Court Allows MFF to Pursue Some Claims in JFK Records Files Lawsuit

[Lawrence Schnapf]

On Friday nite, the court issued an opinion which partially granted some aspects of the Defendants' motion to dismiss and while denying the government's request to dismiss other counts. The court dismissed the claims against President Biden but allows some of the claims involving the National Archives  to continue.

Here is the official MFF statement:

“The July 14 court order provided several victories for the Plaintiffs, including the right to seek immediate release of 1,720 assassination records created due to legislative action by the Church Committee and the House Select Committee on Assassinations, the right to investigate the history of the documents destroyed in the course of the JFK investigations and the right to compel improvement in the usability of the National Archive's JFK Collection.  However, the court’s order also narrowed the scope of our lawsuit by not providing a transparent process for the release of other assassination records.  We are reviewing all of our options.” 

 

[Michael Crane]

While this is only an opinion,I believe the system is set-up to possibly win at the low levels of courts.

When you do finally get to the highest level of decision makers is where the White House has somebody who is going to rule in their favor.

[Benjamin Cole]

LS--

I wish you the best of success against the dictator-puppet in chief. 

[Bill Simpich]

I want everyone to know that the full outline of the lawsuit is still unresolved.  The MFF statement outlines the case as it exists today.

The judge's decision was a mixed bag, with victories and defeats for both sides.  Both sides have the option to take action to affect the shape of the lawsuit in the days to come.  This is not a hard-and-fixed situation yet.

MFF, Tink Thompson and Gary Aguilar will take the next few days to review their options.

I can't attach the entire decision, but it will be posted at Mary Ferrell Foundation's JFK site in the next day or two.

One portion of the judge's ruling worth thinking about is below.  We have created a good list of destroyed and missing documents at the Assassinations Archives and Research Center website.  As many know, AARC, Jim Lesar and Dan Alcorn are indefatigable allies in these battles for openness and transparency.  If anyone has any additions, please post them on this thread - after reviewing these two ARRC lists highlighted above?

Below is the excerpt:

Federal Records Act

Plaintiffs plead that NARA has violated the Federal Records Act by failing to request that the Attorney General take action after the ARRB identified destruction of assassination records by certain agencies. Under the Federal Records Act, if the Archivist becomes aware of “any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of” an agency, they are required to notify that agency’s head and assist them “in initiating action through the Attorney General for the recovery of records unlawfully removed and for other redress provided by law.” 44 U.S.C. § 2905(a). If the agency head “does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action,” the Archivist must “request the Attorney General to initiate such an action.” Id.

Plaintiffs aver that the ARRB Final Report identified intentional destruction of records by the CIA, FBI, and Secret Service, SAC ¶ 61(f), thus triggering the Archivist’s duty to ask the Attorney General to initiate an action for their recovery. Defendants argue this count should be dismissed because a referral to the Attorney General is only required under § 2905(a) for the recovery of records unlawfully removed, rather than destroyed. Defendants cite several cases interpreting an analogous provision to § 2905(a)—44 U.S.C. § 3106(a), which governs federal agencies—holding that agencies only have a duty to involve the Attorney General when records have been unlawfully removed. See, e.g., Bioscience Advisors, Inc. v. United States Sec. & Exch. Comm’n, No. 21-CV-00866-HSG, 2023 WL 163144, at *6 (N.D. Cal. Jan. 11, 2023); Citizens for Resp. & Ethics in Washington v. U.S. S.E.C., 916 F. Supp. 2d 141, 146–148 (D.D.C. 2013).

However, Defendants fail to contend with the differences in language between § 2905(a) and § 3106(a). While § 3106(a) only requires an agency head to “initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed,” § 2905(a) requires the Archivist to assist an agency head in “initiating action through the Attorney General for the recovery of records unlawfully removed and for other redress provided by law.” 44 U.S.C. §§ 2905(a), 3106(a) (emphasis added).

Likewise, if the agency head fails to “initiate an action for such recovery or other redress” after being notified of “any such unlawful action,” the Archivist must request the Attorney General to initiate such action. 44 U.S.C. § 2905(a) (emphasis added).

