Gatore v. DHS, No. 21-5148, 2023 WL 2576176 (D.C. Cir. Mar. 21, 2023) (per curiam)

Gatore v. DHS, No. 21-5148, 2023 WL 2576176 (D.C. Cir. Mar. 21, 2023) (per curiam)

Re:  Request for Assessment to Refer associated with requester’s asylum application

Disposition:  Affirming the district court’s denial of class certification

• Litigation Considerations, Standing:  The Court of Appeals for the District of Columbia Circuit relates that “[t]he only issue on appeal is whether the district court erred in denying class certification under Rule 23(b)(3).”  The court relates that “[the requester], several other requesters, and Catholic Charities (collectively, [the requesters]) filed a class action complaint against DHS.”  “They alleged that DHS violated FOIA by adopting a policy of withholding Assessments to Refer in full without first determining whether any of their contents were nonexempt and could reasonably be segregated from deliberative portions exempt from disclosure.”  Ultimately, the court relates that “DHS released factual portions of the Assessments . . . .”  “DHS also pointed out that it had amended its FOIA policy ‘in order to ensure that [it] process[es] assessments to refer in a manner consistent with recent federal court cases.’”  “The Department issued new guidance instructing its FOIA processors to ‘[r]elease the factual information’ in Assessments upon request.”  “DHS opposed class certification, arguing that both the policy-or-practice and individual claims for disclosure were moot.”  The court finds that “[i]n declining to certify a Rule 23(b)(3) class, the district court concluded that, under ‘the situation as it now exists,’ ‘the requirements of class certification have not been satisfied.’”  “[The requesters] did not argue the voluntary cessation exemption to mootness or preserve any claim to the contrary; indeed, they affirmatively forfeited it in their filing in response to the district court’s Order to Show Cause, where they categorically conceded the mootness of their claims.”  “The undisputed mootness of [the requesters’] claims is alone sufficient to dispose of their Rule 23(b)(3) challenge.”  “[The requesters’] principal argument on appeal is that class certification under Rule 23(b)(3) is warranted to ensure class-wide notice to absent members of the proposed class, but that argument cannot rescue [the requesters’] forfeited bid for class treatment.”  “[The requesters] assert that the district court erred in failing to consider that Rule 23(b)(3)’s notice requirement would entail communicating DHS’s policy change to past FOIA requesters in the proposed class who ‘do not know they have been unfairly treated.’”  “That argument confuses a class action procedure for a remedy.”  “Rule 23(b)(3) certification is not justified by the potential utility of class-wide notice.”  “Rather, the rule authorizes certification only when its requisites – including predominance and superiority – are met.”  “If [the requesters’] broad concession of mootness were not alone fatal, [the requesters] also fall short of establishing predominance and superiority.”  “The core issue common to the class was DHS’s policy of failing to segregate and disclose to [the requesters] the nonexempt portions of Assessments to Refer to which FOIA entitled them.”  “That issue cannot be said to predominate now that the government has discontinued the challenged policy.”  “As to superiority, [the requesters] offer no meaningful explanation apart from their notice argument why litigating the new policy’s correct application to absent class members on a class-wide basis would be superior to addressing such enforcement claims individually.”  “To be sure, the district court could have ruled on class certification before DHS changed its policy.”  “Where an unlawful policy or practice is challenged on behalf of a group of similarly situated individuals, [the court] doubt[s] the general propriety of courts withholding certification until the defendant abandons the policy and then relying on lack of predominance to deny class certification.”  “Here, however, [the requesters] have not claimed that the timing or sequence of the district court’s rulings affected their ability to establish predominance or superiority.”