[00:00:00] Speaker 04: Case number 23-5069. [00:00:03] Speaker 04: Fleta Christina C. Zebra, at Valance, versus United States Customs and Border Protection. [00:00:09] Speaker 04: Mr. Fells, for the at Valance, Mr. Walker, for the Epole. [00:00:20] Speaker 04: Good morning. [00:00:21] Speaker 00: Good morning. [00:00:22] Speaker 00: May it please the court, my name is Andrew Fells and I represent the appellant Kalila Sabra against the appellee agency CBP. [00:00:34] Speaker 00: As I will address, there has been no adequate search of CBP's records in the past seven years. [00:00:45] Speaker 00: The best illustration of this point is comparing the declaration [00:00:50] Speaker 00: on page 138 with the CBP policy that is now in the record and looking at the mismatch between those. [00:01:03] Speaker 00: In theory, for a routine search of civil rights investigation records like this search, [00:01:12] Speaker 00: It should be a simple matter of going through the relevant policy and matching the agency declaration with that policy. [00:01:22] Speaker 00: We don't have that here. [00:01:24] Speaker 00: And the declaration itself is, I think, inadequate in part because it does not address internal affairs to begin with. [00:01:35] Speaker 00: It only describes the search of five employees' emails. [00:01:39] Speaker 03: Step back a little bit and say specifically what language in the policy you're referring to when you say that the match is not comparable. [00:01:49] Speaker 00: The major points here are in the policy. [00:01:55] Speaker 00: You've got, let's see, 8.2, 8.3, CRCL communications with the CBP commissioner and deputy commissioner. [00:02:06] Speaker 00: That's one of the primary communications that is not here. [00:02:10] Speaker 00: It is missing, and there's been no search for those records according to the declaration. [00:02:17] Speaker 00: And that seems to be key. [00:02:21] Speaker 00: the deputy commissioner email that was introduced in the response to the second motion for summary judgment. [00:02:38] Speaker 00: indicates that there is in fact an ongoing conversation between CRCL and the commissioner. [00:02:45] Speaker 03: And what I would say is you would agree that it doesn't have to match specifically your FOIA request, right? [00:02:54] Speaker 03: That any search would not have to match a specific FOIA request. [00:03:00] Speaker 03: And then it doesn't have to be specific terms as to what you as a complainant are requesting. [00:03:08] Speaker 05: Yes. [00:03:08] Speaker 03: Okay. [00:03:09] Speaker 03: And so in here, I feel like there's two areas that [00:03:14] Speaker 03: would be of concern to you. [00:03:16] Speaker 03: One is not having the use of your client's full name as opposed to breaking it up into parts by saying Sabra and then saying two other portions of her name. [00:03:26] Speaker 03: But you felt like the full name should be there. [00:03:28] Speaker 00: Yes, Your Honor. [00:03:29] Speaker 03: And then I'll ask the other side about the technology as to whether or not that search term would have on its own gotten to the full name just by putting in Sabra at least, okay? [00:03:40] Speaker 03: So that's one area. [00:03:42] Speaker 03: And then as to the McAleen email, I think where you're headed on that is that you asked specifically for searches with respect to the encounter and the investigation, and you believe that the investigation was not searched because they only dealt with witnesses, not people who were actually involved in the investigation, and that the McAleen email would have led you there. [00:04:04] Speaker 00: Yes, Your Honor. [00:04:07] Speaker 00: It's hard to speak to some of the factual underpinnings here, and certainly the agency has afforded a presumption that it follows its own policy. [00:04:16] Speaker 00: And so under Biological Diversity Center, it seems like it would have gone through all of those steps in its policy, and hence that we could have expected all of those records to be made available. [00:04:35] Speaker 00: And one of the key areas of the motion for summary judgment, of course, is the existence of the Office of Internal Affairs. [00:04:48] Speaker 00: The McAllenian email discusses at some length that, or sorry, does not discuss at some length, but there are email addresses there that are linked to or referenced to the Office of Internal Affairs, IA. [00:05:02] Speaker 00: And under the