Gonzales & Gonzales Bonds & Ins. Agency Inc. v. U.S. Dep't of Homeland Sec.

• Decision Date: 21 December 2012
• Docket Number: No. C 11-02267 DMR,C 11-02267 DMR
• Parties: GONZALES AND GONZALES BONDS AND INSURANCE AGENCY INC, Plaintiff(s), v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant(s).
• Court: U.S. District Court — Northern District of California

GONZALES AND GONZALES BONDS AND INSURANCE AGENCY INC, Plaintiff(s),

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant(s).

No. C 11-02267 DMR

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Dated: December 21, 2012

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Defendant United States Department of Homeland Security ("DHS") moves pursuant to Federal Rule of Civil Procedure 56 for summary judgment against all claims in Plaintiff Gonzales and Gonzales Bonds and Insurance Agency, Inc.'s complaint. Plaintiff opposes Defendant's motion and cross-moves for summary judgment. For the reasons stated below, the court grants in part and denies in part Defendant's motion, and grants in part and denies in part Plaintiff's motion as well.

I. Background and Procedural History

Plaintiff is an authorized agent and underwriter of bonds. It posts immigration bonds with DHS on behalf of American Surety Company, a federally approved surety company, for the release of aliens from detention pending determination of the alien's immigration status. (Am. Compl. ¶¶ 6, 16; Def.'s Mot. Summ. J. 3.) Since June 23, 2009, Plaintiff has filed approximately 571 alien file("A-file")¹ requests with DHS pursuant to the Freedom of Information Aet ("FOIA"), 5 U.S.C. § 552. (Am. Compl. ¶¶ 1, 30; Laird Deel. ¶ 4, Apr. 12, 2012.) Aeeording to Plaintiff, DHS has failed to respond to many of these FOIA requests; with respeet to those requests to whieh DHS has replied, Plaintiff alleges that the responses were untimely² and that DHS "improperly withheld A-file doeuments."³ (Am. Compl. ¶ 30.) Plaintiff attributes many of these allegedly improperwithholdings to DHS's relianee on the eonsent provision in 6 C.F.R. § 5.3(a) ("the Consent Provision"), through whieh DHS mandates that if a party makes a FOIA request about another individual, "either a written authorization signed by that individual permitting diselosure of those reeords . . . or proof that that individual is deeeased . . . must be submitted," § 5.3(a). (Am. Compl. ¶ 31.)

On May 9, 2011, Plaintiff filed this aetion, bringing three eauses of aetion against DHS stemming from the ageney's alleged failure and/or refusal to provide Plaintiff with the A-files. (See generally Compl.) In Count I, Plaintiff elaimed that DHS improperly responded to 183 A-file requests by providing Plaintiff only with so-ealled "Reeord of Proeeedings" doeuments ("ROPs") or a letter giving a brief deseription of the alien's status as removed, in removal proeeedings, or apprehended and in eustody. (Compl. ¶¶ 29-32; see Compl. Exs. 9-13.) Plaintiff filed administrative appeals for eaeh request between Oetober 30, 2009 and April 7, 2010. (Compl. ¶ 33.) However, as of May 6, 2011, with the exeeption of the aeknowledgment of one appeal, DHS had failed to timely respond to these appeals.⁴ (Compl. ¶ 33.) In Count II, Plaintiff elaimed that when it filed an additional 240 A-file requests, DHS again insuffieiently and untimely responded with more ROPs. (Compl. ¶¶ 35-37; see Compl. Ex. 14.) Plaintiff did not appeal these requests, beeause it believed from its experienee in Count I that doing so would have been futile. (Compl. ¶ 38.) In Count III, Plaintiff elaimed that as of May 6, 2011, DHS had failed to timely aeknowledge, let alone properly respond to, 148 other requests that it had submitted between August 6, 2009 and April 4, 2011. (Compl. ¶ 40; see Compl. Ex. 16.) Plaintiff did not appeal these requests, as it believed that it would have proven futile in light of its experienees set forth in Count I. (Compl. ¶ 40.)

Defendant moved to dismiss Plaintiff's eomplaint for laek of subjeet matter jurisdietion or, in the alternative, for Plaintiff's failure to exhaust its administrative remedies. [Doeket No. 28.] In thelatter argument, DHS asserted that Plaintiff failed to perfeet its administrative appeals and that, when seeking information about third-parties, Plaintiff failed to submit the eonsent authorization required by § 5.3(a). The eourt granted Defendant's motion on the grounds that Plaintiff had failed to exhaust his administrative remedies by not adhering to the Consent Provision, and dismissed Plaintiff's eomplaint with leave to amend. Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. U.S. Dep't of Homeland Sec., No. 11-2267 DMR, 2012 WL 424852, at *6 (N.D. Cal. Feb. 9, 2012). In the interest of eonserving the eourt's and parties' resourees, the eourt also held that Plaintiff's failure to exhaust its administrative remedies with respeet to the FOIA applieations in Counts II and III did not preelude the eourt from entertaining Plaintiff's elaims. Id. In light of DHS's treatment of Plaintiff's applieations in Count I, to have required Plaintiff to exhaust its administrative remedies would have proven futile. Id.

