Reply Memorandum Of Law In Support Of: WHISTLEBLOWERS & RESEARCH, v. NATIONAL INSTITUTES OF HEALTH,

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Reply Memorandum of Law, Document 25, filed 04/06/22 in the Eastern District of Virginia, Alexandria Division (Case No. 1:21-cv-1275), in Empower Oversight Whistleblowers & Research v. National Institutes of Health. The memorandum supports NIH's Motion to Vacate the Scheduling Order in a Freedom of Information Act (FOIA) case. NIH argues that Plaintiff has not shown it is entitled to pre-summary judgment discovery, that discovery in FOIA cases is the exception rather than the rule, and that Plaintiff has not alleged bad faith. NIH states that it provided the declaration of its FOIA Officer to Plaintiff on March 25, 2022, and that supplemental declarations can address any defects.

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Case 1:21-cv-01275-LMB-JFA           Document 25       Filed 04/06/22      Page 1 of 4 PageID# 329




                        IN THE UNITED STATES DISTRICT COURT
                        FOR THE EASTERN DISTRICT OF VIRGINIA
                                   Alexandria Division

  EMPOWER OVERSIGHT                                )
  WHISTLEBLOWERS & RESEARCH,                       )
                                                   )
                        Plaintiff,                 )
                                                   )       Case No. 1:21-cv-1275 (LMB/JFA)
         v.                                        )
                                                   )
  NATIONAL INSTITUTES OF HEALTH,                   )
                                                   )
                        Defendant.                 )
                                                   )
                                                   )

                  REPLY MEMORANDUM OF LAW IN SUPPORT OF
              NATIONAL INSTITUTES OF HEALTH’S MOTION TO VACATE

         Plaintiff’s Opposition to National Institutes of Health’s (“NIH”) Motion to Vacate the

  Scheduling Order fails to demonstrate that it is entitled to pre-summary judgment discovery in

  this Freedom of Information Act (“FOIA”) case. Well-settled case law establishes that discovery

  in FOIA cases is the exception rather than the rule. And in the rare cases where discovery is

  appropriate—typically upon a plaintiff’s showing of bad faith by the government, which Plaintiff

  has not alleged here (and, indeed, could not) —Plaintiff admits on the first page of its Opposition

  that such discovery is appropriate only after the Court has had an opportunity to review the

  government’s motion for summary judgment. Opp’n (Dkt. 24) at 1. This Court should reject

  Plaintiff’s invitation to overturn precedent regarding the propriety of discovery in FOIA cases,

  especially where, as here, Plaintiff has put forward no compelling reason for such a sea change.

         Before delving into the merits of Plaintiff’s Opposition, it is important to understand the

  context in which NIH provided the declaration of Gorka Garcia-Malene, NIH’s FOIA Officer, to

  Plaintiff. Aware that FOIA cases “should be resolved on summary judgment,” Hanson v. U.S.



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Case 1:21-cv-01275-LMB-JFA            Document 25         Filed 04/06/22      Page 2 of 4 PageID# 330




  Agency for Int’l Dev., 372 F.3d 286, 290 (4th Cir. 2004), counsel for NIH asked opposing

  counsel to meet and confer on a briefing schedule for cross-motions for summary judgment that

  could be filed simultaneously with NIH’s Answer. See Def.’s Br. (Dkt. 20) at 2. Plaintiff

  resisted setting a briefing schedule. Instead, Plaintiff suggested that NIH preview the declaration

  it intended to use in support of its motion for summary judgment in an effort to either resolve the

  case without such briefing or to narrow the issues to brief. Id. NIH’s understanding was that

  Plaintiff would review the declaration and either bring to NIH’s attention additional issues that

  the parties could then negotiate and resolve, or that Plaintiff would be satisfied that NIH had

  made a good-faith effort to undertake a search reasonably calculated to yield responsive

  documents and dismiss the case. 1 NIH provided the declaration to Plaintiff on March 25, 2022.

  The only communication NIH has received from Plaintiff regarding the declaration since that

  date is the notice of electronic filing alerting NIH that Plaintiff had attached the declaration to its

  Opposition to NIH’s Motion to Vacate the Scheduling Order.

          Turning to the merits of that Opposition, Plaintiff concedes that “discovery in FOIA

  cases typically occurs only after the Government files a motion for summary judgment.” Opp’n

  (Dkt. 24) at 1 (citing Williams Mullen v. U.S. Army Criminal Investigation Command, 2011 WL

  5870550, at *3 (E.D. Va. Nov. 22, 2011)). Nonetheless, Plaintiff argues that the “facts and

  current procedural posture of this case” require immediate discovery before any summary

  judgment briefs have been filed. Id. at 2.

