Case Detail

FOIA Project Annotation: Judge John Bates has ruled that U.S. Customs and Border Protection failed to show that it properly invoked a Glomar response for records about CBP officer Andrew Tower and the status of his union membership when it issued a Glomar response neither confirming nor denying the existence of records to protect the name of his union representative. Tower became a CBP officer in 2019. He also joined the National Treasury Employees Union and authorized CBP to withdraw his union dues from his paycheck. In September 2021 Tower resigned his union membership and deauthorized dues deductions. NTEU converted him to a "member not in good standing," which, Tower alleged, required NTEU to inform CBP that he was no longer a union member and require CBP to stop deducting his union dues. Neither NTEU nor CBP notified him of the status change and CBP continued to deduct his union dues for another six months. Tower eventually became aware of the situation and asked Robert Holland, a fellow CBP officer and President of NTEU chapter 173, why his status had changed. In November 2022, Tower filed a FOIA request with CBP for records of Holland's communications with Tower concerning why his union status had been changed. CBP invoked a Glomar response to Tower's request, claiming it could neither confirm nor deny the existence of records because they were protected by Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). Tower challenged the agency's Glomar response, arguing that it was actually a categorical denial of his request. Tower contended that 'any privacy interest Holland may have in his identity as a CBP officer is significantly diminished by Holland's widespread public disclosure of that very fact." Tower listed seven examples of public disclosures identifying Holland at a CBP officer. Bates agreed with Tower, noting that "these affirmative public disclosures significantly diminish any privacy interest on the part of Holland in his identify as a CBP officer." Bates indicated that "here, Holland appears to be a vocal, public advocate for the CBP officers in his local union chapter. His public presence extends across a variety of media, even including a feature in a U.S. Senate press release. All of that is to be commended. But these affirmative public disclosures of Holland's identity as a CBP officer seriously undermine CBP's contention that Holland has a meaningful privacy interest in that very fact." CBP claimed that Tower was actually arguing that Holland's identity had been officially acknowledged. Again, Bates sided with Tower, pointing out that "the affirmative nature and extent of the public disclosure here significantly diminishes any associated privacy rights." Bates then found that disclosure of Holland's identity was in the public interest because it would shed light on government activities or operations. However, Bates indicated that his ruling required CBP only to process the request, which might not lead to actual disclosure.
Issues: Determination - Glomar response

Date Filed	Doc #	Docket Text
2023-01-25	1	COMPLAINT against UNITED STATES CUSTOMS AND BORDER PROTECTION ( Filing fee $ 402 receipt number ADCDC-9811238) filed by ANDREW TOWER. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet, # 5 Summons U.S. Customs & Border Protection, # 6 Summons U.S. Attorney, # 7 Summons U.S. Attorney General)(Dorey, David) (Entered: 01/25/2023)
2023-01-25		Case Assigned to Judge John D. Bates. (zrtw) (Entered: 01/25/2023)
2023-01-25	2	SUMMONS (3) Issued Electronically as to UNITED STATES CUSTOMS AND BORDER PROTECTION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zrtw) (Entered: 01/25/2023)
2023-02-07	3	NOTICE of Appearance by Tessa Elizabeth Shurr on behalf of ANDREW TOWER (Shurr, Tessa) (Entered: 02/07/2023)
2023-02-08	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/25/2023. Answer due for ALL FEDERAL DEFENDANTS by 2/24/2023. (Attachments: # 1 Exhibit Receipt of Service)(Dorey, David) (Entered: 02/08/2023)
