                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-30-2007

Abdelfattah v. Dept Homeland
Precedential or Non-Precedential: Precedential

Docket No. 06-4106




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                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                     No. 06-4106


              OSAMA ABDELFATTAH

                           v.

   U.S. DEPARTMENT OF HOMELAND SECURITY;
     MICHAEL CHERTOFF, in his official capacity as
    Secretary of the Department of Homeland Security;
     MAGDA S. ORIZ, Director of FOIA/PA Branch;
  U.S. CITIZENSHIP AND IMMIGRATION SERVICE;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;
       FEDERAL BUREAU OF INVESTIGATION

     (District of New Jersey Civil No. 05-cv-05212)

              OSAMA ABDELFATTAH

                           v.

   U.S. DEPARTMENT OF HOMELAND SECURITY

     (District of New Jersey Civil No. 06-cv-00774)
             OSAMA ABDELFATTAH

                          v.

  U.S. DEPARTMENT OF HOMELAND SECURITY;
 U.S. CITIZENSHIP AND IMMIGRATION SERVICE;
U.S. IMMIGRATION AND CUSTOM ENFORCEMENT;
      FEDERAL BUREAU OF INVESTIGATION

    (District of New Jersey Civil No. 06-cv-00775)

             OSAMA ABDELFATTAH

                          v.

   U.S. CUSTOMS AND BORDER PROTECTION;
U.S. IMMIGRATION AND CUSTOM ENFORCEMENT

    (District of New Jersey Civil No. 06-cv-02203)

                               Osama Abdelfattah,
                                            Appellant




                          2
      On Appeal from the United States District Court
              for the District of New Jersey
           D.C. Civil Action Nos. 05-cv-05212,
        06-cv-00774, 06-cv-00775 & 06-cv-02203
          (Honorable Joseph A. Greenaway, Jr.)


      Submitted Pursuant to Third Circuit LAR 34.1(a)
                     March 27, 2007
Before: SCIRICA, Chief Judge, FUENTES and SMITH,
                      Circuit Judges.

                   (Filed: May 30, 2007)

Osama Abdelfattah
     Appellant, Pro Se

James B. Clark, III, Esquire
Office of United States Attorney
970 Broad Street, Room 700
Newark, New Jersey 07102
       Attorney for Appellees


                OPINION OF THE COURT




                              3
PER CURIAM.

       Osama Abdelfattah appeals pro se from an order of the
United States District Court for the District of New Jersey
granting the defendants’ motion for summary judgment in this
action brought under the Freedom of Information Act (“FOIA”),
5 U.S.C. § 552, and the Privacy Act (“PA”), 5 U.S.C. § 552a.
We will affirm in part, vacate in part, and remand to the District
Court for further proceedings. In doing so, we clarify the test,
announced in Davin v. United States Department of Justice, 60
F.3d 1043, 1056 (3d Cir. 1995), for evaluating whether material
withheld pursuant to FOIA Exemption 7 qualifies as “records or
information compiled for law enforcement purposes.”
                                I.
       In an effort to obtain records pertaining to himself,
Abdelfattah submitted FOIA/PA requests to the United States
Citizenship and Immigration Services (“CIS”), the Bureau of
United States Customs and Border Protection (“CBP”), the
Bureau of United States Immigration and Customs Enforcement
(“ICE”), and the Federal Bureau of Investigation (“FBI”). The
CIS conducted a search using Abdelfattah’s name and located
420 pages of responsive documents. Ultimately, the CIS
referred 57 pages to the ICE, released 344 pages in full, released
one page with redactions, and withheld 18 pages in full. Of the
57 pages referred to the ICE, 51 were released in full, four were
withheld in part, and two were withheld in their entirety. When
Abdelfattah filed his complaint against the ICE, that agency had


                                4
not yet responded to the request submitted directly to it. In
response to Abdelfattah’s request to the CBP, two pages were
determined to be non-responsive and one document was
released with certain redactions. The FBI informed Abdelfattah
that a search of its automated indices yielded no responsive
records at its headquarters.
       Beginning in October 2005, Abdelfattah filed a series of
complaints in the District Court alleging that his FOIA requests
were not timely processed, that the searches were inadequate,
and that certain information in the responsive documents was
improperly withheld.        These actions were eventually
consolidated and the parties filed cross motions for summary
judgment. The District Court granted the defendants’ motion.1

   1
    The District Court did, however, deny that portion of the
defendants’ motion for summary judgment which requested that
the proceedings be stayed pursuant to Open America v.
Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir.
1976), to permit the ICE to complete its processing of
Abdelfattah’s pending FOIA request. The District Court
concluded that the ICE’s backlog of pending requests did not
amount to “exceptional circumstances,” and ordered the ICE to
respond to the FOIA/PA request within 20 days. 5 U.S.C. §
552(a)(6)(C)(i)-(iii) (permitting a stay if it can be shown that
“exceptional circumstances exist and that the agency is
exercising due diligence in responding to the request.”). The
ICE has complied with this order, and there is no indication that
Abdelfattah challenged the response.

