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Gluckman v. United States Department of Labor

United States District Court, Fourth Circuit

November 26, 2013

DAVID ELLIOTT GLUCKMAN, Plaintiff,
v.
UNITED STATES DEPARTMENT OF LABOR, Defendant.

MEMORANDUM OPINION

JAMES R. SPENCER, District Judge.

THIS MATTER is before the Court on a Motion for Summary Judgment filed by Defendant United States Department of Labor ("DOL"), (ECF No. 13), and a Motion for Partial Summary Judgment filed by Plaintiff David Elliott Gluckman, (ECF No. 15). Plaintiff has sued Defendant pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, asserting that Defendant, through its Office of Foreign Labor Certification ("OFLC" or "Defendant") has failed to produce requested documents in a timely manner. A hearing on both motions was held on October 1, 2013. For the reasons stated below, the Court GRANTS Plaintiff's Motion for Partial Summary Judgment on the exemption-based issues. The Court DENIES Defendant's Motion for Summary Judgment regarding the adequacy of OFLC's search.

I. FACTUAL BACKGROUND

Except as otherwise noted, the following facts are not in dispute. OFLC is a component of Defendant's Employment and Training Administration ("ETA"). On March 15, 2012, Plaintiff, an immigration attorney, requested documents under FOIA from the OFLC regarding OFLC's Program Electronic Review Management System ("PERM"). PERM implements Defendant's responsibilities under the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(5)(A), specifically the review and, where appropriate, certification of permanent labor certification applications from U.S. employers. In order to hire a foreign national to work permanently in the United States, a U.S. employer must first obtain a permanent labor certification from OFLC and then submit an immigration petition to the Department of Homeland Security's ("DHS") U.S. Citizenship and Immigration Services ("USCIS"). The permanent labor certification certifies that there are not sufficient U.S. workers who are able, willing, qualified, and available to accept the particular job position intended for the foreign national, and that the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed American workers. See 8 U.S.C. § 1182(a)(5)(A). Accordingly, obtaining a permanent labor certification from PERM is the first step in obtaining a green card for a foreign national to work in the United States.

When filing an application for a permanent labor certification, the employer must attest that it has taken certain actions specified in the DOL regulations to determine whether or not there are a sufficient number of American workers able, willing, qualified, and available to take the job position intended for the foreign national and that the employment of the foreign national will not affect the wages and working conditions of similarly employed American workers. See 20 C.F.R. § 656.17(e) (describing an employer's obligations to first recruit American employees prior to submitting an application to PERM). In order to monitor employers' compliance with these regulations, PERM audits some applications. Defendant did not reveal information regarding the procedures used by PERM to audit the permanent labor certification applications or the criteria considered, thus prompting Plaintiff's request under FOIA for information.

Specifically, Plaintiff's March 15, 2012 FOIA request to OFLC requested:

1. Any and all policies and/or records containing criteria for-or providing instruction, guidance, or direction related to-the selection of PERM applications for audit and/or the exercise of the Certifying Officer's authority pursuant to 20 C.F.R. 656.20 created, developed, maintained, used, implemented, and/or disseminated (internally or externally) by the OFLC on or after January 1, 2009; and
2. Any and all records-such as worksheets, templates, checklists, or similar documents-used by the Certifying Officer, analysts, Department of labor employees, or contractors working with, for, or under the direction of OFLC, when reviewing or processing Applications for Permanent Employment Certification created, developed, used, implemented, and/or disseminated (internally or externally) by the OFLC on or after January 1, 2009. This request does not seek records filled out or completed in relation to specific PERM applications.

(Compl., Ex. A). On April 4, 2012, Defendant advised Plaintiff that his MIA request had been assigned to OFLC on March 15, 2012. Defendant informed Plaintiff by email and regular mail on August 3, 2012 that his request for a waiver of the fees associated with the FOIA request was denied and advised Plaintiff that he would either need to make an advance payment of $223.07 or narrow his request in a way that would reduce the fee in order for Defendant to take further action on the FOIA request. On August 14, 2012, Defendant notified Plaintiff that it had received his advance payment of $223.07 and that it anticipated completing the FOIA request within twenty (20) business days.

On September 26, 2012, Defendant wrote Plaintiff seeking clarification on the scope of the request, to which Plaintiff responded with the requested clarification that same day. Plaintiff obtained legal counsel after Defendant subsequently failed to provide any responsive documents. Following a phone conversation between the parties, Plaintiffs counsel proposed by email on March 14, 2013 an agreement wherein Plaintiff would narrow the scope of the first part of his FOIA request such that the request "does not seek audit responses or Form 9089s submitted by employers to OFLC in relation to specific PERM applications." (Ans., Ex. 1). in exchange, Defendant would make every reasonable effort to respond to the entirety of the FOIA request within twenty (20) business days, but, in any event, within no more than forty-five (45) business days. The email gave Defendant until noon on March 15, 2013 to confirm the agreement in writing, and advised the Defendant that Plaintiff would otherwise immediately proceed with filing a complaint in this Court. The parties dispute whether their initial phone conversation about this proposed agreement required that Defendant confirm the agreement in writing by March 15, 2013 at noon. Nonetheless, Plaintiff filed his Complaint in this Court on March 18, 2013.

Since Plaintiffs filing of this lawsuit, Defendant has provided eight disclosures, including five interim responses between March and May 2013 as well as three additional disclosures made between June and August 2013. Defendant's disclosures are as follows:

(1) March 19, 2013: first interim response consisting of 4 documents released with redactions pursuant to FOIA Exemptions 5[1] and 7(E), and 11 documents released in full;
(2) March 29, 2013: second interim response consisting of 165 documents all fully withheld pursuant to FOIA Exemptions 5 and 7(E);
(3) April 11, 2013: third interim response consisting of 180 documents all fully withheld pursuant to FOIA Exemptions 5 and 7(E);
(4) April 26, 2013: fourth interim response consisting of one document released with redactions pursuant to FOIA Exemptions 5 and 7(E), and 8 documents fully withheld pursuant to FOIA Exemptions 5 and 7(E);
(5) May 10, 2013: fifth interim response consisting of 14 documents released in full, 11 documents released with redactions pursuant to FOIA Exemptions 5 and 7(E), and 64 documents fully withheld pursuant to FOIA Exemptions 5 and 7(E);
(6) June 27, 2013: sixth disclosure consisting of a Vaughn index as well as 98 documents released with redactions pursuant to FOIA Exemptions 5 and 7(E), and 186 documents released in full;
(7) July 17, 2013: seventh disclosure consisting of 10 documents fully withheld pursuant to FOIA Exemptions 5 and 7(E), 14 documents redacted pursuant to FOIA Exemptions 5 and 7(E), 5 documents released in full, and 10 previously released documents re-released with corrections; and
(8) August 2, 2013: eighth disclosure consisting of 1 document redacted pursuant to FOIA Exemptions 5 and 7(E), 1 document released in MI, and 1 previously released document re-released with corrections.

In summary, 272 documents that were either redacted or fully withheld pursuant to FOIA Exemptions 5 and 7(E) remain at issue.

To search for responsive documents regarding Plaintiffs FOIA request, Defendant conducted two searches of three OFLC offices-the National Office in Washington, D.C.; a National Processing Center in Atlanta, Georgia; and a National Processing Center in Chicago, Illinois. The first search was conducted at the Atlanta National Processing Center ("ANPC") in May and August of 2012, and the second search was ...


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