MFF hearing coming up

[Roger Odisio]

Let's review

 

The 1992 JFK Act established the JFKA Records Collection to be housed in NARA. All information therein was to be made available so that the the public could decide for themselves what happened that day.

 

It created the ARRB to look for and release all JFK records for inclusion in the Record Collection.   And to determine the definition of a JFKA record it was to be looking for. The Review Board was to decide whether a particular piece of information qualified as a JFK record.

 

The definition the Review Board settled on was as broad as possible: any information that helped a person to understand the murder is a JFKA record, regardless of its form or who possessed it. It took the board until the summer of '95 to decide on that definition. It was an important first step.

 

The Act set a deadline of 2017 by which all records were to be made available to the public.

 

But the Act mandated that the Board close its doors by what became, after extensions, September of 1998.  Leaving 19 years of work to be done after the Review Board closed. The politicians who wrote the Act knew that the disclosure problem was severe enough that it was necessary to set a final deadline well after the ARRB closed.  The original deadline, as written in the Act, in fact was actually 1994, but was extended eventually to1998.

 

The Act mandated that, upon termination of the Board, all JFK records were to transferred to NARA's Archivist for inclusion in the Collection.

 

But the 2017 deadline was just an estimate, maybe a hope.  Section 12 (b) of the Act sets the actual deadline. It says the work of releasing records shall continue until NARA's Archivist "certifies to the President and the Congress that all assassination records have been made available to the public in accordance with this Act".

 

Note it's the Archivist who must decide when the job is done. not the President.

 

Enter the villain.  Judge Seeborg, early in his initial decision in the MFF lawsuit asserts that NARA, whom Bill and Larry are suing on behalf of the MFF, is *not* the successor in function to the Review Board, and so it is not the body charged with finishing the job.

 

The judge admits that the JFK Act "imposes a duty on the originating agency [with those records] *and the Archivist* to perform periodic reviews" of postponed or redacted records.

 

He cites Section 12 (a) of the Act discussing the closing of the Review Board.  But he never mentions Section 12 (b) explaining that the Act's provisions for releasing records remain in effect until NARA's Archivist certifies that all the records have been released. 

 

Instead, the judge says NARA and ARRB are "two distinct entities, separately referenced in the JFK Act and tasked with separate statutory functions"  "Neither NARA nor any other executive agency can, by its own ipse dixit, legally assume obligations so terminated by Congress" 

 

He has misread Section 12.  Only the Review Board has been terminated under 12 (a).  The job of finding and releasing records continues until all records have been released per 12 (b) which he has ignored.

 

It's as if he doesn't understand that the Archivist tasked with performing periodic reviews of postponed or redacted records once the Review Board closed, and certifying that all records have been released, is not the same person who is running NARA. How could she have known the job was done unless she was involved in performing it?

 

The judge is left with no person or agency responsible for the work still to be done in the now more than 25 years since the Review Board closed.  Which is why he has turned a blind eye to the fact that NARA and its Archivist have been doing virtually nothing about their duty during that period.

 

Enter the good guys.  A hearing is scheduled for Thursday in which Bill and Larry will presumably be given the opportunity to lay the judge's mistakes before him.

[Sandy Larsen]

10 minutes ago, Roger Odisio said:

Judge Seeborg ... is left with no person or agency responsible for the work still to be done in the now more than 25 years since the Review Board closed.

 

So is the hearing coming up an APPEAL hearing?

If it is an appeal hearing and the appeal court judge is also stupid, can it be taken to a higher appeal court?

 

[Roger Odisio]

1 hour ago, Sandy Larsen said:

 

So is the hearing coming up an APPEAL hearing?

If it is an appeal hearing and the appeal court judge is also stupid, can it be taken to a higher appeal court?

 

It's a hearing on the motions from both sides about Seeborg's decision. Which was issued back on July 14 to give you some idea about how slowly this thing is moving.  This hearing was originally scheduled for almost a month ago.  If they lose, they have the right to appeal up the line.  

[Benjamin Cole]

About District Judge Richard SeeborgJudge, U. S. District Court, Northern District of California. Nominated by Barack Obama on August 6, 2009, to a seat vacated by Maxine M. Chesney. Confirmed by the Senate on December 24, 2009, and received commission on January 4, 2010.

[Andrew Iler]

Roger, the judge vacated the oral hearing on all of the motions (i.e. the government’s motion to dismiss and MFF’s motions for injunctive relief) on Friday. 
 

As difficult as it is to swallow, the judge can only make decisions based on what is properly put before him in the pleadings. 

Edited January 15 by Andrew Iler

[Roger Odisio]

2 hours ago, Andrew Iler said:

Roger, the judge vacated the oral hearing on all of the motions (i.e. the government’s motion to dismiss and MFF’s motions for injunctive relief) on Friday. 
 

As difficult as it is to swallow, the judge can only make decisions based on what is properly put before him in the pleadings. 

Thanks.  Is that posted somewhere?

That's a bad sign.  I think he has made up his mind what he'll do next and he doesn't want to allow Bill and Larry to make arguments that will make his job more difficult.  His mistakes are obvious, beyond what I posted here.

[Andrew Iler]

Roger, it is posted on the Court docket. Unless you have Pacer or some other way to access the electronic court file system, I’m not sure if the public has an up-to-date way of seeing activity on a case. 

