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American Civil Liberties Union v. United States Dep't of Homeland Security

September 20, 2010


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


The plaintiff, the American Civil Liberties Union ("ACLU"), brings this action against the Department of Homeland Security (the "Department") and several of its component divisions -- the Office for Civil Rights and Civil Liberties ("Civil Rights Office"), the Office of Inspector General ("OIG"), and Immigration and Customs Enforcement ("ICE") -- pursuant to the Freedom of Information Act, 5 U.S.C. § 552 (2006) ("FOIA"), challenging the adequacy of the defendants' search for records responsive to its FOIA request and seeking to compel the release of several documents the defendants withheld in full or released only in part. Complaint ("Compl.") ¶ 1. This matter comes before the Court on the parties' cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. See Defendants' Motion for Summary Judgment ("Defs.' Mot."); Plaintiff's Cross-Motion for Partial Summary Judgment ("Pl.'s Mot."). For the reasons set forth below, the Court must grant in part and deny in part the parties' cross-motions.


The plaintiff represents that it "is a nationwide, non-profit and non-partisan organization with over 500,000 members," with its "primary functions includ[ing to] educat[e] the public on a broad array of issues affecting [the] protections and guarantees extended by the United States Constitution and engaging in various advocacy efforts related to the promotion of individual rights." Compl. ¶ 9. Through its National Prison Project, the plaintiff aims to "ensure constitutional conditions of confinement and strengthen prisoners' and detainees' rights through class action litigation, advocacy, and public education," and in furtherance of these efforts it has in the past acquired information concerning detainee confinement from the Department under the FOIA. Id. ¶ 10.

On June 27, 2007, the plaintiff submitted a FOIA request for the production of documents to the Department. Id. ¶ 2, which sought six categories of information regarding the deaths of individuals in the custody of ICE dating back to January 23, 2004. See Defendants' Statement of Material Facts as to Which There is No Genuine Issue ("Defs.' Stmt.") ¶ 1; Plaintiff's Opposition to Defendants' Statement of Material Facts as to Which There is No Genuine Dispute ("Pl.'s Opp'n to Defs.' Stmt.") ¶ 1. The first two categories of records sought by the plaintiff were those containing information about individuals who died while in ICE custody. See Defs.' Stmt. ¶ 1. The next three categories sought records relating to the defendants' recordkeeping when individuals died in the defendants' custody. Id. The last category pertained to records "generated in response to requests for information from the Washington Post and the New York Times about immigrant detainee medical care and deaths, and in reaction to those articles." Id.

Although the Department denied the plaintiff expedited processing of its request, the Department and its components undertook multiple searches for records in response to the request. Id. ¶ 22. As a result of its efforts, the Department made several disclosures to the plaintiff, producing redacted and unredacted records, Defs.' Stmt. ¶¶ 2-10, 14-17, 23-25, 27-28; Pl.'s Opp'n to Defs.' Stmt. ¶¶ 2-10, 14-17, 23-25, 27-28, and detailing the documents withheld in full in several Vaughn indices. See Defendants' Memorandum of Points and Authorities In Support of Defendants' Motion for Summary Judgment ("Defs.' Mem."), Declaration of Katherine Gallo ("Gallo Decl.") at Ex. 35 (indexing the OIG's assertions of exemptions); id., Second Declaration of Katherine R. Gallo ("2d Gallo Decl.") at Exs. D, E (same); id., Third Declaration of Katherine R. Gallo ("3d Gallo Decl.") at Ex. K (same); id., Declaration of Catrina Pavlik-Keenan ("Pavlik-Keenan Decl.") at Exs. 17-19 (indexing ICE's assertions of exemptions from various components of the Department, including its Citizenship and Immigration Services and Customs and Border Protection components, and documents referred to ICE by the OIG); id., Pavlik-Keenan Decl. at Four Unnumbered Exs. (same); id., Supplemental Declaration of Catrina Pavlik-Keenan ("Supp. Pavlik-Keenan Decl.") at Exs. 1-6; (same) id., Second Supplemental Declaration of Catrina Pavlik-Keenan ("2d Supp. Pavlik-Keenan Decl.") at Ex. 1 (same); Defendants' Memorandum in Opposition to Plaintiffs' Cross-Motion for Partial Summary Judgment ("Defs.' Opp'n"), Third Supplemental Declaration of Catrina Pavlik-Keenan ("3d Supp. Pavlik-Keenan Decl.") at Ex. 1 (same); id., Fourth Supplemental Declaration of Catrina Pavlik-Keenan ("4th Supp. Pavlik-Keenan Decl.") at Ex. 1 (same); Defs.' Mem., Declaration of James W. McNeely ("McNeely Decl.") at Ex. 1 (indexing the Civil Rights Office's assertions of exemptions); id., Supplemental Declaration of James W. McNeely in Response to Plaintiff's Letter of May 7, 2009 ("Supp. McNeely Decl."), Ex. (same). In particular, both the OIG and ICE made at least three separate releases of records to the plaintiff. Defs.' Mem., Gallo Decl. ¶ 13; see also Defs.' Stmt. ¶¶ 9-10, 24-25, 28; Defs' Mem., Pavlik-Keenan Decl. ¶ 12; id., Supp. Pavlik-Keenan Decl. ¶¶ 5-6, 9-106; id., 2d Supp. Pavlik-Keenan Decl. ¶¶ 4-37; Defs.' Opp'n, 3d Supp. Pavlik-Keenan Decl. ¶¶ 3-30; id., 4th Supp. Pavlik-Keenan Decl. ¶¶ 3-8; Defs.' Mem., Declaration of Timothy Moynihan ("Moynihan Decl."); id., Declaration of Sean E. Quick ("Quick Decl."); Defs.' Opp'n, Declaration of Mary F. Loiselle ("Loiselle Decl."). And the Civil Rights Office made at least two disclosures as well. Defs.' Mem., McNeely Decl. ¶¶ 13-14, see also Defs.' Stmt. ¶¶ 16-17.

