Case Detail

FOIA Project Annotation: Judge Trevor McFadden has ruled that the Assassination Archives and Research Center is neither eligible nor entitled to attorney's fees for its litigation against the CIA for disclosure of a report the agency prepared on the attempted assassination of Adolph Hitler as part of its consideration of potentially assassinating Fidel Castro because the organization did not substantially prevail. After AARC filed suit, the agency disclosed a document entitled "Propagandist's Guide to Communist Dissensions" and five related records. Because the documents had been disclosed during litigation, AARC filed a motion for $103,358 in fees. The motion was referred to Magistrate Judge Michael Harvey, who recommended that the motion be denied. AARC objected to Harvey's recommendation, arguing that the court should abandon the four-factor test from the 1974 Senate Report because it did not follow the plain language of the statute. AARC argued that Harvey had underestimated the public interest in the disclosure of the report on the attempt to assassinate Hitler because it was more broadly part of the historic record concerning President Kennedy's assassination. McFadden agreed that "a plot to assassinate a foreign leader such as Castro is a matter of potential public value. Even so, information about a never-implemented assassination plan that Congress investigated 40 years ago is only marginally 'likely to add to the fund of information that citizens may use in making vital political choices.' While there is some potential public value in information about a Castro assassination attempt, it is not strong." McFadden also pointed out that most of the document had already been disclosed. The CIA argued that AARC received a private benefit by avoiding the need to search for the document in the National Archives. Harvey had concluded that the alleged benefit of not having to go to NARA did not weigh in favor of or against awarding attorney's fees and McFadden agreed. AARC argued that under the D.C. Circuit's holding in Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) it would be unreasonable for the CIA to refer a request for Kennedy assassination records to NARA without conducting a search itself. In this case, however, McFadden pointed out that the agency only referred AARC to NARA for records it no longer had in its possession. The CIA then conducted three searches before its final disclosure in the case. He explained that "the reasonableness of the CIA's conduct is also evidenced by the fact that after extensive searching, the agency turned up only a single document, not a deluge of responsive records. That the CIA found the needle after searching the haystack a third time does not alter the Court's prior opinion that the agency met its burden to establish a systematic good faith search effort." In its last decision resolving the attorney's fees question remaining in Morley v. CIA, 894 F.3d 389 (D.C. Cir. 2018), the D.C. Circuit concluded that the district court had acted reasonably by putting all of its emphasis on the fourth factor of the test â€" whether the agency had a reasonable basis in law â€" to deny Morley's fee request. Here, McFadden noted that "the first three factors may weigh in Assassination Archives' favor, but only slightly. In contract, the fourth factor weighs strongly in the CIA's favor." He observed that "after sifting the four factors and the evidence, the Court finds the fourth factor carries the most weight here, with its strong finding in favor of the CIA." AARC also argued that the four-factor test should be abandoned because it was contrary to the statutory language. McFadden pointed out that both former D.C. Circuit Judge Brett Kavanaugh and Senior Circuit Court Judge A. Raymond Randolph had strongly argued for abandoning the four-factor test, but indicated that "if the D.C. Circuit is moving away from the four-factor test, it is not necessarily headed towards a test helpful to Assassination Archives. . .In any case, this Court cannot overturn the four-factor test. It is bound by the test 'until either the Circuit, sitting en banc, or the Supreme Court, overrules it.'"
