Case 1:15-cv-02627-JG-RLM Document 13 Filed 09/11/15 Page 1 of 4 PageID #: 131

U.S. Department of Justice

United States Attorney

Eastern District of New York
271 Cadman Plaza East-7th Floor
Brooklyn, New York 11201
September 11, 2015
BY ECF
Honorable Roanne L. Mann
United States Magistrate Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re:

Louis Flores v. United States Department of Justice

No. 15-CV-2627 (Gleeson, J.) (Mann, M.J.)

Dear Judge Mann:

This letter is respectfully submitted on behalf of Defendant United States Department of
Justice (DOJ) in response to Plaintiffs letter dated September 3, 2015. DOJ respectfully
requests that the Court deny Plaintiffs requests to compel discovery and for leave to amend the
pleadings.
This is an action brought under the Freedom of Information Act (FOIA), 5 U.S.C.
552, involving Plaintiffs April 30, 2013 request under the FOIA for certain information and
records pertaining to the nature and purpose of the U.S. Attorneys Offices (USAO)
prosecution of Daniel Choi. Under the FOIA, the Courts authority is limited to enjoin an
agency from improperly withholding agency records from a person who has made a proper
written request for the records. 5 U.S.C. 552(a)(4)(B); see also 5 U.S.C. 552(a)(3)(A).
When Plaintiff filed his Complaint, the Executive Office for United States Attorneys
(EOUSA) had not yet responded to Plaintiffs FOIA request. 1 However, on August 17, 2015,
EOUSA responded to Plaintiff that no responsive records had been located upon searches
conducted in the Office of the USAO for the District of Columbia (USAO-DC), the USAO
that prosecuted Daniel Choi. EOUSA also made a discretionary release of publicly available
documents that involved, generally, the prosecution of Choi, which were located in the files of
the USAO-DC.

EOUSA is a subcomponent of DOJ and is responsible for responding to FOIA requests

on behalf of the USAOs and EOUSA. A FOIA request to other components of DOJ must be
made to the FOIA office of that component. See 28 C.F.R. 16.3; see also 5 U.S.C. 522(a)(3)
(A FOIA request to an agency must be in accordance with published rules stating the time,
place, fees (if any) and procedures to be followed.).

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Honorable Roanne L. Mann
September 11, 2015
Page 2
Although Plaintiffs Complaint challenges the lack of the response to his FOIA request,
Plaintiffs September 3, 2015 letter now indicates that he also seeks to challenge the August 17,
2015 response. Plaintiff seeks the Court to direct discovery and permit him to file an amended
complaint. Plaintiff also appears to challenge the FOIA response as being non-responsive,
incomplete, done in a bad faith as red herring, 2 and the result of an inadequate search for
responsive records.
As an initial matter, discovery is typically unavailable in FOIA actions, which ordinarily
are resolved by way of summary judgment motions. See, e.g., Carney v. United States Dept. of
Justice, 19 F.3d 807, 812 (2d Cir. 1994) (recognizing district court may decline discovery and
enter summary judgment); Lane v. Dept of the Interior, 523 F.3d 1128, 1134 (9th Cir. 2008);
Miscavige v. Internal Revenue Serv., 2 F.3d 366, 369 (11th Cir. 1993); Wheeler v. C.I.A., 271 F.
Supp. 2d 132, 139 (D.D.C. 2003) (Discovery is generally unavailable in FOIA actions.);
Broaddrick v. Exec. Office of President, 139 F. Supp. 2d 55, 63 (D.C. 2001) ([D]iscovery is not
typically a part of FOIA and Privacy Act cases[.]). As one district court has explained: In a
FOIA case, a court can only determine the need for discovery after the defending agency files its
dispositive motion and supporting affidavits. Prior to that point, a court cannot properly evaluate
whether a factual issue exists sufficient to warrant discovery. Rivera v. Fed. Bureau of
Investigations, No. 12-4174, 2013 WL 6528808, at *1-*2 (D.N.J. Dec. 12, 2013). There is no
reason to depart from this standard here.
DOJ plans to file a summary judgment motion in this action. DOJs anticipated summary
judgment motion will be supported by one or more declarations from responsible agency
officials demonstrating that it conducted a reasonable search and made an appropriate
discretionary release of documents. See Carney, 19 F.3d at 812 (finding defendant agency must
show that it conducted an adequate search for responsive records and that any responsive
documents that were not released were properly withheld under a FOIA exemption). Although
Plaintiff states that discovery is appropriate when an agency has not undertaken an adequate
search for records[,] (Pltffs letter at 2), such a showing cannot be made absent the opportunity
for DOJ to set forth how the search was conducted through its summary judgment motion. See
also Rivera, 2013 WL 6528808 at *1-*2. In his opposition to DOJs motion, Plaintiff will have
the opportunity (and the burden) to demonstrate that the searches were inadequate or not in good
faith. See Carney, 19 F.3d at 812. Accordingly, it is respectfully requested that the Court deny
2

Contrary to Plaintiffs statements, the undersigned never said to Plaintiff that that the
burden of locating any documents missing from the FOIA Response would fall on Plaintiff[.]
(Pltffs letter at 2). Rather, the undersigned stated that the documents included in the
discretionary release were available on PACER and the full set of documents available on
PACER was not part of the discretionary release because not all of those documents were located
in USAO-DCs files and not all of those documents relate specifically to Daniel Choi, who was
only one defendant in a multi-defendant case. Further, the undersigned sought clarification as to
which portions of the non-responsive discretionary release that Plaintiff felt were missing and
offered to provide, as a courtesy, the two documents Plaintiff identified. However, Plaintiff
declined the offer.

