The New York Times Company v. Central Intelligence Agency

Filing 38

OPINION AND ORDER: The Times' motion for attorney's fees and costs is hereby granted, and The Times is awarded $51,909.86. The Clerk of Court is directed to close docket entry 31, and as further set forth. (Signed by Judge Jed S. Rakoff on 5/1/2017) (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THE NEW YORK TIMES COMPANY,
16 Civ.

3098

(JSR)

Plaintiff,
OPINION AND ORDER
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JED S. RAKOFF, U.S.D.J.

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Plaintiff The New York Times Company ("The Times") brought this
action under the Freedom of Information Act seeking to force
defendant Central Intelligence Agency ("CIA")

to produce three

reports, identified by name and approximate date of publication,
relating to chemical weapons in Iraq. See Complaint, ECF No. 1,
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8(i)-(iii). The CIA refused to confirm or deny the existence of

these reports - a so-called "Glomar response" 1

-

a position it

maintained throughout the briefing and oral argument on the parties'
cross-motions for summary judgment. Following oral argument,
however, the CIA withdrew its Glomar response and produced the
reports

(with redactions), and the parties withdrew their summary

judgment motions as moot. See Joint Stipulation dated Sept. 16,

This term derives from Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir.
1976), in which the defendant refused to confirm or deny the
existence of records relating to a vessel named the Hughes Glomar
Explorer. See New York Times Co. v. U.S. Dep't of Justice, 756 F.3d
100, 105 & n.4 (2d Cir. 2014).
1

1

2016, ECF No. 25. The Times, having achieved this favorable result,
now seeks $61,909.86 in attorney's fees and costs under FOIA's fee:shifting provi:sion, 5

U.S. C.

§

552 (a) ( 4) (E) . For the reasons stated

below, the Court finds that The Times is entitled to an award of
$51,909.86.
Evaluating FOIA fee applications is a three-step process.
First, the court determines whether the applicant has shown
"eligibility" for fees by showing that it "substantially prevailed"
in the litigation. See Pietrangelo v. U.S. Army,
(2d Cir. 2009)

(per curiam)

(quoting 5 U.S.C.

§

568 F.3d 341, 343
552 (a) (4) (E) (i)). A

FOIA complainant substantially prevails if it has "obtained relief
through

. a voluntary or unilateral change in position by the

agency" and its claim was "not insubstantial." 5 U.S.C.
§

552 (a) (4) (E) (ii) (II).
Second,

if an applicant is eligible for fees,

the court next

determines whether the applicant is "entitled" to fees by weighing
the following four factors:
case;

( 2)

"(1)

the public benefit derived from the

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." Pietrangelo, 568 F.3d at 343.
Third, and finally,

a court determines whether the fee

requested by an eligible and entitled applicant is "presumptively
reasonable" under the lodestar approach generally applied to fee

2

applications in the Second Circuit. See Simmons v. N.Y.C. Transit
Auth., 575 F.3d 170, 174
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(2d Cir. 2009).

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is eligible tor fees,

see

5 U.S.C. § 552(a) (4) (E) (ii) (II), but argues that The Times is not
entitled to them, and,

in the alternative, that some of The Times'

specific requests are unreasonable.
Regarding entitlement, the Court, weighing the Pietrangelo
factors,

finds that The Times is entitled to fees.

The first factor,

public benefit, unambiguously favors The Times. The public greatly
benefits from learning what the Government knew about chemical
weapons in Iraq following the invasion; after all, the existence vel
non of such weapons was one of the principal flashpoints in the
public debate over the war. Whether the Government,

following the

invasion, took adequate precautions to protect U.S. service members
from the dangers of what, according to The Times'

reporting, turned

out to be degraded and decrepit remnants of Iraq's pre-Gulf War
stockpile is likewise of great public interest. 2
The second and third factors

(the plaintiff's commercial

benefit and the nature of the plaintiff's interest in the records)
which are often considered together,
1160

(O.C. Cir. 2008)

see Davy v. CIA,

550 F.3d 1155,

- also favor The Times. Although The Times is

a commercial enterprise, courts have "long recognized that news

2 See, e.g., C.J. Chivers, The Secret Casualties of Iraq's Abandoned
Chemical Weapons, N.Y. Times, Oct. 14, 2014, available at
https://www.nytimes.com/interactive/2014/10/14/world/middleeast/uscasualties-of-iraq-chemical-weapons.html.

