Factual and Procedural Background

On July 7, 2022, plaintiff, a political science professor at Columbia University, filed a FOIA request with defendant, the U.S. Census Bureau, seeking "privacy protected noisy data files for both the 2020 Census and the demonstration data pulled from the 2010 Census." Compl., ¶¶ 6, 8, 41, ECF No. 1. After 116 days in which the Census Bureau neither produced the requested documents nor provided an update about whether plaintiff's FOIA request would be granted, plaintiff filed the instant lawsuit. See id. ¶ 48. Plaintiff alleged that the Census Bureau violated FOIA by failing to respond to plaintiff's FOIA request within the statutorily required timeframe and by failing to produce the requested documents. Id. ¶¶ 49-62.

On November 17, 2022, the Census Bureau sought clarification about the files that plaintiff was seeking, and the next day, plaintiff confirmed he was seeking: (1) the "2010 Census Production Settings Demonstration Data Product Noisy Measurement Persons File" and (2) the "2020 Redistricting Data (P.L. 94-171) Summary Noisy Measurement Persons File." Stipulation and Order of Dismissal ("Stipulation") at 1-2, ECF No. 20. On December 1, 2022, the Census Bureau informed plaintiff that the requested 2010 file "had been deleted prior to the submission of [the] FOIA request" and the requested 2020 file was being "withheld under FOIA Exemption 3." Id. at 2.

Thereafter, at the initial pretrial conference on December 20, 2022, the Court set a briefing schedule for summary judgment, with the Census Bureau's moving papers set to be filed on February 1, 2023. 12/20/22 Tr. at 6:22-24, ECF No. 16. On January 20, 2023, shortly in advance of its deadline to file for summary judgment, the Census Bureau "announced it would be creating and releasing to the public" a file comparable the 2010 file that plaintiff had requested. See Stipulation at 3. Then, on March 27, 2023, the Census Bureau announced it would also be releasing a file similar to the 2020 file that plaintiff had requested. See id. at 3-4. As a result, "[p]laintiff agree[d] that the public release" of these two files "would obviate their need for the records requested in the FOIA request," and accordingly the parties agreed to dismiss the case with prejudice. Id. at 4. The promised 2010 and 2020 files were then released on April 3, 2023, and June 15, 2023, respectively. Stipulation at 3; Pl. Mem. of Law in Supp. of Mot. for Att'ys Fees and Costs ("Pl. Mem.") at 4, ECF No. 21-1.

Plaintiff now seeks $94,552.13 in attorneys' fees and $649.70 in costs that he incurred in litigating the instant case pursuant to 5 U.S.C. § 552 (a) (4) (E) (i) .

II. Legal Standard

Under FOIA, "[t]he court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a) (4) (E) (i) . Courts undertake a three-step analysis to determine whether to award attorneys' fees and costs to a plaintiff. See N.Y. Times Co. v. Cent. Intel. Agency, 251 F.Supp.3d 710, 713 (S.D.N.Y. 2017).^[1] First, the plaintiff "must . . . establish eligibility by showing that he substantially prevailed in his lawsuit." Pietrangelo v. U.S. Army, 568 F.3d 341, 343 (2d Cir. 2009). Second, the plaintiff "must show that he is entitled to an award under the four criteria the court weighs in determining whether fees are appropriate: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) whether the Government had a reasonable basis for withholding requested information." Id. Third, "a court determines whether the fee requested by an eligible and entitled [plaintiff] is presumptively reasonable under the lodestar approach generally applied to fee applications in the Second Circuit." N.Y. Times Co., 251 F.Supp.3d at 713.

Ill. Discussion

The Census Bureau contests each step of the analysis, arguing that plaintiff is not eligible for fees, plaintiff is not entitled to fees, and plaintiff's requested fees are unreasonable. For the reasons explained below, the Court finds that although plaintiff is eligible to recover attorneys' fees and costs, plaintiff is not entitled to recover his attorneys' fees and costs.

