Gahagan v. United States Citizenship and Immigration Services

Filing 63

ORDER AND REASONS - IT IS ORDERED: that 45 USCIS's motion for reconsideration is DENIED and its 44 motion for summary judgment is DENIED as moot. IT IS FURTHER ORDERED: that the scheduling order issued in this case is hereby rescinded and a judgment for plaintiff will be entered. Finally, IT IS FURTHER ORDERED: that the plaintiff's motion for attorney's fees is referred to the magistrate judge for determination. Signed by Judge Martin L.C. Feldman on 3/8/2017. (cg)

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 the Court are two motions by United States Citizenship
and Immigration Services: (1) motion for reconsideration of this
Court’s December 14, 2016 Order and Reasons granting in part the
plaintiff’s motion for summary judgment; and (2) motion for summary
judgment.

For

the

reasons

that

follow,

USCIS’s

motion

for

reconsideration is DENIED and its motion for summary judgment is
DENIED as moot.
Background
This lawsuit arises out of a government agency’s 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.

1

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
for Immigration Review (Immigration Court).

On July 13, 2016,

pursuant to the Freedom of Information Act (FOIA), 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.”

The record was not produced.

This litigation ensued.

What these proceedings have revealed is a bureaucracy fraught with
inefficiency and, at best, remarkable ineptitude.

That a case

seeking a single sheet of paper from a government agency can be
described as sprawling is shameful; an emblem of bureaucracy at
its worst.
2

This

Order

proceedings.

and

Reasons

assumes

familiarity

with

prior

See Order dtd. 12/8/16; Order and Reasons dtd.

12/14/16; Order and Reasons dtd. 12/22/16.

On December 8, 2016,

the Court ordered that (i) USCIS turn over and file into the record
the unredacted recreated receipt notice; and that (ii) both sides
submit

supplemental

briefing

addressing

whether

the

agency’s

production of a recreated record satisfies its FOIA obligation.
On December 14, 2016, the Court granted in part the plaintiff’s
motion for summary judgment insofar as the summary judgment record
indicated that USCIS had failed to conduct an adequate search for
an archived record; the Court took under submission, pending a
search by USCIS and additional briefing by USCIS, the remaining
issue (whether or not production of a recreated record by USCIS
satisfies its obligation to plaintiff).

On December 22, 2016,

finding that “USCIS has since performed another search and has
otherwise

satisfied

its

obligations

imposed

by

this

Court’s

December 14, 2016 Order and Reasons, and, finally, because the
plaintiff, now, ‘has no objection to accepting [the I-797C Receipt
Notice] produced in response to the instant litigation,’” the Court
denied as moot the submitted portion of the plaintiff’s motion for
summary judgment.
There apparently being some confusion on the part of counsel
for USCIS as to whether there were any outstanding merits-based
3

issues to be resolved (there were not), USCIS now seeks summary
judgment in its favor; it also seeks reconsideration of this
Court’s December 14, 2016 Order and Reasons insofar as it granted
in part the plaintiff’s motion for summary judgment on the issue
of the adequacy of USCIS’s search.
I.
A.
Rule 54(b) of the Federal Rules of Civil Procedure provides:
When an action presents more than one claim for relief
-- whether as a claim, counterclaim, crossclaim, or
third-party claim -- or when multiple parties are
involved, the court may direct entry of a final judgment
as to one or more, but fewer than all, claims or parties
only if the court expressly determines that there is no
just reason for delay. Otherwise, any order or other
decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to
any of the claims or parties and may be revised at any
time before the entry of a judgment adjudicating all the
claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54(b). District courts retain discretion to revise
interlocutory orders.

Calpetco 1981 LP v. Marshall Exploration,

Inc., 989 F.2d 1408, 1414-15 (5th Cir. 1993)(citing Avondale
Shipyards, Inc. v. Insured Lloyd's, 786 F.2d 1265, 1269 (5th Cir.
1986)).

“Rule 54(b) authorizes a district court to reconsider and

reverse its prior rulings on any interlocutory order for any reason
it deems sufficient.”

United States v. Renda, 709 F.3d 472, 479
4

(5th Cir. 2013)(citation and internal quotation marks omitted).
Although this is true “even in the absence of new evidence or an
intervening change in or clarification of the substantive law,”
Saqui v. Pride Cent. Am., LLC, 595 F.3d 206, 210-11 (5th Cir.
2010)(citation omitted), courts are generally guided by the same
principles applied to motions for reconsideration under Rule 59.
Rule 59(e) allows a court to alter or amend a judgment if the
movant can establish a manifest error of law or can present newly
discovered evidence.

