M. G REGG BLOCHE , M.D. and JONATHAN H. MARK S,

P laintif fs,
v. DEP ARTMENT OF DEF ENSE et al. ,

Defendan ts.

UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 07-2050 (HHK /JMF )

MEMORAN DUM OP INION Currently pending and re ady

for r esolution is P laintiffs’ Motion for L eave to Amend Complaint [ #24]. For the re asons stated he rein, plaintiffs’ motion will be denie d. INTRODUCTION Plaintiffs are M. G reg g Bloc he, M.D. a nd J onathan H. Ma

rks, experts on bioethics. Complaint for Dec laratory and Injunctive Relief ( “Compl.”) ¶ 3. This c ase a rises fr om a serie s of F ree dom of I nformation Ac t (“F OI A”) , 5 U.S.C. § 552 et seq., reque sts made by plaintiffs to 1 various fe dera l ag encie s. Compl. ¶ 4. I n these re quests, plaintiffs seek “ to compel the def endants to relea se re cords r elating to the participation of doctors and othe r hea lthcare profe ssionals in the interrog ation of military

prisoners a

nd individuals detained by the United States g overnme nt on the basis of a lleg ed ter

rorist ac tiviti es.” Compl. ¶ 1.

A l l r e f e r e n c e s t o t h e U n i t e d S t a t e s C o d e a r e t o t h e e l e c t r o n i c v e r s i o n s f o u n d o n W e s t l a w a n d L e x i s . 1I n the motion curre ntly befor e the Court, plaintiffs see k to amend their c omplaint to add fac ts not known to them at the time of the filing of their initial complaint, pursuant to Rule 15(a) (2) of

the Fe dera l Rules of Civil Procedur e. Plaintiffs’ Memora ndum of Points and Authorities in Support of Motion t o Amend Complaint (“Plains. Mem.”) at 1. Specifica lly , plaintiffs seek to a dd to their orig inal complaint the fa ct that althoug h they resubmitted their FOIA re quests to the Central I ntellige nce A g ency

(“CI A”) in Dece mber of 2008, to date they have not r ece ived any

documents or a

response to their reque st. I d. DISCUSSIO N I
. The Parties’ Arguments Def endants oppose pla intiffs’ motion on severa l gr ounds. First, def endants a rgue that plaintiffs have mischara cter ized their motion i n that it is not a motion to amend but rathe r one to supplement their complaint pursua nt to Rul e 15(d) of the F eder al Rules of Civil P roce dure since it seeks to “set out eve nts that occurr ed af ter the or igina l complaint was filed.” Def endants’ Opposition to P laintiffs’ Motion to Amend the Complaint (“De fs. Opp.”) at 3. As such, defe ndants argue that the Court should deny the motion because plaintiffs could pursue their Dec ember

2008 claims ag ainst the CI A in a sepa rate FOI A ac tion. I d. Next, defenda nts arg ue that they would be pre

judiced if the Court we re to a llow plaintiffs to supplement their complaint beca use the c laims curre ntly

befor e the Court, which a re c lose to final re solution, would be delay ed while the CIA proc esses plaintiffs’ new r equests. I d. at 4. Fina lly , defe ndants contend that if the Court wer e to allow plaintiffs to supplement their c omplaint, it would be akin to permitting pla intiffs to nulli fy the Court’s Novembe r 20, 2008 Memora ndum Opinion where in the Court conclude d that plaintiffs had fa iled to comply with FOIA re gulations beca use the CI A
never rec eived two of

plaintiffs’ four

reque sts. I d. at 5-7.

2I I
. The Nature of Plaintiffs’ Motion

Plaintiffs seek to amend the ir complaint pursuant to Rule 15(a )(2) of the F eder al Rules of Civil Procedur e, which simply states that “a

party may amend its pleadingonly

with the opposing pa

rty ’s written c onsent or the c ourt’s leave.” F ed. R. Civ. P. 15(a)(2). Rule 15( d), on the other ha

nd, as def endants a rg ue, more aptly

descr ibes plaintiffs’ objec tives, namely to supplement their orig inal complaint by “setting out any

