Nio v. United States Department of Homeland Security ( 2018 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    )
    KUSUMA NIO, et al.,                              )
    )
    Plaintiffs,                                      )
    )
    v.                                               ) Civil Action No. 17-00998 (ESH/RMM)
    )
    UNITED STATES DEPARTMENT                         )
    OF HOMELAND SECURITY, et al.,                    )
    )
    Defendants.                                      )
    )
    MEMORANDUM OPINION
    Pending before the Court is Plaintiffs’ request that the Court order Defendant United
    States Citizenship and Immigration Service (“USCIS”) to produce a May 17, 2018 USCIS
    internal guidance (“May 2018 Guidance”)1 regarding military naturalization adjudication
    procedures, and that the Court permit Plaintiffs to use the May 2018 Guidance as an exhibit to
    their motion for summary judgment. USCIS objects to that request, arguing that the May 2018
    Guidance is not admissible because it is outside the scope of the administrative record, and that
    the May 2018 Guidance contains sensitive and privileged information that should not be
    disclosed to Plaintiffs or their counsel. Judge Ellen S. Huvelle referred the parties’ dispute
    regarding the admissibility of the Guidance to the undersigned magistrate judge. See 6/20/2018
    Order, ECF No. 159. Having reviewed the May 2018 Guidance in camera and after considering
    the parties’ submissions and applicable law, the undersigned concludes, for the reasons set forth
    1
    USCIS has advised the Court that the May 2018 Guidance has been updated; the Court’s
    references to the May 2018 Guidance in this opinion pertain to the most recent version of that
    guidance.
    below, that Plaintiffs are entitled to receive a redacted copy of the May 2018 Guidance for use in
    connection with summary judgment briefing.
    BACKGROUND
    The complex factual background of the underlying action is set forth in detail in the
    Court’s September 6, 2017 Memorandum Opinion denying Plaintiffs’ request for a preliminary
    injunction. See Nio v. U.S. Dep’t of Homeland Sec., 
    270 F. Supp. 3d 49
    (D.D.C. 2017). The
    undersigned will, however, briefly summarize the portions of the background and procedural
    history that are relevant to the pending dispute regarding the admissibility of the Guidance.
    Plaintiffs are non-citizens who enlisted in the United States Army’s Selected Reserve of
    the Ready Reserve through the United States Department of Defense’s Military Accessions Vital
    to the National Interest (“MAVNI”) program and have pending applications for naturalization.
    See 
    id. at 49.
    They have sued USCIS and its Director, the Department of Homeland Security and
    its Acting Secretary, and the United States Department of Defense (“DOD”) and its Secretary,
    raising a variety of claims under the Administrative Procedure Act (“APA”). See 2d Am.
    Compl., ECF No. 61. Plaintiffs allege, inter alia, that: (1) USCIS has acted arbitrarily and
    capriciously by requiring MAVNI applicants to undergo enhanced security screening prior to the
    adjudication of their naturalization applications; and (2) USCIS has unreasonably delayed its
    investigation, examination, and adjudication of MAVNI naturalization applications, in violation
    of Section 706(1) of the APA. See 
    Nio, 270 F. Supp. 3d at 66
    ; 2d Am. Compl. ¶¶ 152-73.
    In response to a Court Order, USCIS filed a copy of a July 7, 2017 internal USCIS email,
    titled “Updated MAVNI N-400 Guidance,” (“July 2017 Guidance”), that advised USCIS Field
    Offices that “pending and future MAVNI cases may not proceed to interview, approval, or oath
    until confirmation that all enhanced DoD security checks are completed.” Decl. and Doc.