Fed. R. Civ. P. 59(e).

“A Rule 59(e) motion

‘calls into question the correctness of a judgment.’”

Templet v.

Hydrochem, Inc., 367 F.3d 473, 478 (5th Cir. 2004) (quoting In re
Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)).

Because

of the interest in finality, Rule 59(e) motions may only be granted
if the moving party shows there was a mistake of law or fact or
presents

newly

discovered

evidence

discovered previously. Id. at 478-79.

that

could

not

have

been

Moreover, Rule 59 motions

should not be used to relitigate old matters, raise new arguments,
or submit evidence that could have been presented earlier in the
proceedings.

See id. at 479; Rosenblatt v. United Way of Greater

Houston, 607 F.3d 413, 419 (5th Cir. 2010)(“a motion to alter or
amend the judgment under Rule 59(e) ‘must clearly establish either
a manifest error of law or fact or must present newly discovered
evidence’ and ‘cannot be used to raise arguments which could, and
5

should,

have

Rosenzweig

been

v.

made

Azurix

before

Corp.,

the
332

judgment
F.3d

854,

issued’”)(citing
864

(5th

Cir.

2003)(quoting Simon v. United States, 891 F.2d 1154, 1159 (5th
Cir. 1990)).

The grant of such a motion is an “extraordinary

remedy that should be used sparingly.” Indep. Coca-Cola Employees’
Union of Lake Charles, No. 1060 v. Coca-Cola Bottling Co. United,
Inc., 114 Fed.Appx. 137, 143 (5th Cir. Nov. 11, 2004) (citing
Templet, 367 F.3d at 479).

The Court must balance two important

judicial imperatives in deciding a motion for reconsideration:
“(1) the need to bring the litigation to an end; and (2) the need
to render just decisions on the basis of all the facts.”

Templet,

367 F.3d at 479.
B.
USCIS asks the Court to reconsider its ruling on December 14,
2016 that USCIS failed to perform an adequate search for the
requested

record

“in

light

of

the

additional

evidence

and

explanation provided in Sabrina Kenner’s declaration” that “[t]he
apparent

contradiction

between

[statements

in

two

USCIS

declarations] can be attributed to the use of ‘technical’ and
‘somewhat imprecise’ language in Jill Eggleston’s May 5, 2015
declaration.”

Under the circumstances, USCIS has not shown that

reconsideration is warranted.
6

Simply put, USCIS was obliged to conduct an adequate search
for the requested record and it had the burden to show that it had
done so.
outset

It failed.

by

USCIS could have satisfied its burden at the

submitting

a

reasonably

detailed

declaration

by

a

knowledgeable declarant describing the scope and method of the
relevant search, and it could have explained how it has a practice
of regenerating such records when they are requested because none
are kept by the agency.

Instead, USCIS made its submission

piecemeal and still failed to satisfy the Court that it had
conducted a reasonable search.
USCIS’s

search

declarations.

on
In

the
the

The Court assessed the adequacy of

basis

of

initial

its

submission

declaration

of

submitted

three
by

Ms.

Martinez, 1 she did not even state that USCIS had searched for the
requested record.

In its second opposition to plaintiff’s motion

for summary judgment, which was filed on December 12, 2016, USCIS
submitted

a

second

declaration

by

Ms.

Martinez

in

which

she

concluded that “[a] search of CLAIMS would not, and did not reveal”
the requested record.

USCIS also submitted a declaration by Jill

Eggleston in which Eggleston suggested that if the record was
available, it would be in his A-file but that the document “could
not be located” in the A-file.

There is no suggestion as to when

The declaration is dated December 2, 2016 but appears to have
been docketed days earlier on November 30, 2016.
7
1

the “search” of the A-file was conducted.

And, although Ms.

Martinez declared that copies of the requested record were not
retained by USCIS, this “fact” seemed to be contradicted by a prior
Eggleston declaration filed in another case in a different Section
of Court.

