Kovac et al v. Wray et al
Filing
81
MEMORANDUM OPINION AND ORDER: The Court GRANTS the Government's 67 motion for leave to file portions of the administrative record under seal and for ex parte, in camera review only and GRANTS IN PART the plaintiffs' 73 motion for lim ited Administrative Procedure Act discovery; it ORDERS the Government to supplement the Administrative Record within 45 days of this Order. Further, the Court ORDERS the parties to submit motions for summary judgment within 60 days of the date the Government supplements the Administrative Record. (Ordered by Judge Brantley Starr on 3/10/2022) (mjr)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ADIS KOVAC; BASHAR ALJAME;
ABRAHAM SBYTI; SUHAIB
ALLABABIDI; and FADUMO
WARSAME,
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Plaintiffs,
v.
CHRISTOPHER WRAY; CHARLES H
KABLE; DEBORAH MOORE;
NICHOLAS RASMUSSEN; DAVID P
PEKOSKE; and KEVIN K
MCALEENAN,
Civil Action No. 3:18-CV-00110-X
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is the Government’s motion for leave to file portions of the
Administrative Record under seal and for ex parte, in camera review only [Doc. No.
67] and the plaintiffs’ motion for limited discovery [Doc No. 73]. After reviewing the
ex parte Administrative Record, and for the reasons explained below, the Court
GRANTS the Government’s motion for leave and GRANTS IN PART the plaintiffs’
motion for limited Administrative Procedure Act discovery.
I.
Motion to Seal
The Government contends that portions of the Administrative Record are
protected from disclosure by various sources of statutory and common law.
Specifically, the Government claims that portions of the Administrative Record
1
contain classified national security information, sensitive law enforcement
information,
and
information
designated
by
the
Transportation
Security
Administration as Sensitive Security Information pursuant to 49 U.S.C. § 114(r). It
claims that the information contained in the ex parte Administrative Record cannot
be filed without harm to the Government’s national security and law enforcement
interests and therefore moves to file the Administrative Record under seal and for ex
parte review only.
A.
Legal Standards
The existing protective order requires any party seeking to file documents
under seal to “brief the legal authorities indicating the risks of disclosure outweigh
the public’s right to know, and . . . explain that no other viable alternative to sealing
exists.” 1 The protective order also requires the facts in this motion to be verified by
a declaration from someone with personal knowledge, 2 which will assist the Court in
making fact findings that can withstand appellate scrutiny and overcome the strong
common law presumption in favor of public access. 3 There are two categories of
information at issue here: classified information and law enforcement sensitive
information.
1
Doc. No. 72 at 5; Doc. No. 61 at 2.
2
Doc. No. 72 at 5; Doc. No. 61 at 2–3.
3 Doc. No. 72 at 5; Doc. No. 61 at 3; see also United States v. Edwards, 823 F.2d 111, 119 (5th
Cir. 1987) (“[I]f closure of a presumptively open proceeding is to withstand a First Amendment
challenge, the court must make specific fact findings that substantial probability exists that an
interest of a higher value will be prejudiced and that no reasonable alternatives will adequately protect
that interest.”).
2
B.
Analysis
The plaintiffs apparently do not contest that classified information in the
Administrative Record is properly submitted for ex parte, in camera review only.
They do not refute the Government’s arguments on this point and instead focus their
argument on the sensitive law enforcement information. 4 The Court agrees with the
Government that the classified documents should be sealed and are properly
submitted for ex parte, in camera review only. 5 Therefore the Court GRANTS the
motion as to the classified material in the Administrative Record.
As to the law enforcement sensitive information, courts have recognized the
importance of protecting information that, although not classified, would harm
national security if made public. 6 In determining whether the law enforcement
privilege applies, “the court must balance the government’s interest in confidentiality
against the litigant’s need for the documents.” 7 To properly balance the competing
interests, the Court must apply the Frankenhauser factors. 8 However, the Court has
4
See Doc. No. 73 at 9–10 distinguishing cases on grounds that the documents were classified.
