Case Detail

FOIA Project Annotation: A federal court in Louisiana has ruled that the magistrate judge erred in using the standard for granting a preliminary injunction when considering a FOIA suit filed by immigration attorney Michael Gahagan against Immigration and Customs Enforcement, Customs and Border Protection, and the State Department for records pertaining to his client Theodore Weegar. Because Gahagan had requested injunctive relief if appropriate, the magistrate judge decided he was requesting a preliminary injunction blocking the agencies from refusing to disclose responsive records. As a result, the magistrate judge found that Gahagan had failed to carry his burden of proving that he was entitled to an injunction. The magistrate judge's report recommended that the court rule against Gahagan and further order the agencies to provide supplemental affidavits supporting their exemption claims. The magistrate judge was persuaded by two district court decisions from the D.C. Circuit in which the plaintiffs had requested preliminary injunctions as well as summary judgment. Judge Nannette Jolivette Brown noted that "Gahagan has not moved for a preliminary injunction. Rather, his two motions seek relief that falls squarely within FOIA's statutory framework. The motions are governed by the standards and burdens of proof that apply to a motion for summary judgment in the FOIA context." Reviewing the case as a straightforward FOIA case, Brown first rejected Gahagan's claim that U.S. Citizenship and Immigration Services had improperly referred records to ICE, prolonging the time for processing his request. Noting that his time delay contention was moot because ICE and the other agencies had already responded to his request, Brown pointed out that "ICE's 'routing' of Gahagan's FOIA request is not a per se violation of FOIA." She then found that both ICE and CBP had failed to adequately explain their searches and ordered them to supplement their affidavits. Gahagan argued ICE's search had located responsive records, but that the agency had then concluded that some of them were non-responsive. Addressing the issue, Brown observed that "if the agency prepares and executes an appropriate query, then the information located and produced as a result of the query should be responsive. ICE has not explained why it found the above-described documents when executing Gahagan's search, or why it ultimately redacted them and produced them to Gahagan." She ordered the agency to provide the documents for in camera review. Brown found ICE had properly withheld records concerning databases accessible in an NCIC search under Exemption 7(E) (investigative methods and techniques). The State Department had withheld two records concerning a consular officer's research when reviewing Weegar's visa applications. Brown agreed with the agency that the records were properly withheld under Exemption 3 (other statutes), citing § 222(f) of the Immigration and Nationality Act.
Issues: Search - Referral, Exemption 3 - Limited agency discretion

FOIA Project Annotation: A federal court in Louisiana has ruled that U.S. Customs and Border Protection did not properly respond to immigration attorney Michael Gahagan's FOIA request for records concerning his client Theodore Weegar. The agency originally told Gahagan that it did not have a Form I-826 Notice to Appear for Weegar because such a form was issued only when an individual was arrested or detained by CBP and Weegar was neither arrested nor detained by the agency. The agency initially refused to provide a blank Form I-826, although it later provided a redacted version. The court noted that "defendants have not provided any support for their argument that a document may be withheld because it was not served upon Mr. Weegar." The court added that "defendants have not met their burden of establishing that CBP's decision to withhold Form I-826 on the grounds that it was non-responsive to Plaintiff's request was valid. Therefore, the Court finds that the withheld document, Form I-826, was responsive to Plaintiff's FOIA request." Addressing the redacted form the agency disclosed later, the court pointed out that "they have not provided any justification for the withholding of this information in either their opposition or in any affidavit." After reviewing the documents in camera, the court indicated that the redactions were similar to those the agency withheld from another form under Exemption 7 (law enforcement records). However, the court observed that "in redacting the I-826, Defendants rely solely upon the argument that the document itself was non-responsive to Plaintiff's request. They make no argument regarding what exemption justifies the redactions that have been made to the I-826. Accordingly, the Court orders CBP to produce any reasonably segregable portion of the I-826."
