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 REPLY IN SUPPORT OF HIS MOTION FOR LEAVE 

TO FILE AN INITIAL MOTION FOR PARTIAL SUMMARY

JUDGMENT AND FOR EXPEDITED CONSIDERATION

Because Defendant raises no meritorious objections to Plaintiff’s Motion, Plaintiff will 

only very briefly address the handful of assertions made in Defendant’s opposition which 

warrant any discussion. Plaintiff limits this reply in this fashion for the simple fact that the 

undersigned is reluctant to burden the Court with a significant amount of paper while at the same 

time asking the Court to expedite its consideration of something. Plaintiff will address these 

points in the order in which they are made: 

 First, Defendant argues that granting this Motion 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.” (Def.’s Opp’n Pl.’s Mot. Leave File Init. Mot. Summ. J. 

& Exp. Consideration, Dkt. #26, at 1 (filed June 27, 2023).) In making this assertion, Defendant 

seeks to significantly mislead the Court by taking advantage of the fact that the Court is new to

this case. Simply put, Defendant will not face any difficulty in reviewing Plaintiff’s proposed 

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filings in five business days because it already reviewed everything relevant. There is nothing in 

Plaintiff’s proposed filings which was not in either the initial manuscript—which Defendant 

completed reviewing on 29 March 2023—or Plaintiff’s response—which Defendant completed 

reviewing on 14 June 2023. In fact, the proposed brief only speaks in the most general terms 

about the substance of the manuscript, and the only documents in the appendix which have not 

already been cleared for release are Plaintiff’s response itself and a two-page declaration 

explaining the situation with Plaintiff’s publisher.1

By the same token, since Defendant made the decision to redact this information at least 

three months ago, it cannot now be heard to complain about needing to justify its decision; it 

allegedly already justified it internally, so justifying it to the Court should be relatively easy, 

especially since it will be submitting its justification in camera and ex parte and will not need to 

be concerned with how to phrase it for public consumption. Simply put, if Defendant cannot 

write a classified declaration to justify the redaction of a relative handful of lines from two pages 

in four days, then the Court should be concerned that Defendant is attempting to devise a post 

hoc rationalization for a decision it initially made without serious consideration.

Defendant then complains that Plaintiff “voluntarily and unilaterally agreed” to the 

publication date of his book (id.), which is transparently untrue, as later admitted in Defendant’s 

brief, when it discusses how Plaintiff informed Defendant first that his “publisher had insisted 

1 However, there is an alternative which would lessen Defendant’s burden, to which Plaintiff will 

gladly agree. The Court can simply order Defendant to provide the filings in question 

immediately to the Court Security Officer to be filed in camera with the Court in the same 

fashion as any classified document Defendant would file on its own. This would obviate the need 

to conduct an expedited prepublication review of the filings and thereby spare the reviewers any 

additional work. Defendant would then be free to take as long as it likes to conduct the 

prepublication review of the filings. The undersigned has done this in other cases where he 

needed to provide classified information to a court, and it is a process which generally takes less 

than a day for Defendant’s counsel to carry out.

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that the final Crowded Skies manuscript be delivered no later than 1 May” and then that “the 

publisher of Crowded Skies had pushed back its deadline to ’16 June.’” (Id. at 4-5.) This is 

clearly not a situation of an author “voluntarily committing to [a] publication deadline[]” (id. at 

4), but rather an author desperately attempting to prevent his publisher from cancelling his entire 

book contract while dealing with a recalcitrant and obdurate prepublication review office.

On that note, Defendant makes one very salient point:

As DOPSR’s website makes clear, “[d]ue to an increased number of submissions, 

book-length manuscript reviews are currently taking several months.” 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. (citations omitted).) The Court should take note of the fact that Plaintiff submitted Crowded 

Skies to Defendant in October 2021, and Defendant refused to process it until July 2022. 

Plaintiff has done everything Defendant has asked; he gave Defendant years—not “several 

months”—of “adequate time for a prepublication security and policy review prior to committing 

to any publishing deadline,” and he only finally committed to a deadline after he was caught 

between the Scylla of a publisher whose patience had run out and the Charybdis of a recalcitrant 

and obdurate prepublication review office.

After several paragraphs complaining without any serious cause about how “duplicative” 

adjudicating this one small motion will be—while paying no heed to the harm it would cause 

Plaintiff not to litigate this now—Defendant makes its final pair of complaints, focusing on the 

fact that the undersigned waited ten days after informing Defendant’s counsel that this Motion 

would be forthcoming and “should have informed the Court of any timing concerns before it 

entered the present schedule just two weeks ago.” (Id. at 5.) Defendant’s counsel carefully omits 

the fact that, as he knows, the undersigned is on a family vacation and has been since the close of 

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business on 16 June. Defendant’s counsel also carefully elides over the fact that Defendant did 

not make a final decision regarding the two pages in question until the day after the Court issued 

the Scheduling Order, raising the question of why Plaintiff would have any reason to “inform[] 

the Court of any timing concerns” at a time when he had every reason to expect that Defendant 

would reverse its position as part of the ongoing negotiation after he provided it with all the 

documentation it requested demonstrating that the information is not properly classified.

 In short, Defendant’s Opposition is long on complaints and short on substance, and the 

Court should recognize both Plaintiff’s need for a prompt resolution of the dispute regarding 

Crowded Skies and the tremendous forbearance he has exhibited in the face of Defendant’s 

vicissitudes over the last twenty months.

Date: June 29, 2023 

 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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