Case Detail

FOIA Project Annotation: A federal court in Louisiana has ruled that U.S. Citizenship and Immigration Services is legally responsible for justifying the withholding of portions of records referred to Immigration and Customs Enforcement. Immigration attorney Michael Gahagan requested the alien file for Miztle Amado-Castillo, whom Gahagan was representing in a removal proceeding. USCIS disclosed 209 pages in full and 10 pages with redactions, withheld 17 pages, and referred 51 pages to ICE for direct response to Gahagan. Gahagan appealed and USCIS disclosed an additional 17 pages. Gahagan then filed suit against USCIS, arguing the agency's exemption claims were improper and that the referral to ICE had resulted in an improper delay. ICE emailed Gahagan the 51 referred pages with redactions during the litigation, including withholding 10 pages because they were labeled as duplicates of pages Gahagan had already received. Gahagan argued that withholding documents as duplicates was not permissible under FOIA and that the government had not justified the ICE response except for its unsworn explanation identifying various exemptions. USCIS claimed it had acted properly and that such referrals were common. Judge Nannette Jolivette Brown found the agency had conducted an adequate search, but agreed with Gahagan that withholding documents as duplicates was not permissible under FOIA. Johnson pointed out that "the Court has not found any language in FOIA capable of supporting an exemption on the basis that a document is a 'duplicate' of another, and even if any such language existed, Defendant has not furnished the court with any information that permits it to determine de novo whether the documents actually are duplicates of documents already disclosed." USCIS argued that Gahagan was trying to force ICE, a non-party to the suit, to defend its response. But Gahagan claimed that "even if an agency referred documents to other agencies for review and processing, the agency is still responsible for explaining their nonproduction." Relying primarily on McGehee v. CIA, 697 F.2d 1095 (D.C. Cir. 1978), where the D.C. Circuit ruled that the CIA could not absolve itself of responsibility for responding to McGehee's request by referring documents to other agencies and that such a referral practice was improper when it interfered with the requester's ability to obtain timely access to the records, Johnson explained that to analyze USCIS's claim that Gahagan was trying to obtain an order against ICE "the Court must first resolve the logically antecedent question of whether ICE or Defendant is responsible for responding to Gahagan's FOIA request." She noted that "it is undisputed that Gahagan has been unable to obtain the 'duplicate' documents despite months of waiting and, now, litigation. Therefore, the net effect of the referral at issue here is 'significantly to impair' Gahagan's ability to obtain the records and 'significantly to increase the amount of time he must wait to obtain them,' rendering the referral a 'withholding' under McGehee. Defendant has offered no facts or argument that reasonably explains its procedure, particularly in light of the impediments to disclosure that the procedure has created here. Therefore, the 10 pages of 'duplicate' documents have been improperly withheld, and the responsibility to account for them rests with Defendant, not ICE."
Issues: Withholding not related to exemption claims, Search - Referral

FOIA Project Annotation: A federal court in Louisiana has ruled that immigration attorney Michael Gahagan is entitled to $13,138 in attorney's fees for his litigation against U.S. Citizenship and Immigration Services to obtain records from the alien file of one of his clients. While the 51 withheld records turned out to be duplicates of other records Gahagan had received, the Fifth Circuit found in favor of Gahagan on that issue, noting that FOIA had no provision for withholding records because they were duplicates. USCIS argued Gahagan was not entitled to fees because the request was made to further the interests of his client. The court rejected the claim, noting that "here, Gahagan has no other option in obtaining these records. . .[T]he fact that Gahagan used FOIA in the instant litigation in order to obtain records to be used in a deportation proceeding does not weigh against an award of attorney's fees." The court also indicated that the Fifth Circuit had found the agency's withholding of the duplicate records improper. Having found Gahagan was eligible for fees, the court reviewed Gahagan's $25, 350 fee request. Gahagan had requested $300 an hour, which the court lowered to $200 an hour. The court also found Gahagan's claimed hours excessive. Reducing his number of hours by 25 percent, the court noted that "Gahagan's time records reflect the hours of an attorney who has to research and draft motions working from a blank slate, rather than an attorney with expertise in the subject matter and experience in FOIA litigation. Although it is prudent to ensure there wasn't any intervening caselaw, the sheer number of hours spent on researching and drafting in an area Gahagan claims to have expertise in is excessive."