transac tion, occurr ence , or eve nt that happene d afte r the date of the ple ading to be supplemented.” Fe d. R. Civ. P . 15(d). In their own words, plaintiffs’ stated desire in seeking to “amend” the orig inal complaint is “to ref lect the resubmission [ of plaintiffs’ 2006 F OI A re quests] and the CI A’s continued f ailure to issue a

ny deter mination or relea se any

documents in response to these re quests.” Plains. Mem. at 1. Plaintiffs’ motion is clea

rly , there fore , one that see ks supplementation rathe r than amendment. See Ha ll v. CI A, 437 F.3d 94, 100 ( D.C. Cir. 2006) (“The addition of a ne w FO IA re quest is plainly a supplementa l pleading as def ined by Fe dera l Rule of Civil Procedur e 15(d) .”). The next questi on is whether the re is any signific ance to this di stinction. I I I
. Supplementation Woul d Cause Undue Delay I n After g ood v. CI A, 225 F. Supp. 2d 27 (D .D.C. 2002), the Court desc ribed the va rious fac tors to be consider ed whe n assessing a par ty ’s motion to suppl ement its complaint: A par ty may file supplemental plea dings “ setting f orth transa ctions or occ urre nces or

events whic h have ha

ppened sinc e the date of the pleadingsoug ht to be supplemented.” Fe d. R. Civ. P . 15(d). Supplemental pleading s may introduce ne w ca

uses of a ction not alleg ed in the orig inal complaint so long a s their introduction does not cre ate surpr ise or pre

judice the r ights of the adver se par ty
. Montgome ry

Envtl. Coaliti on v. Fr i, 366 F. Supp. 261, 265-66 (D.D.C. 1973). Mor eover , “leave to file a supplemental plea ding should be fre ely

permitted whe n the supplemental fa cts conne ct it to the orig inal pleading .” Qua ratino v. Tiffa

ny & Co., 71 F .3d 58, 66 (2d Cir. 1995). F inally , the purpose of pleading“is to fac ilitate 3a prope r dec ision on the merits” and avoid the dismiss al of potentially

meritorious claims due to proc edura l misst eps. Conley v. Gibson, 355 U.S. 41, 48, 78 S.C t. 99, 2 L .Ed.2d 80 (1957). I d. at 30. I n After g ood, the Court allowed the c omplaint to be supplemented inter alia beca use discovery had not y et begun. I d. at 31. A similar dec ision was rende red by the Court in J udicial Watch, I nc. v. U.S. Dep’ t of Ener g y , 191 F. Supp. 2d 138 (D.D .C. 2002). I n that case , the Court permitted the plaintiff to supplement its complaint bec ause at the time plaintiff soug ht leave to supplement, plaintiff still had not rece ived re sponses to its FOI A re quests from thre e of the nine targ eted a g encie s. I d. at 140. I n the ca se at ba r, howe ver, a lthough suppleme ntation of the complaint would not cre ate a ny undue surpr ise for de fenda nts and althoug h the supplemental fac ts are c lear ly

connec ted to the orig inal pleading , the par ties are close to final r esolution of the
case , less than one month shy of the filing of dispositive moti ons. The only rema ining production in this case is the submission of the CI A’s Va ug hn I ndex, which is due by May 15, 2 2009. See Memora

ndum Order

dated Nove mber 11, 2008 [#23] (“Me m. Order ”) at 12. There fore , unlike After g ood and Judi cial Watch, both par ties and the Court will have to put this
case to one side while e veryone aw aits further developments a s to the Dec ember 2008 reque sts. I t is hard to understand w hat possible purpose would be serve d by permitting pla intiffs to supplement their complaint by pleadingthat the CI A had not “issued a deter mination” with respe ct to FOIA re quests that wer e submitted in J uly 2006. First, as the g overnme nt corre ctly points out, I have a lrea dy ruled that the pr esumption that the reque sts, having be en mailed, we re
rec eived by

the CI A, is overc ome by

the unequivoca l assertion by the CI A that the ag ency

did

S e e V a u g h n v . R o s e n , 4 8 4 F
. 2 d 8 2 0 ( D
. C
. C i r . 1 9 7 3 )