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Honorable Roanne L. Mann
September 11, 2015
Page 3
Plaintiffs application to compel discovery. 3
Furthermore, Plaintiffs assertions regarding the discretionary release provided by the
EOUSA to Plaintiffs FOIA request do not justify a departure from the normal course in this
action. First, because Plaintiffs FOIA request itemized four particular categories of information
and documents that he sought in connection with the Choi prosecution, documents generally
relating to the Choi prosecution would not have been responsive to Plaintiffs request. Whether
to release such documents was within the discretion of EOUSA, and the agency should not be
penalized for attempting to provide documents that related to the general subject matter of
Plaintiffs FOIA request in the spirit of the FOIA. See Greenberg v. U.S. Dept of Treasury, 10
F. Supp. 2d 3, 23 (D.C. 1998) (Agencies are generally free to make discretionary disclosures of
information . . . . (footnote omitted)); Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d
704, 712 n.34 (D.C. Cir. 1977) (The FOIA should not be construed so as to put the federal
bureaucracy in a defensive or hostile position with respect to the Acts spirit of open government
and liberal disclosures of information.); see also Attorney General, Memorandum for Heads of
Executive Departments and Agencies, The Freedom of Information Act (FOIA), at 1 (I
strongly encourage agencies to make discretionary disclosures of information.). 4 Second,
EOUSA collected only those documents that related specifically to Choi. Third, the EOUSA
properly withheld from the discretionary release any documents involving Choi that were not
public pursuant to the Privacy Act, 5 U.S.C. 552a. Plaintiffs accusations of bad faith in
connection with EOUSAs discretionary release fail as a matter of fact and law. See Greenberg,
10 F. Supp. 2d at 23; Nationwide Bldg. Maintenance, 559 F.2d at 712 n.34.
In addition, DOJ respectfully requests that Plaintiffs informal request to amend the
Complaint be denied. To the extent that Plaintiff wants to amend the Complaint to add
allegations concerning events that have occurred since the Complaint was filed (i.e., DOJs
response to his FOIA request), Plaintiff would need to seek leave to supplement the Complaint
pursuant to Rule 15(d) of the Federal Rules of Civil Procedure. Such supplementation would be
an unnecessary formality in this case because DOJs motion will address the appropriateness and
adequacy of the response to Plaintiffs FOIA request. To the extent that Plaintiff seeks to amend
his Complaint to include allegations of bad faith and misrepresentation, amendment would be
futile because such allegations would lack merit. Plaintiffs proposed claims seeking the
appointment of a monitor or for sanctions, or amendments to address defenses asserted by DOJ,
would also be futile. See, e.g., OMeara v. I.R.S., 142 F.3d 440, 1998 WL 123984, at *1 (7th
Cir. Mar. 17, 1998) (FOIA . . . does not authorize sanctions as a remedy for failure to disclose
documents.); Brown v. F.B.I., 873 F. Supp. 2d 388, 408 (D.C. 2012) (denying request for
sanctions where the court could find no reason for such an extreme punishment without
substantial evidence that defendant frustrated judicial proceedings).

Contrary to Plaintiffs statement that [i]t is Defendants intention to request discovery

in this case[,] DOJ has never stated that it would seek discovery in this case. (See Pltffs letter
at 2).
4
Available at http://www.justice.gov/sites/default/files/ag/legacy/2009/06/24/foia-memomarch2009.pdf.

Case 1:15-cv-02627-JG-RLM Document 13 Filed 09/11/15 Page 4 of 4 PageID #: 134

Honorable Roanne L. Mann
September 11, 2015
Page 4
Accordingly, DOJ respectfully requests that the Court deny Plaintiffs application to
compel discovery and for leave to amend his Complaint. DOJ proposes the following briefing
schedule for its motion for summary judgment:

By September 25, 2015, DOJ file and serve its motion for summary judgment;
By October 23, 2015, Plaintiff file and serve opposition and any cross-motion;
and
By November 11, 2015, DOJ file and serve a reply and opposition to any crossmotion.

DOJ is prepared to discuss these issues with the Court on September 16, 2015. Thank
you for Your Honors attention to this matter.
Respectfully submitted,
KELLY T. CURRIE
Acting United States Attorney
By:

cc:

[via email and first-class certified mail]

Louis Flores
34-21 77th Street, Apt. #406
Jackson Heights, New York 11372
louisflores@louisflores.com
Pro se Plaintiff

s/Rukhsanah L. Singh
RUKHSANAH L. SINGH
Assistant U.S. Attorney
(718) 254-6498
rukhsanah.singh@usdoj.gov