policy, [00:05:04] Speaker 00: It's the Office of Internal Affairs that is doing all of the investigation. [00:05:09] Speaker 04: Isn't that argument just formalistic? [00:05:12] Speaker 04: There was an Office of Internal Affairs. [00:05:14] Speaker 04: It's been renamed the Office of Professional Responsibility, and the agency made clear that it searched those records. [00:05:23] Speaker 04: Whatever the office is called, the agency states that it searched the records of that office. [00:05:32] Speaker 04: name change doesn't seem to suggest that the agency's search was unreasonable, which is, after all, the overall standard. [00:05:41] Speaker 00: I think to answer in two parts. [00:05:48] Speaker 00: One is there is the question of when was it renamed to begin with. [00:05:56] Speaker 00: And also, if under 552A2, the agency is required to make public all of its policies, in part because, as this case touches on, people are filing FOIA requests for those records. [00:06:14] Speaker 00: Here, the public policy says it's the Office of Internal Affairs that is doing this investigation. [00:06:22] Speaker 03: And now we've got... Isn't that public information though about the name change? [00:06:29] Speaker 00: It's not within the policy itself. [00:06:36] Speaker 03: But I'm talking about the renaming of it is public information, renaming of the agency. [00:06:41] Speaker 03: I just feel like you're kind of splitting hairs in that regard along with Judge Rao's question. [00:06:47] Speaker 00: And it may be that ultimately that these are exactly the same offices. [00:06:52] Speaker 00: But again, going back to the idea of the agency must make all of its policies public, if you've renamed the body that is investigating your civil rights complaints, and CBP being the largest law enforcement body in the United States, [00:07:12] Speaker 00: That's critical. [00:07:14] Speaker 00: It does seem important that your policies reflect who is in fact in charge of this because we get into some bait here regarding whether or not and to what extent this should have been referred to CRCL or OIG. [00:07:30] Speaker 00: As written, if I go on the website and I look up and see who is supposed to have done my investigation, currently it's the Office of Internal Affairs. [00:07:41] Speaker 04: But you're not making an allegation that they didn't in fact search the correct office. [00:07:46] Speaker 04: You're just saying that the policy uses the name of the old office. [00:07:51] Speaker 04: So again, I'm not sure how that says anything about the reasonableness of the agency's search. [00:07:57] Speaker 00: And even if that is the same, that these are exactly the same offices and they conduct exactly the same kinds of searches, that still leaves us with the question of whether it would have been reasonable to search for CRCL communications with the commissioner of CBP. [00:08:19] Speaker 00: And that's one thing that does not seem to have changed and we've not [00:08:24] Speaker 00: The declaration certainly does not address why this was reasonable to not search those emails, or not search for those communications. [00:08:32] Speaker 00: It simply says that we searched the five emails of these particular CBP employees. [00:08:39] Speaker 03: To me that's a different question. [00:08:41] Speaker 03: The agency, even in turning names, [00:08:45] Speaker 03: changing over to a different name, they produce those documents and they indicate so about the name change. [00:08:50] Speaker 03: But if you're asking about the emails, that's what I was going to earlier, that goes to a difference in only searching witnesses versus searching anybody involved in the investigation, which did not necessarily be limited to those five witnesses. [00:09:04] Speaker 00: Yes, Your Honor, and yes, I believe she was originally seeking. [00:09:08] Speaker 03: And is there anything that you've been made aware of that suggests that something will turn up if that search was different? [00:09:15] Speaker 00: I believe the McAllenian email itself is indicative of the fact that the agency was in fact following its own policy in this regard, and that there would have been that follow-up communication. [00:09:28] Speaker 00: And certainly that does seem to be the presumption that it would have been following its own policy. [00:09:38] Speaker 04: Let me just see if my colleagues have any further questions. [00:09:42] Speaker 