Hopkins v. Department of Defense
Filing
47
MEMORANDUM OPINION AND ORDER. The Court GRANTS the DOD's 32 motion to dismiss or for summary judgment, and all of Hopkins' claims are hereby dismissed with prejudice. Further, Hopkins' 35 unopposed motion to stay is DENIED AS MOOT; Hopkins' 37 partially unopposed motion to stay, is DENIED, and thus, Hopkins' 38 motion to unseal, and Hopkins' 42 motion to authorize, are DENIED AS MOOT. (Ordered by Judge Ada Brown on 3/25/2024) (cfk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROBERT HOPKINS, III,
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Plaintiff,
v.
DEPARTMENT OF DEFENSE,
Defendant.
Civil Action No. 3:22-CV-00706-E
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Department of Defense’s (the “DOD”) Motion to Dismiss
and for Summary Judgment seeking dismissal or judgment on all of Plaintiff Robert Hopkins III’s
(“Hopkins”) claims. (ECF No. 32). After reviewing the Parties’ briefing, appendices, and
applicable law, the Court GRANTS the DOD’s Motion and dismisses with prejudice all of
Hopkins’ claims.
I.
A.
BACKGROUND
Statutory and Regulatory Background
This case concerns an ex-Air Force Officer, Hopkins, who is attempting to publish certain
manuscripts containing allegedly classified information pertinent to the DOD. In order to
understand the facts of this case, it is first necessary to give a general overview of the
prepublication review process of such manuscripts.
Any person who possesses a security clearance to access classified national security
information must sign a Non-Disclosure Agreement (“NDA”) agreeing, inter alia,
to submit any documents related to his/her national security employment for
prepublication review before publishing them. The two most common NDAs for
classified information are the SF-312 (governing all classified information) and
Form 4414 (governing a subset known as Sensitive Compartmented
MEMORANDUM OPINION AND ORDER
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Information). An author generally submits a document to the agency which
sponsors (or sponsored) his/her security clearance. Each agency generally has a
specific office responsible for conducting prepublication review, although
prepublication review is often not the sole responsibility of such an office. For
example, DOPSR [the Defense Office of Prepublication and Security Review
(hereinafter “DOPSR”)] is responsible for coordinating prepublication review
across DOD, but it does not perform any review itself. The DOD prepublication
review system is primarily governed by DOD Instruction (“DODI”) 5230.09,
Clearance of DoD Information for Public Release, and DODI 5230.29, Security
and Policy Review of DoD Information for Public Release. SAF/PA [United States
Air Force Office of Public Affairs (hereinafter “SAF/PA”)] is responsible for
conducting prepublication review for the United States Air Force (“Air Force”).
In addition to the DOD authorities listed above, the Air Force prepublication review
system is primarily governed by Air Force Instruction (“AFI”) 35-101, Public
Affairs Operations, Chapter 9; AFI 35-102, Security and Policy Review Process;
and Air Force Manual (“AFMAN”) 35-101, Public Affairs Procedures, Chapter 8.