[Bill Simpich]

Here is the docket's text:

CLERK'S NOTICE THE MOTIONS [#78, #91, #92] SCHEDULED FOR HEARING ON JANUARY, 18, 2024 AT 1:30 P.M. SHALL BE SUBMITTED WITHOUT ORAL ARGUMENT PURSUANT TO CIVIL LOCAL RULE 7-1(b). ACCORDINGLY, THE MOTION HEARING IS VACATED. (This is a text-only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Filed on 1/12/2024)

 "In the Judge’s discretion...a motion may be determined without oral argument or by telephone conference call."  - that's the language of Rule 7-1(b) referred to above.

This is part of a nationwide trend towards taking away oral argument - less than 20% of federal cases have any oral argument - see that statistic and more in this linked article on "The Disappearing Oral Argument".

The federal judges are overloaded with cases - why have a legal system if you can't afford to fund it properly? - and this is the result.

I have no problem criticizing the legal system - but it is counterproductive for me to comment on the judge, pro or con.

Let's wait and see what happens.   Lawsuits take a while.  No matter what this ruling contains, we have a number of options.   We made many good arguments in the briefs and our complaint covers a lot of ground.

If you want to review the filings themselves, go to the JFK Lawsuit page at the Mary Ferrell Foundation.

Bill Simpich

[Roger Odisio]

17 hours ago, Bill Simpich said:

Here is the docket's text:

CLERK'S NOTICE THE MOTIONS [#78, #91, #92] SCHEDULED FOR HEARING ON JANUARY, 18, 2024 AT 1:30 P.M. SHALL BE SUBMITTED WITHOUT ORAL ARGUMENT PURSUANT TO CIVIL LOCAL RULE 7-1(b). ACCORDINGLY, THE MOTION HEARING IS VACATED. (This is a text-only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Filed on 1/12/2024)

 "In the Judge’s discretion...a motion may be determined without oral argument or by telephone conference call."  - that's the language of Rule 7-1(b) referred to above.

This is part of a nationwide trend towards taking away oral argument - less than 20% of federal cases have any oral argument - see that statistic and more in this linked article on "The Disappearing Oral Argument".

The federal judges are overloaded with cases - why have a legal system if you can't afford to fund it properly? - and this is the result.

I have no problem criticizing the legal system - but it is counterproductive for me to comment on the judge, pro or con.

Let's wait and see what happens.   Lawsuits take a while.  No matter what this ruling contains, we have a number of options.   We made many good arguments in the briefs and our complaint covers a lot of ground.

If you want to review the filings themselves, go to the JFK Lawsuit page at the Mary Ferrell Foundation.

Bill Simpich

I know you can't criticize the judge or his ruling, Bill, which is one reason I have been doing it. 

 

As you know Judge Seeborg cancelled the hearing before his original decsion too.  The article you cite, as well as some facts in the case, help us understand why,

 

Skipping oral arguments deprives you of the chance to effectively summarize your voluminous filings and focus your case. And to pose direct questions to the defendants and to the judge, such as:

 

If the Act mandated that the Review Board close (originally it was to be 2 years after the Act, then extended to 6 years total), but the work of releasing records should continue until 2017 (and now beyond), and more precisely, until NARA's Archivist certifies that all records have been released, which agency is responsible for that work? You, judge, said it's not NARA because it and the Review Board are "two distinct entities separately referenced in the JFK Act and tasked with separate statutory functions". NARA is not the "successor in function"  to the Review Board, you said.

 

Bill and Larry have made the case that little to nothing has been done to complete the work Congress envisioned in the going on 26 years since the Board closed.  If the responsible agency is not NARA, who is it?  Who should the MMF have sued instead to get compliance with the Act? The judge's decision is silent about this fundamental question.

 

Cancelling the hearing also allows the judge, as much as it is possible, to conceal his abysmal ignorance about the case, and in particular, about the very purpose of the Act.  By waving through Biden's "transparency plan"  which tries to remove future presidents from the process of release decisions and throws it back to the "originating agencies", the judge does not understand that a main purpose of the Act in the first place was to overcome the refusal of those agencies to release that information, and the impotence of FOIA to do anything about it.  

 

The article you cite, Bill, makes a compelling point (everyone should read it for perspective).  Oral argument is the best chance a plaintiff has to convince a judge he has made mistakes.  Judge Seeborg knows that.

 

Today, Chad Nagle has posted an excellent article on Jeff Morley's JFK Facts site that makes a lot of the important points about the case (may be behind a pay wall).  Among them is one not  discussed enough.

 

No matter what you think of Biden's "transparency plan", it only applies to information held by executive agencies of the federal government  (apparently even Judge Seeborg recognizes that).  Not to Congress or legislative entities.  Not to information held by everyone else.  Like the Darnell and Wiegman films NBC is hiding. 

 

It is the job of that phantom agency (read NARA) to decide if information is a JFKA record (the Review Board, not the Act itself, defined what a JFK record is) and release it accordingly. Bill Clinton had no role in the decision to take the Zapruder film from the family and put it in the Collection (while paying them more than $16 million). 

 

I've read you latest filings and agree you have focused on the heart of the matter and made lots of good points. Another reason the judge cancelled oral arguments. He wants to hide in his office and choose which points he responds to.