National Day Laborer Organizing Network et al v. United States Immigration and Customs Enforcement Agency et al

Filing 161

MEMORANDUM AND OPINION AND ORDER: re: 150 MOTION to Stay October 24, 2011 Opinion and Order Pending Appeal. filed by United States Immigration and Customs Enforcement Agency. For the reasons stated above, defendants' motion for a stay of my October 24, 2011 Opinion and Order pending appeal is granted. The Clerk of the Court is directed to close this motion [Docket No. 150]. (Signed by Judge Shira A. Scheindlin on 12/7/2011) (jfe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------X

NATIONAL DAY LABORER
ORGANIZING NETWORK, CENTER FOR
CONSTITUTIONAL RIGHTS, and
IMMIGRATION JUSTICE CLINIC OF
THE BENJAMIN N. CARDOZO SCHOOL
OF LAW,
Plaintiffs,

MEMORANDUM

OPINION AND ORDER

- against ­
10 Civ. 3488 (SAS)

UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT AGENCY,
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, EXECUTIVE
OFFICE FOR IMMIGRATION REVIEW,
FEDERAL BUREAU OF
INVESTIGATION, and OFFICE OF
LEGAL COUNSEL,
Defendants.

---------------------------------x
SHIRA A. SCHEINDLIN, U.S.D.J.:
On October 24, 2011, I ordered the United States Immigration and
Customs Enforcement Agency ("ICE") to release a memorandum dated October 2,
2010 (the "October 2 Memorandum,,).1 Plaintiffs sought production of that
document under the Freedom of Information Act ("FOIA") and I held that

See National Day Labor Org. Network V. United States Immigration
and Customs Enforcement Agency (HNDLON"), No. 10 Civ. 3488, 2011 WL
5056989 (S.D.N.Y. Oct. 24, 2011). Familiarity with that decision is assumed.

defendants had failed to establish that the Memorandum was exempt from
disclosure. I ordered defendants to release it, with some redactions, by November
1,2011.
Defendants then requested that I stay the disclosure order to give
defendants time to consider an appeal. On October 28, I granted a stay until
November 14.2 On November 14, defendants filed an appeal with the Second
Circuit and then sought a further stay pending the outcome of the appeal. On
November 21, plaintiffs filed a motion to expedite the appeal, which the Second
Circuit granted on November 30. 3
In deciding whether to grant a stay pending appeal, courts consider
"(1) whether the stay applicant has made a strong showing that he is likely to

succeed on the merits; (2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.,,4 ICE argues
that if its motion for a stay were denied and it were required

2

to

produce the

See Docket No. 146.

See Order, National Day Laborer Organizing Network v. United
States Immigration and Customs Enforcement Agency, No. 11 Civ. 4804 (Nov. 30,
2011) [Docket No. 37] ("Second Circuit Order").
Nken v. Holder, 556 U.S. 418, _ , 129 S. Ct. 1749, 1761 (2009)
(citation and quotation omitted).
4

2

Memorandum at issue, the document would enter the public record and its appeal
would be moot. s Mooting of appellate rights, it argues, is irreparable harm. It
points, among other cases, to National Council ofLa Raza v. Department of

Justice, where the Second Circuit stayed the district court's order to disclose a
document pursuant to FOIA pending appeaI. 6
Plaintiffs point out that a stay "is not a matter of right, even if
irreparable injury might otherwise result,,,7 that the defendants have failed to show
a likelihood of success on the merits, that the plaintiffs and the public will be
harmed substantially by a further delay in the production of the Memorandum, and
that the defendants will only be minimally harmed by a disclosure of the
document. s In sum, plaintiffs argue that a proper balancing of the four factors
favors rej ecting defendants' motion.
The harm to plaintiffs and the public from a stay pending the appeal

See Memorandum of Law in Support of Defendant United States
Immigration and Customs Enforcement's Motion for a Stay Pending Appeal of the
Court's October 24, 2011 Opinion and Order ("Def. Mem.") at 11.
See National Council ofLa Raza v. Dept. ofJustice, 411 F.3d 350,
355 n.3 (2d Cir. 2005).
6

Nken, 129 S. Ct. at 1757.
B

See Plaintiffs' Opposition to Defendant's Motion for Stay Pending

Appellate Review of the Court's October 24,2011 Opinion and Order ("PI.
Mem.").
3

has been mitigated because the Second Circuit granted plaintiffs' motion to
expedite the appeal and ordered that it shall be heard as early as the week of
February 12,2012, subject to the approval of the presiding judge. 9 Because that
harm has been minimized, and in order to preserve ICE's right to the appeal,
defendants' motion is granted.
In my October 24 order, I held that the October 2 Memorandum was
not exempt from production under FOIA based on the attorney-client privilege for
two independent reasons: First, because defendants failed to establish that
confidentiality of the document had been maintained, given the extensive evidence
produced by the plaintiffs showing that the information in the Memorandum
appeared in public documents and second, because ICE adopted the Memorandum
as agency policy.
ICE argues that it meets the standard for obtaining a stay in part
because on appeal it will be able to present a substantial case on the merits.lO To
support that argument, ICE takes issue with two aspects of my October 24 order,
both relating to the first reason for my decision. Defendants' argument merits brief
comment. I wrote that "ICE officials discussed the legal justification for making

9

See Second Circuit Order.

