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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT HOPKINS, III,

Plaintiff,

v.

DEPARTMENT OF DEFENSE,

Defendant.

No. 3:22-CV-00706-E

OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE AN INITIAL

MOTION FOR PARTIAL SUMMARY JUDGMENT AND FOR EXPEDITED 

CONSIDERATION

Just eleven days after the Court entered an Order, ECF No. 24, directing that this 

litigation would proceed with Defendant first filing, by August 11, a comprehensive motion for 

summary judgment, as is typical in prepublication review matters, Plaintiff now seeks leave to 

file a partial motion for summary judgment concerning the redactions to one of his manuscripts.

ECF No. 25 (hereinafter “Mot.”). Aside from being procedurally improper, Plaintiff’s request 

would require the Court to resolve the issues in this case piecemeal, and on an unreasonably

truncated basis: it would force Defendant to review Plaintiff’s proposed filings for classified 

information in five business days and then to oppose his motion—which will itself require a 

classified affidavit explaining the basis for those redactions—in an additional four days, before 

requiring the Court to review the classified materials in camera on an expedited basis and issue 

an order no later than July 24. Plaintiff’s purported publication date, to which Plaintiff 

voluntarily and unilaterally agreed, provides no basis for granting his extraordinary request. The 

Court should therefore deny Plaintiff’s motion for leave.

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1. As an initial matter, Plaintiff’s motion effectively seeks reconsideration, under 

Rule 54(b), and/or modification, under Rule 16(b)(4), of the Court’s June 13 scheduling order. 

ECF No. 24. That Order addressed motions from both sides to stay and/or amend the existing 

briefing deadlines, see ECF Nos. 13, 15, 17, and concluded that the most efficient method of 

resolving this case would involve staying all other deadlines “pending the Court’s adjudication 

of Defendant’s forthcoming motion for summary judgment.” ECF No. 24; see Stillman v. CIA, 

319 F.3d 546, 548-49 (D.C. Cir. 2003).

To the extent Plaintiff’s motion seeks reconsideration of that Order under Rule 54(b), he 

seeks to “rehash [his] previously made arguments or ... to raise an argument for the first time

without justification,” and his motion is therefore improper. Dos Santos v. Bell Helicopter 

Textron, Inc. Dist., 651 F. Supp. 2d 550, 553 (N.D. Tex. 2009). Likewise, to the extent Plaintiff 

seeks to modify the Court’s scheduling order under Rule 16(b)(4), he must show “good cause,” 

which he cannot given his failure to exercise “diligence” in alerting the Court to his impending 

publication deadline when the Court was considering the parties’ scheduling proposals. Ciena 

Corp. v. Nortel Networks Inc., 233 F.R.D. 493, 494 (E.D. Tex. 2006). However construed, 

Plaintiff’s motion is an inappropriate attempt to relitigate the Court’s June 13 Order.

2. Plaintiff’s proposal for piecemeal summary judgment briefing also fails on its 

own terms. Local Rule 56.2 bars a party from filing “more than one motion for summary 

judgment” unless permitted by the Court or the law. The rule aims to “prevent piecemeal 

litigation” and instead “resolve all dispositive claims and defenses at once.” Int’l Ins. Co. v. RSR 

Corp., No. CIV.A. 3:00-CV-0250-, 2007 WL 437651, at *6 (N.D. Tex. Feb. 8, 2007). As 

Plaintiff notes, it also “enables the court to regulate successive motions that are filed after the 

court has devoted time and effort to deciding an initial motion.” Harrison v. Wells Fargo Bank, 

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N.A., No. 3:13-CV-4682-D, 2015 WL 5547495, at *2 (N.D. Tex. Sept. 21, 2015) (quotation 

omitted). For these reasons, although the Court has discretion to structure summary judgment 

proceedings, it “generally discourages and does not allow parties to file successive motions for 

summary judgment.” KTAQ of Dallas, LLC v. Simons, No. 3:12-CV-4102-L, 2013 WL 5567146, 

at *7 (N.D. Tex. Oct. 8, 2013).

Litigating this case through successive summary judgment filings would be particularly 

inappropriate. All of the claims in this matter relate to the nature of the government’s 

prepublication procedures and the propriety of the government’s redactions to Plaintiff’s 

manuscripts. Briefing these issues once with respect to Crowded Skies and then again with 

respect to Plaintiff’s other manuscripts would be unnecessarily duplicative and wasteful. In

contrast, “resolving the issues in the context of Defendant[’s] comprehensive summary judgment 

motion[] is preferable, as it will avoid the risk of piecemeal litigation ... , conserve judicial and 

party resources, and facilitate resolution of this lawsuit.” Dallas Cnty., Tex. v. MERSCORP, Inc., 

No. 3:11-CV-2733-O, 2013 WL 5903300, at *11 n.7 (N.D. Tex. Nov. 4, 2013); see also Trea 

Senior Citizens League v. U.S. Dep’t of State, 923 F. Supp. 2d 55, 60 (D.D.C. 2013) (noting that 

the Court “directed that the State Department file a summary judgment motion that addressed all 

of the documents at issue to avoid piecemeal litigation in this case”). That is precisely the 

conclusion that the Court already reached in its June 13 scheduling order. 

