Jed Margolin, Pro Se

1981 Empire Rd.

VC Highlands, NV  89521-7430

Telephone: 775-847-7845

Email: jm@jmargolin.com

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

            Comes now Plaintiff, Jed Margolin (“Margolin”), appearing pro se, and files his Motion for Summary Judgment. This motion is made pursuant to Rule 56, Fed. R. Civ. P., and is made on the grounds that there is no genuine issue as to any material fact and that Plaintiff is entitled to summary judgment as a matter of law with respect to the violation by the Defendant, National Aeronautics and Space Administration (“NASA”), of the duty imposed on it by 5 U.S.C. § 552, et seq. to disclose and release requested agency records improperly withheld from Plaintiff.

            This motion is based upon the pleadings, papers, exhibits, and the following  memorandum of points and authorities filed in this action.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT

Standard of Review

            Summary judgment is the procedural vehicle by which nearly all FOIA cases are resolved, [1]  because "in FOIA cases there is rarely any factual dispute . . . only a legal dispute over how the law is to be applied to the documents at issue.” [2]  

            Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil  Procedure, which provides, in part, that the "judgment sought should be rendered if the  pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact.” [3]   

            In a Freedom of Information Act (“FOIA”), the requester of agency records is entitled to summary judgment if he establishes that a proper request has been made for a document that does not fall within a permitted statutory exemption from disclosure. Willamette Industries, Inc. v. U.S., 689 F.2d 865, 867 (9th Cir. 1982); Kamman v. I.R.S., 56 F.3d 46, 48 (9th 1995).

            The Freedom of Information Act [5 USC § 552 (a)(4)(B)] gives the Court:

… jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.

{Emphasis added}

The Court determines the matter de novo and the burden is on NASA to defend their withholding of documents.

Summary of Material Facts on which NASA and Margolin Agree

            1.   Margolin is the named inventor on U.S. Patent 5,566,073 (‘073) Pilot aid using a synthetic environment (Second Amended Complaint, Appendix Volume 1 at A20) and U.S. Patent 5,904,724 (‘724) Method and apparatus for remotely piloting an aircraft.  (Second Amended Complaint, Appendix Volume 1 at A15).

            2.   Margolin submitted an administrative claim for patent infringement to the NASA Headquarters Office of the General Counsel in a letter dated June 17, 2003 for infringement of ‘724 on NASA’s X-38 project. (Second Amended Complaint, Appendix Volume 1 at A5)

            3.   Margolin sent NASA’s Mr. Alan Kennedy a letter in January 2004. (Second Amended Complaint, Appendix Volume 1 at A33)

            4.   Margolin received no response to his letter. (NASA’s Answer to Second Amended Complaint at 3, line 22-23)

            5. Margolin filed a FOIA Request with NASA in June 2008. (Second Amended Complaint, Appendix Volume 1 at A35.) The FOIA Request asks for “…all documents related to the Administrative Claim of Jed Margolin for Infringement of U.S. Patent Nos.  5,566,073 and 5,904,724; NASA Case No. I-222.”

            6.  Margolin’s FOIA Request was assigned to Mr. Jan McNutt in NASA’s Office of the General Counsel. (NASA’s Answer to Second Amended Complaint at 4, lines 17-19)

            7.  Mr. McNutt asked Margolin for a 90-day extension. (Second Amended Complaint, Appendix Volume 1 at A37)

            8.  Margolin agreed to give NASA the 90-day extension. (Second Amended Complaint, Appendix Volume 1 at A39)

            9.  NASA did not respond to Margolin’s FOIA Request until May 2009. (Second Amended Complaint, Appendix Volume 1 at A45)

            10.   NASA withheld documents citing FOIA Exemption 552(b)(5). (NASA’s Answer to Second Amended Complaint at 5, lines 4-5)

            11.   NASA’s response failed to provide an estimate of the volume of withheld documents. (NASA’s Answer to Second Amended Complaint at 6, lines 4-6)

            12.   Margolin filed a FOIA Appeal on June 10, 2009. (Second Amended Complaint, Appendix Volume 1 at A54) which was delivered to NASA on June 12, 2009. (Second Amended Complaint, Volume 1 at A75)

            13.    Margolin filed a FOIA lawsuit against NASA on July 31, 2009 in U.S. District Court for the District of Nevada, case No. 3:09-cv-00421-LRH-VPC.

            14.   NASA denied Margolin’s FOIA appeal in a letter dated August 5, 2009. (NASA’s Answer to Second Amended Complaint at 7, lines 2-3)

            15.   NASA sent Margolin a supplemental response of approximately 4,000 pages of documents in November 2009. (NASA’s Answer to Second Amended Complaint at 7, lines 8-10 and lines 16-17)

            16.   NASA did not provide an index for the documents. (NASA’s Answer to Second Amended Complaint at 7, lines 18-19)

            17.   NASA withheld documents citing FOIA Exemptions (b)(3), (b)(4),  (b)(5), and (b)(6) (NASA’s Answer to Second Amended Complaint at 7, lines 21-23)

            18.   NASA redacted certain communications between NASA and Mr. Michael Abernathy (the contractor who worked on the X-38 project) contained in the supplemental response to Margolin’s 2008 FOIA request. (NASA’s Answer to Second Amended Complaint at 8, lines 15-17)

            19.   NASA employees conducted a telephone conference in 2006 that included Mr. Abernathy. (Second Amended Complaint, Appendix Volume 2 at A119 and NASA’s Answer to Second Amended Complaint at 8, lines 17-18)

Introduction

            Margolin is the named inventor on U.S. Patent 5,566,073 (‘073) Pilot aid using a synthetic environment and U.S. Patent 5,904,724 (‘724) Method and apparatus for remotely piloting an aircraft. The ‘073 patent teaches the use of what is now called synthetic vision in manned aircraft. The ‘724 patent teaches the use of synthetic vision for controlling unmanned aerial vehicles (UAVs).

            Margolin contacted NASA in May 2003 after he became aware that they had used synthetic vision in the X-38 project. He submitted an administrative claim for patent infringement to the NASA Headquarters Office of General Counsel in a letter dated June 17, 2003. Margolin was told that NASA would conduct an investigation that was expected to take 3-6 months.

            Margolin did not receive a determination on his administrative claim for patent infringement by December 2003 and in January 2004 sent a letter to NASA attorney Alan J. Kennedy.  Margolin received no response to his letter.

            In June 2008 Margolin filed a FOIA request to obtain the results of NASA’s promised investigation.

            Margolin’s FOIA request was turned over to Mr. Jan McNutt (“McNutt”) in the Office of the General Counsel. In McNutt’s response, dated August 5, 2008, he asked Margolin to give NASA a 90-day extension to his FOIA request. On August 8, 2008 Margolin agreed to the extension.

            NASA failed to send any documents to Margolin until May 2009, approximately six months after NASA’s extension ran out.

            In their very tardy response to Margolin’s FOIA Request, NASA withheld documents, citing 5 U.S.C. § 552(b)(5).

            Although 5 U.S.C. § 552(a)(6)(F) requires agencies to give an estimate of the volume of the documents being withheld, NASA failed to do so.

