Manatt v. DHS, No. 19-01163, 2020 WL 4060277 (E.D. Pa. July 20, 2020) (Wolson, J.)

Manatt v. DHS, No. 19-01163, 2020 WL 4060277 (E.D. Pa. July 20, 2020) (Wolson, J.)

Re:  Request for records concerning "'Zero-Tolerance Policy for Criminal Illegal Entry'"

Disposition:  Granting defendants' motion for summary judgment; requiring defendants to file additional evidence, submit certain documents for in camera inspection, and give certain testimony concerning prior court orders

• Procedural Requirements, Time Limits:  The court finds that "[i]t is undisputed that USCIS did not respond to Plaintiffs' FOIA request in the time that the statute required."
   
• Litigation Considerations, Adequacy of Search:  The court holds that "USCIS has not satisfied its burden to show that it conducted an adequate search."  The court finds that "[defendants'] declaration does not describe the scope or methods of USCIS's search for responsive documents."  "It provides no search terms, does not identify the custodians or systems searched, or provide any other information about USCIS's search methodology."  Additionally, the court notes that "Plaintiffs have pointed to facts indicating that materials exist, in the form of missing email attachments."  "USCIS does not deny the possibility of missing documents."  "In [its] declaration, [defendant] says that USCIS was still working 'to determine whether any attachments were inadvertently left out of the production.'"  The court holds that "Plaintiffs' evidence, and USCIS's apparent concession that documents might be missing, further calls into question the adequacy of USCIS's search."  "The Court will not, at this point, conclude that USCIS's search was inadequate, though that possibility exists."  "Instead, the Court will give USCIS an opportunity to supplement the record with additional detail about the search that it conducted."
   
• Litigation Considerations, Pattern-or-Practice Claims:  The court holds that "[e]ven assuming that the Third Circuit would adopt such a claim, Plaintiffs have not mustered evidence to support it here."  "First, Plaintiffs point to USCIS's failure to respond to their second FOIA request."  "That request was duplicative of the first request, though."  "USCIS's handling of duplicative requests, including its delay in responding, does not shed light on how it handles all requests."  "Second, Plaintiffs point to at least 74 other lawsuits against USCIS that allege USCIS did not respond to FOIA requests within the statutory time limit."  'While the Court can take notice of the fact that those lawsuits were filed, it has no basis to determine whether or not the allegations are correct."  "Ultimately, Plaintiffs' list of cases is just that – a list of cases."  "It provides the Court with no information about what USCIS did in each of those cases."
   
• Exemption 5, Deliberative Process Privilege:  "[T]he Court concludes that Defendants have satisfied their burden of establishing that Exemption 5 applies [to certain Congressional inquiries, press inquiries, or public communication]."  The court relates that "Plaintiffs contend that many of the documents are not pre-decisional because they post-date the adoption of the Zero Tolerance Policy."  "Their argument conflates the adoption of a policy with an agency's decisions."  The court holds that "[w]hile adoption of a policy is a distinct event, agencies make granular decisions every day."  'Here, USCIS made routine decisions about how to respond to inquiries from Congress, the press, and the public."  "Decisions about how to respond to those day-to-day matters are agency decisions subject to the deliberative process privilege, even if they post-date the adoption of a policy."  "Plaintiffs' arguments about what constitutes a deliberation for purposes of the Exemption also misses the mark."  The court holds that "documents about potential statements to Congressional inquiries, press inquiries, or public communication are all deliberative, even if they do not relate to the adoption of a 'Policy.'"  "These include deliberations in order to prepare for inquiries that someone might make but has not yet made."
  
  "However, for certain documents, the Court cannot determine whether Exemption 5 applies even after reviewing the documents and the Vaughn Index . . . ."  "The Court will review these documents in camera."
   
• Litigation Considerations:  The court relates that "DHS admits that it has not complied with this Court's Order directing it to produce the documents that USCIS referred to it."  "To justify its noncompliance," the court relates that defendants related to the court "a number of excuses about how busy DHS is responding to FOIA requests."  "The problem for DHS . . . is that DHS was not free to ignore this Court's Order."  "If DHS could not comply with the Court's Order, then its remedy was to show good cause and ask for more time."  "The Court finds DHS's approach here unacceptable."  "The Court will conduct a hearing to determine what remedy is appropriate for DHS's noncompliance with the Court’s Order."