1/14/2018

CAND-ECF
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:18-cv-00044-KAW

ADRMOP

The Center for Investigative Reporting (CIR) v. Department of Homeland Security Assigned to: Magistrate Judge Kandis A. Westmore Cause: 05:552 Freedom of Information Act

Date Filed: 01/03/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff
The Center for Investigative Reporting (CIR)

represented by Diana Victoria Baranetsky The Center for Investigative Reporting 1400 65th Street Suite 200 Emeryville, CA 94608 510-809-3160 Fax: 510-849-6141 Email: vbaranetsky@revealnews.org ATTORNEY TO BE NOTICED

V. Defendant Department of Homeland Security

Date Filed 01/03/2018
01/03/2018 01/03/2018

# Docket Text
1 COMPLAINT against Department of Homeland Security ( Filing fee $ 400, receipt number 0971-11993405.). Filed byThe Center for Investigative Reporting (CIR). (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Civil Cover Sheet)(Baranetsky, Diana) (Filed on 1/3/2018) (Entered: 01/03/2018)
2 Proposed Summons. (Baranetsky, Diana) (Filed on 1/3/2018) (Entered: 01/03/2018)
3 Case assigned to Magistrate Judge Kandis A. Westmore.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 1/17/2018. (bwS, COURT STAFF) (Filed on 1/3/2018) (Entered: 01/03/2018)

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?444609783822497-L_1_0-1

1/2

1/14/2018
01/04/2018 01/04/2018
01/04/2018

CAND-ECF
4 Summons Issued as to Department of Homeland Security, U.S. Attorney and U.S. Attorney General (jmlS, COURT STAFF) (Filed on 1/4/2018) (Entered: 01/04/2018)
5 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 3/27/2018. Initial Case Management Conference set for 4/3/2018 01:30 PM. (jmlS, COURT STAFF) (Filed on 1/4/2018) (Entered: 01/04/2018)
6 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by The Center for Investigative Reporting (CIR).. (Baranetsky, Diana) (Filed on 1/4/2018) (Entered: 01/04/2018)

PACER Service Center
Transaction Receipt

PACER Login:
Description:
Billable Pages:

01/14/2018 19:08:48

hs0328:2563377:0 Client Code:

Docket Report

Search Criteria:

1

Cost:

4:18-cv-00044KAW
0.10

https://ecf.cand.uscourts.gov/cgi-bin/DktRpt.pl?444609783822497-L_1_0-1

2/2

 
 Case 4:18-cv-00044-KAW Document 1 Filed 01/03/18 Page 1 of 10

1 D. Victoria Baranetsky (SBN 311892)

2

THE CENTER FOR INVESTIGATIVE REPORTING 1400 65th St., Suite 200

3 Emetyville, CA 94608 Telephone: (510) 809-3160

4 Fax: (510) 849-6141

vbaranetsky@revealnews.org 5

6 Attomey for Plaintiff

7 UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
OAKLAND-SAN FRANCISCO DIVISION 10

11

12 THE CENTER FOR INVESTIGATIVE

) Case No. _ _ _ _ __

REPORTING,

)

13

) COMPLAINT FOR INJUNCTIVE

Plaintiff, ) RELIEF

14

)

v.

)

15

)

UNITED STATES DEPARTMENT OF 16 HOMELAND SECURITY,

) )

17 18

)

_

_

_

_

_

_

_

_

Defendant.
____

_ ) )

19

INTRODUCTION 20

I. This is an action under the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 552, 21

for injunctive and other appropriate relief. The Center for Investigative Reporting ("CIR" or
22

"Plaintiff') seeks expedited processing and release of agency records requested from Defendant the 23

United States Depattment of Homeland Security ("DHS"). 24

2.

On Mm·ch 21, 2017, Plaintiff submitted a Freedom of Information Act request (the

25

"Request") to Customs and Border Protection ("CBP"), a component of DHS seeking records 26

related to the federal govemment' s land acquisition at the United States border and related real 27

estate costs. 28

-1-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 4:18-cv-00044-KAW Document 1 Filed 01/03/18 Page 2 of 10

1

3. To date, Defendant has failed to comply with statutory deadlines and has provided

2 no response to Plaintiff.

