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EXHIBIT A

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February 2, 2017

AMERICAN CIVIL LIBERTIES UNION FOUNDATION of DELAWARE 100 W 10TH ST, SUITE 706 WILMINGTON, DE 19801 T/302-654-5326 F/302-654-3689 WWW.ACLU-DE.ORG
S. ELIZABETH LOCKMAN PRESIDENT
KATHLEEN M. MacRAE EXECUTIVE DIRECTOR
RICHARD H. MORSE LEGAL DIRECTOR
RYAN R. TACK-HOOPER STAFF ATTORNEY & LEGISLATIVE ADVOCATE

BY FEDERAL EXPRESS U.S. Customs & Border Protection 217 E. Redwood Street, 12th Floor Baltimore, MD 21202
FOIA Officer U.S. Customs & Border Protection 1300 Pennsylvania Avenue, NW Room 3.3D Washington, D.C. 20229 Phone: (202) 344-1610
Re: Request Under Freedom of Information Act (Expedited Processing & Fee Waiver/Limitation Requested)
To Whom It May Concern:
The American Civil Liberties Unions of Delaware, Maryland, Pennsylvania and Virginia and the American Civil Liberties Union Foundations of Delaware, Maryland, Pennsylvania and Virginia (together with the American Civil Liberties Union, “ACLU”)1 submit this Freedom of Information Act (“FOIA”) request (“Request”) for records about the implementation of President Trump’s January 27, 2017 Executive Order (“Executive Order”) by U.S. Customs and Border Protection (“CBP”). Titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” the Executive Order halts refugee admissions and bars entrants from seven predominantly Muslim countries from entering the United States.2 By this letter, which constitutes a request pursuant to FOIA, 5 U.S.C. § 552 et seq., and the relevant implementing regulations, see 6 C.F.R. § 5 et seq., we seek information

1 The American Civil Liberties Unions of Delaware, Maryland, Pennsylvania and Virginia are nonprofit, 501(c)(4) membership organizations that educate the public about the civil liberties implications of pending and proposed state and federal legislation, provide analysis of pending and proposed legislation, directly lobby legislators, and mobilize their members to lobby their legislators. The American Civil Liberties Union Foundations of Delaware, Maryland, Pennsylvania and Virginia are separate 501(c)(3) organizations that provide legal representation free of charge to individuals and organizations in civil rights and civil liberties cases, educate the public about the civil rights and civil liberties implications of pending and proposed state and federal legislation, provide analyses of pending and proposed legislation, directly lobby legislators, and mobilize their members to lobby their legislators. They are affiliates of the American Civil Liberties Union.
2 Exec. Order No. 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017).

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regarding CBP’s local implementation of the Executive Order at international airports and ports of entry within the purview of Baltimore (“Field Office”).
I. Background
On January 27, 2017, President Donald J. Trump issued an executive order that indefinitely blocks refugees from Syria from entering the United States, bars all refugees for 120 days, and prohibits individuals from seven predominantly Muslim countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—from entering the United States for 90 days.3 By the following day, January 28, 2017, CBP officials across the country had detained an estimated 100 to 200 individuals at airports throughout the United States, including Philadelphia International Airport and Washington Dulles International Airport.4 Two unions representing more than 21,000 federal immigration officers praised the Executive Order,5 issuing a joint press release that “applaud[ed] the three executive orders [President Trump] has issued to date.”6 Daniel M. Renaud, Associate Director of Field Operations for U.S. Citizenship and Immigration Services, instructed Department of Homeland Security (“DHS”) employees that they could no longer adjudicate any immigration claims from the seven countries targeted by the Executive Order.7

3 See, e.g., Michael D. Shear and Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. TIMES, Jan. 27, 2017, available at https://www.nytimes.com/2017/ 01/27/us/politics/trump-syrian-refugees.html.
4 See, e.g., Michael D. Shear et al., Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Worldwide, N.Y. TIMES, Jan. 28, 2017, available at https://www.nytimes.com/2017/ 01/28/us/refugees-detained-at-us-airports-prompting-legal-challenges-to-trumps-immigrationorder.html; 2 Christian Syrian Families Detained at PHL, Returned to Qatar; Other Migrants Detained at PHL, Philadelphia Inquirer (Jan. 31. 2017), http://www.philly.com/philly/blogs/realtime/2-Syrian-families-detained-at-PHL-returned-to-Qatar.html.; http://abcnews.go.com/Politics/confusion-protest-days-trumps-immigrationorder/story?id=45124158; http://www.huffingtonpost.com/entry/dulles-airport-feds-violated-courtorder_us_588d7274e4b08a14f7e67bcf; https://www.washingtonpost.com/local/public-safety/vademands-more-details-on-travel-ban-detentions-at-dulles-international-airport/2017/02/01/f10aef32e8de-11e6-80c2-30e57e57e05d_story.html?utm_term=.7dd108163be0; http://wjla.com/news/local/video-mother-from-iran-5-year-old-son-reunited-after-he-was-detainedat-dulles-airport
5 Robert Mackey, America’s Deportation Agents Love Trump’s Ban and Rely on Breitbart for Their News, THE INTERCEPT, Jan. 30, 2017, available at https://theintercept.com/2017/01/30/ americas-deportation-agents-love-trumps-ban-rely-breitbart-news/.
6 Joint Press Release Between Border Patrol and ICE Councils, NAT’L ICE COUNCIL, available at http://iceunion.org/news/joint-press-release-between-border-patrol-and-ice-councils.
7 Alice Speri and Ryan Devereaux, Turmoil at DHS and State Department—“There Are People Literally Crying in the Office Here,” THE INTERCEPT, Jan. 30, 2017, available at https://theintercept.com/2017/01/30/asylum-officials-and-state-department-in-turmoil-there-arepeople-literally-crying-in-the-office-here/.

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Beginning Saturday morning, protests erupted nationwide and attorneys rushed to airports to assist detained individuals and their families.8 Over the next twenty-four hours, five federal courts ordered officials to temporarily stop enforcement of the Executive Order.9 First, Judge Donnelly of the Eastern District of New York issued a nationwide order in Darweesh v. Trump, filed by the ACLU’s Immigrants’ Rights Project (among others), that prohibited the government from removing any detained travelers from the seven banned countries who had been legally authorized to enter the United States.10 And a few hours later, in Tootkaboni v. Trump, filed by the ACLU of Massachusetts (among others), Judge Burroughs and Magistrate Judge Dein of the District of Massachusetts issued a nationwide order that not only prohibited the removal of such individuals, but also temporarily banned the government from detaining people affected by the Executive Order.11
At the same time, President Trump remained publicly committed to his opposing position. In the early hours of Sunday, January 29, 2017, after the five court orders had been issued, President Trump tweeted, “Our country needs strong borders and extreme vetting, NOW.”12 He also issued a statement on Facebook

8 See, e.g., Peter Baker, Travelers Stranded and Protests Swell Over Trump Order, N.Y. TIMES, Jan. 29, 2017, available at https://www.nytimes.com/2017/01/29/us/politics/white-house-official-inreversal-says-green-card-holders-wont-be-barred.html; Issie Lapowsky and Andy Greenberg, Trump’s Ban Leaves Refugees in Civil Liberties Limbo, WIRED, Jan. 28, 2017, available at https://www.wired.com/2017/01/trumps-refugee-ban-direct-assault-civil-liberties/; Zolan KannoYoungs and Ben Kesling, Thousands Flood Cities’ Streets to Protest Donald Trump’s Immigration Ban, WALL ST. J., Jan. 30, 2017, available at https://www.wsj.com/ articles/protests-continue-against-trumps-executive-order-banning-some-from-u-s-1485735672.
9 See, e.g., Steve Vladeck, The Airport Cases: What Happened, and What’s Next?, JUST SECURITY, Jan. 30, 2017, available at https://www.justsecurity.org/36960/stock-weekends-district-courtorders-immigration-eo/.
10 Decision and Order, Darweesh v. Trump, No. 17 Civ. 480 (AMD) (E.D.N.Y. Jan. 28, 2017), available at https://www.aclu.org/legal-document/darweesh-v-trump-decision-and-order.
11 Temporary Restraining Order, Tootkaboni v. Trump, No. 17-cv-10154 (D. Mass. Jan. 29, 2017), available at https://aclum.org/wp-content/uploads/2017/01/6-TRO-Jan-29-2017.pdf. Another federal court issued an order requiring that attorneys be allowed access to all lawful permanent residents detained at Dulles International Airport and barring the government from deporting any such individuals. See Temporary Restraining Order, Aziz v. Trump, No. 1:17-cv-116 (E.D. Va. Jan. 28, 2017), available at https://www.justice4all.org/wp-content/uploads/2017/01/TRO-ordersigned.pdf. In Doe v. Trump, filed in part by the ACLU of Washington, the court banned the removal of two individuals. See Order Granting Emergency Motion for Stay of Removal, Doe v. Trump, No. C17-126 (W.D. Wash. Jan. 28, 2017), available at https://www.justsecurity.org/wpcontent/uploads/2017/01/Seattle-Order.pdf. Finally, in Vayeghan v. Trump, filed in part by the ACLU of Southern California, the court ordered the government to permit an Iranian individual who had already been removed to Dubai to return to the United States and to admit him pursuant to his approved visa. Order, Vayeghan v. Trump, No. CV 17-0702 (C.D. Cal. Jan. 28, 2017), available at https://www.aclusocal.org/sites/ default/files/vayeghan_-_order_re_tro.pdf.
12 Donald J. Trump, TWITTER (Jan. 29, 2017 5:08 A.M.), https://twitter.com/realDonaldTrump/ status/825692045532618753.

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later that day, indicating that entry from the seven predominantly Muslim countries would remain blocked for the next ninety days.13
In the face of nationwide confusion about the scope and validity of the Executive Order, guidance from other relevant actors offered little clarity. For example, on Saturday, DHS confirmed that the ban “will bar green card holders.”14 But on Sunday, DHS Secretary John Kelly deemed “the entry of lawful permanent residents to be in the national interest”15 and, that evening, the Trump administration clarified that the Executive Order does not apply to green card holders.16 The same day, DHS stated, perhaps contradictorily and without any elaboration, “We are and will remain in compliance with judicial orders. We are and will continue to enforce President Trump’s executive order humanely and with professionalism.”17 On Monday, then–Acting Attorney General Sally Yates announced that the Department of Justice would not present arguments in defense of the Executive Order unless and until she became convinced that it was lawful.18 Shortly thereafter, Ms. Yates was relieved of her position by President Trump.19 The same evening, President Trump also replaced the acting director of U.S. Immigration and Customs Enforcement (“ICE”).20

13 Donald J. Trump, Statement Regarding Recent Executive Order Concerning Extreme Vetting, Jan. 29, 2017, available at https://www.facebook.com/DonaldTrump/posts/101585676436107 25 (“We will again be issuing visas to all countries once we are sure we have reviewed and implemented the most secure policies over the next 90 days.”).
14 Max Greenwood, Immigration Ban Includes Green Card Holders: DHS, THE HILL, Jan. 28, 2017, available at http://thehill.com/policy/national-security/316670-trump-refugee-ban-bars-green-cardholders-report.
15 Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into The United States, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanentresidents-united-states.
16 Robert Mackey, As Protests Escalate, Trump Retreats From Barring Green Card Holders, THE INTERCEPT, Jan, 29, 2017, available at https://theintercept.com/2017/01/29/trumps-executive-orderno-longer-bars-green-card-holders/.
17 DHS Statement On Compliance With Court Orders And The President’s Executive Order, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/ 01/29/dhs-statement-compliance-court-orders-and-presidents-executive-order.
18 Jonathan H. Adler, Acting Attorney General Orders Justice Department Attorneys Not to Defend Immigration Executive Order, WASH. POST, Jan. 30, 2017, available at https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/30/acting-attorney-generalorders-justice-department-attorneys-not-to-defend-immigration-executive-order/.
19 Read the Full White House Statement on Sally Yates, BOSTON GLOBE, Jan. 30, 2017, available at https://www.bostonglobe.com/news/politics/2017/01/30/read-full-white-house-statement-sallyyates/HkFReIYJidU9deDelPK6SM/story.html.
20 Statement from Secretary Kelly on the President’s Appointment of Thomas D. Homan as Acting ICE Director, DEP’T OF HOMELAND SECURITY (Jan. 30, 2017), available at https://www.dhs.gov/news/2017/01/30/statement-secretary-kelly-presidents-appointment-thomas-dhoman-acting-ice-director.

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In spite of court orders to the contrary, some CBP officials appear to be continuing to detain individuals—though the approach appears to differ by location.21 Accordingly, we seek to supplement the public record to clarify CBP’s understanding and implementation of the Executive Order at BaltimoreWashington International Airport, Philadelphia International Airport, Pittsburgh International Airport and Washington Dulles International Airport (“Local International Airports”) and Baltimore, Philadelphia, Pittsburgh, Port of Washington-Dulles and Wilmington (“Port of Entry Offices”). Through this request, the ACLU aims to facilitate the public’s indispensable role in checking the power of our public officials and to learn about the facts on the ground in Delaware, Maryland, Pennsylvania and Virginia and the Local International Airports.

II. Requested Records

For the purposes of this Request, “Records” are collectively defined to include, but are not limited to: text communications between phones or other electronic devices (including, but not limited to, communications sent via SMS or other text, Blackberry Messenger, iMessage, WhatsApp, Signal, Gchat, or Twitter direct message); e-mails; images, video, and audio recorded on cell phones; voicemail messages; social-media posts; instructions; directives; guidance documents; formal and informal presentations; training documents; bulletins; alerts; updates; advisories; reports; legal and policy memoranda; contracts or agreements; minutes or notes of meetings and phone calls; and memoranda of understanding. We seek release of the following:

1.

Records created on or after January 27, 2017 concerning CBP’s

interpretation, enforcement, and implementation of the following at Local

International Airports:

a. President Trump’s Executive Order, signed on January 27, 2017 and titled “Protecting the Nation From Foreign Terrorist Entry Into the United States”;

21 See, e.g., Julia Wick, Lawyers Say At Least 17 People Are Still Detained at LAX, Protests Continue, LAIST, Jan. 29, 2017, available at http://laist.com/2017/01/29/people_are_still_ detained_at_lax.php; Daniel Marans, Customs and Border Officials Defy Court Order on Lawful Residents, HUFFINGTON POST, Jan. 29, 2017, available at http://www.huffingtonpost.com /entry/dulles-airport-feds-violated-court-order_us_588d7274e4b08a14f7e67bcf; Tom Cleary, Is Border Patrol Defying Federal Judge’s Stay on Immigration Executive Order?, HEAVY, Jan. 29, 2017, available at http://heavy.com/news/2017/01/border-patrol-homeland-security-defyingignoring-following-judge-ruling-stay-immigration-executive-order-dulles-dfw-muslim-ban/; Tess Owen, Waiting for Answers: We Still Don’t Know How Many People are Being Detained at US Airports, VICE NEWS, Jan. 30, 2017, available at https://news.vice.com/story/we-still-dont-knowhow-many-people-are-being-detained-at-us-airports.

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b. Any guidance “provided to DHS field personnel shortly” after President Trump signed the Executive Order, as referenced in CBP’s online FAQ;22
c. Associate Director of Field Operations for U.S. Citizenship and Immigration Services Daniel M. Renaud’s email, sent at 11:12 A.M. on January 27, 2017, instructing DHS employees that they could not adjudicate any immigration claims from the seven targeted countries;23
d. Judge Donnelly’s Decision and Order granting an Emergency Motion for Stay of Removal, issued in the Eastern District of New York on January 27, 2017, including records related to CBP’s efforts to comply with the court’s oral order requiring prompt production of a list of all class members detained by CBP;24
e. Judge Brinkema’s Temporary Restraining Order, issued in the Eastern District of Virginia on January 28, 2017;25
f. Judge Zilly’s Order Granting Emergency Motion for Stay of Removal, issued in the Western District of Washington on January 28, 2017;26
g. Judge Burroughs’ Temporary Restraining Order, issued in the District of Massachusetts on January 29, 2017;27

22 Protecting the Nation from Foreign Terrorist Entry into the United States, U.S. CUSTOMS AND BORDER PROTECTION (Jan. 31, 2017), available at https://www.cbp.gov/border-security/protectingnation-foreign-terrorist-entry-united-states (“The Executive Order and the instructions therein were effective at the time of the order’s signing. Guidance was provided to DHS field personnel shortly thereafter.”) (emphasis added).
23 See Alice Speri and Ryan Devereaux, Turmoil at DHS and State Department—“There Are People Literally Crying in the Office Here,” THE INTERCEPT, Jan. 30, 2017, available at https://theintercept.com/2017/01/30/asylum-officials-and-state-department-in-turmoil-there-arepeople-literally-crying-in-the-office-here/.
24 Decision and Order, Darweesh v. Trump, No. 17 Civ. 480 (AMD) (E.D.N.Y. Jan. 28, 2017), available at https://www.aclu.org/legal-document/darweesh-v-trump-decision-and-order.
25 Temporary Restraining Order, Aziz v. Trump, No. 1:17-cv-116 (E.D. Va. Jan. 28, 2017), available at https://www.justice4all.org/wp-content/uploads/2017/01/TRO-order-signed.pdf.
26 Order Granting Emergency Motion for Stay of Removal, Doe v. Trump, No. C17-126 (W.D. Wash. Jan. 28, 2017), available at https://www.justsecurity.org/wpcontent/uploads/ 2017/01/Seattle-Order.pdf.
27 Temporary Restraining Order, Tootkaboni v. Trump, No. 17-cv-10154 (D. Mass. Jan. 29, 2017), available at https://aclum.org/wp-content/uploads/2017/01/6-TRO-Jan-29-2017.pdf.

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h. Judge Gee’s Order granting an Amended Ex Parte Application for
Temporary Restraining Order, issued in the Central District of California on January 29, 2017;28

i. Assurances from the U.S. Attorney’s Office for the Eastern District of Pennsylvania that all individuals detained at Philadelphia International Airport under the Executive Order would be admitted to the United States and released from custody on Sunday, January 29, 2017;

j. DHS’s “Response to Recent Litigation” statement, issued on January 29, 2017;29

k. DHS Secretary John Kelly’s “Statement on the Entry of Lawful
Permanent Residents Into the United States,” issued on January 29, 2017;30

l. DHS’s “Statement on Compliance with Court Orders and the President’s Executive Order,” issued on January 29, 2017;31 and

m. Any other judicial order or executive directive issued regarding the Executive Order on or after January 27, 2017.

2.

Records concerning the number of individuals who were detained or

subjected to secondary screening, extending questioning, an enforcement

examination, or consideration for a waiver at Local International Airports

pursuant to the Executive Order, including:

a. The total number of individuals who remain detained or subject to secondary screening, extending questioning, an enforcement examination, or consideration for a waiver at Local International Airports both as of the date of this request and as of the date on which this request is processed; and

28 Order, Vayeghan v. Trump, No. CV 17-0702 (C.D. Cal. Jan. 28, 2017), available at https://www.aclusocal.org/sites/default/files/vayeghan_-_order_re_tro.pdf.
29 Department of Homeland Security Response to Recent Litigation, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/department-homeland-securityresponse-recent-litigation.
30 Statement from Secretary Kelly on the President’s Appointment of Thomas D. Homan as Acting ICE Director, DEP’T OF HOMELAND SECURITY (Jan. 30, 2017), available at https://www.dhs.gov/news/2017/01/30/statement-secretary-kelly-presidents-appointment-thomas-dhoman-acting-ice-director.
31 DHS Statement On Compliance With Court Orders And The President’s Executive Order, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/ 01/29/dhs-statement-compliance-court-orders-and-presidents-executive-order.

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b. The total number of individuals who have been detained or subjected to secondary screening, extending questioning, an enforcement examination, or consideration for a waiver for any length of time at Local International Airports since January 27, 2017, including the number of individuals who have been

i. released,

ii. transferred into immigration detention, or

iii. removed from the United States;

3.

Records concerning the number of individuals who have been removed

from Local International Airports from January 27, 2017 to date pursuant

to the Executive Order;

4.

Records concerning the number of individuals who arrived at Local

International Airports from January 27, 2017 to date with valid visas or

green cards who subsequently agreed voluntarily to return; and

5.

Records containing the “guidance” that was “provided to DHS field

personnel shortly” after President Trump signed the Executive Order.32

To reiterate: We seek information regarding CBP’s interpretation and enforcement of the Executive Order at the Local International Airports, not information held in the records of CBP Headquarters. Specifically, we seek records held by CBP employees and offices at the Local International Airports, and the corresponding Port of Entry Offices and Regional Field Operations Office. CBP has an obligation to search all such field offices that are reasonably expected to produce any relevant information. See, e.g., Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Marks v. U.S. Dep’t of Justice, 578 F.2d 261, 263 (9th Cir. 1978) (agency not required to search all of its field offices because request did not ask for a search beyond the agency’s central files); see also Am. Immigration Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 230 (D.D.C. 2013).

We request that searches of all electronic and paper/manual indices, filing systems, and locations for any and all records relating or referring to the subject of our Request be conducted. Given the expedited timeline on which the relevant events and interpretations occurred, this includes the personal email accounts and work phones of all employees and former employees who may have sent or

32 Protecting the Nation from Foreign Terrorist Entry into the United States, U.S. CUSTOMS AND BORDER PROTECTION (Jan. 31, 2017), available at https://www.cbp.gov/border-security/protectingnation-foreign-terrorist-entry-united-states (“The Executive Order and the instructions therein were effective at the time of the order’s signing. Guidance was provided to DHS field personnel shortly thereafter.”) (emphasis added).

