Canning v. U.S. Department of Justice ( 2017 )

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") claims, 5 U.S.C. § 522 et seq. On January 2, 2014,
Plaintiff filed a series of motions: ( 1) a 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 Review" ) [Dkt. No. 6 8] Defendant filed an omnibus
Opposition on January 15, 2014 ("Opp'n") [Dkt. 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, Plaintiff contends that
limited discovery is necessary to complete his opposition to
Defendant's Motion for Summary Judgment. Mot. Disc. at 1. The
discovery Plaintiff seeks concerns: (1) the presence of Lyndon
LaRouche's name on files provided to Plaintiff in response to his
September 2007 FOIA request; and (2) Defendant's alleged non-
receipt of FOIA requests made to the FBI' 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 cross-
motions 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
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discovery he seeks "is derived from the previously-submitted
interrogatories and document requests" ~ 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 re-
reading 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 surreply is
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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 Exemption 7(E) because he
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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 may find affidavits to be
sufficient if they "show, with reasonable specificity, 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 case, Defendant has filed numerous affidavits in
support of its Motion for Summary Judgment that justify, in
extensive detail, the applicability of the asserted FOIA
exemptions. In reviewing the pleadings and accompanying
affidavits, the Court has found no evidence or allegations of
agency bad faith. Furthermore, the appropriateness of the FBI's
withholding of material documenting certain investigative
techniques is an issue that has been well-briefed by the Parties
in their cross-motions for summary judgment. In his Motion for
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Limited In Camera Review, Plaintiff does not raise any novel
issues. Accordingly, 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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