3

4. DRS's failure to provide any response is ofpmticular concern because of the

4 immense public impmtance involving land acquisition at the U.S. border. Indeed, since the

5 presidential debates there has been extensive reporting and public concern over the government's

6 land operations at the border wall.

7

5. At the same time, the public interest in the release of the DHS records, which detail

8 information about public funds amounting to potentially millions, if not billions of tax dollars is

9 substantial.

10

6. Plaintiff now asks the Court for an injunction requiring DHS to promptly release the

11 withheld records.

12

PARTIES

13

7. Plaintiff CIR publishes Reveal, an online news site at revealnews.org, and Reveal, a

14 weekly public radio show with approximately 1 million listeners a week. Founded in 1977, as the

15 first national investigative news organization, CIR has received multiple awards for its reporting.

16 CIR is a nonprofit established under the laws of the State ofCalifomia, with its primary office in

17 Emeryville, California.

18

8. Defendant DHS is a department of the executive branch of the U.S. govemment and

19 an "agency" within the meaning of 5 U.S.C. §552(f)(1). CBP is a component ofDHS. DHS has its

20 headquarters in Washington, D.C., and offices all over the country, including in Oakland and San

21 Francisco, Califomia.

22

JURISDICTION

23

9. The Court has subject matter jurisdiction over this action and personal jurisdiction

24 over the parties pursuant to 5 U.S.C. §§ 552(a)(4)(B) and 552(a)(6)(C)(i). This Court also has

25 jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1436, and 5 U.S.C. §§ 701-706.

26 II
27
II 28

-2-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 4:18-cv-00044-KAW Document 1 Filed 01/03/18 Page 3 of 10

VENUE AND INTRADISTRICT ASSIGNMENT I
10. Venue is proper in this district under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §§
2
1391(e) and 1402. PlaintiffCIR has its principal place of business in this district.
3 II. Assignment to the Oakland Division is proper pursuant to Local Rule 3-2(c) and (d)
4
because a substantial portion of the events giving rise to this action occurred in Alameda County,
5
where Plaintiffs principal place of business is located.
6

7

FACTUAL BACKGROUND

Policies at the United States border wall 8

12. On October 26, 2006, President George W. Bush signed the Secure Fence Act of 9
2006, Pub. L. 109-367, 120 Stat. 2638 into law stating, "This bill will help protect the American 10

people." Press Release, The White House, Fact Sheet: The Secure Fence Act of2006, (Oct. 26, 11
2006), https:llgeorgewbush-whitehouse.archives.govlnews/releasesl200611 0120061 026-l.html.
12

13

13. The White House stated that, among other things, the Act "Authorizes the

14 constmction of hundreds of miles of additional fencing along our Southern border[.]" !d.

15

14. As a consequence of the Secure Fence Act, for the next decade, the federal

16 government initiated hundreds of eminent domain cases to acquire land at the border. See John

17 Bumett, Landowners Likely To Bring More Lawsuits As Trump Moves On Border Wall, NPR.ORG,

18 Feb. 23,2017, http:lln.prl2oKweVA; Andrew Becker and David Rodriguez, Feds hunt down

19 myste1y landowners in bid to build border wall, REVEAL, June 21,2017, http:l/bit.ly/2ttx5sh.

20 15. The federal government also pursued land purchases to acquire border property. Id.
21 In addition, contractors working for the federal government constructed hundreds of miles of
22
border fence. I d. The fence segments were built on federal land, as well as land acquired from 23
state and local governments, and many private citizens. Id. 24
16. Upon taking office, President Barack Obama continued pursuit of land acquisition 25
and fence construction at the border. April Reese, US. Mexico Fence Building Continues Despite 26
Obama 's Promise to Revie·w Effects, N.Y. TIMES, April16, 2009, http:llnyti.msl2oQ85Nq. 27
II 28

-3-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 4:18-cv-00044-KAW Document 1 Filed 01/03/18 Page 4 of 10

1

17. In 2011, President Obama announced in a speech delivered in El Paso, Texas that

2 the border fence was "basically now complete." See Robe1i Farley, Obama says the borderfence

3 is 'now basically complete', POLITIFACT, May 16, 2011, http://bit.ly/lXreKWg.

