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Stevens v. HHS, No. 22-5072, 2023 WL 2711830 (N.D. Ill. Mar. 30, 2023) (Kennelly, J.)

Date

Stevens v. HHS, No. 22-5072, 2023 WL 2711830 (N.D. Ill. Mar. 30, 2023) (Kennelly, J.)

Re:  Request for records concerning individual who “believes that he is a U.S. citizen, but . . . has been issued a deportation order”

Disposition:  Granting USCIS's motion for summary judgment motion; granting in part plaintiff’s motion for preliminary injunction against ICE

  • Litigation Considerations, Summary Judgment; Procedural Requirements, Proper FOIA Requests; Litigation Considerations, Exhaustion of Administrative Remedies:  “[T]he Court grants USCIS’s motion for summary judgment because [plaintiff] failed to exhaust administrative remedies.”  First, the court finds that “[o]n a Rule 12(b)(6) motion, if ‘matters outside the pleadings are presented to and not excluded by the court,’ then the motion ‘must be treated as one for summary judgment under Rule 56.’”  “The Court concludes that [plaintiff] had a reasonable opportunity to present all pertinent materials.”  “Because all parties had a reasonable opportunity to present all the pertinent materials, the Court converts USCIS’s motion to dismiss to a motion for summary judgment.”

    Responding to defendant’s “argu[ment] that she failed to exhaust administrative remedies,” the court then finds that “[plaintiff] submits that she received USCIS’s denial ‘only after the lawsuit was filed . . . as part of [its] evidentiary submission,’ noting that the address on the denial letter omitted her name and contained an incomplete address.”  “This is sufficient to create a genuine factual dispute regarding whether [plaintiff] received USCIS’s denial letter.”  “Viewing the evidence in her favor, [plaintiff] would be entitled to constructive exhaustion if she submitted a proper FOIA request.”  However, the court finds that “[plaintiff] cannot have constructively exhausted her administrative remedies, however, if she did not submit a proper FOIA request in the first place.”  “[T]he Court agrees with USCIS that [plaintiff’s] request was deficient for omitting [the subject’s] current address . . . .”  “Under a provision of DHS’s FOIA regulations, ‘if a third party requests records about a subject individual, the third party requester must provide verification of the subject individual’s identity in the manner provided in paragraph (e) of this section.’”  “Paragraph (e), in turn, requires the individual’s ‘full name, current address, date and place of birth, and country of citizenship or residency.’”  “Because [plaintiff’s] FOIA request failed to comply with the applicable FOIA regulations, [plaintiff] failed to exhaust administrative remedies.”
     
  • Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court relates that “ICE first contends that [plaintiff’s] motion [for a preliminary injunction] should be denied as moot.”  “‘[B]ut an action is not moot simply because an agency has decided that its partial disclosures are enough.’”  The court finds that “ICE has not produced all of the documents [plaintiff] requested.”  “Rather, ICE has proposed a drawn-out schedule for producing the documents, and [plaintiff’s] preliminary injunction motion seeks a court order requiring a faster production schedule than ICE has proposed.”  “The speed of ICE’s document production is a live issue, and [plaintiff’s] motion is accordingly not moot.”
     
  • Litigation Considerations, Preliminary Injunctions:  “[T]he Court . . . grants in part plaintiff’s motion for a preliminary injunction.”  “ICE is ordered to process 1,500 pages of documents responsive to [plaintiff’s] request per month until production is complete.”  First, “[t]he Court concludes that [plaintiff] has sufficiently shown that she would suffer irreparable harm from a delay in ICE’s production of documents responsive to her FOIA request.”  “‘Because it is not practicable to calculate damages to remedy this kind of harm,’ [plaintiff] has also shown that she lacks an adequate legal remedy.”  Regarding plaintiff’s request for expedited processing, the court relates that “[r]ather than contest that [the] standard is met, ICE argues that ‘[d]enying the motion for preliminary injunction will not change [ICE’s proposed] timeline’ for producing documents and that ‘the court can continue to supervise ICE's production of records just as the court does in any FOIA case.’”  “But ICE itself notes that it is applying its ‘normal processing rate’ for FOIA cases in litigation, rather than an expedited processing rate.”  “‘To afford the plaintiff less than expedited judicial review would all but guarantee that the plaintiff would not receive expedited agency review of its FOIA request.’”  “To put it another way, adopting ICE's approach would write the requirement for expedited processing out of the statute.”  “[Plaintiff] has sufficiently shown irreparable harm for the same reasons she asserts a ‘compelling need’ for the documents.”  “[Plaintiff] explains that she needs the requested documents urgently to help [the subject] in his ‘appeal and request for reopening [his] underlying removal proceedings.’”

    The court then finds that “[plaintiff] is likely to prevail on the merits of her claim that ‘as soon as practicable’ under 5 U.S.C. § 552(a)(6)(E)(iii) requires a processing rate faster than 500 pages per month in this case.”  The court relates that “ICE does not dispute that [plaintiff] has requested and met the standard for expedited production.”  “This supports the proposition that a faster production schedule than the 500-pages-per-month policy approved in [a ‘Seventh Circuit [case which] analyzed a non-expedited FOIA request and held that a 500-pages-per-month schedule was releasing the records ‘promptly’ under the provision relating to non-expedited requests’] is necessary in this case.”

    Finally, the court finds that “ICE . . . fails to persuade the Court that granting a preliminary injunction in this case will harm the public interest.”  “ICE does not respond to [plaintiff’s] contention that ICE could have met its FOIA obligations by submitting appropriate budget requests.”  “And it is hard to swallow the proposition that an agency may, by its decisions on how to allocate resources, effectively make FOIA’s expedited processing provision a dead letter.”  “Similarly unpersuasive is ICE’s vague assertion that any processing rate faster than 500 pages per month risks disclosure of exempted documents.”  “[Plaintiff] will face irreparable harm in the absence of an injunction, which outweighs the harm ICE will face if required to process more than 500 pages per month.”  “That said, [plaintiff’s] original request for all 13,640 records to be released in 30 days appears impracticable even if one discounts ICE’s resource constraints.”  “The Court concludes that a 1,500-page-per-month processing rate, ‘which still contemplates a protracted period of review and production’ of roughly nine months to produce all the records currently identified by ICE, ‘appropriately balances agency constraints’ and ‘FOIA’s aims to provide timely information on government activities to the public,’ given that [plaintiff’s] request met the statutory requirements for expedited processing.”
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Exhaustion of Administrative Remedies
Litigation Considerations, Mootness and Other Grounds for Dismissal
Litigation Considerations, Preliminary Injunctions
Litigation Considerations, Summary Judgment
Procedural Requirements, Proper FOIA Requests
Updated May 1, 2023