John Young File-stamped copy was mailed to you at US Courthouse. Later bill UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO William H. Payne ) Arthur R. Morales ) ) Plaintiffs, ) ) v ) CIV NO 97 0266 ) SC/DJS ) Lieutenant General Kenneth A. Minihan, USAF ) Director, National Security Agency ) National Security Agency ) ) Defendant ) PLAINTIFFS' MOTION TO AMEND Santiago E. Campos MEMORANDUM OPINION AND ORDER FILED 98 APR 30 AM 11:45 1 COMES NOW plaintiffs Payne and Morales [Plaintiffs] to exercise their rights under the Federal Rules of Civil Procedure, Rule 52. Findings by the Court; Judgment on Partial Findings (b) Amendment. On a party's motion filed no later than 10 days after entry of judgment, the court may amend its findings--or make additional findings--and may amend the judgment accordingly. ... 2 Plaintiffs will show that the Court's [Campos] MEMORANDUM OPINION AND ORDER http://www.jya.com/whp043098.htm contains presumably-unintentional false statements or misleading statements of essential material facts. Plaintiffs move to permit Campos to amend ORDER to reflect proper remedy of obvious evidence of lack of impartiality and judicial misconduct. A judge is supposed to judge arguments presented by the Plaintiffs and the Defendant. An judge is NOT SUPPOSED to engage in legal research designed to support either Plaintiff or Defendant's case. Judge Campos was supposed to rely on legal citations presented ONLY by pro se Plaintiffs or NSA Defendant Minihan's lawyer, Assistant US Attorney Jan Elizabeth Mitchell [Mitchell]. MEMORANDUM OPINION AND ORDER contains OVER ABOUT 144 legal citations most of which WERE NOT PRESENTED TO THE COURT in pleadings by either Plaintiffs or Defendant. 3 Campos writes Plaintiffs contend that Federal Civil Procedure Rule 36 explicitly provides that discovery is allowed without leave of the court. Plaintiffs quote citation The Court is unsure where Plaintiffs found the language they quote, but it is incorrect. Federal Civil Judicial Procedure and Rules, WEST PUBLISHING COMPANY, 1991 Revised Edition, page 110 states, Rule 36. Requests for Admission Request for admission (a) A party may serve upon any other party a written request for the admission, for the purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth the request that relate to statements or opinions of fact or of the application of law to fact including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or otherwise furnished or made available for inspection and copying. The request may WITHOUT LEAVE OF THE COURT, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. ... Updated Rule 36 seen at http://www.law.cornell.edu/rules/frcp/overview.htm, click at 36. Requests for Admission states A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b)(1) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Without leave of court or written stipulation, requests for admission may not be served before the time specified in Rule 26(d) . Rule 26(d) states (d) Timing and Sequence of Discovery. Except when authorized under these rules or by local rule, order, or agreement of the parties, a party may not seek discovery from any source before the parties have met and conferred as required by subdivision (f). Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery. Essential material facts are 1 5/23/97 Docket Sheet entry 9 Plaintiffs file MOTION by plaintiff for order to accept discovery plan (dmw) 2 Defiant misses filing date for response to entry 9. 