                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


GEORGE CANNING,
                                                         Civil Action No. 11-1295(GK)
                       Plaintiff,

               v.

U.S. DEPARTMENT OF JUSTICE,

                       Defendant.


                                 MEMORANDUM OPINION

       On December 15, 2013,            the Parties completed briefing cross-

motions for summary judgment on Plaintiff's Freedom of Information

Act    ("FOIA")     claims,    5 U.S.C.       §     522 et seq. On January 2,                 2014,

Plaintiff      filed     a    series    of    motions:         ( 1)   a     Third Motion        for

Discovery and for a Stay of the Case While Discovery Is Conducted

("Mot. Disc.")         [Dkt. No. 66],         (2) a Motion to Submit a Supplement

to His Reply in Support of Partial Summary Judgment ("Mot. Supp.")

[Dkt. No. 67], and (3) a Motion for Limited In Camera Review ("Mot.

In    Camera    Review" )      [Dkt.    No.       6 8]     Defendant        filed   an omnibus

Opposition        on   January    15,     2014           ("Opp'n")        [Dkt.   No.   69]     and

Plaintiff declined to file a Reply. For the reasons provided below,

the Court shall deny each of Plaintiff's motions.




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   I.        Plaintiff's Third Motion for Discovery

        In his Third Motion for Discovery,              Plaintiff contends that

limited       discovery   is   necessary   to    complete        his   opposition    to

Defendant's Motion for Summary Judgment.                   Mot.    Disc.   at 1.    The

discovery Plaintiff seeks concerns:               (1)    the presence of Lyndon

LaRouche's name on files provided to Plaintiff in response to his

September 2007       FOIA request;     and      (2)   Defendant's alleged non-

receipt      of   FOIA requests    made    to   the     FBI' s    headquarters.     See

generally id.

        As   this Court explained when it denied Plaintiff's Second

Motion for Discovery, discovery is rarely allowed in FOIA actions.

Wheeler v. C.I.A., 271 F. Supp. 2d 132, 129 (D.D.C. 2003). If the

Court deems the declarations of an agency deficient, then it may

request that the agency supplement those disclosures rather than

order discovery. Hall v. C.I.A.,             881 F. Supp. 2d 38,           73   (D.D.C.

2012) .

        This Court has already concluded that additional discovery

would not be appropriate in this case in view of the pending cross-

motions for summary judgment. See Op. at 2 [Dkt. No. 44]. Because

the subjects of Plaintiff's most recent discovery motion have been

extensively briefed by the Parties, much of the discovery sought

may well be rendered moot after the Court resolves the pending

Motions for Summary Judgment. Moreover, Plaintiff admits that the

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discovery      he   seeks   "is   derived       from   the    previously-submitted

interrogatories and document requests"                 ~   discovery requests this

Court has twice denied. Not only is it clear that at least some of

the information that Plaintiff seeks is irrelevant or protected by

various      FOIA   exemptions,     but     Plaintiff        has    not    offered   an

explanation as to why circumstances have changed since the Court's

previous denials so that discovery at this late stage in the case

is    now    warranted.     Accordingly,        Plaintiff's        Third   Motion    for

Additional Discovery shall be denied.

     II.    Plaintiff's Motion to Submit a Supplement to His Reply

       Plaintiff also requests that the Court permit him to file a

Supplement to his Reply in Support of his Cross-Motion for Partial

Summary Judgment. Plaintiff explains that "he discovered on a re-

reading of Mr. Hardy's Fourth Declaration ... that defendant has

made a      substantial change in its factual account regarding the

2007 FOIA request to FBI Headquarters." Mot. Supp. at 1. Plaintiff

"would like to bring this to the Court's attention, in the event

it also missed that change on its first reading of the Fourth Hardy

Declaration." Id.

       Plaintiff,    in short,     seeks to file a           surreply.     A district

court "may grant leave to file a surreply at its discretion." Am.