    2
    Produc. of Daniel Renaud (“July 2017 Renaud Decl.”) at 25, ECF No. 23-1 ; see also 7/14/2017
    Order, ECF No. 22 (ordering production of documents referenced in prior declaration). USCIS
    submitted the July 2017 Guidance as part of “a compilation of all final agency guidance provided
    to the USCIS Field Offices and/or to the National Benefits Center by [Field Operations
    Directorate] headquarters from February 28, 2017, through the present, setting national policies
    regarding the processing of N-400 applications filed by MAVNI recruits.” July 2017 Renaud
    Decl. at 3-4. The July 2017 Guidance was filed on the public docket, and the body of that
    Guidance contains no redactions.2
    The Court has referred several issues to the undersigned for resolution, including a
    referral to “work with the parties to minimize the delay between when DOD completes an MSSD
    [military security suitability determination] and uploads it to the portal to share with USCIS, and
    when USCIS begins to undertake the remaining steps of the naturalization process.” 4/12/2018
    Order, ECF No. 135. As part of that referral, the undersigned ordered Defendants and their
    counsel to “confer with USCIS about drafting an email or other communication from the field
    directorate to the field offices that reinforces the July 7th Policy and reiterates that the processing
    of naturalization applications, including scheduling naturalization interview for MAVNIs, should
    not be delayed.” 5/22/2018 Minute Order. At a subsequent hearing on May 31, 2018,
    Defendants asserted that such an email communication would be redundant and unnecessary,
    because USCIS had recently circulated further guidance (the May 2018 Guidance) to USCIS
    Field Offices. See 7/13/2018 Resp. to Order of the Ct., ECF No. 166-1. Defendants described
    the May 2018 Guidance as a document that “addresses the processing of naturalization
    2
    Portions of the “to” and “from” lines of the emails forwarding and distributing the guidance
    were redacted.
    3
    applications,” and explained that “[f]or all military naturalization cases, the guidance states that
    the offices will schedule naturalization interviews to occur within thirty days of the date on
    which all USCIS background checks are complete.” 
    Id. At that
    hearing, Plaintiffs sought the
    production of the May 2018 Guidance, and USCIS indicated that it would not provide the
    document to Plaintiffs absent a Court Order.
    As a result of the issues raised at the May 31, 2018 hearing before the undersigned, by
    Order dated June 20, 2018, Judge Huvelle referred to the undersigned the parties’ dispute
    regarding “the May 17, 2018 USCIS Guidance’s admissibility as an appendix to plaintiffs’
    motion for summary judgment.” 6/20/2018 Order, ECF No. 159. The undersigned requested
    briefing on the issue. See 6/21/2018 Minute Order. Defendants contend that: (1) Plaintiffs are
    not entitled to receive the May 2018 Guidance because it postdates and was not part of the
    decision-making process regarding the formulation of the July 2017 Guidance; (2) there is no
    basis to allow discovery or otherwise require USCIS to disclose non-record materials; and (3) the
    May 2018 Guidance contains privileged material that should not be disclosed to Plaintiffs. See
    Defs.’ Mem. Regarding the Admissibility of the May 17, 2018 Internal Guidance Doc., ECF No.
    162; Decl. of Daniel M. Renaud in Support of USCIS’s Privilege Assertions Re Internal May 17,
    2018 USCIS Guidance (“July 2018 Renaud Decl.”), ECF No. 166-2. Plaintiffs assert that the
    May 2018 Guidance is relevant to several of their claims, including Plaintiffs’ assertion that
    USCIS took arbitrary and capricious agency action, Plaintiffs’ APA unreasonable delay claims,
    and Plaintiffs’ constitutional claims. See Pls.’ Resp. Regarding the Admissibility of the USCIS
    May 17, 2018 Internal Guidance Doc. (“Pls.’ Resp.”) at 6-10, ECF No. 165. Plaintiffs also
    challenge the adequacy of Defendants’ privilege assertions and contend that any applicable
    privilege was likely waived. See 
    id. at 10-12.
    4
    ANALYSIS
    Plaintiffs’ challenge to USCIS’s failure to complete the adjudication of their
    naturalization applications pursuant to APA Section 706(1), on the grounds that it constitutes
    unreasonably delayed agency action, entitles Plaintiffs to rely upon material that is outside the
    scope of the administrative record. Determining whether USCIS has unreasonably delayed the
    investigation, examination, and adjudication of Plaintiffs’ naturalization applications will require
    the Court to conduct “a fact intensive inquiry,” applying the factors set forth in
    Telecommunications Research & Action Center v. FCC, 
    750 F.2d 70
    , 79-80 (D.C. Cir. 1984).