In other words, as compared with § 3106(a), § 2905(a) includes an additional clause enabling the Archivist to initiate action through the Attorney General. § 2905(a) thereby seems to impose a broader referral duty on the Archivist than § 3106(a) imposes on agency heads because of its inclusion of “other redress provided by law.” Such a distinction also seems to be made within § 3106. Compare 44 U.S.C. § 3106(a) (requiring agency heads to take action for “the recovery of records . . . unlawfully removed”) with § 3106(b) (requiring the Archivist to make a referral when an agency head fails to “initiate an action for such recovery or other redress” after notification of “any such unlawful action described in subsection (a)”).

The legislative history of § 2905 and § 3106 supports this interpretation. In 1984, Congress amended § 2905 and § 3106 to require an Attorney General referral by the Archivist if an agency head failed to take action. The House committee report only discusses the provision in the context of initiating action for the “recovery of records unlawfully removed.” H.R. Rep. 98-707, at 21. By contrast, the final conference report explained the provision as requiring the Archivist to make a referral to the Attorney General if they are aware of “any such unlawful action,” where “destruction” was listed several sentences before as one action prohibited by law. H.R. Conf. Rep. 98-1124, at 27, as reprinted in 1984 U.S.C.C.A.N. 3894, 3902. The conference report then explained that Congress would be notified in such instances “because of the frequency of incidents of removal or destruction.” Id. at 28 (emphasis added).10 Because the language of § 2905(a) and § 3106(a) are markedly different, Defendants’ references to cases interpreting § 3106(a) are not persuasive. § 3106(a) seems to require the Archivist to make an Attorney General referral in more circumstances than unlawful removal of records. It instead seems to require that the Archivist make a referral to the Attorney General if the agency head has failed to act and the Archivist is aware of, among other unlawful conduct, destruction of agency records.

Plaintiffs aver that certain agencies intentionally destroyed records, these agencies’ destruction of records was reported in the ARRB final report, and both the Archivist and the agencies failed to refer the matter to the Attorney General, thereby stating a plausible claim. Accordingly, the motion to dismiss Count 5 is denied, except to the extent it references NARA’s failure to pursue outstanding record searches.

 

Edited July 17, 2023 by Bill Simpich

[Michael Crane]

The Department of Justice Attorney General Mrs Fletcher ordered to take action.

 

"I've fallen,and I can't get up"

[Bob Ness]

Haven't looked at it yet but here you go. Link to order:

https://1drv.ms/b/s!AlWejpY-MH3jjnf52tBXRuTH_VG6?e=KrDWqW

[Bob Ness]

3 hours ago, Bill Simpich said:

I want everyone to know that the full outline of the lawsuit is still unresolved.  The MFF statement outlines the case as it exists today.

The judge's decision was a mixed bag, with victories and defeats for both sides.  Both sides have the option to take action to affect the shape of the lawsuit in the days to come.  This is not a hard-and-fixed situation yet.

MFF, Tink Thompson and Gary Aguilar will take the next few days to review their options.

I can't attach the entire decision, but it will be posted at Mary Ferrell Foundation's JFK site in the next day or two.

One portion of the judge's ruling worth thinking about is below.  We have created a good list of destroyed and missing documents at the Assassinations Archives and Research Center website.  As many know, AARC, Jim Lesar and Dan Alcorn are indefatigable allies in these battles for openness and transparency.  If anyone has any additions, please post them on this thread - after reviewing these two ARRC lists highlighted above?

Below is the excerpt:

Federal Records Act

Plaintiffs plead that NARA has violated the Federal Records Act by failing to request that the Attorney General take action after the ARRB identified destruction of assassination records by certain agencies. Under the Federal Records Act, if the Archivist becomes aware of “any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of” an agency, they are required to notify that agency’s head and assist them “in initiating action through the Attorney General for the recovery of records unlawfully removed and for other redress provided by law.” 44 U.S.C. § 2905(a). If the agency head “does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action,” the Archivist must “request the Attorney General to initiate such an action.” Id.