. 2 4not rec eive them: “Without proof that the CI A ac tually rec eived the le tters, plaintiffs’ c laim,
even w hen viewe d along side the pre sumption create d by the mailbox rule, lac ks any forc e.” Mem. Orde r at 5-6. T hus, the asser tion that the reque sts were submitt ed in J uly 2006 is defea

ted by counter vailing pr oof. Permitting plaintiffs to make an incor rec t assertion is wastef

ul. Second, as the g overnme nt also points out, t he CI A has a dvised plaintiffs by letter dated Fe bruar y 4, 2009 that it was not g oing to mee t the 20 day FOIA dea dline for a

n ag ency response 3 and sug g ested that, a lthough plaintiffs c ould deem the state ment a denia l and proc eed to c ourt, it would be more prac tical to awa it the proce ssing of their re quest and then a

ppeal onc e the CI A was finished. I d. That wa s wise advice , whether plaintiffs contemplate d an ag ency appea l or filed suit in this Court. As to t he latter , if not permitted to supplement their complaint, plaintiffs will have to file anothe r ac tion that may , as they sug g est, be de emed a

rela ted ac tion to thi s one and be assig ned to J udg e Ke nnedy . But, whe ther a sserted in this case or in a ne w one, the F OI A re quest that was submitted in Dece mber 2008 will, bec ause of my order , be tre ated in the same way . I f the CI A has finished pr ocessingthe Dec ember 2008 reque st, it wil l need time to pre pare a Vaug hn index for submiss ion to the Court as the premise f or its inevitable motion for summary judgme nt. I f the CI A has not finished proc essingthat reque st, it wil l move pursuant to Open Americ a for a

n enlar g ement of time within which to proc ess the De cembe r 6, 2008 re quest and, 4 if that motion is gra

nted, then file its Vaug hn aff idavit. I t would make the same motion in any new law suit, whether r elated or not. Thus, in either ca se, the e x act same re sult can be

T h e l e t t e r i s a n e x h i b i t t o D e f s . O p p . 3 S e e O p e n A m . v . W a t e r g a t e S p e c i a l P r o s e c u t i o n F o r c e , 5 4 7 F
. 2 d 6 0 5 ( D
. C
. C i r . 1 9 7 6 )

. 4 5anticipated. It would follow then that the only prac tical conse quence of the de nial of this motion to supplement would be to save pla intiffs the filing f ee of the new suit. That is har dly enoug h
rea son to preclude this case f rom coming to its prompt conclusion pursuant to the Order s that have be en issued. Finally , althoug h irrele vant to the Court’s dec ision to deny plaintiffs’ motion for leave, the Court finds defe ndants’ ar g ument that permitting the plaintiffs to supplement their complaint with fac ts relating to the status of the re submissi on of their se cond and third F OI A re quests to the CI A on Dec ember

1, 2008 is the same as “ permitting the m to move to the head of the queue of individuals alrea dy

waiting for the CIA to respond to F OI A re quests, in contrave ntion of these published rules” unpe rsuasive. See Def s. Opp. at 5. I f the Court we re to a llow plaintiffs to supplement their complaint, the Court would per mit the CI A the time nee ded to pre pare its Vaug hn index. Thus, whether or not the motion to supplement were g rante d or denie d, and whether , if denied, the plaintiffs filed a ne w and r elated a ction, the CI A would g et the same time within which to respond. B eca use plaintiffs’ or igina l submiss ion of its second and third F OI A reque sts was faulty , plaintiffs’ re submissi on of those re quests on Dec ember 1, 2008 is actually the submission of a new f ifth reque st and place s plaintiffs in the same position as any one else who submitted a claim on De cembe r 1, 2008, did not g et an a nswer w ithin the 20 day s FOI A permits, and filed suit. CONCLUSION Plaintiffs’ motion to s upplement their orig inal complaint will be denied. The CI A’s fina l submissi on to plaintiffs is due within a fewday s and then the pa rties will be re ady

to file dispositi ve motions. Isee no just ca use in the fur

ther de lay of the Court’s re solution of plaintiffs’ first a

nd fourth re quests. An Orde r ac companies this Memora ndum Opinion. 6/S/ J OHN M. F ACCI OL A UNI TED STATES MAGI STRATE J UDGE Dated: Ma

y 13, 2009

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