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received emails or text messages regarding the subject matter of this Request, as well as all institutional, shared, group, duty, task force, and all other joint and/or multi-user email accounts and work phones which may have been utilized by each such employee or former employee. Additionally, for each relevant email account identified, all storage areas must be searched, including the inbox “folder” (and all subfolders therein), sent folder, deleted folder, and all relevant archive files.
If any records responsive or potentially responsive to the Request have been destroyed, our Request includes, but is not limited to, any and all records relating or referring to the destruction of those records. This includes, but is not limited to, any and all records relating or referring to the events leading to the destruction of those records.
As required by the relevant case law, the agency should follow any leads it discovers during the conduct of its searches and should perform additional searches when said leads indicate that records may be located in another system. Failure to follow clear leads is a violation of FOIA.
With respect to the form of production, see 5 U.S.C. § 552(a)(3)(B), we request that responsive electronic records be provided electronically in their native file format, if possible. Alternatively, we request that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency’s possession, and that the records be provided in separate, Bates-stamped files.
III. Application for Expedited Processing
We request expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E).33 There is a “compelling need” for these records, as defined in the statute, because the information requested is “urgen[tly]” needed by an organization primarily engaged in disseminating information “to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v)(II).
A. The ACLU is an organization primarily engaged in disseminating information in order to inform the public about actual or alleged government activity.
The ACLU is “primarily engaged in disseminating information” within the meaning of the statute. 5 U.S.C. § 552(a)(6)(E)(v)(II).34 Obtaining information about government activity, analyzing that information, and widely publishing and disseminating that information to the press and public are critical and substantial components of the ACLU’s work and are among its primary activities. See ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-

33 See also 6 C.F.R. § 5.5(e)(1). 34 See also 6 C.F.R. § 5.5(e)(1)(ii).

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profit public interest group that “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience” to be “primarily engaged in disseminating information”).35
The ACLU of Maryland regularly publishes “Free State Liberties,” a newsletter for members that goes out to 13,000 people. The ACLU of Maryland also publishes regular updates and alerts via email to approximately 32,000 people (members and non-members). Similar messages are additionally broadcast to over 12,000 social media followers (members and non-members). Both the newsletter and email and social media alerts often include descriptions and analysis of information obtained through FOIA requests, in addition to specifically about immigrants’ rights and issues of religious liberty.
The ACLU of Maryland regularly publishes “know your rights” materials, fact sheets, and reports designed to educate the public about civil liberties issues and government policies that implicate civil rights and liberties. In recent years, the ACLU of Maryland has published several reports relating to the rights of immigrants, specifically. These include: "Detained Without Process: The Excessive Use of Mandatory Detention Against Maryland's Immigrants": http://aclumd.org/uploaded_files/0000/0887/mandatory_detention_report_2016.pdf; "Diverted into Deportation: The Immigration Consequences of Diversion Programs in Maryland": http://aclumd.org/uploaded_files/0000/0886/immigrant_justice_diversion_report.pdf; and "Restoring Trust: How Immigration Detainers in Maryland Undermine Public

35 Courts have found that the ACLU as well as other organizations with similar missions that engage in information-dissemination activities similar to the ACLU are “primarily engaged in disseminating information.” See, e.g., Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005); ACLU, 321 F. Supp. 2d at 29 n.5; Elec. Privacy Info. Ctr. v. U.S. Dep’t of Defense, 241 F. Supp. 2d 5, 11 (D.D.C. 2003). Examples of FOIA requests filed by these ACLU affiliates for this purpose include: 2013 FOIA to Delaware Law Enforcement Agencies to search for records regarding any Special Weapons and Tactics (SWAT) teams and acquisition and use of SWAT-related technology; 2010 FOIA to FBI to search for records pertaining to the FBI’s use of race and ethnicity to conduct assessments and investigations in local communities in Delaware after the FBI issued a Domestic Intelligence Operations Guide containing troubling revelations about the FBI’s use of race and ethnicity when conducting investigations; 2008 FOIA to FBI and NSA after it was revealed through litigation that the Maryland State Police spied on peaceful political protesters, activity it turned out was done in partnership with the Maryland Coordination and Analysis Center, which is linked to federal intelligence databases; 2009 FOIA to Executive Office for U.S. Attorneys at DOJ to search offices of US Attorney in Maryland for records relating to policies and data regarding law enforcement acquisition of cell phone location data; 2010 FOIA to FBI Baltimore Field Office regarding the FBI’s authority to collect information about and “map” racial and ethnic demographics, “behaviors,” and “life style characteristics” in local communities to assist the FBI’s “domain awareness” and “intelligence analysis” activities, as outlined in the Domestic Intelligence and Operations Guide revisions of 2008; 2014 FOIA to US Naval Academy seeking information about treatment of female applicants and students; 2013 FOIA to US Customs/ICE seeking information about ICE detainers in Maryland; and 2015 FOIA to ICE seeking records for the Mirna Artiga case, which is now the subject of federal court litigation.

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Safety Through Unnecessary Enforcement: http://aclumd.org/uploaded_files/0000/0472/immigration_detainer_report.pdf.
The ACLU of Virginia also regularly publishes “know your rights” materials, fact sheets, and educational brochures and pamphlets designed to educate the public about civil liberties issues and government policies that implicate civil rights and liberties.36
The ACLU of Delaware publishes a quarterly newsletter, “Connections,” which is mailed to 1600-1800 people. The ACLU of Delaware also publishes regular updates and alerts via email to over 6,000 people (members and nonmembers). Similar messages are broadcast to 3600 people (members and nonmembers). Blog posts on ACLU of Delaware’s website are visited by over 5,000 unique visitors per month, and the posts often include information regarding one’s rights with ICE and the police. ACLU of Delaware’s communications often include descriptions and analysis of information obtained through FOIA requests.
The ACLU of Delaware also regularly prints “Know Your Rights” materials, fact sheets, and reports designed to educate the public about civil liberties issues and government policies that influence freedom and justice. Most recently, ACLU of Delaware created a “Know Your Rights with Police” wallet card with immigrants in mind, and included information in English and Spanish. ACLU of Delaware also published “Every Sentence Should Not Equal a Life Sentence: Collateral Consequences Reform in Delaware.” While it doesn’t specifically address immigrants, it does call to attention the fact that Black and Latino individuals tend to suffer the most from these draconian laws.
The ACLU of Virginia publishes and distributes to its mailing list newsletters and issue mailers discussing its work and civil liberties issues twice per year. Mailings are disseminated to thousands of members and non-members. The ACLU of Virginia also broadcasts information on civil liberties and civil rights to the over 15,000 social media followers (both ACLU members and non-members).
The ACLU of Pennsylvania maintains a website that contains updates about its litigation, advocacy, and other civil liberties news.37 In 2016, the website received 266,113 visitors. The most populated page contains fourteen Know Your Rights publications on topics ranging from rights at a protest to interactions with police and immigration agents. The website contains a blog about current civil

36 See, e.g., Know Your Rights, American Civil Liberties Union of Virginia, Mobile Justice, https://acluva.org/mobilejustice/know-your-rights/; Know Your Rights, American Civil Liberties Union of Virginia, Voters’ Rights Information, https://acluva.org/newscommentary/publications/know-your-rights/; Know Your Rights, American Civil Liberties Union of Virginia, Advice on Dealing with the Police, FBI and INS, https://acluva.org/1742/know-yourrights-brochures-available-from-aclu/.
37 ACLU of Pennsylvania, ACLU of Pennsylvania Home, https://www.aclupa.org.

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liberties issues that received 12,632 visitors in 2016.38 The ACLU of Pennsylvania also has more than 20,000 followers on social media and 69,545 e-mail subscribers who receive updates on the ACLU of Pennsylvania’s activities. The organization also released 34 press releases about its actions in 2016.39
The ACLU regularly publishes STAND, a print magazine that reports on and analyzes civil liberties-related current events. The magazine is disseminated to over 620,000 people. The ACLU also publishes regular updates and alerts via email to approximately 2.1 million subscribers (both ACLU members and non-members). These updates are additionally broadcast to 1.5 million social media followers (members and non-members). The magazine as well as the email and social-media alerts often include descriptions and analysis of information obtained through FOIA requests.
The ACLU also regularly issues press releases to call attention to documents obtained through FOIA requests, as well as other breaking news,40 and ACLU attorneys are interviewed frequently for news stories about documents released through ACLU FOIA requests.41
38 ACLU of Pennsylvania, Speaking Freely: The Official Blog of the American Civil Liberties Union of Pennsylvania, https://blog.aclupa.org/.
39 See, e.g., ACLU of Pennsylvania, ACLU-PA Sues City of Philadelphia Over Free Speech Restrictions During DNC (Jun. 23, 2016), https://www.aclupa.org/news/2016/06/23/aclu-pa-suescity-philadelphia-over-free-speech-restrictions.
40 See, e.g., Press Release, American Civil Liberties Union, U.S. Releases Drone Strike ‘Playbook’ in Response to ACLU Lawsuit (Aug. 6, 2016), https://www.aclu.org/news/us-releases-drone-strikeplaybook-response-aclu-lawsuit; Press Release, American Civil Liberties Union, Secret Documents Describe Graphic Abuse and Admit Mistakes (June 14, 2016), https://www.aclu.org/news/ciareleases-dozens-torture-documents-response-aclu-lawsuit; Press Release, American Civil Liberties Union, U.S. Releases Targeted Killing Memo in Response to Long-Running ACLU Lawsuit (June 23, 2014), https://www.aclu.org/national-security/us-releases-targeted-killing-memo-response-longrunning-aclu-lawsuit; Press Release, American Civil Liberties Union, Justice Department White Paper Details Rationale for Targeted Killing of Americans (Feb. 4, 2013), https://www.aclu.org/national-security/justice-department-white-paper-details-rationale-targetedkilling-americans; Press Release, American Civil Liberties Union, Documents Show FBI Monitored Bay Area Occupy Movement (Sept. 14, 2012), https://www.aclu.org/news/documents-show-fbimonitored-bay-area-occupy-movement-insidebayareacom. See also Press Release, American Civil Liberties Union of Virginia, ACLU of Virginia Demands Release of Records on Police Cell Phone Database (Oct. 24, 2014), https://acluva.org/16226/aclu-of-virginia-demands-hampton-roadsreleases-information-related-to-telephone-analysis-sharing-network/; Press Release, American Civil Liberties Union of Virginia, ACLU of Virginia Decries Roanoke Mayor’s Statements Invoking Japanese Internment (Nov. 18, 2015), https://acluva.org/18137/aclu-of-virginia-decries-roanokemayors-statements-invoking-japanese-internment/; Press Release, American Civil Liberties Union of Virginia, ACLU-VA Supports Gov. McAuliffe’s Position on Syrian Refugees (Nov. 17, 2015), https://acluva.org/18131/aclu-va-supports-gov-mcauliffes-position-on-syrian-refugees/; Press Release, American Civil Liberties Union of Virginia, ACLU of Virginia Launches “The People’s Body-Cam” (Nov. 13, 2015), https://acluva.org/18125/aclu-of-virginia-launches-the-peoples-bodycam/.
41 See, e.g., Karen DeYoung, Newly Declassified Document Sheds Light on How President Approves Drone Strikes, Wash. Post, Aug. 6, 2016, https://www.washingtonpost.com/

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Similarly, the ACLU publishes reports about government conduct and civil liberties issues based on its analysis of information derived from various sources, including information obtained from the government through FOIA requests. This material is broadly circulated to the public and widely available to everyone for no cost or, sometimes, for a small fee. ACLU national projects regularly publish and disseminate reports that include a description and analysis of government documents obtained through FOIA requests.42 The ACLU also regularly publishes books, “know your rights” materials, fact sheets, and educational brochures and pamphlets designed to educate the public about civil liberties issues and government policies that implicate civil rights and liberties.
The ACLU and ACLU of Virginia also publish widely-read blogs where original editorial content reporting on and analyzing civil rights and civil liberties news is posted daily. See https://www.aclu.org/blog; See https://acluva.org/category/blog/. The ACLU and its affiliates create and disseminate original editorial and educational content on civil rights and civil
world/national-security/newly-declassified-document-sheds-light-on-how-president-approvesdrone-strikes/2016/08/06/f424fe50-5be0-11e6-831d-0324760ca856_story.html (quoting former ACLU deputy legal director Jameel Jaffer); Catherine Thorbecke, What Newly Released CIA Documents Reveal About ‘Torture’ in Its Former Detention Program, ABC, June 15, 2016, http://abcnews.go.com/US/newly-released-cia-documents-reveal-torture-detentionprogram/story?id=39873389 (quoting ACLU staff attorney Dror Ladin); Nicky Woolf, US Marshals Spent $10M on Equipment for Warrantless Stingray Device, Guardian, Mar. 17, 2016, https://www.theguardian.com/world/2016/mar/17/us-marshals-stingray-surveillance-airborne (quoting ACLU attorney Nate Wessler); David Welna, Government Suspected of Wanting CIA Torture Report to Remain Secret, NPR, Dec. 9, 2015, http://www.npr.org/2015/12/09/ 459026249/cia-torture-report-may-remain-secret (quoting ACLU project director Hina Shamsi); "Report: Suspicious Cookies," Washington Post, 2008: http://www.washingtonpost.com/wpdyn/content/article/2008/07/18/AR2008071802804.html; "ACLU, military women's group sue Defense Department for Naval Academy records on female midshipmen," Baltimore Sun, 2014: http://www.baltimoresun.com/business/federal-workplace/bs-md-naval-academy-foia-20150203story.html.
42 See, e.g., ACLU, ACLU-Obtained Emails Prove that the Federal Bureau of Prisons Covered Up Its Visit to the CIA’s Torture Site (Nov. 22, 2016, 3:15 PM), https://www.aclu.org/blog/speakfreely/aclu-obtained-emails-prove-federal-bureau-prisons-covered-its-visit-cias-torture; ACLU, Details Abound in Drone ‘Playbook’ – Except for the Ones That Really Matter Most (Aug. 8, 2016, 5:30 PM), https://www.aclu.org/blog/speak-freely/details-abound-drone-playbook-except-onesreally-matter-most; ACLU, ACLU- Obtained Documents Reveal Breadth of Secretive Stingray Use in Florida (Feb. 22, 2015, 5:30 PM), https://www.aclu.org/blog/free-future/aclu-obtaineddocuments-reveal-breadth-secretive-stingray-use-florida; ACLU, New NSA Documents Shine More Light into Black Box of Executive Order 12333 (Oct. 30, 2014, 3:29 PM), https://www.aclu.org/blog/new-nsa-documents-shine-more-light-black-box-executive-order-12333; ACLU, ACLU Eye on the FBI: Documents Reveal Lack of Privacy Safeguards and Guidance in Government’s “Suspicious Activity Report” Systems (Oct. 29, 2013), https://www.aclu.org/sites/default/files/assets/eye_on_fbi_-_sars.pdf. . See also, e.g., ACLU of Virginia, Getting to Win-Win: The Use of Body-Worn Cameras in Virginia Policing, https://acluva.org/bodycams/; ACLU of Virginia, Accountable to No One: The Virginia Department of Corrections and Prisoner Medical Care (May 2003), https://acluva.org/publications/medicalreport2003.pdf.

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liberties news through multi-media projects, including videos, podcasts, and interactive features. See, e.g., https://www.aclu.org/multimedia; www.aclu.org and www.acluva.org. The ACLU also publishes, analyzes, and disseminates information through its heavily visited website, www.aclu.org. The websites address civil rights and civil liberties issues in depth, provides features on civil rights and civil liberties issues in the news, and contains many thousands of documents relating to the issues on which the ACLU is focused. The websites also serves as a clearinghouse for news about ACLU cases, as well as analysis about case developments, and an archive of case-related documents. Through these pages, and with respect to each specific civil liberties issue, the ACLU provides the public with educational material, recent news, analyses of relevant Congressional or executive branch action, government documents obtained through FOIA requests, and further in-depth analytic and educational multi-media features.
The ACLU website includes many features on information obtained through the FOIA.43 For example, the ACLU’s “Predator Drones FOIA” webpage, https://www.aclu.org/national-security/predator-drones-foia, contains commentary about the ACLU’s FOIA request, press releases, analysis of the FOIA documents, numerous blog posts on the issue, documents related to litigation over the FOIA request, frequently asked questions about targeted killing, and links to the documents themselves. Similarly, the ACLU maintains an online “Torture Database,” a compilation of over 100,000 pages of FOIA documents that allows researchers and the public to conduct sophisticated searches of FOIA documents relating to government policies on rendition, detention, and interrogation.44 Additionally, the ACLU of Virginia’s webpage, “ACLU-VA Seeks Records Related to Virginia Beach High School Assemblies Following Cancellation of Anti-Bullying Event,” contains commentary on that FOIA request, the request itself, and related documents.45
The ACLU has also published a number of charts and explanatory materials that collect, summarize, and analyze information it has obtained through the FOIA. For example, through compilation and analysis of information gathered from various sources—including information obtained from the government through FOIA requests—the ACLU created an original chart that provides the public and news media with a comprehensive summary index of Bush-era Office of Legal
43 See, e.g., https://www.aclu.org/blog/free-future/fbi-releases-details-zero-day-exploitdecisionmaking-process; https://www.aclu.org/blog/free-future/fbi-documents-reveal-newinformation-baltimore-surveillance-flights; https://www.aclu.org/national-security/anwar-al-awlakifoia-request; https://www.aclu.org/cases/aclu-v-department-defense; https://www.aclu.org/mappingthefbi; https://www.aclu.org/cases/bagram-foia; https://www.aclu.org/national-security/csrt-foia; http://www.aclu.org/safefree/nsaspying/30022res20060207.html; https://www.aclu.org/patriot-foia; https://www.aclu.org/nsl-documents-released-dod?redirect=cpredirect/32088.
44 https://www.thetorturedatabase.org. See also https://www.aclu.org/foia-collection/targetedkilling-foia-database.
45 https://acluva.org/19164/aclu-va-seeks-records-related-to-virginia-beach-high-school-assembliesfollowing-cancellation-of-gay-pride-event/.

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Counsel memos relating to interrogation, detention, rendition, and surveillance.46 Similarly, the ACLU produced a summary of documents released in response to a FOIA request related to the FISA Amendments Act47; a chart of original statistics about the Defense Department’s use of National Security Letters based on its own analysis of records obtained through FOIA requests48; and an analysis of documents obtained through FOIA requests about FBI surveillance flights over Baltimore.49
The ACLU plans to analyze, publish, and disseminate to the public the information gathered through this Request. The records requested are not sought for commercial use and the requesters plan to disseminate the information disclosed as a result of this Request to the public at no cost.
B. The records sought are urgently needed to inform the public about actual or alleged government activity.
These records are urgently needed to inform the public about actual or alleged government activity. See 5 U.S.C. § 552(a)(6)(E)(v)(II).50 Specifically, as discussed in Part I, supra, the requested records seek to inform the public about the CBP’s current, local enforcement of a new Executive Order amid five court orders, varying directives, and other quickly developing events.
Given the foregoing, we have satisfied the requirements for expedited processing of this Request.
IV. Application for Waiver or Limitation of Fees
We request a waiver of document search, review, and duplication fees on the grounds that disclosure of the requested records is in the public interest and because disclosure is “likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii).51 We also request a waiver of search fees on the grounds that we qualify as a “representative of the news media” and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II).

46 https://www.aclu.org/sites/default/files/pdfs/safefree/olcmemos_2009_0305.pdf. 47 https://www.aclu.org/files/pdfs/natsec/faafoia20101129/20101129Summary.pdf. 48 https://www.aclu.org/sites/default/files/field_document/nsl_stats.pdf. 49 https://www.aclu.org/blog/free-future/fbi-documents-reveal-new-information-baltimoresurveillance-flights. 50 See also 6 C.F.R. § 5.5(e)(1)(ii). 51 See also 6 C.F.R. § 5.11(k).

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A. The Request is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the ACLU.
As discussed above, news accounts underscore the substantial public interest in the records sought through this Request. Given the ongoing and widespread media attention to this issue, the records sought will significantly contribute to public understanding of an issue of profound public importance. Especially because little specific information has been made public about how local CBP Field Offices plan to enforce the Executive Order while also complying with the federal court orders, the records sought are certain to contribute significantly to the public’s understanding of these issues.
We are not filing this Request to further our commercial interest. As described above, any information disclosed by the ACLU as a result of this FOIA Request will be available to the public at no cost. Thus, a fee waiver would fulfill Congress’s legislative intent in amending the FOIA. See Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (“Congress amended FOIA to ensure that it be liberally construed in favor of waivers for noncommercial requesters.” (quotation marks omitted)).
B. The ACLU is a representative of the news media and the records are not sought for commercial use.
We also request a waiver of search fees on the grounds that we qualify as a “representative of the news media” and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II). We meet the statutory and regulatory definitions of a “representative of the news media” because it is an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii)(III);52 see also Nat’l Sec. Archive v. U.S. Dep’t of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989) (finding that an organization that gathers information, exercises editorial discretion in selecting and organizing documents, “devises indices and finding aids,” and “distributes the resulting work to the public” is a “representative of the news media” for purposes of the FOIA); Serv. Women’s Action Network v. U.S. Dep’t of Defense, 888 F. Supp. 2d 282 (D. Conn. 2012) (requesters, including ACLU, were representatives of the news media and thus qualified for fee waivers for FOIA requests to the Department of Defense and Department of Veterans Affairs); ACLU of Wash. v. U.S. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding that the ACLU of Washington is an entity that “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience”); ACLU, 321 F. Supp. 2d at 30 n.5 (finding non-profit public interest group to be “primarily engaged in disseminating information”). We are therefore a
52 See also 6 C.F.R. § 5.11(b)(6).

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“representative of the news media” for the same reasons it is “primarily engaged in the dissemination of information.”
Furthermore, courts have found other organizations whose mission, function, publishing, and public education activities are similar in kind to the ACLU’s to be “representatives of the news media” as well. See, e.g., Cause of Action v. IRS, 125 F. Supp. 3d 145 (D.C. Cir. 2015); Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 10–15 (finding non-profit public interest group that disseminated an electronic newsletter and published books was a “representative of the news media” for purposes of the FOIA); Nat’l Sec. Archive, 880 F.2d at 1387; Judicial Watch, Inc. v. U.S. Dep’t of Justice, 133 F. Supp. 2d 52, 53–54 (D.D.C. 2000) (finding Judicial Watch, self-described as a “public interest law firm,” a news media requester).53
On account of these factors, fees associated with responding to FOIA requests are regularly waived for us as a “representative of the news media.”54 As was true in those instances, we meet the requirements for a fee waiver here.
* * *
53 Courts have found these organizations to be “representatives of the news media” even though they engage in litigation and lobbying activities beyond their dissemination of information / public education activities. See, e.g., Elec. Privacy Info. Ctr., 241 F. Supp. 2d 5; Nat’l Sec. Archive, 880 F.2d at 1387; see also Leadership Conference on Civil Rights, 404 F. Supp. 2d at 260; Judicial Watch, Inc., 133 F. Supp. 2d at 53-54.
54 In 2005 and again in 2006, the FBI, Department of Defense, and Department of Homeland Security granted the ACLU of Pennsylvania a fee waiver in response to a FOIA request for documents relating to the surveillance of anti-war protestors. In May 2016, the FBI granted a feewaiver request regarding a FOIA request issued to the DOJ for documents related to Countering Violent Extremism Programs. In April 2013, the National Security Division of the DOJ granted a fee-waiver request with respect to a request for documents relating to the FISA Amendments Act. Also in April 2013, the DOJ granted a fee-waiver request regarding a FOIA request for documents related to “national security letters” issued under the Electronic Communications Privacy Act. In August 2013, the FBI granted a fee-waiver request related to the same FOIA request issued to the DOJ. In June 2011, the DOJ National Security Division granted a fee waiver to the ACLU with respect to a request for documents relating to the interpretation and implementation of a section of the PATRIOT Act. In March 2009, the State Department granted a fee waiver to the ACLU with regard to a FOIA request for documents relating to the detention, interrogation, treatment, or prosecution of suspected terrorists. Likewise, in December 2008, the Department of Justice granted the ACLU a fee waiver with respect to the same request. In November 2006, the Department of Health and Human Services granted a fee waiver to the ACLU with regard to a FOIA request. In May 2005, the U.S. Department of Commerce granted a fee waiver to the ACLU with respect to its request for information regarding the radio-frequency identification chips in United States passports. In March 2005, the Department of State granted a fee waiver to the ACLU for a request regarding the use of immigration laws to exclude prominent non-citizen scholars and intellectuals from the country because of their political views, statements, or associations. In addition, the Department of Defense did not charge the ACLU fees associated with FOIA requests submitted by the ACLU in April 2007, June 2006, February 2006, and October 2003. The DOJ did not charge the ACLU fees associated with FOIA requests submitted by the ACLU in November 2007, December 2005, and December 2004. Finally, three separate agencies—the Federal Bureau of Investigation, the Office of Intelligence Policy and Review, and the DOJ Office of Information and Privacy—did not charge the ACLU fees associated with a FOIA request submitted by the ACLU in August 2002.