Forest & Paper Ass'n, Inc. v. E.P.A., 1996 WL 509601, at *3 (D.D.C.

1996).      "The standard for granting leave to file a                     surreply is

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whether the party making the motion would be unable to contest

matters presented to the court for the first time in the opposing

party's reply." Lewis v. Rumsfeld,           154 F.Supp.2d 56,   61   (D.D.C.

001); see also Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C.

Cir. 2003)    (quoting Lewis, 154 F.Supp.2d at 61).

      Plaintiff has not alleged that Defendant raised new arguments

or issues for the first time in his Reply in Support of its Motion

for Summary Judgment and Opposition to Plaintiff's Cross-Motion

for Partial Summary Judgment. On the contrary, Plaintiff explains

that he merely encountered information "on a re-reading of Mr.

Hardy's   Fourth Declaration"     that     he wished    "to bring ... to   the

Court's attention [.]" Mot. Supp. at 1. Even if Defendant had raised

new arguments    in its motion,      Plaintiff,    as   the   last party to

respond pursuant to the summary judgment briefing schedule,                had

ample opportunity to address those arguments in his Reply Motion.

For this reason, and in light of the fact that the Court already

afforded Plaintiff an opportunity to supplement his Opposition

Motion, see Minute Entry of Sept. 10, 2013, the Court shall deny

Plaintiff's Motion to Submit a Supplement to His Reply in Support

of Partial Summary Judgment.

  III. Plaintiff's Motion for Limited In Camera Review

      Plaintiff moves the Court to conduct an in camera review of

the   FBI's   withholdings   under    FOIA    Exemption   7(E)   because    he

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suspects    that        the    FBI     has     improperly     withheld     material    that

demonstrates well-known or illegal investigative techniques. See

Mot. In Camera Review at 1.

     Whether in camera inspection of contested FOIA material is

appropriate is a question that lies within the district court's

discretion. See Ctr.               for Auto Safety v. E.P.A.,            731 F.2d 16, 22

(D.C. Cir. 1984). "[W]hen the agency meets its burden [under FOIA]

by means of affidavits, in camera review is neither necessary nor

appropriate."       Id.       at     23.    A court     may   find   affidavits       to   be

sufficient if they "show,                   with reasonable specificity,          why the

documents fall within the exemption," are not "conclusory ... too

vague or sweeping," and "there is no evidence in the record of

agency bad faith."            Id.     (citing Hayden v. N.S.A.,            608 F.2d 1381,

1387 (D.C. Cir. 1979)).

     In this       case,       Defendant has          filed numerous       affidavits      in

support    of    its     Motion       for     Summary   Judgment     that    justify,      in

extensive       detail,        the         applicability      of   the     asserted     FOIA

exemptions.        In     reviewing            the    pleadings      and     accompanying

affidavits,      the Court has               found no evidence or allegations of

agency bad faith.             Furthermore,       the appropriateness of the FBI's

withholding       of      material           documenting       certain      investigative

techniques is an issue that has been well-briefed by the Parties

in their cross-motions for summary judgment.                         In his Motion for

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Limited           In   Camera Review,      Plaintiff   does   not    raise    any novel

issues. Accordingly,               the Court will resolve the pending summary

judgment motions and deny Plaintiff's Motion for Limited In Camera

Review.

IV.     CONCLUSION

        For        the      foregoing   reasons,    Plaintiff's     Third    Motion   for

Discovery and for a Stay of the Case While Discovery is Conducted,

Motion to Submit a Supplement to His Reply In Support of Partial

Summary Judgment, and Motion for Limited In Camera Review shall be

denied. An Order shall accompany this Memorandum Opinion.




April   r;;}_f,    2 01 7                           Gladys Kesser
                                                    United States District Judge


Copies to: attorneys on record via ECF

and to

George Canning
60 Sycolin Road
Leesburg, VA 20175




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