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Case 1:15-cv-02627-JG-RLM Document 31 Filed 02/24/16 Page 1 of 7 PageID #: 1688

Louis Flores
34-21 77th Street, No. 406
Jackson Heights, New York 11372
1 (646) 400-1168

24 February 2016


Honorable John Gleeson, United States District Judge,
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.

Dear Hon. U.S. District Court Judge Gleeson and Hon. U.S. Magistrate Judge Mann :

Re :

Rule 52 Motion
Louis Flores v. United States Department of Justice
No. 15-CV-2627 (Gleeson, J.) (Mann, M.J.)

Please accept this letter reply as Plaintiffs Surreply to Defendants Response to Plaintiffs
Dispute and Answer to Defendants 56.1 Statement. I thought it could not be possible for
the horrifying fact pattern in this case to get worse, but it has.

No matter how many different excuses the Government has to try to explain away its
misconduct, make no mistake : The Government has no intention of complying with FOIA.
Whereas the Government may argue over semantics that explain away its making of
misrepresentations and submitting suspect documents into evidence during proceedings
before this Court, the Government will not comply with FOIA unless it is so ordered by
the Court and at the Courts supervision.

The Governments arguments amount to rules lawyering, where the DOJ has tried to
game the rules over the spirit of the law underpinning FOIA and the First Amendment in
an overt attempt to exploit its advantage during this arduous dispositive motion process.
The DOJs intent here is to continue to subvert FOIA. Because the Court has the power
and authority to look at the horrifying fact pattern in this case and apply the law de novo,
this Court can disallow the DOJ from manipulating rules to create any more unjust legal
advantages for itself at the expense of its compliance with FOIA.

Case 1:15-cv-02627-JG-RLM Document 31 Filed 02/24/16 Page 2 of 7 PageID #: 1689

Hon. U.S. District Court Judge John Gleeson
Hon. U.S. Magistrate Judge Roanne L. Mann
Eastern District of New York
24 February 2016
Page 2



The Government notes that Plaintiff omitted reference to Rule 56 in Plaintiffs

Rule 52 memorandum. (Govt Br. at 5). Plaintiff apologises to the Court for
this oversight. There are three sections under Rule 56 that apply. Rule
56(e)(4) gives the Court the authority to issue an appropriate order. As
respectfully requested by Plaintiff, once the Court makes a determination that
the DOJ has acted in bad faith, Plaintiff is asking the Court to appropriately
assess sanctions and penalties. Rule 56(h) provides for the Court to assess
sanctions once the Court determines that the Declarations submitted during
proceedings were incomplete and provided by inexperienced Declarants.
Finally, Rule 56(c)(2) applies, because so many facts are not available. And
this is particularly applicable and substantively holding, because the DOJ is
asking the Court to grant its motion for summary judgment by forcing the
Court to make findings of fact in order to accept the Declarations, even though
they are incomplete and defective as duly noted by Plaintiffs briefs. (Kelly
Decl.). (Stone Decl.). (Docket Nos. 24-25). Numerous facts are not available in
this case, as noted in Plaintiffs 56.1 Answer and in Plaintiffs Declaration. See,
e.g., PL 56.1 Answer 13, 25, 27-28, 32-38, 43, 46-50, 53-55, 75, and 81. See
also Flores Decl., 4(A)-(P). Plaintiff has also disputed, contested, objected,
or dispelled various aspects of Defendants 56.1 Statement. See, e.g., PL 56.1
Answer 2, 7-10, 14, 16-17, 20, 23-24, 26, 29-31, 39-41, 43-45, 51-52, 59-63,
65, 79-80, and 82-83. And Plaintiff has noted multiple issues with the
Declarations of Principa Stone and Karin Kelly. (Flores Decl., Ex. I 1-2).
Plaintiff draws the Courts attention to the Governments derision of a free
press. The Government recklessly referred to the media reports that Plaintiff
submitted in his Declaration as third-party online postings. Plaintiff has
made a serious and grave request of this Court : To make a determination that
the Government has violated FOIA and acted in bad faith in proceedings before
this Court. To assist the Court, Plaintiff has cited press reports from reliable
sources ranging from The New York Times, U.S. News & World Report, The
Washington Post, and The Associated Press. See e.g., Flores Decl., Exs. R, W, Y,
Z, and FF. The press reports are material to proving Plaintiffs assertion that
the Government is prosecuting activists whilst it willfully violates FOIA with
impunity, and some of these reports are in actuality Congressional oversight
documents. (PL 56.1 Answer 84-93). Of course the Government would
have to attempt to discredit all the press reports about both the Governments
prosecution of activists and its failure to comply with FOIA, but how can the
DOJ deride Congressional oversight efforts in respect of FOIA ? Because the
Government now faces sanctions, the Governments efforts to discredit the
press and Congress is material to its desperation.