                               5
Abdelfattah appeals.
                               II.
        We employ a two-tiered test in reviewing an order of a
District Court granting summary judgment in proceedings
seeking disclosure under the FOIA. We must “first decide
whether the district court had an adequate factual basis for its
determination.” McDonnell v. United States, 4 F.3d 1227, 1242
(3d Cir. 1993) (citations omitted). If it did, we “must then
decide whether that determination was clearly erroneous.” Id.
(citations omitted). Under this standard, we will reverse only “if
the findings are unsupported by substantial evidence, lack
adequate evidentiary support in the record, are against the clear
weight of the evidence or where the district court has
misapprehended the weight of the evidence.” Id. (quoting Lame
v. U.S. Dep’t of Justice, 767 F.2d 66, 70 (3d Cir. 1985)).
                               III.
       On appeal, Abdelfattah challenges the adequacy of the
searches and the sufficiency of the justifications for withholding
material pursuant to FOIA Exemptions 5 and 7. See 5 U.S.C.
§ 552(b)(5) & (b)(7). He also challenges the degree of
compliance with the FOIA’s requirement that “[a]ny reasonably
segregable portion of a record shall be provided . . . after
deletion of the portions which are exempt . . . .” 5 U.S.C. §
552(b).
                               A.


                                6
         Under the FOIA, an agency has a duty to conduct a
reasonable search for responsive records. See Oglesby v. U.S.
Department of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The
relevant inquiry is not “whether there might exist any other
documents possibly responsive to the request, but rather whether
the search for those documents was adequate.” Weisberg v.
U.S. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984). To
demonstrate the adequacy of its search, the agency should
provide a “reasonably detailed affidavit, setting forth the search
terms and the type of search performed, and averring that all
files likely to contain responsive materials . . . were searched.”
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.
Cir. 1999) (quoting Oglesby, 920 F.2d at 68).
        Abdelfattah alleges the CIS’s search was inadequate
because it failed to produce records pertaining to his
applications for relief (e.g., application for adjustment of status,
application for a travel document, application for employment
authorization, etc.). The District Court concluded that the
detailed affidavits in this case establish that the CIS’s search
was adequate and “reasonably calculated to uncover all relevant
documents.” Oglesby, 920 F.2d at 68. We agree. In particular,
the affidavit of a paralegal specialist in the CIS FOIA/PA Unit
at the National Records Center described Abdelfattah’s
numerous requests (including the specific file numbers assigned
to the relief applications he sought), explained the search terms
that were employed, and described the various files that were
searched. Among those files was the “Computer Linked
Application Information Management System,” which is “used

                                 7
to track applications or petitions for benefits filed under the
Immigration and Nationality Act.”
        Abdelfattah further complains the FBI failed to
demonstrate the adequacy of its search.2 In October 2005,
Abdelfattah submitted a FOIA/PA request to the FBI. The FBI
informed him that a search of its automated indices to its central
records system files at its headquarters located no responsive
records.     After exhausting his administrative remedies,
Abdelfattah filed a complaint challenging the adequacy of the
FBI’s search, asserting that records must exist because he had
been interviewed by FBI agents in July 2004. The FBI did not
submit an affidavit describing its search. See Valencia-Lucena,
180 F.3d at 326 (describing information necessary to
demonstrate adequacy of search). The District Court thus had
no factual basis for its determination that the “FBI has satisfied
its FOIA obligations to Plaintiff.” See McDonnell, 4 F.3d at
1242. Accordingly, we will remand for further proceedings on
this issue. Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1185-
87 (D.C. Cir. 1996) (remanding where agencies failed to justify
the adequacy of their searches).
                               B.
        Abdelfattah further contends the declarations and Vaughn

    2
     To the extent that Abdelfattah contends that the FBI is
withholding six documents that were referred to it by the CIS,
the District Court correctly concluded that no such referral was
made.

