Case Detail

FOIA Project Annotation: Judge Royce Lamberth has ruled that U.S. Citizenship and Immigration Services conducted an adequate search and properly invoked Exemption 5 (deliberative process privilege) and Exemption 7(E) (investigative methods and techniques) in response to a request from the National Association of Computer Consultant Businesses. NACCB made a multi-part request in April 2009 concerning H-1B visa petitions, which are required for hiring temporary, highly skilled, non-immigrant alien workers. USCIS categorized the NACCB request as a complex one and told NACCB that such requests normally took 12-18 months to process. The search involved multiple components within USCIS, but ultimately involved referrals to the Office of Inspector General at the Department of Homeland Security as well as to Department of Labor. NACCB filed suit in March 2010 before USCIS had responded. NACCB complained about the cut-off date policy used by USCIS. Lamberth noted that "USCIS failed to notify NACCB of its search cut-off policy. Indeed, nothing in USCIS's response to NACCB's FOIA request mentions a search cut-off date or the date USCIS used to process the request." But Lamberth, noting that "the facts of this case support USCIS's contention that it conducted an adequate search," pointed out that "USCIS searched for records shortly after receiving the FOIA request, but it delayed sending responsive material to NACCB for eleven months." He observed that "although USCIS relies on agency policy for support, it conducted supplemental searches when it realized that its search did not include records pertaining to several categories of NACCB's request. Additionally, USCIS searched various agencies for missing materials and assigned a new control number to those documents. Furthermore, USCIS did not use the date of the FOIA request as its search cut-off date, rather it used a later date, resulting in a 'much fuller search and disclosure' for NACCB. While in the future USCIS would be wise to expressly acknowledge the use of a search cut-off policy in its response to FOIA requests, its failure to do in in this case does not render its search efforts unreasonable." Turning to Exemption 5, NACCB challenged withholding email exchanged between various agency officials regarding possible implementation of changes to processing fraud matters involving H-1B visas. Lamberth pointed out that "while these recommendations do not identify a specific agency decision, they reflect on-going discussion and debate regarding a change to current processing. If the Court were to order the release of this commentary, it would stymie the consultative process because employees might hesitate to express their opinions for fear of public disclosure. Since Exemption 5 expressly protects the deliberative process, USCIS properly withheld these documents in their entirety." As to Exemption 7(E), Lamberth noted that "since USCIS collaborates with other agencies within and outside of DHS to prevent immigration fraud, disclosing any of the aforementioned documents would reveal the selection criteria, fraud indicators, and investigative process that USCIS and other agencies use in fraud investigations during the H-1B visa process."
Issues: Adequacy - Search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 7(E) - Investigative methods or techniques

Date Filed	Doc #	Docket Text
2010-03-04	1	COMPLAINT against ALEJANDRO MAYORKAS, JANET NAPOLITANO ( Filing fee $ 350, receipt number 4616028007) filed by TECHSERVE ALLIANCE. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet)(dr) (Entered: 03/04/2010)
2010-03-04		SUMMONS (2) Issued as to U.S. Attorney and U.S. Attorney General (dr) (Entered: 03/04/2010)
2010-03-04	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by TECHSERVE ALLIANCE (dr) (Entered: 03/04/2010)
