23 January 1998: Link to Plaintiffs' reply

16 January 1998
Source: William H. Payne

See related files: http://jya.com/whpfiles.htm

				January 5, 1998


W.H. Payne
P.O. Box 14838
Albuquerque, New Mexico 87191

     Re: Payne & Morales v. Minihan
     USDC NM CIV 97-0266 SC/DJS


Dear Mr. Payne:


     Enclosed is a court-endorsed copy of Defendant's Response to 
Plaintiffs' Motion for Summary Judgment Based on Evidence from 
Admissions.

				Sincerely,

				JOHN J. KELLY
				United States Attorney

				[Signature]

				JAN ELIZABETH MITCHELL
				Assistant U. S. Attorney

JEM/yh
Enclosure
cc/enc: Arthur R. Morales



[Stamp]
FILED
United States District Court
District of New Mexico
98 JAN -5 PM 3:46
Robert M. Marsh
District Clerk



                 IN THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF NEW MEXICO


WILLIAM H. PAYNE                    )
ARTHUR R. MORALES                   )
                                    )
          Plaintiffs,               )
                                    )
          vs.                       ) CIVIL NO. 97-026 SC/DJS
                                    )
LT GEN KENNETH A. MINIHAN           )
USAF Director, National Security    )
Agency,                             )
                                    )
          Defendant.


 DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
                BASED ON EVIDENCE FROM ADMISSIONS


          Defendant Minihan responds to Plaintiff's Motion for
Summary Judgment Based On Evidence From Admissions1 as follows:

	  1.   Commencing in October, 1997, Plaintiffs served
numerous sets of Requests for Admissions on various employees of
the National Security Agency and on current and past employees of
the Sandia National Laboratory.

	  2.   Counsel for Defendant was not served with copies of
any of said Requests for Admissions until sometime after the
individuals had been served.2

____________________

     1   It should be noted that the instant Motion for Summary
Judgment constitutes Plaintiffs' second motion for summary
judgment. Plaintiffs filed an initial Motion for Summary Judgment
on June 4, 1997 to which Defendant responded on June 19, 1997, and
Plaintiffs filed a Reply on July 1, 1997. Said initial Motion for
Summary Judgment has not been ruled upon. In addition, Defendant
filed a Motion to Dismiss Plaintiff Arthur R. Morales on September
23, 1997, and a Motion seeking dismissal of Plaintiff William
Payne's Freedom of Information Act action on October 3, 1997. All
briefing by all parties has been completed on those Motions.

     2   On October 13, 1997, Plaintiffs mailed a First Set of
Admissions to Kenneth Minihan. However, not until November 3,
1997, did Plaintiffs mail a copy of said First Set of Request for



	  3.   Upon becoming aware that Plaintiffs had served
Requests for Admissions on a number of individuals, on October 23,
1997, Counsel for Defendant filed a Motion and Memorandum To Strike
Any And All Of Plaintiffs' First Set of Requests For Admissions To
Various Employees Of The National Security Agency And To Various
Employees Of Sandia National Laboratory, (hereinafter "Motion and
Memorandum.")

	  4.   As grounds for the Motion and Memorandum, Defendant
argued that Plaintiffs had blatantly disregarded this Court's Order
pertaining to the conduct of discovery and the deadline for
discovery in this Freedom of Information Act action.

	  5.   In Defendant's Motion and Memorandum, Counsel for
Defendant also objected to Plaintiffs' sua sponte decision to
modify the Court's June 11 Order to reflect the delay of the
Court's October 7 Order and the establishment, without leave of
this Court, of new deadlines for discovery, motions practice, and
the filing of the PreTrial Order. (Motion and Memorandum ¶ 9, at
4.)

	  6.   In the Motion and Memorandum, Defendant requested
that this Court strike any and all "First Set of Request for
Admission" propounded by Plaintiffs. (Motion and Memorandum, at 5.)

	  7.   Plaintiffs responded to the Motion and Memorandum on
November 5, 1997, specifically seeking that this Court "take no
action in this case until Supreme court takes action on writs on

____________________

Admissions to Counsel for Defendant. Counsel for Defendant was not
provided with copies of any other Requests for Admissions sent to
employees of NSA or employees of the Sandia National Laboratory.

                                2




mandamus, prohibition, and criminal complaint affidavits filed
against judges Svet and Campos and US Attorney Mitchell."
(Plaintiffs' Response to Motion And Memorandum To Strike Any And
All Of Plaintiffs' First Set Of Request For Admissions To Various
Employees Of The National Security Agency And To Various Employees
Of Sandia National Laboratories, ¶ 11, at 10.)

	  8.   To date, no order has been issued by this Court on
the matters raised in the Motion and Memorandum, nor has any other
court issued any orders concerning Plaintiffs' cause of action and
various complaints.

	  9.   By their own request, Plaintiffs sought to stay a
ruling on the Defendant's Motion and Memorandum. Absent any ruling
on either the Motion and Memorandum or Plaintiffs' Response,
Defendant Minihan, employees of NSA, and employees of Sandia
National Laboratory, were not obligated to respond to the Requests
for Admissions as provided by Fed.R.Civ.P. 36.3 For Plaintiffs to
now assert in their "Motion for Summary Judgment On Based On
Evidence From Admissions" that because the individuals have not
responded to the Requests for Admissions they are deemed admitted,
flies in the face of their own prayer to this Court to stay a
ruling on the Defendant's Motion to strike the Requests for
Admissions until the Supreme Court takes action.

____________________

     3    Despite the fact that Defendant's employees and other
individuals are not required to respond to the Requests for
Admissions based upon the outstanding pleadings which have yet to
be ruled on by this Court, Plaintiffs characterize that all
admissions are admitted and then publish those admissions on the
Internet.

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	  10.   Defendant requests that this Court either rule upon
Defendant's Motion and Memorandum granting the request to strike
the Requests for Admissions, or grant Plaintiffs' request to stay
this action pending the issuance of the order sought by Plaintiffs
in another forum. Should this Court deny Defendant's Motion and
Memorandum, Defendant respectfully requests that the individuals to
whom Requests for Admissions are appropriate in this action be
given the thirty days to respond to said admissions as provided by
the Federal Rules of Civil Procedure.

	  11.   Plaintiffs requested a stay. Absent a ruling from
this Court denying their request, they cannot proceed to assert
that the Requests for Admissions are deemed admitted. Accordingly,
Plaintiffs' "Motion For Summary Judgment On Based On Evidence From
Admissions" must be denied.


				Respectfully submitted,


				JOHN J. KELLY
				United States Attorney

				[Signature]

				JAN ELIZABETH MITCHELL
				Assistant U.S. Attorney
				P.O. Box 607
				Albuquerque, New Mexico 87103
				(505) 766-3341


I HEREBY CERTIFY that a true copy
of the foregoing pleading was mailed
to PRO SE PLAINTIFFS,
this 5th day of January, 1998.

[Signature]

JAN ELIZABETH MITCHELL
Assistant U. S. Attorney


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