Dasilva v. United States Citizenship and Immigration Services et al
ORDER AND REASONS that USCIS's 41 motion for summary judgment is GRANTED and that DaSilva's 39 motion for summary judgment is DENIED. Signed by Judge Lance M Africk on 9/19/2013.(blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RAFAEL ELLWANGER DASILVA
U.S. CITIZENSHIP AND
ORDER AND REASONS
Before the Court are cross-motions1 for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure filed by defendant, United States Citizenship and Immigration
Services (“USCIS”), and plaintiff, Rafael Ellwanger DaSilva (“DaSilva”). The Court previously
deferred ruling on these motions as they relate to certain documents not adequately addressed in
prior briefing and submissions. For the following reasons, and pursuant to an in camera review of
the unredacted documents,2 USCIS’s motion is GRANTED IN PART and DaSilva’s motion is
DENIED IN PART with respect to Bates numbers 2, 3-4, 537-44, 545-47, 651, 1079-81, and 108283. Moreover, having considered USCIS’s supplementary affidavit,3 USCIS’s motion is GRANTED
IN PART and DaSilva’s motion is DENIED IN PART with respect to Bates numbers 19-20, 25,
26-28, 33-34, 35, 36, 359, 510, 648, and 618-19.
Background information on the above-captioned matter, as well as a partial disposition of
the pending motions for summary judgment, is available in the Court’s prior order and reasons.4
R. Doc. Nos. 39, 41.
R. Doc. No. 66.
R. Doc. NO. 64.
See R. Doc. No. 62; see also R. Doc. No. 66.
LAW AND ANALYSIS
The Freedom of Information Act (“FOIA”) requires a federal agency, upon request, to
disclose records in its possession, unless the requested documents are clearly exempt from disclosure
by the statute. 5 U.S.C. § 552 (a)-(b); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975). The
exemptions are exclusive and should be narrowly construed. Dep’t of the Air Force v. Rose, 425
U.S. 352, 361 (1976); Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). Furthermore, there is
a strong presumption in favor of disclosure. U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (citing
Rose, 425 U.S. at 361). Accordingly, the government bears the burden of proving that the withheld
documents fall within an enumerated exemption. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,
141 n.2 (1989); see also 5 U.S.C. § 552(a)(4)(B) (“the burden is on the agency to sustain its action”).
Summary judgment is the preferred method of resolving FOIA cases. Evans v. U.S. OPM, 276 F.
Supp. 2d 34, 37 (D.C. Cir. 2003).
The U.S. Court of Appeals for the Fifth Circuit has observed: “A motion for summary
judgment is properly granted only if there is no genuine issue as to any material fact. The FOIA
context is unusual, however, because the threshold question in any FOIA suit is whether the
requester can even see the documents the character of which determines whether they can be
released.” Cooper Cameron Corp. v. U.S. Dep’t of Labor, OSHA, 280 F.3d 539, 543 (5th Cir. 2002).
“Courts generally will grant an agency’s motion for summary judgment only if the agency identifies
the documents at issue and explains why they fall under exemptions.” Id. “The agency often makes
this explanation in an affidavit, but . . . . the district court should not grant summary judgment based
on a ‘conclusory and generalized’ assertion, even if the FOIA requester has not controverted that
5 U.S.C. § 552(b)(5) protects from FOIA requests “inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an agency in
litigation with the agency.” “To qualify, a document must thus satisfy two conditions: its source
must be a Government agency, and it must fall within the ambit of a privilege against discovery
under judicial standards that would govern litigation against the agency that holds it.” Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). Exemption (b)(5)
encompasses the deliberative process privilege, the attorney-client privilege, and the attorney workproduct privilege. Shermco Indus., Inc. v. Sec’y of the Air Force, 613 F.2d 1314, 1318 (5th Cir.
The deliberative process privilege, which is the primary privilege at issue in this case, shields
those documents normally privileged in the civil discovery context. Sears, Roebuck & Co., 421 U.S.
at 149. The purpose of this privilege is to allow agencies to freely explore possibilities, engage in
internal debates, and encourage frank discussion without fear of public scrutiny. Klamath Water
Users Protective Ass’n, 532 U.S. at 8; Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C.
Cir. 1982). In order for the deliberative process privilege to apply, a document must be both
“deliberative” and “predecisional.” Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975).
A “deliberative” document is one that would, if disclosed, expose an agency’s decisionmaking process in such a way that would chill “candid discussion within the agency,” thereby
undermining the “agency’s ability to perform its functions.” Dudman Commc’n Corp. v. Dep’t of
Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). Additionally, a “predecisional” document is one
prepared in order to assist the decision-maker in arriving at a decision and may include such things
as proposals, draft documents, and other subjective documents that reflect opinions of the writer
rather than agency policy. Coastal Gas States Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980); see also Shermco Indus., Inc., 613 F.2d at 1318. “To ascertain whether the documents
at issue are pre-decisional, the court must first be able to pinpoint an agency decision or policy to
which these documents contributed.” Morley v. CIA, 508 F.3d 1108, 1127 (D.C. Cir. 2007) (quoting
Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983)).
I. Bates Numbers 1079-81 and 1082-83
The Court previously deferred ruling on these documents, explaining:
There is potentially more than one agency decision at issue in this
case.5 Given that the handwritten notes are apparently not dated and
that the Vaughn index does not provide information by which the
Court could ascertain their date, it is impossible to determine the
agency decision to which these documents contributed. Accordingly,
while the notes may be exempt from disclosure, “the court has no
basis to find that the documents meet the strict criteria of Section
552(b)(5).” Hajro v. USCIS, 832 F. Supp. 2d 1095, 1114 (N.D. Cal.
