Gatore v. U.S. Dep't of Homeland Sec.

327 F.Supp.3d 76

Rica GATORE, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant.

Civil Action No. 15-459 (RBW)

United States District Court, District of Columbia.

Signed August 24, 2018

David Laundon Cleveland, Catholic Charities, Washington, DC, for Plaintiffs.

Johnny Hillary Walker, III, U.S. Attorney's Office, Washington, DC, for 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. SeeGosen, 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...