CANNING v. U.S. DEPARTMENT OF JUSTICE
Filing
74
MEMORANDUM OPINION to the Order denying Plaintiff's Third Motion for Discovery, Plaintiff's Motion to Submit a Supplement to His Reply in Support of Partial Summary Judgment; and Plaintiff's Motion for Limited In Camera Review. Signed by Judge Gladys Kessler on 4/25/17. (CL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GEORGE CANNING,
Civil Action No. 11-1295(GK)
Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
On December 15, 2013,
the Parties completed briefing cross-
motions for summary judgment on Plaintiff's Freedom of Information
Act
("FOIA")
Plaintiff
claims,
filed
a
5 U.S.C.
series
of
522 et seq. On January 2,
ยง
motions:
( 1)
a
2014,
Third Motion
for
Discovery and for a Stay of the Case While Discovery Is Conducted
("Mot. Disc.")
[Dkt. No. 66],
(2) a Motion to Submit a Supplement
to His Reply in Support of Partial Summary Judgment ("Mot. Supp.")
[Dkt. No. 67], and (3) a Motion for Limited In Camera Review ("Mot.
In
Camera
Opposition
Review" )
on
[Dkt.
January
15,
No.
6 8]
2014
Defendant
("Opp'n")
filed
[Dkt.
an omnibus
No.
69]
and
Plaintiff declined to file a Reply. For the reasons provided below,
the Court shall deny each of Plaintiff's motions.
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I.
Plaintiff's Third Motion for Discovery
In his Third Motion for Discovery,
limited
discovery
is
necessary
to
Plaintiff contends that
complete
Defendant's Motion for Summary Judgment.
discovery Plaintiff seeks concerns:
(1)
his
Mot.
opposition
Disc.
at 1.
to
The
the presence of Lyndon
LaRouche's name on files provided to Plaintiff in response to his
September 2007
receipt
of
FOIA request;
FOIA requests
and
made
to
(2)
the
Defendant's alleged nonFBI' s
headquarters.
See
generally id.
As
this Court explained when it denied Plaintiff's Second
Motion for Discovery, discovery is rarely allowed in FOIA actions.
Wheeler v. C.I.A., 271 F. Supp. 2d 132, 129 (D.D.C. 2003). If the
Court deems the declarations of an agency deficient, then it may
request that the agency supplement those disclosures rather than
order discovery. Hall v. C.I.A.,
881 F. Supp. 2d 38,
73
(D.D.C.
2012) .
This Court has already concluded that additional discovery
would not be appropriate in this case in view of the pending crossmotions for summary judgment. See Op. at 2 [Dkt. No. 44]. Because
the subjects of Plaintiff's most recent discovery motion have been
extensively briefed by the Parties, much of the discovery sought
may well be rendered moot after the Court resolves the pending
Motions for Summary Judgment. Moreover, Plaintiff admits that the
-2-
discovery
he
seeks
"is
derived
from
interrogatories and document requests"
the
~
previously-submitted
discovery requests this
Court has twice denied. Not only is it clear that at least some of
the information that Plaintiff seeks is irrelevant or protected by
various
FOIA
exemptions,
but
Plaintiff
has
not
offered
an
explanation as to why circumstances have changed since the Court's
previous denials so that discovery at this late stage in the case
is
now
warranted.
Accordingly,
Plaintiff's
Third
Motion
for
Additional Discovery shall be denied.
II.
Plaintiff's Motion to Submit a Supplement to His Reply
Plaintiff also requests that the Court permit him to file a
Supplement to his Reply in Support of his Cross-Motion for Partial
Summary Judgment. Plaintiff explains that "he discovered on a rereading of Mr. Hardy's Fourth Declaration ... that defendant has
made a
substantial change in its factual account regarding the
2007 FOIA request to FBI Headquarters." Mot. Supp. at 1. Plaintiff
"would like to bring this to the Court's attention, in the event
it also missed that change on its first reading of the Fourth Hardy
Declaration." Id.
