Washburn, Alan v. LaVoie, Michael

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2005 Decided February 10, 2006

No. 04-7158

ALAN V. WASHBURN,

APPELLANT

v.

MICHAEL LAVOIE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 03cv00869)

Alan V. Washburn, appearing pro se, argued the cause and

filed the briefs for appellant.

Keisha A. Gary argued the cause for appellees. With her on

the brief were Woody N. Peterson and Peter J. Kadzik.

Before: SENTELLE, HENDERSON, and GARLAND, Circuit

Judges.

Opinion for the court filed by Circuit Judge GARLAND.

2

GARLAND, Circuit Judge: It may be, as Robert Frost wrote,

that “[s]omething there is that doesn’t love a wall.”1 In this

case, however, an even thicker wall might have forestalled what

the district court accurately described as a “lengthy and vitriolic

neighborhood dispute.” Washburn v. Lavoie, 357 F. Supp. 2d

210, 212 (D.D.C. 2004). On one side of the wall in question

was Alan V. Washburn, an attorney and thirty-year resident of

the Georgetown neighborhood of Washington, D.C. On the

other side were four Georgetown University undergraduates.

Washburn complained that the students were making too much

noise. The students complained that Washburn was illegally

tape-recording them. Testy letters were exchanged, and

Washburn sued the students for defamation. For the reasons

explained below, we affirm the district court’s grant of summary

judgment in favor of the students.

I

Plaintiff Washburn has lived at his address on O Street in

Georgetown since at least 1973. In August 2001, defendants

Michael Lavoie, Christian Wood, Robert Bercik, and Edmund

Donnelly moved into an adjacent townhouse. The property --

located about three blocks from the main gates of Georgetown

University -- is owned by Richard and Nancy Itteilag, who

rented it to the four students for the duration of their junior and

senior years. The two townhouses share a common wall. On

the other side of the students’ residence, another common wall

separated them from Lee Garling and his mother, who has

resided in her O Street townhouse for forty-two years.

Shortly after the students moved in, Washburn began

complaining that they were too noisy at night and that the noise

1

Robert Frost, Mending Wall, in THE POETRY OF ROBERT FROST

33-34 (Edward Latham ed., 1969).

3

frequently disturbed his sleep. Between September 22 and

December 28, 2001, Washburn documented his complaints in

three lengthy letters directed to Julianne Fultz, Georgetown

University’s Coordinator of Off-Campus Student Life, and

Nancy Itteilag, the students’ landlord.

On March 1, 2002, Washburn sent another letter to Fultz,

complaining that “spasms of noise” from the students’ residence

had awakened him eight times during the night of February 27-

28, 2002. Joint Appendix (J.A.) 247. According to Washburn,

he had made recordings of the noise: “I documented these times

with a dictation-type tape recorder. Even though the recorder

picks up most background sounds poorly, you can clearly hear

sounds from [the students’ residence] as I was noting the time

and event.” Id. Washburn offered to bring the recordings to

Fultz so that she could have “contemporaneous evidence of the

disturbances.” Id. Washburn’s letter also stated that “the

frequent and excessive noise . . . constitute[d] a common-law

nuisance remediable by the courts” and that he was “prepared to

pursue th[at] avenue[].” J.A. 248. Washburn hand-delivered a

copy of the letter to the students.

The students consulted with Fultz, who advised them to put

their side of the story in writing so that it would be on record

with the university. The students began drafting a letter to Fultz;

at the same time, they slipped a note under Washburn’s door,

requesting a meeting. Washburn replied by delivering a letter to

the students on the morning of April 16, 2002, again

documenting the number of times he had been wakened by noise

and stating that his “small dictation-type recorder” had picked

up a “burst of laughter” from the students’ residence. J.A. 255.

Washburn threatened that he had no “reasonable alternative now

but to take the matter to court” because he had “exhausted

whatever remedies [Georgetown University could] provide.”

J.A. 256. He sent copies of this letter to Fultz and Itteilag.

4

Later that same day, April 16th, the students responded in

a letter addressed to Fultz, with copies to Washburn and Itteilag.

The students expressed concern that Washburn saw their

“supposed behavior as a common law nuisance.” J.A. 250.