    See 
    Nio, 270 F. Supp. 3d at 66
    ; see also Mashpee Wampanoag Tribal Council, Inc. v. Norton,
    
    336 F.3d 1094
    , 1100 (D.C. Cir. 2003) (“Resolution of a claim of unreasonable delay is ordinarily
    a complicated and nuanced task requiring consideration of the particular facts and circumstances
    before the court.”); Hamandi v. Chertoff, 
    550 F. Supp. 2d 46
    , 54 (D.D.C. 2008) (noting that “the
    determination of whether an agency’s delay is unreasonable is a fact specific inquiry”).
    Judicial review of such claims “is not limited to the record as it existed at any single point in
    time, because there is no final agency action to demarcate the limits of the record.” Nat’l Law
    Ctr. on Homelessness and Poverty v. U.S. Dep’t of Veterans Affairs, 
    842 F. Supp. 2d 127
    , 130
    (D.D.C. 2012). Accordingly, the fact that the May 2018 Guidance will not be included in the
    administrative record does not render it inadmissible as an exhibit to Plaintiffs’ motion for
    summary judgment.
    The May 2018 Guidance contains information that may be germane to the Court’s
    analysis of Plaintiffs’ unreasonable delay claim. Evaluating the reasonableness of any delay in
    agency action “will depend in large part . . . upon the complexity of the task at hand, the
    significance (and permanence) of the outcome, and the resources available to the agency.”
    5
    Mashpee Wampanoag Tribal Council, 
    Inc., 336 F.3d at 1102
    . Defendants acknowledge that the
    May 2018 Guidance articulates policies and procedures governing the processing of MAVNI
    naturalization applications. Therefore, the May 2018 Guidance should shed light upon “the
    complexity of the task at hand,” 
    id., and provide
    context for the parties’ arguments regarding the
    reasonableness of USCIS processing times. Further, given that the July 2017 Guidance already
    is part of the record, reviewing the May 2018 Guidance will allow Plaintiffs and the Court to
    ascertain whether the more recent Guidance modifies or provides further details regarding the
    processing and adjudication requirements applicable to MAVNI naturalization applications or
    supersedes the July 2017 Guidance in any respect. Consequently, the May 2018 Guidance is
    precisely the type of document that Plaintiffs should be permitted to rely upon as support for
    their motion for summary judgment.
    Notwithstanding its clear relevance to the APA unreasonable delay claim, the May 2018
    Guidance could be withheld from Plaintiffs, and provided only to the Court for in camera
    review, if a privilege precludes its disclosure. USCIS asserts that the law enforcement privilege
    shields portions of the May 2018 Guidance from disclosure to Plaintiffs or the public. See July
    2018 Renaud Decl. ¶¶ 6-12. In connection with that assertion of privilege, USCIS has submitted
    for in camera review a privilege log and annotated copy of the May 2018 Guidance reflecting the
    specific text over which it asserts the law enforcement privilege.3 See 
    id. ¶ 8;
    6/28/2018 Minute
    Order (directing Defendants to submit additional documents asserting the privilege).
    3
    Plaintiffs requested permission to file a response to the July 2018 Renaud Declaration, given
    that Defendants’ initial filing did not indicate with specificity to what extent, and on what basis,
    USCIS asserted the law enforcement privilege. However, the undersigned declined to permit
    Plaintiffs to file an additional brief because the Court’s in camera review of the relevant
    documents provided adequate information to evaluate USCIS’s assertion of the law enforcement
    privilege.
    6
    The law enforcement privilege is a qualified privilege that allows the federal government
    to withhold “information that would be contrary to the public interest in the effective functioning
    of law enforcement.” A.N.S.W.E.R. Coal. v. Jewell, 
    292 F.R.D. 44
    , 50 (D.D.C. 2013) (quoting
    Tuite v. Henry, 
    181 F.R.D. 175
    , 176 (D.D.C. 1998)). The privilege “serves to protect ‘the
    integrity of law enforcement techniques and confidential sources, protects witnesses and law
    enforcement personnel, safeguards the privacy of individuals under investigation, and prevents
    interference with investigations.’” Id.; see also In re Anthem, Inc. Data Breach Litig., 236 F.
    Supp. 3d 150, 159 (D.D.C. 2017). To successfully invoke that privilege: (1) “the head of the
    department having control over the requested information” must formally assert the privilege; (2)
    the assertion of privilege must be based upon the official’s “actual personal consideration” of the
    relevant documents; and (3) the official must specify in detail “the information for which the
    privilege is claimed, with an explanation why it properly falls within the scope of the privilege.”