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Pursuant to applicable statutes and regulations, the ACLU expects a determination regarding expedited processing within 10 days. See 5 U.S.C. § 552(a)(6)(E)(ii); 6 C.F.R. § 5.5(e)(4).
If the Request is denied in whole or in part, we ask that you justify all deletions by reference to specific FOIA exemptions. We expect the release of all segregable portions of otherwise exempt material. We reserve the right to appeal a decision to withhold any information or deny a waiver of fees.
Thank you for your prompt attention to this matter. Please furnish the applicable records to:
ACLU Border Litigation Project c/o Mitra Ebadolahi P.O. Box 87131 San Diego, CA 92138-7131
I affirm that the information provided supporting the request for expedited processing is true and correct to the best of my knowledge and belief. See 5 U.S.C. § 552(a)(6)(E)(vi).

Respectfully,
Richard H. Morse Legal Director American Civil Liberties Union Foundation of Delaware 100 W. 10th Street, Suite 706 Wilmington, DE 19801
For the American Civil Liberties Unions and American Civil Liberties Union Foundations of Delaware, Maryland, Pennsylvania and Virginia
cc: Leslie Chambers Mehta, Esq., Legal Director, ACLU of Virginia Deborah A. Jeon, Esq., Legal Director, ACLU of Maryland Witold Walczak, Esq., Legal Director, ACLU of Pennsylvania

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UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

IN RE AMERICAN CIVIL LIBERTIES UNION FREEDOM OF INFORMATION ACT REQUESTS REGARDING EXECUTIVE ORDER 13769 ____________________________________/

MDL NO. 2786

MEMORANDUM OF PLAINTIFFS, 42 AMERICAN CIVIL LIBERTIES UNION AFFILIATES, IN OPPOSITION TO DEFENDANTS’ MOTION FOR TRANSFER
TO THE DISTRICT OF COLUMBIA FOR CONSOLIDATION
ORAL ARGUMENT REQUESTED

