Major Blow to JFK Records Act

[Andrew Iler]

Judge Seeborg has released his decision.  It does not pull many punches on the plaintiffs’ case. 
 

All claims against the President are dismissed. 
 

All of the plaintiffs’ motions for injunctive relief are dismissed. 
 

The government’s motion to dismiss the case is mostly granted, save for and except:

1) the claim for Identification Aids;

2) the claim for the release of non-executive branch records; and 

3) NARA’s duty to complete missing records searches. 
 

I will be writing more about this decision in the coming weeks. 

[Andrew Iler]

I will try to post the Order here. 

 

Edited January 19 by Andrew Iler

[Sandy Larsen]

Seeborg is an idiot.

 

[Sandy Larsen]

Michael Griffith,

I removed your political post.

 

[Sandy Larsen]

3 minutes ago, Sandy Larsen said:

Seeborg is an idiot.

 

My apologies if he is a forum member's uncle or something.

 

[Tom Gram]

On the claim for release of non-executive branch records, does that include legislative branch records that are covered under the CIA Transparency Plan e.g. Church Committee records? 

If so that could be pretty significant. There are a lot of still redacted Church Committee records that would be very interesting to see. Same deal with the HSCA. 

The record searches could be significant too depending on what actually happens. For example, the ARRB failed to locate a ton of relevant Church Committee records in the 90s, and I believe the main repository of those records is still at NARA I i.e. not in the ARC. A new, comprehensive search of those records could yield some extremely valuable stuff. 

I’m not particularly optimistic, and need to read the actual order, but those two claims seem to have potential to add significant value to researchers depending on how they play out. 

[Michael Griffith]

30 minutes ago, Sandy Larsen said:

Michael Griffith,

I removed your political post.

My point was to show that when it comes to the JFK case, the refusal to release the records has been bipartisan, that it has not just been judges and politicians from one party who have tried to block the release of records, but judges and politicians from both parties.

[James DiEugenio]

Thanks Andrew, appreciate the notice.

[James DiEugenio]

Concerning Tom's query:

I think the Church Committee and HSCA would be included.

Those are legislative  branch records.

[Benjamin Cole]

It is remarkable how little citizens can learn about judges. 

This is from Wikipedia. 

---30---

Richard Gus Seeborg^[1] (born November 4, 1956) is the chief United States district judge of the United States District Court for the Northern District of California. He formerly served as a United States Magistrate Judge in the same district.

Early life and education[edit]

Born in Landstuhl, Germany, Seeborg earned a Bachelor of Arts in history summa cum laude from Yale University in May 1978 and then earned a Juris Doctor from Columbia Law School in 1981.^[2] From 1981 to 1982, Seeborg served as a law clerk to judge John H. Pratt of the U.S. District Court for the District of Columbia.^[2][3]

Career[edit]

In 1982, Seeborg joined the San Francisco law firm of Morrison & Foerster as an associate.^[2] He became a partner with the firm in 1987.^[2] In 1991, Seeborg left Morrison & Foerster to become an Assistant United States Attorney for the Northern District of California in San Jose, California.^[2] He served in that post until 1998, when he returned to Morrison & Foerster, working as a partner and focusing on a litigation practice in the fields of securities, intellectual property, and general commercial matters.^[2][3]

Federal judicial service[edit]

On February 9, 2001, Seeborg became a United States Magistrate Judge for the United States District Court for the Northern District of California.^[2][3]

On August 7, 2009, President Barack Obama nominated Seeborg to be a United States district judge on the United States District Court for the Northern District of California.^[4] On October 15, 2009, the United States Senate Committee on the Judiciary voted to send Seeborg's nomination to the full Senate.^[5] The Senate confirmed Seeborg by unanimous consent on December 24, 2009. He received his commission on January 4, 2010.^[3] He became Chief Judge on February 1, 2021, after Phyllis J. Hamilton assumed senior status.^[6]

Notable rulings[edit]

• On March 6, 2019, Seeborg ruled that U.S. Commerce Secretary Wilbur Ross could not add a question about citizenship to the 2020 United States Census.^[7][8]

• On April 8, 2019, Seeborg ruled that non-Mexican asylum seekers did not have to stay in Mexico while awaiting their court proceedings.^[9]

Personal[edit]

Seeborg resides in San Francisco, California.^[5]

[Bill Simpich]

The "major blow" occurred in July, 2023 when the court moved to dismiss much of the case because it ruled against our interpretation of the JFK Records Act.

Today, the case is stronger now than it was before this week's order.

The new ruling expands the case to include documents "removed" from government possession, not just "destroyed" documents.  This is one of the reasons we amended the complaint.