A. Eligibility for Fees

Plaintiff is eligible for attorneys' fees and costs if he substantially prevailed in this lawsuit. See Pietrangelo, 568 F.3d at 343. "[S]ubstantially prevailed" is statutorily defined as "obtain[ing] relief through either - (I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the [plaintiff's] claim is not insubstantial." 5 U.S.C. § 552(a) (4) (E) (ii) . Plaintiff argues that he can satisfy both disjunctive prongs of the statutory definition.

The Court starts with plaintiff's argument that he substantially prevailed via judicial order. This "approach . . . applies to cases in which there is a 'judicially sanctioned change in the legal relationship between the parties.'" Am. Oversight v. U.S. Pep't of Just., 375 F.Supp.3d 50, 61 (D.D.C. 2019) (quoting Davy v. C.I.A., 456 F.3d 162, 166 (D.C. Cir. 2006)). Plaintiff argues that the Stipulation, which the Court signed and entered on April 10, 2023, is a judicial order that provided relief because it required the Census Bureau to either produce "the 2020 Redistricting NMF Research Data Product by August 23" (which is the file that was ultimately released) or failing that, to produce "an unsupported file containing the noisy measurements for the 2020 Census Redistricting Data (P.L. 94-171) Summary File." See Stipulation at 4. See also Jud. Watch, Inc, v. F.B.I., 522 F.3d 364, 367-68 (D.C. Cir. 2008) (explaining that a joint stipulation order that is signed and entered by the court constitutes a judicial order for purposes of 5 U.S.C. § 552 (a) (4) (E) (ii)) .

The Census Bureau disagrees. Specifically, the Census Bureau argues that the Stipulation did not require it to produce either of the two files that plaintiff specifically sought in his FOIA request. Instead, the order required the Census Bureau to produce a comparable research data product (which it ultimately produced)^[2] or "an unsupported file containing the noisy measurements for the 2020 Census Redistricting Data (P.L. 94-171) Summary File," Stipulation at 4, neither of which is the 2020 file that plaintiff requested, which the Census Bureau still maintains is not subject to disclosure under Exemption 3. See Def. Mem. of Law in Opp'n to Pl. Mot. for Att'ys Fees and Costs ("Def. Mem.") at 13, ECF No. 22. Thus, according to the Census Bureau, because the Court-ordered relief does not match the relief specifically sought by plaintiff in his FOIA request and lawsuit, plaintiff has not substantially prevailed via judicial order.

Even crediting the Census Bureau's contention that the produced 2020 file differs from the 2020 file that plaintiff specifically requested, the Census Bureau takes an overly myopic and narrow view of what constitutes obtaining "relief" via a judicial order. Relief is "broadly" defined in 5 U.S.C. § 551(11). Conservation Force v. Jewell, 160 F.Supp.3d 194, 202 (D.D.C. 2016) (Jackson, J.). The statute defines "relief" to include "taking of other action on the application or petition of, and beneficial to, a person." 5 U.S.C. § 551(11) (C) . Thus, all that is statutorily required is that plaintiff "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Edmonds v. F.B.I., 417 F.3d 1319, 1326 (D.C. Cir. 2005) (emphasis added).

Here, the Court-approved Stipulation granted plaintiff at least some of the benefit he sought in filing his FOIA request and lawsuit: a comparable file containing the 2020 noisy measurement data. See Stipulation at 4 ("Plaintiff agrees that the public release of . . . the 2020 NMFs Research Data Product would obviate the[] need for the record[] requested in the FOIA request."). Nor is it of any moment that the produced 2020 file removed confidential data that was included in the requested 2020 file. It is standard practice for the Government to remove confidential data from documents produced pursuant to FOIA. See Am. C.L. Union Immigrants' Rts Project v. U.S. Immigr. & Customs Enf't, 58 F.4th 643, 653 (2d Cir. 2023) ("FOIA's segregability requirement . . . instructs that 'any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.'" (quoting 5 U.S.C. § 552(b)). Furthermore, in his FOIA request, plaintiff acknowledged there may be a need to withhold certain portions of the requested document. See Compl., Ex. A at 1-2, ECF No. 1-1. Accordingly, plaintiff substantially prevailed because the Court-approved Stipulation required the Government to produce a comparable file to the requested 2020 file by a date certain.

Finally because the Court finds that plaintiff substantially prevailed via judicial order, it declines to reach whether the Census Bureau...