Case 1:15-cv-02627-JG-RLM Document 31 Filed 02/24/16 Page 3 of 7 PageID #: 1690

Hon. U.S. District Court Judge John Gleeson
Hon. U.S. Magistrate Judge Roanne L. Mann
Eastern District of New York
24 February 2016
Page 3






The Government is asking for this Court to issue a ruling to sweep the Free
Speech FOIA Requests under the rug, and the only way it can do that is by
continuing to claim that EOUSA does not know what happened to the [First
FOIA] request. (Govt Br. at 9). As Plaintiff has shown in his brief, the
Government never lost the First FOIA Request. (PL 52 Mem. at 20-23). There
was nothing in the request file at the time it was reportedly lost, and now the
Governments arguments are giving the DOJ cover to reportedly claim that it
could have responded to the letter sent by U.S. Representative Joseph Crowley,
but the DOJ doesnt know for sure, because the DOJ misplaced the request
file ? (Govt Br. at 7). In a pice de rsistance, the Government now ascribes all
of its misconduct to administrative errors. (Govt Br. at 9). These are all acts of
bad faith, Your Honors. How many misrepresentations does a party have to
make in proceedings before this Court before this Court can make a finding
about a partys lack of credibility and to hold a party in contempt ?
Again the Government continues to assert that the Court must make a cramped
reading of the First FOIA Request by wrongly believing that the only search
string the Government could have used in conducting its search were
activists and targeted. (Govt Br. at 11). The Governments arguments are
sloppy, and the fact that the Government cannot defend the lawfulness of the
search it conducted is material to the bad faith misconduct during the search.
The Government wrongly claims that by changing its representations in the
Answer, such change was not a material difference. (Govt Br. at 13). This is
not true. The Government has engaged in a pattern and practise of
misconduct, and the making of and later attempts to explain away
misrepresentations is material to how the Government willfully disregards its
obligations under FOIA. All this has been duly documented in Plaintiffs Rule
52 memorandum and in Plaintiffs surreply to Defendants motion for
summary judgment. (Dkt. Nos. 25, __).
The Government stubbornly claims it has no obligation to produce a Vaughn
Index for the Exempted Records. (Govt Br. at 14). Yet, Plaintiff has raised
numerous questions about the Governments misconduct, and the Plaintiff asks
the Court simply : How can anything that the Government submits during
these proceedings be trusted ? A purpose of providing a Vaughn Index is to
confirm the Governments compliance with rightly invoking Exemptions under
FOIA, and Plaintiff respectfully requests that the Court stand in Plaintiffs shoes
and view this issue from his perspective.
The Government is asking the Court to accept at least one doctored document
in evidence. (Govt Br. at 16). It should shock the conscious of the Court to see