Issues: Agency Record

FOIA Project Annotation: A federal court in Louisiana has awarded immigration attorney Michael Gahagan attorney's fees for his FOIA litigation against U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection for records pertaining to his client Theodore Weegar, who was facing deportation. Gahagan sent FOIA requests to USCIS, ICE, and CBP, as well as the Department of State for records about Weegar. ICE referred the request to USCIS and Gahagan filed suit after the agencies failed to respond. He eventually got most of the documents he was requesting and then filed a motion for attorney's fees. The court found that because Gahagan has prevailed on some issues he was eligible for fees. Although the agencies argued that he was using FOIA as a substitute for discovery, which is not available in immigration proceedings, the court indicated that "the public benefit factor weighs in favor of an award of attorney's fees because the disclosure of the documents contributes to the legitimacy of the immigration proceedings." Noting the Supreme Court had held that agencies were to construe the exemptions narrowly, the court concluded that the agencies' intransience and redactions were unreasonable. The court then found that Gahagan was not entitled to an hourly rate of $300, but rather a reduced rate of $200 an hour. The court also reduced the number of hours Gahagan had claimed, explaining that there was no evidence that he had exercised discretion in calculating the hours. Rejecting Gahagan's claim that he was an experienced FOIA litigator, the court observed 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 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." As a result, the court reduced the number of hours by 25 percent, reducing his request from $34,777 to $16,485.
Issues: Litigation - Attorney's fees - Prevailing party, Litigation - Attorney's fees - Entitlement - Calculation of award

Date Filed	Doc #	Docket Text
2014-11-15	1	COMPLAINT against All Defendants (Filing fee $ 400 receipt number 053L-4658078) filed by Michael W. Gahagan. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons)Attorney Michael Wayne Gahagan added to party Michael W. Gahagan(pty:pla).(Gahagan, Michael) (Entered: 11/15/2014)
2014-11-17	2	Initial Case Assignment to Judge Nannette Jolivette Brown and Magistrate Judge Joseph C. Wilkinson, Jr. (mmv) (Entered: 11/17/2014)
2014-11-17	3	Summons Issued as to United States Customs and Border Protection, United States Department of State, United States Immigration and Customs Enforcement. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(cms) (Entered: 11/17/2014)
2014-11-24	4	SUMMONS Returned Executed; United States Customs and Border Protection served. (Gahagan, Michael) Modified text on 11/24/2014 (cms). (Entered: 11/24/2014)
2014-11-24	5	SUMMONS Returned Executed; United States Department of State served. (Gahagan, Michael) Modified text on 11/24/2014 (cms). (Entered: 11/24/2014)
2014-11-24	6	SUMMONS Returned Executed; United States Immigration and Customs Enforcement served. (Gahagan, Michael) Modified text on 11/25/2014 (cms). (Entered: 11/24/2014)
2014-11-24	7	SUMMONS Returned Executed; U.S. Attorney General served. (Gahagan, Michael) Modified on 11/25/2014 (cms). (Entered: 11/24/2014)
2014-11-24	8	SUMMONS Returned Executed; U.S. Attorney served. (Gahagan, Michael) Modified on 11/25/2014 (cms). (Entered: 11/24/2014)
2014-11-24	9	MOTION for Summary Judgment by Michael W. Gahagan. Motion set for 12/24/2014 10:00 AM before Judge Nannette Jolivette Brown. (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Memorandum in Support, # 3 Exhibit removed per court order, # 4 Proposed Order, # 5 Notice of Submission)(Gahagan, Michael) Modified on 4/14/2015 (tbl). (Entered: 11/24/2014)
2014-12-05	10	MOTION to Continue Plaintiffs' Motion for Summary Judgment by United States Customs and Border Protection, United States Department of State, United States Immigration and Customs Enforcement. Motion set for 12/24/2014 10:00 AM before Judge Nannette Jolivette Brown. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)Attorney Brock Darren Dupre added to party United States Customs and Border Protection(pty:dft), Attorney Brock Darren Dupre added to party United States Department of State(pty:dft), Attorney Brock Darren Dupre added to party United States Immigration and Customs Enforcement(pty:dft).(Dupre, Brock) (Entered: 12/05/2014)