03: You also mentioned the incident case number. [00:09:44] Speaker 03: Why do you believe that's relevant to be part of the search? [00:09:48] Speaker 00: The incident case number, it's certainly not clear to me from this perspective to what extent that is used, say, as an email header or something that is used in the body of communications to discuss a particular event, to say, you know, this is about case number dot, dot, dot, as opposed to saying this is about Kalila Sabra or whichever name is being used. [00:10:17] Speaker 03: And then you also indicated that they should have asked other component agencies or either sent other, these same requests to other agencies that might have been related in some regard. [00:10:29] Speaker 03: Yes, Your Honor. [00:10:29] Speaker 03: Did you FOIA other agencies? [00:10:33] Speaker 00: I'm not, I was not the trial counsel. [00:10:36] Speaker 03: Or trial counsel. [00:10:38] Speaker 00: I don't think so. [00:10:39] Speaker 00: I don't know if he would have. [00:10:40] Speaker 03: But that could have been done separately. [00:10:41] Speaker 00: It could have been, it appears that this policy was not released until 2020. [00:10:46] Speaker 00: So it's unclear how anyone would have known how CBP conducted its investigations until that time. [00:10:52] Speaker 03: But I'm saying when you say, when I ask the question about FOIA and other agencies, anybody you, meaning you, your client, your entity represented to specifically query those agencies separate and apart from CBP? [00:11:09] Speaker 00: I think here, no, I don't think they did that. [00:11:12] Speaker 00: And I think in part because it is, CBP relies in large part on CRCL, which is a different part of the DHS to do a lot of its investigative work according to its policy. [00:11:24] Speaker 00: And in 2017, I'm not sure how they would have known that. [00:11:30] Speaker 00: The policy existed, but as in the reading room, it's listed as being posted in 2020. [00:11:37] Speaker 00: So this would have been three years later. [00:11:41] Speaker 04: Thank you. [00:11:45] Speaker 04: We'll give you a few minutes. [00:11:53] Speaker 01: Good morning. [00:11:53] Speaker 01: Your honors may please the court. [00:11:55] Speaker 01: Johnny Walker on behalf of U.S. [00:11:57] Speaker 01: Customs and Border Protection. [00:11:58] Speaker 01: I want to start by addressing the policy because my friend has made much of the case on appeal about that policy. [00:12:05] Speaker 01: As a procedural matter, that policy was never brought up in the district court. [00:12:09] Speaker 01: Now, the posting on the reading room that he cites in his brief was posted in February of 2020, one month before this complaint was filed, and one year before the party's brief summary judgment. [00:12:23] Speaker 01: So that policy was available to the plaintiff at the time they made their summary judgment arguments in the district court, but it was never raised in the district court where we could have built a record about it. [00:12:33] Speaker 01: But the policy on its face does not implicate the creation of any additional emails or any additional investigations other than what's been provided. [00:12:42] Speaker 01: They rely on these sections at 8.2 and 8.3. [00:12:46] Speaker 01: Those are provisions that have to do with situations where the Department of Homeland Security's Office of Civil Rights and Civil Liberties makes recommendations for corrective action following a report. [00:12:57] Speaker 01: There were no recommendations for corrective action [00:13:00] Speaker 01: made in this instance, and so it's unsurprising that there would not be any additional emails involving Mr. McAleenan, the Office of Diversity and Civil Rights at CBP, or the Office of the Commissioner of CBP. [00:13:16] Speaker 03: I want to go along the line of some of the questioning that I had to your colleague. [00:13:22] Speaker 03: There's been an interviewing case, American Oversight. [00:13:24] Speaker 03: Are you familiar with it? [00:13:26] Speaker 01: I'm familiar with a few American Oversights cases. [00:13:29] Speaker 03: Well, this particular one holds that an agency affidavit must provide a detailed explanation of an agency's failure to use obvious alternative search terms. [00:13:40] Speaker 03: So I want to start with the name, because you did not use the entire name in the search mechanism. [00:13:47] Speaker 