         There is nothing unusual about this FOIA case that would merit discovery, let alone

  discovery before NIH has filed its motion for summary judgment. “Discovery in FOIA cases is




  1
    NIH’s proposed briefing schedule accounts for this process, proposing that opening briefs be
  filed on or before May 13, 2022. (Dkt. 19-1).
                                                     2

Case 1:21-cv-01275-LMB-JFA            Document 25        Filed 04/06/22      Page 3 of 4 PageID# 331




  rare,” Cole v. Copan, 485 F. Supp. 3d 243, 249 (D.D.C. 2020), and is generally not appropriate

  “prior to the government filing a motion for summary judgment explaining the appropriateness

  of its decision,” Williams Mullen, 2011 WL 5870550, at *3. The government establishes the

  “appropriateness of its decision” through agency affidavits or declarations explaining the search.

  Cole, 485 F. Supp. 3d at 249. The court then evaluates those affidavits, which are “entitled to a

  presumption of good faith,” and “a court may grant summary judgment based on an affidavit it if

  contains reasonably specific detail and neither contradictory record evidence nor evidence of bad

  faith calls it into question.” Id. When the court believes an affidavit lacks sufficient detail,

  discovery is almost never the answer. “When an agency’s declarations are insufficient to

  establish an adequate search, courts generally will request that an agency supplement its

  supporting declarations instead of ordering discovery.” Cole, 485 F. Supp. 3d at 254 (citations

  and internal quotation marks omitted). “Limited discovery is typically only permitted when the

  agency has acted in bad faith, such as in cases where there has been extreme delay or evidence of

  wrongdoing.” Id. (emphasis added).

           Plaintiff has made no such allegations of bad faith or extreme delay here. And, as

  Plaintiff admits, even in the rare circumstances where discovery is appropriate, it is not permitted

  until after the Court has had an opportunity to review the agency’s summary judgment briefing

  and supporting exhibits. Opp’n at 1. Rather than explain why “the facts and current procedural

  posture of this case” warrant deviating from the well-accepted rule that discovery is not needed

  in FOIA cases, Plaintiff’s Opposition attempts to argue that discovery is needed now to

  determine the ultimate question in this case—that is, whether NIH’s FOIA search was reasonably

  calculated to produce responsive records. In other words, “what Plaintiff is asking for is

  discovery to evaluate what he believes to be the insufficiency of the government’s response to



                                                    3

Case 1:21-cv-01275-LMB-JFA           Document 25       Filed 04/06/22      Page 4 of 4 PageID# 332




  his FOIA request and the improper withholding of information under FOIA exemptions.”

  Thompson v. United States, 2010 WL 231782, at *3 (E.D. Va. Jan. 19, 2010). But these are

  questions of law that the Court can “properly evaluate” after NIH has filed is summary judgment

  motion. Id.

         Furthermore, Plaintiff’s Opposition prematurely attempts to argue the adequacy of NIH’s

  search, which is clearly inappropriate given the procedural posture of this case. There is no bar

  on NIH providing additional evidence at summary judgment to address the concerns that

  Plaintiff raises in its Opposition. Thus, the remedy to the purported defects in NIH’s declaration

  is not carte blanche discovery, but rather supplemental declarations, which NIH can (and will)

  provide in the context of its summary judgment briefing. Cole, 485 F. Supp. 3d at 254.

         Plaintiff has failed to make a convincing arugment on why it is entitled to discovery now,

  before the Court has considered the parties’ summary judgment briefs and where there are no

  allegations of bad faith. This Court should grant NIH’s motion, vacate the scheduling order, and

  enter the briefing schedule proposed by NIH.

  Dated: April 6, 2022                                Respectfully submitted,

                                                      JESSICA D. ABER
                                                      UNITED STATES ATTORNEY

                                                      By:            /s/
                                                      MEGHAN LOFTUS
                                                      Assistant United States Attorney
                                                      Office of the United States Attorney
                                                      Justin W. Williams U.S. Attorney’s Building
                                                      2100 Jamieson Ave.
                                                      Alexandria, VA 22314
                                                      Tel: (703) 299-3757
                                                      Fax: (703) 299-3983
                                                      Email: meghan.loftus@usdoj.gov

                                                      Counsel for Defendant



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