Gahagan v. U.S. Citizenship and Immigration Services

Filing 40

ORDER & REASONS: ORDERED that Plaintiff's Second Motion for Summary Judgment (Rec. Doc. 34) and Third Motion for Summary Judgment (Rec. Doc. 35) are DENIED. Plaintiff's Motions for Leave to File Reply (Rec. Docs. 38, 39) are DENIED as moot. Signed by Judge Carl Barbier on 9/11/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

MICHAEL GAHAGAN

CIVIL ACTION

VERSUS

NO: 14-1268

UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES

SECTION: J(1)

ORDER & REASONS
Before the Court are a Second Motion for Summary Judgment
(Rec. Doc. 34) and Third Motion for Summary Judgment (Rec. Doc.
35)

filed

opposition
States

by

Plaintiff

thereto

Michael

(Rec.

Citizenship

and

Doc.

Gahagan

37)

filed

Immigration

(“Gahagan”)
by

Services

and

Defendant

an

United

(“USCIS”).

Also

before the Court are two Motions for Leave to File Reply by
Gahagan (Rec. Docs. 38, 39). Having considered the motions and
legal memoranda, the record, and the applicable law, the Court
finds that the motions should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff
seeking
(Rec.
sought

relief

Doc.
the

1

Michael
under
at

1.)

release

of

Gahagan
the

brought

Freedom

Gahagan

is

of
an

immigration

suit

against

Information
immigration

records

Act

USCIS,
(FOIA).

attorney

pertaining

to

who
his

client. Id. Gahagan alleged that he filed a FOIA request with
USCIS, requesting particular documents and information, and that
1

USCIS

failed

to

respond

days. Id. at 5, 6.

within

the

required

twenty

business

Subsequently, USCIS released 436 pages of

responsive documents. (Rec. Doc. 19.) Of the 436 pages, 264 were
released in their entirety, eighty were released in part, fiftynine were withheld under FOIA exemptions, and thirty-three were
referred to Immigration and Customs Enforcement (“ICE”). Because
USCIS fulfilled Gahagan’s request, this Court denied Gahagan’s
Motion for Summary Judgment (Rec. Doc. 8) and entered judgment
for USCIS. (Rec. Doc. 26.)
Gahagan appealed the dismissal. (Rec. Doc. 31.) On appeal,
he

argued

that

the

thirty-three

pages

referred

to

ICE

were

improperly withheld. (Rec. Doc. 36.) USCIS then filed a Motion
to

Supplement

the

Record

on

Appeal,

which

the

Fifth

Circuit

granted. Id. USCIS filed new evidence showing that ICE released
the

withheld

thirty-three

pages

to

Gahagan

with

minor

redactions. (Rec. Doc. 33.) Gahagan challenged the redactions as
unlawful

and

affidavit

or

claimed

that

Vaughn

Index

neither

USCIS

explaining

nor

the

ICE

claimed

produced

an

exemptions.

(Rec. Doc. 36.) The Fifth Circuit vacated the decision of this
Court and remanded the case for further proceedings. Id.
On

August

21,

2015,

Gahagan

filed

a

Second

Motion

for

Summary Judgment (Rec. Doc. 34) in this Court, challenging the
Vaughn Index produced by ICE. On August 25, he filed a Third
Motion for Summary Judgment (Rec. Doc. 35), arguing that USICS’s
2

search for responsive records was inadequate. Gahagan also moved
to strike from the record two declarations filed by USICS (Rec.
Docs. 19-1, 25-1) on the grounds that they were not based on the
declarants’ personal knowledge. USCIS opposed these motions on
September 1. Gahagan then filed two Motions for Leave to File
Reply (Rec. Docs. 38, 39) on September 6, 2015.
PARTIES’ ARGUMENTS
In his Second Motion for Summary Judgment, Gahagan argues
that USCIS has not produced a “mandated” Vaughn Index to include
“its most recent disclosure of responsive agency records.” (Rec.
Doc. 34 at 9.) Gahagan seems to argue that USCIS is required to
produce a Vaughn Index explaining the exemptions claimed in the
thirty-three pages of documents released by ICE, even though ICE
provided

such

an

index.