3

interests, regardless of private incentive, generally should not be
considered commercial interests for purposes of the second factor."
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umiLt:.eaJ. Tne Times'

interest in

the records it sought was public-minded and journalistic, not
narrowly focused on the bottom line.
The CIA all but concedes that the first three factors favor The
Times,

for it relegates the lot of them to a single footnote in its

brief that vaguely alludes to the supposedly "unique circumstances"
of this case, by which it apparently means that the CIA's interest
in chemical weapons was already well-known, that the produced
documents total fewer than forty pages, and that awarding fees would
discourage "discretionary" releases such as this. See Memorandum of
Law in Opposition to Plaintiff's Motion for Fees and Costs
Mem."), ECF No.

("CIA

35, at 8 n.1. Only the first of these arguments even

purports to respond to the first three Pietrangelo factors,

and it

is wholly without merit. The CIA conflates its interest in
concealing the fact of its investigation into chemical weapons in
Iraq - an end it sought to achieve with its Glomar response - with
the public's very real interest in learning the results of that
investigation,

i.e., the contents of the reports. Thus, the first

three factors heavily favor The Times.
The CIA instead focuses almost entirely on the fourth and final
factor,

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"whether the Government had a reasonable basis for

withholding requested information," Pietrangelo,
which, the CIA claims,

568 F.3d at 343,

is potentially dispositive on its own. Thus,
4

relying on a line of cases from the D.C. Circuit, the CIA argues
that, because its Glomar response supposedly would have been upheld
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regardless of the other factors.
Trade Representative,

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any

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See Brayton v. Office of the U.S.

641 F.3d 521,

response, The Times argues,

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526

(D.C. Cir. 2011).

inter alia, that it

In

(The Times), not the

CIA, would have prevailed on summary judgment, and that the CIA's
about-face following oral argument is a sure sign that the CIA
itself had no faith in its own position on the merits. See Reply
Memorandum of Law in Further Support of Plaintiff's Motion for
Attorneys'
No.

Fees and Costs Pursuant to 5 U.S.C. § 552(a)(4)(E), ECF

37, at 2-3.
While the Times may well be right that it would have prevailed

on summary judgment, the Court need not reach that question here,
because it disagrees with the CIA's premise that if it prevails on
the fourth factor,

that automatically outweighs the other three

factors. While this arguably is the position of the D.C. Circuit,
there is no Second Circuit decision adopting it, and,

indeed, such

an approach would appear to be in some tension with the Second
Circuit's characterization of the entitlement inquiry as
"weigh[ing]" the "four criteria" discussed supra. See Pietrangelo,
568 F.3d at 343. Nor does the Senate Report upon which the fourfactor test is ultimately based, see Davy,
n.2,

550 F.3d at 1158-59 &

contemplate such a rigid approach. See S. Rep. No.

(1974), at 19-20

93-854

("It should be noted that the criteria set out in
5

this subsection are intended to provide guidance and direction - not
airtight standards - for courts to use in determining awards of

for example, newsmen would ordinarily recover fees even where the
government's defense had a reasonable basis in law

•

II )

•

Accordingly, the Court here, guided by Pietrangelo, will
balance the reasonableness of the CIA's Glomar response with the
other factors, which, as noted, the CIA all but concedes. Having
done so, the Court finds that, at a minimum, the fourth factor does
not outweigh The Times' clear advantage on the other three. To take
one example, the CIA's puzzling refusal to acknowledge, either now
or on summary judgment, the clear import of Florez v. CIA,
178, 183-87

829 F.3d

(2d Cir. 2016), which held that disclosures by one

agency are relevant to the sufficiency of another agency's Glomar
response,

calls into question the reasonableness of the CIA's

approach. Accordingly, even assuming arguendo that the CIA would
prevail on the fourth factor,
attorney's fees,
Times'

The Times is still entitled to

for the other three factors cut so strongly in The

favor as to outweigh the fourth factor - a factor that in

this case would be at best a close call.
Turning to whether The Times'

fee application is reasonable,

The Times' ''lodestar" value is $61,909.86, which comprises $61,370
in attorney's fees and $539.86 in costs. See Declaration of David E.
Mccraw in Support of Plaintiff's Motion for Costs and Attorneys'
Fees

("Mccraw Deel."), ECF No.

33,

~~

6

41-45. The CIA does not

challenge the hourly rates

($650/hour for a seasoned FOIA litigator

with 14 years' experience and $400/hour for two junior attorneys,
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does it challenge The Times'
however,

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(quite minimal)

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costs. The CIA does,

raise several arguments against certain categories of fees,

which the Court will address in turn.
First, relying on the general rule that courts have discretion
to reduce fee awards in light of "limited success," see Hensley v.
Eckerhart,

461 U.S.

424,

436

(1983), the CIA argues that the fee

application should be discounted by an unspecified amount because
the Times "apparently" first obtained the three chemical weapons
reports that it sought in this litigation through a "leak." See CIA
Mem. at 9. The argument seems to be that, because The Times
supposedly first obtained these documents outside the litigation,
its success in obtaining them a second time, this time with the
CIA's imprimatur,

is a lesser victory. This argument is meritless.