Plaintiffs aver that the ARRB Final Report identified intentional destruction of records by the CIA, FBI, and Secret Service, SAC ¶ 61(f), thus triggering the Archivist’s duty to ask the Attorney General to initiate an action for their recovery. Defendants argue this count should be dismissed because a referral to the Attorney General is only required under § 2905(a) for the recovery of records unlawfully removed, rather than destroyed. Defendants cite several cases interpreting an analogous provision to § 2905(a)—44 U.S.C. § 3106(a), which governs federal agencies—holding that agencies only have a duty to involve the Attorney General when records have been unlawfully removed. See, e.g., Bioscience Advisors, Inc. v. United States Sec. & Exch. Comm’n, No. 21-CV-00866-HSG, 2023 WL 163144, at *6 (N.D. Cal. Jan. 11, 2023); Citizens for Resp. & Ethics in Washington v. U.S. S.E.C., 916 F. Supp. 2d 141, 146–148 (D.D.C. 2013).

However, Defendants fail to contend with the differences in language between § 2905(a) and § 3106(a). While § 3106(a) only requires an agency head to “initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed,” § 2905(a) requires the Archivist to assist an agency head in “initiating action through the Attorney General for the recovery of records unlawfully removed and for other redress provided by law.” 44 U.S.C. §§ 2905(a), 3106(a) (emphasis added).

Likewise, if the agency head fails to “initiate an action for such recovery or other redress” after being notified of “any such unlawful action,” the Archivist must request the Attorney General to initiate such action. 44 U.S.C. § 2905(a) (emphasis added).

In other words, as compared with § 3106(a), § 2905(a) includes an additional clause enabling the Archivist to initiate action through the Attorney General. § 2905(a) thereby seems to impose a broader referral duty on the Archivist than § 3106(a) imposes on agency heads because of its inclusion of “other redress provided by law.” Such a distinction also seems to be made within § 3106. Compare 44 U.S.C. § 3106(a) (requiring agency heads to take action for “the recovery of records . . . unlawfully removed”) with § 3106(b) (requiring the Archivist to make a referral when an agency head fails to “initiate an action for such recovery or other redress” after notification of “any such unlawful action described in subsection (a)”).

The legislative history of § 2905 and § 3106 supports this interpretation. In 1984, Congress amended § 2905 and § 3106 to require an Attorney General referral by the Archivist if an agency head failed to take action. The House committee report only discusses the provision in the context of initiating action for the “recovery of records unlawfully removed.” H.R. Rep. 98-707, at 21. By contrast, the final conference report explained the provision as requiring the Archivist to make a referral to the Attorney General if they are aware of “any such unlawful action,” where “destruction” was listed several sentences before as one action prohibited by law. H.R. Conf. Rep. 98-1124, at 27, as reprinted in 1984 U.S.C.C.A.N. 3894, 3902. The conference report then explained that Congress would be notified in such instances “because of the frequency of incidents of removal or destruction.” Id. at 28 (emphasis added).10 Because the language of § 2905(a) and § 3106(a) are markedly different, Defendants’ references to cases interpreting § 3106(a) are not persuasive. § 3106(a) seems to require the Archivist to make an Attorney General referral in more circumstances than unlawful removal of records. It instead seems to require that the Archivist make a referral to the Attorney General if the agency head has failed to act and the Archivist is aware of, among other unlawful conduct, destruction of agency records.

Plaintiffs aver that certain agencies intentionally destroyed records, these agencies’ destruction of records was reported in the ARRB final report, and both the Archivist and the agencies failed to refer the matter to the Attorney General, thereby stating a plausible claim. Accordingly, the motion to dismiss Count 5 is denied, except to the extent it references NARA’s failure to pursue outstanding record searches.

 

This seems to me to be an ok order but I have a question for you based on a cursory reading of the original Government's response. Weren't they really testing your standing in the court and didn't that get rejected? That seems significant. I also think I remember they were claiming the Act itself expired after the ARRB closed and that has also been rejected??

Sorry if I'm going over stuff I should read more carefully- been awfully busy lately ...