Plaintiff’s proposed briefing schedule is also unworkable. It would require Defendant to 

review Plaintiff’s proposed summary judgment filings in five business days from the filing of 

Plaintiff’s motion for leave, imposing significant and unforeseen burdens on prepublication 

review staff. It would then require Defendant to oppose that motion, and to prepare the necessary 

classified affidavit with the assistance of the same prepublication review staff, in another four 

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business days. And then, assuming everything goes according to schedule, Plaintiff would give 

the Court only seven business days to review these in camera submissions and issue a decision.

That is simply not a reasonable schedule for judicial review in a case involving sensitive

classified information.

3. Nor does “the fact that [Plaintiff] only has until the end of July to submit any 

modifications to his manuscript to his publisher,” ECF No. 25, establish good cause for his 

motion. As DOPSR’s website makes clear, “[d]ue to an increased number of submissions, booklength manuscript reviews are currently taking several months.” DOPSR, Wash. Headquarters 

Services, https://perma.cc/XT4W-EWLR (last visited June 26, 2023). Authors should therefore 

“ensure adequate time for a prepublication security and policy review prior to committing to any 

publishing deadlines or sending the manuscript to a person or organization for endorsement.” Id.

(emphasis added). And for good reason: authors cannot force DOPSR into allowing them to cut 

the line or rush the review process, thereby risking the inadvertent release of classified 

information, by voluntarily committing themselves to publication deadlines. To the extent 

Plaintiff’s purported publication deadline conflicts with the timeline for prepublication review 

and/or judicial review, he could work with his publisher on a revised date. 

Nevertheless, Defendant has strived to accommodate Plaintiff’s repeated submissions and 

ever-shifting deadlines. In addition to the text of Crowded Skies, Plaintiff submitted photographs 

and captions for the manuscript in February 2023, eleven months after filing suit. After DOPSR 

provided Plaintiff with its required amendments to the text of Crowded Skies on March 29, 2023, 

Plaintiff sent a document rebutting the redactions on April 26, 2023, and informed Defendant 

that his “publisher had insisted that the final Crowded Skies manuscript be delivered no later than 

1 May.” Pl.’s Mot. for Status Conf. at 7-9, ECF No. 13. Then, on June 9, Plaintiff’s counsel 

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informed Defendant that the publisher of Crowded Skies had pushed back its deadline to “16 

June,” and threatened to file a motion for a preliminary injunction if Defendant could not commit 

to completing its review of Plaintiff’s rebuttal and the photographs and captions for Crowded 

Skies by June 14. In the interest of avoiding unnecessary emergency litigation that would burden 

both Defendant and the Court, Defendant did so, and completed its review on June 14. 

That same day, Plaintiff’s counsel informed Defendant that Plaintiff still had “about 6 

weeks to make any changes if they are small,” and that he intended to file a motion for partial 

summary judgment challenging the remaining redactions to Crowded Skies. Defendant informed 

Plaintiff’s counsel that it would oppose his motion for leave to file a motion for partial summary 

judgment as inconsistent with the existing briefing schedule. Plaintiff then waited another ten 

days to file his motion for leave, in which he requests this Court conduct briefing and judicial 

review on an extraordinarily expedited timeframe. Plaintiff’s assertion that he now needs a 

decision “within six weeks,” Mot. at 4, should not be credited. And to the extent such a decision 

is necessary by then, Plaintiff should have informed the Court of any timing concerns before it 

entered the present schedule just two weeks ago. 

4. Finally, although a full defense of Defendant’s redactions is beyond the scope of 

this filing, Plaintiff suggests that his motion will focus on the assertion “that the information has 

been previously officially disclosed and is not properly classified.” Mot. at 1-2. But, among other 

things, the information “must already have been made public through an official and documented 

disclosure.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). “Merely pointing to public 

sources,” as Plaintiff apparently intends to do, see Mot. at 3, “is insufficient because ‘the fact that 

information resides in the public domain does not eliminate the possibility that further 

disclosures can cause harm to intelligence sources, methods and operations.’” Shaffer v. DIA, 

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102 F. Supp. 3d 1, 9 (D.D.C. 2015) (quoting Fitzgibbon, 911 F.2d at 766) (applying standard in 

prepublication review matter). Defendant will address all of these issues and others, as to all of 

Plaintiff’s manuscripts, in a single, comprehensive summary judgment filing, as the Court 

ordered it to do, rather than in a piecemeal and rushed fashion, as Plaintiff’s motion for leave 

demands. 

For these reasons, the Court should deny Plaintiff’s motion for leave to file a motion for 

partial summary judgment on an expedited basis. 

Dated: June 27, 2023 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

ANTHONY J. COPPOLINO

Deputy Branch Director

/s/ John T. Lewis

JOHN T. LEWIS (TX Bar No. 24095074)

LISA NEWMAN (TX Bar No. 24107878) 

Trial Attorneys

U.S. Department of Justice

Civil Division, Federal Programs Branch

1100 L Street NW, Rm. 12002

Washington, D.C. 20530 

Tel: (202) 353-0533 

E-mail: john.t.lewis.iii@usdoj.gov 

Attorneys for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on June 27, 2023, a copy of the foregoing was filed electronically via 

the Court’s ECF system, which effects service upon counsel of record.

/s/ John T. Lewis

John T. Lewis

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