Gelb v. United States Department of Homeland Security et al
OPINION re: 36 MOTION for Summary Judgment filed by United States Department of Homeland Security - Under Secretary for Management, United States Immigration and Customs Enforcement, United States Citizenship and Immigration Services, United States Department of Homeland Security, 34 LETTER MOTION for Extension of Time to File motion for summary judgment addressed to Judge Robert W. Sweet from AUSA Michael J. Byars dated March 30, 2017 filed by United States Department of Homeland Security - Under Secretary for Management, United States Immigration and Customs Enforcement, United States Citizenship and Immigration Services, United States Department of Homeland Security. Based on the facts and conclusions set forth above, the Defendants' motion for summary judgment is granted, and the Plaintiff's cross-motion for summary judgment is denied. (Signed by Judge Robert W. Sweet on 9/15/2017) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
15 Civ. 6495
- against OPINION
UNITED STATES DEPARTMENT OF HOMELAND
SECURITY, UNITED STATES DEPARTMENT OF
HOMELAND SECURITY-UNDER SECRETARY FOR
MANAGEMENT, UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES, and UNITED
STATES IMMIGRATION AND CUSTOMS
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A P P E A RA N C E S:
Attorney for Plaintiff
PAUL BATISTA, PC
New York, NY 10004
Paul Amandio Batista
Attorneys for Defendants
JOON H. KIM
U.S. Attorney's Office, SONY
86 Chambers Street, 3rct Floor
New York, NY 10007
Joon H. Kim
Defendants United States Department of Homeland
Security ("OH S" ), United States Department of Homeland Security
- Under Secretary for Management ("USM " ) , United States
Citizenship and Immigration Services ("USCIS"), and United
States Immigration and Customs Enforcement ("ICE")
(collectively , the "OHS defendants " or the "Defendants") have
moved pursuant to Fed. R. Civ. P. 56 for summary judgment in
this action brought by plaintiff Bernard Gelb ("Gelb " or the
"Plaintiff") pursuant to the Freedom of Information Act,
552 et seq.
(the "FOIA"). The Plaintiff has cross-moved
for summary judgment under the same Rule seeking the documents
he requested under the FOIA. The Defendants' motion is granted
and the Plaintiff's cross -motion is denied.
The complaint in the instant action was filed on
August 18, 2015 . Defendants' motion for summary judgment and
Plaintiff's cross-motion were heard and marked fully submitted
on July 12, 2017 .
The facts have been set forth in the Declaration of
Plaintiff Bernard Gelb ("Gelb Deel.") dated May 10, 2017,
Defendant's Declarations of Fernando Pineiro ("Pineiro Deel."),
Kevin Tyrrell ("Tyrrell Deel."), Jill Eggleston ("Eggleston
Deel."), and Michael Byars ("Byars Deel."), each of which are
dated March 30, 2017.
Plaintiff specializes in finding persons to whom the
Government owes money and helping these persons obtain the
return of their outstanding funds. Gelb Deel.
does this by identifying unclaimed monies in the possession of
the Government, pursuing FOIA requests to compel the production
of records relating to the unclaimed funds,
owners of these funds to inform them that they have outstanding
monies, and then acting on behalf of the owners to secure the
return o f these funds.
By letter dated November 9 , 2009, Plaintiff submitted
a FOIA request to all Defendants seeking: "a complete listing
of rightful owners ['] name[s], address[es], amount[s]
outstand ing, or iginal date[s] outstanding and account number[s ],
etc ., of all outstanding funds in the 'un claimed monies account
(20X6133) - regarding non-individuals, decease d individuals and
individuals - - concerning U.S. Department of Homeland
Security." Tyrrell Deel. i
4. This request was recei v ed by the
OHS Privacy Office ("OHS PRIV").
On November 25, 2009, the OHS PRIV reviewed
Plaintiff's request and determined that if any responsive
documents existed, they would be under the purview of the OHS
Management Office ("OHS/MGMT").
11. The FOIA request was
accordingly transferred to the FOIA Officer for OHS/MGMT, Mark
Dorgan, for review, and an acknowledgement letter was sent to
Plaintiff on November 26, 2009 stating such. Id. i
12 & Ex. B.
By letter dated November 9, 2009, Plaintiff submitted
an identical FOIA request to OHS Under Secretary for Management
13. On December 9, 2009, the USM sent an
acknowledgement letter to Plaintiff stating: "We conducted a
comprehensive search of files within the Office of the Chief
Financial Officer for records that would be responsive to your
request. Unfortunately, we were unable to locate or identify any
responsive records. At this time, there is no t a centralized
database of the information, from which the requested data could
be extracted. The information resides within the several
individual OHS cash management and accounting offices that are
responsible for cash collecti ons or undeposited checks. If you
seek to contact each of the individual offices , please contact
each of the OHS components separately." Id.
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