Stevens v. U.S. Dep't of Health & Human Servs.

666 F.Supp.3d 734

Jacqueline STEVENS, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

Case No. 22 C 5072

United States District Court, N.D. Illinois, Eastern Division

Signed March 30, 2023

Nicolette Glazer, Law Offices of Larry R. Glazer, Century City, CA, for Plaintiff.

Alex Harms Hartzler, United States Attorney's Office, Chicago, IL, for Defendants United States Department Health and Human Services, United States Department of Homeland Security, United States Department of Justice, Immigration and Customs Enforcement, Customs and Border Protection, Executive Office of Immigration Review.

AUSA, Alex Harms Hartzler, United States Attorney's Office, Chicago, IL, for Defendant Citizenship and Immigration Services.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Jacqueline Stevens, a professor at Northwestern University, has filed suit against the Department of Health and Human Services (HHS), the Department of Homeland Security (DHS), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the United States Citizenship and Immigration Services (USCIS), and the Department of Justice (DOJ) and the Executive Office for Immigration Review (EOIR), which is part of DOJ. Stevens seeks a court order compelling the defendants to provide certain documents under the Freedom of Information Act (FOIA).

USCIS has moved to dismiss the complaint for failure to state a claim or alternatively for summary judgment. Stevens has moved for entry of a preliminary injunction against ICE, USCIS, and EOIR. On December 15, 2022, the Court denied Stevens's motion with respect to USCIS and EOIR but took the motion under advisement with respect to ICE. For the reasons below, the Court grants USCIS's summary judgment motion and grants in part Stevens's motion for a preliminary injunction against ICE.

Background

The following facts are undisputed unless otherwise noted. Stevens is a political science professor who "research[es], investigate[s], and publish[es] on the subject of deportation of U.S. Citizens." Compl. ¶ 9. Since 2008, she has co-edited a book and published several articles "detailing the U.S. government's unlawful detention and deportation of U.S. citizens." Id. ¶ 7. Her research has been featured in several publications and "widely covered in the media." Id. ¶ 9. In 2012, she founded the Deportation Research Clinic at Northwestern University "for the purpose of studying government misconduct in deportation proceedings." Id. On August 14, 2022, a reporter from a public radio station contacted Stevens to request her assistance in obtaining records on Pascal Charpentier. Charpentier believes that he is a U.S. citizen, but he has been issued a deportation order.

A. Stevens's FOIA requests

Stevens made three FOIA requests to USCIS, ICE, and EOIR regarding Charpentier that are relevant to the pending motions.¹ On August 15, 2022, Stevens submitted via e-mail an expedited FOIA request to USCIS seeking various records regarding Charpentier, including "all correspondence and other information submitted by Mr. Charpentier to USCIS and all outputs about him produced by 'E-Verify' databases." Id. ¶ 71. On August 18, 2022, Stevens requested from ICE via the DHS portal "[a]ll system records and other items maintained, produced, or distributed by ICE, including ICE trial attorneys and HQ, pertaining to Pascal Charpentier." Id. ¶ 47. She attached a document to her request titled "Grounds for Expedited Request," which explained the "compelling need" for her request to be expedited. Id. ¶ 48. On August 18, 2022, Stevens also submitted an expedited FOIA request to EOIR, requesting "[a]ll system records and other items maintained, produced, or distributed by EOIR pertaining to Pascal Charpentier." Id. ¶ 97.

In her attachment requesting expedited processing, Stevens explained that "Charpentier was issued a removal order based on inaccurate information produced by the U.S. government to an immigration judge" and that, "[a]s director of the Deportation Research Clinic," she "will be sharing all responsive records with Mr. Charpentier" so that he can "prove his U.S. citizenship." Id. ¶ 48. Stevens stated that "the failure to obtain [the] requested records on an expedited basis" would "pose an imminent threat to the life or physical safety" of Charpentier because of his deportation. Id. She also explained that "there is enormous public interest in the U.S. government unlawfully detaining and deporting U.S. citizens" and that "a major news organization has indicated they will be reporting on [her] findings about the deportation order for Mr. Charpentier." Id. Stevens submitted her requests to USCIS and EOIR on an expedited basis for these same reasons.

In her complaint, Stevens alleges that as of the date of filing, she had not received a response from ICE, USCIS, or EOIR regarding her expedited FOIA requests.