4814-8682-1704v.5 0050033-000045

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TABLE OF CONTENTS Page
I. INTRODUCTION ...............................................................................................................1 II. BACKGROUND .................................................................................................................2
A. Underlying Facts ......................................................................................................2 B. Procedural Background and Pending Proceedings ..................................................4 III. LEGAL STANDARD..........................................................................................................4 A. MDL Is Designed For Complex Or Fact-Intensive Cases. ......................................4 B. FOIA Litigation Must Be Promptly Resolved. ........................................................6 IV. THESE CASES DO NOT MEET THE DEMANDING STANDARD FOR MDL TREATMENT .....................................................................................................................7 A. Common Questions Of Fact, If Any Even Exist, Do Not Predominate
Over Questions Of Law And Unique Questions Of Fact. .......................................7 B. Any Common Legal Questions Are Illusory And Irrelevant.................................12 C. Transfer Would Impair, Not Advance, Convenience, Justice And
Efficiency. ..............................................................................................................14 D. Alternatives to Centralization Exist. ......................................................................17 E. If This Motion Is Granted, The Michigan Border Crossing Case Should
Not Be Consolidated With The Other Actions. .....................................................18 F. If this Motion Is Granted, The Cases Should Be Consolidated in the
Eastern District of Virginia, District of Maine or the Western District of Washington. ...........................................................................................................19 V. CONCLUSION..................................................................................................................20
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TABLE OF AUTHORITIES Page(s)
CASES
ACLU v. DOD, 2006 WL 1469418 (N.D. Cal. May 25, 2006) ...........................................................................7
Caldo Oil Co. v. Gulf Oil Co. (In re Petroleum Prods. Antitrust Litig.), 476 F. Supp. 455, 457 (J.P.M.L. 1979)....................................................................................15
Dept. of the Air Force v. Rose, 425 U.S. 352 (1976).................................................................................................................12
Edmonds v. F.B.I., Case No. 02-1294, 2002 WL 32539613 (D.D.C. Dec. 03, 2002)..............................................7
Edmonds v. FBI, 417 F.3d 1319 (D.C. Cir. 2005) .................................................................................................7
Elec. Privacy Info. Ctr. v. DOJ, 416 F. Supp. 2d 30 (D.D.C. 2006) .......................................................................................7, 16
Ferguson v. FBI, 722 F. Supp. 1137 (S.D.N.Y. 1989)...........................................................................................7
Gilmore v. Dep’t of Energy, 33 F. Supp. 2d 1184 (N.D. Cal. 1998) .......................................................................................6
In re Airline “Age of Employee” Emp’t Practices Litig., 483 F. Supp. 814 (J.P.M.L. 1980)..............................................................................................8
In re American Home Products Corp “Released Value” Claims Litigation, No. 333, 448 F. Supp. 276 (J.P.M.L. 1978) .............................................................................11
In re Ameriquest Mtg. Co. Lending Practices Litig., 408 F. Supp. 2d 1354 (J.P.M.L. 2005).....................................................................................20
In re Asbestos & Asbestos Insul. Mat. Prods. Liab. Litig., 431 F. Supp. 906 (J.P.M.L. 1977)......................................................................................11, 16
In re Best Buy Co., Inc., Cal. Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376 (J.P.M.L. 2011).......................................................................................5
In re BMW Reverse Trans. Prod. Liab. Litig., 543 F. Supp. 2d 1382 (J.P.M.L. 2008).....................................................................................17
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In re Cessna Aircraft Distributorship Antitrust Litig., 460 F. Supp. 159 (J.P.M.L. 1978)............................................................................................14
In re Church of Scientology Flag Serv. Org./IRS FOIA Litig., No. 892 (J.P.M.L. Sept. 4, 1991) .......................................................................................11, 14
In re Classicstar Mare Lease Litig., 528 F. Supp. 2d 1345 (J.P.M.L. 2007).....................................................................................19
In re Clean Water Rule, 140 F. Supp. 3d 1340 (J.P.M.L. 2015).....................................................................................12
In re Concrete Pipe, 302 F. Supp. 244 (J.P.M.L 1969).........................................................................................5, 19
In re Cybil Fisher Litig., 987 F. Supp. 1376 (J.P.M.L. 2013)..........................................................................................14
In re: Cymbalta (Duloxetine) Prod. Liab. Litig. (No. II), 138 F. Supp. 3d 1375 (J.P.M.L. 2015).....................................................................................17
In re Falstaff Brewing Corp. Antitrust Litig., 434 F. Supp. 1225 (J.P.M.L 1977).............................................................................................5
In re Freedom Magazine/IRS FOIA Litig., No. 910 (J.P.M.L. Feb. 12, 1992) ......................................................................................11, 12
In re G.D. Searle & Co. “Copper 7” IUD Prods. Liab. Litig., 483 F. Supp. 1343 (J.P.M.L. 1980)............................................................................................5
In re Garrison Diversion Unit Litig., 458 F. Supp. 223 (J.P.M.L. 1978)..............................................................................................8
In re: Home Depot U.S.A., Inc. Wage and Hour Litigation, 818 F. Supp. 2d 1376 (JPML 2011).........................................................................................14
In re Lumber Liquidators Chinese-Mfd. Flooring Prods. Mktg., Sales Practices & Prods. Liab. Litig., 109 F. Supp. 3d 1382 (J.P.M.L. 2015).....................................................................................20
In Re: Nat’l Ass’n for the Adv. of Multijurisdictional Practice Litig., 52 F. Supp. 3d 1377 (J.P.M.L. 2014).......................................................................................12
In re Ok. Ins. Holding Co. Act Litig., 464 F. Supp. 961 (J.P.M.L. 1979)............................................................................................12
In re Pharmacy Benefit Plan Administrator Pricing Litig., 206 F. Supp. 2d 1362 (J.P.M.L. 2002).....................................................................................11
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In re: Proton-Pump Inhibitor Prod. Liab. Litig., No. 2757 (J.P.M.L Feb 2, 2017) ..............................................................................................16
In re: Raymond Lee Org., Inc. Sec. Litig., 446 F. Supp. 1266 (JPML 1978)..............................................................................................14
In re Rite Aid Corp. and Wage & Hour Emp’t Practices Litig., 655 F. Supp. 2d 1376 (J.P.M.L. 2009).....................................................................................15
In Re: Samsung Galaxy Smartphone Mktg.& Sales Prac. Litig., MDL No. 2771.........................................................................................................................16
In re Shoulder Pain Pump-Chondrolysis Prods. Liab. Litig., 571 F. Supp. 2d 1367 (J.P.M.L. 2008).....................................................................................17
In re Sugar Indus. Antitrust Litig., 405 F. Supp. 1404 (J.P.M.L. 1975)..........................................................................................17
In Re: Townsend Farms Organic Anti-Oxidant Blend Prod. Liab. Litig., 24 F. Supp. 3d 1372 (J.P.M.L. 2014).........................................................................................8
In re: Transocean Ltd. Sec. Litig. (No. II), 753 F. Supp. 2d 1373 (J.P.M.L. 2010).....................................................................................16
Int’l Refugee Assis. Proj. v. Trump, -- F.3d --, 2017 WL 2273306 (4th Cir. May 25, 2017)..............................................................2
Keys v. Dep’t of Homeland Sec., 570 F. Supp. 2d 59 (D.D.C. 2008) ...........................................................................................15
Long v. IRS, 693 F.2d 907 (9th Cir. 1982) .....................................................................................................6
Martins v. USCIS, 962 F. Supp. 2d 1106 (N.D. Cal. 2013) .....................................................................................6
McGehee v. CIA, 697 F.2d 1095 (D.C. Cir. 1983) ...............................................................................................15
Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) .................................................................................................10
Smith v. Bayer Corp., 131 S. Ct. 2368 (2011) .............................................................................................................14
Taylor v. Sturgell, 553 U.S. 880 (2008).................................................................................................................13
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United States v. Philip Morris, Inc. (In re Tobacco/Gov’t Health Care Litig.), 76 F. Supp. 2d 5 (D.D.C. 1999) ...........................................................................................5, 14
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...................................................................................................2
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344 (D.C. Cir. 1983) ...............................................................................................10
Yonemoto v. VA, 686 F.3d 681 (9th Cir. 2012.......................................................................................................6
STATUTES 5 U.S.C.
§ 552(a)(4)(b).....................................................................................................................12, 19 § 552(a)(6)(A)(i) ..................................................................................................................6, 16 § 552(a)(6)(E)(i).........................................................................................................................7 § 552(a)(6)(E)(v)(II) ..................................................................................................................3 § 552(a)(8)(A)(i) ........................................................................................................................6 § 552(b)(1)(A)-(9)....................................................................................................................12 28 U.S.C. § 1407............................................................................................................................... passim § 1657(a) ....................................................................................................................................7 OTHER AUTHORITIES 19 C.F.R. § 103.5(d)(2), (g) ...........................................................................................................10 15 Charles A. Wright, et al., FEDERAL PRACTICE & PROCEDURE: JURISDICTION & RELATED MATTERS § 3862, 380, 407, 413 (2007).....................................................................5 House Report No. 1130, 90th Cong., 2d Sess. 4, reprinted in 1968 U.S. Code Cong. & Admin. News at 1898, 1901..............................................................................4, 5, 14
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Plaintiffs, affiliates of the American Civil Liberties Union (the “Affiliates”), oppose the “Motion for Transfer of Actions Pursuant to 28 U.S.C. § 1407 for Coordination or Consolidated Pretrial Proceedings” (“Transfer Motion”), filed by U.S. Customs and Border Protection (“Defendants” or “CBP”), a component of the U.S. Department of Homeland Security (“DHS”).
I. INTRODUCTION Plaintiffs in these 13 actions are ACLU Affiliates who submitted requests to obtain records from CBP under the Freedom of Information Act (“FOIA”). The requests were directed to CBP field offices and limited to local records, that exist within each separate district, related to implementation of President Trump’s January 27, 2017 Executive Order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” Exec. Order No. 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017) (the “E.O.”). Because each request expressly disclaimed any request for documents held in the District of Columbia, if there are any factual disputes – and the Affiliates do not anticipate any – those disputes will revolve around compliance within each local CBP field office, and whether it thoroughly searched for and produced relevant, nonexempt documents. If any case requires discovery – which is exceedingly rare in FOIA litigation – that discovery will occur after summary judgment (and only if Defendants fail to prove their searches were adequate) concerning local compliance obligations. Any facts related to CBP’s decision to coordinate records searches through agency headquarters – the only allegedly common facts CBP invokes (Memo. at 9-10) – are not likely to be disputed, but if they are, those disputes will not be complex. Granting consolidation and transfer would promote forum-shopping and delay, not justice. Indeed, Defendants’ decision to flout their FOIA obligations – refusing to produce a single document in every action except one or even suggest a production schedule, and delaying
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these FOIA cases by months through this Motion and concurrently-filed stay motions – suggests delay and obstruction is their motive.1 Across the Nation, federal judges have scrambled to resolve issues raised by the E.O., citizens have protested, and attorneys have offered services free of charge. E.g., Int’l Refugee Assis. Proj. v. Trump, -- F.3d --, 2017 WL 2273306 (4th Cir. May 25, 2017); Washington v. Trump, 847 F.3d 1151, 1156 (9th Cir. 2017). Yet, the government cannot be bothered to produce even the most non-controversial documents and, so far as the Affiliates can tell, has not even begun to search in most jurisdictions, despite FOIA’s mandate of prompt production. These actions are not complex, but they are exceedingly important. This Court should reject Defendants’ attempt to derail them through this misfit of a Motion.
The multiple ACLU Affiliates seeking local records are committed to collaborating and cooperating to reduce any duplication between the cases. However, if the Panel is inclined to grant the Motion, they request that the cases be transferred to the Eastern District of Virginia, the District of Maine or the Western District of Washington, in which an ACLU Affiliate lawsuit for local records is pending and which have court dockets with capacity to promptly resolve these cases. Transfer to any one would help expedite these matters, a requirement in FOIA litigation.
II. BACKGROUND A. Underlying Facts President Trump signed the E.O. on January 27, 2017. See Compl. ¶ 2.2 Among other things, the E.O. purported to halt refugee admissions and bar entrants to the United States from
1 In Texas, the CBP produced a “final” answer on April 18, 2017, consisting of two pages of highly redacted records. If CBP in fact only has two pages of responsive documents in Texas, and other jurisdictions are similar, plainly, these cases are not complex, and the compliance burden on the government will be minimal. For other jurisdictions, CBP sent a form letter on May 26, 2017, stating that CBP agrees to expeditious treatment and is searching for records, but not committing to, or even suggesting, a production schedule.
2 For general background information, the ACLU Affiliates refer to the first-filed Complaint, from the Northern District of California (“Compl.”). The other Complaints are referenced by their jurisdiction, e.g., “W.D. Wash. Compl.”
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seven predominantly Muslim countries. Compl. ¶ 4. News reports described Defendants’ implementation of the E.O. as “chaotic” and “total[ly] lack[ing] ... clarity and direction.” Id. ¶ 7 & n.3. Demonstrators and pro bono attorneys appeared in airports across the country by the thousands. As discussed below, different enforcement issues arose as local CBP officials in the various airports and border crossings struggled to implement the E.O. with no advance notice and little guidance. E.g., Compl. ¶ 8; see Section IV. A, infra. Within days, various judicial orders were entered barring implementation of portions of the E.O. Compl. ¶ 6.
Although the E.O. and a revised version issued March 6, 2017, remain enjoined, the public is still largely in the dark about CBP’s actions, including its disastrous local implementation at various airports across the Nation, the instructions given to local CBP officials at those airports, and the basis for these officials’ interpretation of the order locally. On February 2, 2017, Plaintiffs – ACLU Affiliates in states with ports of entry that were heavily impacted by the E.O. – submitted eighteen separate FOIA requests seeking records related to the local interpretation and enforcement of the E.O. Compl. ¶¶ 20-22 & Ex. A. In each of these cases, local ACLU Affiliates seek local information specific to one local CBP Field Office, specifically, information held by local CBP employees and offices regarding CBP’s local interpretation and enforcement of the E.O. at the local international airports (and in Michigan’s case, the local land border crossings), and the corresponding port of entry offices and regional field operations office, specified in each underlying FOIA request. Id. ¶ 21 & Ex. A at 8. None of the ACLU Affiliates seeks any information held in the records of CBP Headquarters. Id.
The requests sought expedited processing, on the ground that there is a “compelling need” for these records under 5 U.S.C. § 552(a)(6)(E)(v)(II) because the records are “urgen[tly]” needed by an organization primarily engaged in disseminating information “to inform the public
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concerning actual or alleged Federal Government activity.” Compl. ¶ 23 & Ex. A at 9. Except for Texas, CBP has not indicated whether, or when, it will comply with the FOIA requests. Id. ¶ 30. To Plaintiffs’ knowledge, CBP’s local field offices have yet to disclose any of the instructions its local officials were provided with respect to the Executive Order or any record explaining its interpretation of the Order.
B. Procedural Background and Pending Proceedings Having received no response from CBP within the period allotted by the statute, the Affiliates within the jurisdiction of the San Francisco CBP Field Office – the ACLU of Northern California, the ACLU of Hawaii, and the ACLU of Utah – filed a Complaint on April 10, 2017; two days later, Affiliates within the jurisdictions of twelve additional CBP Field Offices also filed suits. Although the National ACLU had filed a FOIA request for CBP Headquarters records on February 2, no lawsuit has been filed seeking the records specified in that request, which differ from the local records sought in each of the pending thirteen actions here at issue. The Complaints each allege that Defendants violated FOIA by failing to (i) produce responsive records, (ii) state whether they will make records available, and (iii) respond to the request for expedited processing. Compl. ¶¶ 34-44. However, each Complaint addresses the unique facts specific to the targeted local CBP Field Office, as CBP officials at local international airports scrambled to enforce the E.O. on virtually no notice. Section IV. A, infra. On May 8, Defendants filed a motion with the JPML, seeking transfer to the District of Columbia in order to coordinate pretrial proceedings in the thirteen FOIA lawsuits.
III. LEGAL STANDARD A. MDL Is Designed For Complex Or Fact-Intensive Cases. Congress adopted the MDL process for the rare case that is complex enough to justify the unusual procedure. As one House Report explained, “[i]t is possible … that a few exceptional
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cases may share unusually complex questions of fact, or that many complex cases may share a few questions of fact. In either of these instances substantial benefit may accrue to courts and litigants through consolidated or coordinated pretrial proceedings.” House Rep. No. 1130, 90th Cong., 2d Sess. 4, reprinted in 1968 U.S. Code Cong. & Admin. News (“H.R. 1130”) at 1898, 1901 (emphasis added). The Panel has adhered to the intentionally narrow reach of Section 1407, making clear that “centralization under Section 1407 should be the last solution after considered review of all other options.” In re Best Buy Co., Inc., Cal. Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011) (emphasis added).
Accordingly this Panel may transfer civil actions to any district for coordinated or consolidated pretrial proceedings only if the moving party bears the heavy burden of demonstrating that: (1) there are common questions of fact; (2) consolidation will “serve the convenience of the parties and witnesses”; and (3) “the just and efficient conduct of the actions will be served” by transfer and centralization. 28 U.S.C. § 1407; see 15 Charles A. Wright, et al., FEDERAL PRACTICE & PROCEDURE: JURISDICTION & RELATED MATTERS § 3862, 380, 407, 413 (2007); United States v. Philip Morris, Inc. (In re Tobacco/Gov’t Health Care Litig.), 76 F. Supp. 2d 5, 7 (D.D.C. 1999); In re G.D. Searle & Co. “Copper 7” IUD Prods. Liab. Litig., 483 F. Supp. 1343, 1345 (J.P.M.L. 1980). Common questions of facts are not enough to justify transfer; justice and efficiency must also be “sufficiently served to justify the necessary inconveniences of transfer and remand.” In re Concrete Pipe, 302 F. Supp. 244, 254 (J.P.M.L 1969). The Panel must weigh the interests of all plaintiffs and defendants. See In re Falstaff Brewing Corp. Antitrust Litig., 434 F. Supp. 1225, 1229 (J.P.M.L 1977). If transfer and consolidation do not serve all statutory objectives, the request should be denied. In re Concrete Pipe, 302 F. Supp. at 255 (“If we are to order transfer, the statute requires us to determine that
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the answer to that question, including each of its four elements, is in the affirmative.”). B. FOIA Litigation Must Be Promptly Resolved. In its decades-long history, the Panel has considered only two cases addressing FOIA
litigation – both of them resolved decades ago. For good reason. MDL transfer makes no sense in FOIA litigation. FOIA’s “core purpose is to inform citizens about what their government is up to” so as to “ensure an informed citizenry,” which is “vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” Yonemoto v. VA, 686 F.3d 681, 687 (9th Cir. 2012) (citation omitted), overruled in part on other grounds by Animal Legal Def. Fund v. FDA, 836 F.3d 987 (9th Cir. 2016) (en banc). Because “disclosure, not secrecy, is the dominant objective of the Act,” FOIA presumes all agency records are public and places the burden on the government to justify withholding based on specific exemptions that must be narrowly construed. Id. at 687-88 (quote omitted); see 5 U.S.C. § 552(a)(8)(A)(i). As discussed below, FOIA requires compliance by local agencies, as established by declarations from compliance officers in that jurisdiction, rendering factual disputes, and discovery into those disputes, uniquely local. Sections IV. A, IV. C, infra.
The statute advances the policy of prompt disclosure by requiring agencies to respond to requests within 20 days, absent “unusual” or “exceptional” circumstances. Id. § 552(a)(6)(A)(i). “[U]nreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent these abuses.” Long v. IRS, 693 F.2d 907, 910 (9th Cir. 1982). Legislative history shows that “Congress intentionally set harsh time limits for agencies to respond to FOIA requests because it recognized that information is often useful only if it is timely.” Gilmore v. Dep’t of Energy, 33 F. Supp. 2d 1184, 1189 (N.D. Cal. 1998).3
3 See also Martins v. USCIS, 962 F. Supp. 2d 1106, 1127 (N.D. Cal. 2013) (recognizing “expeditious release of documents … furthers FOIA’s core purpose of shed[ding] light on an
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Agencies must expedite processing and respond “as soon as practicable” where, as here,
the requesters show “urgency to inform the public concerning actual or alleged Federal
Government activity.” Id. § 552(a)(6)(E)(i). “[E]xpedited processing of a FOIA request is a
statutory right, not just a matter of court procedure.” Edmonds v. FBI, 417 F.3d 1319, 1323
(D.C. Cir. 2005). The public has a particularly strong interest in the swift adjudication of cases
like these, which are the subject of “widespread and exceptional media interest,” and deal with
“public confidence” in government institutions. Edmonds v. F.B.I., Case No. 02-1294, 2002 WL
32539613 (D.D.C. Dec. 03, 2002). As one court explained, “President Bush [] invited
meaningful debate about the warrantless surveillance program ... [t]hat can only occur if DOJ
processes its FOIA requests in a timely fashion and releases the information sought.” Elec.
Privacy Info. Ctr. v. DOJ, 416 F. Supp. 2d 30, 41 (D.D.C. 2006).4 Here, while CBP has agreed
in principle that these FOIA requests must be expedited (see footnote 1, supra), this Motion,
combined with its pending stay motions, seek only delay.
IV. THESE CASES DO NOT MEET THE DEMANDING STANDARD FOR MDL TREATMENT A. Common Questions Of Fact, If Any Even Exist, Do Not Predominate Over Questions Of Law And Unique Questions Of Fact.
Defendants carry a heavy burden to show that common factual questions exist, and that
agency’s performance”) (quotation omitted). The Priorities Act also furthers this purpose, by expressly including FOIA litigation in its mandate that district courts “expedite the consideration of any action” upon a showing of “good cause.” 28 U.S.C. § 1657(a); see also Ferguson v. FBI, 722 F. Supp. 1137, 1144 (S.D.N.Y. 1989) (“Prompt review of decisions denying access to government information is critical to FOIA users and to the purposes of the Act.”) (quoting legislative history). This is because “the value of disclosed information is transitory. If this information is not released in a timely manner, it may be of no value at all.” H.R. Rep. 98-985, 5-6, 1984 U.S.C.C.A.N. 5779, 5783-84.
4 Likewise, in ACLU v. DOD, 2006 WL 1469418 (N.D. Cal. May 25, 2006), the court held the ACLU had an urgent need for records about a government program to gather information on political protesters because “[g]etting the requested information quickly might be valuable to would-be protesters and opposition groups” to “help them decide how to express their political viewpoints,” and, given the pending controversy over the program, delay also would harm “the media’s interest in quickly disseminating breaking, general-interest news.” Id. at *7-8.
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they are “sufficiently complex [such] that accompanying discovery will be so time-consuming as to further the purposes of Section 1407.” In re Garrison Diversion Unit Litig., 458 F. Supp. 223, 225 (J.P.M.L. 1978) (emphasis added). Consolidation and transfer are not justified where individual, rather than common, factual questions predominate, and common questions between the actions, if any, will be mainly legal questions. See In re Airline “Age of Employee” Emp’t Practices Litig., 483 F. Supp. 814, 817 (J.P.M.L. 1980).
Defendants’ brief in support of their Transfer Motion shows this Section 1407(a) requirement is not satisfied. Memo. at 9-10. Although they claim that common questions of fact exist, their brief does not identify a single factual dispute (or even potential dispute). See In Re: Townsend Farms Organic Anti-Oxidant Blend Prod. Liab. Litig., 24 F. Supp. 3d 1372 (J.P.M.L. 2014) (denying transfer in part because “factual core appears to be largely undisputed”). Defendants vaguely invoke CBP’s unilateral decision to “coordinate an initial search for records” through its headquarters, and speculate about issues that may arise in the course of that search. Memo. at 2, 9. They argue that the FOIA requests are virtually identical, but they ignore a key fact – each request makes clear that it is seeking only local records, and expressly disclaims any request for records housed at CBP’s headquarters in the District of Columbia:
To reiterate: The ACLU seeks information regarding CBP’s interpretation and enforcement of the Executive order at the Local International Airports, not information held in the records of CBP Headquarters. Specifically, the ACLU seeks records held by CBP employees and offices at the Local International Airports, and the corresponding Port of entry Offices and Regional Field Operations Office. Compl. Ex. 1 at 9 (emphasis in original). Although the FOIA requests use the same language to request documents, the similarities end there. These cases involve 42 different plaintiffs seeking different records, represented by 46 different attorneys, including 21 local counsel from 12 local firms. Each ACLU Affiliate
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wants to obtain local records regarding the actions of government officials who live and work in
their communities. Allegations from a few of the complaints highlight the factual differences
between events in different jurisdictions, and thus the documents that should be available locally:
 CBP Detroit Field Office: The Michigan litigation concerns two separate FOIAS – one concerning events at Detroit Metropolitan Airport, and one concerning events at U.S./Canada border crossings in Michigan. Detroit, which is located on the border, has the highest number of residents per capita from the seven countries barred under the E.O., and also has the two busiest land crossings with Canada (the Ambassador Bridge and the Detroit-Windsor Tunnel). Conditions at the Michigan land ports of entry – which affected commuters not just international travelers – were chaotic, with CBP agents reportedly telling people that the “[didn’t] know what’s going on.” The Michigan ACLU seeks information on incidents like that in Port Huron, where a U.S. citizen and legal permanent resident were detained at the Canadian border. E.D. Mich. Compl. ¶¶ 11-16.
 CBP Atlanta Field Office: In the Northern District of Georgia, at least eleven people were detained, including a 76-year-old with a heart condition and glaucoma, and a CNN producer. This ACLU Affiliate understands that when Georgia Congressmen John Lewis and Hank Johnson arrived at the Hartsfield-Jackson Atlanta International Airport on January 28, 2017 to ascertain how many people were being detained, immigration officials refused to provide any information. It was not until after the Congressman refused to leave the airport and sat with waiting family members that immigration officials met privately with him. After the meeting, Congressman Lewis reported that there were no written protocols for enforcing the Executive Order. N.D. Ga. Compl. ¶¶ 10-15.
 CBP Boston Field Office: In Maine, scholars and academics from Boston-area institutions were denied entry into the United States. Doctors from New England hospitals and patients seeking medical care were delayed, denied entry, or subjected to unnecessary anguish. Me. Compl. ¶ 10.
 CBP Los Angeles Regional Field Office: In the Central District of California, which is home to Los Angeles International Airport – one of the busiest airports in the nation – CBP agents detained (1) a lawful permanent resident from Iran who was scheduled to be sworn in as a U.S. citizen in February, and who was traveling with her U.S. citizen infant son; (2) an Iranian citizen with a valid U.S. student visa, whom CBP removed from the country nearly two hours after a federal judge had ordered the government to halt all removals immediately; and (3) an Iranian citizen with a valid U.S. visa that had been granted as a result of a petition filed by his U.S. citizen son. Additionally, upon information and belief, an 80-year-old insulin-dependent Iranian diabetic with a heart condition was detained with her husband for nearly twenty-four hours after the couple arrived at Los Angeles International Airport to visit their son, a lawful permanent resident; the couple had valid tourist visas. C.D. Cal. Compl. ¶¶ 10-13.
 CBP Houston Field Office: In Texas, travelers were pressured into signing papers to voluntarily withdraw their admission into the United States. S.D. Tex. Compl. ¶ 11-16.
 CBP Baltimore Field Office: In the Eastern District of Virginia, Yemeni individuals flying
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to Dulles with valid, government-issued visas had their visas cancelled and were refused entry into the United States. After several courts entered orders that, among other things, required that detained travelers have access to attorneys, CBP officials at Dulles appeared to ignore the orders. Two Syrian families with valid immigrant visas arrived at the Philadelphia International Airport in Pennsylvania to join family and were threatened with imprisonment and a 5-year ban on travel to the U.S., and so bought tickets to return to Qatar (resulting in a need for medical intervention for one of the patients). Lawyers, as well as local, state and federal politicians were denied access to detainees, some of whom were transferred to local jails to spend the night. E.D. Va. Compl. ¶¶ 10-16.5
As evident, each of the pending FOIA requests focuses on the factual circumstances
surrounding local implementation of the E.O. in a particular CBP Field Office. As litigation
proceeds, one legal question that will need resolution is the reasonableness of CBP’s searches for
records held in the relevant local Field Office, with reference to relevant events at the local
international airport(s) within that Field Office’s jurisdiction (or, for the Michigan FOIA action,
at the local land border crossings).
CBP’s own regulations require FOIA requesters who seek records from CBP field offices
to serve their FOIA request on the field office itself, not CBP headquarters, and require CBP
officers to attempt to locate any such local records upon receipt of a request. 19 C.F.R. § 103.5(d)(2), (g). For each of these pending FOIA cases, CBP’s declarations attesting to the
adequacy of the search and the pace of disclosure in the various jurisdictions necessarily will be
submitted by employees within those respective jurisdictions, because only they will be able to
attest that the search was adequately performed. Indeed, Weisberg v. U.S. Dep’t of Justice, 705
F.2d 1344 (D.C. Cir. 1983), supports the ACLU Affiliates. The requirements enunciated there
make clear that local facts will predominate on the single factual issue presented – adequacy of
the search. Id. at 1351. See also Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015) (“[t]his
5 Due to space limitations, the ACLU Affiliates are not able to identify all of the disparate facts in the various cases. If the Panel needs additional information, the Affiliates request permission to submit a supplemental brief.
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court applies a reasonableness standard to determine whether an agency performed an adequate
search, …, and our review is heavily fact-dependent ….” (citations omitted)). Because unique factual questions will predominate, transfer is not warranted.6
Defendants try to avoid this result by invoking their decision to coordinate compliance through
CBP headquarters. But this is meaningless. Whatever CBP’s internal procedures, the question
in each of these pending FOIA actions will be whether the local office conducted the requisite
search. Section III. B, supra. Thus, while any intra-agency communications (which presumably
will be electronic) may provide guidance regarding that search, any factual disputes will concern
the application of that guidance within each individual CBP Field Office, and whether the
resulting search suffices.
Finally, neither case invoked by Defendants supports their request. Memo. at 2, 11-12,
citing In re Church of Scientology Flag Serv. Org./IRS FOIA Litig., No. 892 (J.P.M.L. Sept. 4,
1991) (“Church of Scientology”); In re Freedom Magazine/IRS FOIA Litig., No. 910 (J.P.M.L. Feb. 12, 1992) (“Freedom Magazine”). These decades-old decisions involved FOIA requests to
the IRS seeking specific records, regardless of location, related to the Church of Scientology.
The Panel agreed to transfer the 30 cases at issue in Church of Scientology to a Florida venue
because 20 of the 30 cases were pending there and “every FOIA request in the litigation was
made upon the IRS office in Jacksonville in that district, and accordingly relevant IRS witnesses
and documents will be found there.” Order at 2. Here, in contrast, the 13 FOIA lawsuits were
6 See, e.g., In re American Home Products Corp “Released Value” Claims Litigation, No. 333, 448 F. Supp. 276, 278 (J.P.M.L. 1978) (“The factual issues presented are primarily, if not entirely, unique questions pertaining to the numerous distinct shipments involved in each action.”); In re Pharmacy Benefit Plan Administrator Pricing Litig., 206 F. Supp. 2d 1362 (J.P.M.L. 2002) (denying § 1407 transfer on five class actions, even where they shared common legal questions and a few factual questions, because unique factual questions predominated); In re Asbestos & Asbestos Insul. Mat. Prods. Liab. Litig., 431 F. Supp. 906, 910 (J.P.M.L. 1977) (“Many factual questions unique to each [class] action ... already pending in a single district clearly predominate, and therefore transfer is unwarranted.”).
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filed in 13 different districts, none of which is Defendants’ preferred district. In Freedom Magazine, the Panel approved transfer of 8 FOIA cases filed by a single plaintiff because “many relevant witnesses and documents” were likely to be found in the transferee district and a constituent action sought records located there. Order at 2. Here, however, the FOIA requests are explicit in disclaiming any request for documents in the District of Columbia.
Defendants have not met their heavy burden to disrupt these proceedings by transferring them for consolidation. The Panel should deny Defendants’ Motion in its entirety.
B. Any Common Legal Questions Are Illusory And Irrelevant. CBP suggests that common legal issues may arise if they invoke exemptions from disclosure under FOIA. E.g., Memo. at 2; see 5 U.S.C. § 552(b)(1)(A)-(9). These exemptions protect defined categories of information and must be narrowly construed. Dept. of the Air Force v. Rose, 425 U.S. 352, 361 (1976). Unless a record falls within one of these well-defined categories, the government will bear the burden of proving that each particular record falls within a FOIA exemption. 5 U.S.C. § 552(a)(4)(b). Although it is impossible to know whether Defendants will raise the same claimed exemptions – because each action seeks different records and Defendants have only responded in one case – it would not be relevant even if they did. This Panel repeatedly has held that consolidation and transfer are not justified by the existence of common legal issues. Thus, in In Re: Nat’l Ass’n for the Adv. of Multijurisdictional Practice Litig., 52 F. Supp. 3d 1377, 1378 (J.P.M.L. 2014), the Panel explained that “‘[m]erely to avoid [different] federal courts having to decide the same issue is, by itself, usually not sufficient to justify Section 1407 centralization.” (Citations omitted.)7 In In re Clean Water
7 See also, e.g., In re Ok. Ins. Holding Co. Act Litig., 464 F. Supp. 961, 965 (J.P.M.L. 1979) (“while the purportedly common questions listed by movants ... may involve some subsidiary factual inquiries, ... the legal aspects of these questions clearly predominate” and thus transfer is denied).
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Rule, 140 F. Supp. 3d 1340, 1341 (J.P.M.L. 2015), for example, the Panel denied transfer of actions challenging a rule promulgated by the EPA because discovery would be minimal and the actions would turn on questions of law.
Even if Defendants invoked similar exemptions, it still would not support centralization because the exemptions will apply differently, depending on the facts of the case. The cases seek records related to enforcement of the E.O. at different airports, with some cases addressing orders apparently violated by the CBP, others addressing denial of counsel and others addressing conduct leading to physical injury, among other things. In addition, the Michigan case requests records related to implementation of the E.O. at the U.S./Canada land border. Section A, supra. These disparate facts will drive the legal question of whether an exemption applies to a particular record, and must be resolved on a case-by-case basis. Thus, even if Defendants invoke a particular exemption in every case, the disparate facts still will predominate.
Defendants’ reliance on Taylor v. Sturgell, 553 U.S. 880 (2008), is particularly misplaced. Memo. at 12. There, the United States Supreme Court refused to bar the FOIA action of an individual who sought the same records as his friend, who had unsuccessfully attempted to acquire the records in a previous FOIA action. Overturning lower court decisions barring the FOIA suit, the Court embraced the individualized nature of relief under FOIA, stating that the “Act, however, instructs agencies receiving FOIA requests to make the information available not to the public at large, but rather to the ‘person’ making the request.” Id. at 885, 902. “[A] successful FOIA action results in a grant of relief to the individual plaintiff, not a decree benefiting the public at large.” Id. at 902-903. Accordingly, the Court found that Congress never meant to preclude successive actions seeking the same records, undercutting Defendants’ argument that any common legal questions must be resolved in the same way. See
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also Smith v. Bayer Corp., 131 S. Ct. 2368, 2381 (2011) (allowing a “series of repetitive lawsuits demanding the selfsame documents” although “the payoff in a single successful FOIA suit – disclosure of documents to the public – could ‘trum[p]’ or ‘subsum[e]’ all prior losses”). Given this clear law, Defendants’ attempt to maneuver these cases to the District of Columbia, in the hope that they will obtain a single decision rejecting all of them, should be flatly rejected.
C. Transfer Would Impair, Not Advance, Convenience, Justice And Efficiency. The Panel has emphasized that the mere presence of common issues of fact is not sufficient to justify transfer in the absence of a showing that transfer will be more convenient for parties and witnesses and will promote the just and efficient conduct of the action. See In re Cessna Aircraft Distributorship Antitrust Litig., 460 F. Supp. 159, 161-62 (J.P.M.L. 1978).8 Thus, even if Defendants had identified sufficient common factual questions, the Motion should be denied because consolidation and transfer would not serve the Section 1407 statutory objectives of convenience, efficiency and justice. As the Panel held in In re Cybil Fisher Litig., 987 F. Supp. 1376 (J.P.M.L. 2013), centralization is not warranted in cases like this one, that “are generally summary in nature.” Defendants recognize, as they must, that discovery is rare in FOIA litigation. Memo. at 12, 16 n.8. Yet, Defendants fail to acknowledge the impact of this fact on their Motion. Because reducing discovery burdens is a primary reason for transfer and consolidation under MDL (H.R. 90-1130 at 1900), the Panel rarely orders transfer if discovery is not anticipated.9 Rather than the decades-old Scientology cases that Defendants invoke, the Affiliates are not aware of a single case granting transfer where the parties either have completed or do not anticipate discovery.
8 See also United States v. Philip Morris, Inc, 76 F. Supp. 2d at 8 (holding that this is the most important factor in the Panel’s transfer decision).
9 See, e.g., In re: Home Depot U.S.A., Inc. Wage and Hour Litigation, 818 F. Supp. 2d 1376 (JPML 2011); In re: Raymond Lee Org., Inc. Sec. Litig., 446 F. Supp. 1266 (JPML 1978).
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Moreover, where it is clear that any discovery would require an individualized, factintensive inquiry, consolidation should be denied. In re Rite Aid Corp. and Wage & Hour Emp’t Practices Litig., 655 F. Supp. 2d 1376 (J.P.M.L. 2009) (centralization would not further the just and efficient conduct of the litigation, since discovery was likely to require an individualized, factual inquiry into the job duties performed by each employee).10 Here, any discovery that would arise would be uniquely local and tailored, relating to the adequacy of the search for and disclosure of the specific records that may exist in each specific jurisdiction. Defendants’ unilateral decision to process these disparate requests through headquarters is not required by FOIA – indeed, it is arguably contrary to FOIA’s requirement that the government expeditiously search for and disclose documents.11 In any event, CBP’s alleged internal agency mechanics are certainly insufficient to justify the extraordinary relief Defendants seek with this Motion.
The need for prompt resolution is particularly acute in these cases. The records sought involve an Executive Order that has been the subject of substantial media coverage and is a source of ongoing public debate. Plaintiffs sought expedited processing of their FOIA requests in order to provide the public with information about how the CBP read and implemented the E.O. in various local international airports and border crossings across the country. See Compl. ¶¶ 23-26. This has been, and continues to be, a matter of pressing public concern. Id. ¶¶ 5-12. As noted above and in each Complaint, CBP’s local implementation of the Executive Order resulted in mass protests, widespread media coverage, calls for action by elected officials, and extensive litigation. Id. Although the E.O. itself is on hold, the legal and public policy debates
10 See also Caldo Oil Co. v. Gulf Oil Co. (In re Petroleum Prods. Antitrust Litig.), 476 F. Supp. 455, 457 (J.P.M.L. 1979) (refusing to consolidate case involving unique discovery).
11 Delayed, post-suit referral is improper. See Keys v. Dep’t of Homeland Sec., 570 F. Supp. 2d 59, 70 (D.D.C. 2008) (referral was not prompt and significantly delayed resolution of FOIA request); McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983) (“when an agency receives a FOIA request for “agency records” in its possession, it must take responsibility for processing the request”).
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surrounding the propriety and mechanics of CBP’s local implementation thereof remain very much alive, including in each of the Districts in which these separate proceedings were filed.
Defendants’ request to transfer these cases to the District of Columbia will only delay them, which is squarely at odds with FOIA’s purpose and the ACLU Affiliates’ statutory right to expedited access. The ACLU Affiliates requested these records on February 2, 2017, four months ago. Although FOIA requires compliance within 20 days (5 U.S.C. § 552(a)(6)(A)(i)), Defendants have not produced a single document except the paltry production in Texas, nor have they suggested a production schedule in the other actions. By the time this Motion is heard and resolved, six full months will have passed since the FOIA requests were submitted. The Panel should not delay this matter any longer. The ACLU Affiliates and the public have an urgent need for the records at issue, so that their members, media organizations, community groups, and ordinary citizens can have the information necessary to participate in the ongoing debate over the E.O. at a time when they can still influence public policy. See EPIC, 416 F. Supp. 2d at 42.
Further, “the proponent of centralization bears” an even “heavier burden to demonstrate that centralization is appropriate” where, as here, “only a minimal number of actions are involved.” See In re: Transocean Ltd. Sec. Litig. (No. II), 753 F. Supp. 2d 1373, 1374 (J.P.M.L. 2010); see also In Re: Samsung Galaxy Smartphone Mktg.& Sales Prac. Litig., MDL No. 2771 (denying consolidation of 8 actions). In addition, the number of cases here is small, and they are not complex. See In re: Proton-Pump Inhibitor Prod. Liab. Litig., No. 2757 at 3 (J.P.M.L Feb 2, 2017) (denying motion to centralize 15 actions and 24 tag-alongs). Moreover, the ACLU Affiliates all oppose consolidation and transfer, which should weigh heavily against granting Defendants’ Motion. See In re Asbestos & Asbestos Insul. Material Prod. Liab. Litig., 431 F. Supp. 906, 910 (J.P.M.L. 1977) (“[t]he virtually unanimous opposition of the parties to transfer”
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is “a very persuasive factor”). Transfer would not promote the objectives of Section 1407. If discovery in a handful of
jurisdictions happens to become necessary, the transferee court would be required to coordinate discovery into individualized questions of fact regarding Defendants’ compliance in distant jurisdictions – potentially delaying other actions, with no similar issues, while it resolves those disputes. Transfer also would be inconvenient to the parties and any potential witnesses. Each case has counsel within its jurisdiction, where any witnesses and discovery potentially relevant to compliance will be located. See In re Sugar Indus. Antitrust Litig., 405 F. Supp. 1404, 1406 (J.P.M.L. 1975) (severing defendant because “on balance the convenience of parties and witnesses will be best served”). Defendants’ attempt to force the ACLU Affiliates to litigate in a district of their choosing, although no record or relevant witnesses can be found there, and most of the cases are on the other side of the country, contravenes the objectives of justice.
D. Alternatives to Centralization Exist. Transfer is particularly inappropriate here because the benefits of centralization can be achieved through informal coordination. In re Shoulder Pain Pump-Chondrolysis Prods. Liab. Litig., 571 F. Supp. 2d 1367, 1368 (J.P.M.L. 2008) (“parties can avail themselves of alternatives to Section 1407 transfer to minimize whatever possibilities there might be of duplicative discovery and/or inconsistent pretrial rulings”); accord In re BMW Reverse Trans. Prod. Liab. Litig., 543 F. Supp. 2d 1382 (J.P.M.L. 2008). As evidenced by this consolidated Opposition, coordination already is occurring amongst the ACLU Affiliates. This is a persuasive factor where counsel overlap or already are coordinating their efforts. See In re: Cymbalta (Duloxetine) Prod. Liab. Litig. (No. II), 138 F. Supp. 3d 1375, 1377 (J.P.M.L. 2015) (denying centralization of 41 actions in part because informal coordination and cooperation remained practicable). Counsel commit to continuing to make every effort possible to minimize any
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duplication and reduce inefficiencies.
E. If This Motion Is Granted, The Michigan Border Crossing Case Should Not Be Consolidated With The Other Actions.
The Michigan action, which concerns not just implementation of the E.O. at the Detroit
Metro Airport, but also implementation at Michigan’s land border crossings with Canada, should in no event be consolidated.12 As suggested by the Michigan ACLU’s submission of two
separate FOIAs, Michigan’s situation is particularly unique. E.D. Mich. Compl. ¶ 1; see id.
¶¶ 10-18. The metro Detroit region has the highest number of residents per capita from the
seven countries barred under the E.O., and is one of the primary locations for resettlement of Syrian refugees.13 Moreover, not only is Michigan’s Arab-American population concentrated right on the land border with Canada,14 but the border crossings in the Detroit region – the
Ambassador Bridge and the Detroit Windsor Tunnel – are the two busiest U.S./Canadian land
crossings in the country. E.D. Mich. Compl. ¶ 15 The Michigan-Canada border is so close that
it is common for people, including people from the banned countries residing in Canada, to commute to work or school from Windsor to Detroit daily during the week.15
The implementation of the E.O. at Michigan’s land borders thus raises unique local
issues, such as how the E.O. was applied to commuters or individuals who were in Canada to
shop or dine when the E.O. went into effect. Given that the records on the Canada/Michigan
12 The ACLU of Michigan will more fully set out the distinctiveness of the Michigan litigation in its forthcoming response (due June 2, 2017) to the government’s motion to stay proceedings in the Eastern District of Michigan, and will file a copy of that response with this Panel.
13 George Hunter, Number of Refugees Coming to Michigan Expected to Climb, DET. NEWS, March 19, 2016, available at http://www.detroitnews.com/story/news/local/oaklandcounty/2016/03/19/refugees-michigan-recent-high/82031954/ (visited May 30, 2017).
14 Dearborn, Michigan has the highest percentage of Muslims in the country, U.S. DEPT. OF COM., THE ARAB POPULATION: 2000-CENSUS BRIEF, U.S. CENSUS BUREAU (May 22, 2017), available at https://www.census.gov/prod/2003pubs/c2kbr-23.pdf (visited May 30, 2017).
15 Lauren Hayes, Michigan/Windsor Cross Border Employment, 5 J. FOR GLOBAL BUS. AND COMMUNITY 2, available at http://jgbc.fiu.edu/files/journals/2/articles/109/public/109-587-1PB.pdf (visited May 30, 2017).
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land border are unlike any other local records sought, the Michigan litigation should not be consolidated.
F. If this Motion Is Granted, The Cases Should Be Consolidated in the Eastern District of Virginia, District of Maine or the Western District of Washington.
Defendants argue for transfer to the District of Columbia, even though not a single case is pending there and the responsive records are not located there, because they have chosen to “coordinate” their response through their headquarters. Memo. at 13. But the parties cannot, through their voluntary conduct, dictate the venue. See In re Concrete Pipe, 302 F. Supp. 244, 254-55 (J.P.M.L. 1969) (considering whether transfer would serve any party’s ulterior motive of forum-shopping). It is telling that Defendants do not discuss the District of Columbia docket conditions. In light of the type of cases filed there and the burdens imposed by those cases, the District of Columbia processes cases slowly, with average time from filing to trial more than 40 months, and 12.5% of its cases more than three years old.16 Given the mandate for prompt resolution of FOIA cases, the District of Columbia is not an acceptable choice for these cases.
As Defendants acknowledge (Memo. at 14), venue is appropriate in “the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated,” as well as the District of Columbia. 5 U.S.C. § 552(a)(4)(B). If the Panel grants the Motion, the cases should be transferred to the Eastern District of Virginia, in which one of the cases is pending, and which efficiently manages docket. That District has an average of 317 cases per judge, the median time from filing to disposition is a mere 5.2 months, with a median time to trial of only 11.1 months, and only 3.5% of its cases are more than three years old. In re Classicstar Mare Lease Litig., 528 F. Supp. 2d 1345, 1347 (J.P.M.L. 2007) (“[T]he district’s
16 See “United States District Courts – National Judicial Caseload Profile,” available at http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0630.2016.pdf (visited May 25, 2017).
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general docket conditions permit us to make the Section 1407 assignment knowing that the court has the resources available to manage this litigation”). The Judge in the pending FOIA case, the Hon. Leonie M. Brinkema, has no MDL proceedings assigned to her. See, e.g., In re Lumber Liquidators Chinese-Mfd. Flooring Prods. Mktg., Sales Practices & Prods. Liab. Litig., 109 F. Supp. 3d 1382, 1383 (J.P.M.L. 2015) (“Centralization ... allows us to assign this litigation to a district to which we have transferred relatively few MDLs.”). It also is easily accessible, located in Alexandria, Virginia, a mere 9.1 miles from CBP Headquarters, and with three major airports and non-stop flights from most jurisdictions involved here, and of course conveniently located for defense counsel. See In re Ameriquest Mtg. Co. Lending Practices Litig., 408 F. Supp. 2d 1354, 1355 (J.P.M.L. 2005) (transferring cases to a “geographically central district [that] will be a convenient location for a litigation already nationwide in scope”). Transfer to the Eastern District of Virginia would further the goals of expedited relief in FOIA actions.
Alternatively, the Districts of Maine or Western Washington both would be superior choices to the District of Columbia. Maine has an average pending caseload of only 219 cases per judge, a median time of 6.3 months from filing to disposition in civil cases, and only 1.5% of its civil cases are more than 3 years old. It has no MDL proceedings pending in the District. Western Washington has an average pending caseload of only 400 cases per judge, a median time in civil cases of 6.5 months from filing to disposition and 17.2 months from filing to trial, and only 3% of its cases are more than 3 years old. It also has no MDL proceedings pending. In addition, because 6 of the 13 FOIA cases are pending in the Ninth Circuit Court of Appeals, Western Washington would be a convenient choice for nearly half of the Affiliates’ counsel.
V. CONCLUSION The ACLU Affiliates respectfully request that the Panel deny the Motion.
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Date: May 30, 2017