[Tom Gram]

I’ll throw in a couple missing records. I highly doubt these are still around - they were deep-sixed very early in the assassination investigation and never turned over to the Warren Commission - but these forms definitely existed and are very important assassination records: 

1. Oswald’s Change of Address form dated 5/15/63 from 2515 W. Fifth St. to 4907 Magazine St. (collected from Irving Post Office by Postal Inspectors and turned over to Secret Service on 11/22/63) 

2. Marina’s Change of Address form dated 5/10/63 from P.O. Box 2915 to 2515 West Fifth St. (reported to FBI by Harry Holmes on 11/22/63) 

3. Marina’s Change of Address form, undated, forwarding her mail to P.O. Box 30061 (reported to FBI by Harry Holmes on 11/22/63) 

Sources: 

(1) https://digitalcollections-baylor.quartexcollections.com/Documents/Detail/dallas-texas-witnesses-police-district-attorney-and-postal-inspectors-harry-holmes/705263?item=705293

(2 and 3) https://www.maryferrell.org/showDoc.html?docId=57690#relPageId=182

There was another change of address for Marina from 4907 Magazine St. to P.O. Box 30061, but there’s no evidence it was ever viewed or collected by a federal agency outside of the Post Office: 

https://www.maryferrell.org/showDoc.html?docId=11324#relPageId=13

[Roger Odisio]

I hope Bill and Larry keep fighting and there are still some things that may be accomplished, (particularly, I think, on appeal, rather than in front of this judge). But this is an awful decision.

 

Right off the bat you know you're in trouble when Judge Seeborg summarizes the findings of the 4 bodies --the WC, Rockefeller and Church comms, and the House Select Comm--that investigated the murder: they "concluded that Lee Harvey Oswald was the sole culprit responsible for the assassination".  Wow. I thought everyone knew the House Comm found a likely conspiracy, was unable to go further, and passed its findings to the Justice Dept. which did nothing.  Could the judge be unaware of this?  

 

He admits questions have been raised about the murder: "historians and members of the public have continued to seek more information about how such a tragedy could have occurred".  IOW, questions like how could Oswald have done this and why, where was JFK's protection, etc.  Questions according to the judge *not* including, e.g., did Oswald in fact do it, and if not who did?

 

This ignorance changes the whole context of the case.  If you think the question is merely how Oswald did it and why, rather than *whether* he did it--was it a coup?--you can be a lot more comfortable deciding the case as the judge has done.  Smaller questions about adding details to a firm conclusion that Oswald did it make dismissals of a lawsuit asking larger questions that much easier.

 

The heart of the suit is the claim that NARA is the successor agency to the ARRB, and has the responsibility for updating the Records Collection by seeing to it that all JFK records are released for public view.  But NARA has done little or nothing since to perform these duties.

 

No, its not the successor, says the judge.  "Nara and the ARRB are two distinct entities, separately referenced in the JFK Act and tasked with separate statutory functions".  Despite the fact that NARA is required to set up the JFK Records Collection to which the ARRB was required to send the records it collected. 

 

The judge's reasoning means that for the 19 years between when the ARRB closed and the 2017 deadline for releasin records,  no one was in charge, was responsible, to see the job was done.  Worse, he thinks that was Congress's intent.  How ridiculous is that?

 

He said the 1998 memo of understanding between the CIA, ARRB, and NARA did not change this; it "did not impose any specific responsibilities on NARA". The reader is free to speculate what other purpose the memo had. The judge is silent on that.

 

The heart of the case was lost right there when the judge claimed NARA had no responsibilities to continue the ARRB's work.  Apparently the judge thinks NARA's only responsibility is to house the Collection,

 

Except for the bone he threw to require NARA to maintain accurate reference and to release certain legislative records, so as to try to appear balanced.

 

But my favorite part of the decision is when the judge addresses the suit's showing of NARA's  refusing to look for documents under the JFK Act, even when they are specifically requested to do so. He cites a case claiming plaintiffs are "not entitled to wholesale improvement by court decree". Thus, he concludes, showing a pattern and practice is insufficient for a remedy. Individual cases must be challenged. Strange logic. How do you show a pattern of actions without talking about the individual actions that constitute the pattern?

 

Here, then, is the whopper the judge uses to dismiss the suit's argument :  "While Plaintiffs *outline examples* of NARA failing to search for documents under the JFK Act, Plaintiffs *make clear* that they are challenging a pattern and practice of NARA,*not* NARA's action in any individual instance. Where do the MFF briefs make that "clear"? The judge cites no  language showing anything of the sort. His claim is utterly false. In fact the MFF briefs discuss some particular cases that make up the pattern of NARA misbehavior for which a remedy is needed.