            Margolin filed a FOIA Appeal on June 10, 2009.

            NASA failed to respond to Margolin’s FOIA Appeal (or ask for an extension) within the 20 day statutory period required by FOIA. NASA’s request for an extension was made after the statutory 20-day period so Margolin denied it. Even so, Margolin waited until July 31, 2009 to file the present action.

            It was not until after Margolin filed the present action that NASA sent Margolin their  decision on his FOIA Appeal. NASA denied Margolin’s FOIA Appeal and produced no additional documents. NASA admitted to withholding 100 pages of documents.

            On November 16, 2009 Margolin received two boxes of documents from Stephen L. McConnell (“McConnell”), NASA Freedom of Information Act Officer.

            According to NASA there are about 4,000 pages of documents, which is a great deal more than the 100 pages they admitted to withholding in their Denial of FOIA Appeal. They are not in any particular order. There is no index. There are many duplicates.  Although the pages are numbered the numbers are frequently illegible. There are gaps in the numbers indicating that sections were entirely withheld. The pages run from 00017 to 05605 indicating that around 1600 pages were entirely withheld. Many of the emails are redacted under §552 (b)(5). Sometimes the entire body of the email is redacted. McConnell characterizes §552 (b)(5) as:

(b)(5) – which protects inter-agency documents generated which "are predecisional and/or deliberative in nature" and information protected as attorney work product; and .....

The Issues

The material issues are:

Issue 1.   Whether, in view of the email from NASA attorney Edward K. Fein (“Fein”) to Frank Delgado (“Delgado”) and Alan Kennedy (“Kennedy”) et al. on Monday, July 12, 2004, all subsequent documents are post-decisional and therefore not exempt from production under §552 (b)(5).  In this email Fein wrote:

Frank ... Thank you so much for your detailed analysis and research on this matter. I know that you invested considerable time into assisting in the defense of this infringement claim. Your effort, together with valuable input from Mike Abernathy, will be the basis for NASA's denying the administrative claim.

Issue 2.   Whether any documents from or to Mike Abernathy (“Abernathy”) or from or to Rapid Imaging Software are exempt from production under §552 (b)(5). Abernathy (at Rapid Imaging Software) was the Contractor who provided the synthetic vision software for the X-38 project. In a unanimous Supreme Court decision in Department of the Interior v. Klamath Water Users Protective Ass'n. 532 U.S. 1 (2001), the Court ruled that the threshold of Exemption 5 did not encompass communications between the Department of the Interior and several Indian tribes which, in making their views known to the Department on certain matters of administrative decisionmaking, not only had "their own, albeit entirely legitimate, interests in mind," (Klamath, 532 U.S. at 12) but also were "seeking a Government benefit at the expense of other applicants." ( Id. at 12 n.4) As the NASA documents show, Abernathy had his own interests in mind regarding NASA’s infringement of U.S. Patent 5,904,724 because his company has been accused of infringing the same patent.

Issue 3.   Whether NASA has failed to meet their burden under 5 U. S. C. § 552(a)(4)(B) of justifying their withholding of documents and their redactions. In NASA’s Answer to Second Amended Complaint they admitted they sent Margolin approximately 4,000 pages of documents, they admitted they did not provide an index of the documents, and asserted they had no duty to do so. 

Issue 1

Whether all documents subsequent to July 12, 2004 are post-decisional and not exempt from production under §552 (b)(5).

            The 4,000 or so pages of documents that NASA provided included this email from Edward K. Fein (NASA attorney at JSC) to Frank Delgado (NASA employee at JSC) and Alan Kennedy (NASA attorney in the Office of the General Counsel) and was copied to several others at NASA. (Second Amended Complaint, Appendix Volume 2 at A19):

[Page 04607]  [AV2-A19]
-----Original Message-----
From: FEIN, EDWARD K. (JSC-HA) (NASA)
Sent: Monday, July 12, 2004 11:00 AM
To: DELGADO, FRANCISCO J. (FRANK) (JSC-ER2) (NASA); 'Kennedy, Alan; [redacted (b)(6)]
Cc: FARMER, CLIFF L. (JSC-ER) (NASA); MURATORE, JOHN F. (JSC-MS) (NASA)
Subject: RE: Patents 5566073 and 5904724

Frank ... Thank you so much for your detailed analysis and research on this matter. I know that you invested considerable time into assisting in the defense of this infringement claim. Your effort, together with valuable input from Mike Abernathy, will be the basis for NASA's denying the administrative claim. There is always a chance that Margolin will file a law suit, but with all of the information you guys have turned up, I think the chance of that is small.

Thanks again!
-Ed

            NASA’s failure to inform Margolin of their decision at this point is irrelevant. What is relevant is what NASA did after making this decision.

a.   In September 2004 NASA approved a plan to file a Request for Re-Examination with the Patent Office. (Second Amended Complaint, Appendix Volume 2 at A55)

[Page 2645]  [AV2-A55]
Re: US Patents 5566073 and 5904724
From: Barry V. Gibbens, LaRC [redacted (b)(6)]
To: Mike Abernathy [redacted (b)(6)]  Kennedy, Alan [redacted (b)(6)]
CC: Linda B. Blackburn  [redacted (b)(6)]    
Dan Baiz  [redacted (b)(6)]
'Trey Arthur' [redacted (b)(6)]
DELGADO FRANCISCO J. (FRANK) [redacted (b)(6)]
FEIN, EDWARD K. JSC-H (NASA)  [redacted (b)(6)]
Eric Boe  [redacted (b)(6)]
Date: Sep 01 2004 - 11:29am
Hi Alan (and others),

Just to clarify the message below, I spoke with Mike Abernathy this morning, and I've spoken with Dan Baize on a number of occasions concerning this topic. I've also spoken with you (Alan) briefly, and with Linda Blackburn, Patent Counsel here at Langley (not Linda "Blackwell" :-). It seems clear that the technical folks have determined that the Margolin patent on Synthetic Vision creates a substantial problem for many of our partners in the aviation safety industry for a variety of reasons. It also seems clear that there is substantial prior art in existence to make an argument for re-examination of the Margolin patent. Linda has stated that we at Langley are willing to support an analysis of this situation at the Center level. She has, however, also told me that we first need to perform a formal infringement analysis to confirm (from a legal perspective) that we are in fact practicing the patent as described by its claims. If that analysis shows probable infringement, then we can proceed with a re-examination request, which Dan Baize has indicated he would be willing to fund. It is my understanding that you (again Alan) gave your blessing this morning for us to proceed at the Center level on these activities. If that is the case, I'll go ahead and begin moving on the formal infringement analysis, keeping you apprised of progress as it develops. Please let me know if you are in agreement with the situation as I have described it. If so, I'll begin work here shortly.

Thanks,

Barry

NASA’s subsequent decision not to carry out their plan is irrelevant and their reasons are unknown. Margolin suggested [Second Amended Complaint at 39, lines 9-15]:

It’s possible that NASA concluded they did not infringe. However, they had already decided they did not infringe when they decided to deny Margolin’s claim in July. Besides, NASA’s reason for wanting to invalidate the Patents was to benefit their partners.