Issues: Litigation - Attorney's fees - Entitlement - Reasonable Basis for Withholding, Litigation - Attorney's fees - Entitlement - Calculation of award

Date Filed	Doc #	Docket Text
2014-09-27	1	COMPLAINT against United States Citizenship and Immigration Services (Filing fee $ 400 receipt number 053L-4606458) filed by Michael W. Gahagan. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit, # 3 Summons)Attorney Michael Wayne Gahagan added to party Michael W. Gahagan(pty:pla).(Gahagan, Michael) (Entered: 09/27/2014)
2014-09-29	2	Initial Case Assignment to Judge Nannette Jolivette Brown and Magistrate Judge Sally Shushan. (mmv) (Entered: 09/29/2014)
2014-10-01	3	Summons Issued as to United States Citizenship and Immigration Services. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(cms) (Entered: 10/01/2014)
2014-10-29	4	SUMMONS Returned Executed; United States Citizenship and Immigration Services served on 10/8/2014. (Attachments: # 1 Exhibit)(Gahagan, Michael) Modified text on 10/29/2014 (cms). (Entered: 10/29/2014)
2014-10-29	5	SUMMONS Returned Executed; United States Citizenship and Immigration Services served on 10/9/2014. (Attachments: # 1 Exhibit)(Gahagan, Michael) Modified text on 10/29/2014 (cms). (Entered: 10/29/2014)
2014-10-29	6	SUMMONS Returned Executed; United States Citizenship and Immigration Services served on 10/8/2014. (Attachments: # 1 Exhibit)(Gahagan, Michael) Modified text on 10/29/2014 (cms). (Entered: 10/29/2014)
2014-10-29	7	SUMMONS Returned Executed; United States Citizenship and Immigration Services served on 10/6/2014. (Attachments: # 1 Exhibit)(Gahagan, Michael) Modified text on 10/29/2014 (cms). (Entered: 10/29/2014)
2014-11-05	8	ANSWER to 1 Complaint, by United States Citizenship and Immigration Services.Attorney Brock Darren Dupre added to party United States Citizenship and Immigration Services(pty:dft).(Dupre, Brock) (Entered: 11/05/2014)
2014-11-13	9	NOTICE Scheduling Conference set for 12/11/2014 02:20 PM before courtroom deputy by telephone, by Clerk. (jrc) (Entered: 11/13/2014)
2014-11-16	10	MOTION for Summary Judgment by Michael W. Gahagan. Motion set for 12/10/2014 10:00 AM before Judge Nannette Jolivette Brown. (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Memorandum in Support, # 3 Proposed Order, # 4 Notice of Submission)(Gahagan, Michael) (Entered: 11/16/2014)
2014-11-16	11	EXPARTE/CONSENT MOTION to Continue Scheduling Conference by Michael W. Gahagan. (Attachments: # 1 Proposed Order)(Gahagan, Michael) (Entered: 11/16/2014)
2014-11-17	12	ORDER granting 11 Motion to Continue. Scheduling Conference reset for 12/17/2014 2:15 PM before courtroom deputy by telephone. Signed by Clerk. (jrc) (Entered: 11/17/2014)
2014-12-02	13	RESPONSE/MEMORANDUM in Opposition filed by United States Citizenship and Immigration Services re 10 MOTION for Summary Judgment . (Attachments: # 1 Exhibit A, # 2 Statement of Contested/Uncontested Facts)(Dupre, Brock) (Entered: 12/02/2014)
2014-12-04	14	EXPARTE/CONSENT MOTION for Leave to File Reply to Defendant's Opposition to Plaintiff's Motion for Summary Judgment by Michael W. Gahagan. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading, # 3 Exhibit, # 4 Exhibit)(Gahagan, Michael) (Entered: 12/04/2014)
2014-12-05	15	ORDER granting 14 Motion for Leave to File Reply. Signed by Judge Nannette Jolivette Brown on 12/5/2014. (caa) (Entered: 12/05/2014)
2014-12-05	16	REPLY to Response to Motion filed by Michael W. Gahagan re 10 MOTION for Summary Judgment. (Attachments: # 1 Exhibit 8 - 9)(caa) (Entered: 12/05/2014)
2014-12-08	17	EXPARTE/CONSENT MOTION for Leave to File Sur Reply in Opposition to Plaintiff's Motion for Summary Judgment by United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading, # 3 Exhibit A)(Dupre, Brock) (Entered: 12/08/2014)