What it means is that we have a stronger argument for enforcement - at least one court case states that enforcement is "mandatory" when documents are removed, but not when documents are destroyed.

As to the other aspects of the case - the President was dismissed from the case six months ago.   Preliminary injunctions are very difficult to win.   

The judge made it clear in his initial ruling that he believed that the President and NARA had carte blanche to modify the JFK Act with Transparency Plans, and that NARA had few duties except in those instances where the ruling was in our favor.

In this ruling, the judge has now further stated his reasons for these findings.

We have made a very strong and complete record to challenge any aspect of the case, should we choose to do so.

We are also going forward with our claims that NARA must create the proper Identification aids so that the Collection can be easily accessed: for release of the non-executive branch records; and to recover removed and destroyed records (destroyed records can sometimes be re-constructed through various electronic means).  

We will let you know our next steps.

Bill Simpich

 

 

 

 

 

 

[James DiEugenio]

I think that the issue of  legislative records will now proceed.

Which means that you go through discovery etc.

But just remember, this is now 2024.

I mean whew. 

Edited January 20 by James DiEugenio

[Ron Bulman]

5 minutes ago, Bill Simpich said:

The "major blow" occurred in July, 2023 when the court moved to dismiss much of the case because it ruled against our interpretation of the JFK Records Act.

Today, the case is stronger now than it was before this week's order.

The new ruling expands the case to include documents "removed" from government possession, not just "destroyed" documents.  This is one of the reasons we amended the complaint.

What it means is that we have a stronger argument for enforcement - at least one court case states that enforcement is "mandatory" when documents are removed, but not when documents are destroyed.

As to the other aspects of the case - the President was dismissed from the case six months ago.   Preliminary injunctions are very difficult to win.   

The judge made it clear in his initial ruling that he believed that the President and NARA had carte blanche to modify the JFK Act with Transparency Plans, and that NARA had few duties except in those instances where the ruling was in our favor.

In this ruling, the judge has now further stated his reasons for these findings.

We have made a very strong and complete record to challenge any aspect of the case, should we choose to do so.

We are also going forward with our claims that NARA must create the proper Identification aids so that the Collection can be easily accessed: for release of the non-executive branch records; and to recover removed and destroyed records (destroyed records can sometimes be re-constructed through various electronic means).  

We will let you know our next steps.

Bill Simpich

 

 

 

 

 

 

Thank you, Sir.  For both your explanation for the rest of us above, and your work over the years.

[Lawrence Schnapf]

This is not a "major blow" as the headline would suggest. This was pretty much a status quo ruling. we  are still in the case  and can do alot with what is left.  Bill and I believe this judge ruled incorrectly on a numebr of issues.  we forced the judge to rule on several issues he declined to address in his earlier ruling and he basically doubled-down on his earlier flawed reasoning. these motions were strategic to create and preserve a record for a possible appeal to the 9th circuit where we would be before 3 judges, not one. 

some points that the original poster does not appreciate: Here are some of the erroneous rulings by the judge.

1. He continues to refer to NARA actions as “recommendations”.  He did not explain why our argument that the approval of the transparency plans were the consummation of a multi-year process and was final agency action because they imposed legal obgligations on the agencies. He repeated his incorrect conclusion that  his July 14 conclusion  that it was the president’s order that created legal consequences. Biden's order  directed  the NDC to implement the plans, not the agencies. The agencies committed to the plans that were approved by NARA. That is the final agency action that we can argue on appeal.
2. The President’s order never said NARA had "recommended" the transparency plans be implemented. He says that NARA advised him the plans would ensure the Act would be complied with- which they don’t because of the non-staturory, less-stringent criteria.
3. He continues to wrongly conclud that the president has “broad discretion” under Section 5(g)(2)(D) to use any criteria for postponement. He ignores that Congress limited the discretion of the president by imposing the grounds for postponement and that section 6 continues  provides the specific justifications for postponement under section 5(g)(2)(D)(see next comment)
4. In saying section 5(g)92)(D) creates a distinct authority for the president, he ignores that the agencies have continued to use section 6 to support their postponements. The idea that section 6 ended on 10/24/17 is belied by the actions of the agencies and NARA.
5. He refuses to recognize that periodic review has been ongoing. Again the actions of the agencies, NARA and the president refute the legal, post-hac rationalizations offered by DOJ

I am confident that when we get before three judges on the 9th circuit, they will admonish the district court for his cramped intepretation of a law that is supposed to be broadly construed since it was a remedial statute.  

[Benjamin Cole]

Jeez, I cannot follow the legal arguments on this.

I admire all the lawyers here for their tenacious interest in the case, and trying to do the right thing. 

I do not understand how the US government can get away with this. This sure looks like fake government.