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McGREGOR W. SCOTT

United States Attorney

YOSHINORI H. T. HIMEL #66194

Assistant U. S. Attorney

501 I Street, Suite 10-100

Sacramento, California 95814

Telephone: (916) 554-2760

Attorneys for Defendant,

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

GEORGE MARLIN KNIGHT,

Plaintiff,

v.

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION,

Defendant.

2:-04-cv-2054-MCE-GGH

DEFENDANT’S EX PARTE

APPLICATION FOR 60 DAY

PERIOD TO FILE DISPOSITIVE

MOTION; COUNSEL

DECLARATION; ORDER

APPLICATION

Defendant, through its undersigned counsel of record, requests the Court's permission

to file, within a 60-day period, a rather simple speaking motion to dismiss because of

mootness, or for summary judgment. Defendant views the case as moot because by June 2005

defendant had given plaintiff all of the requested records, withholding only names and other

bits of records to whose withholding plaintiff did not object.

The immediate reason for the contemplated motion is that after months of settlement

negotiations, with an expectation of settlement on clearly-written terms, plaintiff has just

repudiated those terms. See the counsel declaration below for details.

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Dated: June 20, 2006 McGREGOR W. SCOTT

United States Attorney

By: /s/ Y H T Himel 

YOSHINORI H. T. HIMEL

Assistant U. S. Attorney

COUNSEL DECLARATION

YOSHINORI H. T. HIMEL declares under 28 U.S.C. 1746(2):

1. I am an Assistant United States Attorney in the office of the United States Attorney

for the Eastern District of California, and am assigned the above-captioned case.

2. I am seeking a new time in which to file a motion to dismiss or for summary

judgment because (1) after months of discussion of an expected settlement, plaintiff has

repudiated the settlement; (2) plaintiff has consented to allow me only two weeks in which to

file the motion; (3) the next few weeks are the busiest I have encountered for years; and (4) I

simply cannot do the needed motion in the next few weeks consistent with my other pressing

obligations and consistent with the need to work with NASA and Caltech personnel who may

be unavailable for parts of the summer. Although I acknowledge that the requested period

conflicts with the present trial schedule, a rather straightforward motion will make more

efficient use of the Court's time than a trial.

3. By June 2005, NASA had released what in my considered and strongly-held view

was every record it could find that was responsive to the two FOIA requests. Arguably the

result was to moot the action. See Carter v. VA, 780 F.2d 1479, 1481 (9th Cir. 1986).

4. In particular, by letter dated December 15, 2004, responding to plaintiff's FOIA

request for "logs recording the receipt of data from the instruments of the Spirit Rover," see

Complaint Exhibit B, NASA released to plaintiff a copy of its telemetry logs, which are

computer-generated "logs recording the receipt of data" from all thirteen scientific

instruments and engineering cameras of the Spirit Rover, whether or not named in the FOIA

request, excluding only the inactive Descent Imager.

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5. From numerous contacts with the Mars project, I take data-sending equipment on

the Rover to be classified either as "scientific instruments" or as "engineering devices." The

seven scientific instruments, created for use by the scientific community, are the MiniTES,

APXS and Moessbauer spectrometers, the Rock Abrasion Tool ("RAT"), the Micro Imager

and the left and right Panoramic Cameras ("Pancams"). The engineering devices, created to

help operate the Rover, are more numerous but include six cameras: the left and right

Navigation Cameras ("Navcams") and the four Hazard Cameras ("Hazcams"). Defendant

gave plaintiff a key to the ID numbers ("APIDs") for all instruments and devices, including

the ones above, by letter dated December 15, 2004.

6. The English word "log" has a specific meaning. The Oxford English Dictionary (2d

ed., 1989) defines "log" as: "Any record in which facts about the progress or performance of

something are entered in the order in which they become known; e.g. (a) a record of what is

found, or how some property varies, at successive depths in drilling a well; a graph or chart

displaying this information; (b) a record kept by a lorry driver in which details of journeys are

noted; (c) a record kept of what is broadcast by a radio or television station from moment to

moment."

7. Thus, the word "log" requires (1) a record, (2) containing particular facts about

something's progress or performance, (3) recording those facts, (4) in the order in which the

facts become known. A "log recording the receipt of data" therefore must be (1) a record,

(2) containing facts about the receipt of transmissions (e.g., time of receipt), (3) recording

those facts, (4) in the order the data are received.

8. The automated telemetry logs responsive to plaintiff's "logs recording the receipt of

data" FOIA request are qualitatively unique. Aside from manually-written Payload Downlink

Lead reports, the telemetry logs are the only type of records responsive to that FOIA request. 

Only in them does the computer record entries in the order in which the data are received, that

is, in the order in which the packets of information come from space through three worldwide

antennas to Caltech's Jet Propulsion Laboratory ("JPL").

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9. To disclose "logs recording the receipt of data," on March 3, 2005, I sent plaintiff

an example of manually-written reports by Payload Downlink Leads ("PDLs," "PDL

reports"), and an example of a procedures manual for PDLs. Understanding plaintiff to want

this category of logs, by letter dated June 10, 2005, I sent him the PDL reports logging the

receipt of data coming from the Rover's scientific instruments and engineering cameras for

Sols 1-33.

10. By letter dated June 10, 2005, in response to plaintiff's FOIA request for logging

procedures, see Complaint Exhibit A, I sent plaintiff the written procedures the PDLs follow

to write their reports. Because NASA had by then released every responsive record that it

could find by a reasonable search, that records release arguably made the action moot under

Carter.