2014-12-05	11	EXPARTE/CONSENT MOTION to Expedite Federal Defendants' Motion to Continue Plaintiff's Motion Summary Judgment by United States Customs and Border Protection, United States Department of State, United States Immigration and Customs Enforcement. (Attachments: # 1 Proposed Order)(Dupre, Brock) (Entered: 12/05/2014)
2014-12-08	12	ORDER granting 11 MOTION to Expedite Fed Dfts' Motion to Continue Pla's Motion Summary Judgment filed by United States Immigration & Customs Enforcement, United States Customs & Border Protection & United States Department of State, Resetting Hearing on 10 MOTION to Continue Plas' Motion for Summary Judgment for 12/10/2014 10:00 AM before Judge Nannette Jolivette Brown. Any opposition must be filed by 9:00 AM on 12/10/2014. Signed by Judge Nannette Jolivette Brown on 12/8/2014.(caa) (Entered: 12/08/2014)
2014-12-08	13	RESPONSE/MEMORANDUM in Opposition filed by Michael W. Gahagan re 10 MOTION to Continue Plaintiffs' Motion for Summary Judgment . (Attachments: # 1 Proposed Order, # 2 Exhibit)(Gahagan, Michael) (Entered: 12/08/2014)
2014-12-09	14	EXPARTE/CONSENT MOTION for Leave to File Reply to Plaintiff's Opposition to the Federal Defendants' Motion to Continue Plaintiff's Motion for Summary Judgment by United States Customs and Border Protection, United States Department of State, United States Immigration and Customs Enforcement. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Dupre, Brock) (Entered: 12/09/2014)
2014-12-10	15	ORDER denying 10 Motion to Continue Plaintiffs' Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown on 12/10/2014. (caa) (Entered: 12/11/2014)
2014-12-10	16	ORDER granting 14 Motion for Leave to File reply. Signed by Judge Nannette Jolivette Brown on 12/10/2014. (caa) (Entered: 12/11/2014)
2014-12-10	17	REPLY to Response to Motion filed by All Defendants re 10 MOTION to Continue Plaintiffs' Motion for Summary Judgment . (caa) (Entered: 12/11/2014)
2014-12-16	18	RESPONSE/MEMORANDUM in Opposition filed by United States Customs and Border Protection, United States Department of State, United States Immigration and Customs Enforcement re 9 MOTION for Summary Judgment . (Attachments: # 1 Exhibit A, # 2 Exhibit B removed per court order, # 3 Exhibit C removed per court order, # 4 Exhibit D, # 5 Statement of Contested/Uncontested Facts)(Dupre, Brock) Modified on 4/14/2015 (tbl). (Entered: 12/16/2014)
2014-12-17	19	EXPARTE/CONSENT MOTION for Leave to File Reply by Michael W. Gahagan. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading, # 3 Exhibit)(Gahagan, Michael) (Entered: 12/17/2014)
2014-12-22	20	ORDER granting 19 Motion for Leave to File Reply Memo. Signed by Judge Nannette Jolivette Brown. (jrc) (Entered: 12/22/2014)
2014-12-22	21	REPLY to Response to Motion filed by Michael W. Gahagan re 9 MOTION for Summary Judgment . (Attachments: # 1 Exhibit)(jrc) (Entered: 12/22/2014)
2014-12-23	22	ANSWER to 1 Complaint, by United States Customs and Border Protection, United States Department of State, United States Immigration and Customs Enforcement.(Dupre, Brock) (Entered: 12/23/2014)
2014-12-24	23	NOTICE Scheduling Conference set for 2/13/2015 09:30 AM before courtroom deputy by telephone, by Clerk. (jrc) (Entered: 12/24/2014)
2014-12-29	24	Second MOTION for Summary Judgment by Michael W. Gahagan. Motion set for 1/21/2015 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: 12/29/2014)
2014-12-31	25	EXPARTE/CONSENT MOTION to Continue Scheduling Conference by Michael W. Gahagan. (Attachments: # 1 Proposed Order)(Gahagan, Michael) (Entered: 12/31/2014)
2015-01-05	26	ORDER granting 25 Motion to Continue. Scheduling Conference reset for 2/26/2015 2:10 PM before courtroom deputy by telephone. Signed by Clerk. (jrc) (Entered: 01/05/2015)
2015-01-13	27	RESPONSE/MEMORANDUM in Opposition filed by United States Customs and Border Protection, United States Department of State, United States Immigration and Customs Enforcement re 24 Second MOTION for Summary Judgment . (Attachments: # 1 Statement of Contested/Uncontested Facts)(Dupre, Brock) (Entered: 01/13/2015)
2015-01-14	28	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 Memorandum in Support)(Gahagan, Michael) (Entered: 01/14/2015)