2010-03-04	3	NOTICE of Appearance by Laura Metcoff Klaus on behalf of TECHSERVE ALLIANCE (dr) (Entered: 03/04/2010)
2010-03-04	4	NOTICE of Appearance by Maggie Sklar on behalf of TECHSERVE ALLIANCE (dr) (Entered: 03/04/2010)
2010-03-23	5	SUMMONS Returned Executed by TECHSERVE ALLIANCE. JANET NAPOLITANO served on 3/9/2010, answer due 4/9/2010. (Sklar, Maggie) Modified dates on 3/24/2010 (znmw, ). (Entered: 03/23/2010)
2010-03-23	6	SUMMONS Returned Executed by TECHSERVE ALLIANCE. ALEJANDRO MAYORKAS served on 3/9/2010, answer due 4/9/2010. (Sklar, Maggie) Modified dates on 3/24/2010 (znmw, ). (Entered: 03/23/2010)
2010-03-23	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on Attorney General. Date of Service Upon Attorney General 03/05/2010. (Sklar, Maggie) (Entered: 03/23/2010)
2010-03-23	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the US Attorney. JANET NAPOLITANO, ALEJANDRO MAYORKAS served 3/11/2010, answers due 4/12/2010. (Sklar, Maggie) Modified dates on 3/24/2010 (znmw, ). (Entered: 03/23/2010)
2010-03-24		Set/Reset Deadlines: Answer due by 4/12/2010, (znmw, ) (Entered: 03/24/2010)
2010-04-02	9	NOTICE of Appearance by Michelle Lo on behalf of ALEJANDRO MAYORKAS, JANET NAPOLITANO (Lo, Michelle) (Entered: 04/02/2010)
2010-04-06	10	Consent MOTION for Extension of Time to File Answer re 1 Complaint by ALEJANDRO MAYORKAS, JANET NAPOLITANO (Lo, Michelle) (Entered: 04/06/2010)
2010-04-07		MINUTE ORDER granting 10 Consent Motion for Extension of Time to Respond to Complaint. Accordingly, defendants' answer is due on May 27, 2010. Signed by Judge Henry H. Kennedy, Jr. on April 7, 2010. (NP) (Entered: 04/07/2010)
2010-04-07		Set/Reset Deadlines: Answer due by 5/27/2010, (tr) (Entered: 04/07/2010)
2010-05-21	11	Consent MOTION for Extension of Time to File Answer re 1 Complaint by ALEJANDRO MAYORKAS, JANET NAPOLITANO (Lo, Michelle) (Entered: 05/21/2010)
2010-05-24		MINUTE ORDER granting 11 Consent Motion for Extension of Time to Respond to Complaint. Accordingly, defendants' answer is due on June 17, 2010. Signed by Judge Henry H. Kennedy, Jr. on May 24, 2010. (NP) (Entered: 05/24/2010)
2010-05-24		Reset Deadlines: Answer due by 6/17/2010, (tj ) (Entered: 05/24/2010)
2010-06-14	12	MOTION for Extension of Time to File Answer re 1 Complaint by ALEJANDRO MAYORKAS, JANET NAPOLITANO (Lo, Michelle) (Entered: 06/14/2010)
2010-06-15	13	ENTERED IN ERROR.....Memorandum in opposition to re 12 MOTION for Extension of Time to File Answer re 1 Complaint filed by TECHSERVE ALLIANCE. (Charrow, Robert) Modified on 6/16/2010 (znmw, ). (Entered: 06/15/2010)
2010-06-16		NOTICE OF ERROR re 13 Memorandum in Opposition; emailed to charrowr@gtlaw.com, cc'd 3 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect document/case, 2. Please refile document (znmw, ) (Entered: 06/16/2010)
2010-06-16	14	Memorandum in opposition to re 12 MOTION for Extension of Time to File Answer re 1 Complaint filed by TECHSERVE ALLIANCE. (Charrow, Robert) (Entered: 06/16/2010)
2010-06-16	15	REPLY to opposition to motion re 12 MOTION for Extension of Time to File Answer re 1 Complaint filed by ALEJANDRO MAYORKAS, JANET NAPOLITANO. (Lo, Michelle) (Entered: 06/16/2010)
2010-06-17		MINUTE ORDER granting 12 Motion for Extension of Time to Respond to Complaint. Accordingly, defendants' answer is due on June 24, 2010. Signed by Judge Henry H. Kennedy, Jr. on June 17, 2010. (NP) (Entered: 06/17/2010)
2010-06-24	16	MOTION for Summary Judgment by ALEJANDRO MAYORKAS, JANET NAPOLITANO (Attachments: # 1 Declaration of Jill A. Eggleston, # 2 Declaration of Brian Pasternak, # 3 Exhibit 1)(Lo, Michelle) (Entered: 06/24/2010)
2010-07-02	17	Consent MOTION for Extension of Time to File Response/Reply as to 16 MOTION for Summary Judgment by TECHSERVE ALLIANCE (Attachments: # 1 Text of Proposed Order)(Sklar, Maggie) (Entered: 07/02/2010)
