Transgender Law Ctr. v. Enforcement
| Decision Date | 12 May 2022 |
| Docket Number | 20-17416 |
| Citation | 33 F.4th 1186 |
| Parties | TRANSGENDER LAW CENTER; Jolene K. Youngers, as personal administrator for the wrongful death estate of Roxsana Hernandez, Plaintiffs-Appellants, v. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. Department of Homeland Security; Office for Civil Rights and Civil Liberties - United States Department of Homeland Security, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Irene Lax (argued), Grant & Eisenhofer P.A., New York, New York; Kimberly A. Evans, Grant & Eisenhofer P.A., Wilmington, Delaware; R. Andrew Free, Law Office of R. Andrew Free, Nashville, Tennessee; for Plaintiffs-Appellants.
Laura E. Myron (argued) and Abby C. Wright, Appellate Staff; Stephanie Hinds, Acting United States Attorney; Brian M. Boynton, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.
Before: Sidney R. Thomas and M. Margaret McKeown, Circuit Judges, and Jane A. Restani,** Judge.
At the heart of this case is an effort by advocates to learn about the circumstances of an asylum-seeker's tragic death in federal custody. The Freedom of Information Act exists for just such a purpose—to ensure an informed citizenry, promote official transparency, and provide a check against government impunity. Yet here the advocates' FOIA requests met first with silence and then with stonewalling; only after the advocates filed suit did the government begin to comply with its statutory obligations. Our task is to discern whether the government's belated disclosure was "adequate" under FOIA. We conclude that it was not.
On May 9, 2018, Roxsana Hernandez, age 33, entered the United States seeking asylum. Hernandez, a transgender woman, was fleeing her home country of Honduras after experiencing persecution on account of her gender identity. Upon entering the United States, Hernandez, along with several other transgender asylum seekers, was detained by officials from U.S. Customs & Border Patrol ("CBP"). According to the complaint, Hernandez's health began to deteriorate rapidly, causing her to lose weight, endure diarrhea and a persistent fever, and frequently vomit and cough up bloody phlegm. Hernandez was seen by medical staff on May 11, 2018, and she disclosed that she had untreated HIV and was experiencing significant illness, including cough and fever. Her physicians recommended that she receive vital HIV treatment, but U.S. Immigration & Customs Enforcement ("ICE") officials refused and instead shuttled Hernandez and the other women to various holding, processing, and detention facilities in the days that followed, depriving them of food, water, sleep, and opportunities to relieve themselves.
On May 16, 2018, Hernandez arrived at Cibola Detention Center, a private facility managed by CoreCivic, an ICE contractor. The following day, she was taken to a local hospital and then airlifted to an intensive care unit. Yet Hernandez's health continued to deteriorate, and on May 25, 2018, she died while in the custody of ICE officials.
Hernandez's death provoked widespread public outcry, including calls for inquiries into the deficiencies in medical care provided by CBP and ICE. In early 2019, the Transgender Law Center and Jolene K. Youngers (collectively "TLC"), acting on behalf of Hernandez's family and estate, submitted two Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, requests seeking government records about Hernandez's detention and death. The first FOIA request was directed to ICE, and the second was directed to the Department of Homeland Security ("DHS") Office for Civil Rights and Civil Liberties ("the Civil Rights Office").
Months later, having received no records from either ICE or the Civil Rights Office,1 TLC filed suit in district court seeking: (1) declaratory relief that ICE, DHS, and the Civil Rights Office (collectively "the Government" or "the agencies") had violated FOIA; (2) injunctive relief compelling the agencies to conduct adequate searches for the relevant records and release them; and (3) costs and attorneys' fees.
The suit itself apparently prompted ICE and the Civil Rights Office to begin disclosure, but TLC was displeased by the pace and adequacy of release, in part because the agencies refused to disclose either the mortality and morbidity review or the root cause analysis. TLC then submitted a third FOIA request.
