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 OPPOSITION TO DEFENDANT’S

EMERGENCY MOTION FOR EXTENSION OF TIME

Given the time constraints and the probability that the Court may act on Defendant’s 

Motion without realizing that it is both procedurally improper and factually misleading, Plaintiff 

is filing this extraordinarily brief opposition to flag the relevant issues for the Court’s attention. 

Plaintiff accordingly asks the Court to deny Defendant’s Motion without prejudice and direct 

Defendant to refile it after following the appropriate process so that Plaintiff can intelligently 

respond to it in a reasonable amount of time.

First, Defendant merely states that the undersigned stated that Plaintiff consents to a 21-

day extension without explaining why, which is relevant to this dispute. The undersigned 

informed Defendant’s counsel that the purpose of this shorter consent period was so that 

Defendant would be required to inform the Court of the progress of its “expedited” review and 

seek a further extension if necessary, rather than giving Defendant approximately two additional 

months to proceed at its own speed without any guarantee that steady progress would be made. 

This is especially appropriate since Defendant has repeatedly insisted to the Court that no 

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briefing should occur until it files its motion for summary judgment, even to the point of 

prompting the Court to deprive Plaintiff of the opportunity to brief an extremely time-sensitive 

matter before he is irreparably harmed by his book being printed with redactions. For Defendant 

to now turn around and insist that it should be afforded an additional eight weeks to conduct an 

additional review of an entire book it already cleared for release after reviewing it for eight 

months without having to provide any status updates to the Court flies directly against all of its 

protestations and exposes this Motion as yet another example of Defendant’s belief that it should 

only have to justify itself to the Court on its terms.

The second issue serves as yet another reminder of this outlook: It is well-established that 

government agencies may utilize ex parte, in camera declarations in certain cases. However, 

when an agency seeks to take this extraordinary measure, it must first seek the Court’s 

permission by filing a motion and provide the non-moving parties a chance to meaningfully 

oppose the motion. It may not simply do it and blithely “notify” the Court and the opposing 

parties of the ex parte, in camera filing. Defendant did not seek the Court’s leave to file an ex 

parte, in camera declaration in support of a motion for extension; it simply lodged the 

declaration and expected the Court to accept it without any discussion. The Court should 

accordingly strike the improperly filed declaration and direct Defendant to formally seek leave to 

file it ex parte and in camera, and subsequently allow Plaintiff an opportunity to meaningfully 

oppose it. While Plaintiff will not go into detail here regarding the legal arguments against 

accepting this filing because of the urgent need for filing this opposition, he will point out that 

there is a significant chance that the ostensibly classified declaration includes unclassified 

information, as evidenced by Defendant’s statement that “[t]he agency has since determined that 

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those passages do contain classified or otherwise protected information.” (Def.’s Emerg. Mot. 

Extension of Time, Dkt. #29, at 2 (filed Aug. 7, 2023) (emphasis added).) 

Simply put, the Court cannot allow a declaration to be filed ex parte and in camera in its 

entirety based on the assertion that it is classified when it discusses unclassified information. In 

any case, it cannot allow Defendant to file an entire declaration in camera without first requiring 

the filing of a redacted version on the public record or requiring Defendant to explain why the 

entire declaration must be sealed. See, e.g., Lion Raisins, Inc. v. Dep’t of Agric., 354 F.3d 1072, 

1083 (9th Cir. 2004) (“[A] district court may rely solely on ex parte affidavits ‘only in the 

exceptional case’ and only after ‘the government has submitted as detailed public affidavits and 

testimony as possible.’”) (quoting Doyle v. FBI, 722 F.2d 554, 556 (9th Cir. 1983)); see also 

Wiener v. FBI, 943 F.2d 972, 979 (9th Cir. 1991) (reversing district court’s order granting 

summary judgment for the agency after in camera review of ex parte affidavits, where the 

district court did not first require the agency to submit public affidavits setting forth as much 

detail as possible). This emphasis on public affidavits is because the purpose of the affidavits “is 

not merely to inform the [opposing party] of the agency’s conclusion that . . . particular 

[information] is exempt from disclosure . . . , but to afford the [opposing party] an opportunity to 

intelligently advocate release of the withheld [information] and to afford the court an opportunity 

to intelligently judge the contest.” Wiener, 943 F.2d at 979.

It is additionally problematic that Defendant has made no effort to actually justify this 

filing other than making a conclusory statement that the information must be provided ex parte

and in camera. While Plaintiff acknowledges that Defendant may need to circumlocute around 

any information which is properly kept secret, it must do more than it has here. Defendant’s 

motion consists of nothing more than a conclusory statement that the information is sensitive and 

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a notice of its filing ex parte and in camera. Plaintiff agrees that the Court has the authority to 

allow Defendant to submit an ex parte and in camera declaration; the problem is that Defendant 

has totally failed to demonstrate that the Court should.

 A proposed Order has been included with this opposition. 

Date: August 7, 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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