1

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

DEFENDANT’S COMBINED OPPOSITION TO PLAINTIFF’S MOTION 

TO STAY SUMMARY JUDGMENT BRIEFING AND MOTION TO 

PARTIALLY UNSEAL CLASSIFIED APPENDIX

INTRODUCTION

Plaintiff Robert Hopkins has now moved on three separate occasions to stay 

this litigation to upend the well-established process for litigating and ultimately 

resolving a prepublication review case. Hopkins previously requested—and the 

Court denied—stays to resolve claims that his counsel be granted access to classified 

information submitted to DoD or the Court, and a claim that information DoD 

redacted from Hopkins’s manuscript is not classified. This latest request is no 

different. Hopkins now moves to stay summary judgment briefing, which is 

underway, until the Court resolves requests by Hopkins for his counsel to have 

access to a classified document and to unseal portions of the classified appendix 

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 1 of 12 PageID 926
2

submitted with Defendant’s motion for summary judgment. Dkt. 37 (Motion to 

Stay). 

The Court should deny this latest stay request, as it did the past requests. 

Aside from disrupting the typical process for litigating a prepublication review case, 

staying the briefing would require the Court to prematurely consider, in the middle 

of summary judgment briefing, whether the information sought by Hopkins is 

classified. The Court will be best suited to resolve that question when the briefing 

is complete. The Court correctly denied Hopkins’s requests in the past “pending the 

Court’s adjudication of Defendant’s [] motion for summary judgment,” and should 

do so again. Dkt. 24. Defendant’s summary judgment motion has not been 

“adjudicated,” and in its reply brief and accompanying classified declarations, 

Defendant will address the classified nature of both the document Hopkins seeks to 

share with his counsel and the appendix. Accordingly, Defendant requests that the 

Court deny Hopkins’s motion to stay summary judgment briefing, Dkt. 37, and deny 

his motion to partially the unseal classified appendix, Dkt. 38.

BACKGROUND

Hopkins first moved to stay this case in May 2023 to adjudicate a forthcoming 

motion to compel Defendant to grant Hopkins’s counsel access to classified 

information. Dkt. 15. The government opposed that motion, Dkt. 17, explaining 

that resolving counsel’s access to classified information claim prior to summary 

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 2 of 12 PageID 927
3

judgment would be contrary to the well-established process for adjudicating

prepublication review cases. Id. at 2-6. The Court denied Hopkins’s motion and 

stayed all other case deadlines “pending the Court’s adjudication of Defendant’s 

forthcoming motion for summary judgment.” Dkt. 24.

In June 2023, Hopkins then moved for leave to file a partial motion for 

summary judgment to advance an argument that certain information redacted from 

one of Hopkins’ manuscripts “has been previously officially disclosed and is not 

properly classified.” Dkt. 25 at 1-2. Defendant opposed that motion, noting that this 

issue would be addressed in its summary judgment briefing and classified 

appendices. Dkt. 26. The Court denied Hopkins’s motion “having already 

concluded that the Court will consider Defendant’s motion for summary judgment 

before determining how to proceed with this case.” Dkt. 28. 

On October 4, 2023, Defendant filed its motion for summary judgment. This 

motion was accompanied by a classified appendix that included ex parte, in camera

declarations from Defendant explaining the basis for the contested redactions in 

Hopkins’s manuscripts.

On October 23, 2023, DOPSR notified Hopkins that a document he submitted 

for prepublication review regarding alleged public sourcing of information in his 

manuscripts was not cleared for publication and was unsuitable for public release. 

That document was intended to demonstrate that information that DOPSR redacted 

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 3 of 12 PageID 928
4

in Hopkins’s manuscripts “was previously officially declassified and/or disclosed.” 

Dkt. 37 at 1.

Hopkins’s opposition to Defendant’s summary judgment motion was due on 

January 5, 2023. On January 3, Hopkins moved again to stay summary judgment 

briefing pending the Court’s resolution of two motions Hopkins planned to file: (1) 

a motion to unseal part of the government’s classified appendix that it submitted 

with summary judgment, and (2) a motion to authorize Hopkins’s counsel to have

access to the alleged public sourcing document that DOPSR determined cannot be

publicly released. Dkt. 37. 