2015-01-16	29	ORDER granting 28 Motion for Leave to File Reply. Signed by Judge Nannette Jolivette Brown on 1/16/2015. (caa) (Entered: 01/16/2015)
2015-01-16	30	REPLY to Response to Motion filed by Michael W. Gahagan re 24 Second MOTION for Summary Judgment. (caa) (Entered: 01/16/2015)
2015-02-12	31	NOTICE Scheduling Conference reset for 2/25/2015 11:10 AM before courtroom deputy by telephone, by Clerk. (jrc) (Entered: 02/12/2015)
2015-02-25	32	SCHEDULING ORDER: Final Pretrial Conference set for 10/21/2015 3:00 PM, Bench Trial set for 11/9/2015 9:00 AM. All discovery must be completed by 9/9/2015.Issued by Clerk for Judge Nannette Jolivette Brown. (Attachments: # 1 Pretrial Notice Form, # 2 Standing Order)(jrc) (Entered: 02/25/2015)
2015-03-16	33	ORDER REFERRING MOTION: 9 MOTION for Summary Judgment filed by Michael W. Gahagan and 24 Second MOTION for Summary Judgment filed by Michael W. Gahagan. Motion(s) referred to Joseph C. Wilkinson, Jr. Signed by Judge Nannette Jolivette Brown on 3/16/2015. (NEF: MAG-2)(caa) (Entered: 03/16/2015)
2015-04-10	34	STATUS REPORT Jointly filed by Michael Gahagan and by United States Customs and Border Protection, United States Department of State, United States Immigration and Customs Enforcement (Dupre, Brock) (Entered: 04/10/2015)
2015-04-14	35	ORDER. Both sides in this action have filed exhibits that contain unredacted personal data identifiers, including dates of birth, in violation of Fed. R. Civ. P. 5.2(a). See Exhibits 1, 2 and 6 to plaintiff's Motion for Summary Judgment, Record Doc. No. 9-3 at pp. 2-3, 10-11 and 84-85; Exhibits B and C to defendants' Memorandum in Opposition to Plaintiff's Motion for Summary Judgment, Record Doc. No. 18-2 at pp. 8 and 10, and Record Doc. No. 18-3 at p. 13. Accordingly, the Clerk of Court is ORDERED to remove from the record Record Doc. Nos. 9-3, 18-2 and 18-3. IT IS FURTHER ORDERED that, no later than April 21, 2015, plaintiff and defendants must file substituted versions of these documents from which all but the year of birth have been redacted. Fed. R. Civ. P. 5.2(a)(2). Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 4/14/2015.(tbl) (Entered: 04/14/2015)
2015-04-16	36	Amendment/Supplement to Document by Michael W. Gahagan re 35 Order,,, (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Gahagan, Michael) (Entered: 04/16/2015)
2015-04-21	37	Response/Reply by United States Customs and Border Protection, United States Department of State, United States Immigration and Customs Enforcement to 35 Order,,, (Attachments: # 1 Exhibit B (Redacted), # 2 Exhibit C (Redacted))(Dupre, Brock) (Entered: 04/21/2015)
2015-04-27	38	FINDINGS AND RECOMMENDATIONS. This matter was referred to me, Record Doc. No. 33, for findings and recommendations pursuant to 28 U.S.C. 636(b)(1)(B), regarding plaintiff's first and second motions for summary judgment. Record Doc. Nos. 9, 24. For the foregoing reasons, IT IS RECOMMENDED that plaintiff's first and second motions for summary judgment should be denied, subject to the following orders: IT IS RECOMMENDED that Customs and Immigration should be ordered to file supplemental declarations that address whether any other locations are likely to contain responsive records and, if so, the search that was made in those locations, and/or how defendant determined, if it did, that no other record systems are likely to contain responsive material. IT IS FURTHER RECOMMENDED that Customs should be ordered to provide a supplemental declaration that clarifies whether FOIA Exemptions 6 and 7(C) were actually applied and describes more specifically the scope of information redacted pursuant to these exemptions. The supplemental declaration should also provide ameaningful, less conclusory description of the types of information withheld under Exemption 7(E) and the agency's justification for withholding the information. Objections to R&R due by 5/11/2015. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 4/27/2015.(tbl) (Entered: 04/27/2015)
2015-05-09	39	**DEFICIENT**OBJECTION to 38 Report and Recommendations by Michael W. Gahagan (Gahagan, Michael) Modified on 5/11/2015 (cms). (Entered: 05/09/2015)
2015-05-11	40	OBJECTION TO REPORT AND RECOMMENDATIONS re 38 Report and Recommendations by Michael W. Gahagan. Motion set for 5/27/2015 10:00 AM before Judge Nannette Jolivette Brown. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Gahagan, Michael) Modified to correct event & add submission date on 5/11/2015 (cms). (Entered: 05/11/2015)
