NTSB'S PROBING INTO DOWNING OF TWA FLIGHT 800.

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 0001421954
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 8
• Document Creation Date: June 23, 2015
• Document Release Date: October 13, 2010
• Case Number: F-2010-00465
• Publication Date: March 19, 2007

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
j caseNo~ u; CV 03-8023 AHM (RZx)
1S.51IS .?--""
Ili-ie } March 19, 2200,1,
Title i. H. RAY LAHR v. NATIONAL TRANSPORTATION SAFETY BOARD, et al. L
::JPiesent;:The,Honoryable`'+~=i3; y A HOWARD MATZ, U.S. DISTRICT JUDGE
~ Stephen Montes
Attorneys NOT Present for Plaintiffs:
IN CHAMBERS (No Proceedings Held)
Attorneys NOT Present for Defendants:
INTRODUCTION
On November 16, 2006, Plaintiff H. Ray Lahr ("Plaintiff') moved for an award of
requested.
attorneys' fees and costs under the Freedom of Information Act ("FOIA"), based on 5
U.S.C. ? 552(a)(4)(E).' That statute provides that "[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." The
Court must examine Plaintiff's eligibility for the award, his entitlement to the award, and
the reasonableness of the amount he requests. Long v. United States Internal Revenue
Serv., 932 F.2d 1309, 1311 (9th Cir. 1991). Defendants argue that Plaintiff is not
entitled to such an award because his prosecution has not bestowed any benefit on the
public and because a reasonable basis existed in law for them to withhold the material
that the court ordered be turned over. Defendants further argue that the amount Plaintiff
requests should be reduced, because it includes time that is non-compensable and
unjustifiable hourly rates. For the reasons that follow, the Court GRANTS Plaintiff's
motion for attorneys' fees and costs, albeit in an amount lower than what Plaintiff
IX. ANALYSIS
APPROVED FOR
RELEASE^ DATE:
17-Sep-2010
A plaintiff in a FOIA action is eligible for an award of attorneys' fees and costs if
the plaintiff has "been awarded some relief by a court, either in a judgment on the merits
A. Eligibility for the Award
or in a court-ordered consent decree." Davy v. C.I.A., 456 F3d 162,165 (D.C. Cir.
2006) (internal citations omitted). Defendants do not argue that Plaintiff is not eligible
for (as opposed to entitled to) an award. In the Court's August 31, 2006 and October 4,
2006 orders, the Court ordered 26 of the 32 contested records requested by Plaintiff. As
a result, the Court finds that Plaintiff has "substantially
an award of attorneys' fees and costs.
' Dkt. No. 121.
CV-90 (06/04) CIVIL MINUTES - CENERAL
Not Reported
Court Reporter/ Recorder
Invailed"and;- 11--
Iglble for
D O
ETE
DOCK
MAR 2 3 2007
BY
BY
145
 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL `:~
Case No: CV 03-8023 AHM (RZx) Date March 19, 2007'
sr r?
itle H. RAY LAHR v. NATIONAL TRANSPORTATION SAFETY BOARD, et al.
B. Entitlement to the Award
In deciding whether Plaintiff is entitled to an award of attorneys' fees and costs,
"the district court must consider four criteria: (1) the public benefit from disclosure, (2)
any commercial benefit to the plaintiff resulting from disclosure, (3) the nature of the
plaintiff's interest in the disclosed records, and (4) whether the government's
withholding of the records had a reasonable basis in law." Long v. United States
Internal Revenue Serv., 932 F.2d 1309, 1313 (9th Cir. 1991) (internal citations omitted).
"These four criteria are not exhaustive, however, and the court may take into
consideration whatever factors it deems relevant in determining whether an award of
attorney's fees is appropriate." Id. (internal citations omitted).
In Church of Scientology of California v. United States Postal Service, the Ninth
Circuit provided guidelines illustrating how courts should apply these four factors to
determine entitlement. 700 F.2d 486, 492-95 (9th Cir. 1983) (remanding to the district
court to determine whether plaintiff had substantially prevailed and whether attorneys'
fees should be awarded) [hereinafter Church of Scientology]. The Ninth Circuit advised
that "the criteria listed in the Senate Judiciary Committee's Report on the Freedom of
Information Act [hereinafter "Report"] should be considered in conjunction with the
existing body of law on the award of attorney's fees." Church of Scientology, 700 F.2d
at 492. Church of Scientology then discussed various cases to illustrate the application
of each of the factors.