See generally Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988) (“[T]he protection of classified
information must be committed to the broad discretion of the agency responsible, and this must include
broad discretion to determine who may have access to it.”); United States v. El-Mezain, 664 F.3d 467,
522 (5th Cir. 2011), as revised (Dec. 27, 2011) (“No one seriously disputes that the Government
possesses an important privilege to withhold classified information, nor do we believe a contrary
assertion could be sustained.” (citing United States v. Yunis, 867 F.2d 617, 622 (D.C. Cir. 1989))); Sullo
& Bobbitt, P.L.L.C. v. Milner, 765 F.3d 388, 392 (5th Cir. 2014) (“Neither the First Amendment nor
the Fourteenth Amendment mandates a right of access to government information or sources of
information within the government’s control” (quoting Houchins v. KQED, Inc., 438 U.S. 1, 15 (1978))).
5
6 In re U.S. Dep’t of Homeland Sec., 459 F.3d 565, 569 (5th Cir. 2006) (“[I]n today’s times the
compelled production of government documents could impact highly sensitive matters relating to
national security.”).
7
Id. at 570 (cleaned up).
8
Id. (citing Frankenhauser v. Rizzo, 59 F.R.D. 339, 344 (E.D. Pa. Mar. 13, 1973)).
3
“considerable leeway in weighing the different factors,” 9 and may apply the test in a
“flexible manner.” 10 The factors are:
(1) the extent to which disclosure will thwart governmental processes by
discouraging citizens from giving the government information; (2) the
impact upon persons who have given information of having their
identities disclosed; (3) the degree to which governmental selfevaluation and consequent program improvement will be chilled by
disclosure; (4) whether the information sought is factual data or
evaluative summary; (5) whether the party seeking discovery is an
actual or potential defendant in any criminal proceeding either pending
or reasonably likely to follow from the incident in question; (6) whether
the police investigation has been completed; (7) whether any
interdepartmental disciplinary proceedings have arisen or may arise
from the investigation; (8) whether the plaintiff’s suit is non-frivolous
and brought in good faith; (9) whether the information sought is
available through other discovery or from other sources; (10) the
importance of the information sought to the plaintiff’s case. 11
The Government confirms that the Administrative Record contains two sets of
materials: (1) materials that the Government considered in determining whether the
plaintiffs met the standard for inclusion in the Terrorist Screening Database, and
(2) materials identifying and explaining the placement and redress procedures
applicable to the plaintiffs alleged Terrorist Screening Database placement. The
Government states that most of the information in the second category has been filed
publicly. The exceptions to this are the Watchlist Guidance and the Selectee List
Standard.
The plaintiffs contend that, applying the Frankenhauser factors, the law
enforcement privilege is overcome for both categories of information. Specifically,
9
Id. (quoting In re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988)).
10
Id.
11
Id.
4
they allege—although in a general manner—that only factors eight through ten favor
disclosure. They also contend that this information should not be protected because
there is no ongoing investigation.
The Government has provided a thorough
explanation of why the documents must be filed under seal and for in camera review
through its declaration of Jason V. Herring, Deputy Director for Operations of the
Terrorist Screening Center. 12
As to the first category of information, the Government argues that plaintiffspecific materials cannot be disclosed for two reasons: (1) the Government cannot
confirm or deny any plaintiff’s status without revealing privileged information which,
if released, would harm national security and (2) any underlying documents
justifying the reasons for including any plaintiff on the Terrorist Screening Database
(TSDB) would reflect the underlying investigative or intelligence-related interest in
each plaintiff. The Government’s declaration in support of its motion makes plain
why the plaintiffs’ status cannot be disclosed. 13 Indeed, other courts have recognized
this important fact. Recently, the Fourth Circuit explained:
[T]he government has a general policy of not disclosing TSDB status,
whether positive or negative, in response to inquiries. The reason for
this is apparent. Disclosure would disrupt and potentially destroy
counterterrorism investigations because terrorists could alter their
behavior, avoid detection, and destroy evidence. For example, if a
terrorist group knew that some of its operatives were not in the TSDB,
it could craft a plan sending those operatives through an airport or
border while helping other members avoid detection. For similar
reasons, the government will not publicly disclose how an individual
12
See Doc. No. 67-1.
