Gahagan v. United States Citizenship and Immigration Services
Filing
31
ORDER AND REASONS: ORDERED that the plaintiff' s 6 Motion for Summary Judgment in GRANTED in part in so far as the Court finds that the USCIS's search for the requested record was inadequate. FURTHER ORDERED that another search of the C LAIMS system shall be conducted and, within five days, counsel for USCIS shall submit supplemental papers and a supplemental declaration as further explained in document. FURTHER ORDERED that not later than 5:00 p.m. twenty-four hours from receipt of this Order and Reasons, counsel for USCIS shall produce to the plaintiff the unredacted recreated Receipt Notice and shall certify compliance in the record. FURTHER ORDERED that the remaining issue raised by the plaintiff's motion for summary is under submission pending USCIS's forthcoming submission. Signed by Judge Martin L.C. Feldman on 12/14/16. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL W. GAHAGAN
CIVIL ACTION
v.
NO. 16-15438
UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES
SECTION "F"
ORDER AND REASONS
Before
judgment.
the
Court
is
the
plaintiff’s
motion
for
summary
For the reasons that follow, the motion is GRANTED in
part and the remaining issue is taken under submission pending
supplemental papers by United States Citizenship and Immigration
Services.
Background
This lawsuit arises out of a government agency’s alleged
failure to adequately search for and produce a single agency record
requested by the plaintiff, an attorney, in connection with the
plaintiff’s client’s ongoing immigration removal proceeding.
Michael W. Gahagan is an immigration attorney.
He was hired
to represent a client in connection with that client’s pending
removal proceedings at the New Orleans, Louisiana Executive Office
1
for Immigration Review (Immigration Court). 1
On July 13, 2016,
pursuant to the Freedom of Information Act, Mr. Gahagan requested
by U.S. Postal Service certified mail, return receipt, one specific
agency record that is in the possession and control of the United
States Citizenship and Immigration Services (USCIS).
Mr. Gahagan
wrote:
Specifically, I am requesting a copy of my client’s Form
I-485 Receipt Notice (I-797C, Notice of Action), which
was not produced to either [Mr. Gahagan’s client] or
undersigned counsel as required by law.
Mr. Gahagan described the one-page Form I-485 Receipt Notice he
was requesting, stated that he was filing the FOIA request in
connection with his client’s removal proceedings, and he requested
that “the document be disclosed within 20 working days as mandated
by FOIA.”
According to Mr. Gahagan, Mr. Gahagan’s client is married to
a United States citizen and USCIS has already ruled that he has a
bona fide marriage with his U.S. citizen wife through the approval
of a USCIS Form I-130, Petition for Alien Relative, making Mr.
Gahagan’s client eligible to apply for Lawful Permanent Resident
Mr. Gahagan suggests that his client wishes to remain anonymous
and that his identity is irrelevant to these proceedings in which
Mr. Gahagan is the FOIA requester and proper plaintiff.
The
defendant does not object.
2
1
status with the Immigration Judge, and to terminate his removal
proceedings.
To apply for lawful Permanent Resident status while
in removal proceedings, Mr. Gahagan avers that he must file on
behalf of his client a copy of his USCIS Form I-485, Application
to Register Permanent Residence or Adjust Status with USCIS; and
that USCIS has a regulatory duty to issue a Form I-485 Receipt
Notice to Mr. Gahagan and his client.
Mr. Gahagan must then file
the Form I-485 Receipt Notice with the Immigration Judge in order
to request Lawful Permanent Residence status from the Immigration
Judge.
Until the Immigration Judge is given a copy of the Form I-
485 Receipt notice, Mr. Gahagan underscores, he does not have
jurisdiction to adjudicate Mr. Gahagan’s client’s request for
Lawful Permanent Residence status, nor can the Immigration Judge
terminate the removal proceedings against Mr. Gahagan’s client.
Mr. Gahagan submits that, although he properly filed his client’s
Form I-485 request with USCIS on October 27, 2015, USCIS failed to
mail a Form I-485 Receipt Notice to either Mr. Gahagan or his
client, which has caused his client’s case to be continued for one
year while he attempts to obtain the Form I-485 Receipt Notice
through FOIA and now through this FOIA lawsuit. 2
In his supplemental papers, Mr. Gahagan recounts a sordid history
of USCIS’s interactions with his client, including at least two
other FOIA lawsuits proceeding before two different Sections of
this Court. The Court would observe that perhaps each of these
3
2
USCIS acknowledged receipt of Mr. Gahagan’s FOIA request,
which was filed with the USCIS National Records Center on July 13,
2016.