(Rec.

Doc.

37-1.)

Further,

Gahagan

argues that USCIS is required to submit the records for an incamera inspection. (Rec. Doc. 34 at 14.) He alleges that USCIS
continues to improperly withhold records in violation of FOIA.
Id. at 15.
In his Third Motion for Summary Judgment, Gahagan argues that
the Declaration of Jill A. Eggleston (“Eggleston Declaration”)
(Rec. Doc. 19-1) and the Supplemental Declaration of Brian J.
Welsh (“Welsh Declaration”) (Rec. Doc. 25-1) should be stricken
from the record. The Federal Rules of Civil Procedure require
declarations in support of summary judgment to be based on the
3

declarant’s

personal

knowledge.

Because

the

declarations

are

based in part on information provided by other USCIS employees,
Gahagan argues that they should be stricken from the record for
lack of personal knowledge.
Also in his Third Motion for Summary Judgment, Gahagan argues
that USCIS failed to conduct an adequate search as required by
FOIA. Gahagan originally requested four types of agency records:
(1)

his

written

client’s
by

Alien

Department

File
of

(A-File);

Homeland

(2)

copies

of

notes

(DHS)

or

USCIS

Security

employees pertaining to his client’s visa application, asylum
application, and application for lawful permanent residence; (3)
emails sent to or from any government employee at the USCIS New
Orleans Field Office that mention his client’s name or alien
number; (4) copies of DHS, ICE, and/or USCIS training materials
describing
alien

is

how
in

to

respond

removal

to

requests

proceedings.

for

(Rec.

A-Files

Doc.

1-3,

while
at

the

2-3.)

Gahagan argues that USCIS failed to conduct an adequate search
as to his second, third, and fourth requests. (Rec. Doc. 35 at
17.)
The Eggleston Declaration and the Welsh Declaration explain
the search efforts made for the requested documents. Gahagan
contends

that

the

declarations

do

not

demonstrate

a

legally

adequate search for a number of reasons. As to the Eggleston
Declaration, Gahagan first argues that the declaration failed to
4

describe a search for the requested emails, notes, or training
materials. (Rec. Doc. 35 at 17.) Second, he asserts that the
declaration does not describe the keywords used in the searches,
the types of searches performed, or the names or positions of
the people who conducted the searches. Id. at 17-18. The search
is also inadequate, he contends, because USCIS failed to search
all four locations where responsive documents might be found.
Id. at 18. The declaration failed to describe the files searched
and instead stated that it conducted a “search,” which Gahagan
describes as “purely conclusory statements.” Id. at 19. Finally,
Gahagan contends that the declaration did not properly explain
that no other record system was likely to produce responsive
documents because Ms. Eggleston merely stated that “there is no
reason to presume” that any other location contained responsive
records

and

that

she

was

confident

that

all

locations

were

searched. Id.
Gahagan
inadequate.

further
First,

argues
he

that

contends

the

Welsh

that

the

Declaration
declaration

is
only

addresses his requests for emails and training materials. Id. at
20. Second, he asserts that only three employees of the USCIS
New Orleans Field Office searched their emails for responsive
documents. Id. USCIS did not describe which email files were
searched. Id. Third, Gahagan states that the declaration did not
include the search terms used to find responsive emails and that
5

the

search

terms

used

to

find

training

materials

were

not

reasonably calculated to discover all relevant documents. Id. at
21.
In its Opposition, USCIS raises three arguments. First, it
contends

that

FOIA

declarations

can

be

based

on

information

provided to the FOIA officer in the course of official duties.
(Rec. Doc. 37 at 6.) Thus, the declaration need not be based
solely on the declarant’s personal knowledge. Id. Second, it
argues

that

its

search

was

legally

adequate

because

it

was

“reasonably calculated to uncover all relevant documents.” Id.
at

9-10.

