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

Decision Date21 December 2012
Docket NumberNo. C 11–02267 DMR.,C 11–02267 DMR.
Citation913 F.Supp.2d 865
CourtU.S. District Court — Eastern District of California
PartiesGONZALES AND GONZALES BONDS AND INSURANCE AGENCY INC, Plaintiff(s), v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant(s).

OPINION TEXT STARTS HERE

David Ryan Ginsburg, Gary Alan Nye, Roxborough Pomerance & Nye LLP, Woodland Hills, CA, for Plaintiff(s).

Ann Marie Reding, Ila Casy Deiss, United States Attorney's Office, San Francisco, CA, for Defendant(s).

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

DONNA M. RYU, United States Magistrate Judge.

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 requestswith DHS pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. (Am. Compl. ¶¶ 1, 30; Laird Decl. ¶ 4, Apr. 12, 2012.) According to Plaintiff, DHS has failed to respond to many of these FOIA requests; with respect to those requests to which DHS has replied, Plaintiff alleges that the responses were untimely 2 and that DHS “improperly withheld A-file documents.” 3 (Am. Compl. ¶ 30.) Plaintiff attributes many of these allegedly improper withholdings to DHS's reliance on the consent provision in 6 C.F.R. § 5.3(a) (“the Consent Provision”), through which DHS mandates that if a party makes a FOIA request about another individual, “either a written authorization signed by that individual permitting disclosure of those records ... or proof that that individual is deceased ... must be submitted,” § 5.3(a). (Am. Compl. ¶ 31.)

On May 9, 2011, Plaintiff filed this action, bringing three causes of action against DHS stemming from the agency's alleged failure and/or refusal to provide Plaintiff with the A-files. ( See generally Compl.) In Count I, Plaintiff claimed that DHS improperly responded to 183 A-file requests by providing Plaintiff only with so-called “Record of Proceedings” documents (“ROPs”) or a letter giving a brief description of the alien's status as removed, in removal proceedings, or apprehended and in custody. (Compl. ¶¶ 29–32; see Compl. Exs. 9–13.) Plaintiff filed administrative appeals for each request between October 30, 2009 and April 7, 2010. (Compl. ¶ 33.) However, as of May 6, 2011, with the exception of the acknowledgment of one appeal, DHS had failed to timely respond to these appeals.4 (Compl. ¶ 33.) In Count II, Plaintiff claimed that when it filed an additional 240 A-file requests, DHS again insufficiently and untimely responded with more ROPs. (Compl. ¶¶ 35–37; see Compl. Ex. 14.) Plaintiff did not appeal these requests, because it believed from its experience in Count I that doing so would have been futile. (Compl. ¶ 38.) In Count III, Plaintiff claimed that as of May 6, 2011, DHS had failed to timely acknowledge, 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 experiences set forth in Count I. (Compl. ¶ 40.)

Defendant moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction or, in the alternative, for Plaintiff's failure to exhaust its administrative remedies. [Docket No. 28.] In the latter argument, DHS asserted that Plaintiff failed to perfect its administrative appeals and that, when seeking information about third-parties, Plaintiff failed to submit the consent authorization required by § 5.3(a). The court 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 complaint 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 conserving the court's and parties' resources, the court also held that Plaintiff's failure to exhaust its administrative remedies with respect to the FOIA applications in Counts II and III did not preclude the court from entertaining Plaintiff's claims. Id. In light of DHS's treatment of Plaintiff's applications in Count I, to have required Plaintiff to exhaust its administrative remedies would have proven futile. Id.

On March 2012, Plaintiff filed its Amended Complaint, which states four causes of action against DHS. [Docket No. 36.] Counts I, II, and III in the Amended Complaint trace their respective counterparts in the original complaint, as described above. (Am. Compl. ¶¶ 34–51; see Am. Compl. Exs. 10–17.) In Count IV, Plaintiff challenges 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 Procedure Act (“APA”). (Am. Compl. ¶¶ 53–70.) According to Plaintiff, the provision transgresses the FOIA statutory scheme because it “amounts to a substantive ‘tenth’ exemption to disclosure under the guise of a procedural requirement for making a FOIA request.” (Am. Compl. ¶ 54.) “If a party does not have the consent ..., then DHS takes the position that it can withhold every single document requested without the need to determine whether any of the specific nine withholding exemptions specified in the FOIA apply.” (Am. Compl. ¶ 54.)

DHS moved to dismiss Plaintiff's FOIA claims for failure to exhaust administrative remedies, and its APA claim for failing to state a claim upon which relief can be granted. [Docket No. 38.] In the former argument, DHS asserted that Plaintiff's claims warranted dismissal because Plaintiff failed to exhaust his administrative remedies when it refused to submit § 5.3(a) consent forms with its FOIA applications. In the latter argument, DHS argued that Plaintiff's APA claim challenging the procedural validity of the Consent Provision was time-barred pursuant to the six-year statute of limitations in 28 U.S.C. § 2401(a). The court 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 court noted that Plaintiff challenges the lawfulness of the Consent Provision in the context of FOIA's statutory scheme and that Plaintiff could bring such a substantive claim only after failing to comply with the contested regulation. Id. at *4. The court therefore declined to apply the administrative exhaustion doctrine because the validity of the regulation rests upon statutory interpretation—an area of court, rather than agency, expertise. Id. Turning to the APA claim, the court dismissed Plaintiff's facial challenge, which amounted to a procedural attack on the Consent Provision, as time barred, but found no such statute of limitations obstacle to Plaintiff's as-applied APA challenge.5Id. at *5–6.

The parties now cross-move for summary judgment. The parties filed consents to this court's jurisdiction pursuant to 28 U.S.C. § 636(c). [Docket Nos. 10, 11.] The court therefore may enter judgment in the case. See28 U.S.C. § 636(c)(1); Fed.R.Civ.P. 72(b); N.D. Cal. Civ. L.R. 72–1.

II. Summary Judgment

A court will grant summary judgment “if ... there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The burden of establishing the absence of a genuine issue of material fact lies with the moving party, see Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and the court must view the evidence in the light most favorable to the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). A genuine factual issue exists if, taking into account the burdens of production and proof that would be required at trial, sufficient evidence favors the non-movant such that a reasonable jury could return a verdict in that party's favor. Id. at 248, 106 S.Ct. 2505. The court may not weigh the evidence, assess the credibility of witnesses, or resolve issues of fact. See id. at 249, 106 S.Ct. 2505.

To defeat summary judgment once the moving part has met its burden, the nonmoving party may not simply rely on the pleadings, but must produce significant probative evidence, by affidavit or as otherwise provided by Federal Rule of Civil Procedure 56, supporting the claim that a genuine issue of material fact 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 scintilla of evidence” to support the non-moving party's claims, Anderson, 477 U.S. at 252, 106 S.Ct. 2505; conclusory assertions will not suffice. 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 which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts” when ruling on the motion. Scott v. Harris, 550 U.S. 372, 127...

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