Free Letter - District Court of Delaware - Delaware

Case 1 :08-cv-00183-SLR, Document 7 Filed 06/27/2008 Page 1 of 2
U.S. Department of Justice
United States Attorney ’s Ojjice
n District of Delaware
The Nemours Building {302} 573-6277x 156
1007 Orange Street, Suite 700 FAX (302) 5 73-6220
ao. sax 2046 1rrrs02)57s- 6274
Wilmington, Delaware 19899-2046 Toll Free (888) 293-8162
Patricia. Harm t g¢m@usdog`. gov
i Jima 27, 2008
Honorable Sue L. Robinson 5
United States District Court
Room 6124 Boggs Federal Building
844 King Street
Wilmington, DE 19801
RE: Irvin v. Peake, Secretary, Department of Veterans Affairs
Civil Action No. 08-183 (SLR) .
Dear Judge Robinson: A
I write in response to Your Honor’s letter of June 23, 2008, enclosing a proposed
scheduling order (D.I. 5), and to request that the Court hold a scheduling conference in this
Freedom of Information Act ("FOIA”) case. . I
Since the date of Your Honor’s letter, Plaintiff, acting pro se, has filed a pleading styled 1
"Plaintiff s Response to Agency’s Motion to Dismiss Civil Action No.08·CV-00183-SLR, Filed
on April 3, 2008" ("Plaintiff s Response”). D.I. 6. However, the defense has not yet filed a
Motion to Dismiss, thus Plaintiffs Response is premature. In addition, Plaintiffs Response
reads rather like an Amended Complaint, in that it adds allegations not contained in the original
Complaint. Accordingly, we would appreciate the opportunity to discuss with the Court the
procedural posture of the case at this point. One possibility would be for the Government to
move to strike Plaintiffs Response as premature, and if granted, then to file its anticipated `
motion for summary judgment. Another would be for the Court to treat Plaintiff s Response as
an amended complaint and docket it as such. The Government would then respond. Or perhaps
the Court would prefer a third alternative.
Moreover, specifically on the issue of scheduling, we request that the Court not permit E
discovery in this matter. It is our understanding this is the usual practice in FOIA litigation. See l
Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 25 (D.C.C. 2000) (discovery in a
FOIA action is generally inappropriate"); Van Mecheien v. US Dep ’t ofthe Interior, No. 05- ·
5393, 2005 WL 3007121, at *5 (W.D. Wash.N0v. 9, 2005 ) ("discovery is not ordinarily part of a i
FOIA case"); Katzman v. Freeh, 926 F. Supp. 316, 319 (E.D.N.Y. 1996) (discovery in a FOIA
action is extremely limited .... "). An alternative approach to this issue may be for the Court to ’

Case_ 1 :08—cv—00183-SLR Document 7 Filed 06/27/2008 Page 2 of 2
Honorable Sue L. Robinson
June 26, 2008
Page Two p
stay discovery until the anticipated motion for summary judgment is resolved. See Petrus v.
Brown, 833 F.2d 581,583 (5*1* Cir. 1987) ("[a] trial court has broad discretion and inherent power
to stay discovery until preliminary questions that may dispose of the case are determined").
We appreciate Your Honor’s consideration of this request for a scheduling conference.
. Respectfully,
‘ COl.;l\fl F. C OLLY ‘
p 1.lZB Sta e Attomey V
l By: - ,___&
Patricia . Hannigan
Assistant United States Attorney
PCH:kg P
cc: James M. Irvin, M.D.
Paul P. Kranick, Esquire .

Case 1:08-cv-00183-SLR

Document 7

Filed 06/27/2008

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Case 1:08-cv-00183-SLR

Document 7

Filed 06/27/2008

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