Case Detail

FOIA Project Annotation: A federal court in Louisiana has ruled that U.S. Citizenship and Immigration Services conducted an adequate search for records pertaining to one of immigration attorney Michael Gahagan's clients and that its Vaughn index sufficiently justified its search and the majority of its exemption claims. However, the court also found that USCIS had not adequately explained the status of four pages referred to the State Department and had failed to provide adequate explanations of a handful of documents withheld under Exemption 5 (privileges). Gahagan filed suit before the agency had responded. The agency then disclosed 555 pages in full, 32 pages in part, withheld one page in full, and referred four pages to the State Department. Once the agency's search was complete, it located an additional 32 pages, of which it released 23 pages in full, six pages with redactions, and withheld three pages in full. Gahagan attacked the agency's affidavit because it was written by the assistant FOIA director, who, Gahagan alleged, did not have personal knowledge about how his FOIA request was processed. Judge Sarah Vance rejected the claim, noting that the staffer "attests to her active role in USCIS's search for records responsive to plaintiff's request, as well as her familiarity with both the search procedures that the agency used and the documents at issue." Vance found the agency's search was adequate. She noted in reference to its search for emails from USCIS's New Orleans office that the agency's affidavit "names every individual involved in the search and specifically describes each person's search methods, including the locations searched and the search terms used. Contrary to plaintiff's assertion, this description is neither vague nor conclusory. It contains specific details about who searched for records and how they approached the task, thereby permitting the Court to evaluate the adequacy of USCIS's efforts." Gahagan argued that the agency's affidavit did not identity why certain databases were not searched, which Gahagan said was required by the D.C. Circuit. But Vance pointed out that in the Fifth Circuit "an agency's declarant need not identify every path not taken in order to demonstrate the adequacy of its search." Vance, however, turned to D.C. Circuit case law to interpret USCIS's referral obligations. The agency pointed out that only four pages had been referred to State. But Vance observed that "the page count, however, is not dispositive. USCIS is not absolved of its FOIA obligation with respect to records that originated with the Department of State merely because it happens to have many internally-produced documents on hand as well. Instead, the issue is whether USCIS's referral procedure significantly delays or impairs plaintiff's ability to obtain those records that were referred instead of released." Vance then indicated that "USCIS has not explained, in light of these circumstances, why its referral will not significantly delay plaintiff's FOIA request or impair his ability to obtain responsive agency records." Vance found several of USCIS's exemption claims were not sufficiently justified. Dismissing the agency's claim that an email chain was protected by attorney-client privilege and the deliberative process privilege, she noted that "Plaintiff contends, however, that neither of the individuals that the supplemental Vaughn index names as participants in the email chain are attorneys. USCIS does not dispute this assertion. Nor does it explain why it characterizes an email chain between two non-attorneys as involving a 'discussion between USCIS counsel to USCIS personnel.' Without further explanation, the Court cannot evaluate whether USCIS's assertion of the attorney-client privilege is lawful." Gahagan contended the agency had failed to show that it conducted an adequate segregability analysis. Vance found the agency had sufficiently explained why no non-exempt information could be disclosed from one document protected by the deliberative process privilege, but noted as to another document that because "the agency describes a 'portion' of the document as being exempt suggests that other portions might not contain protected information. The index does not indicate whether USCIS considered this possibility. Nor does it provide any explanation for the agency's conclusion that the document must be withheld in full, rather than being partially disclosed."
Issues: Search - Referral, Adequacy - Search, Exemption 5 - Privileges - Attorney-client privilege

FOIA Project Annotation: A federal court in Louisiana has ruled that U.S. Citizenship and Immigration Services properly processed immigration attorney Michael Gahagan's FOIA request, although the court found the agency's claim that emails involving two non-attorneys were protected by Exemption 5 (attorney-client privilege) was incorrect. The issues remaining in the case involved several records that been referred to the Department of State. By the time of this decision, State had processed those records and the court found the agency had properly redacted them. Gahagan urged the court to find the agency had acted in bad faith by claiming the attorney-client privilege for emails involving non-attorneys. Declining to find bad faith on the part of the agency, the court noted that "because USCIS specifically cited the deliberative process privilege in its initial Vaughn indexes, and because the agency produced the [non-attorney] emails after it withdrew its deliberative process privilege claim, the Court does not interpret USCIS's initial invocation of exemption five as an implicit claim that [the two non-attorney agency staffers] are attorneys for USCIS."