4

18. During the 2016 presidential campaign, candidate Donald Trump once more

5 reignited conversations about expanding the existing border wall. See, e.g., Kurtis Lee, Trump and

6 Clinton clash over border security and US-Mexico relations, L.A. TIMES, Oct. 19,2016,

7 http://lat.ms/2eupcdN; Trump's border wall, immigration plans re-emerge at top ofnational

8 debate, Fox NEWS, Aug. 5, 2017, http://fxn.ws/2vAuiqT.

9
19. Since taking office, tensions have heightened as President Trump has made building 10
the border wall a national priority. On Janumy 25, 2017, President Trump released two Executive
11
Orders involving the U.S. border. Executive Order No. 13767, among other things, demanded new 12
construction of a physical wall along parts of the nearly 2,000-mile southern border ofthe United 13
States as well as additional resources to Border Patrol agents. See Border Security and 14 Immigration Enforcement Improvements, 82 Fed. Reg. 8793 (Jan. 25, 2017). 1 15

16

20. In Februmy 2017, President Trump released a budget asking Congress for an

17 amount of $21.6 billion to build new walls or replace existing barriers. Rachel Chason, California

18 takes aim at one ofTrump's key campaign promises, Tl-IE WASHINGTON PosT, Sept. 21,2017,

19 http://wapo.st/2CGzmnx; Michael Corey and Andrew Becker, Senate Democrats answer questions,

raise concerns with Trump's wall, REVEAL, Aprill9, 2017, http://bit.ly/2oNOYDz; Andrew 20

21 Becker, Trump's wall is wrong path for immigration reform, analysts say, REVEAL, Jan. 25, 2017,

22 http://bit.ly/2kKpAJM.

23

21. In response, public outcry over the amount of federal dollars to be spent on the

24 border wall reached a fever pitch. See, e.g., Alicia Caldwell, US. Warns Border Wall Construction

25 Could Spark Large-Scale Protests, THE WALL ST. JOURNAL, Sept. 12, 2017,

26 http://on.wsj.com/2oN5N1D.

27 ' Available at https://www .whitehouse.gov/the-press-office/2017/01/25/executive-order-border-
28 security-and-immigration-enforcement-improvements.

-4-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 4:18-cv-00044-KAW Document 1 Filed 01/03/18 Page 5 of 10

1

22. In addition, Democratic and Republican members of Congress began to publicly

2 oppose the plan. See Laura Meckler and Kristina Peterson, Border Lawmakers Balk at Donald

3 Trump's Wall Request, Wall St. Journal, April21, 2017, http:llon.wsj.coml2p49oHO.

4

23. While Congress has allocated small amounts of money for prototype projects, there

5 has been intense Congressional debate about whether large scale expansion of the border fence is

6 economically prudent or strategically valuable, especially as estimates have reached up to $70

7 billion dollars. Ron Nixon, Border Wall Could Cost 3 Times Estimates, Senate Democrats' Report

8 Says, N.Y. TIMES, April18, 2017, http:llnyti.msl2kmA82d; Michael Corey and Andrew Becker,

9 Senate Democrats answer questions, raise concerns with Trump's wall, REVEAL.ORG, April19,

10 2017, http:!lbit.lyl2oNOYDz.

11 24. CIR has repeatedly written on this subject in over the past year. See, e.g., Michael
12 Corey and Andrew Becker, The wall: Building a continuous US-Mexico barrier would be a tall
13 order, REVEAL, Jan. 22, 2017, http:llbit.lyl2k7vX8S; Andrew Becker, The Cost ofTrump's Border
14 'Wall' is Going Up, REVEAL, Feb. 10, 2017, http:llbit.lyl2kmyRsa; Neena Satija and Kiah Collier,
15 Scientists say Trump's border wall would devastate ~wildlife habitat, REVEAL, March 4, 2017,
16 http:llbit.lyl2nk6TN3.
17 25. Any information on the amount of federal dollars spent on the border wall is vital to
18 the ongoing public interest, congressional debates, and news reports on this subject. See generally
19 T. Christian Miller, Kiah Collier and Julian Aguilar, The Taking, PROPUBLICA, Dec. 14,2017,
20 http:llbit.lyi2BJ9xXl.
21