There is another possibility to consider, which is that an analysis of Abernathy’s purported prior art did not stand up to careful scrutiny. Thus, the patents would survive a Re-Examination and come out of it even stronger.

NASA denied Margolin’s suggested reasons but offered no explanation of their own. From NASA’s Answer to Second Amended Complaint at 10, lines 4-9:

28.  Defendant admits that it did not file a Request for Reexamination on U.S. Patent

Nos. 5,566,073 and 5,904,724. Defendant denies the allegations contained in page 39, lines

9-21 of this paragraph. The allegations contained at page 39, line 23, through page 40, line 15, constitute conclusions of law to which no response is required. Defendant lacks knowledge and information sufficient to form a belief as to the allegations contained in the last sentence of this paragraph and, on that basis, denies those allegations.

Whatever reason NASA had for deciding not to file a Request For Re-Examination, they spent time and energy (and NASA money) making that decision. Surely they would not have done so if there had been any question about denying Margolin’s claim for compensation.

b.    An email from Frank Delgado (NASA employee) to Fein and Kennedy (NASA attorneys), and to Abernathy is probative because it shows NASA’s hostility toward the patent which was the subject of Margolin’s claim. (Second Amended Complaint, Appendix Volume 2 at A61):

[Page 00067] [AV2-A61]
From: Delgado, Francisco J. (JSC-ER2) [redacted (b)(6)]
Sent: Monday, September 25, 2006 9:42 PM
To: Mike Abernathy; Fein, Edward K. (JSC-AL); Kennedy, Alan J. (HQ-MC000); [redacted (b)(6)]
Cc: Delgado, Francisco J. (JSC-ER2); Fredrickson, Steven E. (JSC-ER)
Subject: FW: Read: Let us chat on about SCOUT, SC3D, the X-38 program and RIS; noted below are our patents that cover said technology that RIS and your groups are using.

See email from "Mr. Adams" below.

This is getting more ridiculous by the minute. I have resisted replying in any form as suggested by JSC council. However, this matter has been left open for quite some time and something needs to be done NOW. It has come to my attention that Mr. Adams and company have issued a letter that prohibits RIS from selling any of their software until this issue is resolved. We have had a very "intellectually" fruitful relationship with RIS for almost a decade and would like to continue this relationship for many years to come. Some of the technology concepts in question were co-developed by RIS and I during many "brainstorming sessions" on how to provide optimal situation awareness to various users.

The folks pressing forward with this claim do not have solid ground to stand on (IMHO). Based on the previous research performed, I do not see how their patent claims are valid and I would like to request that NASA's council take this matter seriously and get the patents invalidated (as it should have been done when this first showed up a couple of years ago). This is not only the right legal thing to do, but also the right moral thing to do. If we allow an individual to continue to harass small companies and stand-by with little/no action, then we are no better than the company doing the harassing. As a government organization, we need to keep the public faith and trust and again, "do the right thing." I realize that patience is important in legal matter, but believe that the time for sitting idle and hoping that this matter goes away is way past due and that something needs to be done ASAP. Putting companies that NASA relies on to help move technology forward out of business with a barrage of unwarranted litigation does not seem like it is in NASA's (or our taxpayers) best interest.

Please let me know what I need to do on my end to help move this along.

BTW: If we do not deal with issue immediately it will only get worse for NASA. I know of several Projects within JSC, JPL, and Langley that use independently developed technology (i.e. technology that does not use what RIS and I came up with) that I am sure Mr. Adams and company would claim infringes on their "Patents." We seem to be on his radar at the moment because we do what government organizations are encouraged to do ("Publish their work").

Thank You,

Frank Delgado

{Emphasis added}

This email does not sound like NASA is considering granting Margolin’s claim for compensation. If NASA were considering granting Margolin’s claim for compensation they would not be expressing their desire to destroy the patent in order to “do the right thing.” If Fein or Kennedy replied to Delgado’s email it was not provided to Margolin.

c.   Sometimes NASA loses things, important things. In 2008 NASA was unable to account for capital assets with an acquisition cost of about $32 Billion (with a net value of about $18.6 Billion). This was revealed in a memo dated September 25, 2008 from NASA’s Assistant Inspector General for Auditing to various NASA officers with the subject “Final Memorandum on NASA’s Development of the Integrated Asset Management – Property, Plant, and Equipment Module to Provide Identified Benefits (Report No. IG-08-032; Assignment No. A-08-001-00).” See Exhibit 1, Appendix Volume 1 at A5, third full paragraph.

            NASA also lost their policy on reviewing patent claims. One of the documents NASA provided in the 4,000 pages or so is an email from Gary G. Borda dated January 23, 2009 asking people to look for NASA’s procedures for administratively reviewing a claim of patent infringement. See Exhibit 2, Appendix Volume 1 at A19. These procedures were referenced in  GAO report B-285211 where GAO reviewed NASA’s administrative action in denying another inventor’s claim. (Ibid.)  Margolin filed a second Freedom of Information Act Request with NASA in December 2009. One of the documents he asked for was NASA’s procedures for administratively reviewing a claim of patent infringement, specifically the procedures referenced in the above GAO report. Margolin was not satisfied with NASA’s response and filed a FOIA Appeal. In NASA’s denial of Margolin’s FOIA Appeal they admitted they had been unable to find NASA’s procedures for administratively reviewing a claim of patent infringement. See Exhibit 3, Appendix Volume 1 at A40 (next to last paragraph).

Perhaps NASA also lost their memory of (i.e. forgot) denying Margolin’s claim in July 2004.

Issue 2

Whether any documents from or to Mike Abernathy (“Abernathy”) or from or to Rapid Imaging Software are exempt from production under §552 (b)(5) in view of  Klamath

            Abernathy (at Rapid Imaging Software) was the Contractor who provided the synthetic vision software for the X-38 project. In a unanimous Supreme Court decision in Department of the Interior v. Klamath Water Users Protective Ass'n. 532 U.S. 1 (2001), the Court ruled that the threshold of Exemption 5 did not encompass communications between the Department of the Interior and several Indian tribes which, in making their views known to the Department on certain matters of administrative decisionmaking, not only had "their own, albeit entirely legitimate, interests in mind," (Klamath, 532 U.S. at 12) but also were "seeking a Government benefit at the expense of other applicants." ( Id. at 12 n.4)

            As the NASA documents show, Abernathy had his own interests in mind regarding NASA’s infringement of U.S. Patent 5,904,724 (‘724) because his company has been accused of infringing the same patent. When Abernathy was approached for a friendly conversation about licensing the ‘724 patent he asked NASA for legal advice in dealing with the situation. See  Second Amended Complaint at 40-67. Unfortunately, NASA’s legal advice has been either redacted or withheld. However, since the object of the infringement is the same software used in the X-38 project (“Landform”) it is unlikely that NASA advised Abernathy to license the ‘724 patent and, indeed, Abernathy refused to license the patent. He also spoke of filing a Request For Re-Examination with the Patent Office and, like NASA, failed to do so.