Plaintiff,
in short,
seeks to file a
surreply.
A district
court "may grant leave to file a surreply at its discretion." Am.
Forest & Paper Ass'n, Inc. v. E.P.A., 1996 WL 509601, at *3 (D.D.C.
1996).
"The standard for granting leave to file a
-3-
surreply is
whether the party making the motion would be unable to contest
matters presented to the court for the first time in the opposing
party's reply." Lewis v. Rumsfeld,
154 F.Supp.2d 56,
61
(D.D.C.
001); see also Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C.
Cir. 2003)
(quoting Lewis, 154 F.Supp.2d at 61).
Plaintiff has not alleged that Defendant raised new arguments
or issues for the first time in his Reply in Support of its Motion
for Summary Judgment and Opposition to Plaintiff's Cross-Motion
for Partial Summary Judgment. On the contrary, Plaintiff explains
that he merely encountered information "on a re-reading of Mr.
Hardy's
Fourth Declaration"
that
he wished
"to bring ... to
the
Court's attention [.]" Mot. Supp. at 1. Even if Defendant had raised
new arguments
in its motion,
Plaintiff,
as
the
last party to
respond pursuant to the summary judgment briefing schedule,
had
ample opportunity to address those arguments in his Reply Motion.
For this reason, and in light of the fact that the Court already
afforded Plaintiff an opportunity to supplement his Opposition
Motion, see Minute Entry of Sept. 10, 2013, the Court shall deny
Plaintiff's Motion to Submit a Supplement to His Reply in Support
of Partial Summary Judgment.
III. Plaintiff's Motion for Limited In Camera Review
Plaintiff moves the Court to conduct an in camera review of
the
FBI's
withholdings
under
FOIA
-4-
Exemption
7(E)
because
he
suspects
that
the
FBI
has
improperly
withheld
material
that
demonstrates well-known or illegal investigative techniques. See
Mot. In Camera Review at 1.
Whether in camera inspection of contested FOIA material is
appropriate is a question that lies within the district court's
discretion. See Ctr.
for Auto Safety v. E.P.A.,
731 F.2d 16, 22
(D.C. Cir. 1984). "[W]hen the agency meets its burden [under FOIA]
by means of affidavits, in camera review is neither necessary nor
appropriate."
Id.
at
23.
A court
sufficient if they "show,
may
find
affidavits
with reasonable specificity,
to
be
why the
documents fall within the exemption," are not "conclusory ... too
vague or sweeping," and "there is no evidence in the record of
agency bad faith."
Id.
(citing Hayden v. N.S.A.,
608 F.2d 1381,
1387 (D.C. Cir. 1979)).
In this
support
of
extensive
exemptions.
affidavits,
case,
its
Motion
detail,
In
the
for
of
filed numerous
Summary
Judgment
applicability
reviewing
the Court has
agency bad faith.
withholding
Defendant has
the
pleadings
that
the
and
justify,
asserted
in
in
FOIA
accompanying
found no evidence or allegations of
Furthermore,
material
of
affidavits
the appropriateness of the FBI's
documenting
certain
investigative
techniques is an issue that has been well-briefed by the Parties
in their cross-motions for summary judgment.
-5-
In his Motion for
Limited
In
Camera Review,
issues. Accordingly,
Plaintiff
does
not
raise
any novel
the Court will resolve the pending summary
judgment motions and deny Plaintiff's Motion for Limited In Camera
Review.
IV.
CONCLUSION
For
the
foregoing
reasons,
Plaintiff's
Third
Motion
for
Discovery and for a Stay of the Case While Discovery is Conducted,
Motion to Submit a Supplement to His Reply In Support of Partial
Summary Judgment, and Motion for Limited In Camera Review shall be
denied. An Order shall accompany this Memorandum Opinion.
April
r;;}_f,
2 01 7
Gladys Kesser
United States District Judge
Copies to: attorneys on record via ECF
and to
George Canning
60 Sycolin Road
Leesburg, VA 20175
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