Issues: Litigation - Sanctions - Bad faith, Exemption 5 - Privileges - Attorney-client privilege

FOIA Project Annotation: A federal court in Louisiana has ordered an affidavit submitted by Brian Welsh, Deputy Chief of the FOIA Branch at U.S. Citizenship and Immigration Services, stricken from the record for lack of personal knowledge of the request at issue. In a case brought by immigration attorney Michael Gahagan, the court had previously found the agency's Vaughn index insufficient. Welsh submitted a supplemental affidavit on behalf of the agency. Gahagan challenged the affidavit on the grounds that Welsh did not have personal knowledge of the processing of the request. While the court agreed with decisions by district courts in other jurisdictions that personal knowledge was satisfied when an affiant showed an involvement and understanding of the agency's FOIA processing, it agreed with Gahagan that Welsh failed to show he had sufficient personal knowledge of the processing of Gahagan's request. The court noted that "Welsh's declaration attests to his position with USCIS, that he is a licensed attorney, that he was previously a judge advocate in the United States Air Force, and that as part of his duties as a military lawyer, he provided legal advice on the release of information under FOIA. Presumably, this establishes that he is familiar with FOIA procedures. But none of his attestations create an inference that Welsh has personal knowledge or familiarity with the documents at question. Accordingly, the Court finds that Welsh's declaration in support of USCIS's revised Vaughn index is not based on his personal knowledge."
Issues: Litigation - Vaughn index

FOIA Project Annotation: A federal court in Louisiana has ruled that U.S. Citizenship and Immigration Services has now provided a sufficient explanation of its Exemption 5 (privileges) claims as well as its segregability analysis. Immigration attorney Michael Gahagan challenged the qualifications of the agency's declarant, arguing that he did not have personal knowledge of the agency's processing of his request for records about a client. In an earlier ruling, the court agreed and ordered the agency to provide a further explanation. This time, the agency came back claiming that a series of email chains were protected by the attorney-client privilege and the deliberative process privilege. Finding the agency had supported both privileges, the court pointed out that "the redacted portions of [the records] involve confidential communications between USCIS and its counsel, and also explain the connection between those communications and a litigation matter." As to its deliberative process privilege claim, the court pointed out that the redacted portions of the records "involve initial discussions between USCIS counsel and agency personnel related to defending a lawsuit. The revised Vaughn index also explains the connection between these communications and concerns for candid decisionmaking discussions regarding agency functions." Although the court found the agency's statement regarding segregability too general, it nevertheless found that, in conjunction with the supplemental Vaughn index its explanations were now adequate. The court observed that "these detailed Vaughn index entries, combined with USCIS's declaration that a segregation analysis was conducted, demonstrate that the documents in question are not further segregable."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2015-07-12	1	COMPLAINT against US Citizenship & Immigration Services (Filing fee $ 400 receipt number 053L-4930675) filed by Michael W. Gahagan. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons) Attorney Michael Wayne Gahagan added to party Michael W. Gahagan(pty:pla).(Gahagan, Michael) (Entered: 07/12/2015)
2015-07-13	2	Initial Case Assignment to Chief Judge Sarah S. Vance and Magistrate Judge Daniel E. Knowles, III. (JLS) (Entered: 07/13/2015)
2015-07-14	3	Summons Issued as to United States Citizenship and Immigration Services. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(mmm) (Entered: 07/14/2015)
