COGNIZANT TECHNOLOGY SOLUTIONS CORPORATION et al v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES et al
Filing
15
MEMORANDUM OPINION AND ORDER that the 1 Motion to Compel Discovery is DENIED. The Cross Motion to Quash in 17-6317 104 is GRANTED. The Clerk of Court shall hereby mark this matter CLOSED. Signed by Magistrate Judge Rukhsanah L. Singh on 5/8/2024. (jdg)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
COGNIZANT TECHNOLOGY SOLUTIONS
CORPORATION, et al.,
Civil Action No. 23-3386 (PGS) (RLS)
Plaintiffs/Movants,
MEMORANDUM OPINION
AND ORDER
v.
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, et al.,
Defendants/Respondents.
SINGH, United States Magistrate Judge.
PRESENTLY before the Court is a Motion by Cognizant Technology Solutions
Corporation and Cognizant Technology Solutions U.S. Corporation (collectively, “Cognizant”) to
compel the United States Department of Homeland Security (“DHS”) Office of the Inspector
General (“DHS-OIG”) and the United States Citizenship and Immigration Services (“USCIS”)
(collectively, the “Government”) to produce records responsive to requests and subpoenas served
pursuant to DHS’s administrative procedures. 1 On April 28, 2023, Cognizant initiated the abovecaptioned matter in the United States District Court for the District of Columbia; on June 6, 2023,
the District of Columbia transferred this matter to this Court because the underlying action is
pending here, at Franchitti v. Cognizant Tech. Solutions Corp., Civ. No. 17-6317 (D.N.J.) 2 (the
“Underlying Action”). 3 The Court considers the Motion together with briefing related to the
1
Civ. No. 23-3386, Doc. No. 1; see also Civ. No. 17-6317, Doc. Nos. 100-3, -4, and -7.
Citations herein reference the respective Civil Action Numbers for both the above-captioned
matter and the Underlying Action.
3
Civ. No. 23-3386, Doc. Nos. 1, 6.
2
1
subpoenas that had been filed in the Underlying Action, including the Agencies’ Cross-Motion to
Quash. 4 On March 11, 2024, the Court heard oral argument on the Motions. For the reasons set
forth below, and for good cause shown, the Court DENIES Cognizant’s Motion to Compel and
GRANTS the Government’s Cross-Motion to Quash.
I.
RELEVANT BACKGROUND AND PROCEDURAL HISTORY
As the facts are well-known to the parties and the Court, they are not set forth at length.
Instead, only those facts and procedural history related to the instant Motions are discussed herein.
A.
THE UNDERLYING ACTION
The above-captioned matter relates to a qui tam matter initiated on August 22, 2017 by
Relator Jean-Claude Franchitti (“Relator”), whom Cognizant had previously employed. In general
terms, Relator alleges that Cognizant fraudulently misused certain work visas to import and
employ foreign workers in violation of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733.5
The United States declined to intervene by way of Notice of Election publicly filed on July 17,
2020. 6 On January 27, 2021, Relator filed a First Amended Complaint (“FAC”) in response to
Cognizant’s motion to dismiss. 7 On February 17, 2021, Cognizant moved to dismiss the FAC.8
On August 17, 2021, the Court granted in part and denied in part Defendants’ motion to dismiss,
4
See Civ. No. 17-6317, Doc. Nos. 100, 104, 111, 124, and 134. On June 29, 2023, counsel for
Cognizant filed a letter on the docket in the Underlying Action requesting that the Court “consider
the authorities submitted in the . . . briefing on the D.N.J. Motion[] to Compel instead of the
authorities submitted in the briefing on the D.D.C. Motion[] to Compel.” Civ. No. 17-6317, Doc.
No. 166. The Agencies consented to Cognizant’s letter and the requests raised therein. The Court
thus considers the parties’ briefs filed in the Underlying Action to the extent that the arguments
raised therein bear on the instant Motion, including the Agencies’ Cross-Motion.
5
See generally Civ. No. 17-6317, Doc. No. 1.
6
See Civ. No. 17-6317, Doc. No. 4.
7
Civ. No. 17-6317, Doc. Nos. 16, 17.
8
Civ. No. 17-6317, Doc. No. 18.
