Jacqueline Stevens v. United States Immigration and Customs Enforcement

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 25-1126 & 26-1017
JACQUELINE S TEVENS ,
Plaintiff-Appellee,
v.
U NITED S TATES I MMIGRATION AND C USTOMS ENFORCEMENT,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 22 C 5072 — Matthew F. Kennelly, Judge.
____________________
A RGUED DECEMBER 12, 2025 — DECIDED J UNE 22, 2026
____________________
Before EASTERBROOK, J ACKSON -A KIWUMI , and LEE, Circuit
Judges.
EASTERBROOK, Circuit Judge. Jacqueline Stevens, a profes-
sor at Northwestern University, asked for the files of three
named immigration detainees under the Freedom of Infor-
mation Act (FOIA), 5 U.S.C. §552. An agency has 20 days to
respond, §552(a)(6). In 2022, after a year had passed without
much progress, Stevens filed this suit seeking release of the
documents. (Technically she made three requests, one per

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2 Nos. 25-1126 & 26-1017
alien, and a different amount of time passed after each; to sim-
plify exposition we treat all requests as one.)
The district judge eventually directed the agency to review
every month at least 1,500 documents of the more than 13,500
that it estimated were within the scope of her request. 666 F.
Supp. 3d 734, 749 (N.D. Ill. 2023). That did not go smoothly.
By 2024 some documents had been released, and the judge
demanded details about why the search for and release of oth-
ers had fallen behind. The agency explained which file sys-
tems it had searched, using what search terms, and the judge
found both the search and the explanation wanting with re-
spect to the aliens’ grievances while in custody, their commis-
sary accounts, and their participation in work programs. He
ordered the agency to conduct further searches and provide
an improved explanation for its choices. 2025 U.S. Dist. LEXIS
8613 (N.D. Ill. Jan. 16, 2025) at *12–28.
By the time the judge entered this order, the agency had
asserted that some or all pages of many documents are
shielded from disclosure by one of the exemptions in §552(b).
It produced a Vaughn index (named after Vaughn v. Rosen, 484
F.2d 820 (D.C. Cir. 1973)) detailing the redactions in more than
2,000 pages and the reasons for each. It soon admitted that the
index was flawed and submitted another. The district judge
was unimpressed.
Many entries in the index are effectively unreasoned. One
example, which the judge gives at *29–30, explains that a par-
ticular document has been withheld under a named exemp-
tion for a stated reason, then disclaims reliance on that exemp-
tion and invokes a different exemption “without saying any-
thing further” (id. at *30)—in other words, without providing
any support for the asserted exemption.

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Nos. 25-1126 & 26-1017 3
One entry that did give a reason sent the judge up the wall.
The agency had redacted some information on the authority
of §552(b)(6), which speaks of “personnel and medical files
and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy”. The three
aliens have waived any confidentiality in information about
themselves. The redacted information is (evidently) an attor-
ney’s name and address in the final page of a brief filed on
one alien’s behalf. As the judge observed, the brief is a public
record; more, the names and addresses of attorneys involved
in litigation appear not only in briefs but also in the court’s
docket, which likewise is public. The judge marveled at the
assertion that information already available to the public, and
designed from the start to be available, can come within
§552(b)(6). He called this assertion of exemption “egregious”
and “ludicrous” (id. at *30) and inferred that the agency and
its lawyers were acting in bad faith.
The judge also concluded that Fernando Pineiro Jr., the
Freedom of Information Act Director at the agency, who
signed the Vaughn index and several affidavits, must not have
given these documents the attention they require. The judge
observed that the Vaughn index has four columns, while
Pineiro asserted that it has five (and purported to describe
which information is in which of the five columns). Pineiro
attested that he had performed a line-by-line review of the in-
dex, to which the judge replied: “given the inaccuracy of
Pineiro’s statement describing the organization of the Vaughn
index itself, why should this Court believe that actually was
done?” (id. at *32–33).
Having denigrated the agency’s asserted exemptions, the
judge then ordered all of the more than 2,000 pages produced
without redactions. Id. at 34. The judge stated that he did not
have the time or the patience to review the documents himself