3 Plaintiffs' file on 6/9/97 Docket Sheet entry 13 MOTION by plaintiff to accept discovery plan of plaintiffs as an unopposed motion before the court (dwm) 4 In panic Defendant's lawyer US Mitchell submits on 6/9/97 Docket Sheet entry 14, RESPONSE by defendant to motion to accept discovery plan of plaintiffs as an unopposed motion before the Court [13-1] (dwm) [Entry date 06/10/97] Lawyer Mitchell, apparently realizing her legal procedural blunder, is forced to deposit her LATE MOTION in Court outside mailbox since entry was not stamped FILED until June 10. The "time specified in Rule 26(d)" was satisfied, therefore Plaintiffs were with the law for proceeding with discovery. 4 Campos cites in B. Standing of Plaintiff Morales ... see also NLRB v. Sears. Roebuck & Co., 421 U.S. 132, 144 n. 10 ( 1975). Plaintiffs can find no reference to NLRB v. Sears. Roebuck & Co in Mitchell's pleadings Therefore Campos reaches conclusion that Morales should be removed partially on obviously biased citations of Campos own legal research. 5 Campos writes in C. Proper Defendant Campos cites the following legal citations to justify dismissing defendant Minihan 1 Thompson v. Walbran, 990 F.2d 403, 405 (8thCir. 1993) (per curiam); 2 Petrus v. Bowen, 833 F.2d 581, 582-83 (5th Cir.1987); 3 Sherwood Van Lines, Inc. v. United States Department of the Navy,732 F. Supp. 240, 241 (D.D.C. 1990); 4 Gary Energy Corp. v. United StatesDepartment of Energy, 89 F.R.D. 675, 675-77 (D. Colo. 1981). 5 But see, e.g Diamond v. FBI, 532 F. Supp. 216, 21920 (S.D.N.Y. 1981), aff'd on other grounds, 707 F.2d 75 (2d Cir. 1983); 6 Hamlin v. Kelley, 433 F. Supp. 180,181 (N.D. Ill. 1977). 7 Parks v. IRS, 618 F.2d 677 684 (10th Cir. 1980) Plaintiffs can find NONE of the above legal citations in ANY pleadings before the Court. Therefore, Plaintiffs conclude that Campos is obviously biased and has improperly introduced legal citations in an attempt to have Minihan dismissed. 6 Campos cites in III. FOIA A. FOIA Policy 1 NLRB v, Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). 2 Anderson v. Department of Health and Human Services,907 F.2d 936, 941 (10th Cir. 1990) 3 Maricopa Audubon Society v. United States Forest Service, 923 F. Supp. 1436, 1438-39 (D.N.M. 1995) 4 Maricopa Audubon Society v. United States Forest Service, 923 F. Supp. 1436, 1438-39 (D.N.M. 1995) 5 Hale v. United States Department of Justice, 973 F.2d894, 897 (10th Cir. 1992) 6 (citing EPA v. Mink, 410 U.S. 73, 79-80 (1973), vacated on other grounds, 509 U.S. 918 (1993)); 7 Office of Information and Privacy, U.S. Department of Justice, Freedom of Information Act Guide & Privacy Act Overview 3 (Sept. 1997 ed.) 8 S. Rep. No. 813, 89th Cong., 1st Sess. 10 (1965), 9 United States Department of Justice v. Reporters Commission for Freedom of the Press, 489 U.S. 749, 773 (1989);see id. at 774 10 Air Force v. Rose, 425 U.S. 352, 360-61(1976); 11 Anderson v. Department of Health and Human Services, 907 F.2d 936,941 (10th Cir. 1990); 12 Johnson v. United States Department of Justice, 739F.2d 1514, 1516 (10th Cir. 1984) 13 Hale v. United States Department of Justice, 2 F.3d 1053, 1057 (10th Cir. 1993); 14 Cal-Almond, Inc. v. United States Department of Agriculture, 960 F.2d 105, 107 (9th Cir. 1992). 15 Bowen v.United States Food and Drug Administration, 925 F.2d 1225, 1226 (9th Cir. 1991) . 16 King v. Department of Justice, 830 F.2d 210, 217 (D.C. Cir.1987). 17 Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973); 18 Weiner v. FBI, 943 F.2d 972, 977 (9th Cir. 1991). 19 Halperin v. CIA, 629 F.2d 144, 14849 (D.C. Cir. 1980); Plaintiffs can find NONE of the above citation of law in pleadings before this Court Campos is obviously biased for including above 18 citations. Campos cites internet addresses 1 < http://www.usdoj.gov/oip/oip.html > 2 < http://www.usdoj.gov/oip/oip.html > 3 < http://www.usdoj.gov/oip/oip.html > 4 < http://www.usdoj.gov/oip/oip.html> 5 < http://www.usdoj.gov/oip/oip.html> 6 <http://www.usdoj.gov/oip/oip.html> Mitchell cites no Internet address in her pleadings. Above Internet address citations are not those given by Plaintiffs. Therefore, Campos introduces material not in pleadings before this court in his MEMORANDUM OPINION AND ORDER. 