2
sustaining Relator’s reverse false claim under 31 U.S.C. § 3729(a)(1)(G) while dismissing
Relator’s FCA claims under 31 U.S.C. § 3729(a)(1)(A) and (B). 9
On or about May 19, 2022, Cognizant served requests pursuant to United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951) (“Touhy”), together with a subpoena on USCIS, seeking the
production of certain documents (the “USCIS Subpoena”). 10 On August 19, 2022, Cognizant
served a subpoena and Touhy request on DHS-OIG, seeking the same documents (the “DHS-OIG
Subpoena”). 11
B.
THE USCIS SUBPOENA AND TOUHY REQUESTS
Through the USCIS Subpoena, Cognizant sought the following documents:
a) All requests under the Freedom of Information Act (“FOIA”) that USCIS has
received from August 22, 2007 to present related to the use of the H-1, L-1, or
B-1 visa programs by Cognizant, and any documents produced in response to
those FOIA requests;
b) All documents and communications related to analyses, audits, or reviews that
USCIS has performed related to Cognizant’s use of the L-1, B-1, or H-1B visa
programs, from August 22, 2007 to present;
c) All documents and communications related to analyses, reports, audits, or
reviews that USCIS has undertaken of other employer sponsors’ 12 use of the L1, B-1, or H-1B visa programs from August 22, 2007 to present; and
d) All documents and communications related to analyses, audits, or reviews of
employer sponsors’, including Cognizant’s, payment of visa application fees,
from August 22, 2007 to present; and
e) All communications to, or from, third parties about Cognizant’s use of
employment-based visa programs, including but not limited to communications
with Relator or Relator’s counsel or other agents. 13
9
See generally Civ. No. 17-6317, Doc. No. 32.
Civ. No. 17-6317, Doc. No. 100-3 at p. 2, 6.
11
Civ. No. 17-6317, Doc. No. 100-7 at p. 2, 6.
12
Cognizant identified the following as companies similarly situated: Tata Consultancy, Infosys,
Deloitte, Capgemini, Accenture, Wipro, and IBM (the “Similarly Situated Employers”). See Civ.
No. 17-6317, Doc. No. 100-5 at p. 10.
13
Civ. No. 23-3386, Doc. No. 1-3 at p. 6.
10
3
Following service of the USCIS Subpoena, USCIS issued a formal Touhy response letter
on June 16, 2022, in which it declined to produce many of the records requested. 14 Through that
letter, USCIS contended that 6 C.F.R. § 5.48 precluded it from responding to the requests.15
USCIS also noted that Cognizant did not provide authorization for it to disclose personal records
restricted from disclosure through its regulations and/or the Privacy Act of 1974, 5 U.S.C. § 552a
(the “Privacy Act”). 16
USCIS also asserted that various additional statutory or regulatory
restrictions “may” bar disclosure of certain responsive documents. 17
Additionally, USCIS
maintained that Cognizant failed to show that the sought after records could not be obtained
through alternative means, and that given USCIS’s non-party status, compliance with Cognizant’s
requests would be unduly burdensome. 18
On August 4, 2022, Cognizant met and conferred with USCIS, at which point Cognizant
agreed to “prioritize” certain of its document requests and to provide USCIS with search terms to
assist it with a search of its FOIA database. 19 Cognizant provided USCIS with a list of search
terms and USCIS components that Cognizant believed may have documents responsive to its
Touhy requests. 20 In light of USCIS’s concerns regarding documents that may be protected against
disclosure under the Privacy Act, Cognizant agreed to narrow its requests to exclude materials
14
See generally Civ. No. 17-6317, Doc. No. 104-5.
Civ. No. 17-6317, Doc. No. 104-5 at p. 3.
16
Civ. No. 17-6317, Doc. No. 104-5 at pp. 2-3 (citing 5 U.S.C. § 552a; 6 C.F.R. § 5.44).
17
Civ. No. 17-6317, Doc. No. 104-5 at p. 4.
18
Civ. No. 17-6317, Doc. No. 104-5 at p. 4.
19
Civ. No. 17-6317, Doc. No. 100-2 at p. 4.
20
Civ. No. 17-6317, Doc. No. 100-5 at pp. 10-11; Civ. No. 17-6317, Doc. No. 111-2 at pp. 2223.
15
4
“legitimately protected” under the Act. 21 Thereafter, USCIS searched its FOIA databases and
eventually produced records related to two FOIA requests. 22
C.