1. Public Benefit
The Report suggested that under this criterion, "a court would ordinarily award
fees, for example, where a newsman was seeking information to be used in a publication
or a public interest group was seeking information to further a project benefitting the
general public, but it would not award fees if a business was using the FOIA to obtain
data relating to a competitor or as a substitute for discovery in private litigation with the
government." Id. at 492 n.6. Church of Scientology discussed Blue v. Bureau of
Prisons, a Fifth Circuit case in which the court "stressed that in weighing the public
benefit factor the district court should take into account the degree of dissemination and
the likely ublic interest that might result from disclosure." Id. at 493 (analyzing Blue v.
Bureau of~Prisons, 570 F.2d 529, 533-34 (5th Cir. 1978)). Blue explained that the public
benefit factor "speaks for an award where the complainant's victory is likely to add to
the fund of information that citizens may use in making vital political choices." Blue,
570 F.2d at 533-34.
Church of Scientology also discussed Goldstein v. Levi, in which the district court
found a public benefit in a suit by a producer for a public television station to procure
FBI files concerning statements made during the investigations of the Rosenberg
espionage case. Id. (analyzing Goldstein v. Levi, 415 F.Supp. 303, 305 (D.D.C. 1976).
Church of Scientology also instructed that "[w]hile obtaining a favorable legal ruling,
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 2 of 8
 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
CV 03-8023 AHM (RZx)o March 19, 2007
zTitle , H. RAY LAHR v. NATIONAL TRANSPORTATION SAFETY BOARD, et al.
standing alone, does not establish the public benefit criterion, the district court may take
into consideration the fact that the plaintiff has so prevailed when determining
entitlement to attorney's fees." Id.
In the Court's first (August 31, 2006) Order, the Court stated that "the public
interest in ferreting out the truth [about the explosion of TWA Flight 800] would be
compelling indeed." Lahr v. Nat'l Transp. Safety Bd., 453 F.Supp.2d 1153, 1167 (C.D.
Cal. 2006); Aug. 31 Order, 12. Defendants dispute whether any of the records released
in this action actually succeeded in "ferreting out the truth" or in supporting the
Plaintiff's theory that the crash of TWA 800 resulted from an errant missile strike.
(Opp'n, 7:7-8:12). Defendants are plainly incorrect. Although this Court explicitly
refrained from making a finding either affirming or repudiating the official government
conclusion, the records Plaintiff succeeded in establishing a right to obtain do
indisputably shed light on that question.
Plaintiff provides ample evidence of the public's interest in the information
obtained in this case. According to Plaintiff, TWA Flight 800 has already been the
subject of nine books and over 2,000 newspaper articles. A Google search yields over
147,000 web page hits. Plaintiff adds that well-qualified experts will analyze the
disclosures and several will publish reports of their findings on the websites of Flight
800 Independent Researcher's Organization (at flight800.org) and the Association of
Retired Airline Professionals (at www.twa800.com). At least two magazines have
already published articles about this Court's ruling. See Reply, page 5.
Plaintiff has gone to great lengths to disseminate the records at issue in this case.
Plaintiff states that his website [http://raylahr.entryhost.com/updates.htm] "displays
almost all of the records he received from the various agencies - over 1,500 pages." The
website also allegedly includes "the case docket sheet, linked to significant filings, the
CIA and NTSB animations, three unofficial animations, videotaped statements of four
eyewitnesses, seven experts, and three members of the-probe - all of which were lodged
in this case."
The Court finds that Plaintiff has satisfied the "public benefit" prong.
2. Commercial Benefit
Plaintiff acknowledges that he "has no `commercial interest in the documents'
within the meaning of that term as used by the FOIA." This factor is inapplicable..