The standard operating procedure for current and former Air Force personnel is to
submit manuscripts to SAF/PA, which will usually complete its prepublication
review within approximately two weeks. If SAF/PA determines that the manuscript
requires coordination with other DOD components or other agencies, it may refer
the manuscript to DOPSR after completing its review. Otherwise it will issue a
response to the author granting permission to publish all or part of the manuscript
or denying permission to publish any information. SAF/PA will also refer a
manuscript to DOPSR if it: “a. Originates or is proposed for release in the National
Capital Region by senior personnel (e.g., general or flag officers and Senior
Executive Service) on sensitive political or military topics; b. Is or has the potential
to become an item of national or international interest; c. Affects national security
policy, foreign relations, or ongoing negotiations; d. Concerns a subject of potential
controversy among the DoD Components or with other federal agencies; e. Is
presented by a DoD employee who, by virtue of rank, position, or expertise, would
be considered an official DoD spokesperson; or f. Contains technical data” (“3-1
Criteria”). If an author knows in advance that a manuscript will require
coordination with several DOD components or meets one of the 3-1 Criteria, the
author may submit the manuscript directly to DOPSR. DOPSR will not complete
its prepublication review in fewer than sixty days, and it maintains that it is not
required to complete its review within any set time limit. After DOPSR completes
its coordination with any DOD components that it deems relevant to a manuscript,
it will issue a response to the author granting permission to publish all or part of
the manuscript or denying permission to publish any information. Manuscript
submissions to SAF/PA must be accompanied by a standardized form. Manuscript
submissions to DOPSR must be accompanied by a cover letter, although there is no
standardized format. Both SAF/PA and DOPSR perform a two- step review of
submitted manuscripts— identified as “security review” and “policy review”—
although the scope of review differs subtly between the components. According to
SAF/PA, “The purpose of the security review is to protect classified information,
controlled unclassified sensitive information, or unclassified information that may
MEMORANDUM OPINION AND ORDER
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individually or in aggregate lead to an unauthorized disclosure or controlled
unclassified information which can adversely impact national and operational
security. The purpose of the policy review is to ensure no conflict exists with
established AF, DoD, or other U.S. Government agency policies.” Upon
information and belief, SAF/PA conducts both types of review of all submitted
manuscripts. According to DOPSR, “The security review protects classified
information, controlled unclassified information, or unclassified information that
may individually or in aggregate lead to the compromise of classified information
or disclosure of operations security. The policy review ensures that no conflict
exists with established policies or programs of the DoD or the U.S. Government.”
Upon information and belief, DOPSR conducts both types of review of manuscripts
submitted by current DOD employees, but only conducts a security review of
manuscripts submitted by former DOD employees. It is not uncommon for
authors to be represented by counsel during the prepublication review process, both
in DOD and across the Executive Branch. It is common for such counsel to submit
their clients’ manuscripts for prepublication review and correspond with the
respective prepublication review offices on their clients’ behalf, especially if the
client has no reason to believe the manuscript contains any classified information.
The undersigned and other private attorneys who represent authors have submitted
clients’ manuscripts for prepublication review to various agencies and represented
those clients in the prepublication review process without objections from the
agencies.
(ECF No. 1 at 2-5).
B.
Factual Background
Hopkins brings this action against the DOD pursuant to the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701; the Federal Declaratory Judgment Act, 28 U.S.C. § 2201; the All Writs
Act, 28 U.S.C. § 1651; and the First Amendment of the Constitution of the United States. (ECF
No. 1). From 1983-1991, Hopkins served in the Air Force. (ECF No. 1 at 5). At the time of his
honorable discharge in 1991 with the rank of Captain, Hopkins had a Top Secret security clearance
with access to Sensitive Compartmented Information (“TS/SCI”). (ECF No. 1 at 5). This case
involves seven manuscripts Hopkins submitted to SAF/PA or DOPSR for prepublication review:
(1) Klaxon! Strategic Air Command Alert During the Cold War (“Klaxon!”); (2) “Searching for
Mobile ICBMS”; (3) Crowded Skies: Cold War Reconnaissance Over the Baltic (“Crowded
Skies”); (4) “Bring Back the Looking Glass? Do We Need 24/7 Airborne Command Posts?”
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(“Bring Back the Looking Glass”); (5) “Effectiveness of the Air Force”; (6) “Why 15 Minutes
Is Irrelevant”; and (7) “DoD Prepublication Review: A Broken, Arbitrary System Predisposed to
Rejection” (“DoD Prepublication Review”).
On December 14, 2020, Hopkins personally submitted the manuscript for Klaxon! to
SAF/PA for prepublication review. (ECF No. 1 at 7). As alleged, Klaxon! did not require
coordination with other DOD components or meet any of the 3-1 Criteria. (ECF No. 1 at 7). After
receiving no response from SAF/PA for over six months, Hopkins contacted them on July 8, 2021,
the same day SAF/PA acknowledged the submission of Klaxon!. (ECF No. 1 at 7-8). SAF/PA
stated that “due to the content of his manuscript, it will also need to be reviewed by [DOPSR].”
(ECF No. 1 at 8). On July 26, 2021, SAF/PA completed its review of Klaxon! and referred the
manuscript to DOPSR. (ECF No. 1 at 8). DOPSR then referred Klaxon! to three DOD components.
(ECF No. 1 at 8). Allegedly, Hopkins emailed DOPSR multiple times about Klaxon! in the months
following the referral and never received a response. (ECF No. 1 at 9).