THE DHS-OIG SUBPOENA AND TOUHY REQUESTS
Cognizant initially served a subpoena upon DHS. 23 However, after follow-up, Cognizant
served an identical subpoena on DHS-OIG on August 19, 2022, which sought the same records as
those sought through the USCIS Subpoena. 24
On September 1, 2022, DHS-OIG responded to
the Subpoena. 25 With the exception of conducting a search of its FOIA database, the Agency
declined to search and produce any responsive records, contending that Cognizant failed to meet
its Touhy regulations. DHS-OIG argues that the requests sought irrelevant and overbroad material,
the production of which would be unduly burdensome. The component further advised that some
of the sought-after material may be available through other means and may be subject to an
assertion of privilege, such as the law enforcement privilege, attorney-client privilege, deliberative
process, or the executive privilege. DHS-OIG nonetheless informed Cognizant that it did not
locate responsive information within its FOIA Unit and directed Cognizant to three public reports
that may be relevant to its requests. 26 Following meet and confers, on October 13, 2022, DHSOIG sent Cognizant a follow-up letter regarding the Subpoena. In that letter, DHS-OIG reiterated
its objections but stated that the Office of Audits and Office of Inspections and Evaluations had
21
22
23
24
25
26
Civ. No. 17-6317, Doc. No. 111-2 at p. 7.
See Civ. No. 17-6317, Doc. No. 104-6.
See generally Civ. No. 17-6317, Doc. No. 100-4.
Civ. No. 17-6317, Doc. No. 100-7 at p. 2.
Civ. No. 17-6317, Doc. No. 100-9.
Civ. No. 17-6317, Doc. No. 100-9 at pp. 7-8.
5
conducted preliminary searches and referred Cognizant again to three publicly available reports
that may be responsive to its requests. 27
D.
THE MOTION TO COMPEL AND CROSS-MOTIONS TO QUASH
On December 23, 2022, Cognizant filed in the Underlying Action a Motion to Compel the
Government to comply with the respective subpoenas. 28 The Government opposed the Motion
and cross-moved to quash the Subpoenas. 29 On January 30, 2023, Cognizant replied in support of
its Motion and in opposition to the Cross-Motion. 30 The Government filed a Reply in support of
their Cross-Motion, in response to which Cognizant filed a Sur-Reply with leave of Court. 31 On
April 6, 2023, the Court denied without prejudice both Cognizant’s Motion and the Government’s
Cross-Motion as not properly before this Court pursuant to Federal Rule of Civil Procedure
37(a)(2) and 45(d)(3). 32
On April 28, 2023, Cognizant initiated the above-captioned matter through a Motion to
Compel Discovery filed in the District Court for the District of Columbia. 33 On the same day,
Cognizant filed a Consent Motion to Transfer this action to the District of New Jersey, citing the
pending Underlying Action. 34 On June 6, 2023, the District of Columbia transferred this action to
this Court. 35
27
Civ. No. 17-6317, Doc. No. 100-11.
Civ. No. 17-6317, Doc. No. 100.
29
Civ. No. 17-6317, Doc. No. 104.
30
Civ. No. 17-6317, Doc. No. 111.
31
See Civ. No. 17-6317, Doc. Nos. 124, 127, 134.
32
Civ. No. 17-6317, Doc. No. 150.
33
Civ. No. 23-3386, Doc. No. 1.
34
See generally Civ. No. 23-3386, Doc. No. 2.
35
Civ. No. 23-3386, Doc. No. 6.
28
6
Through its Motion, Cognizant seeks to compel responses to its requests for documents
and communications related to analyses, reports, audits, or reviews conducted by USCIS or DHSOIG of Cognizant’s or similar employers’ use of the L-1, B-1 or H-1B visa programs and payment
of visa application fees, as well as “documents and communications between the Agencies and
third parties, including Relator. . ., regarding Cognizant’s use of employment-based visa
programs.” 36 Cognizant argues that it satisfied DHS’s Touhy regulations, pointing out that it seeks
information relevant to the Public Disclosure Bar and the elements of Relator’s FCA claims.
Cognizant further maintains that the Government does not properly assert any privilege objections
here because it has not submitted any privilege log. Cognizant adds that any burdensome
arguments are a function of the nature of the claims asserted by Relator.
The Government opposes the Motion and seeks to quash the Subpoenas because they
contend that the Requests are overbroad, seeking irrelevant, protected, and/or burdensome
material. 37 With leave of Court to supplement the record, on October 18, 2023, the Agencies filed
Declarations in support of their opposition and Cross-Motion. 38 The Agencies proffered the
Declaration of M. David Arnold, the Director of the National Records Center for USCIS (the
“Arnold Declaration”), as well as the Declaration of Roy Jones, the FOIA Officer and Chief of the
Information Law and Disclosure Division (“ILD”) at DHS-OIG (the “Jones Declaration”). 39
In his Declaration, Mr. Arnold avers that USCIS does not possess documents responsive
to Cognizant’s requests for information regarding B-1 visas, as other governmental agencies
36
Civ. No. 17-6317, Doc. No. 100-1 at pp. 8-9.