3. Nature of Plaintiff's Interest
The Report states that under this factor, "a court would generally award fees if the
complainant's interest in the information sought was scholarly or journalistic or public-
interest oriented, but would not do so if his interest was of a frivolous or purely
CV-90 (06/04) CIVIL MINUTES - GENERAL
 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL ? "easeNo.' CV 03-8023 AHM (RZx) ,.Dace March 19,2007
H. RAY LAHR v. NATIONAL TRANSPORTATION SAFETY BOARD, et al.
commercial nature." Church of Scientology, 700 F.2d at 492 n.6. Plaintiff is a
distinguished former pilot with an abiding interest in flight safety and aerodynamics. As
previously described, the information released either has or will lead to scholarly
analysis of-TWA Flight 800. Defendants offer no opposition to Plaintiff's argument that
this factor weighs in his favor.
4. Reasonable Basis in Law
The Report states that under this factor, "a court would not award fees where the
government's withholding had a colorable basis in law but would ordinarily award them
if the withholding appeared to be merely to avoid embarrassment or to frustrate the .
requester." Church of Scientology, 700 F.2d at 492 n.6. In Cotton v. Heyman, the D.C.
Circuit reiterated that the government "need only have `a colorable basis in law' for the
court to consider the `reasonable basis in law' factor in determining a FOIA plaintiffs
entitlement to attorney's fees." 63 F.3d 1115, 1121 (D.C. Cir. 1995) (internal citations
omitted). The D.C. Circuit explained that "what is required is a showing that the
government had a reasonable basis in law for [its position] and that it had not been
recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior."
Cuneo v. Rumsfeld, 553 F.2d 1360,1366 (D.C. Cir. 1977).
Plaintiff argues that the CIA's first response to the request for records did not have
a colorable basis in law. In its January 26, 2001 FOIA response letter, the CIA wrote,
"[w]e have researched this matter, and have learned that the pertinent data, and resulting
conclusions, were provided by the National Transportation Board (NTSB). CIA simply
incorporated the NTSB conclusions into our videotape." (Mot., 7:9-12) (citing June 16,
2004 Lahr Affidavit, Ex. 16). That was not correct.
In construing Defendants' deliberative process privilege and Exemption 5
contentions, the Court ordered them to produce information that was not predecisional or
that was purely factual and thus non-deliberative. Defendants, however, point out that
the Court also upheld their withholding of some materials. That some material may have
been withheld properly does not preclude a finding that the withholding of other records
lacked a reasonable basis in law.
As to exemptions 6 and 7(C), Defendants did not offer any evidence to rebut
Plaintiff's challenges to their privacy assertions. Defendants argue that they had no
obligation to so respond, because the Supreme Court has held that "where there is a
privacy interest protected by Exemption 7(C) and the public interest being asserted is to
show that responsible officials acted negligently or otherwise improperly in the
performance of their duties, the requester must establish more than a bare suspicion in
order to obtain disclosure." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157,
174 (2004). Defendants argue that Plaintiff failed to establish more than a "bare
suspicion," but the Court found that "the public interest in uncovering agency
malfeasance and wrongdoing outweighs Defendants' claimed privacy interest)." Lahr v.
CV-90 (06104) CIVIL MINUTES - GENERAL
Page 4 of 8
 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL g :N
71 ICaseNo. , (RZ~ Date; March 19, 2007
..d4 CV 03-8023 AHM (RZx) j ,Tide; , r4 H. RAY LAHR v. NATIONAL TRANSPORTATION SAFETY BOARD, et al.
Nat'l Safety Bd., 453 F.Supp.2d at 1185; Aug. 31 Order, 42.
The material at issue regarding Exemption 4, concerning confidential commercial
information, was technical information Boeing provided to the government. The Court
found that the withheld information is publicly available and that Defendants had failed
to show a likelihood of substantial competitive harm. Id. at 1182; Aug. 31 Order, 37.
Defendants argue that their withholding had a colorable basis in law, because the Court
stated there was "a factual dispute as to whether Boeing [would] suffer substantial
competitive harm" if the information was released. Lahr v. Nat'l Transp. Safety Bd.,
2006 WL 2854314 at * 18 (C.D. Cal. 2006); Oct.4, 2006 Order, 33. But in that order and
in the earlier order (453 F.Supp.2d at 1182), the Court found that Defendants failed to
meet their burdens to justify withholding.
