Government Changes Tune in ICE Raid FOIA Fight Involving Skadden
U.S. District Judge Rudolph Contreras. Photo: Diego M. Radzinschi/NLJ
A federal judge in Washington denied a legal advocacy group’s bid to compel U.S. Immigration and Customs Enforcement to turn over information related to a mass workplace raid conducted last year in Tennessee.
The Wednesday night order came after government lawyers told the court in a filing that the agency would respond to a subpoena in a related lawsuit in Tennessee by noon Thursday, thus providing the names of agents that ICE has confirmed were present at the April 2018 raid.
The National Immigration Law Center originally sought those names in order to identify the agents as defendants in an ongoing class action lawsuit in Tennessee. Attorneys for the group filed a Freedom of Information Act lawsuit in the District in late March.
Contreras said Wednesday that NILC, in its bid to pry the names from the government, initially showed they would suffer irreparable harm. “NILC filed its first motion for preliminary injunction because it could not identify the agents involved in the ICE raid, and the government showed no willingness to provide that information,” he said.
“The government has now, however, changed its tune,” he continued. He said that meant NILC would be able to amend the complaint in the Tennessee litigation, and begin serving the individual defendants in the case before the statute of limitations expires Friday. “The harm raised in NILC’s motion, then, appears to have dissipated,” he wrote.
NILC—represented by Skadden, Arps, Slate, Meagher & Flom attorneys Donald Salzman and Arthur Bookout—attempted to argue Wednesday that the government declined to confirm that the 37 officers who would be identified in their subpoena response comprised all of the Homeland Security and ICE officers present at the raid.
But Contreras said that NILC had not provided evidence to suggest more than 37 agents were involved in the raid. “And such ‘theoretical’ harm is not sufficient to warrant preliminary injunctive relief in this Circuit,” he said.
Contreras’ order followed a Wednesday afternoon hearing, during which he suggested that ICE was “stonewalling” requests for information tied to the agency’s controversial raid on a Tennessee meatpacking plant last year.
That comment came during an exchange in which a government lawyer indicated it wasn’t immediately clear whether ICE would comply with a subpoena in a related lawsuit in Tennessee that would disclose the agents’ identities.
“There seems to be a fair amount of stonewalling here,” the judge said, after observing that the government was making “quite a good record” on equitable tolling. At the end of the hearing, he said he would rule on the NILC’s preliminary injunction request Wednesday night.
The Freedom of Information Act lawsuit in D.C. is tied to a case that was brought in the Eastern District of Tennessee in February. The plaintiffs in that class action suit claim that raid officers violated the U.S. constitution while acting in the color of federal authority.
But the plaintiffs are running against a Friday deadline to amend their complaint, and identify the ICE officers at that April 2018 raid as defendants, before a one-year statute of limitations expires. Pro bono attorneys at Skadden brought the FOIA lawsuit in a bid to shake loose those names.
On Monday, Contreras directed ICE to produce at least a single document that contained the names of the agents involved in the raid. ICE, however, was still permitted to claim certain Freedom of Information Act exemptions.
“At 4:35 p.m. today, Defendants produced one ten-page document,” Salzman said in a filing Tuesday. “Defendants’ counsel represented to NILC’s counsel that the document produced today contains the names and ranks of the officers physically present during the Raid (the ‘Officers’). However, NILC has no way to actually see this purported information because Defendants redacted all of it.”
Contreras, weighing NILC’s motion for another preliminary injunction, reiterated Wednesday he believed there could be irreparable harm for the plaintiff.
Instead, Contreras was considering a balancing test: whether the public interest in disclosure of the agents’ identities should override their privacy interests.
Bookout, who represented the plaintiff, said the standard for the court to consider was whether the FOIA requester had produced enough evidence so that a reasonable person would believe that an alleged impropriety by the government had occurred. Bookout pointed to a set of seven declarations filed in the case to suggest that that standard had been met.
But assistant U.S. attorney Diana Valdivia contended that the plaintiff had the burden of showing that evidence and that they hadn’t met that burden. She also argued the plaintiff had not pointed to any cases where the level of evidence offered in this case was found to be sufficient, without other significant corroborating evidence.
Valdivia also argued that, even if allegations of misconduct were true—she described them as hotly contested—the public wouldn’t necessarily gain a better understanding of the government’s actions through the the disclosure of names of the raid agents.
At the conclusion of the hearing, the judge said he would rule before the day’s close and would give the government enough time to appeal his ruling to the D.C. Circuit in the morning.
“Bad facts make bad law,” he said before leaving the bench, suggesting that if the agency planned to comply with the subpoena in Tennessee, they do so beforehand.
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