2010-07-06		MINUTE ORDER granting 17 Plaintiff's Consent Motion for Extension of Time to Respond to Defendant's Motion for Summary Judgment. Accordingly, plaintiff's opposition is due on July 26, 2010. Signed by Judge Henry H. Kennedy, Jr. on July 6, 2010. (NP) Modified on 7/13/2010 (NP). (Entered: 07/06/2010)
2010-07-26	18	Memorandum in Opposition to motion re 16 MOTION for Summary Judgment and Cross-Motion for Summary Judgment filed by TECHSERVE ALLIANCE. (Attachments: # 1 Text of Proposed Order)(Charrow, Robert) Modified event title on 7/27/2010 (znmw, ). (Entered: 07/26/2010)
2010-07-26	19	MOTION for Summary Judgment by TECHSERVE ALLIANCE (Attachments: # 1 Text of Proposed Order)(Charrow, Robert) (Entered: 07/26/2010)
2010-08-03	20	Unopposed MOTION for Extension of Time to File Response/Reply as to 16 MOTION for Summary Judgment, 19 MOTION for Summary Judgment by ALEJANDRO MAYORKAS, JANET NAPOLITANO (Lo, Michelle) (Entered: 08/03/2010)
2010-08-03		MINUTE ORDER granting 20 Defendants' Unopposed Motion for Extension of Timeto File Reply in Support of Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment. Accordingly, defendant's reply in support of its summary judgment motion and cross-motion for summary judgment are due on August 26, 2010. Signed by Judge Henry H. Kennedy, Jr. on August 3, 2010. (NP) (Entered: 08/03/2010)
2010-08-03		Set/Reset Deadlines: Response to Cross Motions due by 8/26/2010. Reply to Motion for Summary Judgment due by 8/26/2010. (gdf) (Entered: 08/03/2010)
2010-08-25	21	Unopposed MOTION for Extension of Time to File Response/Reply as to 16 MOTION for Summary Judgment, 19 MOTION for Summary Judgment by ALEJANDRO MAYORKAS, JANET NAPOLITANO (Lo, Michelle) (Entered: 08/25/2010)
2010-08-26		MINUTE ORDER granting 21 Defendants' Unopposed Motion for Extension of Time to File Reply in Support of Defendants' Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment. Accordingly, defendant's reply in support of its summary judgment motion and opposition to plaintiff's cross-motion are due on September 2, 2010. Signed by Judge Henry H. Kennedy, Jr. on August 26, 2010. (NP) (Entered: 08/26/2010)
2010-09-02	22	REPLY to opposition to motion re 16 MOTION for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment filed by ALEJANDRO MAYORKAS, JANET NAPOLITANO. (Attachments: # 1 Supplemental Declaration of Jill A. Eggleston, # 2 Reply to Plaintiff's Response to Defendant's Statement of Material Facts Not in Dispute, # 3 Text of Proposed Order)(Lo, Michelle) (Entered: 09/02/2010)
2010-09-02	23	Memorandum in opposition to re 19 MOTION for Summary Judgment and Reply in Support of Defendants' Motion for Summary Judgment filed by ALEJANDRO MAYORKAS, JANET NAPOLITANO. (Attachments: # 1 Supplemental Declaration of Jill A. Eggleston, # 2 Reply to Plaintiff's Response to Defendant's Statement of Material Facts Not in Dispute, # 3 Text of Proposed Order)(Lo, Michelle) (Entered: 09/02/2010)
2010-09-13	24	REPLY to opposition to motion re 19 MOTION for Summary Judgment filed by TECHSERVE ALLIANCE. (Charrow, Robert) (Entered: 09/13/2010)
2011-03-10	25	NOTICE OF SUPPLEMENTAL AUTHORITY by ALEJANDRO MAYORKAS, JANET NAPOLITANO (Lo, Michelle) (Entered: 03/10/2011)
2011-04-08	26	NOTICE of Additional Disclosures by ALEJANDRO MAYORKAS, JANET NAPOLITANO (Lo, Michelle) (Entered: 04/08/2011)
2011-05-05	27	Case reassigned by consent to Chief Judge Royce C. Lamberth. Judge Henry H. Kennedy no longer assigned to the case. (gt, ) (Entered: 05/05/2011)
2011-08-17	28	MEMORANDUM OPINION. Signed by Chief Judge Royce C. Lamberth on August 17, 2011. (lcrcl5) (Entered: 08/17/2011)
2011-08-17	29	ORDER granting 16 Motion for Summary Judgment; denying 19 Motion for Summary Judgment; entering Judgment on behalf of all defendants on all claims. Signed by Chief Judge Royce C. Lamberth on August 17, 2011. (lcrcl5) (Entered: 08/17/2011)
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