2023-02-08	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 02/01/23. (Attachments: # 1 Exhibit Receipt of Service)(Dorey, David) (Entered: 02/08/2023)
2023-02-08	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES CUSTOMS AND BORDER PROTECTION served on 1/31/2023 (Attachments: # 1 Exhibit USPS Tracking)(Dorey, David) (Entered: 02/08/2023)
2023-02-22	7	Consent MOTION for Extension of Time to File Answer re 1 Complaint, with proposed order by UNITED STATES CUSTOMS AND BORDER PROTECTION. (O'Tousa, Christina) (Entered: 02/22/2023)
2023-02-23		MINUTE ORDER: Upon consideration of 7 defendant's unopposed motion for extension of time to respond to complaint, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that defendant shall answer or otherwise respond to plaintiff's complaint by not later than April 7, 2023. SO ORDERED. Signed by Judge John D. Bates on 2/23/2023. (lcjdb2) (Entered: 02/23/2023)
2023-02-23		Set/Reset Deadlines: Answer due by 4/7/2023. (tb) (Entered: 02/23/2023)
2023-04-06	8	Consent MOTION to Hold in Abeyance Defendant's Obligation to Respond to Plaintiff's Original Complaint by UNITED STATES CUSTOMS AND BORDER PROTECTION. (Attachments: # 1 Text of Proposed Order)(O'Tousa, Christina) (Entered: 04/06/2023)
2023-04-07		MINUTE ORDER: Upon consideration of 8 the government's consent motion to hold in abeyance its obligation to respond to the complaint, and the entire record herein, it is ORDERED that the motion is GRANTED; it is further ORDERED that the government's obligation to respond to the complaint shall be held in abeyance until plaintiff files his supplemental complaint; and it is further ORDERED that the government shall answer or otherwise respond to the supplemental complaint by not later than 21 days after it is filed. SO ORDERED. Signed by Judge John D. Bates on 4/7/2023. (lcjdb2) (Entered: 04/07/2023)
2023-04-07	9	Consent MOTION for Leave to File Supplemental Complaint by ANDREW TOWER. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Dorey, David) (Entered: 04/07/2023)
2023-04-07		MINUTE ORDER: Upon consideration of 9 plaintiff's consent motion to file a supplemental complaint, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that plaintiff shall file a supplemental complaint by not later than April 21, 2023. SO ORDERED. Signed by Judge John D. Bates on 4/7/2023. (lcjdb2) (Entered: 04/07/2023)
2023-04-10		Set/Reset Deadlines: Supplemental complaint due by 4/21/2023. (tb) (Entered: 04/10/2023)
2023-04-21	10	Supplemental COMPLAINT against All Defendants filed by ANDREW TOWER. (Attachments: # 1 Exhibit D - CBP's Response)(Shurr, Tessa) Modified on 4/24/2023 to correct docket text (zjm). (Entered: 04/21/2023)
2023-05-03	11	Consent MOTION for Extension of Time to File Answer re 10 Amended Complaint ,with proposed order by UNITED STATES CUSTOMS AND BORDER PROTECTION. (O'Tousa, Christina) (Entered: 05/03/2023)
2023-05-03		MINUTE ORDER: Upon consideration of 11 the government's consent motion for an extension of time to respond to the supplemental complaint, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the government shall respond to the supplemental complaint by not later than May 17, 2023. SO ORDERED. Signed by Judge John D. Bates on 5/3/2023. (lcjdb2) (Entered: 05/03/2023)
2023-05-11		Set/Reset Deadlines: Response due by 5/17/2023. (tb) (Entered: 05/11/2023)
2023-05-17	12	Consent MOTION for Extension of Time to File Answer re 10 Amended Complaint by UNITED STATES CUSTOMS AND BORDER PROTECTION. (O'Tousa, Christina) (Entered: 05/17/2023)
2023-05-18		MINUTE ORDER: Upon consideration of 12 the government's consent motion for extension of time to respond to complaint, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that the government shall answer or otherwise respond to the complaint by not later than May 19, 2023. SO ORDERED. Signed by Judge John D. Bates on 5/17/2023. (lcjdb2) (Entered: 05/18/2023)