They denied Washburn’s allegations about noise coming from

their residence at night and described their frustration regarding

their relationship with him, contending that they “enjoyed a very

constructive and cordial relationship with [their] neighbor on the

other side, Mr. Lee Garling.” J.A. 249. The students recalled

only two occasions on which Garling had approached them

about noise and stated that they were “confident that [Garling]

would attest to the celerity with which [they] met his request” to

lower the volume. J.A. 250.

In a passage that would later become the focus of

Washburn’s defamation suit, the students also expressed alarm

that Washburn was recording sounds coming from their

residence:

We are also especially concerned that Mr. Washburn

has been, unbeknownst to us, tape recording noises,

however faint, that come from our home. This is a

clear violation of privacy and something that greatly

concerns us. Specifically, we feel Mr. Washburn is

violating Section 2511(2)(d) of US Code (attached)

that states,

It shall not be unlawful under this chapter for a

person not acting under color of law to intercept a

wire, oral, or electronic communication where

such person is a party to the communication or

where one of the parties to the communication has

given prior consent to such interception unless

such communication is intercepted for the purpose

of committing any criminal or tortuous [sic] act in

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violation of the Constitution or laws of the United

States or of any state.

Given this statute, we feel Mr. Washburn is violating

our privacy since he was neither a party to the faint

communications he recorded, nor was he given any

form of consent by any of the parties to the

communication. In the same way that Mr. Washburn

expects us to adhere to the guidelines of the

Georgetown community with regards to . . .

appropriate noise levels, we would hope that Mr.

Washburn would respect our right to privacy as

outlined in the above law.

Id.2 The students repeated that they were upset at “the implicit

threats of litigation for ‘a common law nuisance’ . . . especially

since . . . [they had] repeatedly had [their] own rights violated by

Mr. Washburn’s illegal tape recording.” J.A. 251. And they

closed with the suggestion to Fultz that “a meeting between Mr.

Washburn and the four of us in your office may be the best way

to iron out our differences.” J.A. 252.

Approximately one year later, on April 11, 2003, Washburn

filed this action in the United States District Court for the

District of Columbia, invoking the court’s diversity jurisdiction.

Washburn alleged that he was defamed and placed in a false

light3 by the April 16, 2002 letter’s allegation that he had

2

The students attached a copy of the full text of 18 U.S.C. § 2511,

as well as a paragraph interpreting the statute that appears to have

been taken from a Justice Department website. See J.A. 338-43.

3

“An invasion of privacy-false light claim requires a showing of:

(1) publicity (2) about a false statement, representation or imputation

(3) understood to be of and concerning the plaintiff, and (4) which

6

violated the students’ rights by illegally recording sounds from

their residence. He sought $1.5 million in compensatory

damages and $6 million in punitive damages for defamation and

false light invasion of privacy arising out of the students’

“patently false charge that Plaintiff had violated a federal felony

law.” Compl. ¶ 45.

The district court referred all discovery matters to a

magistrate judge, who issued a scheduling order limiting the

parties to five depositions per side and setting an initial

discovery deadline of January 23, 2004. On August 27, 2003,

the students filed a motion to bifurcate the issues of liability and

damages and to stay discovery regarding damages, which the

district court granted. Just before the scheduled close of

discovery, Washburn moved to compel production of all emails

between the students that referred to him or the pending lawsuit

in any way. The magistrate ordered the students to produce the

emails for his in camera review, but ultimately found them

irrelevant to the litigation. He also granted an extension of

discovery until February 27, 2004.

Two weeks before the extended deadline, Washburn

requested an additional extension and an increase in the number

of permitted depositions. In support, he produced an affidavit

from his neighbor, Garling, who attested that one of the students

(Donnelly) told Garling in mid-2002 that Washburn had been

places the plaintiff in a false light that would be offensive to a

reasonable person.” Kitt v. Capital Concerts, Inc., 742 A.2d 856, 859

(D.C. 1999) (citing RESTATEMENT (SECOND) OF TORTS § 652E

(1977)). “The false light invasion of privacy action differs from an

action for defamation because a defamation tort redresses damage to

reputation while a false light privacy tort redresses mental distress

from having been exposed to public view.” White v. Fraternal Order

of Police, 909 F.2d 512, 518 (D.C. Cir. 1990).

