MEMORANDUM ON MORLEY CASE OPINION BY COURT OF APPEALS

PART I—AN IMPORTANT DECISION ON FOIA ATTORNEY FEES

Once again Jefferson Morley has won a significant victory in his 12-year-old Freedom of Information Act (FOIA) lawsuit for records on CIA case officer George Joannides. For the second time, the Court of Appeals reversed United States District Judge Richard C. Leon for denying an award of attorney fees and costs to Morley. The Court of Appeals ruling clarifies previous standard for evaluating the “public benefit” element in a way which may make it far easier to qualify for attorney fee awards in the future. A copy of the slip opinion in the case, Morley v. C.I.A. (“Morley 2016”), D.C. Cir. No. 14-5230, issued January 21, 2016, is Attachment 1 hereto.

The lawsuit was filed December 16, 2003, after the CIA failed to respond to Morley’s July 4, 2003 request for records on George Efythron Joannides. Joannides, identitied as CIA case officer for the DRE (Directorio Revolucionario Estudantil or Cuban Student Directorate), had remained hidden until Morley’s research efforts got the Assassination Records Review Board (ARRB) to identify him. This happened despite the CIA’s representations that it did not know who had been the case officer for the DRE. The result was that at the end of its existence, the ARRB identified a number of records pertaining to Joannides as JFK assassination-related records.

The fight over attorney fees began nearly six years ago after Morley had twice prevailed on the merits of the case by compelling release of new information regarding Joannides. The first of the two decisions on the merits, Morley v. U.S.C.I.A. (“Morley”), 508 F.3d 1108 (D.C.Cir. 2007), set an important precedent requiring the CIA to search its operational files for responsive records on Joannides. See Attachment 2.

However, the fight over attorney fees, which began after Morley’s second trip to the Court of Appeals on the merits, had a complicated antecedent in the Davy case, whose history is helpful to understanding the Morley attorney fee saga.

In Davy, researcher William A. Davy, Jr. sought records pertaining to Projects QKENCHANT and ZRCLIFF which related to his study of New Orleans District Attorney Jim Garrison’s trial of Clay Shaw for conspiracy to assassinate President Kennedy. Several new records were released and Davy moved for an award of attorney fees. Judge Richard C. Leon initially denied attorney fees on the ground that Davy wasn’t even eligible for fees because he hadn’t substantially prevailed. That decision was reversed by the Court of Appeals in Davy v. C.I.A., 456 F.3d 162 (D.C. Cir. 2006)(“Davy 2006”). See Attachment 3.

On remand, Judge Leon again denied attorney fees, this time on the ground that Davy had not shown that he was entitled to fees. See Davy v. C.I.A. 496 F.Supp.2d 36 (D.D.C. 007)(“Davy 2007”). See Attachment 4. The Court of Appeals then reversed Judge Leon’s ruling on attorney fees a second time in Davy v. C.I.A., 550 F.3d 1155 (D.C.Cir. 2008) (“Davy 2008”). See Attachment 5. This time the Court of Appeals ruled that evaluation of the “public benefit” factor “requires consideration of both the effect of the litigation for which fees are requested and the potential public value of the information sought. . . .” Id. at 1159 (emphasis added) (citations omitted). This was an extremely important precedent which set the Law of the Circuit which governs all future cases involving this issue absent an en banc decision by the full Court of Appeals or a decision by the Supreme Court overturning it.

Davy set the stage for the Morley case decisions on attorney fees.

In Morley v. C.I.A., 719 F.3d 689 (D.C. Cir. 2013)(“Morley 2013”), the Court of Appeals vacated Judge Leon’s initial decision and remanded the case to him. The Court’s Mandate, issued August 20, 2013, directed the District Court “to apply the four-factor standard [governing entitlement to an award of fees] in a manner consistent with Davy, in accordance with the opinion of the court filed herein this date [June 18, 2013].” In its opinion, the Court noted that it had “recently elaborated on one of those four factors, the public-benefit factor, which looks to the public benefit derived from the plaintiffs’ FOIA suit.” Id. at 689. After noting that Davy, “like this case, concerned a request for records on President Kennedy’s assassination,” the Court observed that Davy found that records “‘about individuals allegedly involved in President Kennedy’s assassination []serve[] a public benefit.”’ Id., quoting Davy at 1159. The Court then asserted, “[w]e also noted that the standard for entitlement to attorney’s fees does not ‘disqualify plaintiffs who obtain information that, while arguably not of immediate public interest, nevertheless enables further research ultimately of great value and interest, such as here the public understanding of a Presidential assassination.’” Id. at 690, quoting Davy at 1162, n.3.