It was on the basis of this shoddy presentation by USCIS

of its “search” that the Court granted summary judgment in part in
the plaintiff’s favor and ordered USCIS to conduct another search
(assuming any search had been conducted in the first place) and to
explain the apparent discrepancy between Eggleston’s declaration
in the prior case and the Martinez declarations in this case.
USCIS has not shown that the Court erred in granting in part
the plaintiff’s motion for summary judgment insofar as USCIS had
failed to conduct an adequate search for the record and, more
importantly, had failed to explain in reasonable detail the scope
and method of its search.

Nor has USCIS persuaded the Court to

reconsider its prior ruling.

It was USCIS’s own sloppy approach

and failure to describe its alleged search, and the confusion
created by its own personnel, that undermined its ability to carry
its burden to show that it had conducted an adequate search.
Because the declarations in the record failed to show that USCIS
had performed an adequate search for the receipt notice, the Court
reasonably granted summary judgment in favor of the plaintiff on

8

the issue and ordered that another search be conducted and another
submission be filed.
USCIS points to the most recent declaration by yet another
USCIS

employee

and

suggests

that,

finally,

the

apparent

discrepancy has been explained and, now, it should be understood
that the agency never kept the record and, thus, could only
recreate it, as it has done.

Too little, too late.

At the time

the Court issued its December 14, 2016 Order and Reasons, USCIS
had failed to carry its burden to show that it had conducted an
adequate search.

Clearly, it had not done so; the Court ordered

that a search must be conducted and an explanation clarifying the
inconsistency in the record must be filed.

The Court will not

reconsider its prior ruling based on any clarity finally achieved
only after a Court-ordered search and submission that was prompted
by

the

agency’s

own

inadequate

presentation.

USCIS

cannot

retroactively satisfy its burden to show an adequate search had
been conducted after haphazardly filing incomplete or inaccurate
affidavits, confusing the bar, the Court, and the public it is
intended to serve. 2

Of much concern, USCIS apparently does not learn from its past
mistakes. Eggleston declarations have been described as misleading
or inadequate and, yet, the same sorts of declarations continue to
be submitted.
See DaSilva v. U.S. Citizenship and Immigration
Services, No. 13-13, 2014 WL 775606, at *7 (E.D. La. 2014)(Africk,
9
2

C.
Insofar as USCIS has filed a motion for summary judgment, the
motion is DENIED as moot in light of the Court’s December 22, 2016
Order and Reasons.

There, the Court denied as moot the only

remaining portion of the plaintiff’s motion for summary judgment
(that is, the only issue that was under submission after the Court
granted, in part, the plaintiff’s motion for summary judgment on
the issue of the agency’s inadequate search).

In other words, any

pending claim by the plaintiff was finally resolved or moot when
the plaintiff acknowledged that he had “no objection to accepting
[the I-797C Receipt Notice] produced” by USCIS (the regenerated
receipt notice). See Order and Reasons dtd. 12/22/16. (Of course,
this result could have been achieved had USCIS simply provided to

J.)(“[Eggleston’s] sworn declarations and [defendant’s] pleadings,
which reiterated that plaintiff sought email communications, and
then asserted that ‘all communications’ would be in his A-file,
are plainly misleading. ‘Whether blunder or subterfuge, this is
the kind or recalcitrant and obdurate conduct that merits
attorneys’
fees.’”)(citation
omitted);
American
Immigration
Council v. U.S. Dept. of Homeland Sec., 905 F. Supp. 2d 206, 211,
216 (D.D.C. 2012)(Boasberg, J.)(describing Eggleston’s FOIA
declaration as “inadequate,” the agency’s Vaughn index as
“oscillat[ing] between sloppy and misleading,” and collecting
cases from the D.C. Circuit Court of Appeals that “over and over
again [tell] agencies that this type of conclusory declaration
will not do.”).
Judge Boasberg wrote: “FOIA cases count on
agencies to do their jobs with reasonable diligence. USCIS must do
better.” And, yet, it has not done better.
10

the plaintiff a regenerated receipt notice in response to the
plaintiff’s FOIA request when he made it back in July 2016.)
Accordingly,

IT

IS

ORDERED:

that

USCIS’s

motion

for

reconsideration is DENIED and its motion for summary judgment is
DENIED as moot.

IT IS FURTHER ORDERED: that the scheduling order

issued

case

in

this

is

plaintiff will be entered.

hereby

rescinded

and

a

judgment

for

Finally, IT IS FURTHER ORDERED: that

the plaintiff’s motion for attorney’s fees is referred to the
magistrate judge for determination.
New Orleans, Louisiana, March 8, 2017

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

11