7

recording noises coming from the students’ home and that such

action was “illegal.” J.A. 160. The magistrate ultimately denied

the request for an extension of time and increase in depositions,

concluding that it had “come[] too late in the game.” Washburn

v. Lavoie, No. 03-869, Mem. Op. at 7 (D.D.C. May 4, 2004)

(Magistrate’s Op.).

Following the close of discovery, Washburn moved for

summary judgment, contending that the students’ statements

constituted libel per se and placed him in a false light. The

students cross-moved for summary judgment, contending that

their statements were protected by the qualified privilege of self-

defense. Washburn countered that no privilege attached, and

that even if one did, the students had vitiated it through malice

and excessive publication. In support of the claim of excessive

publication, Washburn relied on the Garling affidavit.

The district court rejected the students’ request for summary

judgment based on the self-defense privilege, stating that “a

genuine issue of material fact exist[ed] as to whether there was

excessive publication of defendants’ statements, in particular to

defendants’ neighbor Lee Garling.” Washburn, 357 F. Supp. 2d

at 213 n.4. Nonetheless, and sua sponte, the court entered

summary judgment in favor of the students on the ground that,

“as a matter of law, the defendants’ statements were not capable

of a defamatory meaning,” id. at 215, and did not place

Washburn in a “highly offensive light.” Id. at 216. This appeal

followed.

II

We review the district court’s grant of summary judgment

de novo. Waterhouse v. District of Columbia, 298 F.3d 989, 991

(D.C. Cir. 2002). Summary judgment is appropriate if “there is

no genuine issue as to any material fact and the moving party is

8

entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c);

see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

A dispute about a material fact is not “genuine” unless “the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson, 477 U.S. at 248.

Washburn begins his attack on the district court’s grant of

summary judgment by noting that the students did not seek

judgment on the rationale employed by the court -- that the

students’ statements were incapable of defamatory meaning --

and that he therefore did not have an opportunity to brief the

question. We pretermit the problems posed by this circumstance

and instead consider the rationale that was raised and briefed by

the opposing parties both in the district court and on this appeal:

the qualified privilege of self-defense. Even assuming that the

students’ statements were capable of a defamatory meaning, we

conclude that they were protected by the self-defense privilege.

Moreover, and contrary to the view of the district court, we find

no genuine issue of material fact as to circumstances that would

vitiate the privilege. Because an appellate court may affirm a

grant of summary judgment on a ground not relied upon by the

lower court, provided that the opposing party has had a fair

opportunity to dispute the facts material to that ground, see

Proctor v. State Farm Mut. Auto. Ins. Co., 675 F.2d 308, 326

(D.C. Cir. 1982), we affirm the district court’s judgment on the

ground of the self-defense privilege.4

4

In light of Washburn’s threat to file a common-law nuisance

lawsuit against the defendants (a threat he ultimately carried out by

filing a complaint in District of Columbia Superior Court on August

14, 2002), it might be more apt to analyze this case under the judicial

proceedings privilege. This absolute privilege extends to defamatory

“communications preliminary to a proposed judicial proceeding . . . if

the matter has some relation thereto.” RESTATEMENT § 587; see

Brown v. Collins, 402 F.2d 209, 212 & n.3 (D.C. Cir. 1968). We do

9

The District of Columbia recognizes the common-law

qualified privilege of self-defense as a complete defense to a

claim of libel or slander. Mosrie v. Trussell, 467 A.2d 475, 477

(D.C. 1983); see Novecon Ltd. v. Bulgarian-American Enter.

Fund, 190 F.3d 556, 566 (D.C. Cir. 1999); Afro-American

Publ’g Co. v. Jaffe, 366 F.2d 649, 656 & n.16 (D.C. Cir. 1966)

(citing RESTATEMENT (FIRST) OF TORTS § 594 (1938)). The

privilege applies “if the circumstances induce a correct or

reasonable belief that (a) there is information that affects a

sufficiently important interest of the publisher, and (b) the

recipient’s knowledge of the defamatory matter will be of

service in the lawful protection of the interest.” RESTATEMENT

(SECOND) OF TORTS § 594 (1977) (RESTATEMENT). The

“existence of the privilege is a question of law for the court[;]

whether it was abused by the defendant, is a question of fact for

the jury,” unless summary judgment is appropriate. Mosrie, 467

A.2d at 477; see Novecon, 190 F.3d at 566.