The latest Morley decision greatly simplifies the test for determining whether a FOIA plaintiff is entitled to receive attorney fees. It requires that in weighing the public benefit factor, the court must assess the potential public value of the information sought. As the Court of Appeals put it:

. . . the public-benefit factor requires an
ex ante assessment of the potential public
value of the information requested, with little
or no regard to whether any documents supplied
prove to advance the public interest. We can
imagine a rare case where the research harvest
seemed to vindicate an otherwise quite implausible
request. But if it’s plausible ex ante that a
request has a decent chance of yielding a public
benefit, the public-benefit analysis ends there.

Morley 2016, slip op. at 5.

Throughout the attorney fee litigation, the CIA and the District Court repeatedly sought to discredit and belittle any public benefit conferred by release of the records Morley obtained. The CIA and the District Court contended that there was little or no public benefit derived from the release of certain newly released records or information obtained as a result of Morley’s lawsuit. The new records and information included:

–a record that may indicate that Joannides travelled to New Orleans at a time when a Warren Commission investigator was there to interview Carlos Bringuier, the Cuban exile leader who represented DRE in New Orleans and who was involved in confrontations with Oswald there;

–a travel record indicating that Joannides had a “Home Leave Residence” in New Orleans at a time when Oswald was involved in DRE activities there;

–a photograph of Joannides;

–a Career Intelligence Medal extolling Joannides achievements which was awarded after he had retired (for a second time) after his services in 1978 as liaison to the House Select Committee on Assassinations (HSCA);

–disclosure that the CIA was withholding in their entirety 295 operational records related to Joannides; and

–the disclosure that Joannides had worked “under cover” while serving as liaison to the HSCA, in which capacity, Morley argued, he had obstructed the Committee’s work in trying to investigate the DRE-Oswald relationship, failing to disclose to HSCA that he had served as DRE’s case officer during the period Oswald was involved with DRE.

The Court of Appeals agreed with Judge Leon that “the released documents appear to reveal little, if anything, about President Kennedy’s assassination.” It found that the “plausibility and value of [Morley’s] inferences are at best questionable, but are ultimately of little relevance. . . .” Slip Op. at 4 (emphasis added). But despite this, the Court reversed Judge Leon “[b]ecause the district court improperly analyzed the public-benefit factor by assessing the public value of the information received rather than “the potential public value of the information sought,” Morley 2016, Slip Op. at 4 (emphasis in original). Thus, although the Court of Appeals joined in the District Court’s minimization of the public benefit obtained by the release of the records, it found that this didn’t matter.

Another aspect of showing “public benefit” is “the effect of the litigation” inquiry. The Court of Appeals held that this “is properly understood as asking simply whether the litigation has caused the release of requested documents, without which the requester cannot be said to have substantially prevailed.” Id. at 5, noting that that Davy had suggested that assessing “‘the value of the litigation’ ‘presents a variation on’ the question whether the plaintiff has ‘”substantially prevail[ed]’”. Id. quoting Davy at 1159.

In summary, if a FOIA requester submits a request on a topic of potential benefit to the public, and if the lawsuit causes the release of new records or information, a FOIA plaintiff may be entitled to an award of attorney fees.

PART II—WHAT HAPPENS NEXT IN THE MORLEY CASE?

In theory, the Morley case is now over except for the actual awarding of attorney fees. Sadly, this is not the case. For all its succinct brilliance, the Morley 2016 decision has left Morley and his ageing counsel, after more than 12 years of litigation, twisting slowly in the wind. In part this is due to the way in which the Court decided to handle future proceedings, in part it is due to the nature of actors who will play a role in the implementation of the Court’s decision.

The decision here is unlike the decision in Davy in a couple of very important respects. In Davy, the Court reversed Judge Leon’s second decision denying an award of attorney fees, saying that “because no factor weighs in the agency’s favor, a balancing of the factors can only support the conclusion that Davy is entitled to an award of attorney fees.” Davy at 1163. The Court then followed this emphatic statement of Davy’s entitlement with an unusual direct command to the District Court which tied his hands: “Accordingly, we reverse and remand the case only for the district court to enter an appropriate award of fees and costs as to all matters on which Davy Prevailed.” Id. (emphasis added).