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4 Nos. 25-1126 & 26-1017
and decide which information is exempt under the statute. He
directed the agency to release the lot in full, while it got back
to work searching for other documents and providing expla-
nations for what it had elected (or omitted) to search.
The agency immediately appealed, though the district
court had not entered a final decision under Fed. R. Civ. P. 58.
The case is ongoing, so the decision is not “final” for the pur-
pose of 28 U.S.C. §1291. The jurisdictional statement in the
agency’s brief tells us that release orders under §552 are in-
junctive in nature, so that 28 U.S.C. §1292(a) supplies appel-
late jurisdiction. At oral argument we asked the parties where
we could find the injunction—for Fed. R. Civ. P. 65(d)(1)(C)
requires injunctions to “describe in reasonable detail … the
act or acts restrained or required.” Those commands belong
in a separate document; narration in an opinion does not suf-
fice. See, e.g., MillerCoors LLC v. Anheuser-Busch Cos., 940 F.3d
922, 923 (7th Cir. 2019). The parties told us, however, that the
district court had neglected to enter an injunction.
We suggested that the parties return to the district court
and urge the judge to enter an injunction complying with Rule
65. The judge then entered an injunction, and the agency filed
a second appeal, which we have consolidated with the first.
Unfortunately, the injunction does not comply with Rule
65(d)(1)(C), because instead of specifying what must be re-
leased it refers to “all records identified as responsive to Plain-
tiff’s FOIA requests in full without redactions.” Identified as
responsive? Meaning? Identified by whom, and when? The
agency has furnished multiple lists, which have changed over
time; counsel for Stevens has provided other lists of docu-
ments that she deems responsive.
If the court is to hold anyone in contempt for noncompli-
ance, it must do better than this. Naming a particular list, of a

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Nos. 25-1126 & 26-1017 5
given date, might suffice; maybe “every document on the sec-
ond Vaughn index” would have worked; but the actual lan-
guage is too vague to be enforceable.
Still, although vague language in an injunction is a reason
to vacate an order, see Schmidt v. Lessard, 414 U.S. 473 (1974),
it does not deprive the appellate court of jurisdiction. Auto
Driveaway Franchise Systems, LLC v. Auto Driveaway Richmond,
LLC, 928 F.3d 670, 677 (7th Cir. 2019). Contrast Gunn v. Uni-
versity Committee to End the War in Viet Nam, 399 U.S. 383 (1970)
(complete lack of an injunction is a jurisdictional problem).
The agency does not now take issue with the district
judge’s findings about the agency’s mismanagement of both
Stevens’s requests and the litigation itself. Instead the agency
contends that it did not act in bad faith and that a judge can’t
simply refuse to implement statutory exemptions. Appellate
counsel for the agency understands the district judge’s frus-
tration—the members of this panel do too—but the agency in-
sists that a statute remains binding and must be enforced.
Based on this record, it is not clear to us that the agency
has acted in bad faith. It has certainly fouled up, but it is an
old maxim that one should never attribute to malice some-
thing that can be explained by incompetence. Take the pro-
posal to redact the attorney’s name and address. Once you see
that the document in question is already in the public domain,
this looks mischievous (particularly given the numerous
other irregularities the district court identified). But it is quite
possible that the vetting of this and other documents was
done by clerical staff under orders to delete personally iden-
tifying information, such as Social Security numbers and
home addresses. Clerical staff may miss the significance of the
underlying document (a legal brief), and given the thousands
of documents that the agency located it is unclear whether top

