U.S.

Department of Justice

United States Attorney

Eastern District of New York
271 Cadman Plaza East-7th Floor
Brooklyn, New York 11201
July 29, 2015
By Email and First-Class Certified Mail
Louis Flores
34-21 77th Street, Apt. #406
Jackson Heights, New York 11372
Re:

Louis Flores v. United States Department of Justice

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

Dear Mr. Flores:

On behalf of Defendant United States Department of Justice (DOJ or Defendant), we
write in response to your letter dated July 20, 2015.
Defendant disputes your characterizations of the DOJs conduct in this action. Contrary
to your assertions otherwise, DOJ has acted in good faith in responding to your FOIA request, as
will be established by way of a summary judgment motion in this action, if necessary.
As raised in Defendants letter dated July 8, 2015, discovery is not appropriate in this
case, and summary judgment motions are the typical method through which a Court reviews an
agencys response to a FOIA request. See, e.g., Carney v. United States Dept of Justice, 19 F.3d
807, 812 (2d Cir. 1993) (recognizing district court may decline discovery and enter summary
judgment); Schrecker v. United States Dept of Justice, 217 F. Supp. 2d 29, 35 (D.D.C. 2002),
affd, 349 F.3d 657 (D.C. Cir. 2003) (Discovery in FOIA is rare and should be denied where the
agencys declarations are reasonably detailed, submitted in good faith and the court is satisfied
that no factual dispute remains.). In addition, discovery is not available until the defendant has
an opportunity to provide the Court with the information necessary to make a decision on the
adequacy of the response to a FOIA request. Miscavige v. I.R.S., 2 F.3d 366, 369 (11th Cir.
1993); see also Lane v. Dept of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008) ([I]n [FOIA]
cases courts may allow the government to move for summary judgment before the plaintiff
conducts discovery. . . . Courts routinely delay discovery until after summary judgment in such
cases. (internal citations omitted)); Rivera v. F.B.I., Civ. Action No. 12-4174, 2013 WL
6528808, at *1-*2 (D.N.J. Dec. 12, 2013) (recognizing courts do not require a defending agency
to produce a Vaughn index before the filing of a dispositive motion and [i]n a FOIA case, a
court can only determine the need for discovery after the defending agency files its dispositive
motion and supporting affidavits[; p]rior to that point, a court cannot properly evaluate whether a
factual issue exists sufficient to warrant discovery); Thompson v. United States, No. 09-CV1246, 2010 WL 231782, at *3 (E.D. Va. Jan. 19, 2010) (rejecting plaintiffs request for discovery
in FOIA action before defendant has an opportunity to bring the issues before the court by way
of a summary judgment motion).

Louis Flores
July 29, 2015
Page 2

Further, the allegations in the Complaint regarding a purported pattern and practice by
the government (which Defendant denies) are neither specific enough nor the type that courts
have found to justify discovery, or even to state a plausible claim for relief. See, e.g.,
Pietrangelo v. United States Army, 334 F. Appx 358, 360 (2d Cir. 2009) (recognizing that
[t]his Court has not yet recognized or articulated the inquiry relevant to a pattern or practice
claim in the FOIA context . . . ., but nonetheless affirming district courts dismissal of such a
claim); ONeill v. United States Dept of Justice, No. 05-CV-306, 2008 WL 819013, at *12 (E.D.
Wis. Mar. 25, 2008) (finding claims alleging a pattern and practice of violating the FOIA have
been deemed ripe in limited circumstances); Nulankeyutmonen Nkihtaqmikon v. Bureau of
Indian Affairs, 493 F. Supp. 2d 91, 114 (D. Me. 2007) (finding plaintiffs allegation of a pattern
or practice based on a delay in responding to a FOIA request was not the type of impermissible
pattern and practice the law contemplates (discussing Payne Enters., Inc. v. United States, 837
F.2d 486, 494 (D.C. Cir. 1988)); Pub. Emp. for Envtl. Responsibility v. United States Dept of
Interior, Civ. Action No. 06-182, 2006 WL 3422484, at *8-*10 (D.D.C. Nov. 28, 2006)
(dismissing claims that agency had a policy or practice of delaying responses to FOIA requests
where plaintiff pointed only to the agencys isolated response to the FOIA request at issue in
this case, which by itself is insufficient to demonstrate a policy or practice of delayed or
incomplete responses to FOIA requests[,] even though the agency responded to the FOIA
request outside of the statutory time frame under FOIA (footnote omitted)). As a result, there is
no justification for departing from the typical procedure in a FOIA case, and Defendant will
oppose any request for discovery at this stage as being both premature and inappropriate. See,
e.g., Miscavige, 2 F.3d at 369.
At present, DOJ anticipates providing you with a response to your April 30, 2013 FOIA
request before the initial scheduling conference with the Court, and likely within the next few
weeks. We suggest that a conference call would be most effective after your receipt of the
response to your FOIA request. Nevertheless, should you wish to speak before receipt of the
response, the undersigned is available for a conference call on Friday, July 31, 2015 after 11:00
a.m. or Tuesday, August 4, 2015 before 1:00 p.m. Please advise what time works for you and at
what number you may be reached.
I look forward to speaking with you.
Very truly yours,
KELLY T. CURRIE
Acting United States Attorney
By:

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