22

26. In pursuit of this information, on May 26, 2017, CIR sent a FOIA request to the

23 Department of Army ("DOA''), among other agencies, seeking records documenting the federal

24 purchases ofland at the United States border, similar to the request at issue here. On November 2,

25 2017, DOA agents released responsive documents containing the amount of money paid to private

26 landowners to acquire border fence property. A true and correct copy of some of those records are

attached as Exhibit 1. 27

28 II

-5-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 4:18-cv-00044-KAW Document 1 Filed 01/03/18 Page 6 of 10

1

27. In subsequent phone conversations, DOA represented to CIR that it prepared its

2 documents for CBP to likely update a more complete list held by CBP.

3

28. Release of the requested documents from DHS involving acquisition of land by the

4 federal government would inform the public on this important and urgent topic of public concern.

5

The FOIA Request

6

29. By letter dated March 21, 2017, Plaintiff submitted through its reporter Andrew

7 Becker, a FOIA request to CBP (hereinafter "the Request") seeking records pertaining to land

8 acquisition at the U.S. border and related real estate costs. A copy of the Request is attached hereto

9 as Exhibit 2.

10

30. Plaintiffs Request seeks:

11

a. The amount of money Customs and Border Protection and/or DHS has paid to

12

private landowners in non-condemnation real estate transactions to acquire private

13

property related to border fence construction, with a breakdown by individual

14

recipient's name, location, amount paid, date paid, amount of acreage

15

b. The amount of money CBP and/or DHS has paid to the Department of the Interior

16

in environmental mitigation fees/costs related to fence construction, with a

17

breakdown by amount paid, date paid, reason for mitigation fee, and location related

18 19 20 21 22 23 24 25 26 27 II

to mitigation fee. c. The amount of money CBP and/or DHS has paid DOJ in litigation fees/costs related
to border fence condemnation suits, with a breakdown by fiscal year, region/field office/US attomey's office, date paid, reason for payment. The amount of money paid to property owners for land condemned and taken through eminent domain, with a breakdown by individual recipient, acreage, location of land, date paid, amount paid. The number of pending condemnation lawsuits, with a breakdown by filing date, docket number, location, and potential real estate exposure. d. The total expense to date for DOJ litigation fees/costs

28

-6-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 4:18-cv-00044-KAW Document 1 Filed 01/03/18 Page 7 of 10

1

e. The precise location, including parcel/tracts numbers, geolocation data and owners

2

involving all acquisitions related to border-fence construction.

3

f. The total amount of real estate related costs associated with border fence and/wall

4

construction to date, with a breakdown by type of expense, date of expense, funding

5

source, place of perfmmance.

6

31. Plaintiff sought expedited processing of the Request on the grounds that there is a

7 "compelling need" for these records because the information requested is urgently needed by an

8 organization primarily engaged in disseminating information in order to inform the public about

9 actual or alleged federal government activity. 5 U.S.C. § 522(a)(6)(E).

10

32. Plaintiff sought a waiver of search, review, and reproduction fees on the grounds

11 that disclosure of the requested records is "in the public interest because it is likely to contribute

12 significantly to public understanding of the operations or activities of the government and is not

13 primarily in the commercial interest of the requester." Id. § 552(a)(4)(A)(iii).

14

33. Plaintiff also sought a waiver of search and review fees on the grounds that it

15 qualifies as a "representative of the news media" and that the records are not sought for

16 commercial use. Id. § 552(a)(4)(A)(ii).

17

34. By letter dated March 22,2017, CBP sent a letter aclmowledging the Request. A

18 true and correct copy of that response is attached as Exhibit 3.

19

35. On May 23,2017, CBP sent an email requesting a timeframe clarification. A true

20 and correct copy of that response is attached as Exhibit 4.

21

36. The next day, on May 24, 2017, Mr. Becker emailed CBP offering a timeframe

22 clarification. A true and correct copy of that response is attached as Exhibit 5.