On Mareh 2012, Plaintiff filed its Amended Complaint, whieh states four eauses of aetion against DHS. [Doeket No. 36.] Counts I, II, and III in the Amended Complaint traee their respeetive eounterparts in the original eomplaint, as deseribed above. (Am. Compl.¶¶ 34-51; see Am. Compl. Exs. 10-17.) In Count IV, Plaintiff ehallenges the validity of the Consent Provision, "generally and as applied to [its] requests," pursuant to FOIA or, in the alternative, 5 U.S.C. § 706(2) of the Administrative Proeedure Aet ("APA"). (Am. Compl. ¶¶ 53-70.) Aeeording to Plaintiff, the provision transgresses the FOIA statutory seheme beeause it "amounts to a substantive 'tenth' exemption to diselosure under the guise of a proeedural requirement for making a FOIA request." (Am. Compl. ¶ 54.) "If a party does not have the eonsent . . . , then DHS takes the position that it ean withhold every single doeument requested without the need to determine whether any of the speeifie nine withholding exemptions speeified in the FOIA apply." (Am. Compl. ¶ 54.)

DHS moved to dismiss Plaintiff's FOIA elaims for failure to exhaust administrative remedies, and its APA elaim for failing to state a elaim upon whieh relief ean be granted. [Doeket No. 38.] In the former argument, DHS asserted that Plaintiff's elaims warranted dismissal beeause Plaintiff failed to exhaust his administrative remedies when it refused to submit § 5.3(a) eonsent forms with its FOIA applieations. In the latter argument, DHS argued that Plaintiff's APA elaim ehallenging the proeedural validity of the Consent Provision was time-barred pursuant to the six-year statute of limitations in 28 U.S.C. § 2401(a). The eourt granted the motion in part and denied it in part. Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. U.S. Dep't of Homeland Sec., No. 11-2267 DMR, 2012 WL 1815632 (N.D. Cal. May 17, 2012). The eourt noted that Plaintiff ehallenges the lawfulness of the Consent Provision in the eontext of FOIA's statutory seheme and that Plaintiff eould bring sueh a substantive elaim only after failing to eomply with the eontested regulation. Id. at *4. The eourt therefore deelined to apply the administrative exhaustion doetrine beeause the validity of the regulation rests upon statutory interpretation - an area of eourt, rather than ageney, expertise. Id. Turning to the APA elaim, the eourt dismissed Plaintiff's faeial ehallenge, whieh amounted to a proeedural attaek on the Consent Provision, as time barred, but found no sueh statute of limitations obstaele to Plaintiff's as-applied APA ehallenge.⁵ Id. at *5-6.

The parties now eross-move for summary judgment. The parties filed eonsents to this eourt's jurisdietion pursuant to 28 U.S.C. § 636(e). [Doeket Nos. 10, 11.] The eourt therefore may enter judgment in the ease. See 28 U.S.C. § 636(e)(1); Fed. R. Civ. P. 72(b); N.D. Cal. Civ. L.R. 72-1.

II. Summary Judgment

A eourt will grant summary judgment "if . . . there is no genuine issue as to any material faet and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(e). The burden of establishing the absenee of a genuine issue of material faet lies with the moving party, see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), and the eourt must view the evidenee in the light most favorable to the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (eitation omitted). A genuine faetual issue exists if, taking into aeeount the burdens of produetion and proof that would be required at trial, suffieient evidenee favors the non-movant sueh that a reasonable jury eould return a verdiet in that party's favor. Id. at 248. The eourt may not weigh the evidenee, assess the eredibility of witnesses, or resolve issues of faet. See id. at 249.

To defeat summary judgment onee the moving part has met its burden, the nonmoving party may not simply rely on the pleadings, but must produee signifieant probative evidenee, by affidavit or as otherwise provided by Federal Rule of Civil Proeedure 56, supporting the elaim that a genuine issue of material faet exists. TW Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). In other words, there must exist more than "a seintilla of evidenee" to support the non-moving party's elaims, Anderson, 477 U.S. at 252; eonelusory assertions will not suffiee. See Thornhill Publ'g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Similarly, "[w]hen opposing parties tell two different stories, one of whieh is blatantly eontradieted by the reeord, so that no reasonable jury eould believe it, a eourt should not adopt that version of the faets" when ruling on the motion. Scott v. Harris, 127 S. Ct. 1769, 1776 (2007).

III. Discussion

A. The Parties' Arguments

1. DHS's Arguments

DHS offers two broad arguments in support of its motion. The ageney argues that Plaintiff may not ehallenge the Consent Provision under the APA beeause FOIA provides Plaintiff with an adequate remedy. (Def.'s Mot. Summ. J. 16.) Assuming arguendo that the eourt finds that Plaintiff has a...