 

I know this from personal experience.  After being told by staff that NARA accepted recommendations for records to add to its Collection, I asked their general counsel, at staff's suggestion, to add the Darnell and Wiegman films as JFK records, and explained their significance.  They have not done so. That is not "outlining examples' but a specific case of inaction being challenged.  The MFF briefs cited this case several times to show what NARA is actually doing and for which a remedy is needed. The judge could not have missed it.

 

This note is just from a pretty quick reading of the decision.  Bill and Larry did a helluva job laying out the case for the judge in multiple briefs.  Again, the judge's order is an awful, sometimes incoherent, response. 

[Benjamin Cole]

3 hours ago, Roger Odisio said:

I hope Bill and Larry keep fighting and there are still some things that may be accomplished, (particularly, I think, on appeal, rather than in front of this judge). But this is an awful decision.

 

Right off the bat you know you're in trouble when Judge Seeborg summarizes the findings of the 4 bodies --the WC, Rockefeller and Church comms, and the House Select Comm--that investigated the murder: they "concluded that Lee Harvey Oswald was the sole culprit responsible for the assassination".  Wow. I thought everyone knew the House Comm found a likely conspiracy, was unable to go further, and passed its findings to the Justice Dept. which did nothing.  Could the judge be unaware of this?  

 

He admits questions have been raised about the murder: "historians and members of the public have continued to seek more information about how such a tragedy could have occurred".  IOW, questions like how could Oswald have done this and why, where was JFK's protection, etc.  Questions according to the judge *not* including, e.g., did Oswald in fact do it, and if not who did?

 

This ignorance changes the whole context of the case.  If you think the question is merely how Oswald did it and why, rather than *whether* he did it--was it a coup?--you can be a lot more comfortable deciding the case as the judge has done.  Smaller questions about adding details to a firm conclusion that Oswald did it make dismissals of a lawsuit asking larger questions that much easier.

 

The heart of the suit is the claim that NARA is the successor agency to the ARRB, and has the responsibility for updating the Records Collection by seeing to it that all JFK records are released for public view.  But NARA has done little or nothing since to perform these duties.

 

No, its not the successor, says the judge.  "Nara and the ARRB are two distinct entities, separately referenced in the JFK Act and tasked with separate statutory functions".  Despite the fact that NARA is required to set up the JFK Records Collection to which the ARRB was required to send the records it collected. 

 

The judge's reasoning means that for the 19 years between when the ARRB closed and the 2017 deadline for releasin records,  no one was in charge, was responsible, to see the job was done.  Worse, he thinks that was Congress's intent.  How ridiculous is that?

 

He said the 1998 memo of understanding between the CIA, ARRB, and NARA did not change this; it "did not impose any specific responsibilities on NARA". The reader is free to speculate what other purpose the memo had. The judge is silent on that.

 

The heart of the case was lost right there when the judge claimed NARA had no responsibilities to continue the ARRB's work.  Apparently the judge thinks NARA's only responsibility is to house the Collection,

 

Except for the bone he threw to require NARA to maintain accurate reference and to release certain legislative records, so as to try to appear balanced.

 

But my favorite part of the decision is when the judge addresses the suit's showing of NARA's  refusing to look for documents under the JFK Act, even when they are specifically requested to do so. He cites a case claiming plaintiffs are "not entitled to wholesale improvement by court decree". Thus, he concludes, showing a pattern and practice is insufficient for a remedy. Individual cases must be challenged. Strange logic. How do you show a pattern of actions without talking about the individual actions that constitute the pattern?

 

Here, then, is the whopper the judge uses to dismiss the suit's argument :  "While Plaintiffs *outline examples* of NARA failing to search for documents under the JFK Act, Plaintiffs *make clear* that they are challenging a pattern and practice of NARA,*not* NARA's action in any individual instance. Where do the MFF briefs make that "clear"? The judge cites no  language showing anything of the sort. His claim is utterly false. In fact the MFF briefs discuss some particular cases that make up the pattern of NARA misbehavior for which a remedy is needed.

 

I know this from personal experience.  After being told by staff that NARA accepted recommendations for records to add to its Collection, I asked their general counsel, at staff's suggestion, to add the Darnell and Wiegman films as JFK records, and explained their significance.  They have not done so. That is not "outlining examples' but a specific case of inaction being challenged.  The MFF briefs cited this case several times to show what NARA is actually doing and for which a remedy is needed. The judge could not have missed it.