On October 6, 2021, Hopkins submitted through counsel the manuscript for Crowded Skies
to DOPSR for prepublication review. (ECF No. 1 at 11). On October 18, 2021, DOPSR replied to
Hopkins acknowledging receipt of the submission of Crowded Skies and stating that DOPSR does
not work with an author’s legal counsel, and that Hopkins would need to contact DOPSR directly.
(ECF No. 1 at 11-12). The email also provided that “[f]ailure to provide this information will result
in the denial of Security Review of this manuscript and administrative closure of this case.” (ECF
No. 1 at 12). After receiving no response from Hopkins, DOPSR emailed Hopkins’ counsel on
November 23, 2021, stating that DOPSR was closing the case based on the failure to respond.
(ECF No. 1 at 12).
On January 6, 2022, Hopkins submitted through counsel a blog article titled “Searching for
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Mobile ICBMs” for prepublication review. (ECF No. 1 at 10). On January 14, 2022, Hopkins’
counsel submitted the following four articles: “Bring Back the Looking Glass?”; “Effectiveness of
the Air Force”; “Why 15 Minutes Is Irrelevant”; and “DoD Prepublication Review” to DPOSR
and informed DPOSR that “all correspondence regarding these submissions must be directed to
me.” (ECF No. 1 at 12). As alleged, none of these manuscripts required coordination with other
DOD components or meet any of the 3-1 Criteria. (ECF No. 1 at 10-17). DPOSR replied on
January 14, 2022, asking for cover letters for all submissions, which Hopkins’ counsel promptly
submitted. (ECF No. 1 at 13). In the cover letter for Crowded Skies, Hopkins’ counsel contended
that DPOSR’s action was unreasonable and advised “that we [Hopkins] would seek judicial review
of DOPSR’s denial if DPOSR did not expeditiously conduct a prepublication review of Crowded
Skies.” (ECF No. 1 at 13). Further, on January 21, 2022, Hopkins’ counsel emailed SAF/PA to
confirm receipt of “Searching for Mobile ICBMs.” (ECF No. 1 at 10). SAF/PA replied that same
day stating that the article was forwarded to DOPSR for processing and that all of Hopkins’ future
submission requests should be forwarded directly to DOPSR for security and policy review
processing. (ECF No. 1 at 10).
On February 28, 2022, DOPSR Chief George Sturgis (“Sturgis”) sent the following email
(“Sturgis Email”) to Hopkins’ counsel:
We note that you have submitted several prepublication review requests on behalf
of your client, Dr. Hopkins, most recently on January 14, 2022. An Action Officer
emailed you last fall regarding Dr. Hopkins’ second book submission [Crowded
Skies] informing you that DOPSR needed the author’s contact info, and that
DOPSR could not start the review without his information. As you did not
respond to multiple requests, DOPSR closed Dr. Hopkins’ book submission on
November 24, 2021. You have indicated that you are the sole correspondent for Dr.
Hopkins’ submissions, and that DOPSR is not right to administratively close any
of the submissions. This is incorrect. As Dr. Hopkins is the author, held a
security clearance, and has the prepublication obligation, he has the institutional
responsibility and legal requirement to ensure that there is no non-public DoD
information in the submissions. DoD’s relationship is with the author, not his
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legal representative. Failure of the author to correspond with the DoD evades the
intent of the prepublication review process to not disclose non-public DoD
Information. Our insistence on this process is standard DoD policy. To underscore the
seriousness of this matter, reviewing components have identified instances of nonpublic information in Dr. Hopkins’ first book submission, and based on the subject of
the submissions, there is a likelihood that the second book and articles contain nonpublic DoD information. Providing this material to you is a violation of Dr.
Hopkins’ non-disclosure agreement. This violation could result in an Unauthorized
Disclosure investigation by the Defense Counterintelligence and Security Agency.
DoD’s continued engagement with you perpetuates and endorses this unauthorized
disclosure of DoD information by sanctioning your unauthorized access to the
author’s submissions. Hence, we are closing all of Dr. Hopkins’ requests until
he contacts our office.
(ECF No. 1 at 14-15). Thus, pursuant to the Sturgis Email, DPOSR administratively closed all of
Hopkins’ submissions because counsel did not provide contact information for Hopkins.