We have no doubt that the students’ interests in avoiding

discipline from Georgetown University, averting eviction by

their landlord, and guarding against becoming defendants in a

threatened common-law nuisance lawsuit were “sufficiently

important” to implicate the privilege. RESTATEMENT § 594.

Nor do we have any doubt that those interests were under

serious attack from the missives fired off by Washburn. The

students therefore “had the right to repel the attack . . . and to

retort upon [their] assailant if such retort was a necessary part of

[their] defense or fairly arose out of the charges made against”

them. Mosrie, 467 A.2d at 479 (internal quotation marks

omitted); see RESTATEMENT § 594 cmt. h (“It is enough that the

circumstances are such as to lead a reasonable [person] to

not examine the judicial proceedings privilege here, however, because

the students did not raise it.

10

believe that the interest is in danger and that the defamatory

publication is reasonably necessary for its protection.”).

The students’ April 16th letter to Fultz, copied to Itteilag,

fairly arose out of Washburn’s attack on their interests and

constituted a defense against that attack. The letter was sent

only to persons who had received Washburn’s original

correspondence, persons who had the power to sanction the

students if they believed his allegations. Indeed, one of the

recipients -- Fultz -- had expressly recommended that the

students send a letter in order to put their defense on record.

And Washburn ultimately named the other recipient -- Itteilag --

as a co-defendant when he made good on his threat to file a

(separate) common-law nuisance suit against the students in

District of Columbia Superior Court. The majority of the

students’ letter was a refutation of Washburn’s factual

allegations. Their specific retort regarding their assailant’s tape-

recording of noises from their home constituted a challenge to

the legality of the evidence he had proffered against them, as

well as a suggestion that they also had claims to raise if

Washburn pursued his threatened lawsuit. We therefore

conclude that the students’ April 16th letter is covered by the

privilege of self-defense.

Washburn argues that, even if the students’ letter were

qualifiedly privileged, the privilege was vitiated by the

defendants’ malice and excessive publication. He is correct that

a showing of “excessive publication or express malice” can

destroy a qualified privilege. Curry v. Giant Food Co., 522

A.2d 1283, 1294 (D.C. 1987). The burden of proof at this stage,

however, rests on the plaintiff. See Novecon, 190 F.3d at 567;

Columbia First Bank v. Ferguson, 665 A.2d 650, 656 (D.C.

1995); Mosrie, 467 A.2d at 477. And as we have noted before,

District of Columbia law makes it quite difficult for a plaintiff

to overcome a qualified privilege. Novecon, 190 F.3d at 567.

11

The common-law malice necessary to overcome the

privilege “emphasize[s] bad faith and evil motive.” Moss v.

Stockard, 580 A.2d 1011, 1026 n.29 (D.C. 1990); see Mosrie,

467 A.2d at 477. It is “the doing of an act without just cause or

excuse, with such a conscious indifference or reckless disregard

as to its results or effects upon the rights or feelings of others as

to constitute ill will.” Moss, 580 A.2d at 1025; Mosrie, 467

A.2d at 477. Moreover, “unless the [defamatory] statement is

‘so excessive, intemperate, unreasonable, and abusive as to

forbid any other reasonable conclusion than that the defendant

was actuated by express malice,’” it is insufficient to support a

finding of malice on its own. Moss, 580 A.2d at 1024 (quoting

Ford Motor Credit Co. v. Holland, 367 A.2d 1311, 1314 (D.C.

1977)); see Novecon, 190 F.3d at 567. “Mere vehemence, even

exaggerated statements . . . will not as a matter of law destroy

the privilege or necessarily present a question of fact.” Mosrie,

467 A.2d at 479 (internal quotation marks omitted).

We do not find the requisite malice in the language of the

students’ April 16th letter. Washburn does not dispute that he

recorded the students. Rather, he disputes the students’

characterization of such recording as “illegal.” But as the

district court found, a reasonable person in the position of the

letter’s addressees (Fultz and Itteilag) “would have viewed the

defendants’ accusations to be what they were: statements by

highly frustrated students who [were] cleverly, but not expertly,

reacting to an attorney’s threat of litigation.” Washburn, 357 F.