2011). The Court defers ruling as to Bates numbers 1079-1081 and
1082-1083 pending an in camera review of the documents to
determine whether they are subject to the deliberative privilege.
The Court has conducted an in camera review of the unredacted documents6 and concludes
they are pre-decisional notes taken by an agency employee. No non-exempt, segregable portions are
Although undated, the notes’ discussion of events that occurred in 2010 provide some
indication of the time at which they were written. The notes also refer to an interview or interviews
attended by DaSilva and his second wife. Considering the allegations DaSilva presented in a prior
proceeding, which he has also set forth as evidence in this case,7 it is clear that these notes are
R. Doc. No. 1, at 6; see also Civil Action Nos. 12-538, 12-807.
R. Doc. No. 66, at 17-21.
See R. Doc. No. 39-5.
deliberative and predecisional relative to the processing of DaSilva’s second Form I-485.8
Accordingly, USCIS is entitled to summary judgment as to these documents.
II. Bates Numbers 2, 3-4
The Court previously deferred ruling on these documents, explaining:
The Vaughn index’s discussion of the emails withheld in whole or
in part generally consists of repetitive conclusory statements. While
there is nothing unlawful about using a “cut and paste” word
processor function to repeat the same argument, doing so is not
helpful where that argument is not specific enough to justify
summary judgment.9 USCIS’s Vaughn index and accompanying
affidavits “provide a meager basis for the court to make a reasoned
determination that application of the exemption is proper, and
without more, are insufficient to justify” the withholdings. Hajro, 832
F. Supp. 2d at 113. While the emails may be subject to the
exemption, that fact cannot be determined on the summary judgment
record. Id. at 114. Accordingly, the Court will also conduct an in
camera review of Bates numbers 2 and 3-4.
The Court has examined the unredacted versions of these documents.10 The content that is redacted
is both deliberative and predecisional relative to the issuance of a Notice to Appear. Accordingly,
USCIS is entitled to summary judgment as to these documents.
III. Bates Numbers 19-20, 25, 26-28, 33-34, 35, 36, 359, and 618-19
The Court previously observed:
With respect to these documents, DaSilva contends that defendant
confusingly refers to both exemption (b)(5) and (b)(6).11 A review of
these pages and the Vaughn index strongly suggests that the
The parties have not suggested that there are other proceedings to which DaSilva’s marriages
See, e.g., Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 147 (D.C. Cir. 2006)
(“[C]odes and categories may be sufficiently particularized to carry the agency’s burden of
R. Doc. No. 66, at 2-4.
R. Doc. No. 60, at 14.
references to (b)(6) were typographical errors, but the Court is
reluctant to make that finding at this stage. Accordingly, the Court
defers ruling with respect to these pages pending USCIS’s
submission of a supplemental affidavit.
USCIS has provided a supplementary affidavit, which makes clear that its previous references to
(b)(6) were typographical errors and that USCIS is relying on exemption (b)(5).12 USCIS is entitled
to summary judgment as to these documents.
IV. Bates Numbers 537-44, 545-47, and 651
The Court previously observed:
The Vaughn index invokes the deliberative process privilege, as well
as the attorney work product and attorney-client privilege with
respect to [these] documents. The Vaughn index directly addresses
the deliberative process privilege, but it is not at all apparent that this
privilege is applicable to these documents. While the attorney-client
privilege or attorney work product privilege seem the more likely
candidates, neither the Vaughn index nor USCIS’s briefing addresses
these privileges. Accordingly, the Court will conduct an in camera
review as to Bates numbers 537-44, 545-47, and 651.
The work product privilege shields materials “prepared in anticipation of litigation or for trial
by or for another party or by or for that other party’s representative (including the other party's
attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P. 26(b)(3).
Having conducted an in camera review of the unredacted documents,13 the Court is satisfied
that each of these documents is subject to the work product privilege. The Court need not discern
whether any other type of privilege applies as well. USCIS is entitled to summary judgment as to
R. Doc. No. 64-1, at 2-6.
R. Doc. No. 66, at 5-16.
V. Bates Numbers 510 and 648
Although it initially appeared that a supplementary affidavit was necessary with respect to
Bates number 648, USCIS has explained that the copy of Bates number 648 previously delivered
to plaintiff and the Court was not redacted by USCIS and matches the version in USCIS’s
possession. In short, no information was withheld, and USCIS is entitled to summary judgment as
to this document.
With respect to Bates number 510, the government has provided a supplementary affidavit
that makes clear the original Vaughn index inadvertently omitted this page number when providing
an explanation relative to 506-509. Collectively, the affidavit explains, Bates numbers 506-10
consist of a “four page e-mail, with draft document attached.”14 Accordingly, USCIS is entitled to
summary judgment with respect to Bates number 510.
For the foregoing reasons, USCIS is entitled to summary judgment with respect to Bates
numbers 2, 3-4, 5, 19-20, 25, 26-28, 33-34, 35, 36, 359, 510, 537-44, 545-47, 618-19, 648, 651,
1079-81, and 1082-83. The Court’s prior order granted USCIS summary judgment as to the other
redactions and withholdings challenged by DaSilva.
R. Doc. No. 64-1, at 5. DaSilva only challenged the omission of any information as to Bates
number 510; he did not challenge the substance of the affidavit with respect to Bates numbers
IT IS ORDERED that USCIS’s motion for summary judgment is GRANTED and that
DaSilva’s motion for summary judgment is DENIED.
New Orleans, Louisiana, September 19, 2013.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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