At some point after the Sturgis Email, DOPSR obtained the requisite contact information for
Hopkins and completed the review of his manuscripts. (ECF No. 32-3 at 14).
C.
Procedural Framework
Hopkins initiated this lawsuit on March 27, 2022, asserting eleven causes of action against
the DOD under the First Amendment and the APA: (1) SAF/PA’s referral of Klaxon! to DOPSR;
(2) SAF/PA’s referral of “Searching for Mobile ICBMS” to DOPSR; (3) SAF/PA’s refusal to
accept submissions; (4) DOPSR’s administrative closure of Klaxon!; (5) DOPSR’s administrative
closure of “Searching for Mobile ICBMS; (6) DOPSR’s administrative closure of Crowded Skies;
(7) DOPSR’s administrative closure of “Bring Back the Looking Glass?”; (8) DOPSR’s
administrative closure of “Effectiveness of the Alert Force”; (9) DOPSR’s administrative closure
of “Why 15 Minutes Is Irrelevant”; (10) DOPSR’s administrative closure of “DOD Prepublication
Review”; and (11) DOPSR’s refusal to accept counsel’s submissions. (ECF No. 1).
On October 4, 2023, the DOD filed its motion to dismiss and for summary judgment
seeking dismissal or judgment on all of Hopkins’ claims, (ECF No. 32), along with its brief in
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support, (ECF No. 32-1), and unclassified appendix, (ECF No. 32-3). Hopkins filed a motion for
extension of time to file response on October 23, 2023, (ECF No. 33), which the Court granted on
October 24, 2023, (ECF No. 34), extending Hopkins’ deadline to respond to January 5, 2024.
However, instead of filing a response by this deadline, on January 3, 2024, Hopkins filed an
unopposed motion to stay briefing of the DOD’s motion to dismiss and for summary judgment
pending the Court’s resolution of Hopkins’ forthcoming two procedural motions. (ECF No. 35).
Later that same day, Hopkins filed a partially unopposed motion to stay briefing of the DOD’s
motion to dismiss and for summary judgment pending the Court’s resolution of Hopkins’
forthcoming two procedural motions, corrected to accurately reflect the DOD’s position on the
motion. (ECF No. 37). Thus, Hopkins’ first motion to stay is DENIED AS MOOT. (ECF No. 35).
On January 5, 2024, Hopkins filed one of the aforementioned procedural motions: a motion
to unseal the DOD’s motion to dismiss for lack of jurisdiction or for summary judgment, (ECF
No. 38). On January 24, 2024, the DOD responded to Hopkins’ motion to stay briefing, (ECF No.
37), and Hopkins’ motion to unseal, (ECF No. 38). (ECF No. 39). Hopkins replied in two separate
filings on February 7, 2024. (ECF Nos. 40-41). Additionally, on February 12, 2024, Hopkins filed
the second of the aforementioned motions: a motion to authorize his counsel to access his intended
evidence. (ECF No. 42). The DOD responded to this motion on March 4, 2024. (ECF No. 43).
The Court gave Hopkins a lengthy extension to respond to the DOD’s motion to dismiss
and for summary judgment, and rather than file a response in this period of over two months,
Hopkins waited until two days before the deadline to file a motion to stay. Not only is this motion
to stay not a response, but the Court also DENIES Hopkins’ motion to stay. (ECF No. 37).
Thus, Hopkins motion to unseal, (ECF No. 38), and Hopkins’ motion to authorize, (ECF No. 42),
are DENIED AS MOOT. Further, since the deadline has passed to respond to the DOD’s motion
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to dismiss and for summary judgment, the Court must conclude that Hopkins has wholly failed to
respond. Thus, the DOD’s motion to dismiss and for summary judgment is ripe for consideration.
II. LEGAL STANDARD
A.
12(b)(1) Motion to Dismiss
A district court properly dismisses a claim for lack of subject-matter jurisdiction under
Federal Rule of Civil Procedure Rule 12(b)(1) if the court “lacks the statutory or constitutional
power to adjudicate the claim.” In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (Miss.
Plaintiffs), 668 F.3d 281, 286 (5th Cir. 2012) (citation omitted). “The burden of proof for a Rule
12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United States, 281
F.3d 158, 191 (5th Cir. 2001). A court may dismiss for lack of subject-matter jurisdiction based
on: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or
(3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”
Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
B.