2015-08-07	4	MOTION for More Definite Statement by United States Citizenship and Immigration Services. Motion referred to Magistrate Judge Daniel E. Knowles, III. Motion(s) will be submitted on 9/2/2015. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Notice of Submission)Attorney Brock Darren Dupre added to party United States Citizenship and Immigration Services(pty:dft).(Dupre, Brock) Modified on 8/14/2015 (plh). (Entered: 08/07/2015)
2015-08-10	5	SUMMONS Returned Executed; United States Citizenship and Immigration Services served on 7/22/2015, answer due 9/21/2015. U.S. Attorney served on 7/22/2015, answer due 9/21/2015. Department of Homeland Security served on 7/22/2015, answer due 9/21/2015. U.S. Attorney General served on 7/23/2015, answer due 9/21/2015. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Gahagan, Michael) Modified on 8/11/2015 (mmm). (Entered: 08/10/2015)
2015-08-11	6	First MOTION for Summary Judgment by Michael W. Gahagan. Motion(s) will be submitted on 9/2/2015. (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Memorandum in Support, # 3 Exhibit, # 4 Exhibit, # 5 Proposed Order, # 6 Notice of Submission)(Gahagan, Michael) (Entered: 08/11/2015)
2015-08-13	7	RESPONSE/MEMORANDUM in Opposition filed by Michael W. Gahagan re 4 MOTION for More Definite Statement . (Attachments: # 1 Proposed Order)(Gahagan, Michael) (Entered: 08/13/2015)
2015-08-14	8	ORDER Setting ORAL Hearing on 4 MOTION for More Definite Statement : Motion Hearing with Oral Argument set for 9/2/2015 11:00 AM before Magistrate Judge Daniel E. Knowles III. Signed by Magistrate Judge Daniel E. Knowles, III on 8/14/15.(plh) (Entered: 08/14/2015)
2015-08-25	9	RESPONSE/MEMORANDUM in Opposition filed by United States Citizenship and Immigration Services re 6 First MOTION for Summary Judgment . (Attachments: # 1 Exhibit A, # 2 Statement of Contested/Uncontested Facts)(Dupre, Brock) (Entered: 08/25/2015)
2015-08-28	10	EXPARTE/CONSENT MOTION for Leave to File Reply by Michael W. Gahagan. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading, # 3 Exhibit)(Gahagan, Michael) Modified on 8/31/2015 (mmm). (Entered: 08/28/2015)
2015-08-31	11	ORDER granting 10 Motion for Leave to File Reply Memorandum. Signed by Chief Judge Sarah S. Vance on 8/31/15. (jjs) (Entered: 08/31/2015)
2015-08-31	12	REPLY to Response to Motion filed by Michael W. Gahagan re 6 First MOTION for Summary Judgment . (Attachments: # 1 Exhibit)(jjs) (Entered: 08/31/2015)
2015-09-02	13	Minute Order. Proceedings held before Magistrate Judge Daniel E. Knowles, III: Motion Hearing held on 9/2/2015 re 4 MOTION for More Definite Statement filed by United States Citizenship and Immigration Services. ORDERED that the 4 Motion for More Definite Statement is DISMISSED WITHOUT PREJUDICE AS MOOT. (plh) (Entered: 09/02/2015)
2015-09-15	14	ANSWER to 1 Complaint, by United States Citizenship and Immigration Services.(Dupre, Brock) (Entered: 09/15/2015)
2015-10-05	15	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: 10/05/2015)
2015-10-05	16	RESPONSE/MEMORANDUM in Opposition filed by Michael W. Gahagan re 15 MOTION for Leave to File Sur Reply in Opposition to Plaintiff's Motion for Summary Judgment . (Attachments: # 1 Proposed Order)(Gahagan, Michael) (Entered: 10/05/2015)
2015-10-06	17	ORDER denying 15 Motion for Leave to File Sur-Reply.. Signed by Judge Sarah S. Vance on 10/6/15. (jjs) (Entered: 10/06/2015)
2015-10-14	18	MOTION for Summary Judgment by United States Citizenship and Immigration Services. Motion(s) will be submitted on 11/11/2015. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Statement of Contested/Uncontested Facts, # 5 Notice of Submission)(Dupre, Brock) (Entered: 10/14/2015)
2015-10-25	19	RESPONSE/MEMORANDUM in Opposition filed by Michael W. Gahagan re 18 MOTION for Summary Judgment . (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Memorandum in Support, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Proposed Order)(Gahagan, Michael) (Entered: 10/25/2015)
2015-12-02	20	ORDER AND REASONS denying 6 Motion for Summary Judgment; granting in part and denying in part 18 Motion for Summary Judgment. USCIS is entitled to judgment as a matter of law with respect to the adequacy of its search. But USCIS has failed to carry its burden of demonstrating full FOIA compliance with respect to (1) its referral to the Department of State of four pages of agency records that are responsive to plaintiff's FOIA request and (2) its withholding of certain documents in, in whole or in part, as discussed more fully in Section III.D of the Court's Order. IT IS ORDERED that within fourteen (14) days of the entry of this Order, USCIS shall produce a new Vaughn index that remedies the deficiencies identified in Section III.D of the Court's Order.. Signed by Judge Sarah S. Vance on 12/2/15. (jjs) (Entered: 12/02/2015)
