Rapid Defense Network et al v. United States Immigration & Customs Enforcement
Filing
22
ORDER granting 20 Letter Motion to Adjourn Conference. MEMO ENDORSED: The initial pretrial conference currently scheduled for November 18, 2021 is adjourned sine die. The parties will submit a joint letter by December 1, 2021 to update the Court on the status of their settlement negotiations. SO ORDERED. (Signed by Judge Paul G. Gardephe on 11/17/2021) (mml)
Case 1:21-cv-06788-PGG Document 20 Filed 11/12/21 Page 1 of 3
22
11/17/21
U.S. Department of Justice
[Type text]
United States Attorney
Southern District of New York
VIA ECF
The Honorable Paul G. Gardephe
United States District Judge
United States District Court
40 Foley Square, Room 2204
New York, New York 10007
Re:
86 Chambers 2019
June 14, Street
MEMO ENDORSED:
New York, New York 10007
The initial pretrial conference currently
scheduled for 12, 2021 18, 2021 is adjourned
November November
sine die. The parties will submit a joint letter by
December 1, 2021 to update the Court on the
status of their settlement negotiations.
Rapid Defense Network, et al. v. U.S. Immigration and Customs Enforcement,
21 Civ. 6788 (PGG)
Dear Judge Gardephe:
The parties to the above-referenced Freedom of Information Act (“FOIA”) litigation
submit this letter, as required by the Court’s Order dated August 18, 2021 [Dkt. No. 11].
Counsel for defendant United States Immigration and Customs Enforcement) (“ICE” or the
“Government”) has conferred with counsel for plaintiffs Rapid Defense Network and
Transgender Law Center (“Plaintiffs”), who join in this letter. An initial pretrial conference for
this case is scheduled for 10:15 a.m. on November 18, 2021. The parties believe an initial
conference is not necessary at this time given the current case status as described below, and
respectfully request that the conference be adjourned without date. If the Court wishes to see the
parties for any reason, however, we are more than happy to attend.
1.
A Brief Description of the Case
This is an action under the FOIA, in which Plaintiffs seek records regarding the treatment
and conditions of confinement of civil immigration detainees who identify as transgender or
intersex.1 The first FOIA request at issue (“Request A”) seeks records about the numbers of
transgender or intersex detainees held in solitary confinement and the policies and procedures
implemented by ICE regarding those detainees. The second FOIA request at issue (“Request B”)
seeks records regarding sexual assaults suffered by immigration detainees in general and
transgender and intersex detainees in particular. Plaintiffs Rapid Defense Network and
Transgender Law Center are nonprofit organizations devoted to advocating for the rights of noncitizens and transgender and gender nonconforming people, respectively, and both intend to use
these records to inform the public regarding the treatment of transgender and intersex people in
civil immigration detention. See Compl. ¶¶ 2, 4-5 [Dkt. No. 1].
The Government asserts that it is exercising due diligence in processing Plaintiffs’ FOIA
requests, and that exceptional circumstances necessitated additional time for the respective ICE
components to process those requests. The Government further asserts that some of the
1
The parties respectfully refer the Court to Plaintiffs’ FOIA requests for a true and
complete statement of their contents. See ECF Nos. 1-1 (Request A), 1-3 (Request B).
Case 1:21-cv-06788-PGG Document 20 Filed 11/12/21 Page 2 of 3
22
11/17/21
Page 2
requested records, or portions thereof, may be exempt from disclosure under 5 U.S.C. § 552(b),
and that the Court lacks subject matter jurisdiction over any requests for relief that exceed the
relief authorized under FOIA.
2.
Contemplated Motions
After the Government has produced all responsive-non-exempt material in its possession,
the Government may file a motion for summary judgment to justify its searches and
withholdings, if any. Plaintiffs may also file a cross-motion for summary judgment challenging
the Government’s searches and the basis for its withholdings.
3.
Discovery
Because this is an action brought under FOIA, which is in essence review of an agency
action, at this time the parties do not anticipate taking discovery in this case, and understand
Local Civil Rule 16.1 to exempt them from the requirement of a mandatory scheduling order
contained in Fed. R. Civ. P. 16(b). Accordingly, the parties respectfully request to be relieved of
the obligation to submit a proposed Civil Case Management Plan pursuant to Fed. R. Civ. P.
26(f) and Your Honor’s Individual Practices in advance of the initial conference. Furthermore,
no scheduling order is needed because the parties expect that this case, like most FOIA cases,
will be resolved through settlement or on cross-motions for summary judgment. See Wood v.
F.B.I., 432 F.3d 78, 85 (2d Cir. 2005) (“‘[D]iscovery relating to the agency’s search and the
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.” (citation omitted)).
4.
Settlement Discussions and Prospect of Settlement
The parties have been in discussions regarding (1) Plaintiffs’ willingness to narrow the
scope of certain parts of their second FOIA request, and (2) the Government’s ability to estimate
processing, consultation, and production schedules. By December 1, 2021, the parties will
provide a status update to the Court containing the parties’ agreed-upon schedule for reviewing
and processing non-exempt portions of responsive records. The parties will attempt to reach
agreement on all deadlines, but will seek the Court’s assistance if there are any disputes
regarding deadlines.
Once all agreed-upon productions conclude, however, a final determination as to the
scope of any dispute between the parties will have to wait until the Government has made its
final responses to the requests and the parties have had an opportunity to meet and confer
regarding these responses, with the goal of attempting in good faith to consensually narrow, if
not eliminate, any areas of dispute.
We thank the Court for its consideration of this letter.
Case 1:21-cv-06788-PGG Document 20 Filed 11/12/21 Page 3 of 3
22
11/17/21
Page 3
Respectfully submitted,
DAMIAN WILLIAMS
United States Attorney
By:
cc:
via ECF
All Counsel of Record
/s/ Tomoko Onozawa
TOMOKO ONOZAWA
Assistant United States Attorney
86 Chambers Street, Third Floor
New York, New York 10007
Tel.: (212) 637-2721
E-mail: tomoko.onozawa@usdoj.gov
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?