United States District Court, District of Columbia
B. WALTON UNITED STATES DISTRICT JUDGE
Charities and eight individual plaintiffs initiated this
putative class action against the defendant, the United
States Department of Homeland Security, under the Freedom of
Information Act (the “FOIA”), 5 U.S.C. § 552
(2012), seeking, inter alia, portions of documents
termed “assessments to refer”
(“assessments”) prepared by asylum officers in
connection with the individual plaintiffs' applications
for asylum in the United States. See generally
Amended Complaint (“Am. Compl.”). Currently
pending before the Court is the Defendant's Renewed
Motion for Summary Judgment (“Def.'s Summ. J.
Mot.”), and the Plaintiffs' Motion for Class
Certification (“Pls.' Class Cert. Mot.”).
Upon careful consideration of the parties' submissions,
Court concludes that it must deny both motions and sua
sponte grant summary judgment to the individual
plaintiffs on their requests for the reasonably segregable
portions of their assessments.
explained in the Court's prior opinions and orders in
this case, plaintiff Catholic Charities submitted FOIA
requests to the defendant on behalf of each of the eight
individual plaintiffs, requesting, inter alia, the
individual plaintiffs' assessments, see, e.g.,
Am. Compl. ¶¶ 10, 12; see also Def.'s
Facts ¶¶ 1-8, which “are documents prepared
by asylum officers” after interviewing an applicant for
asylum and that “contain[, inter alia, ] their
opinion about whether an applicant should receive asylum or,
instead, be referred to an immigration judge for removal
proceedings, ” Def.'s Facts ¶ 10; see
also Pls.' Reply to Def.'s Facts ¶ 10
(asserting that the assessments also “contain
facts”). Although the defendant initially disclosed
some documents in response to the individual plaintiffs'
FOIA requests, see Supp. Eggleston Decl. ¶ 12,
it withheld in full the assessments prepared in each of the
individual plaintiffs' cases, see Pls.'
Facts ¶¶ 20- 21; see also Supp. Eggleston
Decl. ¶¶ 11-12. Consequently, on March 31, 2015,
the plaintiffs filed this action, alleging that the defendant
had violated the FOIA by (1) refusing to release “the
first several paragraphs” of each assessment, see,
e.g., Am. Compl. ¶¶ 11, 35, which contain
information regarding the applicants' “biography,
basis of claim [for asylum], and testimony [presented to the
asylum officer]” (the “factual introductory
paragraphs”), Pls.' Summ. J. Opp'n at 2; and
(2) by having “a [blanket] policy and practice of never
providing any part of an [a]ssessment to a FOIA requester,
” Am. Compl. ¶ 14, and “not even attempting
to determine if there are reasonably segregable portions of
an [a]ssessment, ” id. ¶ 25.
the plaintiffs filed their motion for class certification,
which requests that the Court certify a class of “all
persons who, since March 30, 2009, have made, or will make
during the pendency of th[e] [plaintiffs'] lawsuit, a
FOIA request for the [a]ssessment of their asylum officer,
but were provided no portion of the [a]ssessment.”
Pls.' Class Cert. Mot. at 1. In this motion, the
plaintiffs represented that the putative class consisted of
at least forty-one members, including seven of the individual
plaintiffs then involved in this case, plus thirty-four other
asylum applicants on whose behalf Catholic Charities had
submitted a FOIA request for their assessments. See
Pls.' Class Cert. Mem. at 13; see also Pls.'
Class Cert. Mot., Exhibit (“Ex.”) 1 (Declaration
of David L. Cleveland (June 13, 2015) (“June 2015
Cleveland Decl.”)) at 2-3 (identifying fourteen asylum
applicants named in filings submitted in Bayala v.
Department of Homeland Security, Civ. Action No. 14-7
(D.D.C.)); id., Ex. 1 (June 2015 Cleveland Decl.) at
4- 23 (identifying twenty additional putative class members
and attaching copies of the FOIA requests submitted by
Catholic Charities on their behalf or letters from the
defendant in response to those requests). Subsequently, the
plaintiffs identified twenty additional class members.
See Pls.' April 2017 Report, Ex. 2 (Declaration
of David L. Cleveland About Seven More Class Members (Apr.
13, 2017) (“April 2017 Cleveland Decl.”)) at 2
(asserting that the plaintiffs' putative class consisted
of a total of sixty-one members as of April 13, 2017).