13
See id. at 14–20.
5
came to be included. Doing so could alert terrorists to the tactics used
by the government to detect them. 14
The
same
rationale
justifies
not
disclosing
any
underlying
investigative
information. 15
As to the policy documents relevant to the procedural claim, 16 including
placement and redress procedures applicable to any alleged watchlist or database
placement, the Government states that most documents have been filed publicly,
either in whole or in part, except for the Watchlisting Guidance and the Selectee List.
The plaintiffs argue that the Frankenhauser factors don’t get to the real reason
that the Government does not want to disclose each category of documents. Instead,
they contend that keeping the information secret is inherent to the Government’s
concept of a secret, review-free, and extrajudicial watchlist.
But the Herring
Declaration explains that the Watchlisting Guidance “is a comprehensive manual
and a ‘roadmap’ to one of the United States’ critical national security programs in
regard to protecting the homeland” and thus “it is highly sensitive and the disclosure
of it would cause significant harm to law enforcement and national security
interests.” 17 And as the Government notes, this falls in line with protections for law
Elhady v. Kable, 993 F.3d 208, 215 (4th Cir. 2021); see also Wright v. Fed. Bureau of
Investigation, No. 3:20-CV-173-G-BN, 2020 WL 7345678, at *8 (N.D. Tex. Nov. 13, 2020) (Horan,
J.), report and recommendation adopted, No. 3:20-CV-0173-G-BN, 2020 WL 7344707 (N.D. Tex. Dec.
14, 2020) (Fish, J); Al-Kidd v. Gonzales, No. CV 05-093-EJL-MHW, 2007 WL 4391029, at *8 (D. Idaho
Dec. 10, 2007).
14
15 Elhady, 993 F.3d at 215 (“For similar reasons, the government will not publicly disclose how
an individual came to be included. Doing so could alert terrorists to the tactics used by the government
to detect them.”).
16
The Government maintains that no procedural claim exists.
17
Doc. No. 67-1 at 8.
6
enforcement information. 18 Further, even without an ongoing investigation, the law
enforcement privilege can still apply if, as Herring testified to here, “the ability of a
law enforcement agency to conduct future investigations may be seriously impaired
if certain information is revealed to the public.” 19 And finally, insofar as the plaintiffs
rely on the alleged guidance leaked to the Intercept in July 2014, 20 the Government
has neither confirmed nor denied the authenticity of the guidance, foreclosing any
argument of waiver. 21
In light of the above, and assuming the plaintiffs’ need for this information is
great, the Court finds that the public interest and the sensitivity of the information
weighs in favor of nondisclosure, outweighing plaintiffs’ need for the information. 22
The Court has reviewed the documents in the ex parte Administrative Record and
18 See Cox v. DOJ, 576 F.2d 1302, 1307 (8th Cir. 1978) (secrecy is justified if disclosure to the
public would “significantly impede the [law] enforcement process,” such as “when information is made
available which allows persons simultaneously to violate the law and to avoid detection.”); Egan, 484
U.S. at 527 (recognizing “the Government’s ‘compelling interest’ in withholding national security
information from unauthorized persons in the course of executive business”).
In re The City of New York, 607 F.3d 923, 944 (2d Cir. 2010) (quoting Nat’l Cong. for P.R.
Rights ex rel. Perez v. City of N.Y., 194 F.R.D. 88, 95 (S.D.N.Y.2000); see also United States v. Ketner,
566 F. Supp. 2d 568, 580–81 (W.D. Tex. 2008) (quoting Black v. Sheraton Corp. of Am., 564 F.2d 531,
546 (D.C. Cir. 1977)).