Case 1:15-cv-02627-JG-RLM Document 31 Filed 02/24/16 Page 4 of 7 PageID #: 1691

Hon. U.S. District Court Judge John Gleeson
Hon. U.S. Magistrate Judge Roanne L. Mann
Eastern District of New York
24 February 2016
Page 4




this kind of misconduct take place. Plaintiff notes that this bad faith act surely
establishes a pattern and practice of misconduct during these proceedings.
Now that the DOJ faces sanctions and penalties, the Government is trying to
walk-back its obligations under the Modern Rules of Professional Conduct.
(Govt Br. at 16). Plaintiff directs the Courts attention to the numerous acts of
misconduct documented in Plaintiffs Rule 52 memorandum and in Plaintiffs
surreply to Defendants motion for summary judgment. (Dkt. Nos. 25, __).
Somehow now, the Government is trying to blame Plaintiff for being a victim of
the DOJs own misconduct, and because the Government is desperate to avoid
sanctions and penalties, the Government is saying that even though the
Plaintiff has been the victim of the Governments misconduct, the Plaintiff is
not entitled to the conduct of discovery so that the Court and Plaintiff can
rightly obtain facts about both the First FOIA Request and the duly requested
records. Discovery is also warranted, so that the Court can be in a position to
justly assess sanctions and penalties. Every time I think that the fact pattern
during these proceedings couldnt possibly become more horrifying, the
Government finds new ways to shock the conscious of Plaintiff.
The Government objects to Plaintiffs request for the appointment of a
monitor. (Govt Br. at 17). The reason is simple and plainly self-evident : The
Government has willfully engaged in a pattern and practise to violate its
obligations under FOIA, and there is no independent way for this Court to
accept any assertions made by the DOJ as true and complete in matters
respecting FOIA. Here is where it is critical for this Court : When the Court
decides that the DOJ must conduct lawful searches for records, what
mechanism will be in place to ensure that the searches will be conducted
lawfully ? What integrity will guide the method of production of supplemental
records ?
The consequence of the Governments acts of bad faith is to thwart the release
of records. That can have no more impact than on the First Amendment, since
Plaintiff, as a journalist, is unable to report the whole truth about the
Governments prosecution of activists. (Flores Decl., Ex. N). What is more, as
shown by Plaintiffs news report about the few records produced by the DOJ,
the Government is trying to grant itself powers to prosecute activists solely
based on activists ideology. The underlying motivation of the DOJ meets the
bad faith, vexatiously, wantonly, or for oppressive reasons test in Chambers.
Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991). The full range of the
Governments misconduct was thoroughly documented by Plaintiff in
Plaintiffs Rule 52 memorandum and in Plaintiffs surreply to Defendants
motion for summary judgment. (Dkt. Nos. 25, __).

Case 1:15-cv-02627-JG-RLM Document 31 Filed 02/24/16 Page 5 of 7 PageID #: 1692

Hon. U.S. District Court Judge John Gleeson
Hon. U.S. Magistrate Judge Roanne L. Mann
Eastern District of New York
24 February 2016
Page 5