7 Campos cites in B. Exhaustion of Administrative Remedies 1 Taylor v. United States Treasury Department, 127 F.3d 470,475 (5th Cir. 1997) 2 Taylor v. Appleton, 30 F.3d 1365, 1367 n.3 (11th Cir. 1994) 3 Volvo GM Heavy Truck Corp. v. United States Department of Labor, 118 F.3d 205, 08-09 (4th Cir. 1997) 4 Trenerry v. Internal Revenue Service, No. 95-5150, 70 F.3d 598, 1996 WL 88459 at *1 (10th Cir. March 1, 1996) 5 Lanter v. Department of Justice, No. 93-6308, 19 F.3d 33, 1994 WL 75876 at *1 (10th Cir. March 8, 1994) 6 Hass v. United States Air Force, 848 F. Supp. 926, 929 (D. Kan. 1994) 7 Katzman v. CIA, 903 F. Supp.434, 437 (E.D. N.Y. 1995) (citing Becker v. Internal Revenue Service, 34 F.3d 398, 405 (7th Cir. 1994)). 8 Ruotolo v. Department of Justice, 53 F.3d 4, 8 (2d Cir. 1995); 9 Spannaus v. United States Department of Justice, 824 F.2d 52, 59 (D.C. Cir 1987); 10 Kuchta v. Harris, No. 92-1121, 1993 WL 87705 at *3 (D.Md. March 25, 1993) 11 Trueblood v. United States Department of Treasury, 943 F. Supp. 64, 66-67 (D.D.C. 1996); Plaintiffs could NOT find ANY of the above legal citations in pleadings before this Court. Campos gives biased opinion on exhaustion of administrative remedies. 8 Campos cites in C. Summary Judgment 1 Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 2 Shabazz v. Askins, 14 F.3d 533, 535 (10th Cir. 1994). 3 Green v.Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). 4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 255 (1986). 5 Magnum Foods, Inc. v. Continental Casualty Co., 36 F.3d 1491, 1497 (10th Cir. 1994). 6 World of Sleep. Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985) 7 Celotex Corp. v. Catrett. 477 U.S. 317, 325 (1986). 8 Bacchus Industries. Inc. v. Arvin Industries. Inc., 939 F.2d 887,891 (10th Cir. 1991). Plaintiffs can find none of the above citation in pleadings before this Court. 9 Campos cites in 3. Plaintiff's First Summary Judgment Motion 1 Powell v. McCormack, 395 U.S. 486, 496 (1969) 2 Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976). 3 Patterson v. FBI, 705 F. Supp. 1033, 1039 (D.N.J. 1989), aff'd 898 F.2d 595 (3d Cir. 1990). 4 American Friends Service Committee v. Department of Defense, 831 F.2d 441, 444 (3d Cir. 1987) 5 Salisbury v. United States, 690 F.2d 996, 970 (D.C. Cir. 1982) 6 Sen. Report No. 1200, 93rd Cong. 12 (1974), U.S. Code Cong. & Admin. News 6267, 6290 (1974)). 7 AG's 1993 FOIA Memorandum 8 Afshar v. Department of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983). 9 Pfeiffer v. CIA, 721 F. Supp. 337, 342 (D.D.C. 1989) 10 Public Citizen v. Department State, 11 F.3d 198, 204 (D.C. Cir. 1993). 11 Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990) 12 Military Audit Project v. Casey, 656 F.2d 724, 74345 (D.C. Cir 1981) 13 Phillippi v. CIA, 655 F.2d 1325, 1332-33 (D.C. Cir. 1981) 14 McNamera v. United States Department of Justice, 974 F. Supp. 946, 955-56 (W.D. Tex. 1997). 15 Halperin v. CIA, 629 F.2d 144, 14849 (D.C. Cir. 1980), 16 United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989); 17 King v. United States Department of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987); 18 Fitzgibbon v. CIA, 578 F. Supp. 704, 709 (D.D.C. 1983). 19 Katzman v. CIA, 903 F. Supp. 434, 438 (E.D.N.Y. 1995). 20 McDonnell v. United States, 4 F.3d 1227, 1246 (3d Cir. 1993) (citing Association of Retired Railroad Workers v. United States Railroad Retirement Board, 830 F.2d 331, 336 (D.C. Cir. 1987)). 21 United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 775 (1989). 22 Founding Church of Scientology v. NSA, 610 F.2d 824, 30, 833 & n. 80 (D.C. Cir. 1979). 23 EPA v. Mink, 410 U.S. 73, 80 (1973); 24 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Plaintiffs cannot find any of the above 24 citation in pleadings before this Court. 