Gahagan v. United States Citizenship & Immigration Services, No. 2:2015cv02540 - Document 44 (E.D. La. 2016)

Court Description: 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)

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Gahagan v. United States Citizenship & Immigration Services Doc. 44 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MICHAEL GAHAGAN CIVIL ACTION VERSUS NO. 15-2540 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES SECTION “R” (3) ORD ER AN D REASON S Before the Court is Plaintiff Michael Gahagan’s m otion to strike the supplem ental declaration of Brian J . Walsh for lack of personal knowledge. For the following reasons, the Court GRANTS plaintiff’s m otion. I. BACKGROU N D This Freedom of Inform ation Act (FOIA) case involves a dispute between plaintiff Michael Gahagan, an im m igration attorney, and the United States Citizenship and Im m igration Service (USCIS) regarding plaintiff’s request for agency records concerning his client. The Court has previously ruled on cross-m otions for sum mary judgm ent, and the facts of this case are set forth m ore fully in the Court’s Decem ber 2, 20 15 order. 1 As relevant here, the Court denied plaintiff’s m otion for sum m ary judgment and granted in 1 See R. Doc. 20 . Dockets.Justia.com part and denied in part USCIS’s first m otion for sum m ary judgment. 2 The Court found that USCIS’s m otion demonstrated that the agency conducted an adequate search for responsive records but failed to show full FOIA com pliance with respect to two issues: (1) USCIS’s referral to the Departm ent of State of four pages of agency records, and (2) USCIS’s nondisclosure of eight additional pages of agency records identified in the agency’s Vaughn index and supplemental Vaughn index as Records # 572, # 334, # 21, # 22, # 15, # 16, # 31, and # 32. 3 The Court ordered USCIS to produce a new Vaughn index m ore fully explaining its decision to withhold portions of each of these eight documents. On December 16, 20 15, USCIS filed, am ong other things, a revised Vaughn index, 4 a revised supplemental Vaughn index, 5 and a declaration by J ohn F. Hackett, the Director of the Office of Inform ation Programs and Services of the Departm ent of State. 6 USCIS also filed a m otion asking the Court to deem its supplem ental filings sufficient to satisfy the Court’s December 2, 20 15 order, 7 and again sought sum mary judgm ent and an order 2 3 4 5 6 7 Id. Id. at 36. R. Doc. 21-1 at 1-22. Id. at 23-27. R. Doc. 21-3. See R. Doc. 21 at 2. 2 declaring that it has discharged its FOIA obligations. 8 On J uly 26, 20 16, the Court granted in part and denied in part USCIS’s second m otion for sum m ary judgment, 9 holding that while USCIS had m et its burden with respect to Records # 21, # 22, # 334, and # 572, 10 it had not dem onstrated com plete FOIA compliance with respect to Records # 15, # 16, # 31, and # 32. 11 The Court additionally ordered USCIS to either disclose Records # 15, # 16, # 31, and # 32 to plaintiff or to produce a new Vaughn index that remedies the deficiencies identified in the Court’s J uly 26 order. 12 On August 9, USCIS subm itted the revised Vaughn index accom panied by a declaration by Brian J . Welsh, the Deputy Chief of the FOIA Programs Branch of USCIS. 13 On August 15, plaintiff filed this m otion to strike, arguing that Welsh’s declaration was not based on personal knowledge of the withheld inform ation. 14 USCIS filed a m em orandum in opposition, 15 and plaintiff replied. 16 8 R. Doc. 30 at 3. R. Doc. 36. 10 Id. at 7. 11 Id. at 11. The Court also denied plaintiff’s m otion to hold USCIS in contem pt of Court. Id. at 15. 12 Id. at 16. 13 R. Doc. 37; R. Doc. 37-1. 14 See R. Doc. 39. 15 R. Doc. 40 . 16 R. Doc. 43. 3 9 II. LEGAL STAN D ARD Federal Rule of Civil Procedure 56(c)(4) requires declarations offered in support of, or in opposition to, sum mary judgment to be based on personal knowledge. Fed. R. Civ. P. 56(c)(4); Cutting Underw ater Techs. USA, Inc. v. Eni U.S. Operating Co., 671 F.3d 512, 515 (5th Cir. 20 12). While a declaration need not specifically state that it is based on personal knowledge, it m ust include enough factual support for a court to determ ine that its averm ents were based upon the personal knowledge of the declarant. Fed. R. Civ. P. 56(c)(4); see also Thom as v. Atm os Energy Corp., 223 F. App’x. 369, 374 (5th Cir. 20 0 7). When considering a motion for sum m ary judgm ent, a court disregards any portion of a declaration that fails to com ply with Rule 56(c)(4). Akin v. Q– L Investm ents, Inc., 959 F.2d 521, 531 (5th Cir. 1992). III. D ISCU SSION In response to this Court’s J uly 26, 20 16 order, USCIS subm itted a revised Vaughn index and the declaration of Brian J . Welsh. 