Archibald v. U.S. Department of Justice et al

Memorandum in opposition to re MOTION for Order

D.D.C.December 21, 2012

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GEORGE H. ARCHIBALD, ) ) Plaintiff, ) ) vs. ) ) UNITED STATES DEPARTMENT OF ) JUSTICE, ) 1:11-CV-2028 (RBW) ) FEDERAL BUREAU OF INVESTIGATION, ) ) KATHRYN RUEMMLER, ) Counsel to the President ) ) Defendants. ) ________________________________________________) DEFENDANTS’ CONSOLIDATED OPPOSITION TO PLAINTIFF’S REQUESTS FOR VAUGHN INDEX AND IN CAMERA REVIEW Summary Judgment in this Freedom of Information Act (“FOIA”) matter is fully briefed and pending before the Court. Not satisfied to await the Court’s resolution of Defendants’ dispositive motion, Plaintiff has filed two submissions seeking (1) a Vaughn index, Dkt. no. 15, and (2) in camera review of disputed documents, Dkt. no. 16.1 By these filings, Plaintiff inappropriately seeks a second bite at the apple regarding matters fully briefed previously. His requests for relief should be rejected out of hand. The request for a Vaughn index should be rejected for precisely the reasons set forth in Defendants’ prior filings. See Dkt. no. 11 (records are covered by categorical exemptions); Dkt. 1 These motions appear to have been deemed filed as of December 4, 2012. The Government was not served, however, until December 10. Case 1:11-cv-02028-RBW Document 17 Filed 12/21/12 Page 1 of 4 2 no. 14 at 5-6 (Vaughn index is not necessary because records are covered by categorical exemption, thus rendering Vaughn index futile). Nothing in Plaintiff’s new filings calls these arguments legitimately into question. Plaintiff appears to contend that he has somehow generated a question of fact, perhaps by seeking the contested documents through settlement negotiations (the substance of which Plaintiff casually discloses, notwithstanding Fed. R. Evid. 408). And Plaintiff provides arguments for the general utility of Vaughn indices. But Plaintiff fails to address the actually germane question of whether Defendants’ reliance on categorical exemptions (which reliance renders a Vaughn unnecessary) was proper. It was, as the Government previously has explained. See Dkt. no. 11; Dkt. no. 13; Gallant v. NLRB, 26 F.3d 168, 172 (D.C. Cir. 1994) (“the government need not justify its withholdings document-by- document”). Setting aside Plaintiff’s inappropriate attempt to re-open matters that are fully pending before the Court, Plaintiff’s request should be denied. Plaintiff’s request for in camera review likewise should be rejected. Having no entitlement to the disputed documents whatsoever, Plaintiff has no legitimate basis for demanding in camera review, much less well after the completion of summary judgment briefing but before the Court has ruled. CONCLUSION For the foregoing reasons, as well as those explained in Defendants’ prior filings, Plaintiff’s demands for relief should be denied. Dated: December 21, 2012 Respectfully submitted, STUART F. DELERY Case 1:11-cv-02028-RBW Document 17 Filed 12/21/12 Page 2 of 4 3 Principal Deputy Assistant Attorney General JOSEPH H. HUNT Director, Federal Programs Branch ELIZABETH J. SHAPIRO Deputy Director __/s/ Brigham J. Bowen__________ ERIC J. SOSKIN BRIGHAM J. BOWEN Trial Attorneys United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, N.W. Room 5134 Washington, D.C. 20001 Tel: (202) 353-0533 Fax: (202) 616-8202 Eric.Soskin@usdoj.gov Counsel for Defendants Case 1:11-cv-02028-RBW Document 17 Filed 12/21/12 Page 3 of 4 CERTIFICATE OF SERVICE I certify that a copy of this filing has been served electronically on Plaintiff, George H. Archibald, on December 21, 2012. Pursuant to Fed. R. Civ. P. 5(b)(2)(E), Mr. Archibald has consented to receive service by electronic means. Mr. Archibald has been served at the following address: g_archi@yahoo.com /s/ Brigham J. Bowen BRIGHAM J. BOWEN Trial Attorney Case 1:11-cv-02028-RBW Document 17 Filed 12/21/12 Page 4 of 4