                                8
index3 submitted by the defendants in support of their motion for
summary judgment were inadequate. Specifically, he claims
that those submissions (1) failed to adequately justify the ICE’s
withholding of a draft incident report pursuant to Exemption 5;
(2) did not demonstrate that records located by the CIS and the
CBP met the threshold for Exemption 7 that was established by
this Court in Davin;4 and (3) omitted any indication that the CIS
had disclosed all reasonably segregable information.


       3
      A Vaughn index is designed to “transform a potentially
ineffective, inquisitorial proceeding against an agency that
controls information into a meaningful adversarial process” by
identifying each document withheld, the statutory exemption
claimed, and a particularized description of how each document
withheld falls within a statutory exemption. Coastal States Gas
Corp. v. Dep’t of Energy, 644 F.2d 969, 984 (3d Cir. 1981); see
also Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The
justification for withholding provided by the agency in a
Vaughn index may take any form as long as the agency offers a
“reasonable basis to evaluate [it]s claim of privilege.” Gallant
v. NLRB, 26 F.3d 168, 172-73 (D.C. Cir. 1994) (quoting
Delaney, Migdall & Young, Chartered v. IRS, 826 F.2d 124,
128 (D.C. Cir. 1987)).
   4
    Because the CBP has indicated that the page from which it
redacted material is “substantially similar” to a page withheld by
the CIS, we will not separately examine the CBP’s response to
Abdelfattah’s FOIA/PA request.

                                9
                                1.
        After reviewing the record in its entirety, including the
ICE’s affidavit, we conclude that the District Court possessed a
sufficient factual basis for its determination that the ICE
properly used Exemption 5 to withhold a draft incident report.
Exemption 5 protects from disclosure “inter-agency or
intra-agency memorandums or letters which would not be
available by law to a party . . . in litigation with the agency.” 5
U.S.C. § 552(b)(5). The Exemption encompasses the traditional
discovery privileges, including the deliberative process
privilege, which “protects agency documents that are both
predecisional and deliberative.” Judicial Watch, Inc. v. FDA,
449 F.3d 141, 151 (D.C. Cir. 2006); see also Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8 (2001). The ICE indicated
that the draft report involved discussions “between [the
agency’s] subordinates and seniors” and noted that the report
“may have been modified to ensure accurate reporting and
clarify misleading statements.” Moreover, there is no indication
in the record that the draft report was expressly adopted as, or
incorporated by reference into, the ICE’s final decision. See
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161 (1975)
(holding that “if an agency chooses expressly to adopt or
incorporate by reference an intra-agency memorandum
previously covered by Exemption 5 in what would otherwise be
a final opinion, that memorandum may be withheld only on the
ground that it falls within the coverage of some exemption other
than Exemption 5.”).


                                10
                                2.
        Abdelfattah also contends the CIS failed to sufficiently
justify its use of Exemption 7. Under the present version of
Exemption 7, which was enacted in 1986, agencies may
withhold “records or information compiled for law enforcement
purposes” to the extent that disclosure threatens (to varying
degrees of certainty) one of six enumerated harms. See 5 U.S.C.
§ 552(b)(7). With respect to the first part of this analysis –
whether the record or information was compiled for law
enforcement purposes – this Court has stated that a criminal law
enforcement agency must first “identify a particular individual
or incident as the object of the investigation and specify the
connection of the individual or incident to a potential violation
of law or security risk.” Then the agency must “demonstrate
that this relationship is based upon information sufficient to
support at least a ‘colorable claim’ of its rationality.” Davin, 60
F.3d at 1056 (internal quotation omitted).
       This test is “an adaptation of the two-prong ‘rational
nexus’ test articulated by the Court of Appeals for the District
of Columbia Circuit” in Pratt v. Webster, 673 F.2d 408 (D.C.
Cir. 1982).5 Davin, 60 F.3d at 1056. When Pratt was decided


   5
     The Pratt test asks (1) whether the agency’s investigatory
activities that give rise to the documents sought are related to the
enforcement of federal laws or to the maintenance of national
security; and (2) whether the nexus between the investigation
and one of the agency’s law enforcement duties is based on