Because the DOJ has resisted every attempt by Plaintiff to obtain records, and
there are so many other similarly-situated requestors, the Court can help bring
the DOJ into compliance with FOIA by appointing a monitor. Plaintiff notes
that in the last few years, Federal courts have appointed four monitors or
special masters to help several New York City government agencies comply
with the law. U.S. District Court Judge Nicholas Garaufis appointed a monitor
to oversee the hiring practises of the Fire Department of New York. U.S.
District Court Judge Shira Scheindlin appointed a monitor over the New York
Police Department. U.S. District Court Judge William Pauley has appointed a
special master to oversee mold abatement at the housing developments of the
New York City Housing Authority. U.S. District Court Judge James Francis has
appointed a monitor over Rikers Island. Whereas Court-appointment
monitors are increasingly necessary to help government agencies to comply
with the law, it should be noted that all of these monitors or special masters
have not disrupted the management of New York City government ; on the
contrary, the Courts intentions have been to improve the government, as is
Plaintiffs request to this Court here. On the Federal level, U.S. District Court
Judge Paul Friedman appointment a monitor to oversee civil rights compliance
in loan and benefit programs at the U.S. Department of Agriculture. This Court
is in a unique position to help bring the DOJ into compliance with FOIA, and it
would be in the highest level of public service for this Court to take this step.
Furthermore, the sanctions provision of FOIA provides guidance to the Court
about instances where Government personnel act arbitrarily or capriciously.
In such cases, where the Court makes a finding that the Government has
withheld duly requested documents, and the Court orders the production of
withheld records, such Government personnel may be subject to disciplinary
action. The Court can refer the Government personnel to the U.S. Office of the
Special Counsel to initiate proceedings for disciplinary action. See 5 U.S.C.
Because U.S. Magistrate Judge Roanne Mann successfully negotiated with the
DOJ for the production of records that formed the Second FOIA Response,
perhaps the Court can ask the DOJ to submit to voluntary or unilateral changes
in position by the agency, given that Plaintiffs damages -- and the damages of
other similarly-situated FOIA plaintiffs -- are not insubstantial, particularly
given the fact that the public is being kept in the dark about the Governments
work on behalf of its citizens. Any voluntary or unilateral changes offered up
by the DOJ can become subject to the proposed Deferred Sanctions Agreement.
Surely when the Court rules that the DOJ acted in bad faith when it failed to
conduct a lawful search for records ; when it produced inferior Declarations by

Case 1:15-cv-02627-JG-RLM Document 31 Filed 02/24/16 Page 6 of 7 PageID #: 1693

Hon. U.S. District Court Judge John Gleeson
Hon. U.S. Magistrate Judge Roanne L. Mann
Eastern District of New York
24 February 2016
Page 6


inexperienced Declarants ; when it deliberately withheld records that likely

exist under 9-65.881-82, and in perhaps other sections, of the United States
Attorneys Manual ; when the DOJ refused to provide a Vaughn Index ; and
other misconduct, then the Court must find that the DOJ had no reasonable
basis for not providing the duly requested documents. As such, the DOJ must
face sanctions and penalties.
Finally, the DOJ continues to resist even acknowledging the Second FOIA
Request. As explained by Plaintiff, that request was made to close the loop
on the records that Plaintiff has been requesting from the DOJ. If the DOJ
continues to resist processing it (as it has), Plaintiff will be forced to file
another pro se complaint with the Court. And if the Court would look at the big
picture implications of this, this is exactly how the DOJ avoids compliance with
FOIA, overly burdening the Courts as a consequence, and dragging out FOIA
requests by years.

In this case, the Government has callously asked this Court to ride roughshod over the
First Amendment. As if that wasnt enough, the Government has come up with an even
more specious argument based on rules lawyering to justify its failure to comply with
FOIA. The Court must reject both lines of the Governments arguments. The Government
uses this ruse as the linchpin of a de facto FOIA process that goes like this : avoid
processing controversial FOIA requests until litigation commences, and then use this
complicated dispositive motion practise to create an unfair legal advantage for itself, as is
happening now. The Court must reject this corruptive legal strategy, because it
undermines the spirit and intent of FOIA, which is to facilitate the disclosure of records to
the public.

Respectfully submitted,

Louis Flores
Pro se Plaintiff

cc :

[By e-mail only to :]

Rukhsanah L. Singh, Assistant U.S. Attorney

U.S. Attorneys Office - Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201
Attorney for Defendant

Case 1:15-cv-02627-JG-RLM Document 31 Filed 02/24/16 Page 7 of 7 PageID #: 1694



15-CV-2627 (JG)(RLM)





I, LOUIS FLORES, declare under penalty of perjury that I have served a copy of the attached









c/o United States Attorneys Office, Eastern District of New York, 271 Cadman Plaza East,
7th Floor, Brooklyn, New York 11201 by ELECTRONIC MAIL DELIVERY to :

Dated : Jackson Heights, New York

February 24, 2015

Louis Flores
34-21 77th Street, Apt. 406
Jackson Heights, New York 11372
Phone : (646) 400-1168