11. For six months, despite the action's moot state, the parties have discussed settling

it by giving plaintiff an additional set of information not requested in his "logs recording the

receipt of data" FOIA request: a list, not a log, of datafile names. The listed files are not raw

telemetry data; they are assembled from the telemetry packets that conveyed the data from the

Spirit Rover's scientific instruments and engineering cameras from Mars to earth. The

datafiles do not have one time of receipt, for they arrive in sometimes-widely-separated

packets. Although the data filename list is beyond the scope of the "logs recording the receipt

of data" FOIA request, and therefore is not required by FOIA, plaintiff wanted the list and my

client was willing to give it because it was a way to end the case voluntarily and without

imposing on the Court's resources for decision.

12. In an email on January 24, 2006, I sent plaintiff a partial list of filenames

conforming to a particular format that may be called "Experiment Data Record" ("EDR")

format. I asked whether a list of all filenames of that type was what plaintiff wanted, and

whether giving him the list would resolve the lawsuit. Plaintiff responded on January 26,

2006, saying: "A comprehensive list of filenames like the example that you sent will be

acceptable. It needs to cover the 33 sols and include all of the cameras and scientific

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instruments. I will also need an official representation that the list is complete. We will need

to discuss the cost." Exhibit 1 hereto is a copy of that email.

13. Although plaintiff sometimes calls the list of EDRs he seeks by the name "log,"

that is a misnomer. The list is not a "log recording the receipt of data" because the list does

not meet requirements (3) and (4), that is, does not record facts in the order the data are

received. In my view it mightily contorts the English language to argue that a list of the EDR

filenames is a "log recording the receipt of data" within the scope of the FOIA request.

14. Through the settlement discussions, my objective was to give plaintiff what he

really wanted, not to limit him to what he requested.

15. Between January 2006 and this past weekend, I reasonably believed that we had

terms for settlement.

16. During the period of settlement discussion, the parties agreed to a framework for

settlement. Exhibit 2 hereto is a copy of a letter dated April 26, 2006, memorializing the

framework.

17. At the end of May 2006 I obtained from JPL a CD containing the agreed-upon list

occupying about 29,000 lines, each containing an EDR filename. I also obtained agreement

within the government on a particular draft of a certification by a FOIA officer under penalty

of perjury. I supplied the draft to plaintiff by email on May 31, 2006.

18. On June 9, 2006, there was further discussion.

19. The final communication is dated June 12, 2006 and is attached as Exhibit 3

hereto. In it plaintiff repudiates the settlement framework, asserting, contrary to my view, that

there are "categories of records in NASA's control that are relevant to the two FOIA requests

that have not been turned over," that I have not "disclosed what documents are available," that

there are "categories of records that NASA has not admitted having," and that "[t]o date

NASA has not given me all of the documents that I lawfully requested." It ends by

challenging me to defend my client in court against such propositions.

20. Plaintiff's repudiation of the settlement framework makes it necessary for me to

seek time in which to file a motion to dismiss or for summary judgment, seeking a finding of

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mootness. Case law says summary judgment is the norm in FOIA cases. E.g., Cooper

Cameron Corp. v. United States Dep't of Labor, 280 F.3d 539, 543 (5th Cir. 2002) ("Summary

judgment resolves most FOIA cases"). Dismissal or summary judgment is a way to dispose of

this FOIA case at a substantial savings of judicial effort. I am confident that defendant's

position, including its reading of the phrase "log recording the receipt of data," is the correct

one and that dismissal or summary judgment will dispose of the case.

21. On April 26, 2006, because of the settlement negotiations, the parties had agreed

that we would consent to a reasonable extension of the time, consistent with the case's trial

schedule, to file law and motion. See Exhibit A hereto. Plaintiff and I appear to differ on

what period is reasonable. When he repudiated the settlement framework, plaintiff consented

to only two weeks. See Exhibit 3 hereto.

22. I need a period of 60 days to file the motion because I need to work with NASA

and Caltech employees who may be away part of the summer, and because my schedule

includes the following deadlines: By this Thursday, June 15, I must file our Ninth Circuit

brief in Lion Raisins. This Friday, June 16, I have hearings in Ward, Gibson and Raffaelly

and expect to receive the opposition to my dispositive motion in Garvey. On Monday June 19

I have a status conference in Los Padres, plan to file a motion and a status report in Wight,

expect to receive opposition to our motion in limine in Tison, and expect to receive and

review one client's administrative record index in Tahoe Tavern. On Tuesday June 20 I must

serve responses to three rather voluminous discovery papers in Garvey. On Wednesday June

21 I have a hearing in Stagno. On Thursday June 22 I have a hearing in Jones. On Friday

June 23 I plan to file our reply for summary judgment in Garvey. On June 26 I plan to file a

reply supporting our limine motion in Tison and must file our jurisdictional motion, if any, in

Tahoe Tavern. On June 27 I must file our Ninth Circuit brief in Gakawa. On June 28 I have

a status conference in Wight. On June 29 I expect to receive and review another client's and

the codefendant's administrative record indexes in Tahoe Tavern. This schedule goes on at a

slightly-less-frantic pace through July. I simply need to defer the substantial tasks of

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communication within the government and writing in this case, until the quieter coming

weeks allow me a modicum of time to complete the task.

I declare under penalty of perjury that the foregoing is true and correct. Executed on

June 14, 2006.

/s/ Y H T Himel 

YOSHINORI H. T. HIMEL

ORDER

Good cause appearing, defendant may file its motion within 60 days of the filing date

of this order. The pretrial conference and trial are VACATED and may be reset at the motion

hearing. 

DATED: June 20, 2006

___________________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

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