2014-12-09	18	RESPONSE/MEMORANDUM in Opposition filed by Michael W. Gahagan re 17 MOTION for Leave to File Sur Reply in Opposition to Plaintiff's Motion for Summary Judgment . (Attachments: # 1 Proposed Order)(Gahagan, Michael) (Entered: 12/09/2014)
2014-12-09	19	ORDER granting 17 Motion for Leave to File sur reply. Signed by Judge Nannette Jolivette Brown on 12/9/2014. (caa) (Entered: 12/09/2014)
2014-12-09	20	Supplemental Memorandum filed by United States Citizenship and Immigration Services, in opposition of 10 MOTION for Summary Judgment. (Attachments: # 1 Exhibit)(caa) (Entered: 12/09/2014)
2014-12-16	21	Second MOTION for Summary Judgment by Michael W. Gahagan. Motion set for 1/7/2015 10:00 AM before Judge Nannette Jolivette Brown. (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Memorandum in Support, # 3 Exhibit, # 4 Proposed Order, # 5 Notice of Submission)(Gahagan, Michael) (Entered: 12/16/2014)
2014-12-17	22	SCHEDULING ORDER: Final Pretrial Conference set for 7/8/2015 2:00 PM, Bench Trial set for 7/27/2015 9:00 AM. All discovery must be completed by 5/27/2015. Signed by Clerk for Judge Nannette Jolivette Brown. (Attachments: # 1 Pretrial Notice Form, # 2 Standing Order)(jrc) (Entered: 12/17/2014)
2014-12-30	23	RESPONSE/MEMORANDUM in Opposition filed by United States Citizenship and Immigration Services re 21 Second MOTION for Summary Judgment . (Attachments: # 1 Statement of Contested/Uncontested Facts)(Dupre, Brock) (Entered: 12/30/2014)
2014-12-30	24	EXPARTE/CONSENT MOTION for Leave to File Reply to Defendant's Opposition to Plaintiff's Second Motion for Summary Judgment by Michael W. Gahagan. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Gahagan, Michael) (Entered: 12/30/2014)
2015-01-02	25	ORDER granting 24 Motion for Leave to File Reply. Signed by Judge Nannette Jolivette Brown on 1/2/2015. (mmm) (Entered: 01/02/2015)
2015-01-02	26	REPLY to Response to Motion filed by Michael W. Gahagan re 21 Second MOTION for Summary Judgment . (mmm) (Entered: 01/02/2015)
2015-01-23	27	ORDER granting in part and denying in part 10 Motion for Summary Judgment and granting in part and denying in part 21 Motion for Summary Judgment, as stated herein. Signed by Judge Nannette Jolivette Brown on 1/23/2015. (caa) (Entered: 01/23/2015)
2015-02-02	28	JOINT STATUS REPORT by Michael W. Gahagan, United States Citizenship and Immigration Services (Gahagan, Michael) Modified text on 2/3/2015 (cms). (Entered: 02/02/2015)
2015-02-12	29	Response/Reply by United States Citizenship and Immigration Services to 27 Order on Motion for Summary Judgment, (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dupre, Brock) (Entered: 02/12/2015)
2015-03-02	30	Third MOTION for Summary Judgment by Michael W. Gahagan. Motion set for 3/18/2015 10:00 AM before Judge Nannette Jolivette Brown. (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Memorandum in Support, # 3 Exhibit, # 4 Proposed Order, # 5 Notice of Submission)(Gahagan, Michael) (Entered: 03/02/2015)
2015-03-10	31	RESPONSE/MEMORANDUM in Opposition filed by United States Citizenship and Immigration Services re 30 Third MOTION for Summary Judgment . (Attachments: # 1 Exhibit A, # 2 Statement of Contested/Uncontested Facts)(Dupre, Brock) (Entered: 03/10/2015)
2015-03-12	32	EXPARTE/CONSENT MOTION for Leave to File Reply to Defendant's Opposition to Plaintiff's Third Motion for Summary Judgment by Michael W. Gahagan. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Gahagan, Michael) (Entered: 03/12/2015)
2015-03-16	33	ORDER REFERRING MOTION: 30 Third MOTION for Summary Judgment filed by Michael W. Gahagan. Motion(s) referred to Sally Shushan. Signed by Judge Nannette Jolivette Brown on 3/16/2015. (NEF: MAG-1)(caa) (Entered: 03/16/2015)
2015-03-16	34	ORDER granting 32 Motion for Leave to File Reply. Signed by Judge Nannette Jolivette Brown on 3/16/2015. (caa) (Entered: 03/16/2015)