The

declarations

adequately

described

the

search

because they were clear and provided specific details about the
search. Id. at 9. Third, USCIS argues that ICE appropriately
redacted the thirty-three pages released to Gahagan and provided
a proper Vaughn Index. Id. at 10. Because the redactions were
minimal and properly described in an index, USCIS argues that an
in-camera inspection is unnecessary. Id. at 11.
LEGAL STANDARD
In the FOIA context, the traditional standard for deciding
motions for summary judgment is modified. Batton v. Evers, 598
F.3d

169,

following

175

(5th

standard

Cir.
for

2010).

motions

cases:

6

This
for

Court

summary

has

outlined

judgment

in

the
FOIA

Summary judgment is available to the defendant in a
FOIA case when the agency proves that it has fully
discharged its obligations under FOIA, and there is no
genuine issue of material fact, after the underlying
facts and the inferences to be drawn from them are
construed in the light most favorable to the FOIA
requester. See Weisberg v. United States Dep't of
Justice, 705 F.2d 1344, 1350 (D.C. Cir .1983). The
agency may satisfy its burden of proof through the
submission of affidavits that identify the documents
at issue and explain why they fall under the claimed
exemption. These affidavits must be clear, specific
and reasonably detailed while describing the withheld
information in a factual and nonconclusory manner.
Furthermore, the court will not grant summary judgment
if there is contradictory evidence or evidence of
agency bad faith. See Gallant v. NLRB, 26 F.3d 168,
171 (D.C. Cir. 1994) (quoting Halperin v. CIA, 629
F.2d 144, 148 (D.C. Cir. 1980)). If the agency meets
all of these requirements, the court will normally
accord the affidavits substantial weight. However, a
reviewing court may also inspect the content of agency
documents in camera to determine whether they fall
under any of the FOIA exemptions. See 5 U.S.C. §
552(a)(4)(B).
Mavadia v. Caplinger, No. 95-3542, 1996 WL 592742, at *1 (E.D.
La. Oct. 11, 1996) (Vance, J.) (footnotes omitted). Courts grant
a presumption of legitimacy to an agency’s supporting affidavits
and

declarations

in

the

absence

of

evidence

suggesting

bad

faith. Batton, 598 F.3d at 175. However, the burden of proving
the legitimacy of the decision to withhold information remains
with the agency. Cooper Cameron Corp. v. U.S. Dep’t of Labor,
Occupational Safety and Health Admin., 280 F.3d 539, 543 (5th
Cir. 2002). The burden does not shift to the FOIA requester,
even when the requester moves for summary judgment. See 5 U.S.C.
552(a)(4)(B)

(“[T]he

burden

is

on
7

the

agency

to

sustain

its

action.”); Gahagan v. U.S. Citizenship and Migration Servs., No.
14-2233, 2015 WL 350356, at *11-12 (E.D. La. Jan. 23, 2015)
(Brown, J.).
DISCUSSION
A. Declarations
In his Third Motion for Summary Judgment, Gahagan argues that
the Eggleston Declaration and the Welsh Declaration should be
stricken from the record because the declarants lacked personal
knowledge.

Under

declarations

the

offered

Federal

in

support

Rules
of

of

summary

Civil

Procedure,

judgment

must

be

based on the declarant’s personal knowledge. Fed. R. Civ. P.
56(c)(4). A court may strike an affidavit that is not based on
personal knowledge. Akin v. Q-L Invs., Inc., 959 F.2d 521, 530
(5th Cir. 1992).
In

the

declarant

FOIA

context,

satisfies

the

several
personal

courts

have

knowledge

held

that

requirement

the

if

he

“attests to his personal knowledge of the procedures used in
handling [a FOIA] request and his familiarity with the documents
in question.” Barnard v. Dep’t of Homeland Sec., 598 F. Supp. 2d
1, 19 (D.D.C. 2009); see Spannaus v. U.S. Dep’t of Justice, 813
F.2d

1285,

1289

(4th

Cir.

1987).

FOIA

declarations

may

also

contain statements based on information obtained “in the course
of [the declarant’s] official duties.” Barnard, 598 F. Supp. 2d
at 19; Thompson v. Exec. Office for U.S. Attorneys, 587 F. Supp.
8

2d 202, 208 n.4 (D.D.C. 2008). The Fifth Circuit has yet to
decide whether such statements are proper, but this Court finds
that the cases cited above are persuasive.
Here, the Eggleston Declaration and the Welsh Declaration are
proper FOIA declarations. Both state that they are based on the
declarant’s
USCIS

in

personal
the

knowledge,

ordinary

course

review
of

of

documents

business,

and

kept

by

information

provided to the declarant by other USCIS employees in the course
of official duties. (Rec. Doc. 19-1 at 2; Rec. Doc. 25-1 at 2.)
Ms.