            If NASA is to be believed, that Abernathy was only a Government Contractor (and not acting as NASA’s Agent), then Klamath applies and none of the documents between NASA and Abernathy (or Rapid Imaging Software or any of NASA’s other Contractors or Partners) is eligible for the §552 (b)(5) exemption.

Issue 3

NASA has failed to meet their burden of justifying their withholding

of documents and their redactions

            NASA has failed to meet their burden under 5 U. S. C. § 552(a)(4)(B) of justifying their withholding of documents and their redactions.

            In NASA’s Answer to Second Amended Complaint they admitted they sent Margolin approximately 4,000 pages of documents, they admitted they did not provide an index of the documents, and asserted they had no duty to do so.  See NASA’s Answer to Second Amended Complaint at 7, lines 18-19.

            In Vaughn v. Rosen 484 F2d 820, 157 U.S.App.D.C. 340 the Court explained:

The Freedom of Information Act was conceived in an effort to permit access by the citizenry to most forms of government records. In essence, the Act provides that all documents are available to the public unless specifically exempted by the Act itself.10 This court has repeatedly stated that these exemptions from disclosure must be construed narrowly, in such a way as to provide the maximum access consonant with the overall purpose of the Act.11 By like token and specific provision of the Act, when the Government declines to disclose a document the burden is upon the agency to prove de novo in trial court that the information sought fits under one of the exemptions to the FOIA.12  Thus the statute and the judicial interpretations recognize and place great emphasis upon the importance of disclosure.

In light of this overwhelming emphasis upon disclosure, it is anomalous but obviously inevitable that the party with the greatest interest in obtaining disclosure is at a loss to argue with desirable legal precision for the revelation of the concealed information. Obviously the party seeking disclosure cannot know the precise contents of the documents sought; secret information is, by definition, unknown to the party seeking disclosure. In many, if not most, disputes under the FOIA, resolution centers around the factual nature, the statutory category, of the information sought.

and

This lack of knowledge by the party seeing disclosure seriously distorts the traditional adversary nature of our legal system's form of dispute resolution. Ordinarily, the facts relevant to a dispute are more or less equally available to adverse parties. In a case arising under the FOIA this is not true, as we have noted, and hence the typical process of dispute resolution is impossible. In an effort to compensate, the trial court, as the trier of fact, may and often does examine the document in camera to determine whether the Government has properly characterized the information as exempt. Such an examination, however, may be very burdensome, and is necessarily conducted without benefit of criticism and illumination by a party with the actual interest in forcing disclosure. In theory, it is possible that a trial court could examine a document in sufficient depth to test the accuracy of a government characterization, particularly where the information is not extensive. But where the documents in issue constitute hundreds or even thousands of pages, it is unreasonable to expect a trial judge to do as thorough a job of illumination and characterization as would a party interested in the case

And thus was born the Vaughn Index, which NASA asserts it has no duty to provide.

In Coastal States Gas Corp. v. Department of Energy, 617 F. 2d 854 - Court of Appeals, Dist. of Columbia 1980, the Court ruled that conclusory assertions of privilege will not suffice to carry the Government's burden of proof in defending FOIA cases.

III. The Vaughn Index: In lieu of in camera inspection, DOE submitted an index of the withheld documents, along with affidavits from regional counsel in support of its decision not to release the memoranda. The parties have referred to these materials as the Government's "Vaughn Index," but we wish to make clear that this index is not what we had in mind in our decision in Vaughn v. Rosen,  157 U.S.App.D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974) (Vaughn I), in which we set out suggested procedures to allow the courts to determine the validity of the Government's claims without physically examining each document. We repeat, once again, that conclusory assertions of privilege will not suffice to carry the Government's burden of proof in defending FOIA cases.

All NASA has done is make a broad conclusory statement that the documents it provided are exempt under §552 (b)(5) and other sections.

From NASA’s Answer to Second Amended Complaint at 7, lines 21-23:

Defendant admits that certain documents were withheld from the supplemental response to Plaintiff’s 2008 FOIA request under FOIA Exemptions (b)3, (b)(4),  (b)(5) and (b)(6). 

Margolin’s Duties Under Local Rule LR 56-1

Local Rule 56-1 MOTIONS FOR SUMMARY JUDGMENT requires:

Motions for summary judgment and responses thereto shall include a concise statement setting forth each fact material to the disposition of the motion which the party claims is or is not genuinely in issue, citing the particular portions of any pleading, affidavit, deposition, interrogatory, answer, admission, or other evidence upon which the party relies.

Margolin believes this means he must do this for each paragraph in NASA’s Answer.

            First, Margolin wants to address the formulaic language used in much of NASA’s Answer which takes the form:

Defendant lacks sufficient knowledge and information to form a belief as to the truth of the allegations contained in xxx and, on that basis, denies those allegations.

            When NASA denies an allegation, it is irrelevant that it is because they claim to lack sufficient knowledge and belief as to the truth of the allegation. A denial is a denial, especially when NASA says in Paragraph 41, “Defendant further denies all allegations of the complaint not previously expressly admitted.” (NASA’s Answer to Second Amended Complaint, Paragraph 41 at 13, line 17.)

            In some cases NASA’s denial is an embarrassment to the Agency, such as in Paragraph 6 (NASA’s Answer to the Second Amended Complaint at 2, lines 15-17) when NASA denies that Margolin’s ‘073 and ‘734 patents teach what is now called synthetic vision. The FAA has a definition for synthetic vision. NASA knows what synthetic vision is. NASA and their sycophants claim NASA invented it. NASA made the following statement in an email by Barry Gibbens on September 1, 2004 (Second Amended Complaint, Appendix Volume 2 at A55):

“It seems clear that the technical folks have determined that the Margolin patent on Synthetic Vision creates a substantial problem for many of our partners in the aviation safety industry for a variety of reasons.

            NASA’s denials, indeed this entire case, show the truth in a remark made by Admiral Hyman Rickover in a speech he gave at Columbia University in 1982, in which he succinctly outlined his management philosophy. The Admiral said, “Unless one person who is truly responsible can be identified when something goes wrong, then no one has really been responsible."   (http://govleaders.org/rickover.htm)

            It is why Margolin filed the Complaint against NASA Administrator Bolden. Margolin thought that someone should be responsible, even if most of the events in the case occurred on someone else’s watch. The Agency disagreed, and rather than have the case go down the drain on this issue, Margolin amended his complaint to make NASA the Defendant and to remove General Bolden as a Defendant. Now, as a result, no one at NASA is responsible for anything, which is why no one at NASA knows anything.

            Sometimes, NASA’s denial is truly offensive, such as when NASA denies that Margolin is an engineer and independent inventor. See Paragraph 4 (NASA’s Answer to the Second Amended Complaint at 2, lines 10-11). Perhaps NASA was trying to bait Margolin into filing a Motion to Strike NASA’s offensive and scandalous remark.

            In order to comply with LR-56-1 Margolin will attempt to pair NASA’s Answer with Margolin’s Second Amended Complaint and give a concise statement about it.

NASA and Margolin agree this action is brought under the Freedom of Information Act.

NASA and Margolin agree that this Court has jurisdiction over this action.