    Landry v. F.D.I.C., 
    204 F.3d 1125
    , 1135 (D.C. Cir. 2000) (internal quotes omitted).
    USCIS has formally asserted the law enforcement privilege by submitting the declaration
    of Daniel M. Renaud, Associate Director of the Field Operations Directorate at USCIS.
    Although Mr. Renaud is not the head of USCIS, he reports directly to the Director and has been
    delegated the authority to assert the law enforcement privilege on his behalf. See July 2018
    Renaud Decl. ¶¶ 1-2. Mr. Renaud also is personally familiar with the May 2018 Guidance and
    the policies and procedures discussed therein. See 
    id. ¶¶ 3-5.
    Accordingly, USCIS has
    established that Mr. Renaud is an official with sufficient responsibility to assert the privilege, and
    that he has based that assertion of privilege upon his personal consideration of the May 2018
    Guidance. See 
    Landry, 204 F.3d at 1135-36
    (concluding head of regional division had
    “sufficient rank” to assert law enforcement privilege and declining to require that agency head
    7
    directly assert the privilege). The declaration, privilege log, and proposed redactions provide
    sufficient detail for the Court to evaluate USCIS’s assertion of the law enforcement privilege.
    Determining whether the law enforcement privilege protects the information the
    government seeks to withhold requires courts to “weigh the public interest in nondisclosure
    against the [requesting party’s] need for access to the privileged information.’” Tuite v. Henry,
    
    98 F.3d 1411
    , 1418 (D.C. Cir. 1996) (quoting In re Sealed Case, 
    856 F.2d 268
    , 272 (D.C. Cir.
    1988)) (internal quotation marks and modifications omitted). That analysis involves
    consideration of factors such as:
    (1) the extent to which disclosure will thwart governmental processes by
    discouraging citizens from giving the government information; (2) the impact
    upon persons who have given information of having their identities disclosed; (3)
    the degree to which governmental self-evaluation and consequent program
    improvement will be chilled by disclosure; (4) whether the information sought is
    factual data or evaluative summary; (5) whether the party seeking discovery is an
    actual or potential defendant in any criminal proceeding either pending or
    reasonably likely to follow from the incident in question; (6) whether the police
    investigation has been completed; (7) whether any interdepartmental disciplinary
    proceedings have arisen or may arise from the investigation; (8) whether the
    plaintiff's suit is non-frivolous and brought in good faith; (9) whether the
    information sought is available through other discovery or from other sources;
    (10) the importance of the information sought to the plaintiff's case.
    In re Sealed 
    Case, 856 F.2d at 272
    . The government bears the burden of proving that the
    balance favors nondisclosure. See In re 
    Anthem, 236 F. Supp. 3d at 166
    .
    Turning to the balancing test, USCIS has demonstrated that the public interest in
    nondisclosure outweighs Plaintiffs’ need for access to some, but not all, of the information that
    USCIS proposes to redact. The disputed text describes aspects of the naturalization adjudication
    process including law enforcement techniques and processes such as: the types of information
    revealed through certain security checks; the external databases that are searched as part of the
    background screening process; questions USCIS employees may ask applicants in order to detect
    fraud and evaluate applicants’ eligibility for immigration benefits; and information about the
    8
    techniques and procedures USCIS uses to perform security checks while processing
    naturalization applications. See July 2018 Renaud Decl. ¶¶ 7-11. As USCIS notes, disclosing
    such information “will risk circumvention or evasion of the law,” 
    id. ¶ 7,
    and could “provide an
    applicant for an immigration benefit a roadmap to evade such processes and procedures and
    conceal information that would otherwise make the applicant ineligible for the immigration
    benefit sought.” 
    Id. Given that
    Plaintiffs have pending naturalization applications, disclosing
    that information to them carries some of the same risks as disclosing information about pending
    investigations to the defendant in a criminal case, which would implicate concerns like those at
    issue in the fifth and sixth Sealed Case factors. See generally Sealed 
    Case, 856 F.2d at 273
    . On
    the other hand, Plaintiffs have brought a “non-frivolous action” in good faith, the case is likely to
    be resolved on dispositive motions without discovery, and, to advance their APA unreasonable
    delay claim, Plaintiffs need to know information about the USCIS process for investigating,
    evaluating, and adjudicating MAVNI naturalization applications. See 
    id. (recommending that
    courts consider such issues under factors eight through ten).
