Michigan Immigrant Rights Center et al v. Department of Homeland Security et al

Filing 19

OPINION AND ORDER denying 14 Motion to Deem Certain Allegations in the Complaint Admitted. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHIGAN IMMIGRANT
RIGHTS CENTER, et al.,
Plaintiffs,
Case No. 16-14192
v.
Hon. John Corbett O’Meara
UNITED STATES DEPARTMENT
OF HOMELAND SECURITY and
UNITED STATES CUSTOMS AND
BORDER PROTECTION,
Defendants.
__________________________________/

OPINION AND ORDER
Before the court is Plaintiffs’ motion to deem certain allegations in the
complaint admitted or, in the alternative, to take a limited Rule 30(b)(6) deposition.
Relying on the parties’ full briefing of this matter, the court did not hear oral
argument.
BACKGROUND FACTS
Plaintiffs – the Michigan Immigrant Rights Center, Dr. Geoffrey Alan
Boyce, Dr. Elizabeth Oglesby, and the American Civil Liberties Union of
Michigan – filed this action against the U.S. Departments of Homeland Security
and Customs and Border Protection. Plaintiffs allege that Defendants have failed

to properly respond to their Freedom of Information Act request, pursuant to 5
U.S.C. § 522.
In general, Plaintiffs seek records related to the Border Patrol’s policies,
practices, and procedures regarding apprehensions, detentions, enforcement
actions, and complaints. See Compl. at Ex. A (Plaintiffs’ FOIA Request).
Plaintiffs contend that the Border Patrol treats the entire state of Michigan as a
border zone, where persons and vehicles are subject to warrantless searches. See 8
U.S.C. § 1357(a)(3) (authorizing Border Patrol agents to conduct warrantless
searches of vehicles “within a reasonable distance from any external boundary of
the United States . . . for the purpose of patrolling the border to prevent the illegal
entry” of non-citizens); 8 C.F.R. § 287.1(b) (“reasonable distance” from border not
more than 100 air miles from international boundary).
Pertinent to this motion, Plaintiffs make the following allegations in their
complaint:
3.

The relevant regulations provide that CBP can determine what a
“reasonable distance” is based on local factors, but that the
distance shall not be more than 100 air miles from the
international boundary. 8 C.F.R. § 287.1(b). That maximum
distance is called the “100 mile zone.”

4.

In Michigan, CBP has not only set the “reasonable distance” for
the entire state at the maximum 100 miles, but also considers
the entire state to be within 100 miles of an international
boundary, and hence within the “100 mile zone.”
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5.

Under this interpretation, CBP agents patrolling the “border”
could potentially subject anyone in Michigan – regardless of
where he or she is within the state – to warrantless detention
and search.
***

30.

A map prepared by CBP and obtained by Plaintiffs shows that
CBP uses 100 miles as the “reasonable distance” everywhere in
the state. The map also shows that CBP considers the entire
state of Michigan to be within the 100-mile zone. That map is
reproduced below.
***

32.

Based on the map, it appears CBP believes that no warrant is
needed for Border Patrol agents to detain and search vehicles
anywhere in the state.

Compl. at ¶¶ 3-5, 30, 32.
In their answer to these allegations, Defendant responded as follows:
3.

This paragraph contains a legal conclusion to which no
response is required. To the extent Plaintiffs attempt to
characterize 8 C.F.R. § 287.1(b), the regulation speaks for itself
and is the best evidence of its content. To the extent Plaintiffs’
allegations are inconsistent with the regulation, this paragraph
is denied. The balance of this paragraph consists of irrelevant
factual assertions, to which no response is required.

4.

The allegations in this paragraph consist of irrelevant factual
assertions, to which no response is required. The allegations in
this paragraph also do not set forth a claim for relief or aver
facts in support of a claim to which an answer is required.

5.

The allegations in this paragraph consist of irrelevant factual
assertions, to which no response is required. The allegations in
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this paragraph also do not set forth a claim for relief or aver
facts in support of a claim to which an answer is required.
***
30.

Defendant admits that CBP prepared a map that appears to be
reproduced in Plaintiffs’ complaint, which map speaks for itself
and is the best evidence of its content. To the extent Plaintiffs’
allegations are inconsistent with the map, this paragraph is
denied.
***

32.

The allegations in this paragraph consist of irrelevant factual
assertions and speculation, to which no response is required.
The allegations in this paragraph also do not set forth a claim
for relief or aver facts in support of a claim to which an answer
is required.

