Documented v. Dep't of Homeland Sec.

1

DOCUMENTED, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, Defendant.

No. 1:21-cv-3142-RCL

United States District Court, District of Columbia

November 1, 2024

MEMORANDUM ORDER

Royce C. Lamberth, United States District Judge.

Before the Court in this Freedom of Information Act (“FOIA”) dispute is the Department of Homeland Security's (“DHS”) Motion [ECF No. 39] for Reconsideration of the Court's Order [ECF No. 36] of September 20, 2024. For the reasons contained herein, the Motion is DENIED.

I. Background

In this FOIA dispute, the plaintiff, a non-profit focused on immigration news and policy, sought disclosure of certain records by DHS, most of which related to the Department's consideration of various countries for Temporary Protected Status pursuant to 8 U.S.C. § 1254a. See generally Documented v. Dep't of Homeland Sec., No 21-cv-3142-RCL, 2024 WL 4253130, at *1-2 (D.D.C. Sept. 20 2024). In response to cross-motions for summary judgment, this Court on September 20, 2024 ordered DHS to do two things. First, with respect to a document referred to throughout this litigation as the “Duke Honduras Memo,” the Court held that certain redacted content in that memorandum was not exempt from disclosure under FOIA, whereas other content in that same memorandum was properly withheld. Accordingly, the Court ordered DHS to either produce a version of that record with the non-exempt material unredacted, or else file a supplemental affidavit explaining why the non-exempt material in that record is not reasonably segregable from the exempt material. Id. at *5-7. Second, the Court ordered DHS to disclose in full a document called the “Somalia TPS Memo,” because DHS had failed to articulate, with reasonable specificity, a foreseeable harm that would likely result from its disclosure. Id. at *7-9.

On October 18, 2024, DHS submitted a Motion for Reconsideration of the Court's Order. Mot. for Reconsideration, ECF No. 39. DHS's Motion does not request reconsideration of the Court's Order with respect to the Duke Honduras Memo. To the contrary, DHS's Motion demonstrates that the agency has complied in full as to that document: it has produced a new version of the Duke Honduras Memo, in which the non-exempt material (concerning the Secretary's consultations with other Executive Branch stakeholders) is disclosed in full and the exempt material (concerning the Secretary's future plans for engagement with the Honduran government) remains redacted. See Duke Honduras Memo 1, Mot. for Reconsideration Ex. A, ECF No. 39-2. DHS also filed a supplemental affidavit averring that the remaining redacted portion of the Duke Honduras Memo contains no reasonably segregable non-exempt material and that disclosure of this portion would hamper the Secretary's ability to provide direction to DHS leadership. See 3d Pavlik-Keenan Decl. ¶¶ 9-10, Mot. for Reconsideration Attach. 1, ECF No. 39-1. DHS's avowal that the remaining redacted portion contains no reasonably segregable nonexempt material is entitled to a presumption of compliance with FOIA's segregability requirement. See Boyd v. Crim. Div. of U.S. Dep't of Just., 475 F.3d 381, 391 (D.C. Cir. 2007). And the possibility of chilling candid intra-agency discussion by disclosing potentially sensitive discussions of future plans with foreign government partners is certainly a credible threat. Accordingly, the Court has no trouble determining that DHS has satisfied its obligations with respect to the Duke Honduras Memo.

However, DHS's Motion urges the Court to reconsider its determination that the Somalia TPS Memo should be disclosed. DHS argues that the Court committed a “clear error of fact” when it issued its Opinion and Order by failing to give the agency's declarations fulsome consideration. See Mot. for Reconsideration 7-10. In the alternative, the agency asks the Court for a “second chance” to justify its withholdings, and to that end submits a supplementary affidavit containing additional details as to the expected harm that would transpire if the Somalia TPS Memo were disclosed. Id. at 10-14; see 3d Pavlik-Keenan Decl. ¶¶ 11-14. For the reasons that follow, neither argument is persuasive.