NASA and Margolin agree that venue is proper in this Court.

NASA agrees that Margolin resides at 1981 Empire Rd., VC Highlands, Nevada.

NASA denies that Margolin is an engineer and independent inventor.

Margolin responds:

            1.  Margolin has a Bachelor of Science in Engineering (Electrical Engineering) degree from The University of Michigan (1972).  See Exhibit 4, Appendix Volume 1 at A46. He is an engineer.

            2.  Margolin is the named inventor or co-inventor on sixteen U.S. Patents. See, for example the front page of U.S. Patent 5,566,073  (Second Amended Complaint, Appendix Volume 1 at A20) and 5,904,724 (Second Amended Complaint, Appendix Volume 1 at A15). According to 35 U.S.C. 101 Inventions patentable:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

While it is not explicitly stated, patents may only be obtained by the inventor. You cannot get a patent on something you did not invent. Therefore, if you have a patent, you are an inventor. Margolin is an inventor.

            3.  The remaining issue is whether Margolin is an independent inventor. In NASA’s denial of Margolin’s FOIA Appeal for Margolin’s Second FOIA Request, NASA stated (Exhibit 3, Appendix Volume 1 at A40):

There are no responsive records to items 3, 4, 5 and 8 because the search revealed no Agency records which refer to Agency use of the category "Independent Inventors."

It is dishonest of NASA to assert that they do not know what an independent inventor is while denying that Margolin is one. This is probative because it is representative of the disrespect NASA has shown Margolin for the past 7+ years.

NASA and Margolin agree on this one.

            NASA admits that Margolin is the named inventor on ‘073 and ‘724.

            NASA denies that the ‘073 patent teaches the use of what is now called synthetic vision in manned aircraft and that the ‘724 patent teaches the use of synthetic vision for controlling unmanned aerial vehicles (UAVs).

            The FAA’s current definition of synthetic vision is contained in the Code of Federal Regulations Title 14.

Title 14: Aeronautics and Space

PART 1—DEFINITIONS AND ABBREVIATIONS

Synthetic vision means a computer-generated image of the external scene topography from the perspective of the flight deck that is derived from aircraft attitude, high-precision navigation solution, and database of terrain, obstacles and relevant cultural features.

Synthetic vision system means an electronic means to display a synthetic vision image of the external scene topography to the flight crew.

These elements are taught by ‘073 and ‘724.  NASA’s denial that ‘073 and ‘724 teach synthetic vision is probative because it makes NASA look dishonest and/or inept.

NASA admits that Margolin contacted NASA in May 2003 but denies that the use of synthetic vision for controlling a UAV can be used to the detriment of this country by unfriendly entities. NASA also denies Margolin wanted a friendly conversation because he thought NASA should buy the ‘724 patent in order to control the technology.

            NASA admits that they ordered the file wrappers for ‘073 and ‘724 but denies that only a small portion of the file wrappers was included in Margolin’s Second Amended Complaint Appendix Volume 1 at A22.

            Margolin responds by noting that he included only 5 pages of the ‘073 file wrapper in order to avoid wasting time, paper, and bandwidth. (See Second Amended Complaint Appendix Volume 1 at A22.) Since NASA has challenged Margolin on this he has included herein as Exhibit 10, Volume 1 at A65 sixty of the approximately 240 pages of the file wrapper for ‘073 produced by NASA. Note that some of the pages produced by NASA are upside down. (NASA’s numbers are right-side up.)

            NASA admits Margolin was referred to the NASA Headquarters Office of General Counsel in June 2003 and spoke to Alan Kennedy.

            NASA denies the substance of Margolin’s conversation with Kennedy as Margolin noted in a contemporaneous account. Perhaps Margolin should have recorded his conversations with NASA’s attorneys.

            NASA admits Margolin filed a claim.

            NASA again denies the substance of a conversation Margolin had with Kennedy and noted in a contemporaneous account.

            NASA admits Margolin did not receive a determination of his administrative claim for patent infringement by December 2003.

            NASA admits Margolin sent Kennedy a letter in January 2004 and received no reply.

            NASA again denies the substance of a conversation Margolin had with Kennedy and noted in a contemporaneous account.

NASA admits Margolin did not contact NASA again until June 2008.

NASA denies Kennedy refused to talk to Margolin or respond to his letter. However, in Paragraph 11 (supra) NASA has admitted that Kennedy did not respond to Margolin’s letter.

            NASA denies Margolin assigned the patents to Optima Technology Group and casts doubt on the ownership of the patents (‘073 and ‘724).

            The patents were litigated in U.S. District Court For the District of Arizona in case No. CV-00588-RC. Before the case began an individual named Reza Zandian fraudulently filed documents with the Patent Office assigning the patents to his company (Optima Technology Corporation) whose name was similar to the proper owner (Optima Technology Group). In an order dated August 18, 2008 the Arizona Court ruled:          

1. Optima Technology Corporation has no interest in U.S. Patents Nos. 5,566,073 and 5,904,724 (“the Patents”) or the Durable Power of Attorney from Jed Margolin dated July 20, 2004 (“the Power of Attorney”);

2. The Assignment Optima Technology Corporation filed with the USPTO is forged, invalid, void, of no force and effect, and is hereby struck from the records of the USPTO;

3. The USPTO is to correct its records with respect to any claim by Optima Technology Corporation to the Patents and/or the Power of Attorney; and

4. OTC is hereby enjoined from asserting further rights or interests in the Patents and/or Power of Attorney; and

5. There is no just reason to delay entry of final judgment as to Optima Technology Corporation under Federal Rule of Civil Procedure 54(b).

            NASA knew about this situation. The Arizona Court’s Order is among the 4,000 or so pages of documents NASA gave Margolin in November 2009. See Exhibit 5, Appendix Volume 1 at A48. The Patent Office obeyed the Court’s Order but, apparently, the Order is not good enough for NASA. NASA’s actions in questioning the current ownership of the patents are beneath contempt. NASA’s attempt to poison the well by having their agent Abernathy publish a spurious history of synthetic vision largely failed, so now they are questioning the current ownership of the patents. This issue is irrelevant to the present case except to promote NASA’s agenda for adding more poison to the well. In the interest of fairness, the Court is requested to order NASA produce all documents and records of communications where they questioned the proper ownership of the Patents.

            This is not the first time NASA has acted like it is above the Law. When NASA failed to respond in a timely manner to Margolin’s Second FOIA Request he contacted them to ask what their intentions were. The response he received was as follows (See Exhibit 6, Appendix Volume 1 at A51):

This action is currently is currently being reviewed for legal concurrence; this action should be completed within the next couple days. We apology for the delay in this process; but we must adhere to our agency’s processing procedures.

There is no mention of NASA’s statutory obligations under the Freedom of Information Act, only “our agency’s processing requirements.”

            NASA and Margolin agree that Margolin filed a FOIA Request on June 28, 2008.

            NASA denies that Margolin had a reason for filing the FOIA Request.

            NASA and Margolin agree that the FOIA matter was assigned FOIA HQ 08-270.  

