UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

Dallas Division

ROBERT HOPKINS, III, * 

 * 

Plaintiff, * 

 * 

 v. * Civil Action No. 3:22-cv-00706 (E) 

 * 

DEPARTMENT OF DEFENSE, *

 * 

Defendant. * 

 * 

* * * * * * * * * * * * * 

PLAINTIFF’S MOTION TO AUTHORIZE HIS

COUNSEL TO ACCESS HIS INTENDED EVIDENCE

Plaintiff Robert Hopkins, III (“Hopkins”) commenced this litigation against 

Defendant Department of Defense (“DOD”) in 2022 in part to challenge the 

unconstitutional prior restraint imposed upon him with respect to documents that 

he properly submitted for prepublication review. In October 2023, DOD filed a 

motion to dismiss and for summary judgment, which it supported with a 

purportedly classified ex parte, in camera appendix. Knowing that DOD would 

contend that he must meet an extremely high burden to demonstrate with 

particularity that he had only relied on publicly available and previously officially 

disclosed information, Hopkins submitted a lengthy document (“the Draft 

Response”) to the Defense Office of Prepublication and Security Review 

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(“DOPSR”) over two months before DOD filed its dispositive motion, which 

constituted “a mostly comprehensive response addressing almost all of DOD’s 

redactions from the various manuscripts included in this case.”

On 23 October 2023, two days before Hopkins’s opposition to DOD’s 

dispositive motion was due, DOPSR responded to Hopkins advising him that he 

was prohibited from providing any of the Draft Response to his undersigned 

counsel. Hopkins now respectfully asks the Court to authorize his undersigned 

counsel to access the Draft Response—or a reasonably sanitized version thereof—

on the grounds that it consists virtually entirely of literal images of passages from 

other publicly available documents which have been either previously officially 

disclosed or are not otherwise classified, or both. As explained in the attached

memorandum, the presumption of access to judicial records outweighs any interest 

DOD may have in the nondisclosure of this unclassified information, and in any 

case, DOD cannot meet its burden of proving that the unclassified, publicly 

available information in this document warrants the drastic consequence of being 

forcibly withheld from Hopkins’s own counsel.

A district court’s decision to seal or unseal a judicial record is reviewed on 

appeal for abuse of discretion. Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 

418 (5th Cir. 2021). A decision to grant a plaintiff’s counsel access to properly 

classified information was reviewed on appeal in the D.C. Circuit for abuse of 

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discretion. Stillman v. CIA, 319 F.3d 546, 547 (D.C. Cir. 2003). However, whether 

the information is properly classified or not is a question of law and thus subject to 

de novo review, albeit with deference afforded “to reasoned and detailed [agency] 

explanations of that classification decision.” McGehee v. Casey, 718 F.2d 1137, 

1148 (D.C. Cir. 1983). Hopkins therefore respectfully maintains that the 

appropriate appellate standard of review for this motion is de novo. DOD opposes 

this Motion. A proposed Order accompanies this Motion.

Date: February 12, 2024

 Respectfully submitted,

/s/ Kelly B. McClanahan 

 Kelly B. McClanahan, Esq.

 N.D. Tex. Bar #984704DC

 National Security Counselors

 4702 Levada Terrace

 Rockville, MD 20853

 301-728-5908 

 240-681-2189 fax

 Kel@NationalSecurityLaw.org

Counsel for Plaintiff

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