Unsatisfied with the defendants' search methods and unpersuaded by the defendants' assertions of exemptions to disclosure of specific documents, the plaintiff brought this lawsuit to compel the defendants to conduct more thorough searches of their records and make greater disclosures with respect to responsive records that were either redacted and disclosure only in part or totally withheld. See generally Compl. The defendants move for summary judgment on the grounds that their searches were adequate and that their reliance on the several FOIA exemptions was proper. See Defs.' Mot. at 1. The plaintiff cross-moved for partial summary judgment on the grounds that the defendants' searches and disclosures were not in compliance with the requirement of the FOIA. Pl.'s Mot. at 1.


Under Rule 56, summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). When ruling on a Rule 56 motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw "all justifiable inferences" in favor of the non-moving party and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party cannot, however, rely on "mere allegations or denials," Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (internal quotation marks omitted), because "conclusory allegations unsupported by factual data will not create a triable issue of fact," Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal brackets and quotation marks omitted). If the Court concludes that "the nonmoving party has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The FOIA requires a federal agency to release all records responsive to a request for production, 5 U.S.C. § 552(a)(3)(A), unless such records falls within one of the well-defined exemptions listed in § 552(b), see 5. U.S.C. § 552(b). The Court is authorized under the FOIA "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). When a FOIA requester files a civil action, the agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied, 445 U.S. 927 (1980) (internal citation and quotation marks omitted); see Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (government has the burden of proving each claimed FOIA exemption). So long as the agency's search for records comports with the FOIA, the Court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations when they sufficiently describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).


A. Adequacy of the Defendants' Searches for Responsive Records

An agency that is responding to a FOIA request must make "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (citation and internal quotation marks omitted); see also Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (stating that "[an] agency must demonstrate that it has conducted a search reasonably calculated to uncover all relevant documents") (internal quotation marks omitted). While "an agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested," Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) (internal quotation marks omitted), the search "need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the [plaintiff's] specific request," Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986); see also id. at 953 (stating that "[i]t would be unreasonable to expect even the most exhaustive search to uncover every responsive file").

Thus, "[t]here is no requirement that an agency search every record system" in which responsive documents might conceivably be found. Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Rather, an agency must demonstrate the adequacy of its search by providing a "reasonably detailed affidavit, setting forth the search terms and type of search performed, and averring that all files likely to contain responsive materials . . . were searched." Id. "Once the agency has shown that its search was reasonable, the burden shifts to [the plaintiff] to rebut [the defendants'] evidence . . . either by contradicting the defendant's account of the search procedure or by raising evidence of the defendant's bad faith." Moore v. Aspin, 916 F. Supp. 32, 35-36 (D.D.C. 1996) (citing Miller v. U.S. Dep't of State, 779 F.2d 1378, 1383-84 (8th Cir. 1985)). Moreover, "[a]gency affidavits are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted).