            NASA and Margolin agree that the FOIA case was turned over to Jan McNutt, who worked in the NASA Headquarters Office of General Counsel and that Mr. McNutt sent Margolin a letter dated August 5, 2008.

            NASA denies the substance of Margolin’s telephone conversation with Mr. McNutt.

            NASA surprises Margolin with the news that Mr. McNutt has left NASA. A telephone call to NASA’s Office of the Inspector General confirmed Margolin’s suspicion that, as a result of Mr. McNutt’s departure from NASA, he can no longer be compelled to cooperate with an investigation by NASA’s Inspector General.

            NASA and Margolin agree that Mr. McNutt asked Margolin to give NASA a 90-day extension to his FOIA request.

            NASA and Margolin agree that Margolin gave NASA a 90-day extension to his FOIA request.

            NASA denies that Margolin was told several times that the requested documents were being sent out and that NASA finally sent Margolin documents in May 2009.

            NASA denies that Margolin sent Acting Administrator Christopher Scolese the letter reproduced as Second Amended Complaint, Exhibit 8, Appendix Volume 1 at A41.

Paragraph 16 is long and will be separated into parts.

NASA and Margolin agree that NASA withheld documents, citing FOIA Exemption (b)(5).

(Paragraph 16, continued)

NASA and Margolin agree that NASA’s response did not include the Borda letter.

(Paragraph 16, continued)

            NASA asserts that the Borda letter was NASA’s final agency action on the administrative claim for patent infringement filed by Margolin. Margolin asserts that NASA’s decision was made in July 2004.

(Paragraph 16, continued)

NASA denies that Margolin received his copy of the Borda letter from OTG (Optima Technology Group). Since NASA didn’t give it to Margolin where do they think he got it?

(Paragraph 16, continued)

NASA admits Margolin made allegations regarding the contents of the Borda letter and failed to deny them.

(Paragraph 16, continued)

            NASA denies that the Borda letter was the most material document at that point. When Margolin filed his Complaint in July 2009 he believed the Borda letter was the most material document so far. He did not receive the Fein email of July 2004 until November 2009. It was the Fein email that stated NASA’s intention to deny Margolin administrative claim of patent infringement. (Second Amended Complaint, Appendix Volume 2 at A19)  If NASA denies that the Borda letter was the most material document in the case, perhaps they will agree that the Fein email is.

            NASA admits they did not conduct their initial search for documents until January 2009, approximately six months after Margolin filed his FOIA Request. What did NASA do during this six months? They ordered the Court documents in the UASC v. Optima Technology Group case (See Second Amended Complaint Paragraph 30 at 67, line 25) and contacted Abernathy for help in destroying the patents. (See Second Amended Complaint Paragraph 32 at 74, line 9.)

            NASA admits their investigation was completed in January 2009. However, NASA did not send Margolin the results of their investigation until approximately four months later, in May 2009. NASA admits that the Borda letter was created during this time. It is reasonable to believe that the timing was intentional in order to withhold the letter from Margolin. NASA is playing the Shell Game here.

(Paragraph 16, continued)

NASA denies that any document that could be considered  a “Borda Patent Report” was ever prepared. As Margolin will explain shortly such a patent report is necessary in order to invalidate a patent due to prior art. Is NASA admitting that Borda lied when he stated, “

... numerous pieces of evidence were uncovered which would constitute anticipatory prior knowledge and prior art that was never considered by the U.S. Patent and Trademark Office during the prosecution of the application which matured into Patent No. 5,904,724.”

and threatens, “... NASA reserves the right to introduce such evidence of invalidity in an appropriate venue, should the same become necessary.” ?

(Paragraph 16, continued)

            NASA admits that Margolin’s allegations raise questions that are a matter of law but offers no discussion of their own.

            In particular, there is the proposed use of the “... numerous pieces of evidence [that] were uncovered which would constitute anticipatory prior knowledge and prior art that was never considered by the U.S. Patent and Trademark Office during the prosecution of the application which matured into Patent No. 5,904,724.” and Borda’s threat, “... NASA reserves the right to introduce such evidence of invalidity in an appropriate venue, should the same become necessary.”

            The USPTO Manual of Patent Examining Procedure (MPEP) Section explains the requirements for a Request For Ex-Parte Re-Examination in Section 2205 Content of Prior Art Citation (Exhibit 9, Appendix Volume 1 at A60)

(URL is http://www.uspto.gov/web/offices/pac/mpep/documents/2200_2205.htm#sect2205)

2205 Content of Prior Art Citation [R-7]

The prior art which may be submitted under 35 U.S.C. 301 is limited to "written prior art consisting of patents or printed publications."

*>Pursuant to 35 U.S.C. 301, an< explanation is required of how the person submitting the prior art considers it to be pertinent and applicable to the patent, as well as an explanation of why it is believed that the prior art has a bearing on the patentability of any claim of the patent. The prior art citation must, at a minimum, contain some broad statement of the pertinency and applicability of the art submitted to the patentability of the claims of the patent for which the prior art citation is made. *>The explanation of why it is believed that the prior art has a bearing on the patentability of any claim of the patent< would be met, for example, by a statement that the art submitted in the prior art citation under 37 CFR 1.501 was made of record in a foreign or domestic application having the same or related invention to that of the patent. >The explanation of how the person submitting the prior art considers it to be pertinent and applicable to the patent would set forth, for at least one of the patent claims, how each item cited shows or teaches at least one limitation of the claim.< Citations of prior art by patent owners may also include an explanation of how the claims of the patent differ from the prior art cited.

{Emphasis added}

That is what is required to challenge the validity of a patent due to prior art, a report showing

“for at least one of the patent claims, how each item cited shows or teaches at least one limitation of the claim.” NASA asserts that no such report ever existed.

 (Paragraph 16, continued)

NASA denies that Margolin already had most of the documents NASA sent him because they were documents he had sent NASA. If NASA had read the documents they sent him they would have had to agree with him.

(Paragraph 16, continued)

NASA admits it failed its duty under 5 U.S.C. § 552(a)(6)(F) to provide an estimate of the volume of withheld documents.

NASA and Margolin agree on this one.

NASA and Margolin agree on everything in this paragraph except that NASA denies failing to respond to Margolin’s FOIA appeal within the 20 day statutory period required by FOIA. Margolin filed his FOIA Appeal on June 10, 2009. (Second Amended Complaint, Appendix Volume 1 at A54) It was received at NASA on June 12, 2009. (Second Amended Complaint, Appendix Volume 1 at A75) NASA’s denial of Margolin’s appeal was mailed August 6, 2009. (Second Amended Complaint, Appendix Volume 1 at A90). By Margolin’s count that comes to 38 business days after NASA received his FOIA Appeal.

  NASA and Margolin agree that Margolin filed suit against NASA.

            NASA admits that they denied Plaintiff's FOIA appeal in a letter dated August 5, 2009.

            NASA denies the letter was sent by Thomas S. Luedtke and that they produced no additional documents. See Second Amended Complaint, Appendix Volume 1 at A84 for Luedtke’s letter.

Paragraph 22 is long and will be separated into parts.