Issues: Litigation - Attorney's fees - Entitlement - Reasonable Basis for Withholding, Litigation - Attorney's fees - Entitlement - Public benefit

Date Filed	Doc #	Docket Text
2017-01-25	1	COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF against CENTRAL INTELLIGENCE AGENCY ( Filing fee $ 400 receipt number 0090-4817724) filed by ASSASSINATION ARCHIVES AND RESEARCH CENTER, INC.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Civil Cover Sheet, # 8 Summons)(Alcorn, Daniel) (Entered: 01/25/2017)
2017-01-25	2	ERRATA by ASSASSINATION ARCHIVES AND RESEARCH CENTER 1 Complaint, filed by ASSASSINATION ARCHIVES AND RESEARCH CENTER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons CIA, # 3 Summons U.S. Attorney's Office, # 4 Summons Attorney General of U.S.)(Alcorn, Daniel) (Entered: 01/25/2017)
2017-01-26	3	NOTICE of Appearance by James H. Lesar on behalf of All Plaintiffs (Lesar, James) (Entered: 01/26/2017)
2017-01-26		Case Assigned to Judge Colleen Kollar-Kotelly. (zsb) (Entered: 01/26/2017)
2017-01-26	4	SUMMONS (3) Issued Electronically as to CENTRAL INTELLIGENCE AGENCY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(zsb) (Entered: 01/26/2017)
2017-01-26	5	ORDER Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on January 26, 2017. (NS) (Entered: 01/26/2017)
2017-02-01	6	CERTIFICATE OF SERVICE by ASSASSINATION ARCHIVES AND RESEARCH CENTER . (Alcorn, Daniel) (Entered: 02/01/2017)
2017-02-08	7	NOTICE of Appearance by Damon William Taaffe on behalf of CENTRAL INTELLIGENCE AGENCY (Taaffe, Damon) (Entered: 02/08/2017)
2017-02-16	8	MOTION for Summary Judgment Partial on Adequacy of Search by ASSASSINATION ARCHIVES AND RESEARCH CENTER (Attachments: # 1 Statement of Facts Local Rule 7(h) Statement of Facts, # 2 Text of Proposed Order, # 3 Exhibit 1 - Church Committee Report, # 4 Exhibit 2 - CIA IG Report, # 5 Exhibit 3 - Gerald Ford Foreward)(Alcorn, Daniel) (Entered: 02/16/2017)
2017-02-17		MINUTE ORDER: The Court is in receipt of Plaintiff's 8 Motion For Partial Summary Judgment to Require CIA to Perform an Adequate Search. The parties shall abide by the following briefing schedule. Defendant shall files its opposition on or before MARCH 6, 2017. Plaintiff shall files its reply, if any, on or before MARCH 14, 2017. Defendant's obligation to file an answer or otherwise respond to the Complaint shall be STAYED until the resolution of the Motion. Signed by Judge Colleen Kollar-Kotelly on 2/17/2017. (lcckk1) (Entered: 02/17/2017)
2017-02-17		Set/Reset Deadlines: Defendant shall file its opposition on or before 3/6/2017; Plaintiff shall files its reply, if any, on or before 3/14/2017. (kt) (Entered: 02/17/2017)
2017-02-28	9	Consent MOTION for Extension of Time to File Response/Reply as to 8 MOTION for Summary Judgment Partial on Adequacy of Search by CENTRAL INTELLIGENCE AGENCY (Taaffe, Damon) (Entered: 02/28/2017)
2017-03-02		MINUTE ORDER: The Court is in receipt of Defendant's 9 Consent Motion for Extension of Time, which requests a modification of the briefing schedule previously set by the Court in respect of Plaintiff's 8 Motion for Partial Summary Judgment. See Minute Order dated February 17, 2017. For good cause shown, Defendant's 9 Motion is GRANTED. Defendant shall files its Opposition no later than APRIL 5, 2017. Plaintiff shall files its Reply, if any, no later than APRIL 18, 2017. Signed by Judge Colleen Kollar-Kotelly on 3/2/2017. (lcckk1) (Entered: 03/02/2017)
2017-03-03		Set/Reset Deadlines: Defendant shall files its Opposition no later than 4/5/2017; Plaintiff shall files its Reply, if any, no later than 4/18/2017. (kt) (Entered: 03/03/2017)
2017-04-05	10	MOTION to Stay re 8 MOTION for Summary Judgment Partial on Adequacy of Search by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Memorandum in Support, # 2 Declaration Shiner Declaration)(Taaffe, Damon) (Entered: 04/05/2017)
2017-04-05	11	Memorandum in opposition to re 8 MOTION for Summary Judgment Partial on Adequacy of Search filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Declaration Shiner Declaration, # 2 Statement of Facts)(Taaffe, Damon) (Entered: 04/05/2017)