The
receipt
NRC2016095617.
number
for
the
USCIS
FOIA
request
is
Believing that USCIS failed to conduct a legally
adequate search for the requested agency record, and because USCIS
had not yet produced the agency record, Mr. Gahagan sued USCIS on
October 11, 2016 in this Court, seeking declaratory and injunctive
relief.
Mr. Gahagan alleges that he has been irreparably harmed
because of the unlawful delay and withholding of USCIS in providing
the requested information and, without the requested information,
he will be unable to adequately prepare to defend his client in
his
client’s
accordingly
removal
will
be
proceedings
deprived
of
ineffective assistance of counsel.
and
that
plaintiff’s
procedural
due
client
process
and
Mr. Gahagan alleges that he
has exhausted the applicable administrative remedies and seeks an
award of attorney’s fees, costs, and expenses under FOIA.
Mr. Gahagan now seeks summary judgment in his favor; he
submits that he “has received no production of any records...nor
has Plaintiff received any final disposition from USCIS stating
that it has not found records as of the date of this filing.”
He
cases is related such that the plaintiff or USCIS should file a
notice of related cases consistent with the Court’s Local Rules
and end what looks like forum shopping.
4
further submits that the required Vaughn index, fully describing
the search methods employed and individually describing the lawful
basis for any exemption, has not been produced to Plaintiff as
mandated by FOIA. Meanwhile, USCIS submitted a declaration stating
that it could not find the requested record, but it turned over a
recreated (and redacted) Receipt Notice to the plaintiff.
The
Court ordered USCIS to produce to the plaintiff and file under
seal with the Court an unredacted recreated Receipt Notice and
ordered supplemental briefing by the parties addressing whether,
in the absence of an original record, provision of a functional
equivalent record satisfies USCIS’s FOIA obligation.
I.
A.
Traditional Summary Judgment Standard
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A genuine
dispute of fact exists only "if the evidence is such that a
5
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The
mere argued existence of a factual dispute does not defeat an
otherwise properly supported motion.
See id.
Ultimately, "[i]f
the evidence is merely colorable . . . or is not significantly
probative," summary judgment is appropriate. Id. at 249 (citations
omitted); see also Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir.
2007)(internal
quotation
marks
and
citation
omitted)
(“[T]he
nonmoving party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or only a scintilla of
evidence.”).
Summary judgment is also proper if the party opposing the
motion fails to establish an essential element of a claim.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
regard,
the
non-moving
party
must
adduce
competent
See
In this
evidence,
including but not limited to sworn affidavits and depositions, to
buttress his claims.
See Donaghey v. Ocean Drilling & Exploration
Co., 974 F.2d 646, 649 (5th Cir. 1992).
However, affidavits or
pleadings which contradict earlier deposition testimony cannot
create a genuine issue of material fact sufficient to preclude an
entry of summary judgment.
See S.W.S. Erectors, Inc. v. Infax,
Inc., 72 F.3d 489, 495 (5th Cir. 1996); Thurman v. Sears, Roebuck
& Co., 952 F.2d 128, 137 n. 23 (5th Cir. 1992).
6
In deciding whether a fact issue exists, courts must view the
facts and draw reasonable inferences in the light most favorable
to the nonmoving party.
(citations omitted).
Scott v. Harris, 550 U.S. 372, 378 (2007)
Although the Court must "resolve factual
controversies in favor of the nonmoving party," it must do so "only
where there is an actual controversy, that is, when both parties
have submitted evidence of contradictory facts."
Antoine v. First
Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)(internal quotation
marks and citation omitted).
B.
Modified Summary Judgment Standard
Most FOIA cases are resolved at the summary judgment stage.
Flightsafety Servs. Corp. v. Dep’t of Labor, 326 F.3d 607, 610
(5th Cir. 2003).
must
be
upheld
“Unlike the review of other agency action that
if
supported
by
substantial
evidence
and
not
arbitrary or capricious, the FOIA expressly places the burden ‘on
the agency to sustain its action’ and directs the district courts
to ‘determine the matter de novo.’” United States Dep’t of Justice
v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755
(1989)(citing 5 U.S.C. § 552(a)(4)(B)).
Thus, the FOIA modifies
the traditional summary judgment standard insofar as it places the
burden on the agency to establish the validity of its action
7
including any decision to withhold information.
Id. at 610-11.