19
The plaintiffs contend that the Watchlisting Guidance should not be sealed because the core
guidance covering the watchlist was leaked to the Intercept in July 2014. They argue that the
Government’s argument for sealing information contained in the leaked document fails because it has
already been made public. But the Government has not confirmed or denied whether the leaked
document is authentic. It has also not told the plaintiffs whether the guidance has been updated since
then. Because the Government is not confirming the authenticity of the document leaked to the
Intercept, it should not be treated as public and should remain sealed.
20
See Fitzgibbon v. C.I.A., 911 F.2d 755, 765–66 (D.C. Cir. 1990); Alfred A. Knopf, Inc. v. Colby,
509 F.2d 1362, 1370 (4th Cir. 1975) (“The District Judge properly held that classified information
obtained by the CIA or the State Department was not in the public domain unless there had been
official disclosure of it.”).
21
22
See Al-Kidd, 2007 WL 4391029, at *8.
7
concludes that the Government has met its burden in this case and GRANTS the
motion to seal and for ex parte, in camera review of the Administrative Record.
The plaintiffs also request that the Court require the Government to produce
a privilege log. In its reply, the plaintiffs concede that the Government provided the
plaintiffs a privilege log as to plaintiffs’ own records. The Government has also
disclosed that the only policy-related document withheld from the plaintiffs is the
current Watchlisting Guidance. Therefore, the Court deems the plaintiffs’ request
for a privilege log moot. And for the reasons stated above, the Court similarly denies
the plaintiffs’ alternative request for an attorneys-eyes-only protective order.
II.
Motion for Limited Discovery
In its response to the Government’s motion, the plaintiffs move for limited
discovery on their remaining Administrative Procedure Act claims. The Court will
construe the plaintiffs’ response as a separate motion for limited Administrative
Procedure Act discovery.
A. Legal Standards
As a general rule, “[j]udicial review of agency action is . . . limited to an
examination of the agency record.” 23 There are limited exceptions to this general
rule, but the Fifth Circuit has held that “[s]upplementation of the administrative
record is not allowed unless the moving party demonstrates ‘unusual circumstances
23
Baker v. Bell, 630 F.2d 1046, 1051 (5th Cir. 1980).
8
justifying a departure’ from the general presumption that review is limited to the
record compiled by the agency.” 24 The Court may order supplementation when:
(1) the agency deliberately or negligently excluded documents that may
have been adverse to its decision, . . .
(2) the district court needed to supplement the record with “background
information” in order to determine whether the agency considered
all of the relevant factors, or
(3) the agency failed to explain administrative action so as to frustrate
judicial review. 25
District courts in the Fifth Circuit have also recognized other exceptions, consistent
with the three broad Medina categories. 26 These exceptions include:
1. When agency action is not adequately explained in the record before
the court;
2. When the agency failed to consider factors which are relevant to its
final decision;
3. When an agency considered evidence which it failed to include in the
record;
4. When a case is so complex that a court needs more evidence to enable
it to understand the issues clearly;
5. In cases where evidence arising after the agency action shows
whether the decision was correct or not;
6. In cases where agencies are sued for a failure to take action;
7. In cases arising under NEPA; and
8. In cases where relief is at issue, especially at the preliminary
injunction stage. 27
Medina Cnty. Env’t Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010)
(quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)).
24
25
Id. (alteration in original) (quoting Am. Wildlands, 530 F.3d at 1002).
Texas v. Biden, No. 2:21-CV-067-Z, 2021 WL 4552547, at *2 (N.D. Tex. July 19, 2021)
(Kacsmaryk, J.) (“District courts in this circuit routinely allow extra record evidence to be introduced
under the following ‘Davis Mountains’ circumstances.”).
26
27
Id. (cleaned up).
9
B.