C. Reasonableness of the Amount Requested
Plaintiff initially sought $175,532 in attorneys' fees and $2,232 in costs, for a total
of $177,864. The fees were based on a calculation of 654 hours time expended by John
H. Clarke and 150 hours by a then-law student/clerk named Thomas Leffler. Mr. Clarke
"charged" (for purposes of Plaintiff's motion) $250.00 per hour. For Mr. Leffler the
"charge" was $80.00 per hour.
After Defendants filed their opposition papers, Plaintiff conceded that they had
raised certain meritorious objections and agreed to reduce the fees by $10,956.
Specifically, Plaintiff acknowledged, in principle, the impropriety of receiving fees for
efforts to prove that the CIA acted in bad faith, a contention not upheld by this Court,
and for efforts opposing the CIA's successful motion for a stay. Plaintiff also conceded
that Mr. Clarke's "hourly rate" for 2002 and 2003 should be $220. But Plaintiff then
added another $2,750 for the time Mr. Clarke spent in preparing the Reply Papers. So
with attorneys fees in the revised amount of $169,658 and costs in the amount of $2,232,
Plaintiff now seeks a total of $171,890. The Court awards $144,210 in fees and $2,232
in costs. This award includes compensation for preparing the reply brief. The award is
based upon the Court's personal knowledge of this case, the substance of the pleadings,
the Court's prior orders and opinions, and its strong sense of what this case
fundamentally was about. See, The Traditional Cat Assn. v. Gilbreath, 340 F.3d 829,
834 (9th Cir. 2003). The ruling is based upon the following findings, factors and
considerations.
1. General Principles
It is unnecessary for the Court to reiterate the standard principles governing this
motion, given that the parties themselves have cited many of the applicable cases. In
general, the Court follows Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933 (1983);
Kerr v. Screen Extras Guild, 526 F.2d 67 (9 Cir. 1975), cert. denied, 425 U.S. 951, 96
S.Ct. 1726 (1976); Blum v. Stenson, 465 U.S. 886 (1984) and Ketchum v. Moses, 24 Cal.
 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL ti ~'
!F7773 ILI
Case No. CV 03-8023 AHM (RZx) March 19, 200
is Tiile q:Z ~, H. RAY LAHR v. NATIONAL TRANSPORTATION SAFETY BOARD, et al.
11F a
4th 1122 (2001). The Court has reviewed, but does not have to carefully scrutinize, all
the entries of the timekeepers. See Evans v. Evanston, 941 F.2d 473, 476 (7th Cir.
1991), cert. denied 112 S.Ct. 3028 (1992).
2. Reasonableness of Hours for Which Plaintiff Seeks Recovery
Plaintiff has the burden of proving that he is entitled to recover the amounts he
seeks. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
Compensation is not appropriate for work that was excessive, redundant or otherwise
unnecessary. Hensley v. Eckerhart, supra, at 433-34. The customary method for
determining the reasonableness of attorne s' fees is known as the lodestar method.
Morales v. San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). According to the "lodestar"
method, "[t]he most useful starting point for determining the amount of a reasonable fee
is the number of hours reasonably expended on the litigation, multiplied by a reasonable
hourly rate." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. The Court may adjust the
"presumptively reasonable" lodestar figure based on the factors delineated in Kerr v.
Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), if any were not already
subsumed in the lodestar calculation.' Morales, 96 F.3d at 363. The Court, however, is
not necessarily required to consider every factor, but only those in dispute and necessary
to support the reasonableness of the award. Cairns v. Franklin Mint Co., 292 F.3d 1139,
1158 (9th Cir. 2002).
The Court finds that to a certain extent, Plaintiff's counsel's efforts were excessive
and unnecessary. As just one example, and as the Court previously noted both in court
and in its orders, the attorneys for both sides in this case created immense difficulty for
the Court by affixing "multiple and confusing identifications to given documents" (453
F. Supp.2d at 1161, n. 1). As a result, their papers were sometimes close to impossible to
evaluate; one couldn't match up their respective positions or even be sure which items
they were addressing. A substantial portion of the responsibility for that bewildering
mess was attributable to Plaintiffs counsel, whose very enumeration of the FOIA
requests also was unnecessarily repetitious and confusing. In court, moreover, Mr.
