Judge Orders CIA To Pay $400,000 In Legal Fees To FOIA Requester It Jerked Around For More Than A Decade

Legal Issues

from the just-put-it-on-the-public's-tab dept

The CIA has been fighting to keep POW/MIA records out of Roger Hall’s hands for over a decade. With that FOIA battle finally over, the CIA is now fighting to keep its money out of Roger Hall’s hands. Judge Royce Lamberth’s order sounds a little exasperated with this vexatious defendant.

First, the CIA admits Hall (and Studies Solutions Results) have mostly won. But it then goes on to claim it shouldn’t be required to follow this provision of the Freedom of Information Act — that “substantially prevailing” plaintiffs are entitled to legal fees.

The CIA concedes that the plaintiffs have prevailed on several of their claims and that they are therefore eligible for fees. Opp’n 8. The CIA also “accepts some responsibility for the unnecessarily protracted nature of this litigation” and notes that there is “accordingly no need for the Court to consider whether the plaintiffs are entitled to an award.” Furthermore, the CIA does not argue that interim fees are inappropriate or that fees should not be awarded until the conclusion of litigation.

So, what is the CIA’s problem? It admits fault but only wants to pay a small fraction of what Hall is seeking. Hall claims a decade’s-worth of the CIA’s admittedly “unnecessarily protracted” litigation has cost him more than $400,000. The CIA thinks $75,000 is more than fair for screwing him around for 10+ years.

First, the CIA claims Hall’s win isn’t much of a win, and if he’s racked up hundreds of thousands of dollars in legal fees, it’s his own fault.

The CIA requests that the Court reduce the requested fees because plaintiffs have achieved only limited success, calling their victory “largely pyrrhic…” The CIA argues that because plaintiffs sought such “extraordinarily broad categories of records,” “it was almost inevitable that litigation would ensue.”

Judge Lamberth points to the court record as being contradictory to the CIA’s portrayal of the litigation.

This allegation is, to some extent, in tension with the statement that it “does not dispute that the plaintiffs have substantially prevailed on several of their claims.” Indeed, the Court has repeatedly rejected the claim that the FOIA requests were overly broad and unduly burdensome, and now agrees that plaintiffs have achieved significantly more than a victory.

In fact, he points out it’s the CIA that’s been racking up loss after loss.

Overall, the Court finds that the plaintiffs in this case have been quite successful in achieving their objective: obtaining documents unlawfully withheld. When this lawsuit was filed, the CIA refused to release the requested records and failed to respond to plaintiffs’ request for over a year. After many years of litigation, the CIA has released more than 4,000 documents, quite a substantial success. The Court finds that plaintiffs’ actions in diligently pursuing their claims were reasonable — even those that were ultimately unsuccessful — and it will not use the benefit of hindsight to scrutinize every one of plaintiffs’ actions.

And while the CIA attempted to use a little math to buttress its claims that Hall’s litigation has been mostly unsuccessful (“CIA… specifically takes issue with a number of unsuccessful motions filed by the plaintiffs…”), it didn’t bother to apply anything of the sort to its counteroffer on legal fees.

[T]he court finds it troubling that the CIA did not even attempt to analyze how many hours related to such motions, instead stating only that “a fee award up to $75,000 may be appropriate.”

Which means the court now has to do the calculations the CIA couldn’t be bothered to perform.

The CIA… [provided] no basis from which to determine how much of a reduction would be appropriate and [left] such calculations to the Court. This not only inconveniences the Court, but should the Court produce its own analysis for the first time in a written opinion, the plaintiffs would not have a chance to respond.

And it comes to much, much more than the CIA offered.

Applying the historic Laffey rates to Hall and SSR’s total requested hours produces an award of $346,231 after billing 0.8 hours [yes, the CIA argued over 0.8 billable hours — out of 1,008.7 total] to the clerical rate rather than the attorney rate. Their attorney, James Lesar, agreed that it is appropriate to deduct 15% of the time recorded as a matter of billing judgment, yielding an award of $294,296.40.

In addition to the $294,000, another $120,000 will be going to James Lesar himself, bringing the total award to $414,478.40.

After being presented with these results, the CIA argued that it was simply too much… by citing other cases with lower awards, no matter their relevance to the issue at hand.

The cases the CIA cites in an attempt to show that this award is out of sync with fees awarded in similar cases are not illustrative. Simply listing cases and fee awards is not helpful.

The CIA will now be lifting over $400,000 from taxpayers’ wallets to pay for its combative, secretive behavior. Records pertaining to prisoners of war and missing in action soldiers are the very definition of “public interest” documents. Throughout the course of this case, the CIA repeatedly claimed otherwise, claiming that the documents might be of interest to surviving relatives/spouses only. The court disagrees.

Certainly information regarding missing following the Vietnam and Korean Wars is exactly the type of information that interests the public. Disclosure of this information has the potential to shed light on the extent, nature, intensity, and duration of the government’s efforts to locate and show the degree to which the CIA has accurately informed the public about its search efforts and the information it possesses. […] Information regarding POW/MIAs is not only of interest to the public, but hard to come by.

It’s the public that’s been forced to take part in a pyrrhic victory. More documents have been freed, but it took years of litigation. That bill will be footed by the same public the CIA denies has any interest in the documents. There’s more information available now than there was 10 years ago, but every step of the way, the CIA used the public’s money to fight against the public’s interest. And now it needs another $400,000 from the public to pay back other members of the public.

The servicemen and women whose information the CIA fought to withheld would probably have reminded the public that “freedom isn’t free.” The payout resulting from this extensive legal fight turns those words into a ghastly parody.

Filed Under: cia, foia, mia, pow, roger hall