Summary Judgment
Summary judgment is appropriate when the pleadings and evidence on file show “there is
no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.” Anderson, 477 U.S. at 248. A court must view all evidence
and draw all reasonable inferences in the light most favorable to a party opposing a summary
judgment motion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). A court
“may not make credibility determinations or weigh the evidence” in ruling on the motion. Reeves,
530 U.S. at 150; Anderson, 477 U.S. at 254-55. Moreover, the evidence the non-movant provides
must raise “more than . . . some metaphysical doubt as to the material facts.” Matsushita Elec.
MEMORANDUM OPINION AND ORDER
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Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The evidence must be such that a jury could
reasonably find in the non-movant’s favor. Anderson, 477 U.S. at 248. If the non-movant is unable
to make such a showing, the court must grant summary judgment. Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994).
The moving party bears the initial burden of showing the court there is no genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party with the burden of proof on
an issue “must establish beyond peradventure all of the essential elements of the claim or defense
to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)
(emphasis omitted). When, as here, a nonmovant bears the burden of proof, the movant may
demonstrate it is entitled to summary judgment either by (1) submitting evidence that negates the
existence of an essential element of the nonmovant’s claim or affirmative defense, or (2) arguing
there is no evidence to support an essential element of the nonmovant’s claim or affirmative
defense. Celotex, 477 U.S. at 322–25 (emphasis added). There is “no genuine issue as to any
material fact [if] a complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323; see generally
Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F.Supp. 943, 962 (N.D. Tex. 1995)
(quoting Fontenot, 780 F.2d at 1194) (discussing affirmative defenses).
Once the movant has made this showing, the burden shifts to the nonmovant to establish
there is a genuine issue of material fact so that a reasonable jury might return a verdict in its favor.
Celotex, 477 U.S. at 324. “[C]onclusory allegations, speculation, and unsubstantiated assertions”
will not satisfy the nonmovant’s burden. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1429 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1). A
court “resolve[s] factual controversies in favor of a nonmoving party . . . only when an actual
MEMORANDUM OPINION AND ORDER
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controversy exists, that is, when both parties have submitted evidence of contradictory facts.”
Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999). When a plaintiff fails to
defend a claim in response to a summary judgment motion, the claim is deemed abandoned. See
Black v. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (concluding that the plaintiff
abandoned her retaliatory abandonment claim when she failed to defend the claim in response to
a motion to dismiss).
“A party opposing such a summary judgment motion may not rest upon mere allegations
contained in the pleadings, but must set forth and support by summary judgment evidence specific
facts showing the existence of a genuine issue for trial.” Ragas v. Tennessee Gas Pipeline Co., 136
F.3d 455, 458 (5th Cir. 1998) (citing Anderson, 477 U.S. at 255–57). The Fifth Circuit has
explained:
The party opposing summary judgment is required to identify specific evidence in
the record and to articulate the precise manner in which that evidence supports his
or her claim.... “Rule 56 does not impose upon the district court a duty to sift
through the record in search of evidence to support a party’s opposition to summary
judgment.” Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n. 7 (5th
Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992).
Ragas, 136 F.3d at 458. Regarding assertions of fact, Federal Rule of Civil Procedure 56 states:
[i]f a party fails ... to properly address another party’s assertion of fact as required
by Rule 56(c), the court may ... (2) consider the fact undisputed for purposes of the
motion [and] (3) grant summary judgment if the motion and supporting materials—
including the facts considered undisputed—show that the movant is entitled to it[.]
Fed. R. Civ. P. 56(e)(2)-(3).
III. ANALYSIS
A.
Claim Abandonment
Northern District of Texas Local Civil Rule 7.1(e) instructs that “[a] response and brief to
an opposed motion must be filed within 21 days from the date the motion is filed.” N.D. Tex. Loc.