In the first motion, which Hopkins filed on January 5, Hopkins asked the 

Court to unseal the portion markings and other classification markings, as well as a 

table identifying which components applied which redactions, in the government’s 

classified declarations. Dkt. 38. Hopkins’s rationale is his presumption that such 

information cannot possibly be classified. Id. at 6-7. Hopkins has not yet filed the 

second motion but claims it will argue that Hopkins’s attorney should receive access 

to the alleged public sourcing document so that he can use it to prove to the Court 

that information that DOPSR redacted from the manuscripts has been officially 

acknowledged. Dkt. 37 at 2. Defendant consented only to a stay of the summary 

judgment briefing schedule pending the Court’s resolution of the first motion, but 

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 4 of 12 PageID 929
5

since that filed motion is broader than how it was described during the parties’ 

conferral, Defendant now opposes Hopkins’s stay motion in its entirety.1 

ARGUMENT

The Court should reject Hopkins’s latest attempt to stay the Court’s 

adjudication of Defendant’s motion for summary judgment, which would upend the 

established judicial review process for prepublication review cases set forth in 

Stillman v. CIA, 319 F.3d 546, 548-49 (D.C. Cir. 2003). Under this framework, the

Court should first attempt to assess the government’s withholdings based on the 

government’s classified declarations and resolve these issues without the assistance 

of Hopkins’s counsel. When it submits its summary judgment reply brief, the

government will explain in classified declarations why the information that Hopkins

moves to unseal is classified, an explanation that cannot be provided on the public 

record.

2

 It will also explain in classified declarations why the sources in Hopkins’s

alleged public sourcing document do not constitute an official acknowledgment. At 

that point in time, the Court can consider the briefing and declarations together to

determine whether the government has justified its withholdings.

1 Defendant does not oppose a reasonable extension, nunc pro tunc, of Hopkins’s deadline to respond to 

Defendant’s summary judgment motion, in light of Defendant’s changed position on the stay motion.

2

If the government determines in the course of preparing its classified submission that any information 

withheld in the government’s classified declarations can be released, it will do so at that time. 

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 5 of 12 PageID 930
6

I. The Court Should not Delay Summary Judgment Briefing to Adjudicate 

Hopkins’s Motion to Unseal Certain Information From the Classified 

Appendix or the Forthcoming Motion to Grant His Counsel Access to the

Alleged Public Sourcing Document.

In Stillman, the D.C. Circuit set forth the framework for judicial review of the

government’s classification decisions in prepublication review cases:

The district court should first inspect the manuscript and consider any 

pleadings and declarations filed by the Government, as well as any 

materials filed by [the plaintiff] .... The court should then determine 

whether it can, consistent with the protection of [the plaintiff’s] first 

amendment rights to speak and to publish, and with the appropriate 

degree of deference owed to the Executive Branch concerning 

classification decisions, resolve the classification issue without the 

assistance of plaintiff’s counsel. 

319 F.3d at 548-49. If the Court cannot assess the government’s redactions based 

solely on the government’s filings, then the Court must “consider whether its need 

for such assistance outweighs the concomitant intrusion upon the Government’s 

interest in national security.” Id. at 549. “Only then should it decide whether to 

enter an order granting [plaintiff’s counsel] access to the manuscript and, if similarly 

necessary, to the Government’s classified pleadings and affidavits.” Id.

Moreover, the Stillman framework contemplates the possibility of an 

immediate appeal should a court order the significant step of granting Hopkins’s 

counsel access to classified information. The granting of a security clearance for 

access to classified information is within the discretion of the Executive Branch. See

Dep’t of Navy v. Egan, 484 U.S. 518, 528 (1988) (“It should be obvious that no one 

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 6 of 12 PageID 931
7

has a ‘right’ to a security clearance. The grant of a clearance requires an affirmative 

act of discretion on the part of the granting official.”). The court in Stillman observed 

that “[i]f the court enters such an order, then Government may appeal,” and the court 

of appeals would then “have to resolve the constitutional question” of whether 

counsel has a First Amendment right of access to classified materials. Id.

This approach to judicial review has been uniformly applied in prepublication 

review cases. See, e.g., McGehee v. Casey, 718 F.2d 1137, 1149 (D.C. Cir. 1983)

(“We anticipate that in camera review of affidavits, followed if necessary by further 

judicial inquiry, will be the norm.”); Shaffer v. Def. Intel. Agency, 102 F. Supp. 3d 

1, 10 (D.D.C. 2015) (“a district court must first attempt to resolve a classification 

challenge ex parte”); Berntsen v. CIA, 618 F. Supp. 2d 27, 28 (D.D.C. 2009); 

Boening v. CIA, 579 F. Supp. 2d 166, 174-75 (D.D.C. 2008) (“prepublication review 

cases can and should begin with ex parte and in camera consideration.”); Wilson v. 

CIA, 586 F.3d 171, 195 (2d Cir. 2009) (“We have reviewed defendants’ unclassified 

submissions as well as—without objection by the parties—the classified materials 

provided to the court ex parte....”). This approach avoids the need for the court to 

unnecessarily address constitutional questions concerning granting counsel access 

to classified information, including the potential need for an interlocutory appeal. 

See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) 

(“A fundamental and longstanding principle of judicial restraint requires that courts 

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 7 of 12 PageID 932
8

avoid reaching constitutional questions in advance of the necessity of deciding 

them.”).