Respectfully submitted,

/s/ Thomas R. Burke Thomas R. Burke (CSB # 141930) thomasburke@dwt.com
DAVIS WRIGHT TREMAINE LLP 505 Montgomery St., Suite 800 San Francisco, CA 94111 Phone: (415) 276-6500 Fax: (415) 276-6599
Lead Counsel In this Proceeding for Plaintiffs American Civil Liberties Union of Northern California, American Civil Liberties Union of Hawaii, American Civil Liberties Union of Utah, American Civil Liberties Union of San Diego and Imperial Counties, American Civil Liberties of Southern California, American Civil Liberties Union of Nevada, American Civil Liberties Union of Maine, American Civil Liberties Union of New Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union of Massachusetts, American Civil Liberties Union of Connecticut, American Civil Liberties Union of Rhode Island, American Civil Liberties Union of Florida, American Civil Liberties Union of Washington, American Civil Liberties Union of Montana, American Civil Liberties Union of North Dakota, American Civil Liberties Union of Arizona, American Civil Liberties Union of Virginia, American Civil Liberties Union of Maryland, American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Delaware, American Civil Liberties Union of Illinois, American Civil Liberties Union of Indiana, American Civil Liberties Union of Iowa, American Civil Liberties Union of Kentucky, American Civil Liberties Union of Minnesota, American Civil Liberties Union of Missouri, American Civil Liberties Union of Nebraska, American Civil Liberties Union of Ohio, American Civil Liberties Union of South Dakota, American Civil Liberties Union of Wisconsin, American Civil Liberties Union of Oregon, American Civil Liberties Union of Alaska, American Civil Liberties Union of Colorado, American Civil Liberties Union of Idaho, American Civil Liberties Union of Wyoming, American Civil Liberties Union of Michigan, American Civil Liberties Union of Texas, Inc., American Civil Liberties Union of Georgia, Inc., American Civil Liberties Union of North Carolina, Inc., American Civil Liberties Union of South Carolina, Inc., and American Civil Liberties Union of West Virginia, Inc.

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4814-8682-1704v.5 0050033-000045

Case 1:17-cv-00441-LMB-IDD Document 28 Filed 05/30/17 Page 28 of 28 PageID# 195

CERTIFICATE OF SERVICE
I hereby certify that on May 30, 2017, a true and correct copy of the foregoing MEMORANDUM OF PLAINTIFFS, 42 AMERICAN CIVIL LIBERTIES UNION AFFILIATES, IN OPPOSITION TO DEFENDANTS’ MOTION FOR TRANSFER TO THE DISTRICT OF COLUMBIA FOR CONSOLIDATION was electronically filed via the CM/ECF system, to be served via electronic notification on counsel of record for all parties.

Dated: May 30, 2017

By: /s/ Maya M. Eckstein Maya M. Eckstein (pro hac vice) Virginia Bar No. 41413 HUNTON & WILLIAMS LLP Riverfront Plaza, East Tower 951 East Byrd Street Richmond, Virginia 23219 Telephone: (804) 788-8788 Facsimile: (804) 343-4630 Email: meckstein@hunton.com

 
 Case 1:17-cv-00441-LMB-IDD Document 30 Filed 05/31/17 Page 1 of 14 PageID# 199

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

AMERICAN CIVIL LIBERTIES UNION OF )

VIRGINIA, AMERICAN CIVIL LIBERTIES ) Case No. 1:17-cv-00441-LMB-IDD

UNION OF MARYLAND, AMERICAN CIVIL )

LIBERTIES UNION OF PENNSYLVANIA, )

and AMERICAN CIVIL LIBERTIES UNION )

OF DELAWARE,

)

)

)

Plaintiffs,

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY and U.S. CUSTOMS AND

)

BORDER PROTECTION,

)

)

Defendants.

)

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS PENDING
DECISION ON MOTION TO TRANSFER I. INTRODUCTION
U.S. Customs and Border Protection (“CBP”) and the Department of Homeland Security (“DHS”), (collectively, “Defendants”), ask this Court to enter a stay pending a ruling by the Judicial Panel on Multidistrict Litigation (“JPML”) on their motion to transfer this case to an asyet-to-be-created MDL. Defs. Motion to Stay, 1. But four months have passed since Plaintiffs (collectively “ACLU”) submitted requests under the Freedom of Information Act (“FOIA”) to the CBP’s Baltimore Field Office for public records about an issue of significant and ongoing public import: the manner in which local federal authorities interpreted and implemented President Trump’s Executive Orders barring refugees and other individuals from several predominantly Muslim countries from entering local ports of entry. Four months passed with no

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response from Defendants to Plaintiffs’ FOIA request, despite Defendants’ statutory obligations to respond; Defendants finally responded five days ago, with what amounts to a generic nonresponse response. Defendants’ request to further delay a substantive response via a stay of this litigation would unnecessarily further impede access to these public documents and undermine FOIA’s central purpose of assuring an informed citizenry and an accountable government. Accordingly, Plaintiffs respectfully ask this Court to deny Defendants’ Motion.
II. BACKGROUND A. Executive Orders Nos. 1 and 2 On January 27, 2017, the nascent Trump Administration instituted an Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” Exec. Order No. 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017) (“Executive Order No. 1”). Among other things, Executive Order No. 1 purported to halt refugee admissions and bar entrants from several predominantly Muslim countries from entering the United States. Complaint (Dkt. No. 1 at ¶ 4). Included with Executive Order No. 1 were various directives guiding its execution. Defendants’ implementation of Executive Order No. 1 was chaotic and lacking in clarity and direction. Compl. ¶ 7. That chaos was evident at Washington Dulles International Airport (“Dulles”) and Philadelphia International Airport (“PIA”). Id. at ¶ 11. For example, Yemeni individuals flying to Dulles with valid, government-issued visas when Executive Order No. 1 took effect had their visas cancelled upon landing at Dulles and were refused entry into the United States. Id. Additionally, while several courts entered orders that required attorney access to detained travelers, CBP officials at Dulles appeared to ignore the orders. Id. at ¶ 12. Similarly, Syrian families with valid immigrant visas arrived at PIA the morning of January 28, 2017. Id. at ¶ 13. CBP agents removed them from the plane and gave them two options: (1) leave the United
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States immediately or (2) be arrested and imprisoned with their visas taken away. Id. Terrified, they purchased tickets for the return flight and left the U.S. Id. Several other travelers were detained at PIA, id., and lawyers retained by the detained families were not allowed to speak with their clients. Id. at ¶¶ 14-16.
In the month following issuance of Executive Order No. 1, litigation ensued that led to several judicial orders placing temporary restraints on the implementation of sections of the Order. Compl., ¶ 6. The Trump Administration responded with a revised but identically titled Executive Order on March 6, 2017, Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017) (“Executive Order No. 2). Id. at ¶ 2. Like Executive Order No. 1, Executive Order No. 2 similarly seeks to halt refugee admissions and bar entrants from several predominantly Muslim countries from entering the United States. Id. at ¶ 4.
B. Plaintiffs’ FOIA Request On February 2, 2017, Plaintiffs submitted a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 522 et seq., to CBP’s Baltimore Field Office and CBP’s FOIA Officer at CBP Headquarters. Id. at ¶ 26. These requests sought records concerning Local Offices’ implementation of the Executive Orders at airports and ports of entry within the Local Offices’ jurisdiction. Specifically, Plaintiffs sought records from the Baltimore Field Office regarding its implementation of the Executive Orders at Dulles, Baltimore Washington Airport, PIA, Pittsburg International Airport and ports of entry at Baltimore, Philadelphia, the Port of WashingtonDulles, and Wilmington. See Compl., Ex. A. The FOIA request specifically excluded records held at “CBP Headquarters.” Id. at 8. Under the FOIA statute, an entity typically has 20 days to respond to a FOIA request. 5 U.S.C. § 552(a)(6)(A)(i). Plaintiffs, though, asked for expedited processing on the basis that
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there is a “compelling need” for the records under 5 U.S.C. §522(a)(6)(E)(v)(II), as the information requested was urgently needed by an organization primarily engaged in disseminating information “to inform the public concerning actual or alleged Federal Government activity.” Compl., Ex. A.
Defendants failed to respond on an expedited bases, or even within 20 days. Instead, they ignored the FOIA request altogether, until just five days ago. See Exhibit 1. On May 26, 2017, Defendants provided a generic response to all ACLU FOIA requests nationwide and failed to provide any timeline for the production of documents.
Having ignored the ACLU’s FOIA request for 113 days, responding only after the filing of this litigation, and having secured an extension of time to respond to the Complaint, Defendants now ask this Court for still more time based on a motion to transfer filed with the JPML that has yet to even be set for argument. In effect, Defendants ask for more time in a case about their failure to respond in time. This Court should deny that request.
III. ARGUMENT A. Legal Standard Stays are within the inherent power of a court. Landis v. N. Am. Co., 299 U.S. 248, 25455 (1936). However, not all stays are favored. Specifically, the JPML states that “the use of stay orders by the district courts, particularly in the area of discovery, is usually undesirable.” Sehler v. Prospect Mortg., LLC, No. 1:13-cv-473 JCC/TRJ, 2013 WL 5184216, at *3 (E.D. Va. Sept. 16, 2013) (quoting In re Penn Central Securities Litigation, 333 F. Supp. 382, 384 n. 4 (J.P.M.L.1971)). See also Litchfield Co., LLC v. BP, P.L.C., No. 2:10-cv-01462, 2010 WL 2802498, at *1 (D. S.C. July 14, 2010) (“A pending transfer motion before the MDL panel does not deprive the district court in which the action is then pending of jurisdiction over pretrial
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matters”). Accordingly, courts have denied requests for stays in circumstances similar to those present here. See, e.g., Sullivan v. Cottrell, Inc., No. 11CV1076S, 2012 WL 694825, at *4 (W.D. N.Y. Feb. 29, 2012); St. Joe Co. v. Transocean Offshore Deepwater Drilling Inc., 774 F. Supp. 2d 596, 601 (D. Del. 2011); Barber v. BP PLC, No. 10-0263-WS-B, 2010 WL 2266760, at *2 (S.D. Ala. June 4, 2010).
When considering whether to issue a stay pending a transfer to an MDL, a district court should consider three factors:
(1) whether judicial resources will be saved and duplicative litigation avoided if the case is consolidated in an MDL; (2) prejudice to the party opposing the stay; and[,] (3) the moving party’s hardship and inequity if the action is not stayed. Commonwealth of Virginia ex rel. Integra Rec LLC v. Countrywide Sec. Corp., No. 3:14-cv-706, 2015 WL 222312, at *3 (E.D. Va. Jan. 14, 2015) (quoting Wood v. Johnson & Johnson, No. WDQ–12–1572, 2012 WL 3240934, at *2 (D. Md. Aug. 3, 2012)).
B. Interests of Judicial Economy Do Not Warrant a Stay Defendants urge this Court to grant the stay for purposes of judicial economy. But they raise false alarms, arguing that this Court could issue orders that conflict with orders of one or more of the district courts with related FOIA cases before them. Yet, the FOIA request at issue in this case differs from those that are the subject of cases pending in other courts, and vice versa. This case involves requests for the CBP Baltimore Field Office’s “local interpretation and enforcement” of the Executive Order, at specific locations within its purview. Compl., ¶ 27. Requests for the “local interpretation and enforcement” of the Baltimore Field Office at airports and points of entry within its jurisdiction by definition cannot overlap with the local interpretation and enforcement of the Atlanta, El Paso, Portland, or other
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Field Offices. To the extent that this Court and another federal court rule differently on related FOIA requests, these rulings would not conflict, because the requests themselves seek different documents.
Moreover, while Defendants assert that allowing this case to proceed could duplicate work that will be done by an MDL transfer court, it is uncontrovertable that no MDL exists. The JPML has not even scheduled a hearing on Defendants’ motion. While Defendants “anticipate that the JPML will hold argument” on Defendants’ transfer motion in late July, Defs.’ Br. in Supp. of Mot. to Stay at 8, their “anticipation” is little more than hope at this point. As this Court held in Sehler, a stay should not issue based on the mere hope that a case will be transferred, especially when the JPML has not heard oral argument on the transfer, or consolidated any of the cases addressing the same matter. Sehler, 2013 WL 5184216 at *4 (“Here, by contrast, there has been no conditional transfer of the case. Indeed, the JPML has not heard Defendants’ argument regarding transfer nor consolidated any of the cases in this matter. This is in contrast to many instances where district courts have granted stays pending transfer to MDLs already created.”).
Defendants also urge a stay because “CBP’s headquarters in Washington, DC is coordinating the agency’s search for records responsive to all of the requests at issue in the related actions[.]” Motion at 5. While Defendants are free to coordinate their efforts, doing so will not result in judicial efficiency. As explained above, Plaintiffs’ FOIA request seeks records held by CBP employees in the Baltimore Field Office regarding its implementation of the Executive Orders at Dulles, Baltimore Washington Airport, PIA, Pittsburg International Airport and ports of entry at Baltimore, Philadelphia, the Port of Washington-Dulles, and Wilmington. Compl., Ex. A. Indeed, records held at “CBP headquarters” were explicitly excluded from the FOIA request at issue in this case. Id. at 8. Thus, transfer will not obviate the need for
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Defendants here to account in this litigation for the records held (or withheld) by CBP in Baltimore, or the search for such records conducted in the Baltimore Field Office. The requested stay will serve only to delay that accounting, and the public’s access to these crucial records.
C. Defendants Will Suffer No Hardship or Inequity In Sehler, this court drew a distinction between cases that have been conditionally transferred to an MDL and those that have not. Id. Defendants ignore this distinction. They cite several cases for the proposition that pretrial rulings by this court could conflict with rulings by the transferee court causing hardship to Defendants, or that a stay so early in the proceedings would not cause hardship to Plaintiffs. See Motion at 3 (citing Commonwealth of Virginia ex rel. Integra Rec. LLC v. Countrywide Securities Corp., No. 3:14-cv-706, 2015 WL 222312 (E.D. Va. Jan. 14, 2015)); 7 (citing C.A. ex rel. Allen v. Pfizer, Inc., No. C13-4087, 2013 WL 6091766 (N.D. Cal. Nov. 19, 2013)). However, in both of these cases the JPML had either transferred or conditionally transferred the case to a pre-existing MDL, or at least scheduled a hearing on a transfer motion. Countrywide Securities Corp., 2015 WL 222312 at *2; C.A. ex rel. Allen, 2013 WL 6091766 at *1.1 That is not the case here. Instead, Defendants rest their argument for a stay on their mere motion to transfer, in spite of the facts that: (1) there is no pre-existing MDL for FOIA requests related to the Executive Orders; and (2) the JPML has not scheduled a hearing on Defendants’ motion.
1 Nor are these the only distinguishable cases Defendants cite in their brief. First, in In re Musha Cay Litig., 330 F. Supp. 2d 1364 (J.P.M.L. 2004), the plaintiffs’ claims arose from the same commercial transaction and shared legal claims. While Plaintiffs bring FOIA claims that arise from the same government act – the Executive Orders – as plaintiffs in other cases, these requests all seek different information. Second, in In re Air Crash Near Kirksville, Mo., 383 F. Supp. 2d 1382, 1383 (J.P.M.L. 2005), the plaintiffs’ claims all arose from the same plane crash. There the plaintiffs would in fact refer to the exact same facts to make their claims. By contrast, Plaintiffs here will rely on facts about the local implementation of the Executive Orders, which would not be relevant in FOIA litigation regarding other Local Offices’ implementation. Finally, both of these cases addressed motions to consolidate, not a motions to stay.
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Importantly, Defendants fail to identify any real hardship that would result from this Court denying their motion. Hardship is a prerequisite for a stay. Scott v. Clarke, No 3:12-cv00036, 2014 WL 3734327 (W.D. Va. Jul. 28, 2014) (“‘[t]he suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to someone else.’” (quoting Williford v. Armstrong World Industries, Inc., 715 F.2d 124, 127 (4th Cir. 1983)) (internal quotations omitted). Defendants broadly cite the chance of “rulings on pretrial issues that conflict with those of other districts or of the transferee court” and worry about having to “engage in simultaneous and duplicative pretrial practice, including responding to thirteen separate complaints that are materially identical.” Motion at 7, 6.
Notably, Defendants do not identify the potential conflicts they fear, or explain why these conflicts are likely to occur absent a stay. Defendants also mischaracterize the various FOIA complaints submitted by plaintiffs across the country as “materially identical.” As explained above, they are not. Rather, these complaints are brought by different plaintiffs and seek records regarding the local implementation of the Executive Orders. Compl., ¶¶ 3–4. For example, the actions taken by CBP agents against Yemini individuals at Dulles, and Syrian families at PIA, were instigated by agents under the jurisdiction and direction of the Baltimore Local Office. Id. at ¶¶ 11–13. The records of any other Local Office are necessarily irrelevant to this case. Thus, it would not matter if this Court and another federal court facing a similar FOIA suit against CBP ruled differently on the FOIA requests. These rulings would not conflict because the requests themselves seek wholly different documents.
For the same reason, Defendants incorrectly assert that discovery here would overlap with discovery in other FOIA cases arising from the Executive Orders. Again, the local nature of
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Plaintiffs’ request distinguishes it from information requested in other cases. In short, the harm Defendants claim is speculative at best and does not outweigh the risk of prejudice to Plaintiffs and the public from further delay.
D. A Stay Would Prejudice Plaintiffs and the Public This case differs from many of those Defendants cite in their brief. That is because the harm in FOIA litigation is inherently tied to the delay in a governmental entity’s response to the request. A stay only exacerbates this harm. The central purpose of FOIA is to “serve the citizens’ right to be informed about what their government is up to.” United States DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989). This right is not a “convenient formalism” but a “structural necessity in a real democracy.” Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004). Because awareness must be timely to be useful, “Congress has recognized that delay in complying with FOIA requests is ‘tantamount to denial.’” Elec. Privacy Info. Ctr. v. DOJ, 416 F. Supp. 2d 30, 40 (D.C. Dist. Ct. 2006) (quoting H.R. Rep. No. 93-876, at 6 (1974)). The FOIA statute recognizes the importance of prompt disclosure by requiring agencies to respond to requests within 20 days, absent “unusual” or “exceptional” circumstances. 5 U.S.C. § 552(a)(6)(A)(i). In “unusual circumstances” the agency can extend its time to respond by 10 days, but must give the requester notice of the circumstances and identify a date on which it will respond. See Citizens for Responsibility & Ethics in Wash. v. United States DOJ, 820 F. Supp. 2d 39, 47 (D.D.C. 2011) (citing 5 U.S.C. § 552(a)(6)(B)). Failure to respond within 20 days, or provide notice and an explanation of the need for an additional 10 days to respond, is
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unreasonable. Id. (failure to respond to a request until the plaintiffs filed suit deemed “hardly reasonable”).2
Moreover, agencies must expedite processing and respond “as soon as practicable” where, as here, a requester shows “urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. §552(a)(6)(E)(i). “[E]xpedited processing of a FOIA request is a statutory right, not just a matter of court procedure.” Edmonds v. FBI, 417 F.3d 1319, 1323 (D.C. Cir. 2005). Courts consistently require expedited disclosure in cases like this, involving requests for documents about matters that are the subjects of intense media scrutiny and ongoing public debate. For example, in EPIC v. DOJ, the court found that “given the great public and media attention that the government’s warrantless surveillance program has garnered and the recent hearings before the Senate Judiciary committee, the public interest is particularly well-served by the timely release of the requested documents.” 416 F. Supp. 2d 30, 42 (D.D.C. 2006); See also Gerstein v. CIA, No. C-06-4643, 2006 U.S. Dist. LEXIS 89847, at *20–21 (N.D. Cal. 2006) (collecting cases regarding FOIA requests that could affect reauthorization of the Voting Rights Act and the Patriot Act).
ACLU v. United States DOJ, 321 F. Supp. 2d 24 (D.D.C. 2004) is instructive here. In that case, the ACLU sought expedited processing of a FOIA request related to the federal government’s implementation of the Patriot Act. The court ordered expedited processing of the ACLU’s request. Id. at 31–33. The court noted the articles cited in the ACLU’s brief, which “demonstrate that the manner and frequency of the government’s use of [the Patriot Act] are
2 It also is worth noting that the plaintiffs in Citizens for Responsibility filed two similar but separate FOIA requests with the Department of Justice (“DOJ”). 820 F. Supp. 2d at 42. The DOJ responded to the first request but ignored the second. Id. at 42. Thus, the plaintiffs in that case actually had established some contact with DOJ; nonetheless, the court still found DOJ’s actions unreasonable. By contrast, Plaintiffs here heard nothing from Defendants until just five days ago, after the filing of this lawsuit, and even then received only a generic response with no information on when documents will be produced.
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matters of ‘widespread and exceptional media interest.’” Id. at 31–32 (internal citation omitted). There were “dozens of additional news articles” that cited “the controversy surrounding the Act.” Id. at 32. In fact, even the Attorney General had acknowledged the “troubling amount of public distortion and misinformation” about the Act. Id. (internal citation omitted).
Plaintiffs have cited similar circumstances here. There was great confusion in the interpretation and implementation of the Executive Orders. See Compl., ¶¶ 7–16, n. 3–14. Director Kelly of DHS acknowledged that there was confusion as to whether the Executive Orders applied to green card holders, and reversed earlier guidance by DHS officials saying the Executive Orders did apply these individuals. Id. at ¶ 8, n. 4–6. News reports described Defendants’ implementation as “chaotic” and “total[ly] lack[ing] . . . clarity and direction.” Id. at ¶ 7, n. 3. Further, there were large public demonstrations at airports and protests around the country. It is safe to say that the implementation of the Executive Orders was a controversial issue that caused confusion and garnered significant public attention.
Accordingly, Plaintiffs sought expedited processing of their FOIA requests to provide the public with information about how the Baltimore CBP Field Office read and implemented the Executive Orders. This has been, and continues to be, a hotly contested public issue. As noted above and in the Complaint, the local implementation resulted in mass protests, widespread media coverage, calls for action by elected officials, and extensive litigation. Compl., ¶¶ 5-16. Without full disclosure of the facts behind the implementation of the Executive Orders locally, it is impossible for the public to fully appreciate the merits or demerits of the policies. And once public debate advances on issues of vital national importance such as these, this debate “cannot be restarted or wound back” to account for supplemental facts. Elec. Frontier Found. v. Office of the Dir. Of Nat’l Intelligence, 2007 U.S. Dist. LEXIS 89585, at *19 (N.D. Cal. Nov. 27, 2007)
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(citations omitted). The delayed disclosure of these facts renders them “little more than a historical footnote.” Gerstein, 2006 U.S. Dist. LEXIS, at *21 (citation omitted).3
Whether Defendants intend to reduce the ACLU’s request to a “historical footnote,” one thing is clear: Defendants have yet to provide a substantive response to Plaintiffs’ FOIA request. Defendants never sought an extension or even contacted the ACLU regarding the request. This delay already prejudices the ACLU and the public and certainly does not comport with FOIA’s purpose and Plaintiffs’ statutory right to expedited access to the requested records. Now Defendants seek to add to their delay based on their hope that the JPML will soon consider and grant their transfer motion. A stay would guarantee that the public will be deprived of the information for many more months. Even if the JPML hears Defendants’ transfer motion on July 27, there is no telling when the JPML will rule on the matter. All the while, the public debate on issues of immigration, national security, and civil liberties related to the Executive Orders proceeds, uninformed of relevant and important facts.
In short, this case is about prejudice to the ACLU and the public from Defendants’ failure to timely and statutorily respond to the ACLU’s FOIA request. In effect, Defendants seek to delay a case about its own delays. Meanwhile, continued delay prejudices the ACLU and the public. This Court should deny Defendants’ motion to stay.
III. CONCLUSION Accordingly, and for the reasons stated above, the ACLU respectfully requests that this Court deny Defendants’ Motion to Stay.
3 Courts recognize the importance of timely FOIA disclosures in informing and enhancing public debate on similar issues. See, e.g., EPIC, 416 F. Supp. 2d at 42; Gerstein, 2006 U.S. Dist. LEXIS 89847, at *20–21. Just as timely FOIA disclosures could inform public debate on those issues, they could do so here.
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DATED this 31st day of May, 2017.