The plaintiff challenges the adequacy of the OIG's and ICE's searches for responsive records, alleging that the defendants did not expend reasonable efforts necessary to satisfy their legal obligations to locate responsive records. Pl.'s Mem. at 7-17. The plaintiff argues that the defendants' lack of reasonable efforts is evidenced by the fact that the defendants' search did not produce known responsive records. Id. And because the defendants were more knowledgeable about the identities of detainees who died in ICE's custody, the plaintiff maintains that the defendants should have defined the scope of the plaintiff's request and narrowed the search criteria required to "identify" records related to "all of the detainees who died in custody . . . ." Id. at 8. The plaintiff opines that the inadequacy of the defendants' search is exemplified by the defendants' admission that the identities of additional detainees who purportedly died in the defendants' custody came to light after the defendants represent that their searches for responsive records concluded. Id. at 9-10. The plaintiff speculates that, with respect to ICE in particular, "there are likely other detainee deaths that have yet to be identified by DHS or ICE [given that the defendants' search initially only queried facilities that provided medical services] . . . and that, as a result, ICE's searches were inadequate" because it should have searched all of its facilities. Id. at 11. Moreover, the plaintiff maintains that ICE must conduct its search anew with respect to one detainee, Mr. Rodriguez-Torres, id. at 15., because although records produced by ICE reveal that Mr. Rodriguez-Torres was medically evaluated on December 25, 2006, ICE did not produce records pertaining to such an evaluation. Id. Finally, the plaintiff contends that ICE must conduct a new search with respect to its e-mail records, which according to the plaintiff, are "an obvious source of important records." Id. at 16. The plaintiff posits that ICE's failure produce such records ignores the scope of the plaintiff's request because: (1) ICE demonstrated its ability to search its e-mail systems "at an organizational level" for information regarding a specific individual, and (2) such a search would not be overly burdensome if more narrow search terms were used. Id. at 16-17.

With respect to the OIG, the plaintiff agues that because the OIG was in a better position than the plaintiff to identify detainees who died while in the defendants' custody, it was unreasonable for the OIG to limit its search to only the detainees identified by the plaintiff. Id. at 13-14. The plaintiff additionally asserts that each time an additional search became necessary, the OIG was obligated to search its records through the date it conducted the supplementary search, not the date of the plaintiff's initial 2007 request. Id. at 14. Furthermore, the plaintiff maintains that it would be a "simple matter" for the OGI to conduct another search for documents concerning the detainees subsequently identified by the plaintiff. Id.

Conversely, in support of their motion for summary judgment, the defendants rely upon several declarations to support their contention that their searches for records complied with the FOIA, making any further searches unnecessary. With respect to ICE's search, the defendants rely on the declarations of Catrina Pavlik-Keenan, Sean E. Quick, Timothy Moynihan, Marsha Davenport, and Mary F. Loiselle. See Defs.' Mem., Pavlik-Keenan Decl.; id., Supp. Pavlik-Keenan Decl.; id., 2d Supp. Pavlik-Keenan Decl.; Defs.' Opp'n, 3d Supp. Pavlik-Keenan Decl.; id., 4th Supp. Pavlik-Keenan Decl.; id., Defs.' Mem., Moynihan Decl.; id., Quick Decl.; Defs.' Opp'n, Declaration of Mary F. Loiselle ("Loiselle Decl."); id., Declaration of CAPT Marsha Davenport, M.D. ("Davenport Decl."). The defendants argue, in contrast to the plaintiff's assertion that ICE's search methods were inadequate, that ICE's multiple searches illustrate that it was committed to conducting a thorough overall effort to satisfy its FOIA obligations. Defs.' Mem. at 8-9. With respect to the OIG, the defendants rely on the declarations of Katherine R. Gallo and contend that after the OIG received the plaintiff's FOIA request, its approach to the search was enlightened and modified by subsequent communications with the plaintiff to clarify the nature of the request and refine the search terms to be used. Defs.' Opp'n at 3-4; Defs.' Mem., Gallo Decl. ¶ 12-13. Ultimately, the defendants represent that the OIG agreed to search for records pertaining to the death of 66 individuals whose names were provided by the plaintiff. Defs.' Opp'n at 4-5. The defendants maintain that regardless of the plaintiff's subjective beliefs, i.e., whether it was limited to the names of those 66 individuals, the plaintiff never expressed any objection when the OIG informed them that the OIG was conducting the search using only those 66 names as search terms. Id.