II. Legal Standard

“[D]istrict courts retain ‘broad discretion to grant or deny a motion for reconsideration,'” and will grant such a motion only if, in their discretion, they find “that ‘justice [so] requires.'” Cobell v. Norton, 355 F.Supp.2d 531, 539 (D.D.C. 2005) (Lamberth, J.) (first quoting Cobell v. Norton, 226 F.Supp.2d 175, 177 (D.D.C. 2002), then quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)). However, “[m]otions for reconsideration are disfavored,” Wright v. FBI, 598 F.Supp.2d 76, 77 (D.D.C. 2009) (quotations omitted), and in the interest of judicial efficiency and finality, they generally “may not be used to ‘relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.'” 2910 Ga. Ave. LLC v. Dist. of Columbia, 59 F.Supp.3d 48, 49 (D.D.C. 2014) (quoting Jung v. Ass'n. of Am. Med. Colls., 226 F.R.D. 7, 9 (D.D.C. 2005)). “[T]he moving party has the burden to demonstrate ‘that reconsideration is appropriate.'” United States v. All Assets Held at Bank Julius, 502 F.Supp.3d 91, 95 (D.D.C. 2020) (quoting FBME Bank Ltd. v. Mnuchin, 249 F.Supp.3d 215, 222 (D.D.C. 2017)). Some circumstances in which reconsideration may be warranted include where the Court has “patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the Court.” Singh v. George Wash. Univ., 383 F.Supp.2d 99, 101 (D.D.C. 2005) (quoting Cobell, 224 F.R.D. at 272).

III. Analysis

First, DHS argues that the Court did not give the agency's summary judgment briefs and declarations the consideration they deserved when it held that the Somalia TPS Memo must be disclosed. In support, DHS points to language in the agency's original submissions in which it argues first that the memo “involve[s] consideration of domestic and international impacts of the [TPS] decision”; second, that TPS designations have to be made on a recurring basis; and third, that TPS designations are “subject to contentious litigation.” Mot. for Reconsideration 8 (citing various paragraphs of the Second Pavlik-Keenan Declaration, Def.'s Reply Attach. 1, ECF No. 30-1). These facts, DHS argues, establish that the Somalia TPS Memo is sufficiently “sensitive” and “high-profile” that disclosure of the memo would chill internal agency dialogue going forward, thus raising a realistic expectation of foreseeable harm if the memo were disclosed. Id. at 9.

It bears mention (and DHS concedes) that the Second Pavlik-Keenan Declaration advanced some of these facts only in its discussion of documents other than the Somalia TPS Memo. Id. at 8. If DHS wished to rely upon these facts to justify its withholding of the Somalia TPS Memo, it should have made that connection explicitly in its briefing. But more importantly, DHS is incorrect to suggest that these factors escaped the Court's attention, and the mere fact that the Court did not expressly address each of them one-by-one in its Opinion does not prove as much. As the Court will now explain, DHS's arguments about the threat of future litigation did explicitly appear in the Court's Opinion, while the other arguments to which DHS now gestures did not feature prominently in the Opinion only because they failed to persuade the Court that significant harm is likely to result from disclosure of the Memo.

First, the mere fact that TPS memos concern consequential governmental decisions with foreign and domestic political implications does not automatically render them so sensitive as to merit withholding. The Court's Opinion readily recognized that some internal agency dialogue concerns matters so “sensitive” and “high-profile” that agency personnel would sooner shirk from discussion than have their opinions known to the public. See Documented, 2024 WL 4253130, at *8 n.6. But although TPS decisions are important, and at the risk of sounding trite, the government renders important policy decisions all the time, not all of which are necessarily “high-profile” or “sensitive,” as DHS urges that the Somalia TPS Memo is. Mot. for Consideration 8. Aside from the recent instances of TPS litigation (which the Court will address shortly), the agency's summary judgment briefing and declarations provide no reason to believe that Somalia's TPS designation, or TPS designations in general, are so peculiarly controversial that agency personnel would rather eschew candid discussion than risk public disclosure of their deliberations. Simply pointing out that TPS designations are very important and affect many people is not enough.^[1]

Second the fact that TPS designations will have to be made in the future is irrelevant unless DHS can credibly demonstrate that disclosure of the Somalia TPS Memo will impoverish the intraagency discussions related to those future designations. As just discussed, it does not appear to the Court-and DHS has not adequately demonstrated-that disclosure of the Somalia TPS Memo, standing alone, would substantially chill agency dialogue surrounding future TPS designations. By the agency's own admission, TPS memos are not rare or momentous documents, but rather a routine part of the agency's business. See Mot. for Reconsideration 2 (noting that TPS memo drafters “produce such memos on a regular basis”). DHS has not met its burden to show that memo drafters will recoil from putting their thoughts in writing simply because one of...