28, 2015, the defendant moved for summary judgment on the
individual plaintiffs' claims regarding their requests
for production of their assessments, asserting that it had
properly withheld the assessments in their entirety pursuant
to the deliberative process privilege of Exemption 5 of the
FOIA. See Def.'s 1st Summ. J. Mem. & Class
Cert. Opp'n at 7. In support of its position, the
defendant relied on a declaration from Jill A. Eggleston, the
Assistant Center Director in the FOIA and Privacy Act Unit of
the National Records Center of the United States Citizenship
and Immigration Services (“USCIS”), see
Eggleston Decl. ¶ 1, in which she concluded that
“[t]he factual portions of the assessment[s] . . .
cannot be severed or segregated from [their] context and thus
must remain exempt from disclosure . . . pursuant to
Exemption 5 of the FOIA, ” id. ¶ 17
Court's memorandum opinion issued on April 6, 2016, it
denied the defendant's initial summary judgment motion
due to the following concerns with the defendant's
position that factual portions of the assessments were not
First, the Eggleston Declaration discusses the segregability
of the assessments in a categorical fashion, as opposed to
providing a description of the assessments prepared in each
of the individual plaintiffs' cases. See
Eggleston Decl. ¶¶ 17, 19, 20 (discussing the
assessments in general). The Court is therefore unable to
conduct a de novo assessment of the agency's
determination of segregability as to each of the individual
plaintiffs' requests. 5 U.S.C. § 552(a)(4)(B) (upon
judicial review, “the court shall determine the matter
de novo . . . .”). Second, the defendant's
representation that it conducted a “line-by-line
examination” of each of the assessments to determine
whether any portions were reasonably segregable, Eggleston
Decl. ¶ 20, is seemingly undermined by what appears to
be the defendant's blanket policy not to release any
portion of an assessment, irrespective of its contents,
see Pls.' Suppl. Partial Summ. J. Mem., Ex. A at
1, 2 (indicating that assessments should be withheld in
full). . . .
[Additionally, t]he courts in Gosen v. U.S. Citizenship
and Immigration Services, 118 F.Supp.3d 232 (D.D.C.
2015), and Abtew v. U.S. Department of Homeland
Security, 47 F.Supp.3d 98 (D.D.C. 2014),
aff'd 808 F.3d 895 (D.C. Cir. 2015), which both
involved the same type of assessment at issue here, ordered
the defendant to provide the withheld assessments for in
camera review and thereafter concluded that some
portions were reasonably segregable. See Gosen, 118
F.Supp.3d at 243 (“The Court has reviewed the documents
in question and finds that there is at least some factual
material that may not expose the deliberative process. For
example, both assessments begin with factual introductory
information.”); Abtew, 47 F.Supp.3d at 114
(“After reviewing the Assessment in camera,
the Court concludes that the first six paragraphs simply
recite and summarize the facts that [the] plaintiff presented
to the [asylum officer] during his asylum application
interview. Those paragraphs do not include any analysis or
impressions, and they do not reflect the [asylum
officer's] deliberative process: although the document
does not purport to be a verbatim rendition of the interview,
and there may have been some streamlining involved, the
summary does not involve the sort of culling of facts from a
large universe that could be characterized as
deliberative.” (citing Ancient Coin
Collectors[ Guild v. U.S. Dep't of State],
641 F.3d [504, ] 513 [(D.C. Cir. 2011)]). The Court is
persuaded by Gosen and Abtew that there may
be some portion of the assessments at issue in this case that
contain factual information that may be reasonably segregated
from the whole.
Gatore v. U.S. Dep't of Homeland Sec., 177
F.Supp.3d 46, 52-53 (D.D.C. 2016) (Walton, J.) (Gatore
I). To afford the defendant an opportunity to address
these concerns, the Court denied its initial summary judgment
motion and ordered “the defendant to submit a revised
Vaughn index, affidavit, or declaration that
reassesses the issue of segregability as to each of the
individual plaintiffs' assessments, and provides an
adequate description of each assessment to support the
defendant's assertion that no portion may be
released.” Id. at 53. Additionally, the Court
held in abeyance the plaintiffs' class certification
motion “pending the defendant's compliance with the
Court's [O]rder . . . and the resolution of any renewed
motions for summary judgment.” Id. at 55.
