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

EMERGENCY MOTION FOR EXTENSION OF TIME

Defendant the Department of Defense hereby respectfully requests that the 

Court extend the deadline for its motion for summary judgment by 54 days, until 

October 4, 2023. This motion is supported by a Classified Declaration that has 

been submitted to the Court for ex parte, in camera review. Because the deadline 

for the Department’s motion is on August 11, 2023, the Department further

requests that the Court decide this motion on an expedited basis.1

This case involves a challenge by a former Air Force Captain, who seeks to 

publish several manuscripts, to the prepublication review process administered by 

the Department. See Complaint, ECF No. 1. One of the manuscripts at issue is a 

1 The Department reached out to Plaintiff regarding the relief requested in this motion, and was 

informed that Plaintiff consents to a 21 day extension, but not 54 days. The Department nonetheless seeks 

54 days given the difficulty of re-reviewing Plaintiff’s manuscript and preparing the requisite summary 

judgment materials within 21 days.

Case 3:22-cv-00706-E Document 29 Filed 08/07/23 Page 1 of 7 PageID 466
2

book titled Crowded Skies: Cold War Reconnaissance Over the Baltic. See id.

¶¶ 60-74. The Defense Office of Prepublication and Security Review (“DOPSR”) 

cleared the book for release, as amended, on March 29, 2023. Dr. Hopkins has 

contested several of the required amendments, and the agency that required those 

amendments has been preparing a classified declaration justifying them for 

submission with the Department’s motion for summary judgment.

In the course of preparing that declaration and reviewing the underlying 

manuscript, agency counsel became aware that the agency’s reviewer had 

inadvertently failed to redact several passages that appear to contain classified or 

otherwise protected information. The agency has since determined that those 

passages do contain classified or otherwise protected information that, if released, 

would cause significant harm to national security and foreign relations. The 

Department is limited in what it can say on the public record about this discovery 

but is providing more explanation in the Classified Declaration that has been 

submitted to the Court in conjunction with this motion. 

Given the significance of this error, the agency has decided that it needs to 

review the entire book again to ensure that no other classified or otherwise 

protected material is contained in the book. The agency is committed to doing this 

re-review on an expedited basis—specifically, within 45 days. The Department 

Case 3:22-cv-00706-E Document 29 Filed 08/07/23 Page 2 of 7 PageID 467
3

will then issue a revised determination to Dr. Hopkins, and requests permission to 

move for summary judgment 9 days later, for a total of 54 days.

The Department sincerely apologizes for this error and for the disruption to 

the existing schedule, which is unfortunately necessary to ensure that classified or 

otherwise protected information that could harm national security is not improperly 

disclosed. The Department is not filing this motion for the purposes of delay, and 

brought this matter to the attention of Dr. Hopkins and the Court as soon as 

practicable. Agency counsel noticed the apparent error on Friday, July 28, and 

immediately commenced discussions within the agency to determine what steps 

should be taken. The Agency’s Original Classification Authority with purview 

over the prepublication review process was apprised of the error on Monday, July 

31. At that time, a Classification Advisory Officer with relevant subject matter 

expertise was instructed to conduct a new review of an excerpt of the manuscript. 

That review was completed on Wednesday, August 2, and the Agency began to 

work with counsel to have the prepublication review clearance retracted as soon as 

practicable. The Department decided to retract its determination on August 4, and 

notified Dr. Hopkins on August 7. The Department approached counsel for Dr. 

Hopkins regarding the relief requested in this motion immediately thereafter and 

filed the motion the same day.

Case 3:22-cv-00706-E Document 29 Filed 08/07/23 Page 3 of 7 PageID 468
4

There is therefore good cause for the requested extension. Extending the 

Department’s summary judgment deadline by 54 days will enable the agency to 

complete its review of Crowded Skies and determine whether the manuscript 

contains additional classified or otherwise protected information. The Department 

will then move for summary judgment on all of Dr. Hopkins’s manuscripts at the 

same time. 

In contrast, proceeding with briefing piecemeal would be inefficient, as this 

Court has repeatedly recognized in its scheduling orders. See, e.g., ECF Nos. 12, 

24, 28. By barring a party from filing “more than one motion for summary 

judgment,” Local Rule 56.2 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). 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, N.A., No. 3:13-CV-4682-D, 2015 WL 5547495, at *2 (N.D. Tex. Sept. 21, 

2015) (quotation omitted). Thus, 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).

Case 3:22-cv-00706-E Document 29 Filed 08/07/23 Page 4 of 7 PageID 469
5

Litigating this prepublication review case through successive summary 

judgment filings would be particularly inefficient. 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 Dr. Hopkins’s manuscripts. Briefing 

these issues multiple times 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”).

The only urgency that the Department is aware of with respect to Dr. 

Hopkins manuscripts relates to the publication of Crowded Skies. However, the 

Department understands that the publication deadline for Crowded Skies has 

moved multiple times, from May 1, to June 16, and then purportedly the end of 

August. See Opp. to Pl.’s Mot. for Leave to File at 4-5, ECF No. 26. The requested 

extension should not prejudice Dr. Hopkins with respect to the other manuscripts 

Case 3:22-cv-00706-E Document 29 Filed 08/07/23 Page 5 of 7 PageID 470
6 

as issue in this case, and it will allow for the more efficient briefing of all issues in 

the case at the same time.

For these reasons, the Department respectfully requests that the Court extend 

its deadline to file a motion for summary judgment by 54 days, to October 4, 2023.

Dated: August 7, 2023 Respectfully submitted,

BRIAN M. BOYNTON

Principal Deputy Assistant Attorney General

MARCIA BERMAN

Assistant 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

Case 3:22-cv-00706-E Document 29 Filed 08/07/23 Page 6 of 7 PageID 471
7 

CERTIFICATE OF CONFERENCE

I hereby certify that on August 7, 2023, I conferred by email with counsel 

for Plaintiff concerning the relief requested in this filing. Counsel for Plaintiff 

indicated that Plaintiff consented to a 21 day extension, but not a 54 day extension.

/s/ John T. Lewis

John T. Lewis

CERTIFICATE OF SERVICE

I hereby certify that on August 7, 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

Case 3:22-cv-00706-E Document 29 Filed 08/07/23 Page 7 of 7 PageID 472