                                11
in 1982, Exemption 7 protected “investigatory record[s]
compiled for law enforcement purposes.” But amendments to
the FOIA in 1986 modified the Exemption 7 threshold
requirement by deleting the word “investigatory” and inserting
the words “or information,” so that protection is now available
to all “records or information compiled for law enforcement
purposes.” Thus, while the 1986 FOIA amendments did not
affect that portion of the Pratt test which requires a “nexus”
between the agency activity giving rise to the records and its law
enforcement duties, see Davin, 60 F.3d at 1055, the amendments
did broaden the sweep of the exemption’s coverage. See Tax
Analysts v. IRS, 294 F.3d 71, 79 (D.C. Cir. 2002) (explaining
that 1986 FOIA amendments permitted wider application of
Exemption 7 by deleting “any requirement” that information be
investigatory); see also Keys v. U.S. Dep’t of Justice, 830 F.2d
337, 340 (D.C. Cir. 1987).
       Thus, we are faced with a statute which protects all
“records or information compiled for law enforcement
purposes,” and a test set forth in Davin under that statute which
appears to impose on the government additional requirements
for withholding, namely, identification of a particular individual
or incident, an investigation, and a potential violation of law or
security risk. In the present case, Abdelfattah requested
information pertaining to himself that is maintained by the CIS,
an agency that is responsible for performing various


information sufficient to support at least a colorable claim of
rationality. Pratt, 673 F.2d at 420-21.

                               12
immigration adjudications (e.g., visa petitions and asylum
applications). See 6 U.S.C. § 271(b) (setting forth functions of
the CIS). Under Davin, any records maintained by the CIS
concerning Abdelfattah’s applications for immigration relief
arguably would not be covered by Exemption 7 because they do
not relate to an “investigation” or a “potential violation of law.”
        Importantly, however, we interpret as dicta that portion
of the Davin test which refers to the identification of a particular
individual or incident as the object of an investigation into a
potential violation of law or security risk. In Davin, the
requester sought from the FBI records pertaining to a national
union for the unemployed and its one-time leader. With respect
to Exemption 7, the Davin Court was concerned primarily with
whether it should adopt a per se rule “under which all records
compiled by law enforcement agencies . . . qualify as ‘records
compiled for law enforcement purposes’” or whether it should
require the agency to establish a rational nexus between the
activities giving rise to the requested records and its law
enforcement duties. Davin, 60 F.3d at 1054-56. Adoption of a
per se rule in Davin would have resulted in a conclusion that the
records requested from the FBI, which is a law enforcement
agency, fell within Exemption 7’s threshold. Instead, however,
the Davin Court chose to apply the rational nexus test, thereby
requiring the FBI to articulate a connection between the
responsive documents and a legitimate law enforcement
concern. Id. at 1056-57. Therefore, rejection of the per se rule
and application of the rational nexus test dictated the result in
Davin. By contrast, the Davin Court was not presented with the

                                13
question whether the proper invocation of Exemption 7
depended on the presence of an investigation because it was
clear that an investigation had given rise to the responsive
documents. See Davin, 60 F.3d at 1056. Accordingly, because
the investigation requirement of the Davin test “could have been
deleted without seriously impairing the analytical foundations
of the holding,” the requirement is dicta. In re McDonald, 205
F.3d 606, 612 (3rd Cir. 2000) (quoting Sarnoff v. American
Home Prods. Corp., 798 F.2d 1075, 1084 (7th Cir. 1986)); Cf.
United States v. Luiz, 102 F.3d 466, 469 (11th Cir. 1996)
(holding that first requirement of three-part test was dicta
because, under the facts of the case announcing the test, the first
requirement had been met). While “[i]t is the tradition of this
court that the holding of a panel in a precedential opinion is
binding on subsequent panels,” Internal Operating Procedure
9.1, it is also well established that we are not bound by dictum
in an earlier opinion. See Mariana v. Fisher, 338 F.3d 189, 201
(3d Cir. 2003).
       As noted, the 1986 FOIA amendments broadened the
applicability of Exemption 7 by expressly removing the
requirement that the records be “investigatory.” See Tax
Analysts, 294 F.3d at 79 (noting that “legislative history [of the
1986 FOIA amendments] makes it clear that Congress intended
the amended exemption to protect both investigatory and
non-investigatory materials”). Thus, under the plain language
of the statute, we conclude that an agency seeking to invoke
Exemption 7 does not have to identify a particular individual or
incident as the object of an investigation into a potential