 

This note is just from a pretty quick reading of the decision.  Bill and Larry did a helluva job laying out the case for the judge in multiple briefs.  Again, the judge's order is an awful, sometimes incoherent, response. 

Right off the bat you know you're in trouble when Judge Seeborg summarizes the findings of the 4 bodies --the WC, Rockefeller and Church comms, and the House Select Comm--that investigated the murder: they "concluded that Lee Harvey Oswald was the sole culprit responsible for the assassination".  Wow. I thought everyone knew the House Comm found a likely conspiracy, was unable to go further, and passed its findings to the Justice Dept. which did nothing.  Could the judge be unaware of this?  --RO

Excellent point, RO. 

It is routinely forgotten that the HSCA concluded a likelihood of a conspiracy in the JFKA.

In fact I have chided EF-JFKA'ers for so often making the WC the frame of reference, rather than the HSCA. 

For Judge Seeborg to erroneously state the LHO was the "sole culprit," and to cite the HSCA, is dispiriting

It is difficult to learn much about Seeborg. He was an Obama-appointed judge, and obviously Biden was Obama's veep. So perhaps party loyalty is trumping jurisprudence. 

Seeborg was also approved unanimously by the Senate. Usually, that is a sign of an appointee who hews closely to intel-state-establishment views, now often indistinguishable from D-Party views. Someone who is not controversial, from the establishment point of view. 

The D-Party establishment thinks it is not controversial to do a snuff job on the JFK Records. 

 

 

 

[Anthony Venturella]

Thank you, Larry and Bill. Keep up the good fight. This is not "conspiracy theory" -- far from it. It is an outrage the US government must be sued to obey its laws.

In addition, the secrecy surely implicates aspects of the US government due to its lack of transparency the over past 60 years.

Indeed, likely the most appropriate answer to the question, "Who shot JFK?" is, to paraphrase Jefferson Morley, "I don't know. The JFK records are hidden and the government won't obey the law to release."

Edited July 18, 2023 by Anthony Venturella

[Roger Odisio]

15 hours ago, Benjamin Cole said:

Right off the bat you know you're in trouble when Judge Seeborg summarizes the findings of the 4 bodies --the WC, Rockefeller and Church comms, and the House Select Comm--that investigated the murder: they "concluded that Lee Harvey Oswald was the sole culprit responsible for the assassination".  Wow. I thought everyone knew the House Comm found a likely conspiracy, was unable to go further, and passed its findings to the Justice Dept. which did nothing.  Could the judge be unaware of this?  --RO

Excellent point, RO. 

It is routinely forgotten that the HSCA concluded a likelihood of a conspiracy in the JFKA.

In fact I have chided EF-JFKA'ers for so often making the WC the frame of reference, rather than the HSCA. 

For Judge Seeborg to erroneously state the LHO was the "sole culprit," and to cite the HSCA, is dispiriting

It is difficult to learn much about Seeborg. He was an Obama-appointed judge, and obviously Biden was Obama's veep. So perhaps party loyalty is trumping jurisprudence. 

Seeborg was also approved unanimously by the Senate. Usually, that is a sign of an appointee who hews closely to intel-state-establishment views, now often indistinguishable from D-Party views. Someone who is not controversial, from the establishment point of view. 

The D-Party establishment thinks it is not controversial to do a snuff job on the JFK Records. 

 

 

 

So far, I think the two most important takeaways from the judge's decision are these:

(1) He said NARA is not the successor agency to the ARRB.  Apparently its only responsibility is to provide a place, the JFK Records Collection, where those in possession of JFK records can voluntarily deposit them for the public to see.  Like they were (not) doing before the Act was passed.  Unlike the ARRB, NARA has no responsibility to request or compel such a deposit.  In setting the deadline for all JFK records to be retrieved by 2017, Congress established no entity with responsibility for the retrievals after the mandated closing of the ARRB doors in 1998.  Not NARA, not anyone.  All record retrievals after 1998 were to be voluntary to the owner of the record.  For those keeping track that's now 25 years and counting of inaction that the judge has ratified.