Amended Answer at ¶¶ 3-5, 30, 32.
Plaintiffs argue that the court should deem the allegations in paragraphs 3-5,
30, and 32 of the complaint as admitted because Defendants did not properly deny
them. See Fed. R. Civ. P. 8(b)(6). Defendants respond that Plaintiffs’ allegations
are immaterial to their FOIA claim and should be stricken pursuant to Fed. R. Civ.
P. 12(f).
LAW AND ANALYSIS
The Freedom of Information Act requires federal agencies to make records
available upon request, unless those records fall into nine listed exemptions. 5
U.S.C. § 552(a), (b). See United States Dept. of Justice v. Tax Analysts, 492 U.S.
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136, 150-51 (1989) (“An agency must disclose agency records to any person under
§ 552(a), ‘unless they may be withheld pursuant to one of the nine enumerated
exemptions listed in § 552(b).’”). The statute provides this court “jurisdiction to
enjoin the agency from withholding agency records and to order the production of
any agency records improperly withheld from the complainant.” 5 U.S.C.A. §
552(a)(4)(B). “[T]he burden is on the agency to sustain its action.” Id. Under
FOIA, “federal jurisdiction is dependent on a showing that an agency has (1)
‘improperly’ (2) ‘withheld’ (3) ‘agency records.’” United States Dept. of Justice v.
Tax Analysts, 492 U.S. 136, 142 (1989).
“As most challenges to an agency’s use of a FOIA exemption involve purely
legal questions, district courts typically resolve these cases on summary judgment.
To prevail on summary judgment, the government must show that it made a ‘good
faith effort to conduct a search for the requested records using methods reasonably
expected to produce the requested information’ and that any withholding of
materials was authorized within a statutory exemption.” Rimmer v. Holder, 700
F.3d 246, 255 (6th Cir. 2012).
“Procedurally, district courts typically dispose of FOIA cases on summary
judgment before a plaintiff can conduct discovery.” Rugiero v. U.S. Dep’t of
Justice, 257 F.3d 534, 544 (6th Cir. 2001). Generally, the government submits
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detailed affidavits and a list of the documents withheld, allowing the court to make
a determination whether any statutory exemption applies. Id. “Unless evidence
contradicts the government’s affidavits or establishes bad faith, the court’s primary
role is to review the adequacy of the affidavits and other evidence.” Id.
“If the agency satisfies its burden of establishing that it conducted a
reasonable search, the requestor must make a ‘showing of bad faith on the part of
the agency sufficient to impugn the agency’s affidavits or declarations,’ or provide
some other evidence why summary judgment is inappropriate. A requestor is not
entitled to discovery based on its hope that it might find additional documents or
its belief that the agency is withholding information.” CareToLive v. Food & Drug
Admin., 631 F.3d 336, 345 (6th Cir. 2011). See also World Pub. Co. v. U.S. Dept.
of Justice, 672 F.3d 825, 832 (10th Cir. 2012); Wood v. Federal Bureau of
Investigation, 432 F.3d 78, 85 (2d Cir. 2005) (“Discovery relating to the agency’s .
. . exemptions it claims for withholding records generally is unnecessary if the
agency’s submissions are adequate on their face, and a district court may forgo
discovery and award summary judgment on the basis of submitted affidavits or
declarations.”).
With this background regarding FOIA in mind, the court turns to Plaintiffs’
request that the court deem certain allegations in its complaint admitted or permit
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discovery regarding Defendants’ position on those allegations. The allegations at
issue fall into the category of background information or an explanation as to why
Plaintiffs seek certain documents. Essentially, Plaintiffs want “Defendants to
answer and identify where the ‘100 mile’ boundary begins.” Pls.’ Br. at 1. Because
Defendants have not clearly admitted or denied these allegations, Plaintiffs seek to
have them deemed admitted pursuant to Fed. R. Civ. P. 8(b)(6).
For the purposes of Plaintiffs’ FOIA action, however, allegations related to
where the “100 mile” boundary begins are immaterial. These allegations are not
relevant to the issue of whether Defendants conducted a reasonable search and
whether any exemptions apply. Indeed, much of the first two-thirds of Plaintiffs’
complaint is devoted to background information regarding why Plaintiffs are
seeking the records at issue. The purpose behind Plaintiffs’ FOIA request is
irrelevant, as they are entitled to agency records regardless of the reason for their
search. See, e.g., Chiquita Brands Int’l Inc. v. S.E.C., 805 F.3d 289, 294 (D.C. Cir.
2015) (“Government agencies must generally release requested records without
regard to the identity or motive of the requestor.”).
Further, Plaintiffs’ attempt to require Defendants to identify where the “100
mile” boundary begins in its answer to the complaint circumvents FOIA, which
requires agencies to provide access to records, not answers to questions. See Lamb
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v. I.R.S., 871 F. Supp. 301, 304 (E.D. Mich. 1994) (“FOIA neither requires an
agency to answer questions disguised as a FOIA request, or to create documents or
opinions in response to an individual’s request for information.”); Anderson v.
U.S. Dep’t of Justice, 518 F. Supp. 2d 1, 10 (D.D.C. 2007) (“To the extent that
plaintiff’s FOIA requests are questions or requests for explanations of policies or
procedures, these are not proper FOIA requests.”). In this unique context,
requiring Defendants to answer allegations in Plaintiffs’ complaint that they would
not otherwise be required to answer, and that are not material to Plaintiffs’ FOIA
claim, would prejudice Defendants. Accordingly, the court will consider
paragraphs 3, 4, 5, 30, and 32 to be stricken from Plaintiffs’ complaint. See Fed. R.
Civ. P. 12(f) (“The court may [on its own] strike from a pleading . . . any
redundant, immaterial, impertinent, or scandalous matter.”); L & L Gold Assocs.,
Inc. v. Am. Cash for Gold, LLC, 2009 WL 1658108, at *2 (E.D. Mich. June 10,
2009) (“To prevail on a motion to strike, the movant must clearly show that the
challenged matter ‘has no bearing on the subject matter of the litigation and that its
inclusion will prejudice the defendant.’”); Wiggins v. Philip Morris, Inc., 853 F.
Supp. 457, 457 (D.D.C. 1994) (“Generally, motions to strike are disfavored by
federal courts. However, if allegations in a complaint are irrelevant and prejudicial
to the defendant, a motion to strike will be granted.”).
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ORDER
Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ motion to deem
certain allegations in the complaint admitted or to take a limited Fed. R. Civ. P.
30(b)(6) deposition is DENIED.
s/John Corbett O’Meara
United States District Judge
Date: June 8, 2017

I hereby certify that a copy of the foregoing document was served upon
counsel of record on this date, June 8, 2017, using the ECF system.

s/William Barkholz
Case Manager

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