03: Is there a reason for that? [00:13:49] Speaker 03: Because I just don't know if that would have gotten some different information. [00:13:53] Speaker 01: It would not have, Your Honor. [00:13:54] Speaker 01: So if they used, she has a four-part name ending in Sabra, right? [00:13:58] Speaker 01: So if her four-part name with spaces in between appeared in a document, simply searching that term Sabra would find any instance where her full name appeared. [00:14:08] Speaker 01: And just to be overly cautious and ensure that its search was complete, her last two names are Cousin Sabra. [00:14:14] Speaker 01: Those generally appear on the documents with a space in between, but just to capture any document where they may happen to not appear with a space in between, [00:14:22] Speaker 01: The agency also searched with them without a space in between and with a hyphen in between. [00:14:26] Speaker 01: So they cast a very wide net here. [00:14:28] Speaker 01: In addition to her name, they also searched terms associated with the individuals with whom she was traveling and assisting to apply for asylum. [00:14:35] Speaker 01: So they searched the term Syria, Syrians, and Syrian. [00:14:39] Speaker 01: And that returned, I think, something like over 13,000 pages of documents. [00:14:43] Speaker 01: It was an incredibly wide net that they then went through to find any documents that were actually specific to her request. [00:14:49] Speaker 03: Okay and then what about the response time because it said you were supposed to do it on the expedited basis for 10 days. [00:14:57] Speaker 03: It took over a year. [00:14:58] Speaker 03: So I'm just curious as to whether or not you all ever followed the provision of expedited time. [00:15:05] Speaker 01: I know that within a few days of her submission of a FOIA request and request for expedited processing, there was an acknowledgment sent to her that informed her that her request was being placed on the simple track, not an expedited processing track. [00:15:17] Speaker 01: But I think our more general point there is that once the agency produces all of the records, [00:15:24] Speaker 01: The question then becomes whether or not that the redactions are adequate, whether the search is adequate. [00:15:29] Speaker 01: But here the only issue of course is whether the search was adequate and the timing of the agency's request becomes moot. [00:15:34] Speaker 01: I think this court recognized that in the Payne Enterprises case or said as a general and individual FOIA request. [00:15:41] Speaker 01: Once the releases are complete, the question of timing becomes moot. [00:15:44] Speaker 01: There's an exception for policy or practice claims, but that's not a claim that the plaintiff has presented here. [00:15:49] Speaker 03: And then with respect to the investigations or deputy CBP commissioners involvement, how do you all get beyond only that email being produced when they specifically asked about investigations, not just the border issue? [00:16:04] Speaker 01: So I think there's two separate questions there. [00:16:06] Speaker 01: One is whether or not the policy indicates that Mr. McAleenan would have had any additional records, and then there's the separate question whether the one email that was produced indicates whether Mr. McAleenan would have any additional records. [00:16:17] Speaker 01: I think I've addressed the policy. [00:16:18] Speaker 01: He would only be involved if there were findings and recommendations that weren't here. [00:16:24] Speaker 01: With respect to the one individual email, the question becomes whether or not that email provides a clear and certain lead [00:16:31] Speaker 01: that there are other documents available. [00:16:33] Speaker 01: And our position is that it does not, it's an email forwarded from the Office of Civil Rights and Civil Liberties that simply informs Deputy Commissioner McAleenan that this complaint has come in. [00:16:43] Speaker 01: It doesn't indicate that he is going to be kept further apprised of the investigation of that complaint or that he would have any further involvement in the investigation of that complaint. [00:16:50] Speaker 01: It's a purely one-time informational email. [00:16:53] Speaker 01: And so it does not present a clear and certain. [00:16:55] Speaker 03: But do you not see a distinction between witnesses versus who is part of the investigation? [00:17:00] Speaker 