Upon review of the defendants' numerous detailed declarations, the Court is satisfied that they each undertook "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Baker & Hostetler, 473 F.3d at 318 (citation and internal quotation marks omitted). Each defendant's efforts are accounted for. The declarations of Catrina Pavlik-Keenan and others personally familiar with the searches for records responsive to the plaintiff's request set forth how ICE complied with the plaintiff's FOIA request. See generally Defs.' Mem., Pavlik-Keenan Decl.; id., Supp. Pavlik-Keenan Decl.; id., 2d Supp. Pavlik-Keenan Decl.; Defs.' Opp'n, 3d Supp. Pavlik- Keenan Decl.; id., 4th Supp. Pavlik-Keenan Decl.; see also Defs.' Mem., Moynihan Decl.; Defs.' Opp'n, Davenport Decl.; id., Loiselle Decl. Similarly, the declarations of Katherine Gallo, who was personally familiar with the OIG's search efforts, detail how the OIG searched for responsive records. See generally Defs.' Mem., Gallo Decl.; id., 2d Gallo Decl.; id., 3d Gallo Decl.. These declarations explain the nature of the searches conducted for responsive records by both ICE and the OIG, the procedures both divisions of the Department used, the manner in which responsive records were processed and reviewed to assess whether information was exempt from disclsoure, and the reasoning relied on for the exemptions claimed by ICE and the OIG with respect to the redacted and withheld records. Id., Pavlik-Keenan Decl. ¶ 5; id., Gallo Decl. ¶ 4.

With respect to ICE, the declarations detail how it conducted multiple searches for responsive records. Defs.' Opp'n at 13. The defendants maintain that it is Department policy to only search for records as of the date of a request. Id. at 14. Therefore, with respect to the plaintiff's requests, the defendants' state that ICE was only obligated to search for records relating to detainee deaths occurring between January 1, 2004, the initial date specified in the plaintiff's request, and July 30, 2007, the date when ICE first began its search. Id. Moreover, in follow-up communications with the plaintiff, ICE and the plaintiff agreed to refine the search based on a list of purported deceased detainees provided by the plaintiff. Id. The primary dispute between the parties about the thoroughness of the search appears to have arisen over the plaintiff's submission of a second list of purported deceased detainees on May 7, 2009. Id. at 7-8. ICE determined that these names fell outside of the scope of the plaintiff's request because the names provided were not of detainees who purportedly died in the defendants' custody between January 1, 2004, and July 30, 2007, and therefore ICE did not conduct a further search based on these additional names. Id. at 7-8, 14.

With respect to records pertaining to Mr. Rodriguez-Torres, the defendants' declarations explain that all records relevant to Mr. Rodriguez-Torres that were located through ICE's search were produced. To the extent that records were not produced, the defendants assert that the non-production resulted from the records not being in ICE's custody, likely because Mr. Rodriguez-Torres may have received medical care from a non-ICE operated facility. Id. at 15-16. Further, the defendants represent that conducting additional searches based on the plaintiff's mere speculations about the inadequacy of ICE's internal recordkeeping practices is not required. Id. at 15. In regards to the search of ICE's e-mail database, the defendants maintain that such a search is not appropriate given that ICE already conducted a limited search tailored to the information sought and a more extensive search would be overly burdensome to the defendants. Id. at 18-19; Defs.' Opp'n, Davenport Decl. ¶¶ 4-31.

Similarly, with respect to the OIG, the defendants argue that it conducted multiple searches to supplement its initial search because: (1) it subsequently learned of affiliated Department offices that potentially possessed responsive records, and (2) the plaintiff supplied the OIG with a list of specific detainee names which provided the OIG with more specific search terms for locating responsive records. Def.'s Opp'n at 4. Like ICE, the declarations submitted on behalf of the OIG detail how the OIG limited its search criteria to the first list of purported deceased detainees supplied by the plaintiff, but did not conduct additional searches based on the second later-submitted list of names because the OIG took the position that its initial searches were reasonable and sufficient given its view of the scope of the plaintiff's June 27, 2007 request. Id. at 7-9.