Respectfully submitted, HUNTON & WILLIAMS LLP

By: /s/ Maya Eckstein____________ Maya M. Eckstein (Va. Bar No. 41413) HUNTON & WILLIAMS LLP 951 E. Byrd St. Richmond, Virginia 23229 meckstein@hunton.com T: 804-788-8200 F: 804-343-4630
Leslie Chambers Mehta (Va. Bar No. 90437) Legal Director ACLU OF VIRGINIA 701 E. Franklin St., Ste. 1412 Richmond, VA 23219 lmehta@acluva.org T: 804-523-2152 F: 804-649-2733
Attorneys for Plaintiffs American Civil Liberties Union of Virginia, American Civil Liberties Union of Maryland, American Civil Liberties Union of Pennsylvania, and American Civil Liberties Union of Delaware

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CERTIFICATE OF SERVICE I hereby certify that, on May 31, 2017, a true and correct copy of the foregoing PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS PENDING DECISION ON MOTION TO TRANSFER was electronically filed via the CM/ECF system, to be served via electronic notification on counsel of record for all parties.

Dated: May 31, 2017

By: /s/ Maya Eckstein____________ Maya M. Eckstein (Va. Bar No. 41413) HUNTON & WILLIAMS LLP 951 E. Byrd St. Richmond, Virginia 23229 meckstein@hunton.com T: 804-788-8200 F: 804-343-4630

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U.S. Department of Homeland Security Washington, DC 20528

Homeland Security

May 26, 2017

Privacy Office, Mail Stop 0655

SENT VIA E-MAIL TO: meckstein@hunton.com; lmehta@acluva.org; gpodolsky@carltonfields.com; natalie.spears@dentons.com; gregory.naron@dentons.com; patrick.kabat@dentons.com; kathleen.kinsella@dentons.com; rglenberg@aclu-il.org; flevenson@acluohio.org; amiller@aclunebraska.org; arothert@aclu-mo.org; sharp@aclu-ky.org; amogensen@sunshinelitigation.com; btannebaum@tannebaum.com; nabudu@aclufl.org; bstevenson@aclufl.org; heiden@aclumaine.org; ericstahl@dwt.com; echiang@acluwa.org; bodneyd@ballardspahr.com; digiacomom@ballardspahr.com; kbrody@acluaz.org; thomasburke@dwt.com; brendancharney@dwt.com; rose@aclunv.org; dporter@aclusocal.org; pbibring@aclusocal.org; mebadolahi@aclusandiego.org; gregchaimov@dwt.com; derekgreen@dwt.com; mdossantos@aclu-or.org; ksimon@aclu-or.org; thomasburke@dwt.com; danlaidman@dwt.com; mebadolahi@aclusandiego.org; Esaldivar@aclutx.Org; Kcohn@aclutx.Org; thomasburke@dwt.com; llye@aclunc.org; mcaballero@acluhawaii.org; lfarrell@acluutah.org; gbedoya@honigman.com; agoddeeris@honigman.com; apauwels@honigman.com; msteinberg@aclumich.org; maukerman@aclumich.org; kmoss@aclumich.org; Jarcher@krz.Com

ACLU Border Litigation Project c/o Mitra Ebadolahi P.O. Box 87131 San Diego, CA 92138-7131

ACLU of Michigan c/o Juan Caballero 1514 Wealthy SE Suite 242 Grand Rapids, MI 49506

Re: 2017-HQFO-00594

Dear Ms. Ebadolahi and Mr. Caballero:

This letter concerns the eighteen Freedom of Information Act (FOIA) requests dated February 2, 2017, and submitted to U.S. Customs and Border Protection (CBP) by the American

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Civil Liberties Union and numerous affiliated entities.1 Each of these requests asks that the requested records be furnished to Ms. Ebadolahi.
1 These entities include: The American Civil Liberties Union Federation; the American Civil Liberties Union of the District of Columbia; the American Civil Liberties Union Fund of the District of Columbia; the American Civil Liberties Union of Alabama; the American Civil Liberties Union of Arkansas; the American Civil Liberties Union of Kansas; the American Civil Liberties Union of Louisiana; the American Civil Liberties Union of Mississippi; the American Civil Liberties Union of Tennessee; the American Civil Liberties Union Foundation of Alabama; the American Civil Liberties Union Foundation of Arkansas; the American Civil Liberties Union Foundation of Kansas; the American Civil Liberties Union Foundation of Louisiana; the American Civil Liberties Union Foundation of Mississippi; the American Civil Liberties Union Foundation of Tennessee; the American Civil Liberties Union of New Jersey; the American Civil Liberties Union of New Jersey Foundation; the New York Civil Liberties Union; the New York Civil Liberties Foundation; the American Civil Liberties Union of New Mexico; the American Civil Liberties Union Foundation of New Mexico; the American Civil Liberties Union Foundation of Texas; the American Civil Liberties Union of Maine; the American Civil Liberties Union of New Hampshire; the American Civil Liberties Union of Vermont; the American Civil Liberties Union of Massachusetts; the American Civil Liberties Union of Connecticut; the American Civil Liberties Union of Rhode Island; the American Civil Liberties Union Foundation of Maine; the American Civil Liberties Union Foundation of New Hampshire; the American Civil Liberties Union Foundation of Vermont; the American Civil Liberties Union Foundation of Massachusetts; the American Civil Liberties Union Foundation of Connecticut; the American Civil Liberties Union Foundation of Rhode Island; the American Civil Liberties Union of San Diego and Imperial Counties; the American Civil Liberties Union of San Diego and Imperial Counties Foundation; the American Civil Liberties Union of Florida; the American Civil Liberties Union of Washington; the American Civil Liberties Union of Montana; the American Civil Liberties Union of North Dakota; the American Civil Liberties Union of Washington Foundation; the American Civil Liberties Union of Montana Foundation; the American Civil Liberties Union of Arizona; the American Civil Liberties Union Foundation of Arizona; the American Civil Liberties Union of Virginia; the American Civil Liberties Union of Maryland; the American Civil Liberties Union of Pennsylvania; the American Civil Liberties Union of Delaware; the American Civil Liberties Union Foundation of Virginia; the American Civil Liberties Union Foundation of Maryland; the American Civil Liberties Union Foundation of Pennsylvania; the American Civil Liberties Union Foundation of Delaware; the American Civil Liberties Union of Illinois; the American Civil Liberties Union of Indiana; the American Civil Liberties Union of Iowa; the American Civil Liberties Union of Kentucky; the American Civil Liberties Union of Minnesota; the American Civil Liberties Union of Missouri; the American Civil Liberties Union of Nebraska; the American Civil Liberties Union of Ohio; the American Civil Liberties Union of South Dakota; the American Civil Liberties Union of Wisconsin; the American Civil Liberties Union Foundation of Illinois; the American Civil Liberties Union Foundation of Indiana; the American Civil Liberties Union Foundation of Iowa; the American Civil Liberties Union Foundation of Kentucky; the American Civil Liberties Union Foundation of Minnesota; the American Civil Liberties Union Foundation of Missouri; the American Civil Liberties Union Foundation of Nebraska; the American Civil Liberties Union Foundation of Ohio; the American Civil Liberties Union Foundation of South Dakota; the American Civil Liberties Union Foundation of Wisconsin; the American Civil Liberties Union of Northern California; the American Civil Liberties Union of Hawaii; the American Civil Liberties Union of Utah; the American Civil Liberties Union of Oregon; the American Civil Liberties Union of Alaska; the American Civil Liberties Union
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This letter also concerns the supplemental FOIA request dated February 10, 2017, and submitted to CBP by the American Civil Liberties Union of Michigan and the American Civil Liberties Union Fund of Michigan. This supplemental request asks that the requested records also be furnished to Mr. Caballero.
The foregoing FOIA requests (hereinafter, the “Coordinated Requests”) all seek the same or substantially the same categories of information regarding CBP’s interpretation and enforcement of Executive Order 13769. A single search for records responsive to all of the Coordinated Requests will be coordinated by CBP headquarters. Accordingly, we are assigning the Coordinated Requests a single reference number: 2017-HQFO-00594. This reference number supersedes any reference number previously assigned to any of the Coordinated Requests.
Although the agency’s goal is to respond within 20 business days of receipt of a FOIA request, the FOIA permits a 10-day extension of this time period in certain circumstances. As the Coordinated Requests seek categories of records that will require a thorough and wide-ranging search, the agency invokes a 10-day extension for your request pursuant to 5 U.S.C. § 552(a) (6) (B).
For the purpose of determining whether unusual circumstances warrant such an extension, the agency has aggregated the Coordinated Requests pursuant to pursuant to 5 U.S.C. § 552(a)(6)(B)(iv) and 6 C.F.R. § 5.5(d). These authorities permit the agency to aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances.
Each of the Coordinated Requests includes a request for expedited processing, and each of the Coordinated Requests presents substantially the same grounds for expedition. The requests for expedited processing are granted. As a result, the Coordinated Requests will be placed in the processing track for expedited requests, where it will be given priority over non-expedited requests and later-filed expedited requests.
Although we are expediting the Coordinated Requests, we have encountered some delay in processing the Coordinated Requests due to the increasing number of FOIA requests received by this
of Colorado; the American Civil Liberties Union of Idaho; the American Civil Liberties Union of Wyoming; the American Civil Liberties Union Foundation of Colorado; the American Civil Liberties Union Foundation of Alaska; the American Civil Liberties Union Foundation of Idaho; the American Civil Liberties Union Foundation of Oregon; the American Civil Liberties Union of Michigan; the American Civil Liberties Union Fund of Michigan; the American Civil Liberties Union Foundation of Texas; the American Civil Liberties Union of Georgia; the American Civil Liberties Union of North Carolina; the American Civil Liberties Union of South Carolina; the American Civil Liberties Union of West Virginia; the American Civil Liberties Union Foundation of Georgia; the American Civil Liberties Union Foundation of North Carolina; the American Civil Liberties Union Foundation of South Carolina; the American Civil Liberties Union Foundation of West Virginia; the American Civil Liberties Union of Southern California; the American Civil Liberties Union of Nevada; the American Civil Liberties Union Foundation of Southern California; and the American Civil Liberties Union Foundation of Nevada.
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Case 1:17-cv-00441-LMB-IDD Document 30-1 Filed 05/31/17 Page 4 of 4 PageID# 216 office and the complexity of the Coordinated Requests. We will make every effort to process your request as soon as practicable. As it relates to processing fees, the Coordinated Requests are subject to aggregation pursuant to 6 C.F.R. § 5.11(h). However, the agency is granting your requested fee waiver. Because most of the Coordinated Request are now in litigation, if you need any further assistance or would like to discuss any aspect of your request, please contact Matthew J. Berns, Trial Attorney, Department of Justice, Civil Division, Federal Programs Branch. Sincerely, Kevin L. Tyrrell Director FOIA Appeals and Litigation
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

AMERICAN CIVIL LIBERTIES UNION OF

VIRGINIA, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, AMERICAN CIVIL

) ) )

LIBERTIES UNION OF PENNSYLVANIA, Case )No.: 1:17-cv-00441-LMB-IDD

and AMERICAN CIVIL LIBERTIES UNION

)

OF DELAWARE,

)

)

Plaintiffs,

) )

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND

) )

SECURITY, and U.S. CUSTOMS AND

)

BORDER PROTECTION,

)

Defendants.

DEFENDANTS’ NOTICE OF REPLY BRIEF FILED WITH THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
Defendants the U.S. Department of Homeland Security and U.S. Customs and Border Protection hereby provide notice that on June 6, 2017, Defendants filed with the United States Judicial Panel on Multidistrict Litigation a Reply in Support of Defendants’ Motion for Transfer of Actions Pursuant to 28 U.S.C. § 1407. A copy of the Reply is attached.

1

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Dated: June 6, 2017  

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
DANA J. BOENTE Acting United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
MATTHEW J. BERNS CHETAN A. PATIL Trial Attorneys, Federal Programs Branch
/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

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CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of June, 2017, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system. I certify that the following parties or their
counsel of record are registered as ECF Filers and that they will be served by the CM/ECF
system:
Maya Miriam Eckstein HUNTON & WILLIAMS LLP 951 E Byrd Street Riverfront Plaza Richmond, VA 23219 Tel: (804) 788-8200 Email: meckstein@huton.com
Attorneys for Plaintiffs American Civil Liberties Union of Virginia, American Civil Liberties Union of Maryland, American Civil Liberties Union of Pennsylvania, and American Civil Liberties Union of Delaware
/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov

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BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

IN RE AMERICAN CIVIL LIBERTIES UNION FREEDOM OF INFORMATION ACT (FOIA) REQUESTS REGARDING EXECUTIVE ORDER 13769

MDL Docket No. 2786

REPLY IN SUPPORT OF DEFENDANTS’ MOTION FOR TRANSFER OF ACTIONS PURSUANT TO 28 U.S.C. § 1407

CHAD A. READLER Acting Assistant Attorney General
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
MATTHEW J. BERNS CHETAN A. PATIL Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: (202) 616-8016 Fax: (202) 616-8470 Email: matthew.j.berns@usdoj.gov
Counsel for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