    Having weighed the relevant factors, the Court concludes that the law enforcement
    privilege protects all information that would identify the document path or link to the internal
    USCIS network location at which the May 2018 Guidance resides. USCIS has asserted that
    privilege to justify withholding the single line of text that appears at the bottom of each page of
    the May 2018 Guidance. See Privilege Log (submitted in camera). Disclosing these internal
    network links risks compromising USCIS’s systems, and Plaintiffs have no cognizable interest in
    receiving that information. Therefore, the balance clearly favors nondisclosure.
    Evaluating the privilege claim for the remaining proposed redactions of information that
    is relevant to Plaintiffs’ claims requires a page-by-page assessment of the respective interests of
    9
    Plaintiffs and Defendants. The chart below reflects the conclusions the Court has drawn after
    conducting that analysis. Each finding that the law enforcement privilege applies is based on a
    determination that disclosing the relevant text would risk harm to USCIS and its law
    enforcement partners that outweighs Plaintiffs’ need to receive the withheld information. Given
    that the May 2018 Guidance is a non-public document that describes internal agency procedures
    for evaluating and adjudicating naturalization applications, the Court will designate the entire
    document as “Protected Material” and subject to the limitations on the use and distribution of
    “Protected Material” that are set forth in the Protective Order governing this case. See Order
    Granting Mot. for Protective Order, ECF No. 123. Where Plaintiffs’ needs outweigh the public
    interest in protecting sensitive law enforcement information contained within the May 2018
    Guidance, the “Protected Material” designation will mitigate the risks of disclosure.
    Law-
    Page         Description        Enforcement                    Rationale
    Privileged?
    3          Discussion of                YES      Disclosure would risk circumvention of
    techniques for                        the law and undermine USCIS’s efforts
    screening applicants for              to prevent and detect fraud. Possessing
    fraud.                                this information would not advance
    Plaintiffs’ claims.
    4          Discussion of                YES      Disclosure would risk circumvention of
    techniques for finding                the law and undermine USCIS’s efforts
    derogatory information                to identify derogatory information.
    including external                    Possessing this information would not
    databases searched.                   advance Plaintiffs’ claims.
    8          Description of security      YES      Although disclosure carries only minimal
    checks and additional                 risks, Plaintiffs have no need to receive
    steps applicable to                   this information, because the information
    erroneous filings.                    would neither advance nor provide
    relevant background information for
    Plaintiffs’ claims.
    10
    Law-
    Page        Description           Enforcement                    Rationale
    Privileged?
    10-11   Description of steps,           NO      Detailed information regarding NBC
    including security                      processing of applications is essential to
    screenings, that the                    Plaintiffs’ unreasonable delay claim.
    National Benefits                       Plaintiffs’ need outweighs the interest in
    Center (“NBC”) takes                    withholding details regarding the types
    to process applications.                of security screenings performed in this
    process. The designation as “Protected
    Material” reduces the risks of disclosure.
    12      Bulleted list of steps          NO      Detailed information regarding Field
    involved in Field                       Office processing of applications is
    Office Processing of                    essential to Plaintiffs’ unreasonable
    applications, including                 delay claim. Plaintiffs’ need outweighs
    security screenings.                    the interest in withholding details
    regarding the types of security screenings
    performed in this process. The
    designation as “Protected Material”
    reduces the risks of disclosure.
    12      Description of review          YES      Disclosure would undermine USCIS’s
    undertaken when                         efforts to develop appropriate response to
    applicants have                         removals. Plaintiffs have no need to
    pending removal                         receive this information, because the
    proceedings.                            information would neither advance nor
    provide relevant background information
    for Plaintiffs’ claims.
    19      Description of review          YES      Disclosure would risk circumvention of
    and further                             law by revealing how USCIS responds to
    investigatory steps                     derogatory information and security
    undertaken in response                  screening checks. Plaintiffs have no
    to security check                       need to receive this information, because
    results                                 the information would neither advance
    nor provide relevant background
    information for Plaintiffs’ claims.