Eggleston

also

attests

to

her

familiarity

with

USCIS

procedures and actions taken in response to Gahagan’s request.
(Rec. Doc. 19-1 at 2.) Both declarations are properly based on
personal

knowledge

and

information

obtained

in

the

official

course of the declarants’ duties.
The case cited by Gahagan, Bright v. Ashcroft, does not hold
otherwise. There, a court of this district struck an affidavit
when

the

affiant

lacked

personal

knowledge

as

to

withheld

information. Bright v. Ashcroft, 259 F. Supp. 2d 494, 498 (E.D.
La. 2003) (Feldman, J.). The declarations in this case involve
knowledge

of

information.

search
Thus,

procedures,
Bright

is

not

knowledge

distinguishable.

of

redacted

Because

the

declarations are proper under FOIA and Rule 56, they will not be
stricken from the record.

9

B. Legally Adequate Search
In his Third Motion for Summary Judgment, Gahagan contends
that USCIS has not conducted a legally adequate search under
FOIA.

(Rec.

Doc.

35-2

at

15.)

An

agency

can

demonstrate

an

adequate search by showing that its methods can be “reasonably
expected to produce the information requested.” Batton, 598 F.3d
at 176. The proper focus is the adequacy of the search, not the
results of the search. Weisberg v. U.S. Dep’t of Justice, 745
F.2d 1476, 1485 (D.D.C. 1984). Thus, it is irrelevant that other
responsive documents may exist or that the agency did not search
every record system. Batton, 598 F.3d at 176.
To prevail on a motion for summary judgment, the agency must
show

that

it

conducted

a

“search

reasonably

calculated

to

uncover relevant documents,” viewing the facts in the light most
favorable to the FOIA requester. Steinberg v. Dep’t of Justice,
23 F.3d 548, 551 (D.C. Cir. 1984). To make this showing, the
agency

may

submit

affidavits

or

declarations

explaining

the

scope and method of search “in reasonable detail and in a nonconclusory fashion.” Perry v. Block, 684 F.2d 121, 126 (D.C.
Cir. 1982).
The Fifth Circuit explained the requirements for declarations
and legally adequate searches in Batton, 598 F.3d at 176. In
that case, the Internal Revenue Service, the responding agency,
submitted

two

declarations

to
10

prove

the

adequacy

and

reasonableness of its search. Id. One declaration listed “the
particular databases that were searched” and explained that the
databases contained the type of information requested. Id. The
other stated that the office searched “internal databases and
systems of record.” Id. The Fifth Circuit found that the search
was reasonably calculated to produce responsive documents. Id.
Here, USCIS established that it conducted a legally adequate
search according to Fifth Circuit precedent. In the Eggleston
Declaration,

the

declarant

states

that

she

is

the

Assistant

Center Director for the FOIA Unit of the National Records Center
(“NRC”) of the USCIS. (Rec. Doc. 19-1 at 1.) She was responsible
for

overseeing

and

coordinating

the

search

for

documents

responsive to Gahagan’s FOIA request. Id. at 2. The declaration
states that the request was assigned to a Significant Interest
Team paralegal, who determined that the four locations may have
contained responsive records. Id. at 5. The NRC forwarded the
request to the four offices, tasking them with searching their
records. Id. Eggleston states that she is confident that the NRC
identified all offices and searched all files reasonably likely
to contain information requested by Gahagan. Id.
The

Welsh

declarant
Program

Declaration

first
Branch

states
of

the

contains

that
NRC.

he

is
(Rec.

similar
Deputy
Doc.

information.

The

Chief

of

the

FOIA

25-1

at

1.)

