McKinley v CFTC SEC Plaintiff Opposition to Extend Time (Lawsuit #5)

7/31/2019 McKinley v CFTC SEC Plaintiff Opposition to Extend Time (Lawsuit #5)

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

VERN McKINLEY, )

)

Plaintiff, ))

v. ) Civil Action No. 12-01176 (RWR)

)COMMODITY FUTURES )

TRADING COMMISSION, et al. )

)Defendants. )

___________________________________ )

PLAINTIFFS OPPOSITION TO DEFENDANTS

MOTION FOR ENLARGMENT OF TIME

Plaintiff Vern McKinley, by counsel, respectfully submits this opposition to the Motion for

Enlargement of Time filed by Defendants Commodity Futures and Trading Commission and

Securities and Exchange Commission (ADefendants@). As grounds therefor, McKinley states as

follows:

MEMORANDUM OF LAW

1. McKinley filed a Freedom of Information Act (FOIA) lawsuit on July 18, 2012

after Defendants failed to comply with McKinleys FOIA requests within the time period required

by law (Docket Entry #1). McKinleys complaint is little more than four pages long and is

comprised of sixteen simple paragraphs (Id.). Plaintiff subsequently served Defendant in

accordance with Federal Rule of Civil Procedure 4(i). Defendant had 30 days, or until August 22,

2012 to respond to McKinleys complaint.

2. Rather than filing an answer to Plaintiffs simple and straightforward FOIA

complaint, Defendants seek an extension of time to respond to McKinleys complaint (Docket

Entry #4). However, nowhere in the motion do Defendants identify why they cannot file an

Case 1:12-cv-01176-RWR Document 5 Filed 08/23/12 Page 1 of 3


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answer to McKinleys very short complaint at this time or why the thirty (30) days they have had in

which to do so is not sufficient. Defendants simply assert that they have been unable to obtain all

the information needed to respond to McKinleys complaint.

3. Defendants were required to respond to McKinleys FOIA requests by May 23,

2012. See Complaint (Docket Entry #1) at 11. Now, three months later, Defendants, in their

motion, only assert that they anticipate producing records in the coming weeks which may

narrow the issues before the Court. This statement only highlights the fact that Defendants

motion confuses its procedural obligation to respond to Plaintiffs complaint with its substantive

obligations under FOIA. It is far from certain at this early stage of these proceedings that further

litigation will not be necessary once McKinley has had the opportunity to review the productions

of Defendants, whenever they are made. It is often the case in FOIA lawsuits that questions arise

about the scope of an agencys search for records responsive to a request and that agencies seek to

withhold responsive records under one or more of FOIAs nine exemptions.

4. Consequently, the better practice is for Defendants to file an answer to McKinleys

complaint at this time and for the Court to enter an order setting forth an agreed-upon schedule for

the productions of responsive records and the identification of any responsive records withheld

under claim of exemption. Once Defendants have completed their productions and identified any

withheld records, the parties can submit a status report informing the Court whether further

litigation, which typically consists of cross-motions for summary judgment -- will be necessary.

Unlike Defendants proposed course of action, McKinleys proposal is consistent with the Federal

Rules of Civil Procedure and will provide McKinley with the surety of a court-ordered deadline for

the productions of responsive records and the identification of any withheld records. It also will



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provide the parties and the Court with assurance that satisfactory progress is being made towards

the ultimate resolution of this matter.

5. Because Defendants have not proposed a production schedule or a time frame for

the identification of any withheld records, McKinley proposes that Defendants be ordered to

complete their productions of responsive records and identify any responsive records withheld

under claim of exemption by September 10, 2012. The inclusion of such a deadline is necessary

to enable McKinley to determine whether responsive documents are being withheld and whether

further litigation regarding any such withholdings is necessary. McKinley also proposes that the

parties submit a status report to the Court by September 24, 2012, which is the date Defendants

have proposed for responding to the complaint.

WHEREFORE, Plaintiff respectfully requests that (i) Defendants motion for enlargement

of time be denied; (ii) Defendants be ordered to complete its productions of responsive records and

identify any responsive records withheld under claim of exemption by September 10, 2012; and

(iii) the parties file a joint status report by September 24, 2012.

Dated: August 23, 2012 Respectfully submitted,

/s/ Michael BekeshaD.C. Bar No. 995749

JUDICIAL WATCH,INC.

425 Third Street, S.W., Suite 800Washington, DC 20024

Tel: (202) 646-5172

Fax: (202) 646-5199

Counsel for Plaintiff


Documents

McKinley v CFTC SEC Plaintiff Opposition to Extend Time (Lawsuit #5)