2023-05-18	13	ANSWER to 10 Amended Complaint , ANSWER to 10 Amended Complaint by UNITED STATES CUSTOMS AND BORDER PROTECTION.(O'Tousa, Christina) (Entered: 05/18/2023)
2023-08-21	14	SCHEDULING ORDER. See text of Order for details. Signed by Judge John D. Bates on 8/21/2023. (lcjdb2) (Entered: 08/21/2023)
2023-08-21		Set/Reset Deadlines: Joint or Separate Status Report and proposed schedule for the processing and release of responsive records and/or a briefing schedule for the filing of dispositive motions is due by 9/11/2023. (jth) Modified on 8/22/2023 (kk). (Entered: 08/21/2023)
2023-09-11	15	PROPOSED BRIEFING SCHEDULE by ANDREW TOWER. (Attachments: # 1 Text of Proposed Order)(Dorey, David) (Entered: 09/11/2023)
2023-09-13	16	Unopposed MOTION for Extension of Time to File Proposed Briefing Schedule Nunc Pro Tunc by UNITED STATES CUSTOMS AND BORDER PROTECTION. (O'Tousa, Christina) (Entered: 09/13/2023)
2023-09-14		MINUTE ORDER: Upon consideration of 16 defendant's unopposed motion for extension of time to file a proposed briefing schedule nunc pro tunc, and the entire record herein, it is hereby ORDERED that the motion is GRANTED nunc pro tunc; and it is further ORDERED that the parties shall file a joint proposed briefing schedule (or, in the event they cannot agree, separate proposed briefing schedules) by not later than September 14, 2023. In the event the parties cannot agree, plaintiff may, but need not, file a revised version of his previously filed proposed briefing schedule by that date. SO ORDERED. Signed by Judge John D. Bates on 9/14/2023. (lcjdb2) (Entered: 09/14/2023)
2023-09-14	17	PROPOSED BRIEFING SCHEDULE by UNITED STATES CUSTOMS AND BORDER PROTECTION. (Attachments: # 1 Text of Proposed Order)(O'Tousa, Christina) (Entered: 09/14/2023)
2023-09-14	18	PROPOSED BRIEFING SCHEDULE by ANDREW TOWER. (Attachments: # 1 Text of Proposed Order)(Dorey, David) (Entered: 09/14/2023)
2023-09-18		MINUTE ORDER: Upon consideration of 17 defendant's proposed briefing schedule and 18 plaintiff's proposed briefing schedule, and the entire record herein, it is hereby ORDERED that the parties shall continue to confer and shall file a joint proposed briefing schedule by not later than September 22, 2023; and it is further ORDERED that this proposal shall include a separate, shorter briefing schedule in the event that defendant elects to file a motion to dismiss rather than a motion for summary judgment. In the event the parties cannot agree, separate proposals (each to also include a separate, shorter motion to dismiss briefing schedule) shall be filed by not later than that date. SO ORDERED. Signed by Judge John D. Bates on 9/18/2023. (lcjdb2) (Entered: 09/18/2023)
2023-09-18		Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 9/22/2023. (zed) (Entered: 09/18/2023)
2023-09-22	19	Joint STATUS REPORT with proposed briefing schedule by UNITED STATES CUSTOMS AND BORDER PROTECTION. (O'Tousa, Christina) (Entered: 09/22/2023)
2023-09-25	20	SCHEDULING ORDER. See text of Order for details. Signed by Judge John D. Bates on 9/25/2023. (lcjdb2) (Entered: 09/25/2023)
2023-09-26		Set/Reset Deadlines: Defendants Motion for Summary Judgment due by 11/8/2023. Plaintiffs Response and cross motion due by 12/22/2023. Defendants Reply and opposition due by 2/2/2024. Plaintiffs Reply to Cross Motion due by 2/23/2023 (or) Motions due by 10/17/2023. Responses due by 11/13/2023. Replies due by 11/28/2023. (zed) (Entered: 09/26/2023)
2023-11-07	21	Joint MOTION to Modify Briefing Schedule by UNITED STATES CUSTOMS AND BORDER PROTECTION. (Attachments: # 1 Text of Proposed Order)(O'Tousa, Christina) (Entered: 11/07/2023)
2023-11-08	22	ORDER granting 21 the parties' joint motion to modify the briefing schedule. See text of Order for details. Signed by Judge John D. Bates on 11/8/2023. (lcjdb2) (Entered: 11/08/2023)
2023-11-21	23	Consent MOTION to Modify Briefing Schedule by UNITED STATES CUSTOMS AND BORDER PROTECTION. (Attachments: # 1 Text of Proposed Order)(O'Tousa, Christina) (Entered: 11/21/2023)