B. Procedural history

Stevens moved for a preliminary injunction, asking the Court to order USCIS, EOIR, and ICE to "produce all non-exempt records responsive to [her] FOIA requests within 30 days, or by a date that the Court deems appropriate." Pl.'s Opening Mem. at 10. In response to Stevens's motion, each agency contended that the motion was moot. USCIS asserted that it had denied Stevens's FOIA request on August 29, 2022 due to an improper privacy waiver for Charpentier. EOIR asserted that it granted Stevens's FOIA request on October 6, 2022 and released the responsive records on October 11 and October 19. ICE stated that it was "currently processing Stevens's request" and would propose a production schedule shortly. Defs.' Resp. Mem. at 9.

On December 15, 2022, the Court denied Stevens's preliminary injunction motion with respect to USCIS and EOIR. Because both agencies had already fully responded to her request, there was no longer a live issue for the Court to consider. The Court took the motion under advisement with respect to ICE and requested more information on ICE's proposed production schedule.

On December 29, 2022, ICE provided a status report in which it stated that it had located 13,640 records that were "potentially responsive to Stevens's FOIA request." Def.'s Status Rep. ¶ 3 (dkt. no. 27). ICE issued an initial production of 515 pages of records on December 14, 2022 and planned to process 500 pages per month. At this pace, ICE expected to finish production by April 2025. ICE explained that it is "currently processing 3,107 FOA requests, with a backlog of 2,304 requests" and that "[t]he number of FOIA requests that ICE receives each year has increased dramatically since fiscal year 2019." Id. ¶ 4. ICE stated that "500 pages per month per case" is its "normal processing rate" for "productions in active FOIA lawsuits." Id. ¶ 7. Stevens objected to ICE's proposed production schedule, and the parties filed supplemental briefs addressing this issue.

Discussion

A. USCIS's motion for summary judgment

USCIS has moved to dismiss Stevens's claims against it for failure to state a claim, or in the alternative, for summary judgment because she failed to exhaust administrative remedies. Stevens's FOIA request to USCIS, which USCIS relies upon to make its exhaustion argument, is not attached to her complaint.² "Because exhaustion is a (non-jurisdictional) affirmative defense, in a typical case it would be inappropriate on a motion to dismiss to consider materials outside the complaint . . . ." Gray v. United States, 723 F.3d 795, 799 n.1 (7th Cir. 2013). On a Rule 12(b)(6) motion, if "matters outside the pleadings are presented to and not excluded by the court," then the motion "must be treated as one for summary judgment under Rule 56." See Fed. R. Civ. P. 12(d). Rule 12(d) requires that all parties "be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56." Id.

The Court concludes that Stevens had a reasonable opportunity to present all pertinent materials. "Adequate notice is provided when the moving party frames its motion in the alternative as one for summary judgment," as USCIS did in this case. Tri-Gen Inc. v. Int'l Union of Operating Eng'rs, Loc. 150, 433 F.3d 1024, 1029 (7th Cir. 2006). Stevens did not object to conversion in her response to USCIS's motion and instead responded to both motions together. See Miller v. Herman, 600 F.3d 726, 733 (7th Cir. 2010) (holding that there was "no problem construing the motion [to dismiss] as one for summary judgment" where the plaintiff "responded to the motions" framed in the alternative "collectively and universally"). Moreover, Stevens submitted a Local Rule 56.1 statement of facts in response to USCIS's statement of facts. See Thompson v. Cope, 900 F.3d 414, 425-26 (7th Cir. 2018) (holding that Rule 12(d)'s requirement was satisfied where "the defendants submitted evidence to support their motion" and "the plaintiffs responded and submitted evidence in return"). Because all parties had a reasonable opportunity to present all the pertinent materials, the Court converts USCIS's motion to dismiss to a motion for summary judgment.

Summary judgment is appropriate if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Martinsville Corral, Inc. v. Soc'y Ins., 910 F.3d 996, 998 (7th Cir. 2018). The Court views the evidence and draws all reasonable inferences in the nonmoving party's favor. Cervantes v. Ardagh Grp., 914 F.3d 560, 564 (7th Cir. 2019). If the nonmoving party fails to establish the existence of an element essential to its case on which it would bear the burden of proof at trial, summary judgment must be granted to the moving party. Id.

USCIS contends that it responded to Stevens's FOIA request regarding Charpentier on August 29, 2022, denying her request and notifying her of her right to file an administrative appeal within 90 days. Because Stevens did not appeal the denial, USCIS argues...