See Civ. No. 17-6317, Doc. No. 104-1; see also Doc. No. 124 at pp. 11-12 (noting that just one
of the Similarly Situated Employers has submitted tens of thousands of H-1B visa petitions in 2022
and 2023 alone).
38
Civ. No. 17-6317, Doc. No. 177.
39
Civ. No. 17-6317, Doc. No. 177.
37
7
process those visa applications. 40 As to the L-1 and H-1B visa applications, Mr. Arnold proffers
that to search, cull, review and produce the documents (which are maintained largely in nonelectronic form), would cause USCIS to incur significant financial costs and disrupt its core
functions. Mr. Arnold states that there are approximately 3,195,682 files consisting of over one
billion pages that are potentially responsive to Cognizant’s Requests. The Arnold Declaration
further asserts that USCIS would potentially need to purchase $1.7 million worth of high-speed
document scanners, expend over 831,000 work hours, and employ over 500 contractors over a
twelve-month period to collect, review, and produce such a volume of material. 41 Mr. Arnold also
points out that the Agency would need to secure additional storage space to store and process the
information. 42 Mr. Arnold further avers that the other employers for which Cognizant seeks
information account for over ten percent of H-1B and L-1 visa petitions submitted since 2007, and
therefore Cognizant’s proffered search terms do not alleviate the burden on USCIS. 43
On behalf of DHS-OIG, Mr. Jones, in relevant part, similarly details the burdensome nature
of conducting a search in response to the outstanding topics in the DHS-OIG Subpoena. 44 Mr.
Jones avers a reasonable search would require 750 employees to individually search their hard
copy and electronic files over a fifteen-year period for any documents “related to” DHS-OIG’s
analyses, audits, or reviews. 45 Per Mr. Jones, those employees would then need to review the
documents for responsiveness, conduct a review for privileged or otherwise confidential
40
Civ. No. 17-6317, Doc. No. 177-1 at ¶ 5(a) n.1.
Civ. No. 17-6317, Doc. No. 177-1 at ¶ 14.
42
Civ. No. 17-6317, Doc. No. 177-1 at ¶ 16.
43
Civ. No. 17-6317, Doc. No. 177-1 at ¶ 15.
44
Civ. No. 17-6317, Doc. No. 177-2.
45
Civ. No. 17-6317, Doc. No. 177-2 at ¶ 12. Following the service of the Subpoenas at issue, the
Court limited the relevant time period to 2011 through 2020. See Civ. No. 17-6317, Doc. No. 147
at p. 10; Civ. No. 17-6317, Doc. No. 177-2 at ¶ 16.
41
8
information, and apply any necessary redactions, all of which would be subject to further levels of
review. 46 The Jones Declaration further explains the lack of specificity to the requests and
concerns arising under the Privacy Act and DHS privacy policies, which further compounds the
burden to DHS-OIG. 47 In addition, Mr. Jones states that responsive documents may include
documents protected by the deliberative process privilege and/or the law enforcement privilege.48
As a result, Mr. Jones asserts that responding to the DHS-OIG Subpoena would deplete the
resources of his component and detract from its primary official business. 49
Cognizant responded to the Government’s Declarations, re-emphasizing the government’s
interest in this FCA matter and Cognizant’s need for information to defend against Relator’s broad
claims. 50 Cognizant further points out it does not seek “any individual L-1, B-1, or H-1B filing”
but rather analyses, audits, or reviews of: (1) Cognizant’s or Similarly Situated Employers’ use of
the visa programs and (2) about payment of application fees. 51 According to Cognizant, such
clarification should minimize any undue burden.
II.
LEGAL STANDARDS
Generally, parties may seek discovery regarding any nonprivileged matter that is relevant
to a party’s claim or defense and that is “proportional to the needs of the case, considering . . . the
importance of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The information need
not be admissible at trial. Id. The scope of discovery is broad but not limitless, and discovery
46
47
48
49
50
51
Civ. No. 17-6317, Doc. No. 177-2 at ¶¶ 20-24.
Civ. No. 17-6317, Doc. No. 177-2.