2015-12-16	21	Response in Compliance by United States Citizenship and Immigration Services to 20 Order on Motion for Summary Judgment. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Dupre, Brock) Modified on 12/17/2015 (mmm). (Entered: 12/16/2015)
2016-04-04	22	NOTICE - Scheduling Conference set for 4/28/2016 10:00 AM before case manager by telephone. By Clerk.(jjs) (Entered: 04/04/2016)
2016-04-28	23	NOTICE - The PRELIMINARY CONFERENCE set for APRIL 28, 2016 is hereby continued without date.. by Clerk.(jjs) (Entered: 04/28/2016)
2016-04-29	24	ORDER that the Government's Response 21 is hereby set for submission without oral argument on MAY 25, 2016. Memorandum in Opposition to be file in accordance with Local Rule 7.5.. Signed by Judge Sarah S. Vance on 4/29/16.(jjs) (Entered: 04/29/2016)
2016-05-08	25	RESPONSE/MEMORANDUM in Opposition filed by Michael W. Gahagan re 18 MOTION for Summary Judgment . (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Memorandum in Support, # 3 Proposed Order, # 4 Exhibit, # 5 Exhibit)(Gahagan, Michael) (Entered: 05/08/2016)
2016-06-16	26	EXPARTE/CONSENT MOTION for Leave to File Reply in Support of its Motion for Summary Judgment by United States Citizenship and Immigration Services. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading, # 3 Exhibit A, # 4 Exhibit B)(Dupre, Brock) (Entered: 06/16/2016)
2016-06-17	27	MOTION Contempt of Court by Michael W. Gahagan. Motion(s) will be submitted on 7/6/2016. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Notice of Submission)(Gahagan, Michael) Modified submission date to reflect correct date on 6/20/2016 (ajn). (Entered: 06/17/2016)
2016-06-20	28	Correction of Docket Entry by Clerk re 27 MOTION Contempt of Court. ***Filing attorney selected incorrect submission date. Correct date is 7/6/2016. Clerk took corrective action. (ajn) (Entered: 06/20/2016)
2016-06-20	29	ORDER granting 26 Motion for Leave to File Reply.. Signed by Judge Sarah S. Vance on 6/20/16. (jjs) (Entered: 06/20/2016)
2016-06-20	30	REPLY to Response to Motion filed by United States Citizenship and Immigration Services re 18 MOTION for Summary Judgment . (Attachments: # 1 Exhibit A, # 2 Exhibit B)(jjs) (Entered: 06/20/2016)
2016-06-28	31	RESPONSE/MEMORANDUM in Opposition filed by United States Citizenship and Immigration Services re 27 MOTION Contempt of Court . (Attachments: # 1 Exhibit A)(Dupre, Brock) (Entered: 06/28/2016)
2016-06-30	32	MOTION for Leave to File Plaintiff's Reply to Defendant's Opposition to Plaintiff's Motion to Hold Defendant in Contempt of Court filed by Michael W. Gahagan (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Gahagan, Michael) Modified text on 7/1/2016 (ajn). (Entered: 07/01/2016)
2016-07-01	33	Correction of Docket Entry by Clerk re 32 Reply to Response to Motion. ***Filing attorney selected incorrect event. Correct event is Motion for Leave to File Document. Clerk took corrective action by changing the event.*** (ajn) (Entered: 07/01/2016)
2016-07-06	34	ORDER granting 32 Motion for Leave to File Reply Memorandum.. Signed by Judge Sarah S. Vance on 7/6/16. (jjs) (Entered: 07/06/2016)
2016-07-06	35	REPLY to Response to Motion filed by Michael W. Gahagan re 27 MOTION Contempt of Court . (jjs) (Entered: 07/06/2016)
2016-07-26	36	ORDER AND REASONS - The Court GRANTS IN PART AND DENIES IN PART USCIS's second motion for summary judgment and DENIES plaintiff's motion to hold USCIS in contempt of Court. USCIS is entitled to judgment as a matter of law with respect to: (1) its referral to the Department of State of four pages of agency records responsive to plaintiff's FOIA request, and (2) its processing of Records #21, #22, #334, and #572. But USCIS has failed to carry its burden of demonstrating full FOIA compliance with respect to its non-disclosure of Records #15, #16, #31, and #32. IT IS ORDERED that within fourteen (14) days of the entry of this order, USCIS shall either disclose Records #15, #16, #31, and #32 to plaintiff in full or produce a new Vaughn index that remedies the deficiencies identified in Section III.C of this order. Signed by Judge Sarah S. Vance. (bwn) (Entered: 07/26/2016)
