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Gatore v. United States Department of Homeland Security

United States District Court, District of Columbia

April 6, 2016

RICA GATORE, et al., Plaintiffs,


REGGIE B. WALTON United States District Judge

The plaintiffs initiated this civil action against the defendant, the United States Department of Homeland Security, under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), seeking, inter alia, portions of documents termed “assessments to refer” that were prepared in connection with the individual plaintiffs’ asylum applications. See generally Complaint (“Compl.”) ¶¶ 1-4, 9-54. Plaintiff Catholic Charities submitted each of the individual plaintiffs’ FOIA requests on their behalf, id. ¶¶ 12, 37, 40, 43, 46, 49, 52, and also submitted its own FOIA request, id. ¶ 61. Currently pending before the Court are: (1) the Plaintiffs’ Motion for Summary Judgment as to Ninth Cause of Action (“Pls.’ Partial Summ. J. Mot.”); (2) the Plaintiffs’ Motion for Class Certification (“Class Cert. Mot.”); and (3) the Defendant’s Motion for Summary Judgment (“Def.’s Summ. J. Mot.”). Upon careful consideration of the parties’ submissions, the Court concludes that the defendant’s motion for summary judgment must be denied, the plaintiff’s partial motion for summary judgment must be denied, and the plaintiffs’ class certification motion shall be held in abeyance pending further proceedings consistent with this Memorandum Opinion and accompanying Order.[1]


The following facts are undisputed. Catholic Charities submitted FOIA requests to the defendant on behalf of each of the individual plaintiffs, who are each seeking asylum in the United States, requesting, inter alia, documents termed “assessments to refer” (“assessments”) that were prepared by an asylum officer after interviewing each plaintiff. Compl. ¶¶ 10, 12, 37, 40, 43, 46, 49, 52; Answer ¶¶ 10, 12; Eggleston Decl. ¶ 8. The asylum officer’s assessment is subject to supervisory approval. Def.’s Facts ¶ 5; Pls.’ Facts ¶ 5. Although the defendant disclosed some documents in response to the individual plaintiffs’ FOIA requests, Def.’s Facts ¶ 11; Pls.’ Facts ¶ 11, the defendant withheld in full the assessment prepared in each of the individual plaintiffs’ cases, see Def.’s Facts ¶ 12; Pls.’ Facts ¶ 12.

In February 2015, Catholic Charities also submitted a separate FOIA request on its own behalf, seeking “[d]ocuments relating to the processing, answering, and responding to FOIA requests for assessments of asylum officers.” Eggleston Decl. ¶ 8; see also Compl. ¶ 61. Upon receiving the request, the defendant informed Catholic Charities that “because of ‘unusual circumstances’ [the defendant] ‘may not be able to process [Catholic Charities’] request within the statutory time limit . . . .” Def.’s Facts ¶ 3 (second alteration in original); see Pls.’ Facts ¶ 3. Ultimately, the defendant issued its response to the FOIA request in October 2015. Pls.’ Suppl. Mem., Exhibit (“Ex.”) B, at 10[2] (letter dated October 19, 2015 issued in response to Catholic Charities’ February 2015 FOIA request).


The Court must grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When ruling on a motion for summary judgment, 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 the non-moving party’s favor and accept the non-moving party’s evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The non-moving party, however, cannot 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). Thus, “[c]onclusory allegations unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (quoting Exxon Corp. v. FTC, 663 F.2d 120, 126-27 (D.C. Cir. 1980)) (alteration in original). If the Court concludes that “the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof, ” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Moreover, “in ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” Shays v. FEC, 424 F.Supp.2d 100, 109 (D.D.C. 2006) (citation omitted).

FOIA cases are typically resolved on motions for summary judgment. Ortiz v. U.S. Dep’t of Justice, 67 F.Supp.3d 109, 116 (D.D.C. 2014); Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). “[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute’s exemptions.” Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001) (citation omitted). In a FOIA action, the agency has “[the] burden of demonstrating that the withheld documents [requested by the FOIA requester] are exempt from disclosure.” Boyd v. Dep’t of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007) (citation omitted). The Court will grant summary judgment to the government in a FOIA case only if the agency can prove “that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Friends of Blackwater v. Dep’t of Interior, 391 F.Supp.2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep’t of Treasury, 10 F.Supp.2d 3, 11 (D.D.C. 1998)). To satisfy its burden and prove that it has fully discharged its FOIA obligations, the agency typically submits a Vaughn index, which provides “a relatively detailed justification” for each withheld document, “specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of [the] withheld document to which they apply.” King v. Dep’t of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)); see also Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir. 1973) (setting forth requirements for agency’s description of documents withheld to allow a court to assess the agency’s claims). Thus, in a lawsuit brought to compel the production of documents under the FOIA, “an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates that each document that falls within the class requested either has been produced . . . or is wholly[, or partially, ] exempt [from disclosure].” Students Against Genocide, 257 F.3d at 833 (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).


A. The Defendant’s Summary Judgment Motion

The defendant relies on Exemption 5 of the FOIA to withhold the requested assessments. Def.’s Mem. at 7. Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). “Exemption 5 incorporates the privileges that the Government may claim when litigating against a private party, including the governmental attorney-client and attorney work product privileges, the presidential communications privilege, the state secrets privilege, and the deliberative process privilege.” Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015).

Here, the defendant invoked the deliberative process privilege to withhold disclosure of the assessments to the plaintiffs, Eggleston Decl. ¶ 16, which protects “documents ‘reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated, ’” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (quoting Stiftung v. V.E.B. Carl Ziess, 40 F.R.D. 318, 324 (D.D.C. 1966)). The plaintiffs’ do not appear to challenge the applicability of Exemption 5; instead, the dispute revolves around whether some portion of the assessments is reasonably segregable from the exempt portions of the documents. See Compl. ¶ 1 (“In this FOIA case, [the p]laintiffs seek the reasonably segregable portions of a document that may be used against them later in immigration court.”); Pls.’ Opp’n to Def.’s Summ. J. Mot. at 2 (arguing that the defendant’s motion should be denied because factual material in the assessments is reasonably segregable). Accordingly, for purposes of resolving the defendant’s motion, the Court shall assume the applicability of Exemption 5, and focus its analysis solely on the issue of segregability.

The FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). “[I]t has long been the rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Wilderness Soc’y v. U.S. Dep’t of Interior, 344 F.Supp.2d 1, 18 (D.D.C. 2004) (Walton, J.) (quoting Mead Data Cent., 566 F.2d at 260). The agency must provide “a detailed justification and not just conclusory statements to demonstrate that all reasonably segregable information has been released.” Valfells v. CIA, 717 F.Supp.2d 110, 120 (D.D.C. 2010). “Agencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material, ” which must be overcome by some “quantum of evidence” by the requester. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007).

The defendant represents that “[a]ll responsive documents . . . received a line-by-line examination in an effort to identify all reasonably segregable, unprivileged, nonexempt portions for release to the requester.” Eggleston Decl. ¶ 20. And, ...

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