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Gatore v. United States Department of Homeland Security

United States District Court, District of Columbia

August 24, 2018

RICA GATORE, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON UNITED STATES DISTRICT JUDGE

         Catholic 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, [1] the 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.

         I. BACKGROUND

         As 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.

         Thereafter, 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.[2] 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).

         On July 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 (citations omitted).

         In the 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 reasonably segregable:

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.

         On May 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] plaintiff[]s 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.

         On 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.

         A few 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).

         On 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 concluded that

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.

         On 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.

         II. STANDARDS OF REVIEW

         A. Summary Judgment

         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), 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, 323 (1986).

         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); 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 Fed.R.Civ.P. 56(a)).

         B. Class Certification

         Under 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)).

         III. ANALYSIS

         A. The Individual Plaintiffs' Requests for the Reasonably ...


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