The

declaration describes the process of assigning Gahagan’s FOIA
11

request to the Significant Interest Team. Id. at 2. Following
the

identification

of

the

four

offices

that

might

contain

responsive records, NRC forwarded Gahagan’s request to the four
offices.
tasked

Id.

with

The

declaration

searching

for

names

the

responsive

specific

documents,

individuals
as

well

as

descriptions of where the individuals searched and the search
terms

used.

Id.

at

2-3.

Like

Eggleston,

Welsh

specifically

states that he is confident that the NRC identified all offices
and searched all files reasonably likely to contain responsive
records. Id. at 3.
The

declarations

establish

that

USCIS

conducted

a

legally

adequate search, and Gahagan’s contentions to the contrary lack
merit. Considering the declarations as a whole, USCIS described
its

search

process,

including

specifics

about

the

places

searched, the persons conducting the searches, and the search
terms

employed.

This

is

sufficient

to

meet

the

standard

articulated in Batton, which considered an explanation of the
places searched to be sufficient. This summary judgment motion
requires

Gahagan

to

establish

that

a

reasonable

fact-finder

could not find for USCIS. Gahagan, No. 14-2233, 2015 WL 350356,
at *15. Gahagan failed to make such a showing.
C. Vaughn Index
In his Second Motion for Summary Judgment, Gahagan argues that
USCIS

must

produce

a

Vaughn

Index
12

explaining

the

exemptions

claimed in the thirty-three pages of documents released by ICE.
(Rec. Doc. 34 at 13.) However, ICE provided such an index when
it released the documents to him. (Rec. Doc. 37-1.) A Vaughn
Index, named for Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),
is

a

“routine

device

through

describes

the

responsive

indicates

why

the

which

documents

exemptions

the

defendant

withheld

claimed

apply

agency

or

redacted

to

the

and

withheld

material.” Batton, 598 F.3d at 174 (quoting Jones v. Fed. Bureau
of Investigation, 41 F.3d 238, 241 (6th Cir. 1994)). The index
must

contain

a

“detailed

justification”

for

each

claimed

exemption to disclosure. Stephenson v. Internal Revenue Serv.,
629 F.2d 1140, 1145 (5th Cir. 1980). The district court has the
discretion to order a Vaughn Index, but it abuses its discretion
when

it

“relies

upon

agency

affidavit

in

an

investigative

context when alternative procedures ... would more fully provide
an accurate basis for decision.” Id at 1145-46.; see Batton, 598
F.3d at 178.
Because Gahagan has already received a Vaughn Index for the
thirty-three pages released by ICE, this issue is moot. (Rec.
Doc. 37-1.) On appeal, USCIS supplemented the record with the
Declaration of Fernando Pineiro, Deputy FOIA Officer at the ICE
FOIA Office, which describes in detail the records released to
Gahagan and the exemptions claimed. Id. The declaration included
a

chart

listing

the

record

page
13

number,

record

date,

a

description of the records and redacted information, and the
exemptions applied to each. Id. at 19-30. The declaration and
attached exhibits constitute an adequate Vaughn Index because
they contain detailed justifications for each redaction. See id.
Gahagan seems to argue that USCIS is required to produce a
Vaughn Index, in addition to the index produced by ICE. However,
he cites no Fifth Circuit precedent, and this Court could not
find

any

support

for

this

argument.

Thus,

because

Gahagan

received a Vaughn Index detailing the exemptions claimed by ICE,
this issue is moot.
D. In-Camera Review
In his Second Motion for Summary Judgment, Gahagan urges that
this Court is required to order a Vaughn Index or conduct an incamera review of the redacted documents. However, like ordering
a Vaughn Index, the court has the discretion to order an incamera review. Stephenson, 629 F.2d at 1144. The Court finds
review of the thirty-three pages released by ICE unnecessary
because

ICE

provided

a

detailed

Vaughn

Index,

as

described

above.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Second Motion for
Summary Judgment (Rec. Doc. 34) and Third Motion for Summary

14

Judgment

(Rec.

Doc.

35)

are

DENIED.

Plaintiff’s

Motions

for

Leave to File Reply (Rec. Docs. 38, 39) are DENIED as moot.
New Orleans, Louisiana this 11th day of September, 2015

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

15