Analysis
The plaintiffs seek in discovery “the record that was before the agency when
they made the important decisions being challenged,” the watchlist guidance,
documents explaining how the Government came to its decisions as to developing
such standards, as well as statistical information the plaintiffs believe will
numerically demonstrate that the watchlist is arbitrary and capricious.
The plaintiffs focus on factors 1–4. They contend that the Administrative
Record is incomplete because it does not include “a full or even adequate explanation
of how the Government came to its decisions as to developing the watchlisting
standards and its consequences.” 28 In response, the Government confirmed that the
Watchlisting Guidance is included in the Administrative Record. The Government
states that the plaintiffs also “have possession of the full set of procedural documents
pertaining to TSC’s placement and redress procedures.” However, the Government
argues that it cannot provide the plaintiffs with the documents explaining how the
Government developed the watchlisting standards because they are deliberative
materials, excluded from the administrative record as considered by the court. The
Court agrees. “[A]bsent a showing of bad faith or improper behavior,” 29 “deliberative
28
Doc. No. 73 at 12.
29
Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019).
10
materials are generally excluded from the administrative record as considered by the
court.” 30
The plaintiffs also argue that the Government acted in bad faith. 31 They argue
that the Administrative Record did not include the materials before the agency at all
relative timeframes. But this is contradicted by the Government’s certification under
oath that the record contains the watchlisting procedures for the periods relevant to
this action. 32 The plaintiffs’ other evidence of bad faith repeats their complaints
about the watchlist itself. The plaintiffs have not met their burden of proving that
the Government acted in bad faith; therefore, the Court denies their request for
discovery on this ground.
However, as to materials related to plaintiffs’ procedural Administrative
Procedure Act claim, the Government bases its argument on its assumption that only
plaintiffs’ substantive Administrative Procedure Act claim, and not its procedural
Administrative Procedure Act claim survives. This Court has already agreed with
the plaintiffs that the “Administrative Procedure Act claims and the constitutional
claims are isolated, independent claims.” 33 The Court also found that the plaintiffs’
United States v. Colliot, No. AU-16-CA-01281-SS, 2017 WL 6348129, at *3 n.4 (W.D. Tex.
Dec. 15, 2017) (citing Tafas v. Dudas, 530 F. Supp. 2d 786, 794–95 (E.D. Va. 2008) (“A complete
administrative record . . . does not include privileged materials, such as documents that fall within the
deliberative process privilege, attorney-client privilege, and work product privilege.”)); see also San
Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26, 44–45 (D.C. Cir. 1986) (en banc).
30
31 The plaintiffs cite City of Dallas v. Hall, 07-CV-60, 2007 WL 3257188, at *5 (N.D. Tex. Oct.
29, 2007) (Solis, J.), which lists bad faith as a potential exception.
32
Doc. No. 66-1.
33 Kovac v. Wray, No. 3:18-CV-00110-X, 2020 WL 6545913, at *4 (N.D. Tex. Nov. 6, 2020)
(Starr, J.).
11
Administrative Procedure Act claims would require further factual development. 34
The Court declines to revisit its previous ruling here. The Court recognizes that the
Government has already provided materials relevant to the plaintiffs’ Administrative
Procedure Act claims, but to the extent that the Government has withheld materials
from the Administrative Record pertaining to the plaintiffs’ “procedural”
Administrative Procedure Act claim, the Court ORDERS the Government to
supplement the Administrative Record within 45 days of this Order.
III. Conclusion
For the foregoing reasons, the Court GRANTS the Government’s motion for
leave to file portions of the administrative record under seal and for ex parte, in
camera review only and GRANTS IN PART the plaintiffs’ motion for limited
Administrative Procedure Act discovery; it ORDERS the Government to supplement
the Administrative Record within 45 days of this Order.
Further, the Court
ORDERS the parties to submit motions for summary judgment within 60 days of the
date the Government supplements the Administrative Record.
IT IS SO ORDERED this 10th day of March, 2022.
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE
34
Id. at *5.
12
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