                                14
violation of law or security risk. See Keys, 830 F.2d at 340
(stating that “Pratt requires simply that the nexus between the
agency’s activity (under the old scheme, an ‘investigation’) and
its law enforcement duties must be based on information
sufficient to support at least a colorable claim of its rationality”)
(internal quotation marks omitted); North v. Walsh, 881 F.2d
1088, 1098 n.14 (D.C. Cir. 1989) (stating that “Congress also
changed the threshold requirement for withholding information
under exemption 7: the exemption formerly covered
‘investigatory records compiled for law enforcement purposes’;
it now applies more broadly to ‘records or information compiled
for law enforcement purposes.’”). Our research has not
disclosed any contrary appellate decisions.
        We emphasize, however, that Exemption 7 still requires
an agency to demonstrate that the relationship between its
authority to enforce a statute or regulation and the activity
giving rise to the requested documents is based upon
information sufficient to support at least a colorable claim of the
relationship’s rationality. See Davin, 60 F.3d at 1056.
“[S]imple recitation of statutes, orders and public laws is an
insufficient showing of a rational nexus to a legitimate law
enforcement concern.” Id. In this case, the CIS has not
identified any connection between its law enforcement authority
and the information contained in the withheld material. Indeed,
in describing the “Reason for Withholding,” the CIS’s Vaughn
index merely notes that the documents were “compiled for law
enforcement purposes” without providing any further detail or
explanation. While the descriptions of some of the withheld

                                 15
documents arguably suggest that they were compiled for law
enforcement purposes, we will not extrapolate such a purpose
solely based on those brief summaries or on the CIS’s
description of the databases that it searched.6 See Church of
Scientology of California v. U.S. Dep’t of Army, 611 F.2d 738,
749 (9th Cir. 1979) (remanding where agency provided
insufficient evidence to justify use of Exemption 7).
                               3.
       Notably, even if the CIS’s application of FOIA
exemptions was substantively correct, we would nevertheless
remand because the CIS failed to demonstrate that it has
released all reasonably segregable portions of each withheld
document. 5 U.S.C. § 552(b) (requiring that “[a]ny reasonably


     6
      According to the CIS, it searched “a computer system
designed to track the location of receipts and alien files within
designated offices,” “a computer system used to track
applications or petitions for benefits filed under the Immigration
and Nationality Act,” and a system that “provides automated
information regarding certain classes of aliens and identifies the
location of an alien’s hardcopy A-file.” The withheld
information consisted of seven “Facsimile Transmittal [or
Confirmation] Cover Sheets,” two “record check report[s],” two
memoranda (including one regarding an “investigation”), two
emails, one “record of IBIS query,” one “NAIL lookout
contact/comments ADD,” and a three-page “TECS II Person
Subject Display.”

                               16
segregable portion of a record shall be provided to any person
requesting such record after deletion of the portions which are
exempt”). An “agency cannot justify withholding an entire
document simply by showing that it contains some exempt
material.” Mead Data Central v. U.S. Dep’t of Air Force, 566
F.2d 242, 260 (D.C. Cir. 1977). Rather, the agency must
demonstrate that all reasonably segregable, nonexempt
information was released. See Davin, 60 F.3d at 1052 (“The
statements regarding segregability are wholly conclusory,
providing no information that would enable [plaintiff] to
evaluate the FBI’s decisions to withhold.”). The CIS’s
declarations and Vaughn index provided no basis for the District
Court to make a “reasonably segregable” finding. Indeed, there
is no description of the agency’s process for making such a
determination, no factual recitation of why certain materials are
not reasonably segregable, and no indication of “what
proportion of the information in a document is non-exempt and
how that material is dispersed throughout the document.” Mead
Data Central, 566 F.2d at 261. The absence of this information
necessitates a remand to the District Court to make a specific
segregability finding with respect to the CIS. See Kimberlin v.
Dep’t of Justice, 139 F.3d 944, 950 (D.C. Cir. 1998) (remanding
because District Court did not make findings regarding
segregability).
                              IV.
        For the foregoing reasons we will affirm in part, vacate
in part, and remand the matter to the District Court for further


                               17
proceedings consistent with this opinion. In particular, we will
vacate that portion of the District Court’s order which granted
summary judgment concerning the FBI’s search for responsive
documents, the applicability of Exemption 7 to records withheld
by the CIS, and the CIS’s satisfaction of its obligation to
demonstrate that all reasonably segregable information has been
disclosed. In all other respects, we will affirm the judgment of
the District Court.




                              18