The astute reader will recognize this as nonsense, and a direct violation of the very purpose of the JFK Act, of which the judge shows little or no understanding. The Act was passed because many records were being withheld and FOIA was not adequate to do the job.  As he says, many of the MFF's arguments "rest on the notion" that NARA is the successor in function to the ARRB, which he rejects.  Unless this part of the decision is reversed it's hard to see much of importance coming out of the suit.

(2)  The judge claims MFF was only challenging a NARA "pattern and practice" of failure to retrieve records, not specific cases of such.  He cites a law that says this is insufficient.  He even claims that in its briefs the MFF made it clear they were only making the general challenge, but not challenging specific cases.  He cites no MFF language to that effect.  Because there is none. In every MFF brief that I read, Bill and Larry discuss specific cases of JFK records NARA has refused to seek even when specifically requested to do so. It's particularly amazing to me that the judge would resort to such a transparently false fabrication. This, too, must be reversed because many of the records uncovered in the last 25 years may be vital to understanding the murder.  Otherwise the JFK Record Collection will be a museum, frozen in time, instead of the research center envisioned by the Act.

 

 

 

[Andrew Iler]

Roger, it is easy to criticize the judge's decision based on the outcome alone. The problem is that the Judge can only decide the case considering the arguments that are put in front of him (within the “four corners” of the Complaint) and on the applicable laws, which as a judge he has a duty to follow. The key part of Judge Seeborg's decision is below.

“Since none of the actions challenged are ministerial, there is no jurisdiction to grant injunctive or mandamus relief against the President here. Nor do Plaintiffs state a claim for declaratory relief. Because these are failures of law and any amendment would be futile, Counts 1 and 2 are dismissed without leave to amend.”

For very good reasons (mainly the separation of powers), the law makes it incredibly difficult to sue the President. A complaint has to follow a very narrow path in order for a district court judge to even consider stepping on the toes of a President.  Courts give very wide deference to the authority of the President and other officials in regard to the execution of their official duties, especially when those duties are discretionary in nature.

In the case of the JFK Records Act, the very narrow path required ensuring that the pleadings contained an extremely precise and detailed enumeration of the exact wording of the statutory or "ministerial" duties that were explicitly mandated by the Act on particularly named officials, and an explanation of how those precise ministerial duties were violated by the official.

Without this exact information sufficiently pleaded, a judge will not even consider enforcing an order on a President or on any other official.

Understanding the difference between "ministerial" and "discretionary" duties is critical to understanding Judge Seeborg's decision and the application of the law.

[Benjamin Cole]

48 minutes ago, Andrew Iler said:

Roger, it is easy to criticize the judge's decision based on the outcome alone. The problem is that the Judge can only decide the case considering the arguments that are put in front of him (within the “four corners” of the Complaint) and on the applicable laws, which as a judge he has a duty to follow. The key part of Judge Seeborg's decision is below.

“Since none of the actions challenged are ministerial, there is no jurisdiction to grant injunctive or mandamus relief against the President here. Nor do Plaintiffs state a claim for declaratory relief. Because these are failures of law and any amendment would be futile, Counts 1 and 2 are dismissed without leave to amend.”

For very good reasons (mainly the separation of powers), the law makes it incredibly difficult to sue the President. A complaint has to follow a very narrow path in order for a district court judge to even consider stepping on the toes of a President.  Courts give very wide deference to the authority of the President and other officials in regard to the execution of their official duties, especially when those duties are discretionary in nature.

In the case of the JFK Records Act, the very narrow path required ensuring that the pleadings contained an extremely precise and detailed enumeration of the exact wording of the statutory or "ministerial" duties that were explicitly mandated by the Act on particularly named officials, and an explanation of how those precise ministerial duties were violated by the official.

Without this exact information sufficiently pleaded, a judge will not even consider enforcing an order on a President or on any other official.

Understanding the difference between "ministerial" and "discretionary" duties is critical to understanding Judge Seeborg's decision and the application of the law.

Andrew Iler:

I am asking this question earnestly. Are you being diplomatic regarding the MFF suit?

Should a different legal approach be tried? 

[Bill Simpich]

@Andrew Iler

Andrew, you always have good ideas.  You have my email, please send me anything that you think might be helpful.