Because the defendants and the plaintiff negotiated the search terms subsequent to the plaintiff's initial request, the plaintiff's allegations do not suggest to the Court that the defendants improperly limited the scope of their searches.*fn1 The Department's policy of establishing a cutoff date for the scope of the search, which the defendants relied upon to limit the scope of their search and any necessary follow-up searches, see 6 C.F.R. § 5.4(a); Defs.' Opp'n at 8, does not appear under these circumstances to have been unreasonably utilized to improperly limit the scope of the plaintiff's request. See, e.g., Defenders of Wildlife v. U.S. Dep't of the Interior, 314 F. Supp. 2d 1, 12 n.10 (D.D.C. 2004) (holding that the agency's FOIA regulation establishing a date-of-search cut-off date meant that records created after that date were not covered by the FOIA request); Cf. Bonner v. U.S. Dep't of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) ("To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing.").

Moreover, given that at the time of the plaintiff's request the Department did not require its divisions to report the fact of a detainee death to the OIG, it cannot be, as the plaintiff posits, that the OIG was obligated to use its position within the Department to craft a more accurate list of search criteria, or detainee names, on the plaintiff's behalf. Pl.'s Mem. at 12-13. The FOIA "does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created or retained." Reporters Comm. for Freedom of the Press, 445 U.S. at 152 (emphasis added); see also Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1363 (D.C. Cir. 1983) (indicating that the information must be "within the agency's possession at the time of the request"). Nor were the defendants compelled to conduct new searches when it was discovered that the plaintiff's first list of detainee names was incomplete and the plaintiff submitted a second expanded list almost two years after its initial request. Accord Kowalczyk v. Dep't of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996) (indicating that an agency is "not obligated to look beyond the four corners of the request for leads to the location of responsive documents," although the agency must pursue both clear and certain leads); Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 27 (D.D.C. 2000) (quotation and citation omitted) ("[I]t is the requester's responsibility to frame requests with sufficient particularity to ensure that searches are not unreasonably burdensome . . . [because the] FOIA was not intended to reduce government agencies to full-time investigators on behalf of requesters.").

It must be remembered that an agency's obligation is to make a good faith search using methods reasonably anticipated to produce responsive information, Oglesby, 920 F.2d at 68, and an agency need not establish that it has searched far and wide to produce "all responsive records," Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 892 n. 7 (D.C. Cir. 1995) (emphasis in original). Therefore, the plaintiff's identification of any failures in the defendants' search -- i.e., responsive records that were not located and produced -- does not undermine the adequacy of the defendants' searches. Id. (indicating that the "failure to turn up [a specified] document does not alone render the search inadequate"). In other words, the law does not require the defendants to demonstrate that their searches were perfect. Id. Indeed, any inadequacy in the defendants' initial search efforts appears to have been cured to great extent by the follow-up searches. And contrary to the plaintiff's position that the subsequent searches underscore the defendants' failures, the Court finds that these additional efforts actually bolster its confidence in the defendants' attempt to retrieve responsive records in good faith. See Meeropol, 790 F.2d at 953 ("[T]he additional releases suggest a stronger, rather than a weaker, basis for accepting the integrity of the search.") (internal quotation omitted).

For these reasons, the Court rejects the plaintiff's argument that the defendants should not have relied on a cut-off date to limit the scope of their searches and therefore should be compelled to conduct additional searches based on the plaintiff's subsequent use of more accurate search terms, merely because the plaintiffs found that its initial list of detainee names was incomplete. Again, while an agency cannot utilize its cut-off date policy in an unbridled manner to shield itself from performing justified additional or broadened searches, see, e.g., Public Citizen v. Dep't of State, 276 F.3d 634, 643 (D.C. Cir. 2002) (finding that given the "large 'backlog' of FOIA requests" pending before the agency and given that the request was "not limited to a 'central records system'" it was appropriate to require "a date-of-search cut-off [date]" instead of the date-of-request cut-off date relied on by the agency), a government agency may, as the defendants did, reasonably rely and apply a cut-off date policy, see Tuchinsky v. Selective Serv. Sys., 418 F.2d 155, 158 (7th Cir. 1969) (indicating that the agency was not required to "'run what might ...

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