2015-05-11	41	Correction of Docket Entry by Clerk re 40 OBJECTION TO REPORT AND RECOMMENDATIONS; 1) Filing attorney selected incorrect event. Correct event is Objection to Report and Recommendation located under Motions. Clerk took corrective action by changing the event. 2) Filing attorney did not select submission date, time or judicial officer. Clerk too corrective action (cms) (Entered: 05/11/2015)
2015-05-19	42	RESPONSE/MEMORANDUM in Opposition filed by United States Customs and Border Protection, United States Department of State, United States Immigration and Customs Enforcement re 40 OBJECTION TO REPORT AND RECOMMENDATIONS . (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Dupre, Brock) (Entered: 05/19/2015)
2015-05-22	43	EXPARTE/CONSENT MOTION for Leave to File Plaintiff's Reply to Defendants' Opposition to Plaintiff's Objections to Magistrate's Findings and Recommendations by Michael W. Gahagan. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Gahagan, Michael) Modified text on 5/22/2015 (cms). Modified on 5/26/2015 (jrc). (Entered: 05/22/2015)
2015-05-26	44	ORDER granting 43 Motion for Leave to File Reply to Defendants' Opposition to Plaintiff's Objections to Magistrate's Findings and Recommendations. Signed by Judge Nannette Jolivette Brown. (ijg) (Entered: 05/26/2015)
2015-05-26	45	REPLY to Response to Motion filed by Michael W. Gahagan re 40 OBJECTION TO REPORT AND RECOMMENDATIONS. (ijg) (Entered: 05/26/2015)
2015-06-17	46	ORDER REJECTING REPORT AND RECOMMENDATIONS 38 , GRANTING IN PART, DENYING IN PART AND MOOT IN PART 9 MOTION for Summary Judgment filed by Michael W. Gahagan, GRANTING IN PART, DENYING IN PART AND DEFERRING IN PART 24 Second MOTION for Summary Judgment filed by Michael W. Gahagan.. Signed by Judge Nannette Jolivette Brown on 6/16/15.(jrc) (Entered: 06/17/2015)
2015-06-26	47	ORDER granting in part and denying in part 24 Second MOTION for Summary Judgment filed by Michael W. Gahagan. Signed by Judge Nannette Jolivette Brown.(jrc) (Entered: 06/26/2015)
2015-07-16	48	Response/Reply by All Defendants to 47 Order (Attachments: # 1 Exhibit 1)(Dupre, Brock) (Entered: 07/16/2015)
2015-07-19	49	Third MOTION for Summary Judgment by Michael W. Gahagan. Motion(s) will be submitted on 8/5/2015. (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Memorandum in Support, # 3 Proposed Order, # 4 Notice of Submission)(Gahagan, Michael) (Entered: 07/19/2015)
2015-07-28	50	RESPONSE/MEMORANDUM in Opposition filed by All Defendants re 49 Third MOTION for Summary Judgment . (Attachments: # 1 Exhibit A, # 2 Statement of Contested/Uncontested Facts)(Dupre, Brock) (Entered: 07/28/2015)
2015-07-28	51	EXPARTE/CONSENT MOTION for Leave to File Reply by Michael W. Gahagan. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Gahagan, Michael) (Entered: 07/28/2015)
2015-07-30	52	ORDER granting 51 Motion for Leave to File Reply Memo. Signed by Judge Nannette Jolivette Brown. (jrc) (Entered: 07/30/2015)
2015-07-30	53	REPLY to Response to Motion filed by Michael W. Gahagan re 49 Third MOTION for Summary Judgment . (jrc) (Entered: 07/30/2015)
2015-08-21	54	Witness and Exhibit List by United States Customs and Border Protection, United States Department of State, United States Immigration and Customs Enforcement. (Dupre, Brock) (Entered: 08/21/2015)
2015-08-21	55	Witness and Exhibit List by Michael W. Gahagan. (Gahagan, Michael) (Entered: 08/21/2015)
2015-10-14	56	Proposed Pretrial Order by Michael W. Gahagan (Attachments: # 1 Exhibit)(Gahagan, Michael) (Entered: 10/14/2015)
2015-10-20	57	ORDER granting in part and denying in part 49 Motion for Summary Judgment. Signed by Judge Nannette Jolivette Brown. (jrc) (Entered: 10/20/2015)
2015-10-20	58	ORDER parties are to submit a status report by October 20, 2015 at 5:00 PM. Signed by Judge Nannette Jolivette Brown.(jrc) (Entered: 10/20/2015)
2015-10-20	59	STATUS REPORT by Michael W. Gahagan (Gahagan, Michael) (Entered: 10/20/2015)
2015-10-27	60	Response/Reply by United States Customs and Border Protection to 57 Order on Motion for Summary Judgment (Attachments: # 1 Exhibit A)(Dupre, Brock) (Entered: 10/27/2015)
2015-11-03	61	JUDGMENT. Signed by Judge Nannette Jolivette Brown.(jrc) (Entered: 11/03/2015)
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