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6 Nos. 25-1126 & 26-1017
managers were able to provide the supervision the work re-
quired. The district judge declared that he is too busy for that
kind of work; it’s an understandable reaction, but Pineiro, the
head of all FOIA work at a large agency, is busy too. Given
the thousands of documents involved here, errors—even
howlers—are inevitable and without more may not be indic-
ative of bad faith.
What can be said for the district judge’s approach is that,
at some point, the cavalcade of errors becomes so long that it
is necessary to question whether the agency has taken its job
seriously. We shall assume from here on that the district judge
did not abuse his discretion in holding that the agency’s per-
formance had hit nadir. That justifies sanctions. But which
sanctions? The district judge assumed that “release every-
thing” is an appropriate sanction, but he did not explain why.
The problem is not simply that the sanction appears to dis-
honor exemptions in the Freedom of Information Act. All liti-
gation sanctions can be described as dishonoring rules of law.
If the plaintiff accuses the defendant of a tort, and the defend-
ant fails to meet discovery deadlines, an order requiring the
defendant to pay up could be described as a violation of the
law of torts—for the judge’s order does not rest on a finding
that the defendant was negligent. Yet such an order is author-
ized by Fed. R. Civ. P. 37(b)(2)(A)(v), (vi). Imputing the mis-
feasance (or nonfeasance) of an attorney or other agent to the
client, and resolving a suit while bypassing the merits, is com-
mon in litigation.
Although sanctions, including default judgments, can be
appropriate responses to misfeasance, a judge should take
care that any injury ultimately falls on the party responsible.
So, for example, if the error of a lawyer or accountant leads to
the late filing of a tax return, the taxpayer is responsible for

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Nos. 25-1126 & 26-1017 7
both interest and penalties, but the agents who caused the de-
lay may be liable in turn to the taxpayer. United States v. Boyle,
469 U.S. 241 (1985). Even if it turns out that a malpractice ac-
tion against the responsible agent fails (on the merits or be-
cause the agent is judgment-proof), at least only the person
who chose the agent will suffer.
That is not, however, the way the sanction works in this
case. The miscreants are employees of the agency, and per-
haps some of the agency’s lawyers who did not make sure
that the client agency handled the situation well. But the pen-
alty may be felt more widely. The agency’s appellate brief as-
serts, without contradiction by Stevens, that the documents in
question contain not only Social Security numbers (and other
identifying information) but also codes that would enable
readers to obtain access to law enforcement databases that
hold a trove of confidential information (potentially the iden-
tities of informants, details of charges never made public be-
cause prosecutors deemed them unsubstantiated, and so on).
Some of the information in these records is covered by
privileges (such as the deliberative-process privilege) that the
agency, as holder of the privilege, is free to waive. But none
of the holders of Social Security numbers has waived the right
to confidentiality or done anything that could justify exposure
to identity theft. To put this otherwise, revealing Social Secu-
rity numbers is not a remedy for misconduct by an agency’s
employees or the agency’s lawyers. None of the law-enforce-
ment agencies has taken a step that warrants opening investi-
gative files. Private persons may lack a legal right to block an
agency from deliberately disclosing confidential information,
see Chrysler Corp. v. Brown, 441 U.S. 281 (1979), but they cer-
tainly have an interest in avoiding loss from an agency’s neg-
ligence, coupled with a judge’s unwillingness to review

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8 Nos. 25-1126 & 26-1017
documents to see which asserted redactions serve to protect
the interests of unconsenting parties.
The district judge did not explain why he selected a rem-
edy that exposed innocent third parties (and law-enforcement
bodies outside the defendant agency) to loss caused by the
agency’s mishandling of this litigation. Nor did the judge ex-
plain why he declined to send the documents to a magistrate
judge or special master for review, when the judge himself
lacked the time to do the job. These omissions leave the sanc-
tions order as an abuse of discretion. Perhaps more could be
said that would justify imposing losses (potentially substan-
tial) on persons who did not choose the agency as guardian of
their interests and lack any ability to control its litigation strat-
egy—but if there is something to be said along these lines, the
district judge did not say it.
This case needs another look in the district court. The in-
junction is vacated as not adequately detailed, and the case is
remanded with instructions to reassess the sanction and limit
the disclosures to information concerning the agency’s own
operations (and privileges that the agency is free to waive).

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