2023-11-22	24	ORDER granting 23 defendant's consent motion to modify the briefing schedule. See text of Order for details. Signed by Judge John D. Bates on 11/22/2023. (lcjdb2) (Entered: 11/22/2023)
2023-11-28	25	MOTION for Summary Judgment by UNITED STATES CUSTOMS AND BORDER PROTECTION. (Attachments: # 1 Statement of Facts, # 2 Declaration of Patrick A. Howard, # 3 Exhibit A, Plaintiff Request, # 4 Exhibit B, CBP Response Letter, # 5 Exhibit C, CBP Clarifying Letter, # 6 Exhibit D, Jan. 16, 2020, OPM Response Letter to CBP, # 7 Exhibit E, OPM Data Release Policy (Aug. 2020), # 8 Exhibit F, DHS Instruction No. 262-11-004 (Jan. 15, 2021), # 9 Text of Proposed Order)(O'Tousa, Christina) (Entered: 11/28/2023)
2023-12-08	26	ERRATA by UNITED STATES CUSTOMS AND BORDER PROTECTION. (Attachments: # 1 Table of Authorities for 25 Defendant's Motion for Summary Judgment))(O'Tousa, Christina) (Entered: 12/08/2023)
2024-01-18	27	Memorandum in opposition to re 25 Motion for Summary Judgment,, filed by ANDREW TOWER. (Attachments: # 1 Declaration of Officer Andrew Tower, # 2 Declaration of David R. Dorey, # 3 Counter-Statement of Material Facts, # 4 Text of Proposed Order)(Dorey, David) (Entered: 01/18/2024)
2024-01-18	28	Cross MOTION for Summary Judgment by ANDREW TOWER. (Attachments: # 1 Memorandum in Support, # 2 Declaration of Officer Andrew Tower, # 3 Declaration of David R. Dorey, # 4 Counter-Statement of Material Facts, # 5 Text of Proposed Order)(Dorey, David) (Entered: 01/18/2024)
2024-02-29	29	Consent MOTION to Modify Briefing Schedule by UNITED STATES CUSTOMS AND BORDER PROTECTION. (O'Tousa, Christina) (Entered: 02/29/2024)
2024-03-01		MINUTE ORDER: Upon consideration of 29 the parties' consent motion to modify the briefing schedule, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; it is further ORDERED that defendant shall file its combined reply and opposition by not later than March 6, 2024; and it is further ORDERED that plaintiff shall file his reply, if any, by not later than March 29, 2024. SO ORDERED. Signed by Judge John D. Bates on 3/1/2024. (lcjdb2) (Entered: 03/01/2024)
2024-03-06	30	REPLY to opposition to motion re 25 MOTION for Summary Judgment filed by UNITED STATES CUSTOMS AND BORDER PROTECTION. (Attachments: # 1 Response to Plaintiff's Statement of Facts, # 2 Text of Proposed Order)(O'Tousa, Christina) (Entered: 03/06/2024)
2024-03-06	31	Memorandum in opposition to re 28 Motion for Summary Judgment, filed by UNITED STATES CUSTOMS AND BORDER PROTECTION. (Attachments: # 1 Response to Plaintiff's Statement of Facts, # 2 Text of Proposed Order)(O'Tousa, Christina) (Entered: 03/06/2024)
2024-03-29	32	NOTICE of Appearance by Nathan J. McGrath on behalf of ANDREW TOWER (McGrath, Nathan) (Entered: 03/29/2024)
2024-03-29	33	REPLY to opposition to motion re 28 Cross MOTION for Summary Judgment filed by ANDREW TOWER. (Shurr, Tessa) (Entered: 03/29/2024)
2024-04-05	34	NOTICE OF WITHDRAWAL OF APPEARANCE as to ANDREW TOWER. Attorney David Richard Dorey terminated. (Dorey, David) (Entered: 04/05/2024)
2024-04-26	35	NOTICE OF WITHDRAWAL OF APPEARANCE as to ANDREW TOWER. Attorney Tessa Elizabeth Shurr terminated. (Shurr, Tessa) (Entered: 04/26/2024)
2024-08-28	36	MEMORANDUM OPINION. Signed by Judge John D. Bates on 08/28/2024. (lcjdb2) (Entered: 08/28/2024)
2024-08-28	37	ORDER denying 25 defendant's motion for summary judgment and granting in part and denying in part 28 plaintiff's cross-motion for summary judgment. See text of Order and accompanying Memorandum Opinion for details. Signed by Judge John D. Bates on 08/28/2024. (lcjdb2) (Entered: 08/28/2024)
2024-10-09		MINUTE ORDER: it is hereby ORDERED that the parties shall file a joint status report by not later than November 4, 2024. SO ORDERED. Signed by Judge John D. Bates on 10/9/2024. (lcjdb2) (Entered: 10/09/2024)
2024-11-04	38	Joint STATUS REPORT by UNITED STATES CUSTOMS AND BORDER PROTECTION. (O'Tousa, Christina) (Entered: 11/04/2024)