Civ. No. 17-6317, Doc. No. 177-2 at ¶ 22.
Civ. No. 17-6317, Doc. No. 177-2 at ¶¶ 28-29.
Civ. No. 17-6317, Doc. No. 180.
Civ. No. 17-6317, Doc. No. 180 at p. 4.
9
cannot “be used as a general fishing expedition.” Burgess v. Galloway, Civ. No. 20-6744, 2021
WL 2661290, at *2 (D.N.J. Jan. 28, 2021) (citation and internal quotation marks omitted); see also
Fed. R. Civ. P. 26(b)(2)(C)(i).
A party may move to compel discovery from a non-party. Fed. R. Civ. P. 45(d)(2)(B)(i);
see also Fed. R. Civ. P. 37(a). A party seeking to compel records from a non-party federal
governmental agency may seek review either “through a separate action commenced pursuant to
the [APA], or alternatively, in the Court from which the subpoena was served pursuant to Rule
45.” Aiken v. Eady, Civ. No. 14-1811, 2016 WL 452135, at *5, *5 n.2 (D.N.J. Feb. 4, 2016)
(noting that while there is no binding authority on whether an ancillary action under the APA must
be filed or whether the issue may be considered as a discovery dispute in the underlying case,
“[t]he majority view seems to be to consider the dispute as a discovery matter in the underlying
litigation” (citing Johnson v. Folino, 528 F. Supp. 2d 548, 550-51 (E.D. Pa. 2007))). A district
court “has broad discretion regarding the enforcement of subpoenas.” Tattle Tale Portable Alarm
Sys., Inc. v. Calfee, Halter & Griswold, LLP, Civ. No. 11-7013, 2012 WL 1191214, at *3 (D.N.J.
Apr. 10, 2012) (citation omitted).
Here, Cognizant and the Government dispute whether the applicable standard of review
arises under Rule 45 of the Federal Rules of Civil Procedure or the APA. 52 The applicable standard
in this context remains unresolved; accordingly, the Court addresses both the APA and Rule 45.
See Mickendrow v. Watner, Civ. No. 20-007, 2021 WL 2821176, at *3 n.5, *5 (D.N.J. July 7,
2021) (after holding that agency’s decision was not arbitrary and capricious, declining to conduct
“the less deferential Rule 45 analysis” as “the result would be the same”); Johnson, 528 F. Supp.
52
The parties do not dispute that the Motions are properly presented to this Court without the need
to file an ancillary action under the APA.
10
at 551 (applying Rule 45 where a motion to compel would not be granted under either standard);
see also Harris v. McDonald, Civ. No. 21-1851, 2022 WL 3599394, at *2 (M.D. Pa. Aug. 23,
2022) (same); Fermaintt v. McWane, Inc., Civ. No. 06-5983, 2008 WL 11383665, at *4 (D.N.J.
Dec. 17, 2008).
A.
THE APA
A party contesting government activity under the APA must show that the agency action
was arbitrary and capricious. 5 U.S.C. § 706(2)(A). A court, therefore, reviewing an agency action
under the APA cannot substitute its own judgement but will narrowly view the action “based on a
consideration of the relevant factors and whether there has been a clear error of judgment.” Dep’t
of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. ---, ---, 140 S. Ct. 1891, 1905 (2020)
(internal citations and editing and quotation marks omitted). The party challenging an agency
action bears the burden of showing that the action was not rational, but rather was arbitrary and
capricious. See Am. Farm Bureau Fed’n v. E.P.A., 984 F. Supp. 2d 289, 309 (M.D. Pa. 2013),
aff’d, 792 F.3d 281 (3d Cir. 2015) (citing Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d
692, 704 (10th Cir. 2010); Taggart v. GMAC Mortg., LLC, Civ. No. 12-415, 2013 WL 4079655,
at *3 n.6 (E.D. Pa. Aug. 12, 2013)). As a result, a court will not set aside the Government’s
decisions as to the Subpoenas if the decisions were rational and based on the relevant applicable
factors. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
B.
FEDERAL RULE OF CIVIL PROCEDURE 45
Pursuant to the Federal Rules of Civil Procedure, the Court may compel a non-party to
produce documents or permit an inspection of records. See Fed. R. Civ. P. 34(c); Fed. R. Civ. P.