Here, by contrast, the Court did not reverse Judge Leon’s decision, it merely vacated it. It then remanded the case to Judge Leon for a balancing of the four factors. In so doing, it noted that “[f]ollowing the prior remand on the fees issue, the district court declined to reevaluate any factors other than public benefit, or to rebalance the factors, despite this court’s suggestion in Davy that the first three factors are all addressed to the distinction ‘between requesters who seek documents for public informational purposes and those who seek documents for private advantage.’” Morley 2016, slip op. at 7 (emphasis added), quoting Davy,
3d at 1160. The Court then instructed that “[o]n remand, the district court should consider the remaining factors and the overall balance afresh.”

This raises a number of questions about how to proceed. Either the CIA or Morley may move for a rehearing within 45 days of the date the case was decided (January 21, 2016). Because the core holding is diametrically opposite what agencies have argued in countless cases—that potential public benefit is to be ex ante rather than post facto—the Government could seek a rehearing or rehearing en banc. The chances of this may be diminished if the Government takes a message from the fact that of the nine different Court of Appeals judges who have considered attorney fee issues in Davy and Morley, only one has taken the position espoused by the CIA.

Morley, too, may wish to consider filing a petition for rehearing. The Supreme Court has admonished that a contest over an award of attorney fees “should not become a second major litigation,” and all courts routinely repeat this stricture. But as it actually works, the judicial system actually encourages prolonged litigation over attorney fee issues and acts a disincentive to encourage attorneys in private practice to take on FOIA cases. The attorney fee issue has now been litigated in this case for nearly six years and is likely to go on for at least another one to years. The litigation over attorney fees in Davy lasted nearly five years and was concluded because (1) the Court of Appeals made it clear that the amount of fees was the only remaining issue, and (2) Davy’s counsel elected to settle for considerably less than he thought should have been paid. Each of the cases involved not just a second litigation over attorney fees but four or five major litigations over attorney fees.

If a rehearing is not sought, then the remand to District Court raises practical problems. Notwithstanding the Court’s strong indication that the “re-balancing afresh” will be in Morley’s favor, the CIA can probably be counted on to continue its opposition to any significant payment of fees. The District Court will not be happy to have been reversed yet again. In Davy 2013, the Court of Appeals remanded for the District Court to apply Davy in a manner which seemed to guarantee it would rule in Morley’s favor. Instead, the District Court creatively used Davy to undercut entitlement to fees. Even if the District Court balances the factors afresh and rules that Morley is entitled to fees, it is unlikely that it or the CIA will agree to a reasonable award of attorney fees. Here the bad news is that Morley 2016 may make it possibly to substantially undermine the award of fees because it has instructed the District Court to determine the extent to which the litigation was devoted to securing records available under the JFK Records Act. The Court of Appeals, without any briefing on this issue, in dicta already has taken the position that time spent getting the JFK Records Act documents is non-compensable, a position that I think is untenable but which will not be amenable to challenge on remand without further clarification from the Court of Appeals on a petition for rehearing. Here, the Court of Appeals has given the CIA and the District Court an issue they can run with.

Thus, even if Morley elects to immediately proceed with the remand, the prospects are that there will be another year or two of litigation before issues are resolved and a realistic award of fees can be considered, and then probably only after another trip to the Court of Appeals.

Thus, a major court battle looms over whether a FOIA litigant who sues to get free copies of JFK Act records can be awarded attorney fees for such work. Members of the assassination research community may be able to assist in this effort by detailing problems they have encountered in gaining unfettered access to JFK Records Act documents. If researchers who have encountered significant problems in gaining access to JFK assassination-related records would communicate their experiences to the AARC’s Executive Director, Alan Dale, this would be much appreciated. He can be reached at editor.aarclibrary@gmail.com.

PART III—THE LARGER PICTURE

There are a couple of larger lessons to be learned from the Morley case. First, it is possible to compel agencies, including the CIA to conduct searches of its operational files on subjects relating to the assassination of President John F. Kennedy, whether officially designated JFK assassination-related records or not. This is a huge, as yet virtually untapped source of information of interest to assassination researchers.

Second, the Morley 2016 decision may make it much easier for FOIA lawyers to obtain attorney fees for public interest cases in which their clients prevail. Lawyers interested in the Kennedy assassination and related subjects need to be encouraged to take advantage of this development.

Third, a recent decision of the Court of Appeals in another case has added to the incentive for FOIA lawyers to sue recalcitrant agencies by endorsing the Salazar Laffey matrix rates for attorneys’ services. Previously, nearly all cases had been governed by the much lower United States Attorneys’ Laffy matrix.

James H. Lesar, attorney for Jefferson Morley