“Summary judgment is available to the defendant in a FOIA case
when the agency proves that it has fully discharged its obligations
under FOIA, after the underlying facts and the inferences to be
drawn from them are construed in the light most favorable to the
FOIA requester.”
Miller v. Dep’t of State, 779 F.2d 1378, 1382
(8th Cir. 1985)(citation omitted).
II.
Part of the Administrative Procedure Act, the Freedom of
Information Act “was enacted to ‘pierce the veil of administrative
secrecy and to open agency action to the light of public scrutiny.”
Batton v. Evers, 598 F.3d 169, 175 (5th Cir. 2010).
“Congress
created nine exemptions to its general policy of full agency
disclosure under the FOIA ‘because it realized that legitimate
governmental and private interests could be harmed by release of
certain types of information.’”
Flightsafety Services Corp. v.
Department of Labor, 326 F.3d 607, 611 (5th Cir. 2003)(citation,
internal quotations omitted).
“[T]he 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.”
Batton, 598 F.3d at 175.
8
The FOIA obliges federal agency compliance with requests to
make their records available to the public, unless the requested
records fall within at least one of nine categories of exempt
material.
See
5
U.S.C.
§
552(a),
(b).
The
exemptions
to
disclosure are limited by statute and, thus, construed narrowly.
Batton, 598 F.3d at 175 (“Thus, in a FOIA case, a court ‘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.’”). Under the FOIA, if an agency improperly
withholds documents, the Court has jurisdiction to “enjoin the
agency from withholding agency records and to order the production
of
any
agency
552(a)(4)(B).
records
improperly
withheld.”
5
U.S.C.
§
The FOIA requires that “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.”
Id.
the agency to sustain its action.”
Notably, “the burden is on
Id.; U.S. Dep’t of Justice v.
Reporters Committee for Freedom of the Press, 489 U.S. 749, 755
(1989)(“Unlike the review of other agency action that must be
upheld if supported by substantial evidence and not arbitrary or
capricious, the FOIA expressly places the burden ‘on the agency to
sustain its action’ and directs the district courts to ‘determine
9
the matter de novo.’”).
The Court must “accord substantial weight
to an affidavit of an agency concerning the agency’s determination
as
to
the
technical
feasibility
under
paragraph
(2)(C)
and
subsection (b) and reproducibility under paragraph (3)(B).”
5
U.S.C. § 552(a)(4)(B).
Agency
affidavits
are
entitled
to
a
“presumption
of
legitimacy” unless there is evidence of bad faith in handling the
FOIA request.
Batton, 598 F.3d at 176 (quoting U.S. Dep’t of State
v. Ray, 502 U.S. 164, 179 (1991)). “The presumption of legitimacy,
however, does not relieve the withholding agency of its burden of
proving that the factual information sought falls within the
statutory exemption asserted.”
requested
record
contains
Id. (citation omitted).
information
that
is
If a
exempt
from
disclosure under one of the FOIA exemptions, “[a]ny reasonably
segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are
exempt.”
5 U.S.C. § 552(b).
Within 20 days of receiving a FOIA request, the agency must
determine whether it will comply and “immediately notify the person
making
such
therefor.”
request
of...such
determination
Id. § 552(a)(6)(A)(i).
and
the
reasons
When an agency withholds
responsive information, the plaintiff may request that the agency
10
be compelled “to produce a more detailed index identifying the
documents located in response to his FOIA request and articulating
a basis for the withholding of each document (‘a Vaughn index’).”
Batton, 598 F.3d at 174.
through
which
the
“A Vaughn index is a routine device
defendant
agency
describes
the
responsive
documents withheld or redacted and indicates why the exemptions
claimed apply to the withheld material.”
Id. (quoting Jones v.
FBI, 41 F.3d 238, 241 (6th Cir. 1994)).
III.
A.
As a threshold matter, the Court considers whether USCIS’s
search for the responsive record was adequate. Mr. Gahagan submits
that USCIS has not conducted a legally adequate search, arguing
that “[t]o date, USCIS has still not searched for the requested
record, nor has USCIS even made a bald assertion that it has
searched for the record, in clear violation of FOIA.”
USCIS
counters that its search was adequate and reasonable, even though
the record was not located because USCIS does not typically retain
copies of Receipt Notices, considering that Mr. Gahagan’s client’s
A-file was searched and its CLAIMS database was searched.
“An agency may demonstrate that it conducted an adequate
search by showing that it used ‘methods which can reasonably be
expected to produce the information requested.’”