45(d), (e). The scope of discovery as defined by Rule 26 similarly applies to discovery sought via
a Rule 45 subpoena on a non-party. See in re Novo Nordisk Sec. Litig., 530 F. Supp. 3d 495, 501
11
(D.N.J. 2021); accord E.S. by and through Sanchez v. Elizabeth Bd. of Educ., Civ. No. 20-1027,
2022 WL 2106382, at *2 (D.N.J. June 10, 2022). Nevertheless, “a non-party to litigation is
afforded greater protection from discovery than a party.” Burgess, 2021 WL 2661290, at *3 (citing
Chazanow v. Sussex Bank, Civ. No. 11-1094, 2014 WL 2965697, at *2 (D.N.J. July 1, 2014)).
In certain instances, the Court has authority to modify a subpoena and “must quash or
modify a subpoena that . . . requires disclosure of privileged or other protected matter, if no
exception or wavier applies; or . . . subjects a person to undue burden.” Fed. R. Civ. P.
45(d)(3)(A)(iii)-(iv); see also Schmulovich v. 1161 Rt. 9 LLC, Civ. No. 07-597, 2007 WL 2362598,
at *2 (D.N.J. Aug. 15, 2007). An undue burden can exist when the subpoena is “unreasonable or
oppressive.” In re Lazardis, 865 F. Supp. 2d 521, 524 (D.N.J. 2011) (quoting Schmulovich, 2007
WL 2362598, at *4).
III.
DISCUSSION
As a threshold matter, the Government, while technically not a party to the Underlying
Action, is not disinterested. Indeed, in the FCA context, the United States has an interest in and
rights to this Underlying Action as a real party in interest. See United States ex rel. Polansky v.
Executive Health Resources, Inc., 599 U.S. 419, 430 (2023) (“Even as a non-party, the
Government retains an interest in the suit, and possesses specified rights.”); United States ex rel.
Eisenstein v. City of New York, 556 U.S. 928, 930 (2009). While the United States declined to
intervene, the United States may subsequently intervene, should it choose to do so. 31 U.S.C.
§ 3730(c)(3). Moreover, the Underlying Action asserts theories that relate to whether Cognizant
misused the visa programs processed through USCIS and DHS and its components. Simply,
USCIS and DHS-OIG are not disinterested parties in this context.
12
A.
DHS’S TOUHY REGULATIONS
DHS has promulgated regulations pursuant to 5 U.S.C. § 301 and United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951), to apply to requests for the production of its records. See 5
U.S.C. § 301; 6 C.F.R. §§ 5.41-5.49. Accordingly, to obtain records from DHS or its components,
a requestor must submit a written statement that summarizes the information sought and its
relevance to the proceeding. See 6 C.F.R. § 5.45(a). DHS and its components cannot produce
responsive records without first obtaining the appropriate internal approval. 6 C.F.R. § 5.44. In
determining whether it may produce records, DHS considers whether disclosure is precluded under
6 C.F.R. § 5.48, which identifies a variety of considerations. 6 C.F.R. § 5.48(a) (requiring
consideration, “among any other pertinent considerations,” of whether responding to a Touhy
request would: be unduly burdensome; violate applicable procedural rules governing the case;
violate substantive law governing privilege and confidentiality; contravene the public interest;
detract from the Department’s ability to conduct official business; expend public money for private
purposes; involve the Department “in controversial issues not related to its mission”; and upset the
Department’s impartial position in private litigation that lacks a substantial government interest).
B.
APPLICATION OF THE APA
When considering whether an agency decision was arbitrary and capricious, “a court is not
to substitute its judgment for that of the agency.” Dept. of Homeland Sec., 140 S. Ct. at 1905
(internal quotation marks and citation omitted); accord Motor Vehicle Mfrs., 463 U.S. at 43.
However, an agency must nevertheless base its decision on the factors available under the Touhy
regulations to withstand scrutiny. See id.
Here, Cognizant sufficiently complied with DHS’s Touhy requirements regarding the form
of its Touhy requirements, identifying the “nature and relevance” of the sought after materials with
13
sufficient specificity. See 6 C.F.R. § 5.45. DHS-OIG asserts that Cognizant failed to comply with
the requirement that a requesting party submit a written statement describing the “nature and
relevance” of the materials sought “with as much specificity as possible[.]” 53 6 C.F.R. § 5.45(a).
Yet, Cognizant has clarified what it seeks through the meet and confer process and cannot further
identify potential sources absent more information from the components. See Biear v. Attorney
General of the United States, 905 F.3d 151, 157 (3d Cir. 2018) (finding, in the FOIA context, that
it would be “counterintuitive” to require a requestor to identify specific units of an agency that
might have the sought-after records).