27, 2016, in response to the Court's Order, the defendant
filed a supplemental declaration from Eggleston. See
generally Supp. Eggleston Decl. Eggleston represented
that each of the seven assessments then at issue in this case
“contain[ed] three sections[:] an introduction, an
analysis section[, ] and a conclusion / recommendation
section, ” and that “[t]he introduction section
is not a verbatim transcript of information provided by [the]
plaintiffs but reflects a selective recording of
information the USCIS asylum officer deemed particularly
pertinent to [each] plaintiff's request for asylum, and
therefore, focused specifically on select information.”
Id. ¶ 12. She further represented that each
assessment had received “two levels of review, ”
id. ¶ 11, including an initial review by
“USCIS staff, ” id. ¶ 5, and
“a second review in the administrative appeals process
by the USCIS Office of Chief Counsel, ” id.
¶ 10, and that following this review process, “a
determination was made that the factual portions of the
assessment[s] to refer c[ould ]not be severed or segregated
from [their] context[s] and thus must remain exempt from
disclosure, ” id. ¶ 11.
February 8, 2017, the plaintiffs filed an amended complaint,
see Am. Compl. at 1, which added a new cause of
action regarding an eighth individual plaintiff, Veronica
Carolina Lemus Miranda, who also sought production of
portions of her assessment, see id. ¶¶
72-74. Shortly thereafter, on March 14, 2017, the defendant
released limited portions of the assessments to the seven
individual plaintiffs who originally brought this case.
See Pls.' Facts ¶¶ 23-24; see
also Pls.' April 2017 Report, Ex. 1 (Release of
Information from [Seven] Assessments on March 14, 2017
(“March 2017 Production”)). Specifically, the
defendant released the first paragraph of each of the
assessments for plaintiffs Rica Gatore, Isam Al Timemy,
Aminata Ouedraogo, Herve Shyaka, and Charly Minth Ayessa, and
the first two paragraphs of each of the assessments for
plaintiffs Innocent Kabano Shyaka and Georgine Lumonika.
See Pls.' April 2017 Report, Ex. 1 (March 2017
Production) at 2-8.
months later, on June 9, 2017, the defendant filed its
renewed motion for summary judgment. See Def.'s
Summ. J. Mot. at 1. On that same date, the defendant also
released the first three paragraphs of the assessment for
plaintiff Lemus Miranda. See Pls.' Facts ¶
24; see also id., Ex. 1 (Declaration of David L.
Cleveland (June 15, 2017) (“June 2017 Cleveland
Decl.”)), Attachment (“Att.”) C (Portions
of Assessment of Ms. Lemus Miranda, Released on June 9,
2017). It simultaneously submitted a second and third
supplemental declaration from Eggleston, both which
acknowledged the defendant's decision to release
information from the eight individual plaintiffs'
assessments, in particular, “limited information
relating to the asylum applicant's biographical
information” contained in “the opening
paragraph(s).” 2d Supp. Eggleston Decl. ¶ 3;
see also 3d Supp. Eggleston Decl. ¶ 9
(representing that “[o]n further review, it was
determined that USCIS could release limited factual
information from the introductory portion” of the
assessment for plaintiff Lemus Miranda).
January 4, 2018, following its review of the three
supplemental Eggleston declarations and the parties'
additional submissions, the Court ordered the defendant to
submit the individual plaintiffs' assessments to the
Court for in camera review. See Gatore v. U.S.
Dep't of Homeland Sec., 292 F.Supp.3d 486, 495
(D.D.C. 2018) (Walton, J.) (Gatore II). The Court
although [it] [wa]s satisfied that the defendant ha[d]
reviewed each assessment individually in this case,
see Supp. Eggleston Decl. ¶ 12, and the
defendant ha[d] now released to the plaintiffs certain
“biographical” information contained in each
assessment, [ ] 2d Supp. Eggleston Decl. ¶ 3, . . . for
several reasons [ ] the supplemental declarations again
preclude[d] it from making a de novo determination
as to whether the defendant ha[d] fulfilled its obligation to
disclose all reasonably segregable material, see Gatore
[I], 177 F.Supp.3d at 53.