Consistent with Stillman, the Court denied Hopkins’s previous motions to stay 

the case to allow Hopkins to argue that his counsel should be granted access to 

classified information or that information redacted from one of Hopkins’ 

manuscripts is not properly classified. See Dkts. 15, 24, 25, 28. Hopkins’s instant 

stay motion asks the Court to stay summary judgment briefing, already underway, 

for the same reasons, and should be similarly denied. Hopkins argues that his 

counsel is “entitled to see the evidence he has provided to Defendant proving that 

the information being censored in this case has been officially declassified or was 

not classified in the first place, so that his undersigned attorney can accordingly use 

that evidence to prove as much to the Court.” Dkt. 37 at 2. But Hopkins’s counsel 

has no entitlement to view classified information. As McGehee explains, courts look 

to the government to justify its redactions and withholding of classified information. 

718 F.2d at 1148. 

The plaintiff in a prepublication review case may attempt to show that the 

government has officially acknowledged the information deemed classified, 

meaning that equally specific information exactly matching the information at issue 

“was made public through an official and documented disclosure.” See Fitzgibbon 

v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990); see also Shaffer, 102 F. Supp. 3d at 9 

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 8 of 12 PageID 933
9

(noting the important difference between an official and unofficial disclosure for 

purposes of determining whether information remains classified). Hopkins has 

attempted to do so in the alleged public sourcing document that he submitted to 

DOPSR and that he seeks, in a forthcoming motion, to share with his counsel. 

Defendant will provide the alleged public sourcing document to the Court in a 

classified appendix accompanying Defendant’s summary judgment reply brief and 

will explain to the Court in its classified declarations why sources Hopkins identified

do not constitute official disclosures or why the redacted information in the 

manuscripts has not been declassified. Because the Court will have access to the

alleged public sourcing document in camera, there is no need for Hopkins’s counsel 

to “use that evidence to prove as much to the Court.” Dkt. 37 at 2. Instead, following 

Stillman and its progeny, the Court should first attempt to assess the government’s 

redactions based on the government’s declarations, without the assistance of 

Hopkins’s counsel. See Lawless v. Department of Defense, 1:21-cv-2859-TJK, Dkt. 

28 (D.D.C. Mar. 6, 2023) (in prepublication review case, denying the plaintiff’s 

motion to compel the government to provide access to classified information in the 

middle of summary judgment briefing). 

For the same reason, the Court should not stay the summary judgment briefing 

to resolve Hopkins’s motion to partially unseal the classified appendix. Hopkins

baldly asserts that the information from the classified appendix that he seeks is 

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 9 of 12 PageID 934
10

“unclassified information,” Dkt. 38 at 2, that “the classification level of redacted 

information cannot be considered a piece of classified information,” id. at 6, and that 

“DOD is abusing the redactions simply to obtain a litigation advantage,” id. 

Importantly, is it clear how portion markings and other classification markings are 

relevant to Hopkins’ opposition to summary judgment. In any event, the government 

will explain why the information Hopkins moves to unseal is properly classified in 

the classified declarations it submits with its summary judgment reply brief. The 

Court can consider all of the briefing and declarations together and determine 

whether the government has justified the redactions that it made to Hopkins’s 

manuscripts; withholding the alleged public sourcing document; and withholding 

the portion markings, overall classification, and components involved in redacting

Hopkins’s manuscripts. These questions will require the Court to answer the same 

fundamental question: has the government met its burden in justifying its 

withholdings? The Court will be well-positioned to resolve that question when 

summary judgment briefing is completed, consistent with Stillman. 

CONCLUSION

For the foregoing reasons, Defendant respectfully requests that the Court deny 

Hopkins’s motion to stay summary judgment briefing and deny Hopkins’s motion 

to partially unseal classified appendix. 

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 10 of 12 PageID 935
11

Dated: January 24, 2024 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney 

General

MARCIA BERMAN

Assistant Branch Director

/s/ Lisa Newman

LISA NEWMAN (TX Bar No. 

24107878)

Trial Attorney

U.S. Department of Justice

Civil Division, Federal Programs 

Branch

1100 L Street NW, Rm. 12002

Washington, D.C. 20530

Tel: (202) 514-5578

E-mail: lisa.n.newman@usdoj.gov

Attorney for Defendant

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 11 of 12 PageID 936
12

CERTIFICATE OF WORD COUNT

I hereby certify that the foregoing brief contains 2,373 words, exclusive of the 

case caption, signature block, and certificates, but inclusive of footnotes, according 

to Microsoft Word’s word-count register.

/s/ Lisa Newman

Lisa Newman

CERTIFICATE OF SERVICE

I hereby certify that on January 24, 2024, a copy of the foregoing was filed 

electronically via the Court’s ECF system, which effects service upon counsel of 

record.

/s/ Lisa Newman

Lisa Newman

Case 3:22-cv-00706-E Document 39 Filed 01/24/24 Page 12 of 12 PageID 937