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Civ. R. 7.1(e). A party who fails to pursue a claim beyond its initial pleading may waive or abandon
the claim. Black v. N. Panola School Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (“[Plaintiff]
further failed to defend her retaliatory abandonment claim in both responses to the defendant’s
motion to dismiss.”). Thus, a party’s failure to defend a claim in her response to a motion to dismiss
constitutes abandonment. See Matter of Dallas Roadster, Ltd., 846 F.3d 112, 126 (5th Cir. 2017)
(concluding plaintiff’s failure to respond to defendant’s argument in a motion to dismiss
constituted abandonment) (citing Black, 461 F.3d at 588 n.1); see, e.g., Vela v. City of Houston,
276 F.3d 659, 678-79 (5th Cir. 2001) (discussing abandonment of theories of recovery and
defenses when such theories were not presented to the trial court).
Here, Hopkins failed to respond to the DOD’s motion to dismiss and for summary
judgment—the Court granted Hopkins a lengthy extension past 21 days to respond, and Hopkins
failed to do so. See N.D. Tex. Loc. Civ. R. 7.1(e). Although Hopkins filed a motion for extension
of time to file a response to the DOD’s motion, which the Court granted and allowed Hopkins until
January 5, 2024, to file his response, Hopkins instead filed only a last-ditch effort motion to stay
briefing—which is not a response. Because Hopkins wholly failed to respond to the DOD’s
challenge to subject-matter jurisdiction on all his claims, the Court concludes Hopkins has
abandoned all his claims. See Black, 461 F.3d at 588 n.1; Matter of DallasRoadster, Ltd., 846 F.3d
at 126; Vela, 276 F.3d at 678-79. 1 Thus, the Court GRANTS the DOD’s motion to dismiss and for
1
See also, e.g., JMCB, LLC v. Bd. of Com. & Indus., 336 F. Supp. 3d 620, 634 (M.D. La. 2018) (“[F]ailure to brief
an argument in the district court waives that argument in that court.”) (quoting Magee v. Life Ins. Co. of N. Am.,
261 F. Supp. 2d 738, 748 n.10 (S.D. Tex. 2003)) (citations omitted); Kellam v. Servs., No. 12-352, 2013 WL
12093753, at *3 (N.D. Tex. May 31, 2013), aff'd sub nom. Kellam v. Metrocare Servs., 560 F. App'x 360 (5th Cir.
2014) (“Generally, the failure to respond to arguments constitutes abandonment or waiver of the issue.”) (citations
omitted); Mayo v. Halliburton Co., No. 10-1951, 2010 WL 4366908, at*5 (S.D. Tex. Oct. 26, 2010) (granting
motion to dismiss breach of contract claim because plaintiff failed to respond to defendants' motion to dismiss on
this issue and thus waived the argument).
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summary judgment. (ECF No. 32).
B.
Lack of Subject-Matter Jurisdiction
Notwithstanding Hopkins’ abandonment discussed above, the DOD argues that Hopkins
lacks subject-matter jurisdiction because his claims are nonjusticiable. (ECF No. 32-1).
Specifically, the DOD asserts that Hopkins’ “claims are moot as to the manuscripts listed in the
Complaint, which have already completed prepublication review.” (ECF No. 32-1 at 24). Thus,
the DOD asserts that all of Hopkins’ causes of action except for the third, are moot. (ECF No. 321 at 24). Additionally, the DOD argues that “to the extent he [Hopkins] intends to challenge the
procedures that may be used to review other, hypothetical manuscripts in the future, he lacks
standing to do so, and his claims are not ripe.” (ECF No. 32-1 at 24). Thus, the DOD asserts that
Hopkins lacks standing to assert his third and eleventh causes of action, and such challenges are
unripe. (ECF No. 32-1 at 27).
“The justiciability of an issue [] is determined by the doctrines of standing, mootness, and
ripeness.” Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5th Cir. 1998). “Mootness is ‘the
doctrine of standing in a time frame. The requisite personal interest that must exist at the
commencement of litigation (standing) must continue throughout its existence (mootness).’” Ctr.
for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006) (quoting U.S. Parole
Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)). If a case has been rendered moot, a federal court
has no constitutional authority to resolve the issues it presents—the court lacks subject-matter
jurisdiction. In re Scruggs, 392 F.3d 124, 128 (5th Cir. 2004). Thus, before considering any other
matters raised in the case, the court is obligated to “resolve the standing question as a threshold
matter of jurisdiction.” Cole v. Gen. Motors Corp., 484 F.3d 717, 721 (5th Cir. 2007).