Further, Cognizant reiterates that it seeks documents and communications related to the
Agencies’ analyses, audits, or reviews of Cognizant or the Similarly Situated Employers’ use of
the L-1, B-1, and H-1B visa programs and such visa application fees. This information is relevant
to the claims and defenses in dispute, including the Public Disclosure Bar and materiality issues,
as such documents could show prior disclosure of Relator’s allegations and/or that the government
did not consider any alleged misrepresentations to have been material as defined under the FCA.
See 31 U.S.C. § 3730(e)(4)(A); see, e.g., United States ex rel. Carson v. Select Rehab., Inc., Civ.
No. 15-5708, 2023 WL 5339605, at *12-13 (E.D. Pa. Aug. 18, 2023) (discussing where allegations
against entities in an industry may or may not trigger the Public Disclosure Bar); see also United
States ex rel. Druding v. Care Alternatives, 81 F.4th 361, 367 (3d Cir. 2023) (citing Universal
Health Servs., Inc. v. United States ex rel. Escobar, 579 U.S. 176, 193 n.5, 194-95 (2016))
(discussing factors to consider under materiality requirement of the FCA). USCIS and DHS-OIG
53
Civ. No. 17-6317, Doc. No. 100-11 at p. 3.
14
were aware of such relevancy as proffered by Cognizant and thus their refusal to respond to the
Subpoenas on that basis was arbitrary and capricious. 54
In addition, the decision to refuse to respond to the requests on the bases that responses
may implicate the Privacy Act or some applicable privilege is similarly arbitrary and capricious.
Indeed, Cognizant made clear that it expected the Government to withhold any responsive records
covered by the Privacy Act. Any assertion of an applicable privilege is premature without the
identification of specific documents or context such that it could be determined that a privacy
concern or privilege actually attaches. See United States ex rel. Franchitti v. Cognizant Tech. Sol.
Corp., Civ. No. 17-6317, 2023 WL 2759075, at *7 (D.N.J. Apr. 3, 2023).
However, the real crux of DHS-OIG’s and USCIS’s refusals to respond to the requests
appear focused on their burden analysis. Indeed, the Arnold and Jones Declarations clearly detail
the extensive burden that would be imposed by Cognizant’s requests. Notwithstanding, Cognizant
contends that these Declarations are insufficient because they address the burden that would be
imposed by a request seeking individual visa applications, which is not what Cognizant seeks.
However, DHS-OIG’s Declaration does address the burdens imposed by searches as proposed by
Cognizant in the meet and confer process. During the meet and confers, Cognizant suggested that
DHS-OIG conduct searches for “Cognizant”, the Similarly Situated Employees, Relator, and his
attorneys. 55 The Jones Declaration addresses the burdens associated with such searches, proffering
that it would require numerous individual employees to conduct manual searches of their devices
and hard files to be followed by extensive review for Privacy Act compliance and privileged
redactions or withholdings.
54
55
See, e.g., Civ. No. 17-6317, Doc. No. 100-10.
Civ. No. 17-6317, Doc. No. 100-10 at pp. 6-7.
15
As to USCIS, the record is less clear as to what Cognizant proposed during the meet and
confer process. 56 Yet, it appears that Cognizant made the same proposal for search terms to
USCIS. The Arnold Declaration sufficiently articulates the burden that would be imposed by such
a search. Notably, while Cognizant argues that its requests are limited to documents and
communications related to analyses, audits, or reviews of its and others’ use of the visa programs,
its proposed search terms appear to go beyond that. It is not clear how Cognizant anticipated DHSOIG or USCIS to filter out any such individualized material other than what the components
already performed in searching their FOIA databases. In this context, DHS-OIG and USCIS
rationally determined that the extensive burdens that the requests would impose warranted a denial
under DHS’s Touhy regulations. 57
As such, based on this record, Cognizant failed to establish that USCIS or DHS-OIG acted
arbitrarily and capriciously in determining that DHS’s Touhy regulations precluded further
responses to the requests based on their consideration of the burdens that would be imposed in so
responding, even when viewed with the nature of the claims and defenses asserted in the
Underlying Action. 58 See 6 C.F.R. § 5.48(a); in re 3M Combat Arms Earplug Prod. Liab. Litig.,
56
See Civ. No. 17-6317, Doc. Nos. 100-2 at ¶ 13(a) (Declaration of Reid F. Rector, stating that
Cognizant’s counsel proposed search terms for the FOIA database and a prioritization of requests
during a teleconference between counsel); 100-10 at p. 7 (Letter from Cognizant to DHS-OIG,
representing that USCIS “already agreed to conduct searches like the ones” suggested to DHSOIG); 177-1 at ¶ 15 (Arnold Declaration, stating that Cognizant proposed prioritization of certain
employer records).