17 Welsh attests that the revised Vaughn index is “m ore detailed” than the previous one this Court rejected and that the revised justifications “better describe the 17 R. Doc. 37-1 4 redacted m aterials and the relationship to the privileges asserted.”18 Gahagan m oves this Court to strike the entire declaration from the record because of Welsh’s alleged lack of personal knowledge as to any of the withheld inform ation referred to in the revised Vaughn index. In opposition, USCIS argues that FOIA declarants m ay include statem ents in their declarations based on inform ation they have obtained in the course of their official duties. USCIS is correct that FOIA declarants m ay include statements in their declarations based on inform ation they have obtained in the course of their duties. See Barnard v. Dep’t of Hom eland Sec., 598 F. Supp. 2d 1, 18-19 (D.D.C. 20 0 9). Additionally, although the Fifth Circuit has not addressed the issue, this Court is persuaded by the decisions of a number of courts that have held that an agency’s declarant need not have participated personally in the FOIA search to m eet the personal knowledge requirem ent. See Dugan v. Dep’t of Justice, 82 F. Supp. 3d 485, 496 (D.D.C. 20 15) (concluding that declarant was com petent to testify despite having not participated directly in processing the FOIA request); Serv. W om en's Action Netw ork v. Dep’t of Def., 888 F. Supp. 2d 231, 251 (D.Conn. 20 12) (concluding that an “attenuated supervisor” of the person who conducted actual FOIA search had 18 Id. 5 sufficient personal knowledge to give declaration). Rather, a declarant in a FOIA case satisfies Rule 56(c)(4) if he attests to his personal knowledge of the procedures used in handling plaintiff’s FOIA request and his fam iliarity with the docum ents in question. See, e.g., Spannaus v. U.S. Dep’t of Justice, 813 F.2d 1285, 1289 (4th Cir. 1987); Barnard v. Dep’t of Hom eland Sec., 531 F.Supp.2d 131, 138 (D.D.C. 20 0 8); Berm an v. C.I.A., 378 F. Supp. 2d 120 9, 1216 n. 7 (E.D. Cal. 20 0 5), aff’d, 50 1 F.3d 1136 (9th Cir. 20 0 7). These cases do not establish that a FOIA declarant does not need personal knowledge of or at least fam iliarity with the docum ents in question. In fact, all of the cases cited by USCIS in its response cite personal knowledge of the docum ents in question in support of finding the challenged declarations adm issible. See Barnard, 598 F. Supp. 2d at 4-5, 19 (noting that the FOIA declarant reviewed the requested records him self and finding that “a declarant in a FOIA case satisfies the personal knowledge requirem ent in Rule 56(e) if in his declaration, [he] attests to his personal knowledge of the procedures used in handling [a FOIA] request and his fam iliarity w ith the docum ents in question.”) (internal quotation om itted) (em phasis added); Thom pson v. Exec. Office for U.S. Attorney s, 587 F. Supp. 2d 20 2, 20 7 n.4 (D.D.C. 20 0 8) (quoting Barnard above); Hornes v. Exec. Office for U.S. Attorney s, No. 0 4-2190 , 20 0 7 WL 13220 88, at *4 (D.D.C. May 4, 20 0 7) 6 (rejecting challenge to FOIA declaration based on lack of personal knowledge in part because declarant reviewed the requested documents in question); Schoenm an v. FBI., 575 F. Supp. 2d 166, 172 (D.D.C. 20 0 8) (rejecting m otion to strike FOIA declaration because declarant attested to “personal knowledge of the documents at issue”); Londrigan v. FBI., 670 F.2d 1164, 1174 (D.C. Cir. 1981) (rejecting m otion to strike as to portion of FOIA declaration based on declarant’s review of the docum ents in question); Elliot v. Federal Bureau of Prisons, No. 0 4-170 2, 20 0 6 WL 5217760 , at *6 (D.D.C. Oct. 17, 20 0 6) (rejecting m otion to strike FOIA declaration because declarant personally reviewed the records in question). 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 inform ation under FOIA. 19 Presumably, this establishes that he is fam iliar with FOIA procedures. But none of his attestations create an inference that Welsh had personal knowledge or fam iliarity with the docum ents in question. Accordingly, the Court finds that Welsh’s declaration in support of USCIS’s revised Vaughn 19 Id. at 1. 7 index is not based on his personal knowledge. Therefore, the declaration is stricken from the record. IV. CON CLU SION Based on the foregoing reasons, it is ORDERED that Gahagan’s m otion to strike is GRANTED. Defendant shall have 30 days from the date of this order to subm it any supplemental affidavits consistent with this order. New Orleans, Louisiana, this _ 12th _ day of Decem ber, 20 16. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 8

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