Supp. 2d at 215. Indeed, the inexpert nature of their accusations

is evidenced by the fact that the statutory section quoted in the

students’ letter does not make any act illegal, but rather

describes those acts that are “not unlawful” under the statute.

J.A. 250 (“It shall not be unlawful under this chapter for a

person . . . .” (quoting 18 U.S.C. § 2511(2)(d) (emphasis

added))). And while Washburn plainly feels aggrieved by the

students’ claim that he violated their rights by illegal tape-

12

recording, this charge is hardly as intemperate as allegations that

the District of Columbia Court of Appeals found insufficient to

vitiate the self-defense privilege in Mosrie v. Trussell, 467 A.2d

at 477. There, notwithstanding the court’s description of the

defendant’s statements as “alleg[ing] dereliction of duty and

possible criminal abuses” by the plaintiff, id., the court

concluded that “[a]ny finding of malice would be based only on

speculation, which is not sufficient to send the issue to the jury.”

Id. at 478.

Nor are we persuaded by Washburn’s contention that the

students vitiated the privilege through excessive publication --

namely, by repeating the illegal tape-recording charge to their

neighbor, Garling. The communication to Garling was not a

case of “excessive publication,” as that rubric does not come

into play unless the defendant “knowingly publishes the

[defamatory] matter to a person to whom its publication is not

otherwise privileged.” RESTATEMENT § 604.5 Here, the

publication to Garling was itself covered by the self-defense

privilege.6

At the time Donnelly spoke to Garling (mid-2002,

according to Garling’s affidavit), Washburn had repeatedly

threatened the students with a lawsuit for common-law nuisance.

5

Where the matter is published to such a person, the privilege is

lost unless the defendant “reasonably believes that the publication is

a proper means of communicating the defamatory matter to the person

to whom its publication is privileged.” RESTATEMENT § 604.

6

Another reason for not evaluating the communication to Garling

under the “excessive publication” rubric is that the students did not

give Garling a copy of the April 16th letter, but rather orally told him

that Washburn had illegally recorded them. Accordingly, the incident

is more accurately viewed as a separate case of alleged slander, as to

which we again conclude that the self-defense privilege applies.

13

Garling -- the students’ neighbor on the side opposite from

Washburn -- was obviously a potential witness in such a suit.

Indeed, the students’ April 16, 2002 letter cited their amicable

relationship with Garling and expressed their confidence that he

“would attest to the celerity with which [they] met his request”

to quiet down on two occasions. J.A. 250 (emphasis added).

Washburn, too, clearly regarded Garling as a witness; he

ultimately filed an affidavit from Garling in support of his

defamation suit. Given that Garling was a potential witness

whom both sides were attempting to persuade, Donnelly’s

statement to him was made “for the protection of [the students’]

own rights or interests” and therefore fell within the privilege.

Dickins v. International Bhd. of Teamsters, 171 F.2d 21, 24

(D.C. Cir. 1948). And as with the letter to Fultz and Itteilag, the

language of the statement to Garling -- who, as a neighbor, was

also aware of the context in which it was made -- was

insufficient to establish malice.

In sum, we conclude that the qualified privilege of self-

defense applies both to the April 16th letter to Fultz and Itteilag,

and to Donnelly’s mid-2002 oral statement to Garling. The

“dispositive issue in this case, as in most cases involving an

assertion of qualified privilege, is whether there has been

sufficient evidence of malice to overcome the privilege.”

Columbia First, 665 A.2d at 656; see Novecon, 190 F.3d at 566-

67. Under District of Columbia law, where “the language of the

communication and the circumstances attending its publication

by the defendant are as consistent with the non-existence of

malice as with its existence, there is no issue for the jury, and it

is the duty of the trial court to direct a verdict for the defendant.”

Mosrie, 467 A.2d at 478 (citation and internal quotation marks

omitted); see Novecon 190 F.3d at 567; Dickins, 171 F.2d at 25;

Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374

A.2d 284, 291 (D.C. 1977). For the reasons discussed in this

Part, we conclude that no reasonable factfinder could find that

14

the language and circumstances of the communications were not

at least as consistent with the non-existence of malice as with its

existence, and we therefore affirm the district court’s grant of

summary judgment. Moreover, because “the same privileges

applicable to libel claims may be invoked to defend false light

claims,” we affirm the grant of summary judgment on the

plaintiff’s false light claim as well. White v. Fraternal Order of

Police, 909 F.2d 512, 518 (D.C. Cir. 1990) (citing

RESTATEMENT § 652G); see Browning v. Clinton, 292 F.3d 235,

248 (D.C. Cir. 2002).