            NASA admits that Margolin was referred to the NASA Headquarters Office of General Counsel in June 2003 (Paragraph 9 supra).

            NASA admits that Margolin submitted his administrative claim for patent infringement to the Headquarters Office of the General Counsel (Paragraph 10 supra).

            Therefore, it was reasonable for Margolin to submit his FOIA request to the Headquarters Office of the General Counsel.

            NASA’s inference that Margolin made a mistake by not submitting his FOIA request to other NASA locations is misleading and is more of the Shell Game that NASA is playing.

            Margolin requests the Court instruct NASA to stop being so annoying.

(Paragraph 22 continues)

            NASA admits they gave Margolin approximately 4,000 pages of additional documents and that “4,000 is a number greater than 100.” Whether 4,000 is a great deal more than 100, or is simply greater than 100 may be a matter of opinion that depends on who has to read the documents. It is not insubstantial.

(Paragraph 22 continues)

Since NASA admits it did not provide an index to the 4,000 or so pages of documents it provided and asserts it has no duty to do so, Margolin is forced to request that the Court order NASA to provide the documents to the Court for in camera inspection.

(Paragraph 22 continues)

NASA admits it withheld documents from its supplemental response. Margolin requests NASA be ordered to include them in his request for in camera inspection made above.

(Paragraph 22 continues)

NASA’s denial has made it necessary for Margolin to make many of the redacted emails that are part of the 4,000 or so pages it sent Margolin in November 2009 available as an appendix to this filing.  To avoid wasting the Court’s time Margolin has included only approximately 574 pages. See Exhibit 11, Appendix Volume 2 through Appendix Volume 7. Most are emails. One of Margolin’s favorite NASA emails is in Appendix Volume 6 at A18. It’s totally redacted.

Paragraph 23 is long and will be separated into parts.

NASA denies the 4,000 or so pages tell a very different story of the period of time from when Margolin contacted NASA in May 2003 about their infringement of ‘724 to when they finally responded to his FOIA request in May 2009. 

(Paragraph 23 continues)

NASA admits it has not provided the patent analysis performed by Frank Delgado. But, perhaps the patent analysis was done by someone else. In an email from Barry Gibbens on September 1, 2004 (Second Amended Complaint, Appendix Volume 2 at A55) he states “It also seems clear that there is substantial prior art in existence to make an argument for re-examination of the Margolin patent.” This would qualify as the “Borda Patent Report,” which calls into question NASA’s truthfulness in Paragraph 16 (supra) where NASA:

… denies that any document that could constitute a “Borda Patent Report” was ever prepared, much less withheld.

NASA denies everything else.

(Paragraph 23 continues)

NASA and Margolin completely disagree on this. Margolin asserts that it was in the Fein email of July 2004 that NASA decided to deny Margolin’s claim.

(Paragraph 23 continues)

NASA denies it planned to file a Request For Re-Examination with the Patent Office. This is contradicted by the email dated September 1, 2004 from Barry Gibbens to (among others) Alan Kennedy and Edward Fein. See Margolin’s Second Amended Complaint Appendix Volume 2 at A55.

(Paragraph 23 continues)

Margolin denies that NASA’s communications with Abernathy was appropriate. NASA gave Abernathy legal advice concerning his company’s patent infringement. Such communications suggest Abernathy was acting as NASA’s agent.

(Paragraph 23 continues)

NASA denies Abernathy was acting as their agent.

NASA denies that the individuals (whose names come up frequently in NASA’s emails regarding the present subject) are “major players.”

Paragraph 25 is long and will be separated into parts.

NASA denies Margolin’s attempt to present the emails in an understandable fashion but fails to present their own version.

(Paragraph 25 continues)

Margolin denies NASA’s assertion that the redactions are appropriate or that documents were appropriately withheld.

(Paragraph 25 continues)

NASA denies that Margolin has presented NASA emails with his own expository commentary.

(Paragraph 25 continues)

NASA denies Margolin’s evidence of Abernathy’s ignorance of patents.

(Paragraph 25 continues)

NASA denies they relied uncritically on Abernathy’s work and that their refusal to comply with the Freedom of Information is due at least in part, to their desire to avoid embarrassment to the Agency.

(Paragraph 25 continues)

NASA denies Margolin’s analysis of U.S. Patent 3,552,980 (the PBJ Patent).

(Paragraph 25 continues)

NASA chooses to let their emails speak for themselves.

(Paragraph 25 continues)

NASA denies that it decided to deny Margolin’s claim in July, 2004 but offers no argument as to why the email should be interpreted as meaning something other than what its plain language states.

(Paragraph 25 continues)

NASA has not seen the classic 1964 Stanley Kubrick film Dr. Strangelove, or How I learned to stop worrying and love the Bomb. 

NASA denies at least that a true prior art analysis requires an actual discussion of purported prior art pointing out where the elements in the patent claim being discussed are present in the purported prior art.

NASA denies Margolin’s observation about NASA’s emails and chooses to let their emails speak for themselves.

Paragraph 28 is long and will be separated into parts.

NASA admits it did not file a Request for Reexamination for the patents. Previously, in Paragraph 23 (supra) they denied they were even considering filing one.

(Paragraph 28 continues)

NASA denies the conclusion Margolin reached after reading NASA’s email.

(Paragraph 28 continues)

Among other things, NASA denies Abernathy has an interest in having U.S. Patents 5,566,073 and 5,904,724 declared invalid. This is contradicted by the email exchanges between Abernathy and Optima Technology Group, and Abernathy and NASA in September 2006.

NASA denies Margolin’s characterization of the NASA emails but offers no explanation of their own.

NASA admits Margolin filed a FOIA Request.

NASA chooses to let their emails speak for themselves.

NASA denies Margolin’s commentary on NASA’s emails but offers no explanation of their own.

NASA chooses to let their emails speak for themselves.

NASA denies Margolin’s commentary on NASA’s emails but offers no explanation of its own.

            NASA chooses to let their emails speak for themselves.

            NASA denies the facts of how Wikipedia works when they could have gone to the Wikipedia Web site and verified these facts for themselves.

            NASA denies Margolin’s commentary on NASA’s emails but offers no explanation of their own.

NASA asserts that NASA’s Jeff Fox contributed to the article published in the December 2008 issue of AUVSI’s Unmanned  Systems Magazine as Synthetic Vision Technology for Unmanned Systems: Looking Back and Looking Forward. (See Second Amended Complaint  Appendix Volume 3 at A26)   However, an email from Brett Davis, editor of AUVSI Unmanned  Systems Magazine raises doubts about that. (See Exhibit 7, Appendix Volume 1 at A54):

As far as I can tell from my email trail, he was indeed not listed on the first version of the story that came to me. I edited it to our style and sent it back to Michael Abernathy for review. They then revised my edit and sent it back to me and at that point asked to have him added as an author.

I didn’t do a side-by-side analysis of what might have been changed or added by him in particular, though, and wouldn’t necessarily been able to tell anyway. I also didn’t deal with him directly, only with Michael Abernathy, but that’s not an usual arrangement for multi-author stories provided by outside companies.

            NASA and Margolin agree that Margolin sent a copy of his response to the Abernathy article to McNutt.