03: Because witnesses seems to focus on what happened at the border versus who then receives the internal investigation and then their involvement. [00:17:08] Speaker 01: I see the distinction. [00:17:09] Speaker 01: I think the only argument that plaintiff has made in this case is that it was Mr. McAleenan who would have been involved in additional investigations. [00:17:17] Speaker 01: And I don't think there's any need to [00:17:19] Speaker 01: conducting further investigations of him because there's no indication that he would be further involved in the investigation. [00:17:24] Speaker 01: The distinction between, so I think you have to go back to the language of the FOIA request. [00:17:29] Speaker 01: The FOIA request specifically requested documents about the encounter itself between Ms. [00:17:35] Speaker 01: Sabra and the five CBP agents. [00:17:38] Speaker 01: And I think it was reasonable to search the way CBP did, which was to identify every agent with whom she [00:17:45] Speaker 01: encountered and every agent that witnessed that encounter and to conduct an expansive search of their emails using expansive search terms over the course of six months, which would have included the time immediately following the encounter, would have encompassed the time during which the investigation was conducted. [00:18:01] Speaker 01: And then CBP also searched a number of different databases where it knew information about that encounter may be stored. [00:18:09] Speaker 01: That includes the SGMA database where they record records about encounters at border crossings and detentions. [00:18:14] Speaker 01: It includes the, I think it's the E-Star database, which includes any records about use of force. [00:18:20] Speaker 01: It includes the Joint Integrity Case Management System, where they have stored any records about investigations because they knew an investigation had been conducted. [00:18:27] Speaker 01: And it included the Chief Counsel Tracking System, which is where they store any sort of legal documents. [00:18:34] Speaker 03: And then the other thing that I would ask is, when you all put your searches out there, you seem to have used different terms [00:18:42] Speaker 03: at different agencies, like in other words, there wasn't one blanket search and then it went to all the agencies. [00:18:49] Speaker 03: Why is that? [00:18:50] Speaker 01: I think there is largely consistency between. [00:18:53] Speaker 01: The only sort of distinction that I know of is that many of the agencies searched Ms. [00:18:57] Speaker 01: Sabra's name, whereas the email search was both Ms. [00:19:02] Speaker 01: Sabra's name and sort of the Syrian variations. [00:19:06] Speaker 01: And I think that's just sort of the minor differences there, just sort of a product of each sort of office being tasked separately to conduct a search in the way that it knows will [00:19:17] Speaker 01: best find records within its particular databases and systems. [00:19:22] Speaker 01: So a lot of these offices are searching a particular system, the sort of various systems that I just went through. [00:19:27] Speaker 01: And so they sort of know how to pull a record from within that system. [00:19:31] Speaker 01: It's not sort of an email search like the information technology office did. [00:19:36] Speaker 01: They're sort of trying to target a particular record. [00:19:39] Speaker 01: And as you can see, they were successful in doing so with the exception of the use of force records because there simply wasn't such a record. [00:19:48] Speaker 04: Judge Edwards, please. [00:19:53] Speaker 01: I just, there's one other thing I'd like to address, which is this distinction between the Office of Professional Responsibility and the Office of Internal Affairs. [00:20:00] Speaker 01: I think I can simplify that issue even further. [00:20:02] Speaker 01: I think the issue is not so much what is the, who is the office that is performing the search, but where are they searching? [00:20:09] Speaker 01: And what our declaration at JA 141 to 42 describes is that the database, the repository where CBP stores its investigatory records, is the Joint Integrity Case Management System. [00:20:20] Speaker 01: So, whether it's the Office of Internal Affairs that's in existence right now, or the Office of Professional Responsibility that's in existence right now, the location of the record is going to be the Joint