Legal Issues

by Tim Cushing


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



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

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 Lambert'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 Lambert 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.


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  1. identicon
    Anonymous Coward, 22 Jul 2015 @ 3:56pm

    It should come directly from they pay of the idiot who decided to keep the documents secret, then he should be fired with no pension.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 22 Jul 2015 @ 4:45pm

    Re:

    It would be nice to finally see some Justice done to these people who have been overwhelmingly found to be acting in an unlawful matter in regards to public matters.

    If they actually had to pay themselves for these actions maybe they would actually give it just a tiny bit of thought!

    reply to this | link to this | view in thread ]

  3. icon
    Mike Brown (profile), 22 Jul 2015 @ 4:59pm

    On the bright side...

    Isn't it nice to see a government agency trying to save taxpayers money for a change?

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 22 Jul 2015 @ 5:01pm

    CIA Logic

    Dear American Taxpayer,

    Your friends at the CIA are not to blame for the large sums of taxpayer money being paid for legal fees. The blame lies squarely with the judge in the case.
    We, at the CIA, fought hard to save all $400,000 then negotiated to save $325,000 but the judge wouldn't accept our fair terms and insisted we spend your money so frivolously.
    Remember, if we had our way, that $400,000 would still be with us to deny FOIA requests and prevent expensive publication of the work we do in your name.

    Sincerely working on your behalf,
    The Good Guys and Your Friends at the CIA

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 22 Jul 2015 @ 5:05pm

    The Judge's name is Royce C. Lamberth. Been a fan of his since the late 90's.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 22 Jul 2015 @ 5:28pm

    It is only money, and since it is our government they will just print more. 500,00 seem to be about right, I hope the agency will sit down and shut up.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 22 Jul 2015 @ 5:46pm

    Re: Correction

    It is only currency (not money) and in reality not worth the paper it is printed on.

    Know the difference and weep. Currency is a promissory note since you no longer have a gold standard, it actually promises you nothing. Your government happily prints more all the time and devalues all the currency currently in circulation.

    reply to this | link to this | view in thread ]

  8. icon
    Bergman (profile), 22 Jul 2015 @ 6:17pm

    Re: Re:

    Or, more likely, there would be a 'mysterious accident' involving a Predator drone and a Hellfire missile, and the CIA would give a Glomar answer as to how that missile came to intersect the house the guy suing them was sleeping in.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 22 Jul 2015 @ 6:45pm

    Looks like the real winners of this case were the lawyers. Like most types of cases, actually.

    reply to this | link to this | view in thread ]

  10. icon
    tqk (profile), 22 Jul 2015 @ 9:00pm

    Re:

    Looks like the real winners of this case were the lawyers.

    You're more than welcome to step up to the plate and try yourself. What have you done lately that's anywhere near comparable? These guys took on the CIA, and not only won, but lived to tell about it.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 22 Jul 2015 @ 9:51pm

    Re: Re: Correction

    Hey, my mattress needs stuffing. I'll do you a favour, take those bits of paper off your hands.

    Happy to give you something for them, but as you say, "they're not worth the paper it's printed on", so not much.

    I normally pay passable newsprint rates, but if we're talking bulk amounts, I'll go as high as matte-finish periodical stock. Deal?

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 23 Jul 2015 @ 1:38am

    A tyranny by any other name

    reply to this | link to this | view in thread ]

  13. identicon
    David, 23 Jul 2015 @ 7:08am

    Re:

    This wasn't some class action lawsuit resulting in a lottery payout for the lawyers. They spend 10 years battling the CIA in court to get this result. I'd say it's earned here. That's less than $30,000/year.

    reply to this | link to this | view in thread ]

  14. icon
    Jeremy Lyman (profile), 23 Jul 2015 @ 7:36am

    Re: Re:

    Also the point of the litigation was to expose the resultant documents, as opposed to those class action suits whose purpose is to financially compensate a wronged class. The lawyers didn't take 90% of the documents and leave a pittance to be divided among their clients.

    reply to this | link to this | view in thread ]

  15. icon
    Jeff Green (profile), 23 Jul 2015 @ 9:17am

    Re: Re: Correction

    What makes you think you had something when there was a gold standard? Gold isn't intrinsically very useful or valuable. It is valuable because people think it is. Just like other forms of money.

    reply to this | link to this | view in thread ]

  16. icon
    nasch (profile), 23 Jul 2015 @ 9:53am

    Re: Re: Re: Correction

    It is valuable because people think it is. Just like other forms of money.

    Gold does have some uses in industry. But as currency I think the main difference is more gold is hard to come by, or at least keeping up with the world economy by mining more gold is hard. That makes gold standard money tend to be deflationary by nature (though by no means stable as the price of gold can fluctuate), which is a bad thing. Fiat currency opponents don't seem to want to address that issue.

    reply to this | link to this | view in thread ]

  17. icon
    tqk (profile), 23 Jul 2015 @ 10:47am

    Re: Re: Re: Correction

    Gold isn't intrinsically very useful or valuable.

    Sure it is. It's just very powerful stuff so you don't need much of it to do its thing. Vanishingly small thicknesses of gold leaf do a great job in ornamentation. You don't need much of it at all to increase electrical connectivity on a *lot* of stuff.

    Gold is damned near impossible to counterfeit (thank you Archimedes!), its supply is extremely stable (eliminating inflation and deflation; manipulation of the money supply), and is extremely portable. It doesn't lose its value when your gov't collapses, and it gains in (or retains its) value despite gov't futzing with its fiat currency values.

    Did I mention it's extremely stable?

    I think you're thinking of diamonds, the value of which deBeers has been fiddling with pretty much forever.

    reply to this | link to this | view in thread ]

  18. icon
    JBDragon (profile), 23 Jul 2015 @ 11:43am

    Re: Re:

    Again, the Lawyers on BOTH sides are the ones that WIN! The taxpayers get a bunch more of their tax dollars wasted.

    reply to this | link to this | view in thread ]

  19. icon
    JBDragon (profile), 23 Jul 2015 @ 11:51am

    Re: Re: Re: Re: Correction

    Yes, GOLD has been of a great value and used as currency around the world for thousands of years!!!

    The paper crap we have is only worth what the Government wants to let it be worth.

    Put it this way, back when there was a GOld standard in the U.S. You could put your money in the bank and leave it there and have enough to retire and live on!!! Because Inflation was SLOW and interest rates in the banks were much higher. Money was worth more. The problem was the Government wanted to spend a whole lot more money and the only way to do that was to get off the gold standard. They've been busy printing up money like crazy and de-valuing the dollar!!! That's all they've been doing while Obama has been in office, is a out of control printing press. Why is Wall Street rolling in money? it's all the MONEY being printed and thrown around. Even though the Economy has sucked!!!

    People these days just have no idea how it was before getting off the Gold Standard.

    reply to this | link to this | view in thread ]

  20. icon
    nasch (profile), 23 Jul 2015 @ 12:10pm

    Re: Re: Re: Re: Correction

    its supply is extremely stable (eliminating inflation and deflation; manipulation of the money supply)

    On the contrary, the stability of the supply leads to deflation when the economy grows, which is most of the time. You have more value in the economy but the same amount of money to represent that value.

    I think you're thinking of diamonds, the value of which deBeers has been fiddling with pretty much forever.

    Also useful in industry (though not the one DeBeers sells).

    reply to this | link to this | view in thread ]


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