2016-08-09	37	Response/Reply by United States Citizenship and Immigration Services to 36 Order on Motion for Miscellaneous Relief,,, (Attachments: # 1 Exhibit A)(Dupre, Brock) (Entered: 08/09/2016)
2016-08-15	38	RESPONSE/MEMORANDUM in Opposition filed by Michael W. Gahagan re 37 Response/Reply by United States Citizenship and Immigration Services to 36 Order on Motion for Miscellaneous Relief as to 18 MOTION for Summary Judgment. (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Memorandum in Support, # 3 Proposed Order)(Gahagan, Michael) (Entered: 08/15/2016)
2016-08-15	39	MOTION to Strike 37 Response/Reply by Michael W. Gahagan. Motion(s) will be submitted on 8/31/2016. (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Memorandum in Support, # 3 Proposed Order, # 4 Notice of Submission)(Gahagan, Michael) (Entered: 08/15/2016)
2016-08-23	40	RESPONSE/MEMORANDUM in Opposition filed by United States Citizenship and Immigration Services re 39 MOTION to Strike 37 Response/Reply . (Attachments: # 1 Statement of Contested/Uncontested Facts)(Dupre, Brock) (Entered: 08/23/2016)
2016-08-24	41	EXPARTE/CONSENT MOTION for Leave to File Reply by Michael W. Gahagan. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Gahagan, Michael) (Entered: 08/24/2016)
2016-08-25	42	ORDER granting 41 Motion for Leave to File Reply.. Signed by Judge Sarah S. Vance on 8/25/16. (jjs) (Entered: 08/25/2016)
2016-08-25	43	REPLY to Response to Motion filed by Michael W. Gahagan re 39 MOTION to Strike 37 . (jjs) (Entered: 08/25/2016)
2016-12-12	44	ORDER & REASONS granting 39 Motion to Strike. Defendant shall have 30 days from the date of this order to submit any supplemental affidavits consistent with this order. Signed by Judge Sarah S. Vance on 12/12/2016. (mmm) (Entered: 12/12/2016)
2017-01-11	45	Response/Reply by United States Citizenship and Immigration Services to 36 Order on Motion for Miscellaneous Relief,,, 44 Order on Motion to Strike (Attachments: # 1 Exhibit A)(Dupre, Brock) (Entered: 01/11/2017)
2017-04-04	46	ORDER - Scheduling Conference set for 4/27/2017 10:00 AM before case manager by telephone. Signed by Judge Sarah S. Vance on 4/4/17.(jjs) (Entered: 04/04/2017)
2017-04-09	47	EXPARTE/CONSENT MOTION to Continue Scheduling Conference by Michael W. Gahagan. (Attachments: # 1 Proposed Order)(Gahagan, Michael) (Entered: 04/09/2017)
2017-04-10	48	ORDER granting 47 Motion to Continue. Scheduling Conference set for 5/4/2017 10:00 AM before case manager by telephone. Signed by Judge Sarah S. Vance on 4/10/2017. (cg) (Entered: 04/10/2017)
2017-05-04	49	ORDER - After discussion with counsel, the PRELIMINARY CONFERENCE set for May 4, 2017 is continued without date. Within the next week, the Government will be filing a motion with the Court to re-urge summary judgment.. Signed by Judge Sarah S. Vance on 5/4/2017.(jjs) (Entered: 05/04/2017)
2017-05-10	50	Third MOTION for Summary Judgment by United States Citizenship and Immigration Services. Motion(s) will be submitted on 6/7/2017. (Attachments: # 1 Memorandum in Support, # 2 Statement of Contested/Uncontested Facts, # 3 Notice of Submission)(Dupre, Brock) (Entered: 05/10/2017)
2017-05-28	51	Deficient: RESPONSE/MEMORANDUM in Opposition filed by Michael W. Gahagan re 50 Third MOTION for Summary Judgment . (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Gahagan, Michael) Modified on 5/30/2017 (cg). (Entered: 05/28/2017)
2017-05-30	52	RESPONSE/MEMORANDUM in Opposition filed by Michael W. Gahagan re 50 Third MOTION for Summary Judgment . (Attachments: # 1 Statement of Contested/Uncontested Facts, # 2 Memorandum in Support, # 3 Proposed Order)(Gahagan, Michael) (Entered: 05/30/2017)
2017-08-08	53	ORDER AND REASONS granting 50 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 8/8/2017. (cg) (Entered: 08/08/2017)
2017-08-08	54	JUDGMENT - Considering the Court's order and reasons on file herein, IT IS ORDERED, ADJUDGED AND DECREED that plaintiff's complaint is hereby dismissed with prejudice. Signed by Judge Sarah S. Vance on 8/8/2017.(cg) (Entered: 08/08/2017)
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