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Plaintiff ACLU affiliates have coordinated their filing of parallel FOIA requests seeking disclosure of identical categories of records; coordinated their filing of the thirteen materially identical complaints in the Related Actions; and, now, coordinated their opposition to Defendants’ motion to transfer the cases so that they can be handled in the manner that imposes the least burden on the Government and the courts.1 Plaintiffs do not dispute that they could have filed a single complaint to compel responses to all of the FOIA requests at issue in the Related Actions (as well as the four ACLU-coordinated FOIA requests not yet in litigation) or that one or two plaintiffs’ attorneys would have sufficed to handle such a case, instead of the 46 plaintiffs’ attorneys currently staffed on this case. See Mem. 13. While Plaintiffs apparently prefer to involve thirteen different courts and “46 different attorneys,” Opp. 8, coordinating the pretrial proceedings in Plaintiffs’ coordinated lawsuits would allow a single judge to resolve common questions of fact, serve the convenience of the parties, and ensure the just and efficient conduct of the actions.
The Panel should grant Defendants’ Motion for Transfer and centralize the Related Actions in the District Court for the District of Columbia.
ARGUMENT I. FOIA LITIGATION IS NOT EXEMPT FROM CENTRALIZATION
This Panel’s precedents refute Plaintiffs’ argument that “MDL transfer makes no sense in FOIA litigation.” Opp. 6. The Government has twice invoked Section 1407 to request transfer of FOIA actions pending in multiple jurisdictions, and both times this Panel granted the Government’s motion. See In re Freedom Magazine/IRS FOIA Litig., No. 910 (J.P.M.L. Feb. 12, 1992) (“Freedom Magazine Transfer Order”); In re Church of Scientology Flag Serv. Org./IRS FOIA Litig., No. 892 (J.P.M.L. Sept. 4, 1991) (“Church of Scientology Transfer Order”).
1 Mem. of Pls., 42 ACLU Affiliates, in Opp. to Defs.’ Mot for Transfer (May 30, 2017), ECF No. 47 (“Opp.”). Defendants’ opening Memorandum, ECF No. 1-1, is cited as “Mem.”
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MDL treatment of FOIA actions has been rare, but that is because FOIA requesters rarely pursue parallel litigation involving parallel FOIA requests in multiple districts—a strategy that unnecessarily burdens both the Government and the courts. Unfortunately, that is how Plaintiffs have decided to proceed here, compelling Defendants to seek relief from this Panel.
There is no basis for Plaintiffs’ contention that “delay and obstruction” are the Government’s hidden “motive” for seeking transfer. Opp. 2; see also id. at 1, 7, 16. Their rhetoric notwithstanding, Plaintiffs do not explain how transfer would delay or obstruct anything.
The ACLU’s eighteen parallel FOIA requests are broad, and the CBP’s resources for processing FOIA requests are spread thin. See Mem. 12 n.6. Nevertheless, the agency is expediting its processing of all of the ACLU’s parallel FOIA requests (as well as other requests for records regarding Executive Order 13769). This means the agency has “given priority” to Plaintiffs’ requests and will process them “as soon as practicable.” 6 C.F.R. § 5.5(e)(4).
To that end, CBP has been centrally coordinating a single search for records responsive to all of the ACLU’s parallel FOIA requests—including those not yet in litigation—to ensure that the agency conducts an adequate search and processes responsive records for release in an efficient and consistent manner. The agency has already begun releasing responsive records2 and anticipates releasing more shortly. It is making these releases without any court order and is committed to doing so whether or not the courts in which the cases are now pending grant Defendants’ motions to stay proceedings pending a decision on Defendants’ transfer motion.3
2 On April 18, 2017, the agency partially released two records responsive to certain parts of the FOIA request at issue in the Southern District of Texas. See Opp. 2 n.1. The form cover letter erroneously stated that this was the agency’s “final” response. The agency has not completed its processing of records responsive to any of the FOIA requests at issue.
3 While the litigation is not dictating the pace of CBP’s processing of the FOIA requests, the litigation itself might have progressed faster had Plaintiffs not multiplied the proceedings unnecessarily. Responding to one lawsuit requires less time than responding to thirteen.
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Centralization is consistent with the FOIA and is more likely to facilitate than impede efficient resolution of these Related Actions because it would permit the agency and its counsel to concentrate their resources on one proceeding instead of thirteen. II. THE RELATED ACTIONS INVOLVE COMMON QUESTIONS OF FACT
The Related Actions involve common questions of fact for the same reasons that Freedom Magazine and Church of Scientology involved common questions of fact. Mem. 9–11. To wit, the FOIA requests at issue all relate to the same subject matter—indeed, they all “use the same language to request documents,” Opp. 8—and the agency’s national office is coordinating the search for and processing of responsive records. Mem. 9. Therefore, any disputes about the adequacy of the agency’s search, its application of the FOIA’s statutory exemptions from disclosure, and the pace of its releases will involve common questions of fact. Id. at 2, 9–11.
Freedom Magazine forecloses Plaintiffs’ principal argument, which is that the Related Actions do not involve common questions of fact because the FOIA requests are “limited to local records,” so “any factual disputes . . . will revolve around compliance within each local CBP field office.” Opp. 1. The Panel held in Freedom Magazine that litigation over FOIA requests made to different agency offices presented common factual questions because the requests were “identically worded” and because the agency “forwarded all such requests to its national office for coordinated treatment.” Freedom Magazine Transfer Order at 1.
Unable to meaningfully distinguish Freedom Magazine, Plaintiffs merely assert that these cases are different because “the FOIA requests are explicit in disclaiming any request for documents in the District of Columbia.” Opp. 12. But this point is irrelevant to whether FOIA requests for records from different offices may involve common questions of fact. And Plaintiffs’ point ignores the ACLU’s parallel FOIA request for records from CBP’s headquarters. See Exhibit 17. The agency is obligated to process that FOIA request even though the ACLU has
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so far refrained from filing suit concerning that request, and CBP is centrally coordinating the processing of that request with those at issue in the Related Actions, all on an expedited basis.4
Plaintiffs insist that “factual differences between events in different jurisdictions,” Opp. 9, mean that “unique factual questions will predominate” in any inquiry into search adequacy, id. at 11. But Plaintiffs’ FOIA requests are not tailored to the events described in their Complaints. Compare id. at 9–10 (quoting Complaints), with Mem. 5–6 (quoting FOIA requests). Because Plaintiffs’ FOIA requests all “use the same language to request documents,” Opp. 8, “the adequacy of the search conducted by [CBP] for these records is . . . a potential issue in each action.” Church of Scientology Transfer Order at 2. While different events in different jurisdictions may (or may not) mean that different field offices possess unique responsive records (in addition to duplicate copies of records also located at multiple offices), the adequacy of CBP’s search will depend on its methodology. Mem. 10. And the search methodology should not differ significantly from one request to another when each request uses the “same language.” Cf. Leopold v. NSA, 118 F. Supp. 3d 302, 309 (D.D.C. 2015) (finding an agency’s search reasonable when it used search terms “taken directly from the request”). Thus, it is not merely that CBP is centrally coordinating the search that creates common issues, as Plaintiffs suggest, see Opp. 1, but that any search (centralized or not) would be guided by the “same language.”
In a similar vein, Plaintiffs are wrong that Defendants will need to supply declarations from employees of each field office to demonstrate the reasonableness of the search that CBP headquarters is coordinating. Id. at 10; see also id. at 6, 17. Courts generally accept a declaration from the employee who coordinates a search and do not demand separate declarations from the
4 Plaintiffs’ effort to distinguish Church of Scientology fails for similar reasons. That “none of [the Related Actions] is pending in Defendants’ preferred district,” Opp. 12, has no bearing on whether the cases present common questions of fact.
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personnel who implement the search. See, e.g., Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 990 (9th Cir. 2009); SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). Consequently, Defendants anticipate that they are likely to rely exclusively on personnel from headquarters to supply any search declarations.
With regard to issues involving the exemptions from disclosure, Plaintiffs fail in their attempt to write off any potential disputes as presenting “irrelevant” “legal issues.” Opp. 12. There are often “fact-intensive tasks which the district court must perform” in deciding whether the conditions for withholding information have been met. Summers v. DOJ, 140 F.3d 1077, 1083 (D.C. Cir. 1998) (Exemption 7); see, e.g., Elec. Frontier Found. v. ODNI, 639 F.3d 876, 891 (9th Cir. 2010) (“highlight[ing] the need for a fact-specific inquiry under Exemption 5”).
Plaintiffs are also incorrect that factual disputes regarding FOIA’s exemptions will not be common to multiple Related Actions. Opp. 12–13. Though Plaintiffs claim “it is impossible to know whether Defendants will raise the same claimed exemptions,” id. at 12, Plaintiffs do not dispute that “different field offices may locate different copies of a particular document.” Mem. 10. Plaintiffs cannot explain why CBP headquarters would treat different copies of the same record differently. Nor do Plaintiffs have any answer to Defendants’ point that the same threshold factual issues may determine whether entire categories of records may be withheld or redacted, regardless of which offices located records falling into those categories. See Mem. 10–11; see, e.g., Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039–40 (7th Cir. 1998) (identifying circumstances in which “generic exemptions of categories of documents” are warranted).
Finally, Plaintiffs assert that Defendants merely “speculate about issues that may arise.” Opp. 8. Plaintiffs’ decision to file suit before CBP has completed its processing of records does make it hard to predict exactly what factual issues will arise regarding the adequacy of CBP’s
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search and its application of the statutory exemptions. But the foregoing discussion of the parties’ different views on how these issues should be approached must cast doubt on Plaintiffs’ selfserving statement that they “do not anticipate any” “factual disputes.” Id. at 1. And the Panel’s prior decisions in FOIA MDLs establish that the commonality of “a potential issue” regarding search adequacy is enough to justify centralization. Church of Scientology Transfer Order at 2. III. CENTRALIZATION WOULD SERVE THE PURPOSES OF SECTION 1407
As this Panel held in Freedom Magazine and Church of Scientology, centralization of multidistrict litigation involving parallel FOIA requests would serve the convenience of parties and witnesses and would promote the just and efficient conduct of such actions. Mem. 11–14.
Significantly, Plaintiffs do not dispute that centralization would allow both Plaintiffs and Defendants to staff the litigation more leanly, which benefits taxpayers who may be required to cover both sides’ litigation costs. See id. at 13. Plaintiffs’ contention that centralization would be “inconvenient” because “[e]ach case has counsel within its jurisdiction,” Opp. 17, ignores that centralized litigation could be handled by fewer attorneys and that defense counsel are in D.C.
Plaintiffs also fail to address the problems that will arise when Plaintiffs ask thirteen judges to dictate the pace of CBP’s release of records. Mem. 12–13. Plaintiffs do not deny that those requests are coming or that centralization would prevent such problems from arising. And Plaintiffs nowhere explain why it would be more efficient to brief summary judgment thirteen times before thirteen judges, creating the potential for inconsistent rulings on common issues.
Plaintiffs’ main arguments that centralization will not be more efficient are that discovery may not be necessary, Opp. 14, that any discovery “would be uniquely local and tailored, relating to the adequacy of the search for and disclosure of the specific records that may exist in each specific jurisdiction,” id. at 15, and therefore that any witnesses would be located where the cases are now pending, id. at 17. But even the potential for discovery warranted centralization in
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Freedom Magazine and Church of Scientology, and Plaintiffs’ contention that any discovery and witnesses would be located in the field is wrong for reasons discussed above. See supra at 4–5.
Plaintiffs’ remaining arguments are also meritless. Plaintiffs assert that “the number of cases here is small,” Opp. 16, but the thirteen FOIA actions here are greater than the eight centralized in Freedom Magazine. Plaintiffs say the litigation (which they have staffed with 46 lawyers so far) is “not complex,” id. at 16, but cannot explain how it is different from the Freedom Magazine or Church of Scientology litigation. And Plaintiffs’ unanimous opposition to centralization, id., should not weigh against transfer when Plaintiffs are affiliated entities that have coordinated a multidistrict litigation strategy for undisclosed reasons of their own.5 IV. NO SUPERIOR ALTERNATIVE TO CENTRALIZATION EXISTS
Centralization pursuant to Section 1407 is warranted because its benefits cannot be obtained by other means, such as informal coordination or transfer pursuant to Section 1404.
Informal coordination will not relieve Defendants or the courts of the burdens imposed by Plaintiffs’ litigation strategy. Plaintiffs state that “coordination already is occurring amongst the ACLU Affiliates.” Opp. 17. But Plaintiffs’ coordination amongst themselves does not reduce the burden on the Government of defending itself in thirteen proceedings or reduce the time that thirteen district judges will need to devote to these matters. Moreover, Plaintiffs’ approach to the litigation thus far belies their vague representation that Plaintiffs’ “counsel commit to continuing
5 Plaintiffs also cannot rebut Defendants’ point (Mem. 12) that the denial of Defendants’ transfer motion may require the parties to litigate the potential preclusive effect that a ruling against one ACLU affiliate might have in other Related Actions. Plaintiffs misread Taylor v. Sturgell, 553 U.S. 880 (2008), as holding that “Congress never meant to preclude successive actions seeking the same records.” Opp. 13. What Taylor held was that one FOIA litigant may be bound by a judgment against another if the defendant can establish any of six generally applicable grounds for nonparty preclusion. See 553 U.S. at 904–07. Given Plaintiffs’ admitted coordination and uniform requests that CBP release records to the same person, there is a sound basis for Defendants’ suggestion that decentralized litigation will raise questions of privity and issue preclusion that may themselves necessitate discovery. See id.
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to make every effort possible to minimize any duplication and reduce inefficiencies.” Id. at 17– 18.6
Plaintiffs correctly do not suggest that transfer pursuant to Section 1404 presents a feasible alternative. Section 1404 authorizes transfer “to any other district or division where [an action] might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). Because Plaintiffs oppose transfer, Section 1404 would authorize transfer only to the District of Columbia—the only forum in which all of the Related Actions “might have been brought”—and Section 1407 offers a more efficient path to that result. V. THE MICHIGAN ACTION SHOULD BE TRANSFERRED IN ITS ENTIRETY
The Panel should reject Plaintiffs’ suggestion that one part of the Michigan action should remain in the Eastern District of Michigan even if the other part of that action is centralized with all of the other Related Actions. Plaintiffs’ proposal fails as a matter of law because Section 1407 only authorizes the Panel to transfer “actions” in their entirety. 28 U.S.C. § 1407(a); see In re Polychloroprene Rubber (CR) Antitrust Litig., 360 F. Supp. 2d 1348, 1351 n.2 (J.P.M.L. 2005) (“28 U.S.C. § 1407 only permits actions (not claims) to be transferred by the Panel . . . .”). Occasionally the Panel simultaneously orders transfer of an action and remands one or more particular claims to the transferor court. See Manual on Complex Litigation § 20.131, at 220 (4th ed. 2004). But the ACLU of Michigan’s Complaint does not present separate claims for each of its two FOIA requests, see Exhibit 10, Compl. ¶¶ 50–63, ACLU of Mich. v. DHS, et al., No. 5:17cv-11149 (E.D. Mich.), so there is no separate claim that could be remanded.
6 For example, to reduce the time consumed by communications between counsel, Defendants requested that Plaintiffs designate one or two attorneys to serve as liaison counsel. See Exhibit 18. Plaintiffs refused that invitation, insisting that “DOJ will need to correspond directly with lead attorneys for each case to resolve any pretrial issues that arise,” id.— notwithstanding Plaintiffs’ own designation of one attorney to serve as lead counsel for all of them before this Panel. ECF No. 45.
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Whatever its discretion to do otherwise, the Panel should transfer the entire Michigan action. Both ACLU of Michigan requests seek records from CBP’s Detroit Field Office and seek substantially identical categories of records.7 Plaintiffs fail to explain why the same records would not be responsive to both requests or why the search methodology for each would need to be different. Moreover, to the extent that disputes about CBP’s responses to Plaintiffs’ requests arise after CBP has processed the responsive records, Plaintiffs could ask the transferee court to consider a partial remand at that time. VI. THE DISTRICT OF COLUMBIA IS THE MOST APPROPRIATE FORUM
Plaintiffs prefer transfer to the Eastern District of Virginia, the District of Maine, or the Western District of Washington, but they largely fail to address Defendants’ arguments in favor of the District of Columbia. See Opp. 19–20; Mem. at 14–17.
Plaintiffs ignore the multiple factors that make D.C. an appropriate forum for any FOIA MDL: that Congress has designated it as an all-purpose forum for FOIA litigation; that its judges have substantial expertise in FOIA litigation; that it is most convenient for the Government; and that its Local Rules facilitate efficient processing of FOIA actions. See Mem. at 14–15.8
Plaintiffs nevertheless remarkably assert that “the District of Columbia is not an acceptable choice” for FOIA litigation because it “processes cases slowly.” Opp. 19. The aggregate caseload statistics on which Plaintiffs rely, however, do not reflect how efficiently
7 Both requests, for instance, seek Detroit Field Office “[r]ecords containing the ‘guidance’ that was ‘provided to DHS field personnel shortly’ after President Trump signed the Executive Order” and Detroit Field Office records “concerning CBP’s interpretation, enforcement, and implementation” of various Executive Branch issuances and court orders. The records responsive to these requests are likely to overlap substantially if not entirely.
8 PACER Case Locator searches for actions filed in 2016 and coded on the civil cover sheet with the Nature of Suit code for FOIA litigation (Code 895) indicate that only one such action was filed in the District of Maine, four in the Western District of Washington, and six in the Eastern District of Virginia. By contrast, 252 such actions were filed in D.C.
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various courts process FOIA cases, which, as discussed, the District Court for the District of Columbia handles with expertise and efficiency.9
Plaintiffs also do not address most of the case-specific factors raised by Defendants. Mem. 15–17. CBP’s centralized coordination of its responses to Plaintiffs’ requests favors transfer to D.C., see id. at 15–16; Freedom Magazine Transfer Order at 2, as does the fact that Plaintiffs coordinated their FOIA requests with the national ACLU, which has an office there, see Mem. 16. Plaintiffs protest that none of the Related Actions is pending in D.C. and that “responsive records are not located there,” Opp. 19, but as discussed above, this ignores that one of the ACLU’s coordinated FOIA requests seeks records from CBP headquarters.10
Finally, Plaintiffs’ identification of their preferred transferee courts only after learning which judges have been assigned to their cases in each jurisdiction creates the appearance not only of forum-shopping but of judge-shopping. Centralization in D.C., where the parties do not know which judge would handle the litigation, would eliminate that concern.
CONCLUSION Defendants respectfully request that their Motion for Transfer be granted.
9 Plaintiffs neglect to mention that the median time from filing to disposition in the District of Columbia (8.0 months) is below the national median (8.5 months) and only marginally higher than the medians in Plaintiffs’ preferred districts. See U.S. Courts, Federal Court Management Statistics: United States District Courts — National Judicial Caseload Profile (June 2016), http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0630.2016.pdf. Plaintiffs also highlight the number of pending cases per judge in their preferred districts while failing to disclose that the number in D.C. (251 cases) is substantially lower than in the Eastern District of Virginia and the Western District of Washington. Id.; Opp. 19–20.
10 Further, because all potential tag-along actions could be filed in D.C., Mem. 14, transfer there could permit their coordination with the Related Actions without further action by the Panel.
– 10 –

Case 1:17-cvC-0a0s4e4M1-DLLMNB-oI.D2D786DocDuomcuemnte3n1t-810 FFilieledd0066/0/066/1/177 PPaaggee1122oof f1122PageID# 231

Dated: June 6, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
/s/ Matthew J. Berns MATTHEW J. BERNS CHETAN A. PATIL Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: (202) 616-8016 Fax: (202) 616-8470 Email: matthew.j.berns@usdoj.gov
Counsel for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

– 11 –

 
 Case 1:17-cv-00441-LMB-IDD Document 32 Filed 06/06/17 Page 1 of 14 PageID# 232
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, Case No.: 1:17-cv-00441-LMB-IDD and AMERICAN CIVIL LIBERTIES UNION OF DELAWARE,
Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.
DEFENDANTS’ REPLY MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO STAY PROCEEDINGS PENDING DECISION ON MOTION TO TRANSFER