2017-04-10	12	REPLY to opposition to motion re 8 MOTION for Summary Judgment Partial on Adequacy of Search filed by ASSASSINATION ARCHIVES AND RESEARCH CENTER. (Attachments: # 1 Exhibit 1 - E-mail exchange)(Alcorn, Daniel) (Entered: 04/10/2017)
2017-04-10	13	Memorandum in opposition to re 10 MOTION to Stay re 8 MOTION for Summary Judgment Partial on Adequacy of Search filed by ASSASSINATION ARCHIVES AND RESEARCH CENTER. (Attachments: # 1 Exhibit 1 - E-mail exchange)(Alcorn, Daniel) (Entered: 04/10/2017)
2017-04-12		MINUTE ORDER: Plaintiff filed this Freedom of Information Act ("FOIA") case on January 25, 2017, and subsequently moved for partial summary judgment on February 16, 2017, see ECF No. 8, requesting that the Court order Defendant Central Intelligence Agency ("CIA") to conduct an adequate search in response to Plaintiff's FOIA request, id. at 11. According to the Complaint, CIA informed Plaintiff by letter dated April 29, 2016 that its search had not located any records responsive to Plaintiff's request. Compl. para. 18, Ex. 6. In its opposition memorandum and an attached declaration, however, Defendant represents that it is continuing to conduct a search for responsive records in response to Plaintiff's request, and that it anticipates completing that search and processing any responsive records within 4 months. Decl. of Antoinette B. Shiner, ECF No. 10-2 paras. 7, 10. In light of this representation, the Court DENIES WITHOUT PREJUDICE Plaintiff's 8 Motion for Partial Summary Judgment. Defendant shall file a Status Report no later than AUGUST 14, 2017, updating the Court regarding the status of its search and production of responsive materials to Plaintiff, if any. Defendant shall include a declaration detailing the manner in which the search was conducted. In addition, by AUGUST 28, 2017, the parties shall file a Joint Status Report proposing a dispositive briefing schedule in this matter, or otherwise indicating how the parties intend to proceed. Signed by Judge Colleen Kollar-Kotelly on 4/12/2017. (lcckk1) (Entered: 04/12/2017)
2017-04-13		Set/Reset Deadlines: Defendant shall file a Status Report no later than 8/14/2017; By 8/28/2017, the parties shall file a Joint Status Report. (kt) (Entered: 04/13/2017)
2017-08-11		MINUTE ORDER: Defendant's 10 Motion to Stay Consideration of Plaintiff's Motion for Partial Summary Judgment is DENIED AS MOOT. Plaintiff's 8 Motion for Partial Summary Judgment was denied without prejudice by minute order dated April 12, 2017. Signed by Judge Colleen Kollar-Kotelly on 8/11/2017. (lcckk1) (Entered: 08/11/2017)
2017-08-14	14	STATUS REPORT by CENTRAL INTELLIGENCE AGENCY. (Taaffe, Damon) (Entered: 08/14/2017)
2017-08-15	15	ERRATA by CENTRAL INTELLIGENCE AGENCY 14 Status Report filed by CENTRAL INTELLIGENCE AGENCY. (Taaffe, Damon) (Entered: 08/15/2017)
2017-08-28	16	Joint STATUS REPORT by CENTRAL INTELLIGENCE AGENCY. (Taaffe, Damon) (Entered: 08/28/2017)
2017-08-28	17	Joint MOTION for Scheduling Order by CENTRAL INTELLIGENCE AGENCY (Taaffe, Damon) (Entered: 08/28/2017)
2017-09-05	18	SCHEDULING AND PROCEDURES ORDER. Signed by Judge Colleen Kollar-Kotelly on 9/5/2017. (lcckk1) (Entered: 09/05/2017)
2017-09-05		Set/Reset Deadlines: Defendant's Summary Judgment motion due by 10/13/2017. Response to Motion for Summary Judgment due by 11/13/2017. Reply to Motion for Summary Judgment due by 12/11/2017. Vaughn Index due by 10/13/2017. Plaintiff's Cross Motion due by 11/13/2017. Response to Cross Motion due by 12/11/2017. Reply to Cross Motion due by 1/5/2018. (dot) (Entered: 09/07/2017)
2017-10-13	19	MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Statement of Facts, # 2 2d Supp. Shiner Declaration, # 3 Memorandum in Support, # 4 Vaughn index)(Taaffe, Damon) (Attachment 2 replaced on 10/16/2017 - originally attached upside down) (znmw). (Entered: 10/13/2017)
2017-11-02		Case directly reassigned to Judge Trevor N. McFadden. Judge Colleen Kollar-Kotelly is no longer assigned to the case. (ztnr) (Entered: 11/02/2017)
2017-11-13	20	Memorandum in opposition to re 19 MOTION for Summary Judgment filed by ASSASSINATION ARCHIVES AND RESEARCH CENTER. (Attachments: # 1 Statement of Facts In Oppostion to CIA's Motion for Summary Judgment, # 2 Text of Proposed Order, # 3 Exhibit Exhibit 1- Aug. 18, 2017 release to plaintiff, # 4 Exhibit Exhibit 2 Kelly declaration)(Alcorn, Daniel) (Entered: 11/13/2017)