2015-03-16	35	REPLY to Response to Motion filed by Michael W. Gahagan re 30 Third MOTION for Summary Judgment. (caa) (Entered: 03/16/2015)
2015-03-16	36	ORDER re 30 Third MOTION for Summary Judgment . ORDERED that the motion of the plaintiff, Michael Gahagan, for summary judgment (Rec. doc. 30) is submitted on briefs and without oral argument. Signed by Magistrate Judge Sally Shushan on 3/16/2015.(my) (Entered: 03/16/2015)
2015-03-30	37	ORDERED that by Friday, April 3, 2015, USCIS shall submit the documents identified as "118" and "Page 1 of 51" for in camera inspection re 30 Third MOTION for Summary Judgment filed by Michael W. Gahagan. Signed by Magistrate Judge Sally Shushan on 3/27/2015.(gec) (Entered: 03/30/2015)
2015-04-07	38	REPORT AND RECOMMENDATIONS re 30 Third MOTION for Summary Judgment filed by Michael W. Gahagan. It is RECOMMENDED that: (1) Gahagan's third motion for summary judgment be GRANTED in PART and DENIED in PART; and (2) that all relief sought in Gahagan's third motion for summary judgment be DENIED except for the request that the document identified as Background Check Registry and Bates stamped as Page 1 of 51 was submitted for in camera review in accord with the Order of March 30, 2015 (Rec doc. 36 ). Objections to R&R due by 4/21/2015. Signed by Magistrate Judge Sally Shushan. (gec) (Entered: 04/07/2015)
2015-05-01	39	ORDER granting in part and denying in part 30 Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown. (jrc) (Entered: 05/01/2015)
2015-05-08	40	Witness and Exhibit List by United States Citizenship and Immigration Services. (Dupre, Brock) (Entered: 05/08/2015)
2015-05-10	41	NOTICE by Michael W. Gahagan . (Gahagan, Michael) (Entered: 05/10/2015)
2015-06-26	42	ORDER re 41 Notice; ORDERED that if Gahagan seeks any relief or any order from this Court, he may state his request, if any, in the form of a motion within five days of the entry of this Order. Any motion filed must be set for hearing in order to allow the Government an opportunity to respond. Otherwise, the matter remains set for trial. Signed by Judge Nannette Jolivette Brown on 6/25/15.(jrc) (Entered: 06/26/2015)
2015-06-30	43	MOTION to Dismiss Case by Michael W. Gahagan. Motion(s) will be submitted on 7/22/2015. (Attachments: # 1 Proposed Order, # 2 Notice of Submission)(Gahagan, Michael) (Entered: 06/30/2015)
2015-07-02	44	ORDER Setting oral argument on 43 MOTION to Dismiss Case for 7/8/2015 02:00 PM before Judge Nannette Jolivette Brown. Signed by Judge Nannette Jolivette Brown.(jrc) (Entered: 07/02/2015)
2015-07-06	45	RESPONSE to Motion filed by United States Citizenship and Immigration Services re 43 MOTION to Dismiss Case . (Dupre, Brock) (Entered: 07/06/2015)
2015-07-06	46	ORDERED that the Court's prior Order setting the hearing on Gahagan's "Motion to Dismiss" to July 8, 2015 at 2:00 PM is VACATED, except to the extent that it canceled the Pre-Trial conference in this matter. FURTHER ORDERED that Gahagan's "Motion to Dismiss" is re-set for hearing on July 7, 2015, at 12:00 PM, without oral argument. Signed by Judge Nannette Jolivette Brown on 7/6/2015.(cms) (Entered: 07/07/2015)
2015-07-08	47	ORDER re 43 Motion to Dismiss Case. Ordered that Gahagan's remaining requests for production of documents pursuant to the Freedom of Information Act are Moot. Signed by Judge Nannette Jolivette Brown. (ijg) (Entered: 07/08/2015)
2015-07-08	48	JUDGMENT: Ordered that there be judgment in favor of Plaintiff Michael W. Gahagan as set forth in document. Ordered that there be judgment in favor of Defendant United States Citizenship and Immigration Services in all other respects, dismissing Gahagan's claims. Signed by Judge Nannette Jolivette Brown.(ijg) (Entered: 07/08/2015)
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