23

37. On June 7, 2017, Mr. Becker received an email with a final disposition as to the

24 request for a fee waiver and expedited processing and was told his case was closed because he did

25 not provide a timeframe clarification. A true and correct copy of that response is attached as

26 Exhibit 6.

27 II

28 //

-7-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 4:18-cv-00044-KAW Document 1 Filed 01/03/18 Page 8 of 10

1

38. On June 9, 2017 Mr. Becker appealed the final disposition and that same day

2 received an acknowledgement letter with tracking number CBP-AP-2017-064364. A true and

3 correct copy of that response is attached as Exhibit 7.

4

39. On June 19, 2017, Mr. Becker received a determination from the appeals office

5 remanding the request back to the FOIA division, and stating CBP should process the Request

6 within 20 days, and if not Mr. Becker should be notified. A tme and con·ect copy of that response

7 is attached as Exhibit 8.

8

40. The next day, on June 20, 2017, Mr. Becker received a letter from CBP apologizing

9 for the miscommunication and stating there was no record of correspondence pertaining to Mr.

10 Becker's timeframe clarification. A true and correct copy of the communication is attached as

11 Exhibit 9.

12

41. On November 20, 2017, CIR General Counsel, D. Victoria Baranetsky sent a letter

13 to CBP notifying it that the DOA had disclosed records responsive to a similar request and alerting

14 CBP that it likely holds more complete responsive documents. A true and correct copy of the letter

15 (without attachments) is attached as Exhibit 10. The letter requested an immediate response and

16 processing of the Request. Plaintiff received no response from CBP.

17

42. In a letter dated November 29,2017, CBP FOIA Appeals division once more

18 remanded the request to CBP's FOIA Division for processing within twenty days and notified

19 Plaintiff that it may immediately challenge a failure to respond. A true and cmTect copy of that

20 response is attached as Exhibit 11.

21

43. To date, CBP has made no final determination on the Request.

22

44. DHS has twice failed to comply with FOIA's requirement that an agency will

23 respond to the Request within the 20 business days.

24 II
25
26 II

45. Having exhausted all administrative remedies, Plaintiff now seeks injunctive relief.

27 II

28 II

-8-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 4:18-cv-00044-KAW Document 1 Filed 01/03/18 Page 9 of 10

CAUSE OF ACTION 1

2

Violation of Freedom of Information Act

3

46. Plaintiff repeats and realleges paragraphs 1-45.

4

47. DHS is subject to FOIA and must therefore release in response to a FOIA request

5 any disclosable records in its possession at the time of the request and provide a lawful reason for

6 withholding any materials as to which it is claiming an exemption.

7

48. DHS has no lawful basis for declining to release the records requested by Plaintiff

8 under FOIA.

9

49. DHS has failed to act on Plaintiff's Request within the 20 business days required by

10 FOIA. See 5 U.S.C. § 552(a)(6)(A)(i). Accordingly, Plaintiff is deemed to have exhausted its

11 administrative remedies under FOIA.

12

50. Plaintiff is entitled to an order compelling DHS to produce records responsive to the

13 Request.

14 REQUESTED RELIEF

15 WHEREFORE, Plaintiff prays that this Court:

16
1. Declare that Defendant DHS violated FOIA by failing to comply with the 20

17
business days required by FOIA and notifYing Plaintiff of any detetmination;

18

2. Declare that DHS violated FOIA by failing to determine whether to provide

19 expedited processing within 10 days and thereafter notifying Plaintiff of such determination;

20 3. Declare that the documents sought by their FOIA request, as described in the

21 foregoing paragraphs, are public under 5 U.S.C. § 552 and must be disclosed;

22

4.

Order Defendant DHS to provide the requested documents to Plaintiff within 20

23 business days of the Court's order, or in the alternative, provide for expedited proceedings to

24 adjudicate Plaintiffs rights under FOIA;

25

5.