11
Batton, 598 F.3d
at 176 (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68
(D.C. Cir. 1990)).
search,
the
agency
To demonstrate the reasonableness of its
may
submit
nonconclusory
affidavits
that
explain in reasonable detail the scope and method of the agency’s
search.
Brown v. Federal Bureau of Investigation, 873 F. Supp. 2d
388, 399 (D.D.C. 2012)(citing Stenberg v. Dep’t of Justice, 23
F.3d 548, 551 (D.C. Cir. 1994)). The Court will afford agency
affidavits a “presumption of good faith, which cannot be rebutted
by
‘purely
speculative
discoverability
Services,
Inc.
1991)(internal
of
v.
claims
other
about
documents.’”
SEC,
quotations
926
and
F.2d
the
Id.
1197,
citations
existence
(quoting
1200
omitted).
and
SafeCard
(D.C.
“Once
Cir.
the
agency has shown that its search was reasonable, the burden shifts
to [plaintiff] to rebut [defendant’s] evidence by a showing that
the search was not conducted in good faith.”
Moore v. Aspin, 916
F. Supp. 32, 35 (D.D.C. 1996)(citing Miller v. U.S. Dep’t of State,
779 F.2d 1378, 1383 (8th Cir. 1985)).
In support of its contention that its search was adequate,
USCIS relies on three declarations: two by Monica Martinez, a
Section
Chief
assigned
to
the
Texas
Service
Center
of
the
Department of Homeland Security, USCIS Division; and one by Jill
A. Eggleston, the Associate Center Director in the FOIA Privacy
Act Unit of the National Records Center of USCIS.
12
In response to
Mr. Gahagan’s FOIA request in this matter, Ms. Eggleston states
that: she oversaw and coordinated the search conducted by USCIS;
his request was received on August 1, 2016; the National Records
Center concluded upon receipt of the request for the I-797C Receipt
Notice that if the record was available, it would be located in an
A-file at the National Records Center in Lee’s Summit, Missouri;
the National Records Center conducted a general search for records,
located an A-file bearing the plaintiff’s client’s name and Anumber and sent a memo to Immigration and Customs Enforcement’s
New Orleans office requesting a search for records responsive to
Mr. Gahagan’s request; National Records Center determined that the
I-797C Notice of Action requested by Mr. Gahagan could not be
located in the A-file.
In her two declarations, Ms. Martinez states that: USCIS’s
Computer Linked Application Information System (CLAIMS) database
shows that, on or about November 3, 2015, an I-797C Notice of
Action (“Receipt Notice”) for SRC 1602350294 was mailed to the
plaintiff’s
client’s
home
address;
the
application
remains
pending; once an application is filed with USCIS, data from that
application is put into CLAIMS, a USCIS database; depending on
what is needed or the action taken by USCIS, notices or documents
are generated from this information; there is no database that
retains copies of I-797Cs, rather, if a new I-797C is needed, it
13
is generated from the information in CLAIMS; the Receipt Notice
for Mr. Gahagan’s client was not returned as undeliverable to
USCIS; USCIS does not typically retain copies of I-797C Receipt
Notices for its records; a search of CLAIMS would not and did not
reveal any I-797C Receipt Notices; CLAIMS will only provide the
biometric data that can be used to recreate an I-797C.
Based on this factual predicate, ordinarily the Court could
find that USCIS had conducted an adequate search.
However, Mr.
Gahagan in his supplemental papers references a prior case where
USCIS submitted a declaration from Ms. Eggleston regarding the
exact type of record sought here, a Receipt Notice, in which Ms.
Eggleston stated:
In this case, the [National Records Center] reached out
to the TSC and asked them to do another search.
Following an additional search, the TSC confirmed that
they no longer had a receipt file for the individual
because USCIS did not have jurisdiction over the
application.
However, the [Texas Service Center] was
able to retrieve an archive copy of the [Louisiana
Executive Office for Immigration Review] receipt notice
that was generated by the Computer Linked Application
Information Management System 3 (CLAIMS 3) database
automatically when USCIS initially received a copy of
Plaintiff’s application.
See Record Document 8-2 (at page 6, ¶ 21), Civil Action Number 15796.
The facts underlying this sworn declaration in another case
regarding a search conducted for the same sort of record requested
14
here calls into question the reasonableness of the search conducted
in this case.