To begin with, the CIA has failed to establish that The Times did in
fact first obtain the reports through a leak. The CIA presumably
suspects a leak because The Times requested the reports by name and
approximate date, but having names and dates is equally consistent
with The Times having discovered only that the reports existed. More
importantly, the Hensley principle deals with occasions where a
litigant won relatively little within a lawsuit, not where a party,
through its own efforts, earns an advantage outside the courtroom
that strengthens its position inside of it. There is no reason in
7

principle why the Times'

successful investigative journalism

warrants a lower award in the FOIA fee litigation, and the Court
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Second, the CIA argues that the approximately 55 hours The
Times spent on summary judgment was excessive in light of The Times'
experience with FOIA litigation, and that fees for certain
administrative tasks and factual research ought to be calculated
using a lower paralegal billing rate. The Court agrees that a modest
reduction is warranted. While The Times' argument on summary
judgment was,

in light of the Florez decision,

fact- and time-

intensive, The Times need not have had attorneys perform all such
tasks in the first instance, and could also have been more efficient
with its time.

For these reasons, the Court will reduce The Times'

requested fee award by $5,000.
Third, the CIA argues that The Times' application for $10,850
(representing approximately 17 hours of time)

for litigating "fees

on fees" is unreasonably high, given the brevity of the fee
application and the fact that much of this time represented efforts
to resolve the fee dispute without the Court's input. See CIA Mem.
at 10. While successful FOIA litigants may generally recover for
time spent on fee litigation, applications for fees on fees must be
carefully scrutinized. See, e.g., Judicial Watch,
of Justice,

878 F. Supp. 2d 225, 240

Inc. v. U.S. Dep't

(D.D.C. 2012). The Court agrees

that The Times' application for fees on fees is excessive, and will
reduce The Times'

requested fee award by an additional $5,000.
8

Fourth, the CIA argues that The Times cannot recover $7,445 in
fees for three specific tasks set forth below:

unsuccessful opposition to the CIA's request to file a supplemental
classified declaration following oral argument on the cross-motions
for summary judgment. See Order dated Sept. 2, 2016, ECF No. 22. But
a fee applicant "who is unsuccessful at a stage of litigation that
was a necessary step to her ultimate victory is entitled to
attorney's fees even for the unsuccessful stage," Hall v. CIA, 115
F. Supp. 3d 24, 29

(D.D.C. 2015), and here, The Times'

loss during

this round of motion practice was a necessary step en route to
prevailing. Indeed, because the CIA never made its supplemental
filing and instead withdrew its Glomar response entirely, the
reasonable inference is that the CIA concluded that even an ex parte
classified declaration would not be "particularly persuasive," as
required to support a Glomar response, see Florez,

829 F.3d at 182,

and thus decided to produce the reports. The Times may therefore
recover these fees.
(2) The CIA also opposes fees associated with The Times'
reviewing the three reports after the CIA finally produced them. But
"[i]t would seem critical to the prosecution of a FOIA lawsuit for a
plaintiff to review an agency's disclosure for sufficiency and
proper withholding during the course of its FOIA litigation," see
Elec. Privacy Info. Ctr. v. U.S.
Supp. 2d 61,

75

Dep't of Homeland Sec.,

999 F.

(D.D.C. 2013), and it appears The Times spent all of
9

two hours reviewing the CIA's production, which is eminently
reasonable. See Exhs. A, C to Mccraw Deel.

pre-complaint stage, because "FOIA does not authorize fees for work
performed at the administrative stage." Nw. Coal. for Alternatives
to Pesticides v. Browner, 965 F. Supp. 59,

65

(D.D.C. 1997)

(denying

fees for 56.5 hours of time accrued over two years before filing the
complaint). But even if Browner were binding on this Court - and it
is not - The Times logged only four hours on such work, all of which
took place shortly before filing the complaint, all of which relates
to drafting the complaint, and all of which is reasonable. See Exhs.
A, B to Mccraw Deel.
For the foregoing reasons, The Times' motion for attorney's
fees and costs is hereby granted, and The Times is awarded
$51,909.86. The Clerk of Court is directed to close docket entry 31.
SO ORDERED.
Dated:

New Yo~1'( NY
~1r;+1 2017

10