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DoJ reply to CEI in support of motion for summary judgement in CEI vs NASA (2010)

DoJ reply to CEI in support of motion for summary judgement in CEI vs NASA (2010)

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Published by: climscifoi on Mar 27, 2011
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03/27/2011

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA____________________________________)COMPETITIVE ENTERPRISE )INSTITUTE, ))Plaintiff, )) Civil Actionv. ) No. 10-0883 (RWR))NATIONAL AERONAUTICS )AND SPACE ADMINISTRATION, ))Defendant. )____________________________________
 
)
REPLY MEMORANDUM IN SUPPORT OFDEFENDANT’S MOTION FOR SUMMARY JUDGMENT
 
Case 1:10-cv-00883-RWR Document 22 Filed 12/02/10 Page 1 of 27
 
1
INTRODUCTION
 Plaintiff’s opposition brief (“Pl.’s Opp’n”) in this FOIA case tries to employ innuendoand semantics to paint a picture of a government agency and its employees conspiring to hideinformation about the agency’s official positions about “the global warming narrative.”
See
Pl.’sOpp’n at 1-2, 25-26. Plaintiff insists that NASA (“Agency”) is using a single civil servant toadvance this narrative through a private weblog in which he participates. Yet Plaintiff hasproduced no evidence tending in any way to dispute a factual record that clearly demonstratesthat the reality is, simply, that an individual who happens to be a federal employee has, in hispersonal capacity and with express permission of the employing agency, exercised his freedomof speech by participating in an open, private forum discussing issues and opinions about whichPlaintiff disagrees. But Plaintiff’s theorizing is of no import to the Court in deciding this case.Rather, critical to the Court’s review here is that Plaintiff has failed to produce any evidencedisputing the Agency’s submissions – Defendant’s Memorandum in Support of Defendant’sMotion for Summary Judgment (“Def.’s’ Br.”), the Declaration of Larry D. Travis (“TravisDecl.”), and the Supplemental Declaration of Larry D. Travis (“Supp. Decl.”) attached hereto –which clearly demonstrate that the Agency is entitled to summary judgment because it has fullycomplied with its obligations under the FOIA, and its determination that certain documents donot constitute “agency records” was reasonable under the governing law.
1
ARGUMENT
 
I. The Agency’s Response to Requests 07-172 and 07-175 Complied With the FOIA.
As the Agency demonstrated in Defendant’s Brief and the Travis Declaration in support
1
With its opposition brief, Plaintiff filed Plaintiff’s Local Civil Rule 7(h) Counterstatement,which contains a section entitled “Plaintiff’s Statement of Additional Material Facts in Dispute.”
See
Dkt. 20-1. Even if, as a non-moving party, Plaintiff were permitted to adduce its ownseparate statement of material facts, the contents of Plaintiff’s statement are not material andconsist of legal conclusions and, therefore, cannot defeat summary judgment for the Agency.
Case 1:10-cv-00883-RWR Document 22 Filed 12/02/10 Page 2 of 27
 
2thereof, the Agency conducted an adequate search for records responsive to requests 07-172 and07-175.
See
Def.’s’ Br. at 12-17. Because Plaintiff did not exhaust available administrativeremedies with respect to any challenge to the adequacy of the Agency’s search, such claims arenot properly before the court. Even if they were, Plaintiff offers no evidence to dispute theAgency’s submissions documenting that its search and response complied with its obligationsunder the FOIA. The Agency is accordingly entitled to summary judgment on Plaintiff’s claimsrelated to requests 07-172 and 07-175.A. Speculation About the Existence of Other Responsive Records is Not Sufficient toDefeat Summary Judgment.In support of its argument that the Agency’s search was not adequate, Plaintiff offersnothing more than unsupported allegations to rebut the Agency’s submissions documenting thereasonableness and adequacy of its search. Specifically, Plaintiff’s challenge to the adequacy of the search for records responsive to requests 07-172 and 07-175 relies on Plaintiff’s speculationthat other documents not disclosed must exist. This challenge fails for two reasons.First, Plaintiff proffers no evidence positively indicating the existence of otherdocuments.
Contra Valencia-Lucena v. U.S. Coast Guard 
, 180 F.3d 321, 326 (D.C. Cir. 1999)(“[W]hat causes us to conclude that the search was inadequate arises from the fact that the recorditself reveals positive indications of overlooked materials.”) (internal quotations and citationsomitted). Rather, Plaintiff offers only its own unsupported assertions that the search should haveproduced “large amounts of correspondence from the interested public,”
see
Pl.’s Opp’n at 15, aswell as “records or deliberations inside NASA about [Plaintiff’s] request,”
id.
at 16. However,the Travis Declaration documents why Plaintiff’s assertions are not only unsupported, but alsounsupportable. As Plaintiff notes,
see
Pl.’s Opp’n at 15, Dr. Jim Hansen, the director of GISS,
Case 1:10-cv-00883-RWR Document 22 Filed 12/02/10 Page 3 of 27

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