. . . [Specifically, i]t appears that the information the
defendant has disclosed represents only a fraction of the
factual material that the Abtew and Gosen
courts determined could be released. . . . And since this
Court issued its Memorandum Opinion [in Gatore I], a
third member of this Court has [ ] reviewed an assessment
in camera and [ ] concluded that the defendant could
reasonably segregate several introductory paragraphs,
including paragraphs that “recit[e] and summar[ize]
[the plaintiff's asylum] application.” Bayala[
v. U.S. Dep't of Homeland Sec.], 264 F.Supp.3d [165,
177 (D.D.C. 2017)]; see also id. at 176-77 . . .
(ordering the defendant to release “the first eight
paragraphs” of the assessment). Here, . . . the
defendant has released only the first one or two paragraphs
in each assessment, which contain a limited set of facts,
such as the plaintiff's age, citizenship, immigration
status, date and location of entry into the United States,
and information regarding the logistics of a plaintiff's
asylum interview. See Pls.' [April 2017] Report,
Ex. 1 (March [ ] 2017 [Production]). But see
Pls.' Facts, Ex. 1 ([June 2017] Cleveland Decl.), Att. C
(Portions of Assessment of Ms. Lemus Miranda, Released on
June 9, 2017) (releasing limited additional information
regarding the basis for plaintiff Lemus Miranda's asylum
application). The defendant has not released any paragraphs
summarizing the content of a plaintiff's testimony during
an asylum application interview or the factual content of a
plaintiff['s] asylum application supporting the
plaintiff's asylum claim.
The supplemental Eggleston declarations fail to adequately
explain why the defendant has not disclosed the additional
factual paragraphs that the Abtew, Gosen,
and Bayala courts determined could be released. . .
Id. at 491-92.
January 10, 2018, in accordance with the Court's January
4, 2018 Order, the defendant submitted the individual
plaintiffs' assessments for in camera review.
See Def.'s In Camera Notice at 1. The
Court having now examined the assessments, the parties'
pending motions are now ripe for review.
STANDARDS OF REVIEW
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), but must instead present
specific facts “such that a reasonable [factfinder]
could return a verdict for the non[-]moving party, ”
Grosdidier v. Broad. Bd. of Governors, Chairman, 709
F.3d 19, 23 (D.C. Cir. 2013) (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) (alteration in
original) (quoting Exxon Corp. v. Fed. Trade
Comm'n, 663 F.2d 120, 126-27 (D.C. Cir. 1980)). And,
if the Court concludes that “the non[-]moving 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,
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); see also Defs. 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). The Court
will grant summary judgment to the agency 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) (citation omitted).
“With respect to the applicability of exemptions . . .,
summary judgment may be based solely on information provided
in the agency's supporting declarations, ”
Nat'l Sec. Counselors v. CIA, 960 F.Supp.2d 101,
133 (D.D.C. 2013) (Nat'l Sec. Counselors III)
(citations omitted), so long as those declarations
“contain reasonable specificity of detail rather than
merely conclusory statements” and “are not called
into question by contradictory evidence in the record or by
evidence of agency bad faith, ” Judicial Watch,
Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir.
2013). “With respect to policy-or-practice claims, the
moving party must establish that ‘there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.'” Nat'l Sec.
Counselors III, 960 F.Supp.2d at 133 (quoting
Federal Rule of Civil Procedure 23, “‘[a] class
action may be maintained' if two conditions are met: The
suit must satisfy the criteria set forth in subdivision (a)
(i.e., numerosity, commonality, typicality, and
adequacy of representation), and it also must fit into one of
the three categories described in subdivision (b).”
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins.
Co., 559 U.S. 393, 398 (2010) (quoting Fed.R.Civ.P.
23(b)). Accordingly, “a class plaintiff has the burden
of showing that the requirements of Rule 23(a) are met and
that the class is maintainable pursuant to one of Rule
23(b)'s subdivisions.” Richards v. Delta Air
Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006). To
satisfy this burden, “a party seeking class
certification must affirmatively demonstrate his compliance
with the Rule-that is, he must be prepared to prove that
there are in fact sufficiently numerous parties,
common questions of law or fact, etc.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)
(“Rule 23 does not set forth a mere pleading
standard.”). And, “[i]n deciding whether class
certification is appropriate, a district court must [ ]
undertake a ‘rigorous analysis' to see that the
requirements of the Rule have been satisfied.”
R.I.L-R v. Johnson, 80 F.Supp.3d 164, 179 (D.D.C.
2015) (quoting Gen. Tel. Co. of SW v. Falcon, 457
U.S. 147, 161 (1982)).
The Individual Plaintiffs' Requests for the Reasonably