9 Campos writes Consequently, the Court requests that Defendant provide it, as it has offered to do, an in camera ex parte declaration or detailed affidavit explaining its reasons for its "Glomar response" and for nondisclosure of none of the Iranian and Libyan messages and translations from June 1, 1980 to June 10,1996, if they do exist. See Anderson v. Department of Health and Human Services, 907 F.2d 936, 942. (10th Cir. 1990).24 The declaration of affidavit must be provided by the Defendant to the Court within sixty days of the date of this opinion. The Court will stay its decision on Defendant's Motion for Summary Judgment (Exemption 3) until after it has heard or examined Defendant's explanation. and quotes 24 As the Tenth Circuit has explained: In order to fulfill its obligation to review de novo the agency's decision not to disclose materials sought under the FOIA, a district court has a variety of options. "The FOIA allows the district court flexibility in utilizing in camera review of the disputed documents, indexing, oral testimony, detailed affidavits, or alternative procedures to determine whether a sufficient factual basis exists for evaluating the correctness of the [agency] determination in each case." [If a Vaughn index or an affidavit is insufficient,] then the district court must utilize other procedures in order to develop an adequate factual basis for review of the agency action. Anderson v. Department of Health and Human Services, 907 F.2d 936, 942 (10th Cir. 1990) (quoting DeSalvo v. Internal Revenue Service, 861 F.2d 1217, 1222 n.6 (10th Cir. 1988) (first alteration in Anderson)). Plaintiffs cannot find reference to 1 Anderson v. Department of Health and Human Services, 907 F.2d 936, 942 (10th Cir. 1990) 2 DeSalvo v. Internal Revenue Service, 861 F.2d 1217, 1222 n.6 (10th Cir. 1988) in pleadings before this Court. WHEREFORE Plaintiffs move for Campos to amend MEMORANDUM OPINION AND ORDER which currently reads 10 NOW, THEREFORE, IT IS ORDERED that sua sponte, Defendant is DEEMED by the Court to be the NSA, and not Lt. Gen. Kenneth A. Minihan. Future captions for this case should reflect this change. IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment is DENIED without prejudice. IT IS FURTHER ORDERED that Defendant's Motion to Dismiss Plaintiff Morales is GRANTED. IT IS FURTHER ORDERED that, in regard to Defendant's Motion for Partial Dismissal and for Summary Judgment, Defendant's Motion for Partial Dismissal is DENIED and Defendant's Motion for Summary Judgment is STAYED pending an in camera ex parte declaration consistent herewith provided by Defendant to the Court within sixty (60) days of the date of this opinion. IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment Based on Evidence from Admissions is DENIED as MOOT. to read 11 Santiago Campos disqualifies himself under 28 USC ยง 455. Disqualification of justice, judge, or magistrate (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. ... from further participation in case CIV NO 97 0266, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO for basing much of MEMORANDUM OPINION AND ORDER FILED 98 APR 30 AM 11:45 on materials not contained in pleadings before the Court and vacates ORDER FILED 98 APR 30 AM 11:45. Respectfully submitted, William H. Payne 13015 Calle de Sandias NE Albuquerque, NM 87111 Arthur R. Morales 1024 Los Arboles NW Albuquerque, NM 87107 Pro se litigants CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing memorandum was mailed to Lieutenant General Kenneth A. Minihan, USAF, Director, National Security Agency, National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000 and hand delivered to Jan E Mitchell, Assistant US Attorney, 525 Silver SW, ABQ, NM 87102 this Friday May 8, 1998. 9