2017-11-13	21	Cross MOTION for Summary Judgment by ASSASSINATION ARCHIVES AND RESEARCH CENTER (Attachments: # 1 Statement of Facts in Support of AARC's Cross-motion for Summary Judgment, # 2 Text of Proposed Order, # 3 Exhibit Exhibit 1- Aug. 18, 2017 release to plaintiff, # 4 Exhibit Exhibit 2 - Kelly declaration)(Alcorn, Daniel) (Entered: 11/13/2017)
2017-11-15		MINUTE ORDER: In light of the recent assignment of this case to Judge McFadden, the parties are advised that the pre-existing schedule for this case remains in effect. The parties shall comply with all deadlines as previously ordered. SO ORDERED. Signed by Judge Trevor N. McFadden on November 15, 2017. (lctnm2) (Entered: 11/15/2017)
2017-12-05	22	Consent MOTION for Extension of Time to File Response/Reply as to 19 MOTION for Summary Judgment , 21 Cross MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Taaffe, Damon) (Entered: 12/05/2017)
2017-12-06		MINUTE ORDER granting Defendant's 22 Consent Motion for Extension of Time, for good cause shown. Defendant shall now file its reply in support of its motion for summary judgment and opposition to plaintiff's cross-motion by December 20, 2017, and Plaintiff shall file its reply by January 12, 2018. SO ORDERED. Signed by Judge Trevor N. McFadden on 12/6/2017. (lctnm2) (Entered: 12/06/2017)
2017-12-06		Set/Reset Deadlines: Defendant's reply in support of its Motion for Summary Judgment and opposition to Plaintiff's Cross-Motion due by 12/20/2017. Plaintiff's reply in support of its Cross-Motion due by 1/12/2018. (hmc) (Entered: 12/06/2017)
2017-12-18	23	Consent MOTION for Extension of Time to File Response/Reply as to 19 MOTION for Summary Judgment , 21 Cross MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Taaffe, Damon) (Entered: 12/18/2017)
2017-12-19		MINUTE ORDER. Upon consideration of defendant's consent motion for an extension of time to file (i) its reply in support of its motion for summary judgment regarding the adequacy of its search and (ii) its opposition to plaintiff's cross-motion for summary judgment, the motion is GRANTED. Defendant shall file its reply and opposition to plaintiffs cross-motion by January 19, 2018, and plaintiff shall file its reply by February 18, 2018. SO ORDERED. Signed by Judge Trevor N. McFadden on 12/19/2017. (lctnm2) (Entered: 12/19/2017)
2017-12-20		Set/Reset Deadlines: Defendant's reply in support of its Motion for Summary Judgment and opposition to Plaintiff's Cross-Motion due by 1/19/2018. Plaintiff's reply in support of its Cross-Motion due by 2/18/2018. (hmc) (Entered: 12/20/2017)
2018-01-19	24	REPLY to opposition to motion re 19 MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Declaration)(Taaffe, Damon) (Entered: 01/19/2018)
2018-01-19	25	RESPONSE re 21 Cross MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Declaration, # 2 Response to Statement of Material Facts)(Taaffe, Damon) (Entered: 01/19/2018)
2018-02-20	26	REPLY to opposition to motion re 21 Cross MOTION for Summary Judgment filed by ASSASSINATION ARCHIVES AND RESEARCH CENTER. (Attachments: # 1 Exhibit 1 - Politico Magazine Article, # 2 Exhibit 2 - Statement of White House Counsel)(Alcorn, Daniel) (Entered: 02/20/2018)
2018-04-25	27	STANDING ORDER Establishing Procedures for Cases Before Judge Trevor N. McFadden. The parties are hereby ORDERED to read and comply with the directives in the attached standing order. Courtesy copies are excused for all filings predating the entry of this Standing Order. Signed by Judge Trevor N. McFadden on 4/25/18. (lctnm2) (Entered: 04/25/2018)
2018-07-17	28	MEMORANDUM OPINION regarding the Defendant's 19 Motion for Summary Judgment and the Plaintiff's 21 Cross Motion for Summary Judgment. Signed by Judge Trevor N. McFadden on 7/17/2018. (lctnm2) (Entered: 07/17/2018)
2018-07-17	29	ORDER. For the reasons stated in the 28 Memorandum Opinion, the Defendant's 19 Motion for Summary Judgment is GRANTED, and the Plaintiff's 21 Cross Motion for Summary Judgment is DENIED. Signed by Judge Trevor N. McFadden on 7/17/2018. (lctnm2) (Entered: 07/17/2018)
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