    19      Routing and                    YES      Although disclosure carries only minimal
    transmission contact                    risks, Plaintiffs have no need to receive
    information for                         this information, because the information
    requesting external                     would neither advance nor provide
    security check                          relevant background information for
    Plaintiffs’ claims.
    11
    Law-
    Page            Description        Enforcement                    Rationale
    Privileged?
    20-21       Description of                NO      Detailed information regarding NBC
    fingerprint check                     processing of applications is essential to
    procedures                            Plaintiffs’ unreasonable delay claim.
    (Section C-2)                         Plaintiffs’ need outweighs the interest in
    withholding details regarding the
    fingerprinting process. The designation
    as “Protected Material” reduces the risks
    of disclosure.
    21-22       Description of process       YES      Although disclosure carries only minimal
    used when applicants                  risks, Plaintiffs have no need to receive
    fail to appear for                    this information. As there is no
    fingerprinting                        indication that failure to appear for
    (Section C-3)                         fingerprinting has affected timing of
    adjudication of Plaintiffs’ applications,
    this information would neither advance
    nor provide relevant background
    information for Plaintiffs’ claims.
    22          Description of process        NO      Plaintiffs need to know information
    used when applicants’                 regarding issues that could delay
    fingerprints expire                   adjudication of their applications to fully
    (Section C-4)                         litigate their unreasonable delay claim.
    That need outweighs the interest in
    withholding details regarding
    fingerprinting process. The designation
    as “Protected Material” reduces the risks
    of disclosure.
    Plaintiffs contend that USCIS may have waived the law enforcement privilege by
    voluntarily disclosing the existence of the May 2018 Guidance and describing its contents in
    detail. Pls.’ Resp. at 11. The law enforcement privilege can be waived through “voluntary
    disclosure of a significant portion of the information claimed to be privileged.” 26A CHARLES
    ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 5692 (1st ed.); Dellwood Farms,
    Inc. v. Cargill, Inc., 
    128 F.3d 1122
    , 1126 (7th Cir. 1997) (“We may assume that like other
    privileges the [law enforcement] privilege can be ‘waived’” through “a voluntary surrender.”);
    cf. Peck v. United States, 
    514 F. Supp. 210
    , 212 (S.D.N.Y.), on reargument, 
    522 F. Supp. 245
    12
    (S.D.N.Y. 1981) (finding the government waived the official information privilege after it
    released a summary of an investigation that revealed a significant portion of a secret report).
    However, Defendants’ prior descriptions of the May 2018 Guidance do not disclose the contents
    of the text that fall within the scope of the law enforcement privilege. Nor did USCIS’s
    submission of the July 2017 Guidance disclose the substance of the privileged material in the
    May 2018 Guidance. Finally, the May 2018 Guidance is an internal agency document, and
    nothing in the record suggests that USCIS has disclosed the otherwise privileged information on
    its website or through other public means. Therefore, USCIS has not waived the law
    enforcement privilege.
    Finally, USCIS proposes to redact portions of the May 2018 Guidance that are not
    relevant to Plaintiffs’ claims. This information includes text on pages 2, 5, 9, 10, 17-19, and 22-
    25 of the May 2018 Guidance. The text USCIS seeks to redact addresses topics wholly unrelated
    to the processing and adjudication of MAVNI naturalization applications. Those redactions are
    proper because Plaintiffs have no right to review internal USCIS documents that have no bearing
    on their APA and constitutional claims.4
    CONCLUSION
    For the foregoing reasons, and as set forth in the Order accompanying this Memorandum
    Opinion, the Court concludes that the May 2018 Guidance is admissible and shall be designated
    as “Protected Material” and subject to the limitations on the use and distribution of “Protected
    Material” that are set forth in the Protective Order governing this case, and that USCIS therefore
    4
    USCIS also asserts that the law enforcement privilege provides an alternative basis for
    redacting portions of this text. The Court need not evaluate that claim of privilege, because the
    text is properly redacted in its entirety due to its lack of relevance to Plaintiffs’ claims.
    13
    must produce to Plaintiffs a copy of the May 2018 Guidance that has been redacted in a manner
    consistent with the foregoing analysis.
    Digitally signed by Robin M.
    Meriweather
    Date: 2018.07.16 15:49:44 -04'00'
    Date: July 16, 2018
    ROBIN M. MERIWEATHER
    UNITED STATES MAGISTRATE JUDGE
    14