2024-11-05		MINUTE ORDER: Upon consideration of 38 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the parties shall file a joint status report by not later than December 19, 2024. Signed by Judge John D. Bates on 11/05/2024. (lcjdb2) (Entered: 11/05/2024)
2024-12-19	39	Joint STATUS REPORT by UNITED STATES CUSTOMS AND BORDER PROTECTION. (O'Tousa, Christina) (Entered: 12/19/2024)
2024-12-20		MINUTE ORDER: Upon consideration of 39 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the parties shall file a joint status report by not later than January 31, 2025. Signed by Judge John D. Bates on 12/20/2024. (lcjdb2) (Entered: 12/20/2024)
2025-01-28	40	NOTICE of Appearance by Anthony Richard Holtzman on behalf of ANDREW TOWER (Holtzman, Anthony) (Entered: 01/28/2025)
2025-01-31	41	STATUS REPORT by ANDREW TOWER. (Holtzman, Anthony) (Entered: 01/31/2025)
2025-02-11		MINUTE ORDER: Upon consideration of 41 plaintiff's status report, and the entire record herein, it is hereby ORDERED that the parties shall file a joint status report by not later than March 3, 2025. Signed by Judge John D. Bates on 2/11/2025. (lcjdb2) (Entered: 02/11/2025)
2025-02-25	42	MOTION for Status Conference by ANDREW TOWER. (Attachments: # 1 Text of Proposed Order)(Holtzman, Anthony) Modified on 2/27/2025 to correct relief(zjm). (Entered: 02/25/2025)
2025-02-28		MINUTE ORDER: Upon consideration of 42 plaintiff's motion for status conference, and the entire record herein, it is hereby ORDERED that the motion is GRANTED; and it is further ORDERED that a status conference is scheduled for March 25, 2025 at 10:30 AM in Courtroom 30 before Judge Bates. If communication between the parties renders the status conference unnecessary, the parties shall so inform the Court. SO ORDERED. Signed by Judge John D. Bates on 2/28/2025. (lcjdb2) (Entered: 02/28/2025)
2025-03-03	43	Joint STATUS REPORT by UNITED STATES CUSTOMS AND BORDER PROTECTION. (O'Tousa, Christina) (Entered: 03/03/2025)
2025-03-04		MINUTE ORDER: Upon consideration of 43 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the status conference scheduled for March 25, 2025 is VACATED; and it is further ORDERED that the parties shall file a joint status report by not later than March 25, 2025. SO ORDERED. Signed by Judge John D. Bates on 3/4/2025. (lcjdb2) (Entered: 03/04/2025)
2025-03-25	44	Joint STATUS REPORT by ANDREW TOWER. (Holtzman, Anthony) (Entered: 03/25/2025)
2025-03-27		MINUTE ORDER: Upon consideration of 44 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the parties shall file a joint status report by not later than April 24, 2025. Signed by Judge John D. Bates on 3/27/2025. (lcjdb2) (Entered: 03/27/2025)
2025-04-24	45	NOTICE of Appearance by Heather D. Graham-Oliver on behalf of All Defendants (Graham-Oliver, Heather) (Entered: 04/24/2025)
2025-04-24	46	Joint STATUS REPORT by ANDREW TOWER. (Holtzman, Anthony) (Entered: 04/24/2025)
2025-04-25		MINUTE ORDER: Upon consideration of 46 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the parties shall file a joint status report by not later than May 26, 2025. Signed by Judge John D. Bates on 4/25/2025. (lcjdb2) (Entered: 04/25/2025)
2025-05-23	47	Joint STATUS REPORT by UNITED STATES CUSTOMS AND BORDER PROTECTION. (Graham-Oliver, Heather) (Entered: 05/23/2025)
2025-05-29		MINUTE ORDER: Upon consideration of 47 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the parties shall file a joint status report by not later than June 25, 2025. Signed by Judge John D. Bates on 5/29/2025. (lcjdb2) (Entered: 05/29/2025)
2025-06-24	48	Joint STATUS REPORT by UNITED STATES CUSTOMS AND BORDER PROTECTION. (Graham-Oliver, Heather) (Entered: 06/24/2025)
2025-07-02		MINUTE ORDER: Upon consideration of 48 the parties' joint status report, and the entire record herein, it is hereby ORDERED that the parties shall file a joint status report by not later than July 25, 2025. Signed by Judge John D. Bates on 7/2/2025. (lcjdb2) (Entered: 07/02/2025)
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