III

Finally, we consider Washburn’s challenges to three

additional rulings, primarily involving pretrial discovery, made

prior to the district court’s grant of summary judgment. We

review such challenges solely for abuse of discretion. See In re

Sealed Case (Medical Records), 381 F.3d 1205, 1211 (D.C. Cir.

2004); Information Handling Servs., Inc. v. Defense Automated

Printing Servs., 338 F.3d 1024, 1032 (D.C. Cir. 2003); Moattar

v. Foxhall Surgical Assoc., 694 A.2d 435, 440 (D.C. 1997).

Washburn’s first challenge is to the district court’s decision

to bifurcate the issues of liability and damages, and to stay

discovery regarding damages. Washburn contends that if “some

issue of ‘liability’ must be tried by a jury, there will be a serious

problem, of constitutional dimension” arising from the

bifurcation and stay of discovery. Appellant’s Br. 38. But

because we affirm the grant of summary judgment, no issue of

liability will be tried by a jury, and the error Washburn asserts

will therefore have no consequence.

Second, Washburn contends that the district court erred in

refusing to order the defendants to produce copies of their

emails. Washburn had hoped to find extrinsic evidence of

15

malice in the emails, and he contends that the court’s refusal to

order their production denied him the evidence required to

vitiate the qualified privilege. But the magistrate judge did

order the defendants to produce the emails: he ordered them to

produce the emails for in camera inspection, and he reviewed

them personally. The magistrate found that “nearly half of the

emails [were] devoid of anything bearing upon this lawsuit” and

that the other half dealt only with “issues such as costs of

litigation, retention of counsel, or the need to answer

interrogatories.” Magistrate’s Op. 4. There is, therefore,

nothing to plaintiff’s claim that he was denied relevant evidence,

and we find no abuse of discretion in the magistrate’s refusal to

require the defendants to disclose the emails to the plaintiff. See

Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1147 (D.C.

Cir. 1994) (noting that “the scope of discovery lies within the

district court’s discretion”).

Finally, Washburn contests the district court’s denial of his

motion to extend the discovery deadline and to increase the

number of permitted depositions. He asserts that he needed the

additional time to pursue more “depositions of other persons,

such as other neighbors, who might have been recipients” of the

defendants’ defamation. Appellant’s Br. 44.

Washburn did not file this motion until two weeks before

the February 27, 2004 discovery deadline. He justifies the delay

on the ground that he did not learn of Donnelly’s statement to

Garling until that time, and hence until then did not have “solid

information that the[re] may have been further spread of

[d]efendants’ accusations.” Appellant’s Br. 11. But the

February 2004 deadline gave Washburn ten months from the

filing of the complaint and almost two years from the date of the

students’ April 2002 letter to obtain information from Garling

(who lived just two doors away) and to question any other

16

neighbors he wished. As the magistrate explained in denying

the request:

[P]laintiff waited to file his motion until the eve of

discovery -- after discovery ha[d] already been

extended once. Simply put, plaintiff’s request comes

too late, particularly when plaintiff named the source

of this new evidence -- his neighbor -- in his own

initial disclosures and could have sought his deposition

and investigated any information he learned from the

deposition well before discovery was set to close.

Magistrate’s Op. 8. In short, Washburn had “ample opportunity

prior to the motion for summary judgment to take discovery,”

and the magistrate judge did not abuse his discretion by

concluding that Washburn waited too long to request more time

for more depositions. Zerilli v. Smith, 656 F.2d 705, 716 (D.C.

Cir. 1981); see Ned Chartering & Trading, Inc. v. Republic of

Pakistan, 294 F.3d 148, 151 (D.C. Cir. 2002) (noting that this

court “grant[s] district courts great latitude in determining how

much time is adequate” for discovery).

IV

For the reasons set forth above, the judgment of the district

court is

Affirmed.