In total, TLC received 158 pages from the Civil Rights Office and 1,591 pages from ICE. The agencies ultimately released 5 pages and 1 excel spreadsheet in response to the request for documents that went into the mortality review; the agencies informed TLC that they had conducted no root cause analysis. TLC has alleged that DHS video surveillance footage of Hernandez disappeared despite receipt of letters requiring its preservation. The agencies redacted numerous documents and claimed that many others were exempted from disclosure altogether.
On August 31, 2020, the agencies filed a motion for summary judgment, arguing that their production was complete and "adequate." TLC filed a cross-motion for summary judgment, arguing that the agencies improperly denied expedited search requests related to the FOIA requests at issue, failed to conduct an adequate search, improperly applied each of the FOIA exemptions, and furnished insufficient Vaughn indices. The district court granted TLC's request for declaratory judgment that the agencies had failed to timely respond to their FOIA requests, but in all other respects ruled for the agencies, holding that they had "adequately complied with [TLC's] FOIA requests," had "conducted an adequate search," had "appropriately applied FOIA exemptions to the documents at issue," and had provided "adequate" Vaughn indices. TLC timely appealed.
We review de novo a district court's grant of summary judgment. Animal Legal Def. Fund v. FDA , 836 F.3d 987, 988–89 (9th Cir. 2016) (en banc) (per curiam). We therefore employ the same standard used by the district court and must "view the evidence in the light most favorable to the nonmoving party, determine whether there are any genuine issues of material fact, and decide whether the district court correctly applied the relevant substantive law." Id. at 989.
We first consider whether the district court erred in holding that the agencies' search was "adequate." To do so, we clarify the precise burden that agencies bear in demonstrating the adequacy of their search. In accord with well-established precedent, the parties agree that the trial court must assess whether the Government has met its burden of demonstrating that its search was "reasonably calculated to uncover all relevant documents." Hamdan v. Dep't of Just. , 797 F.3d 759, 770 (9th Cir. 2015). According to the agencies, in order to make such an assessment the court must simply determine whether the agency's search was "adequate." By contrast, TLC asserts that, while a court must determine whether the search was "adequate," the agency has a burden to demonstrate adequacy "beyond material doubt."
The district court assessed adequacy of the search but did not address the agencies' precise burden of proof. We join our sister circuits and hold that "beyond material doubt" is the appropriate standard. Applying that standard, we conclude that the Government has failed to carry its burden.
Circuit courts across the country have stated that agencies must demonstrate adequacy "beyond material doubt" or "beyond a material doubt." See, e.g., Miccosukee Tribe of Indians of Fla. v. United States , 516 F.3d 1235, 1248 (11th Cir. 2008) ; Morley v. CIA , 508 F.3d 1108, 1114 (D.C. Cir. 2007) ; Miller v. Dep't of State , 779 F.2d 1378, 1383 (8th Cir. 1985). District courts in every circuit, including the Ninth Circuit, use this standard, and no circuit has explicitly rejected it. See, e.g., Informed Consent Action Network v. NIH , No. CV-20-01277-PHX-JJT, 2021 WL 2592609 at *4, 2021 U.S. Dist. LEXIS 118185 at *9 (D. Ariz. June 24, 2021) ; Our Child.'s Earth Found. v. Nat'l Marine Fisheries Serv. , 85 F. Supp. 3d 1074, 1082 (N.D. Cal. 2015) ; S. Yuba River Citizens League v. Nat'l Marine Fisheries Serv. , No. CIV. S-06-2845 LKK/JFM, 2008 WL 2523819, at *11, 2008 U.S. Dist. LEXIS 107177, at *35 (E.D. Cal. June 20, 2008).
Demonstrating adequacy "beyond material doubt" is, to be sure, a heavy burden, but such a burden appropriately reflects the purpose and policy of FOIA, including transparency, public access, and an informed citizenry. See NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) (); Hamdan , 797 F.3d at 769–70 ( .
Requiring the Government to meet the "beyond material doubt" standard ensures that the "adequacy of an agency's search for requested documents is judged by a standard of reasonableness." Miller , 779 F.2d at 1383 ). This approach properly places a concrete burden of proof on the Government, requiring an agency to...
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