The Court finds that this sworn statement, which
directly bears on whether or not a search of CLAIMS could reveal
an
archived
Martinez’s
I-797C
Receipt
statement
that
Notice,
it
could
and
not,
conflicts
creates
with
a
Ms.
factual
controversy regarding whether or not USCIS conducted an adequate
search of the CLAIMS system. 3
Accordingly, the Court orders that
another search of the CLAIMS system must be conducted and, within
five days, counsel for USCIS must submit supplemental papers along
with a supplemental declaration explaining: (a) how the original
search of CLAIMS as well as the additional search now ordered were
accomplished; (b) confirming whether or not an archived copy of
the requested Receipt Notice was automatically generated when
USCIS initially received Mr. Gahagan’s client’s application; and
(c)
explaining
the
apparent
discrepancy
between
(i)
Ms.
Eggleston’s Declaration dated May 5, 2015 in Record Document 8-2
of Civil Action Number 15-796 in which she states under penalty of
perjury
that
“an
archive
copy
of
the...receipt
notice...was
generated by the [CLAIMS 3] database automatically when USCIS
Notably, in her initial declaration, Ms. Martinez did not state
that USCIS had even searched for the requested record.
The
statement that “[a] search of CLAIMS would not, and did not reveal
any I-797C Receipt Notices” was not made until her second
declaration, which was attached to USCIS’s supplemental paper
filed on December 12, 2016.
15
3
initially received a copy of Plaintiff’s application” and (ii) Ms.
Martinez’s declarations in this matter in which she states under
penalty of perjury that “There is no database that retains copies
of I-797C’s.”
B.
Pending the additional search for an archived record that is
responsive to the plaintiff’s FOIA request, the Court withholds
ruling on whether or not production of a recreated or functional
equivalent record satisfies USCIS’s obligation.
However, Mr.
Gahagan submits that “USCIS has not produced to Plaintiff the
unredacted document that it previously filed into the record” as
of December 12, 2016.
This is unacceptable.
The Court ordered
that “not later than 5:00 p.m. on Friday, December 9, 2016, USCIS
must turn over to the plaintiff and file into the record under
seal the unredacted receipt notice.”
See Order dtd. 12/8/16.
Not
later than 5:00 p.m. twenty-four hours from the date of this Order
and Reasons, counsel for USCIS is ordered to produce to the
plaintiff
the
unredacted
compliance in the record.
receipt
notice
and
must
certify
Failure to do so will prompt a sanctions
hearing, including the possibility of contempt of Court.
IT
IS
ORDERED:
that
the
plaintiff’s
motion
for
summary
judgment is GRANTED in part insofar as the Court finds that the
16
USCIS’s search for the requested record was inadequate.
IT IS
FURTHER ORDERED: that another search of the CLAIMS system shall be
conducted and, within five days, counsel for USCIS shall submit
supplemental papers and a supplemental declaration explaining: (a)
how the original search of CLAIMS as well as the additional search
now ordered were accomplished; (b) confirming whether or not an
archived copy of the requested Receipt Notice was automatically
generated when USCIS initially received Mr. Gahagan’s client’s
application; and (c) explaining the apparent discrepancy between
(i)
Ms.
Eggleston’s
Declaration
dated
May
5,
2015
in
Record
Document 8-2 of Civil Action Number 15-796 in which she states
under penalty of perjury that “an archive copy of the...receipt
notice...was generated by the [CLAIMS 3] database automatically
when USCIS initially received a copy of Plaintiff’s application”
and (ii) Ms. Martinez’s declarations in this matter in which she
states under penalty of perjury that “[t]here is no database that
retains copies of I-797C’s.”
IT IS FURTHER ORDERED: that counsel
for USCIS shall also address the issue that was not addressed in
the latest submission, that is, whether, in the absence of the
original record, providing a functionally equivalent record to a
FOIA plaintiff satisfies the agency’s FOIA obligation; counsel
shall include citation to relevant authority as well as references
to specific cases in which USCIS has produced to FOIA plaintiffs
17
recreated Receipt Notices or similar records in lieu of original
or archived records.
IT IS FURTHER ORDERED: that not later than
5:00 p.m. twenty-four hours from receipt of this Order and Reasons,
counsel for USCIS shall produce to the plaintiff the unredacted
recreated Receipt Notice and shall certify compliance in the
record.
Finally, IT IS FURTHER ORDERED: that the remaining issue
raised by the plaintiff’s motion for summary is under submission
pending USCIS’s forthcoming submission.
New Orleans, Louisiana, December 14, 2016
_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
18
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