“As a general rule, any set of circumstances that eliminates actual controversy after the
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commencement of a lawsuit renders that action moot.” Env’t Conservation Org. v. City of Dallas,
529 F.3d 519, 527 (5th Cir. 2008). “As long as the parties maintain a concrete interest in the
outcome and effective relief is available to remedy the effect of the violation”—the case should not
be declared moot. Dailey, 141 F.3d at 227. But a case will become moot where “there are no longer
adverse parties with sufficient legal interests to maintain the litigation” or “when the parties lack
a legally cognizable interest in the outcome” of the litigation. In re Scruggs, 392 F.3d at 128. “As
the Supreme Court has noted, ‘it is not enough that a dispute was very much alive when the suit
was filed; ... [t]he parties must continue to have a personal stake in the outcome of the lawsuit.’”
Env’t Conservation Org., 529 F.3d at 527 (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477–
78 (1990)).
The essence of standing is “whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). To
establish standing under Article III of the Constitution, a plaintiff must demonstrate: “(1) it has
suffered, or imminently will suffer, a concrete and particularized injury-in-fact; (2) the injury is
fairly traceable to the defendant’s conduct; and (3) a favorable judgment is likely to redress the
injury.” Houston Chronicle Publ’g Co. v. City of League City, Tex., 488 F.3d 613, 617 (5th Cir.
2007). The injury-in-fact element requires a plaintiff show that he “has sustained or is immediately
in danger of sustaining some direct injury as the result of the challenged official conduct and the
injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” Roark
& Hardee LP v. City of Austin, 522 F.3d 533, 542 (5th Cir. 2008) (emphasis omitted).
Additionally, a plaintiff’s claims must be ripe for adjudication. Roark & Hardee LP, 522
F.3d at 544. As stated by the Supreme Court, the “ripeness doctrine is drawn both from Article III
limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.”
MEMORANDUM OPINION AND ORDER
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Reno v. Catholic Social Servs., Inc., 509 U.S. 43, 57 n. 18 (1993). To assess whether a case is ripe,
the Supreme Court has stated that the key considerations are “the fitness of the issues for judicial
decision and the hardship to the parties of withholding court consideration.” Monk v. Houston, 340
F.3d 279, 282 (5th Cir. 2003). “A court should dismiss a case for lack of ripeness when the case is
abstract or hypothetical.” Monk, 340 F.3d at 282.
As to the DOD’s assertion that Hopkins’ procedural claims—causes of action one, two,
and four through eleven 2—are moot to the extent they challenge the manner in which the DOD
reviewed his manuscripts and seek only relief that is unavailable or has already been granted, the
Court agrees. The relief that Hopkins requests as to these claims is to compel SAF/PA or DOPSR
to expedite its review or issue a final determination as to these manuscripts. Specifically, as to
counts one and two Hopkins requests relief in the form of: “(a) a declaratory judgment that SAF/PA
violated Air Force and DOD regulations and the First Amendment by referring” Klaxon! and
“Searching for Mobile ICBMs” to DOPSR; and (b) an injunction compelling SAF/PA to
immediately issues its determinations as final responses to Hopkins. (ECF No. 1 at 19-20).
Additionally, as to counts four through ten alleging administrative closure of multiple of Hopkins’
manuscripts, Hopkins again requests: (a) a declaratory judgment that DOPSR violated DOD
regulations and the First Amendment by administratively closing the manuscripts, and (b) multiple
types of injunctive relief compelling DOPSR to issue final responses as to Hopkins’ manuscripts.
(ECF No. 1 at 23-34). And lastly, as to count eleven, Hopkins requests: (a) a declaratory judgment
that DOPSR’s alleged policy violates DOD regulations and the First Amendment, and (b) an
injunction prohibiting any DOD component from administratively closing a request for
The DOD argues that Hopkins’ eleventh cause of action is moot, unripe, and Hopkins lacks standing to bring it.
Thus, it will be analyzed under all three elements of justiciability.