Integrity Case Management System. [00:20:32] Speaker 01: That is the repository that was searched, and that is the repository where they located the documents about the report. [00:20:38] Speaker 03: And do you feel like the affidavit sufficiently explains why you did or did not choose certain search terms? [00:20:45] Speaker 03: And is that something that the law requires? [00:20:48] Speaker 01: I don't think the law requires that we submit a declaration addressing each of the search terms that they propose. [00:20:57] Speaker 01: The agency is ultimately responsible for selecting the search terms. [00:21:00] Speaker 03: I do agree with that, but I'm asking about your method for selection. [00:21:04] Speaker 03: In other words, do you have a duty in your affidavit to describe why you chose your route in terms of the search terms or why you did not? [00:21:16] Speaker 01: I think we certainly need to argue that if it's brought into question. [00:21:18] Speaker 01: I think we have. [00:21:19] Speaker 01: I think we've said, you know, that given the content of what she's asking about, which is an encounter with herself while traveling with a group of Syrian nationals applying for asylum, the appropriate search terms are her name because she's the one who would be involved in the encounter and the individuals that she was traveling with because they were also involved in the encounter. [00:21:37] Speaker 01: We've also addressed, I mean, as an argumentative basis about that additional search terms would not necessarily be expected to locate any additional efforts. [00:21:46] Speaker 01: The search that we've performed is incredibly reasonable. [00:21:49] Speaker 01: As I said, the search of the emails in particular cast a very wide net, pulled in a lot of documents that they went through individually to determine what was responsive. [00:21:59] Speaker 02: Beyond just references to witnesses. [00:22:03] Speaker 01: I'm sorry? [00:22:04] Speaker 02: Beyond just references to witnesses. [00:22:08] Speaker 01: That's right. [00:22:08] Speaker 01: It would have been that when they went through to find what was responsive, meaning they looked for documents that were about her encounter with the CBP agents. [00:22:19] Speaker 01: If there are no further questions. [00:22:21] Speaker 04: Thank you, Mr. Walker. [00:22:22] Speaker 01: Thank you. [00:22:22] Speaker 01: Please affirm. [00:22:25] Speaker 04: I'll give you two minutes, Mr. Fells. [00:22:34] Speaker 00: that there were no communications with CRCL and the commissioners, unless it's in the affidavit. [00:22:44] Speaker 00: If we've got to rely on the affidavit, it would be in there. [00:22:49] Speaker 00: There is no search described that would include those records. [00:22:55] Speaker 04: Mr. Fells, what about the fact that this issue was not raised below, even though it was an argument that was available? [00:23:03] Speaker 04: during the summary judgment briefings in the district court? [00:23:12] Speaker 00: Certainly, it would have been better had it done so. [00:23:19] Speaker 00: However, what was raised there, [00:23:25] Speaker 00: The issue was that filed the second motion for summary judgment and in the response that included the email between CRCL and the deputy commissioner. [00:23:39] Speaker 00: In a footnote, that's where CBP responds that no, in fact, OPR and the Office of Internal Affairs are separate offices. [00:23:47] Speaker 00: At that point, it's not clear whether there was any need to cite to the policy, because it seemed very clear from that email that yes, there's an Office of Internal Affairs, [00:24:01] Speaker 00: Yes, there are communications between CRCL and the commissioner. [00:24:10] Speaker 00: That seems like that should be enough to defeat the motion for somebody's judgment alone. [00:24:20] Speaker 00: But then we also get back to the fact of CBP does not [00:24:28] Speaker 00: does not mention nor seem to have followed through with what it knows to be its own policy. [00:24:36] Speaker 00: Why wouldn't this already be in the affidavit? [00:24:39] Speaker 00: Why wouldn't they just go through and do the search that is based off of their own process? [00:24:45] Speaker 00: There's no mention of the Diversity and Civil Rights Office either. [00:24:49] Speaker 00: We don't know anything about that. [00:24:53] Speaker 04: Thank you, Mr. Felsen. [00:24:54] Speaker 04: The case is submitted.