Award Plaintiff the costs of this proceeding, including reasonable attorneys' fees, as

26 expressly permitted by FOIA; and

27

6. Grant Plaintiff such other and fmiher relief as this Court may deem just and proper.

28

-9-
COMPLAINT FOR INJUNCTIVE RELIEF

Case 4:18-cv-00044-KAW Document 1 Filed 01/03/18 Page 10 of 10

1 DATED: January 3, 2018
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted, By: ~/s~/-P~~~~----~~----------­ D. Victoria aranet ky (SBN 311892) THE CENTER FOR INVESTIGATIVE REPORTING 1400 65th St., Suite 200 Emeryville, CA 94608 Telephone: (510) 809-3160 vbaranetsky@revealnews.org Attorney for Plaintiff
-10-
COMPLAJNT F OR INJUNCTI VE R ELIEF

 
 Case 4:18-cv-00044-KAW Document 32 Filed 03/29/19 Page 1 of 4

1 DAVID L. ANDERSON (CABN 149604)

United States Attorney

2 SARA WINSLOW (DCBN 457643)

Chief, Civil Division

3 SAVITH IYENGAR (CABN 268342)

Assistant United States Attorney

4

450 Golden Gate Avenue, Box 36055

5

San Francisco, CA 94102-3495

Telephone: (415) 436-7200

6

FAX: (415) 436-6748

savith.iyengar@usdoj.gov

7

Attorneys for Defendant

8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

OAKLAND DIVISION

12 THE CENTER FOR INVESTIGATIVE REPORTING,
13 Plaintiff,
14 v.
15 UNITED STATES DEPARTMENT OF
16 HOMELAND SECURITY,

17

Defendant.

18

) CASE NO.: 4:18-cv-00044 KAW ) ) STIPULATION OF SETTLEMENT AND ) DISMISSAL WITH PREJUDICE; ) [PROPOSED] ORDER ) ) ) ) ) ) )

19

Plaintiff Center for Investigative Reporting (“Plaintiff”) and defendant United States Department

20 of Homeland Security (“Defendant”), by and through their undersigned counsel, hereby enter into this

21 Stipulation of Settlement and Dismissal with Prejudice (“Stipulation”) as follows:

22

WHEREAS, on March 21, 2017, Plaintiff submitted a Freedom of Information Act (“FOIA”)

23 request to United States Customs and Border Protection (“CBP”).

24

WHEREAS, on January 23, 2018, Plaintiff filed the instant action against Defendant.

25

WHEREAS, Defendant has now provided responses to Plaintiff’s FOIA request; and

26

WHEREAS, the parties now wish to resolve this matter without the further expense and burden

27 of additional litigation;

28 ///

STIPULATION OF SETTLEMENT AND DISMISSAL

4:18-CV-00044 KAW

1

Case 4:18-cv-00044-KAW Document 32 Filed 03/29/19 Page 2 of 4

1

NOW, THEREFORE, the parties hereby stipulate and agree as follows:

2

1. Defendant shall pay to Plaintiff the amount of five thousand dollars ($5,000) in full and

3 complete satisfaction of Plaintiff’s claims for attorneys’ fees, costs, and litigation expenses under FOIA

4 in the above-captioned matter. This payment shall constitute full and final satisfaction of any and all of

5 Plaintiff’s claims for attorneys’ fees, costs, and litigation expenses in the above-captioned matter, and is

6 inclusive of any interest. Payment will be made by electronic funds transfer, and Plaintiff’s counsel will

7 provide the necessary information to Defendant’s counsel to effectuate the transfer. Defendant will

8 make all reasonable efforts to make payment within sixty (60) days of the date that Plaintiff’s counsel

9 provides the necessary information for the electronic funds transfer and this Stipulation is approved by

10 the Court, whichever is later, but cannot guarantee payment within that timeframe.

11

2. Upon the execution of this Stipulation, Plaintiff hereby releases and forever discharges

12 Defendant, its successors, the United States of America, any department, agency, or establishment of the

13 United States, including CBP, and any officers, employees, agents, successors, or assigns of such

14 department, agency, or establishment, from any and all claims and causes of action that Plaintiff asserts

15 or could have asserted in this litigation concerning the FOIA request on which this action is based or any

16 other operative facts alleged in this action, or which hereafter could be asserted by reason of, or with

17 respect to, or in connection with, or which arise out of the FOIA request on which this action is based or

18 any other operative facts alleged in this action, including but not limited to all past, present, or future

19 claims for attorneys’ fees, costs, or litigation expenses in connection with the above-captioned litigation.