2
MEMORANDUM OPINION AND ORDER
Page 14 of 17
prepublication review solely due to the fact that a document was submitted by an author client’s
counsel. (ECF No. 1 at 25-36). However, all such relief has already been received—the
prepublication review of all of Hopkins’ manuscripts has been completed. The fact that Hopkins
disagrees with the final determinations rendered—that his manuscripts were administratively
closed; or which department rendered such determinations—SAF/PA’s referral of Hopkins’
manuscripts to DOPSR—does not mean an actual controversy still exists. See Env’t Conservation
Org., 529 F.3d at 527. Moreover, as effective relief is no longer available to remedy the effect of
the violation, causes of action one, two, four, five, six, seven, eight, nine, ten, and eleven must be
declared moot. See Dailey, 141 F.3d at 227 (stating that a case will become moot if no effective
relief is available to remedy the effect of the violation).
The DOD also asserts that Hopkins does not have standing to pursue his third and eleventh
causes of actions, arguing there is no “impending injury.” (ECF No. 32-1 at 29). First, the DOD
argues that Hopkins does not present any evidence as to additional manuscripts he has submitted
or intends to submit in the future. Thus, Hopkins’ third cause of action alleging that Hopkins is
required to submit all future manuscripts directly to DOPSR instead of SAF/PA which will
“deprive[] him of numerous benefits to which he is entitled, including, but not limited, a prompt
review process which respects publishers’ deadlines,” is unfounded. (ECF No. 1 at 21). The
manuscripts that were already referred to the DOPSR have now been decided by the DOPSR, thus
there is no relief left to receive, and the future manuscripts alluded to by Hopkins do not constitute
a concrete and particularized injury-in-fact. See Roark & Hardee LP, 522 F.3d at 542 (the injuryin-fact element requires a plaintiff “show that he or she has sustained or is immediately in danger
MEMORANDUM OPINION AND ORDER
Page 15 of 17
of sustaining some direct injury”). 3 As to Hopkins’ eleventh claim, he asserts:
DOD has an official policy of administratively closing any requests for
prepublication review submitted by an attorney on behalf of an author . . . [and]
[a]s a well-respected author of military history books and articles with a continuing
duty to submit materials for prepublication review, Hopkins will continue to be
harmed by this policy in the future.
(ECF No. 1 at 34-35). Even if Hopkins presented evidence that such policy exists, the injury he
alludes to is “conjectural or hypothetical,” not real and immediate. See Roark & Hardee LP, 522
F.3d at 542 (concluding that “the injury or threat of injury must be both real and immediate”).
Thus, Hopkins lacks standing to bring his third and eleventh causes of action, and these claims must
be dismissed. Further, for these same reasons that Hopkins lacks standing to assert his third and
eleventh causes of action, these claims are also unripe. Because the claims are “abstract or
hypothetical,” they must be dismissed for lack of ripeness. See Monk, 340 F.3d at 282; see also
Neresova v. Suntrust Mortg., Inc., No. 3:11-CV-976-BH, 2011 WL 13127891, at *3 (N.D. Tex.
Nov. 16, 2011) (Dismissal on grounds of ripeness is appropriate when “no irremediabl[y] adverse
consequences flow from requiring a later challenge.”)
In sum, the Court concludes it lacks subject-matter jurisdiction to adjudicate all of Hopkins’
claims, and thus, all of his claims must be dismissed.
IV. CONCLUSION
For the reasons discussed above, the Court GRANTS the DOD’s motion to dismiss or for
summary judgment, (ECF No. 32), and all of Hopkins’ claims are hereby dismissed with
prejudice. Further, Hopkins’ unopposed motion to stay is DENIED AS MOOT, (ECF No. 35);
Hopkins’ partially unopposed motion to stay, (ECF No. 37), is DENIED, and thus, Hopkins’
3
See also Sullo & Bobbit P.L.L.C. v. Abbot, 536 F. App’x 473, 477 (5th Cir. 2013) (“A plaintiff in a declaratory
action may establish injury in fact by establishing actual present harm or a significant possibility of future harm, and
if he relies on future harm he must be immediately in danger of sustaining some direct injury.”)
MEMORANDUM OPINION AND ORDER
Page 16 of 17
motion to unseal, (ECF No. 38), and Hopkins’ motion to authorize, (ECF No. 42), are DENIED
AS MOOT.
SO ORDERED: March 25, 2024.
Ada E. Brown
UNITED STATES DISTRICT JUDGE
MEMORANDUM OPINION AND ORDER
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