            NASA denies that Abernathy’s letter expresses pleasure at the apparent misfortune of others.

NASA chooses to let their emails speak for themselves.

NASA denies Margolin’s commentary on NASA’s emails but offers no explanation of their own.

NASA denies they have been at war against Margolin but refuses to explain the use of the term “war” in their emails.

NASA’s statement denying they have been engaged in a war against Margolin is a non sequitur:

“.. Defendant denies that it is engaging in a war against Plaintiff and admits that doing so would be especially difficult during the four and a half year period between January 2004 and July 2008 when neither Plaintiff nor OTC communicated at all with Defendant regarding the patent claim. “

{Emphasis added.}

NASA’s response suggests that they could not engage in a war against an entity unless that entity was in communications with them.

The evidence shows that NASA has been engaged in a stealth war against the Margolin patents both directly and through its Agent Abernathy for years. This is the story told by NASA’s redacted documents. The unredacted documents are probably much worse, which is why they were redacted. Even now, NASA is questioning the proper ownership of the patents in order to damage them. NASA’s behavior is repugnant.

Note that NASA may have confused OTC (Optima Technology Corporation) with OTG (Optima Technology Group) which is the proper owner of the patents. See Paragraph 13 (supra) for an explanation of the difference between the two companies.

NASA denies the plain evidence.

NASA fails to address the matter of the Bornstein Letter.

NASA denies it has acted illegally, which is why the only way a proper investigation can be conducted is for the United States Attorney General to appoint Special Counsel as provided by 28 C.F.R. § 600.

NASA denies everything.

Cause of Action - (Breach of Duty to Disclose Responsive Documents)

Required boilerplate.

NASA’s Affirmative Defenses

AS A FIRST AFFIRMATIVE DEFENSE, defendant avers that the FOIA request that is the subject of this lawsuit implicates information that is protected from disclosure by one or more statutory exemptions, including, but not limited to, Exemptions (b)(3), (b)(4), (b)(5) and (b)(6) of the FOIA. Disclosure of such information is not required or permitted.

Margolin’s Response

            NASA has misstated public policy. For example, Exemption b(5) under the Freedom of Information Act does not require an Agency to withhold documents. It allows Agencies to withhold documents.

            Indeed, the Attorney General issued a memo to all federal agencies in March 2009 where he stated (Exhibit 8, Appendix Volume 1 at A56):

  As President Obama instructed in his January 21 FOIA Memorandum "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails." This presumption has two important implications.

     First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.

{Emphasis added}

In the present case, NASA has not even met their burden for withholding the documents.

NASA’s Prayer For Judgment

1.  That judgement be entered in favor of Defendant and against Plaintiff;
2.  That Plaintiff take nothing by way of his complaint;
3.  For costs of suit; and
4.  For such other relief as may be proper.

Margolin’s Response

Margolin responds to NASA’s Prayer For Judgment, items 2 and 3.

            In the United States, parties are ordinarily required to bear their own attorney's fees; the prevailing party is not entitled to collect from the loser. Under this American Rule, the court follows a general practice of not awarding fees to a prevailing party absent explicit statutory authority. See Alyeska Pipeline Service Co. v Wilderness Society et al. 421 U.S. 240 (1975) for a history of the American Rule.

            There is no statutory authority in 5 U.S.C. § 552 et seq. for assessing costs against a losing Plaintiff. There is only statutory authority for assessing costs against a losing Defendant.  

5 U.S.C. § 552 (a)(4)(E)(i):

The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.

            If Courts were to assess costs against losing Plaintiffs in a Freedom of Information Act suit the effects would be chilling. It would turn the Freedom of Information Act into a sham.

            Besides, Margolin has already substantially prevailed. As a result of the present action NASA voluntarily produced 4,000 or so pages of documents which is substantially more than the 100 pages of documents they eventually (and not willingly) admitted to withholding.

            Granted, documents have been redacted and NASA admits there are more that have been withheld, but 4,000 pages is not nothing.

Conclusion

            For the foregoing reasons, Margolin respectfully requests that the Court grant his motion for summary judgment.

            In the event this motion is not granted, the Court is requested to order NASA to produce all the documents for in camera inspection.

            The Court is also requested to order NASA produce all documents and records of communications where they questioned the proper ownership of the Patents.

Respectfully submitted,

/Jed Margolin/

Jed Margolin, plaintiff pro se

1981 Empire Rd.

VC Highlands, NV  89521-7430

775-847-7845

jm@jmargolin.com

Dated: June 9, 2010

Table of Authorities

                                                                                                                                    Page(s)

Cases

Alyeska Pipeline Service Co. v Wilderness Society et al. 421 U.S. 240 (1975) …… 80

Coastal States Gas Corp. v. Department of Energy, 617 F. 2d 854 -

Court of Appeals, Dist. of Columbia 1980 ……………………………………….… 16

Cooper Cameron Corp. v. Dep't of Labor, 280 F.3d 539, 543

(5th Cir. 2002)  ……………………………………………………………………... 2

Department of the Interior v. Klamath Water Users Protective Ass'n.

532 U.S. 1 (2001)  …………………………………………………………………  8, 14, 15

Gray v. Sw. Airlines, Inc., 33 Fed. Appx. 865, 869 n.1 (9th Cir. 2002)

(citing Schiffer v. FBI, 78 F.3d 1405, 1409 (9th Cir. 1996)) ……………………… 2

Harrison v. EOUSA, 377 F. Supp. 2d 141, 145 (D.D.C. 2005) …………………… 2

Kamman v. I.R.S., 56 F.3d 46, 48 (9th 1995) ……………………………………..  3  

McClain v. DOJ, 17 Fed. Appx. 471, 474 (7th Cir. 2001) ………………………... 2

Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243

(11th Cir. 2008)  …………………………………………………………………... 2

Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993))) ……………………………. 2

Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009) ……………………………. 2

Raytheon Aircraft Co. v. U.S. Army Corps of Eng'rs,

183 F. Supp. 2d 1280, 1283 (D. Kan. 2001) ……………………………………… 2

Sanderson v. IRS, No. 98-2369, 1999 WL 35290, at *2

(E.D. La. Jan. 25, 1999)  …………………………………………………………. 2

Vaughn v. Rosen 484 F2d 820, 157 U.S.App.D.C. 340 …………………………. 15

Wickwire Gavin, P.C. v. USPS, 356 F.3d 588, 591 (4th Cir. 2004) …………….. 2           

Willamette Industries, Inc. v. U.S., 689 F.2d 865, 867 (9th Cir. 1982) …………. 3

Statutes

5 U.S.C. § 552, et seq. ……………………………..  1, 3, 4, 7, 8, 9, 14, 15, 17, 41, 80

Rules

Code of Federal Regulations Title 14: Aeronautics and Space ………….. 22

Federal Rules of Civil Procedure  ………………………………………... 2

CERTIFICATE OF SERVICE

The undersigned hereby certifies that service of the foregoing MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF has been made by electronic notification through the Court's electronic filing system on June 9, 2010.

     /Jed Margolin/

      Jed Margolin