10

See Def. Mem. at 12.
4

Secure Communities mandatory with elected officials, immigrant advocates, and
other law enforcement agencies at various times during 2010 and 2011.,,11 For that
proposition, I cited, together with several other documents, an email from the
Washington D.C. Metropolitan Police Department that included a list of statutes
and executive orders that ICE and the Federal Bureau of Investigation had said
provided legal justification for making the Secure Communities program
mandatory.12 I mistakenly identified the date of that email as March 30, 2011
rather than March 30, 2010. I cited the email not for the proposition that the
October 2 Memorandum had been shared with the D.C. Metropolitan Police
Department, but simply for the more general point that the legal support for ICE's
decision, which also appeared in the Memorandum, was shared outside of the
agency. I wrote that
ICE apparently sent the Washington D.C. Metropolitan
Police Department a list of statutes and executive orders
that provided legal justification for the policy shift,
including section 534 of Title 28 of the United States Code
and section 14616 of Title 42 of the United States Code,
statutes that are discussed on pages four and six of the
October 2 Memorandum. 13

I!

NDLON, 2011 WL 5056989, at *7.

12

See id. at *7 n.75.

13

ld.

5

My typographical error does not affect that conclusion because the March 30, 2010
email provides evidence that the defendants publicly relied on the factual
statements and legal justifications that were later included in the October 2
Memorandum.
Defendants also argue that I misinterpreted the second Declaration of
Ryan Law, ICE's FOIA officer, dated August 23,2011, which describes the
agency's attempts to verify that the confidentiality of the October 2 Memorandum
had been maintained. According to that declaration, only senders and recipients
who were named on the face of a withheld document were asked whether they had
disseminated it outside of the Department of Homeland Security and its component
agencies. I understood Law's declaration to mean that ICE employees who had
received the Memorandum by email and were not identified as a recipient of the
Memorandum on the face of the Memorandum had not been queried about whether
they kept it confidential. Defendants have now submitted a third declaration from
Law explaining that because email recipients were named on the face of emails,
they were queried about the confidentiality of both the 'parent' emails and the
'child' attachments to those emails (i.e., the Memorandum).14 Plaintiffs object to
the consideration of this third Law declaration because it is new evidence that
See 11114111 Third Declaration of Ryan Law ("Third Law Decl.")
5-8; Def. Mem. at 21.
14

6

~~

cannot be considered in a motion to reconsider or on appeal. 15 Plaintiffs also point
out that, even if the new Law declaration is admitted and is given credence, it
shows that at least one recipient of the Memorandum was not queried regarding the
document's confidentiality, that no effort was made to determine if the document
was circulated in hardcopy, and that nobody was queried about whether he or she
distributed the Memorandum to individuals within the Department of Homeland
Security who did not have authority to act or speak on behalf of ICE regarding
Secure Communities. 16
I based my order on the fact that plaintiffs had produced extensive
evidence that the document's contents had been disclosed pUblicly:
Nearly every component of the October 2 Memorandum
appears in some public document or statement by the
defendants. This includes nearly all of the factual
background, specific references to and discussions of all of
the statutes upon which the Memorandum relies, and even
significant components ofthe legal discussion regarding the
strengths and weaknesses of the agency's position. 17
Given that evidence and the shortcomings of Law's declaration, I found that ICE
had failed to carry its burden of showing that attorney-client confidentiality had not

15

See PI. Mem. at 12-13.

16

See id. at 13.

17

NDLON, 2011 WL 5056989, at *8.
7

been waived. Law's declaration was based on three degrees of hearsay: recipients
of the Memorandum informed a point of contact in their departments, either orally
or in writing, that they had maintained the document's confidentiality; that point of
contact relayed the information to ICE's legal counsel; and the counsel then
relayed the information to Law. l8 Although ICE's verification process may have
been somewhat more thorough than I previously understood, I continue to believe
that it was insufficient to carry the defendants' burden, given the extensive
evidence brought forward by plaintiffs.
F or the reasons stated above, defendants' motion for a stay of my
October 24, 2011 Opinion and Order pending appeal is granted. The Clerk of the
Court is directed to close this motion [Docket No. 150].

New York, New York
December 7,2011

Dated:

18

See Third Law Decl.

~~

9-10.
8

- Appearances ­
For Plaintiffs:

Sonia Lin, Esq.
Peter L. Markowitz, Esq.
Immigration Justice Clinic
Benjamin N. Cardozo School of Law
55 Fifth Ave., Rm 1154
New York, New York 10003
(212) 790-02l3
Anthony J. Diana, Esq.

Therese Craparo, Esq.

Lisa R. Plush, Esq.

Jeremy D. Schildcrout, Esq.

Jarman D. Russell, Esq.

Bridget P. Kessler, Esq.

Mayer Brown LLP

1675 Broadway

New York, New York 10019

[phone]
Sunita Patel, Esq.
Scott Paltrowitz, Esq.
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, New York 10012
[phone]
For Defendants:

Joseph N. Cordaro
Christopher Connolly
Christopher B. Harwood
Assistant U.S. Attorneys
86 Chambers Street, 3rd Floor
New York, New York 10004
(212) 637-274512761
9