20

3. The provisions of California Civil Code Section 1542 are set forth below:

21

“A general release does not extend to claims which the creditor does not know or suspect

to exist in his favor at the time of executing the release, which if known by him must have

22

materially affected his settlement with the debtor.”

23 Plaintiff, having been apprised of the statutory language of Civil Code Section 1542 by its attorneys, and

24 fully understanding the same, nevertheless elects to waive the benefits of any and all rights it may have

25 pursuant to the provision of that statute and any similar provision of federal law. Plaintiff understands

26 that if the facts concerning any liability under FOIA or liability for attorneys’ fees, costs, or litigation

27 expenses are found hereafter to be other than or different than the facts now believed by it to be true, the

28 Stipulation shall be and remain effective notwithstanding such material difference.

STIPULATION OF SETTLEMENT AND DISMISSAL

4:18-CV-00044 KAW

2

Case 4:18-cv-00044-KAW Document 32 Filed 03/29/19 Page 3 of 4

1

4. Execution of this Stipulation and its approval by the Court shall constitute dismissal with

2 prejudice of all claims in this action pursuant to Federal Rule of Civil Procedure 41(a).

3

5. The parties acknowledge that this Stipulation is entered into solely for the purpose of

4 settling and compromising any and all remaining claims in this action without further litigation, and it

5 shall not be construed as evidence or as an admission on the part of Defendant, CBP, the United States,

6 its agents, servants, or employees regarding any issue of law or fact, or regarding the truth or validity of

7 any allegation or claim raised in this action, or as evidence or as an admission by the Defendant

8 regarding Plaintiff’s eligibility for or entitlement to attorneys’ fees, costs, or litigation expenses under

9 FOIA. This Stipulation shall not be used in any manner to establish liability for fees, amounts, or hourly

10 rates in any other case or proceeding involving Defendant.

11

6. This Stipulation is binding upon and inures to the benefit of the parties hereto and their

12 respective successors and assigns.

13

7. If any provision of this Stipulation shall be held invalid, illegal, or unenforceable, the

14 validity, legality, and enforceability of the remaining provisions shall not in any way be affected or

15 impaired thereby.

16

8. This Stipulation shall constitute the entire agreement between the parties, and it is

17 expressly understood and agreed that this Stipulation has been freely and voluntarily entered into by the

18 parties hereto. The parties further acknowledge that no warranties or representations have been made on

19 any subject other than as set forth in this Stipulation.

20

9. The persons signing this Stipulation warrant and represent that they possess full authority

21 to bind the persons on whose behalf they are signing to the terms of the Stipulation.

22

10. This Stipulation may not be altered, modified or otherwise changed in any respect except

23 in writing, duly executed by all of the parties or their authorized representatives.

24

25

26

27 ///

28 ///

STIPULATION OF SETTLEMENT AND DISMISSAL

4:18-CV-00044 KAW

3

Case 4:18-cv-00044-KAW Document 32 Filed 03/29/19 Page 4 of 4

1

SO STIPULATED AND AGREED.

2

3

Respectfully submitted,

4 5 6 Dated: March 29, 2019 7 8

DAVID L. ANDERSON United States Attorney
By: /s/ Savith Iyengar SAVITH IYENGAR Assistant United States Attorney Attorney for Defendant

9 10 Dated: March 29, 2019 11 12 13

By: **/s/ Victoria Baranetsky VICTORIA BARANETSKY Attorney for Plaintiff
** Pursuant to Civ. L.R. 5-1(i)(3), the filer of the document has obtained approval from this signatory.

14 15 PURSUANT TO STIPULATION, IT IS SO ORDERED.

16

17 18 Dated: _____________________, 2019 19

KANDIS A. WESTMORE United States Magistrate Judge

20

21

22

23

24

25

26

27

28

STIPULATION OF SETTLEMENT AND DISMISSAL

4:18-CV-00044 KAW

4