Clarke sometimes was unable to explain his position succinctly or responsively. So at
least part of the time Mr. Clarke devoted to this case was excessive. The Court finds that
a fair and appropriate reduction is 15 percent. With the l5% reduction in the
compensable hours, it is unnecessary to make itemized revisions.
In reaching these conclusions, the Court specifically notes the following:
2 Factors that are built into the reasonable hours component or the reasonable rate component include "(1)
the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of
representation, ... (4) the results obtained.' Morales, 96 F.3d at 364, n.9, quoting Cabrales v. Counttyy of Los
Angeles, 864 F.2d 1454,1464 (9th Cir. 1988); see also Yahoo! v. Net Games, Inc., 329 F.Supp. 2d 1179? 1182 (N.D.
Cal. 2004) (considering the contingent nature of a fee agreement as a factor deemed subsumed in the initial lodestar
calculation).
CV-90 (06/04) CIVIL MINUTES - GENERAL Page 6 of 8
 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
4 i
r~caseNo CV 03-8023 AHM (RZx) .a : March 19, 200TH
'~ r; v r i w'O
xTitles".~,;" H. RAY LAHR v. NATIONAL TRANSPORTATION SAFETY BOARD, et al.
? 11.
? Plaintiff is not precluded from recovering for hours devoted to preparing
affidavits in CV 02-08708 AHM (RZx). That case was dismissed without
prejudice in light of the 2003 amendment adding the CIA as a party-
defendant. But those affidavits became part of the record in this case and
the Court incorporated them, or considered them, in rendering its decisions.
? The same conclusion applies to recovery for hours expended in drafting
papers in papers in opposition to the NTSB's initial summary judgment
motion.
? The Court would not credit Plaintiff for hours devoted to Mr. Schulz's
affidavits; Mr. Clarke's Reply Declaration contains no sworn statement
even touching upon that contention.
3. Reasonableness of Hourly Rates
"To inform and assist the Court in the exercise of its discretion, the
burden is on the fee applicant to produce satisfactory evidence - in
addition to the attorney's own affidavits - that the requested rates are
those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation."
Blum v. Stenson, 465 U.S. 886, 896, n.1 1, 104 S.Ct. 1541, 1547 (1984) (noting that
courts properly require prevailing attorneys to justify the reasonableness of the requested
rate or rates).
The parties dispute whether Mr. Clarke really commanded hourly rates of $220-
$250. Mr. Clarke maintained an unconventional practice, to be sure, and although his
efforts on behalf of clients challenging so called "federal executive branch corruption"
are commendable - - his zealous advocacy on behalf of Captain Lahr is particularly
noteworthy - - one is forced to conclude that the basis for establishing as "reasonable"
the rates he is "charging" is not overwhelming. (Certainly, Mr. Dale's unilluminating
declaration is hardly strong evidence.) On the other hand, for the years 2003-2006, an
hourly rate of $220/$250 is unquestionably modest, especially by Los Angeles standards.
And Mr. Clarke does have fairly lengthy and varied litigation experience. Furthermore,
the Court refuses to penalize him for maintaining the kind of practice he has had.
In summary, the Court finds that the hourly rates for which Mr. Clarke seeks
compensation are not unreasonable. The same applies to Mr. Leffler's $80.00 hourly
rate. The work he performed, some of which may be classifiable as. clerical, was
necessary and consistent with this Court's requirements.
Page 7 of 8
 UNITED STATES DISTINCT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL _____
Case No CV 03-8023 AHM (RZx) Date,. March 19, 20071
Tide x H. RAY LAHR v. NATIONAL TRANSPORTATION SAFETY BOARD, et al.
4. Costs
The Court awards the full $2,232 in costs.
III. CONCLUSION
For the foregoing reasons, the Court awards $144,210 in fees and $2,232 in costs
to Plaintiff, for a total of $146,442.
No hearing is necessary. Fed. R. Civ. P. 78; L.R. 7-15.
THIS ORDER IS NOT INTENDED FOR PUBLICATION.
Initials of Preparer %f eL SMO