57
USCIS and DHS-OIG proffer burdensome arguments in the context of the time frame requested
in the Subpoenas, rather than the timeframe the Court has applied to discovery between the parties.
Because the Subpoenas were served before the Court’s decision as to the relevant time period in
the Underlying Action, it was not arbitrary and capricious for the Government to consider the
breadth of the requests as served.
58
It is not lost on the Court that Cognizant itself asserts undue burden arguments in response to
Relator’s request to Cognizant for individualized visa applications. Whether those specific
requests are too burdensome on Cognizant is a separate evaluation. Similarly, the Court
understands through correspondence of the parties that additional subpoenas and/or Touhy requests
16
No. 19-md-2885, 2021 WL 191680, at *3 (N.D. Fla. Jan. 19, 2021) (finding agency’s denial of
Touhy request was not arbitrary and capricious where agency sufficiently considered the undue
burden that would be imposed by the request).
Accordingly, the Court finds USCIS and DHS-OIG did not arbitrarily or capriciously deny
the Touhy requests.
C.
APPLICATION OF RULE 45
Having found that the agencies’ decisions here withstand scrutiny under the heightened
standard of the APA, the Court considers their responses to the Subpoenas under Rule 45 of the
Federal Rules of Civil Procedure.
As discussed above, USCIS and DHS-OIG sufficiently
established that responding to the Subpoenas would impose an undue burden. See Fed. R. Civ. P.
45(d)(3)(A). Such undue burden as set forth in the Arnold and Jones Declarations, even in the
context of the government’s interest in this case, the needs of the parties, as well as the
proportionality of the sought-after information, is “unreasonable or oppressive,” warranting the
quashing of the Subpoenas. See id.; in re Lazardis, 865 F. Supp. 2d at 524. While the Court, in
its discretion, may modify the Subpoenas to narrow the requests in a way that more clearly targets
a more narrow set of documents to address Cognizant’s needs for discovery in this matter in
balance with the burdens on an interested non-party, the Court declines to do so at this time, with
the understanding that Cognizant has served other Subpoenas to the Government, the topics of
which are not currently before the Court. 59
may have been served on USCIS, DHS, and/or other governmental agencies. Whatever burdens
may be imposed through those requests is not before the Court at this time.
59
The Court strongly encourages the parties and the Government to meet and confer in good faith
as to the scope of any such subpoenas, as there likely is an inflection point where the needs for
discovery in the Underlying Matter outweigh any purported burdens imposed. For example, it
appears that, without significant burden, DHS-OIG may be able to conduct searches for the “major
17
Accordingly, application of the Federal Rules of Civil Procedure leads the Court to the
same conclusion when applying the APA.
IV.
CONCLUSION
For the reasons set forth above, the Government’s decisions on the respective subpoenas
and Touhy requests were not arbitrary and capricious, and the proffer of undue burden by the
Government justifies an order quashing the Subpoenas pursuant to Rule 45 of the Federal Rules
of Civil Procedure.
Therefore, for good cause shown,
IT IS, THEREFORE, on this 8th day of May 2024, hereby
ORDERED that Cognizant’s Motion to Compel Discovery from the United States
Citizenship and Immigration Services and Department of Homeland Security Office of the
Inspector General (Dkt. No. 1) is hereby DENIED; and it is further
ORDERED that the Cross-Motion to Quash by the United States Citizenship and
Immigration Services and Department of Homeland Security Office of the Inspector General (Civ.
No. 17-6317, Doc. No. 104) is hereby GRANTED; and it is further
ORDERED that the Clerk of Court is hereby directed to TERMINATE the Motion
pending at Docket Entry No. 1; and it is further
contributors” of the public reports produced to Cognizant in response to the Subpoena at issue
here. See Civ. No. 17-6317, Doc. No. 177-2 at ¶ 16 n.1.
18
ORDERED that the Clerk of Court shall hereby mark this matter CLOSED.
SO ORDERED.
_______________________________
________________________________
RUKHSANAH L. SINGH
UNITED STATES MAGISTRATE JUDGE
19
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