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INTRODUCTION In their Motion to stay the proceedings, Defendants requested that this Court impose a brief stay of the proceedings—likely only for a matter of weeks—while their motion to transfer this and twelve other related actions filed by ACLU affiliates is pending before the Judicial Panel on Multidistrict Litigation. Plaintiffs spend the bulk of their Opposition arguing against consolidation. Plaintiffs repeatedly argue that this case is unrelated to the others, Pls.’ Opp’n at 3, 5-6, 8, 11 (ECF No. 30)—even though all of them were brought by ACLU affiliates as admittedly “coordinated” lawsuits and even though they all concern parallel FOIA requests for identical or nearly identical categories of records, see Transfer Mot. at 4-7 (ECF No. 21-3)— because the plaintiffs are different ACLU affiliates and because the requests seek records from different CBP field offices. Such arguments should instead be addressed to the JPML, which is considering whether consolidated or coordinated pretrial proceedings would be appropriate (and which has previously centralized FOIA actions over similar objections). As Defendants have explained, a temporary stay of proceedings until the JPML can decide Defendants’ motion to transfer serves the interests of judicial economy and avoids any significant burden to either party. The JPML is likely to hear and decide the transfer motion only a few weeks after the first deadline in this case. Plaintiffs have not explained why this Court should now expend its resources on pretrial proceedings—including status reports, scheduling conferences, and possible discovery—when those issues would duplicate those in the twelve other related actions and would need to be re-litigated before the transferee court. Moreover, the strategic behavior of Plaintiffs and the other ACLU affiliates in unnecessarily bringing the related actions as thirteen separate cases clearly imposes a burden on Defendants from having to engage in parallel proceedings in thirteen courts. And any stay of this duration would have no
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effect on the timing of Defendants’ release of responsive records, and thus Plaintiffs will suffer no prejudice.
Stays pending a JPML motion, while not automatic, are routine. See, e.g., Defs.’ Mem. at 4 (ECF No. 25) (collecting authorities); see also, e.g., San Diego Unified Port Dist. v. Monsanto Co., No. 15-cv-00578-WQH-JLB, 2016 WL 4496826, at *1 (S.D. Cal. Feb. 1, 2016) (“majority of courts have concluded that it is often appropriate to stay preliminary pretrial proceedings”); Automated Transactions, LLC v. Bath Sav. Inst., No. 2:12-cv-393-JAW, 2013 WL 1346470, at *2 (D. Me. Mar. 14, 2013) (courts grant stays “frequently”) Bonenfant v. R.J. Reynolds Tobacco Co., No. 07-60301-CIV, 2007 WL 2409980, at *1 (S.D. Fla. July 31, 2007) (“common practice” to grant stays). Contrary to Plaintiffs’ suggestion, there is no exception to the typical practice when the government seeks transfer of FOIA cases. Indeed, as discussed below, stays pending a decision of the JPML have been granted in numerous FOIA cases, and Plaintiffs identify no FOIA case in which such a stay was denied. In light of the limited duration of any potential stay here, the ACLU affiliates’ strategic approach to the litigation, and the burden that a piecemeal approach imposes on the government and the courts, this Court should grant Defendants’ request for a temporary stay. I. A TEMPORARY STAY WOULD NOT AFFECT THE TIMING OF THE
RELEASE OF RESPONSIVE RECORDS Throughout their Opposition, Plaintiffs invoke the specter of delay, arguing that staying the proceedings in this action will ultimately lead to a delay in the release of responsive documents. In particular, Plaintiffs suggest that it is a “mere hope” that the JPML will hear Defendants’ motion to transfer on July 27, 2017, Pls.’ Opp’n at 6; id. at 7, that “there is no telling when the JPML will rule on the matter,” id. at 12, and that it will delay “the public’s access to these crucial records,” which is inconsistent with the purposes of FOIA, id. at 7; id. at 9-12.
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Plaintiffs claim that because of this delay, a stay would not serve the interests of judicial efficiency and would prejudice Plaintiffs. Id. at 6-7, 9-12.
However, these warnings of delay are exaggerated and unsupported by anything other than Plaintiffs’ speculation. First, Plaintiffs’ concerns that the JPML will not promptly decide Defendants’ motion to transfer are based on nothing but conjecture. Briefing on the motion will be complete today. Plaintiffs identify no reason to believe that the JPML will not hear Defendants’ fully briefed motion at its next hearing, scheduled for July 27, 2017, or that it will not act expeditiously to decide the motion. Indeed, though Plaintiffs have requested oral argument before the JPML, Defendants have not requested oral argument. If the JPML rules on the papers, Defendants’ motion could be decided sooner than July 27, 2017. In any event, Plaintiffs’ speculation that Defendants’ motion to transfer will languish on the JPML’s docket does not justify denying a stay here. See, e.g., San Diego Unified Port Dist. v. Monsanto Co., No. 15-cv-00578-WQH-JLB, 2016 WL 4496826, at *1 (S.D. Cal. Feb. 1, 2016) (granting stay where movant “requested oral argument at the next JPML hearing” two months after filing of motion and expected that the JPML would rule “[w]ithin a short period of time after the hearing”).
Second, contrary to Plaintiffs’ suggestion, stays pending JPML decisions are not inconsistent with FOIA. Defendants are aware of two instances in which the government sought centralization of FOIA actions by the JPML. See Transfer Mot. at 9-10. In both, transferor courts granted motions to stay the proceedings pending the JPML’s decision, and Defendants are not aware of any transferor court in these actions that denied a stay motion. See, e.g., Freedom Magazine v. IRS, No. 91-cv-6813 (S.D. Fla.) (ECF No. 10); Freedom Magazine v. IRS, No. 91cv-2921 (D. Md.) (ECF No. 6); Freedom Magazine v. IRS, No. 91-cv-12598 (D. Mass.) (ECF
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entry Feb. 7, 1992); Freedom Magazine v. IRS, No. 91-cv-704 (S.D. Ohio) (ECF No. 6); Bach v. IRS, No. 91-cv-20184 (N.D. Cal.) (ECF No. 13); Chandler v. IRS, No. 91-cv-20183 (N.D. Cal.) (ECF No. 15); Kimmich v. IRS, No. 91-cv-20182 (N.D. Cal.) (ECF No. 13); Licciardi v. IRS, No. 91-cv-148 (D.N.H.) (ECF No. 5).1 Plainly, then, stays pending JPML decisions are equally justified in FOIA cases.
Third, notwithstanding their conclusory assertions of “delay,” Pls.’ Opp’n at 12, Plaintiffs fail to explain how a temporary stay would have any effect on the timing of the release of responsive records in this case. Currently, Defendants’ response to the complaint is due July 7, 2017. (ECF No. 23.) Defendants anticipate that their motion to transfer will be heard by the JPML on July 27, 2017 and decided shortly thereafter. As Defendants explained in their Motion, even if a stay is imposed, Defendants will continue to compile and review records during the pendency of the stay. Defs.’ Mem. at 8. Indeed, Defendants recently granted Plaintiffs’ request for expedited treatment and have placed the coordinated requests of all the ACLU affiliates in the expedited processing queue, ahead of all non-expedited requests and later expedited requests.2 Thus, Defendants’ response to Plaintiffs’ request will proceed on the same track with or without the stay.
1 On June 6, 2017, the Western District of Washington denied Defendants’ motion to stay in one of the related actions. See Order of June 6, 2017, ACLU of Washington v. DHS, No. 170562 (RSL) (ECF No. 20). This Court is not bound by that decision and should decline to follow it, as it ignores many of the key considerations justifying a stay here. Contrary to that court’s decision, no delay in the production of documents will result from granting a stay because Defendants’ processing of the ACLU affiliates’ FOIA requests is ongoing and will continue with or without a stay. See infra Pt. I.
2 Plaintiffs spend several pages of their Opposition discussing their entitlement to expedited processing. See Pls.’ Opp’n at 10-11. As Plaintiffs acknowledge, their request for expedited treatment has been granted. (See ECF No. 30-1.)
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Further, Plaintiffs do not identify anything that will occur in this Court before the JPML’s decision that would actually hasten the release of responsive documents. Though Defendants will process Plaintiffs’ request “as soon as practicable,” 6 C.F.R. § 5.5(e)(4), there is no reason to believe—particularly in light of the substantial volume of recent FOIA requests received by Defendants and the complexity of Plaintiffs’ request—that production of all responsive records will be complete by the time the JPML decides Defendants’ transfer motion. In other words, staying the proceedings in this case will have no effect on when Plaintiffs receive the records responsive to their request. II. A STAY WOULD SERVE JUDICIAL ECONOMY BY AVOIDING
UNNECESSARY AND DUPLICATIVE PROCEEDINGS Plaintiffs try to minimize the waste of judicial resources from duplicative proceedings in the related cases by arguing essentially that there are no duplicative proceedings because this action has nothing to do with the other related actions. Pls.’ Opp’n at 5-6. As Defendants have explained, Plaintiffs are simply wrong. See also Transfer Mot. at 4-8. In any event, Plaintiffs’ argument speaks more to whether transfer is appropriate than to whether this Court should stay proceedings while the JPML considers the appropriateness of transfer. There can be no doubt that, if the case is transferred, any time this Court has devoted to pretrial proceedings will have been for naught. Any proceedings regarding issues such as production schedules and the availability of possible discovery will be substantially similar in each of the related actions, and, if Defendants’ transfer motion is granted, any ruling by this Court on those issues would ultimately be vitiated by the transferee court. See Defs.’ Mem. at 5. A stay would make it unnecessary for the Court to devote its time to resolving any disputes over such pretrial matters. Cf. Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997) (granting stay in
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interests of judicial economy because absent stay “this Court will have needlessly expended its energies familiarizing itself with the intricacies of a case that would be heard by another judge”).
Relying on the Court’s decision in Sehler v. Prospect Mortgage, LLC, No. 1:13cv473 (JCC/TRJ), 2013 WL 5184216 (E.D. Va. Sept. 16, 2013), Plaintiffs also argue that no stay should be granted here because “it is uncontrovertable [sic] that no MDL exists” and Defendants’ “‘anticipation’ [that the JPML will hear Defendants’ motion in July] is little more than hope at this point.” Pls.’ Opp’n at 6. Contrary to Plaintiffs’ suggestion, courts do not only grant stays pending JPML decisions in tag-along cases where conditional transfer orders have already been issued. See, e.g., Wittman v. Aetna Health, Inc., No. 14-cv-00322-JAW, 2014 WL 4772666, at *1 (D. Me. Sept. 24, 2014) (granting stay pending decision on motion to transfer where no MDL previously existed); Bonenfant v. R.J. Reynolds Tobacco Co., No. 07-60301-CIV, 2007 WL 2409980, at *1 (S.D. Fla. July 31, 2007) (same); Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1359 (C.D. Cal. 1997) (same).3 Indeed, in the FOIA cases discussed below, transferor courts granted stays pending the JPML’s decision even though no MDL existed at the time. See infra Pt. III.
Further, Plaintiffs misread Sehler. Though they suggest a stay was denied solely because “the JPML ha[d] not heard oral argument on the transfer, or consolidated any of the cases addressing the same matter,” Plaintiffs omit the crucial factors that justified the denial of the stay
3 Plaintiffs rely on case law interpreting J.P.M.L. Rule 2.1(d) which provides that the “pendency of a motion, order to show case, conditional transfer order or conditional remand order before the Panel” does not by itself “affect or suspend orders and pretrial proceedings in any pending federal district court action.” See Pls.’ Opp’n at 4-5. Rule 2.1(d) itself draws no distinction between the effect of a motion to transfer and a conditional transfer order on a district court action. That suggests that a court should address a motion to stay proceedings pending a decision on a motion to transfer no differently than a motion to stay after a conditional transfer order has been issued.
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there. In that case, the Court denied the defendant’s motion to stay the proceedings pending the JPML’s decision for two primary reasons. First, the related litigation had initially been brought as a class action, but the class was subsequently decertified by stipulation of both parties. Sehler, 2013 WL 5184216, at *1. When individual actions were filed, the defendant then moved to transfer “the 37 cases filed by former opt-in plaintiffs” in the class action for consolidated treatment. Id. The Court held that the defendant suffered no hardship from a denial of the stay because the defendant itself had agreed to decertify the class. Id. at *3 (“[A]ny prejudice to the Defendant caused by these multiple actions stems largely from Defendant’s own stipulation to the decertification of the Sliger matter. Defendant had an opportunity to defend this suit as a collective action; it agreed not to and now cannot claim prejudice on these grounds.”). Second, the Court held that a stay would not serve judicial economy and would prejudice the plaintiffs because the entire “action could be resolved in this Court before the JPML rules on the transfer motion.” Id. By the defendant’s own expectation, the JPML was not likely to decide the motion to transfer for “four to six months,” and the Court had already set a deadline for the completion of discovery and a final pretrial conference before the JPML would even hear the defendant’s motion. Id. Moreover, the defendant’s requested transfer would only be to coordinate discovery, so “the parties would still eventually be required to litigate the merits of their claim in this Court.” Id.
This case is nothing like Sehler. Unlike in Sehler, Defendants are not responsible for the decentralized nature of the related actions. Rather, it was the strategic decision of Plaintiffs and the other ACLU affiliates to structure the litigation in an artificially gerrymandered way, when this case could have been brought as a single action. See Transfer Mot. at 6. Moreover, unlike in Sehler, this case will not be resolved in the weeks before the JPML decides Defendants’
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Case 1:17-cv-00441-LMB-IDD Document 32 Filed 06/06/17 Page 9 of 14 PageID# 240
motion to transfer. Indeed, Plaintiffs identify nothing that will occur in this Court before the JPML decides Defendants’ transfer motion that would hasten the release of responsive, nonexempt records. See supra Pt. I. III. SIMULTANEOUS AND DUPLICATIVE PROCEEDINGS IN THIRTEEN
PARALLEL ACTIONS WILL IMPOSE AN UNNECESSARY BURDEN As Defendants explained, proceeding in this case (and the other related cases) while their motion to transfer is pending forces Defendants to engage in simultaneous proceedings in thirteen separate cases before thirteen different courts. See Defs.’ Mem. at 6-7. Plaintiffs disregard this burden as not a “real hardship.” Pls.’ Opp’n at 8. Plaintiffs’ attempt to minimize the obvious burden to Defendants requires looking at this case in isolation from the other related actions. But, as a direct result of the ACLU’s coordinated strategy to gerrymander these FOIA requests into thirteen separate cases, see Transfer Mot. at 48, Defendants must simultaneously answer complaints, appear in status conferences, confer with opposing counsel, and submit joint status reports in the thirteen related actions. In this action in particular, Defendants would, at a minimum, be required to respond to the complaint and confer with Plaintiffs on a joint status report, and possibly to participate in a Rule 16 conference. This work would be duplicated in the other related actions and in the transferee court, and “litigating essentially the same claims in courts all over the country is no doubt burdensome.” Bd. of Trustees of Teachers’ Retirement Sys. of Illinois v. Worldcom, Inc., 244 F. Supp. 2d 900, 905 (N.D. Ill. 2002); see also Virginia ex rel. Integra Rec LLC v. Countrywide Sec. Corp., No. 3:14CV706, 2015 WL 222312, at *3 (E.D. Va. Jan. 14, 2015) (noting that defendant would suffer hardship “without a stay, including their ‘need to monitor and defend cases in multiple jurisdictions, on different schedules, when the cases may be consolidated to avoid that burden’”
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(quoting Wood v. Johnson & Johnson, No. WDQ-12-1572, 2012 WL 3240934, at *3 (D. Md. Aug. 3, 2012))).
Moreover, Plaintiffs do not disclaim any intent to request either discovery or a production schedule while Defendants’ transfer motion is pending. Any decision that this Court may reach on these issues clearly may conflict with those of other courts and/or the transferee court. Defs.’ Mem. at 5-6. Plaintiffs argue that discovery in this case would not “overlap with discovery in other FOIA cases,” Pls.’ Opp’n at 8, but this misses the point. Because of the overlapping nature of the categories of documents Plaintiffs and the other ACLU affiliates seek, any pretrial proceedings regarding the applicability and scope of discovery would raise substantially similar if not identical issues in each of the related actions. This is particularly true given CBP headquarters’ coordination of the responses to FOIA requests at issue in the related actions. See Defs.’ Mem. at 5-6. And any inconsistency in rulings on discovery or on production schedules would be plainly prejudicial—it would likely place competing demands on the same agency personnel responsible for processing the responses to the requests in each of the related cases. Id. Moreover, if Defendants’ motion to transfer is granted, Defendants would be forced to relitigate these exact same issues before the transferee court. Id.4
Further, Plaintiffs ignore the effect that consolidation would have on this case. If the cases are consolidated, Defendants may not need to answer thirteen individual complaints at all,
4 Although Plaintiffs here stress how different this case is from all of the other related actions, ACLU affiliates in another related action have argued that Defendants will not be burdened precisely because the proceedings will be “substantially similar.” See Pl.’s Opp. To Mot. to Stay at , ACLU of Ariz. v. U.S. Dep’t of Homeland Sec’y, No. 2:17-cv-01083-PHX-DJH (ECF NO. 19) (“But for differing captions and party names, it is highly unlikely one would be able to differentiate between the answers to any of the complaints filed in the actions Defendants seek to consolidate. . . . Like the answer, a proposed scheduling order and any initial disclosures will be substantially similar.”).
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because the transferee court would likely require all of the ACLU affiliate plaintiffs to file a single amended consolidated complaint, which would require only one answer. See, e.g., Manual for Complex Litigation § 20.132, at 224 n.668 (4th ed. 2004). And if the cases are transferred to Defendants’ proposed forum, this action would be exempt under the local rules from any requirement to engage in a Rule 16 conference or to confer on initial disclosures. See Transfer Mot. at 15. Thus, absent a stay, Defendants will be required to undertake timeconsuming work—in as many as thirteen separate cases—that may otherwise prove unnecessary.
In addition, again relying on Sehler, Plaintiffs suggest that Defendants will not suffer a hardship because “there is no pre-existing MDL for FOIA requests related to the Executive Orders” and “the JPML has not scheduled a hearing on Defendants’ motion.” Pls.’ Opp’n at 7. However, as discussed above, Plaintiffs’ misread Sehler, see supra Pt. II, and have no basis for their speculation that the JPML will not hear Defendants’ motion on July 27, 2017 or that it will not promptly rule on it, see supra Pt. I.
Courts routinely find that the burden in time and expense from rearguing the same issues in different courts and the potential for inconsistent rulings justify a temporary stay pending a decision by the JPML on a motion to transfer. See id. (collecting cases); see also, e.g., Cooper v. Siddighi, No. EDCV 13-00345 JGB (SPx), 2013 WL 12140988, at *4 (C.D. Cal. May 8, 2013); Oregon ex rel. Kroger v. Johnson & Johnson, No. 11-CV-86-AC, 2011 WL 1347069, at *6 (D. Or. Apr. 8, 2011); Paul v. Aviva Life & Ann. Co., No. 09-1038, 2009 WL 2244766, at *2 (N.D. Ill. July 27, 2009); Palmer v. Am. Honda Motor Co., No. CV 07-1904-PHX-DGC, 2008 WL 54914, at *1 (D. Ariz. Jan. 3, 2008). For those same reasons, a stay is warranted here as well.
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IV. PLAINTIFFS WILL NOT SUFFER HARDSHIP FROM A TEMPORARY STAY Plaintiffs do not dispute that this case is in the early stages of litigation and that any stay
would likely be of a brief duration—likely a matter of weeks, not months. Courts have readily found that plaintiffs suffer no prejudice in similar circumstances. See Defs.’ Mem. at 7.
The only supposed prejudice Plaintiffs identify is a delay in the release of responsive records. See Pls.’ Opp’n at 9-12. However, as discussed above, granting a stay here will likely have no effect on when records are released, see supra Pt. I, and thus, Plaintiffs would suffer no prejudice from a temporary stay of the proceedings here.
CONCLUSION For the foregoing reasons and those stated in Defendants’ opening Memorandum, this Court should grant Defendants’ request for a temporary stay of proceedings.

Dated: June 6, 2017  

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
DANA J. BOENTE United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
MATTHEW J. BERNS CHETAN A. PATIL Trial Attorneys, Federal Programs Branch
/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891
11

Case 1:17-cv-00441-LMB-IDD Document 32 Filed 06/06/17 Page 13 of 14 PageID# 244 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection
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CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of June, 2017, I electronically filed the foregoing with
the Clerk of Court by using the CM/ECF system. I certify that the following parties or their
counsel of record are registered as ECF Filers and that they will be served by the CM/ECF
system:
Maya Miriam Eckstein HUNTON & WILLIAMS LLP 951 E Byrd Street Riverfront Plaza Richmond, VA 23219 Tel: (804) 788-8200 Email: meckstein@huton.com
Attorneys for Plaintiffs American Civil Liberties Union of Virginia, American Civil Liberties Union of Maryland, American Civil Liberties Union of Pennsylvania, and American Civil Liberties Union of Delaware
/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov

 
 Case 1:17-cv-00441-LMB-IDD Document 33 Filed 06/20/17 Page 1 of 3 PageID# 246
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, Case No.: 1:17-cv-00441-LMB-IDD and AMERICAN CIVIL LIBERTIES UNION OF DELAWARE,
Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.
DEFENDANTS’ NOTICE OF DECISION Defendants the U.S. Department of Homeland Security and U.S. Customs and Border Protection hereby provide notice that on June 19, 2017, the United States District Court fo the District of Maine granted Defendants’ motion for a temporary stay of proceedings in one of the thirteen actions that Defendants have asked the Judicial Panel on Multidistrict Litigation to centralize. See ACLU of Maine, et al. v. U.S. Customs & Border Protection, et al., No. 17-cv00132 (D. Me. June 19, 2017) (ECF No. 20). A similar motion for a temporary stay of proceedings is now pending before this Court. A copy of the Order is attached.
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Dated: June 20, 2017  

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
DANA J. BOENTE United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
MATTHEW J. BERNS CHETAN A. PATIL Trial Attorneys, Federal Programs Branch
/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

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Case 1:17-cv-00441-LMB-IDD Document 33 Filed 06/20/17 Page 3 of 3 PageID# 248
CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of June, 2017, I electronically filed the foregoing
with the Clerk of Court by using the CM/ECF system. I certify that the following parties or their
counsel of record are registered as ECF Filers and that they will be served by the CM/ECF
system:
Maya Miriam Eckstein HUNTON & WILLIAMS LLP 951 E Byrd Street Riverfront Plaza Richmond, VA 23219 Tel: (804) 788-8200 Email: meckstein@huton.com
Attorneys for Plaintiffs American Civil Liberties Union of Virginia, American Civil Liberties Union of Maryland, American Civil Liberties Union of Pennsylvania, and American Civil Liberties Union of Delaware
/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

Case 1:17-cv-00441-LMB-IDD Document 33-1 Filed 06/20/17 Page 1 of 2 PageID# 249

Berns, Matthew J. (CIV)
From: Sent: To: Subject:

cmecf@med.uscourts.gov Monday, June 19, 2017 9:42 AM cmecfnef@med.uscourts.gov Activity in Case 2:17-cv-00132-GZS AMERICAN CIVIL LIBERTIES UNION OF MAINE et al v. US CUSTOMS AND BORDER PROTECTION et al Order on Motion to Stay

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court

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Notice of Electronic Filing

The following transaction was entered on 6/19/2017 at 9:42 AM EST and filed on 6/19/2017

Case Name:

AMERICAN CIVIL LIBERTIES UNION OF MAINE et al v. US CUSTOMS AND BORDER PROTECTION et al

Case Number: 2:17-cv-00132-GZS

Filer:

Document Number:

20(No document attached)

Docket Text: ORDER granting [13] Motion to Stay. After consideration of the case-specific factors, see Good v. Altria Grp., Inc., 624 F. Supp. 2d 132, 134 (D. Me. 2009), and for the reasons articulated by the Defendants, the Courts GRANTS Defendants Motion to Stay Proceedings Pending Decision on Motion to Transfer and ORDERS that this matter be STAYED for sixty (60) days, at which point counsel shall file a status report and the Court will evaluate whether any further stay is appropriate. SO ORDERED. By JUDGE GEORGE Z. SINGAL. (lrc)

2:17-cv-00132-GZS Notice has been electronically mailed to: CHETAN A. PATIL chetan.patil@usdoj.gov JENNIFER A. ARCHER jarcher@krz.com, mhansen@krz.com MATT BERNS matthew.j.berns@usdoj.gov
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Case 1:17-cv-00441-LMB-IDD Document 33-1 Filed 06/20/17 Page 2 of 2 PageID# 250 SHEILA W. SAWYER sheila.sawyer@usdoj.gov, caseview.ecf@usdoj.gov, kim.woodward@usdoj.gov, lavonne.clark@usdoj.gov, usame.ecf@usdoj.gov ZACHARY L. HEIDEN zheiden@aclumaine.org 2:17-cv-00132-GZS Notice has been delivered by other means to:
2

 
 Case 1:17-cv-00441-LMB-IDD Document 36 Filed 06/26/17 Page 1 of 4 PageID# 279

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

AMERICAN CIVIL LIBERTIES

)

UNION OF VIRGINIA, et al.

)

)

Plaintiffs,

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY, et al.,

)

)

Defendants.

)

1:17-cv-441 (LMBIIDD)

ORDER

Before the Court is the defendants' Motion to Stay Proceedings Pending Decision on

Motion to Transfer [Dkt. No. 24] to which plaintiffs have responded [Dkt. No. 30]. Finding that

oral argument will not assist the decisional process, the motion will be granted for the following

reasons.

On April12, 2017, plaintiffs filed this civil action under the Freedom of Information Act

("FOIA"), 5 U.S.C. § 552, seeking various records from the U.S. Department of Homeland

Security ("DHS") and U.S. Customs and Border Protection ("CBP") related to Executive Order

13769. [Dkt. No. 1]. This civil action is one of 13 civil actions pending in 13 different district

courts, all of which were filed by various chapters of the American Civil Liberties Union ("ACLU") between April10 and 12,2017.1

1 ACLU ofNorthem California v. DHS, No. 17-cv-1970 (N.D. Cal. filed Apr. 10, 2017); ACLU ofVirginia v. DHS, No. 17-cv-441 (E.D. Va filed Apr. 12, 2017); ACLU of Georgia, Inc. v. DHS, No. 17-cv-1309 (N.D. Ga. filed Apr. 12, 2017); ACLU of Illinois v. DHS, No. 17-cv-2768 (N.D. Ill. filed Apr. 12, 2017); ACLU of Florida v. DHS, No. 17-cv-21382 (S.D. Fla. filed Apr. 12, 2017); ACLU of Maine v. CBP, No. 17-cv-132 (D. Me. filed Apr. 12, 2017); ACLU of Washington v. DHS, No. 17-cv-562 (W.D. Wash. filed Apr. 12, 2017); ACLU of Arizona v. DHS, No. 17-cv-1083 (D. Ariz. filed Apr. 12, 2017); ACLU of Southern California v. DHS, No.

.f,l

Case 1:17-cv-00441-LMB-IDD Document 36 Filed 06/26/17 Page 2 of 4 PageID# 280
Although the complaints have some minor variations, they are essentially directed at the same information. 2 On May 8, 20 i7, the defendants promptly filed a motion asking the Judicial Panel on Multidistrict Litigation ("JPML") to consolidate all these civil actions under 28 U.S.C.
§ 1407 and transfer them to the United States District Court for the District of Columbia.
According to the defendants, the JPML is expected to hear arguments on that motion on July 27, 2017. Defendants have moved this Court to stay all action in this lawsuit until the JPML has ruled on their motion. [Dkt. No. 24]. Plaintiffs oppose the stay arguing that it will result in unfair and undue delay. [Dkt. No. 30].
The decision whether to grant or deny a stay is left to the discretion of the court. Landis v. N. Am. Co, 299 U.S. 248, 254 (1936). Although a court has the power to deny a stay of proceedings while the JPML is considering a transfer motion, it is not required to do so, and, as the defendants argue, the normal practice is to grant stays when such transfer motions are pending. Commonwealth of Virginia ex rei. Integra Rec LLC v. Countrywide Sec. Corp., No. 3:14-CV-706, 2015 WL 222312, at *3 (E.D. Va. Jan. 14, 2015) ("Courts frequently grant stays while awaiting a JPML decision about the inclusion ofa pending case into an MDL."). In deciding whether to grant a stay, courts consider three factors: "(1) whether judicial resources will be saved and duplicative litigation avoided ifthe case is consolidated in an MDL; (2) prejudice to the party opposing the stay; and[,] (3) the moving party's hardship and inequity if the action is not stayed." Wood v. Johnson & Johnson, No. WDQ-12-1572, 2012 WL 3240934, at *2 (D. Md. Aug. 3, 2012).
17-cv-2778 (C.D. Cal. filed Apr. 12, 2017); ACLU of Oregon v. DHS, No. 17-cv-575 (D. Or. filed Apr. 12, 2017); ACLU of San Diego & Imperial Cnties. v. DHS, No. 17-cv-733 (S.D. Cal. filed Apr. 12, 2017); ACLU Found. of Texas, Inc. v. CBP, No. 17-cv-1128 (S.D. Tex. filed Apr. 12, 2017); ACLU ofMichigan v. DHS, No. 17-cv-11149 (E.D. Mich. filed Apr. 12, 2017). 2 See [Dkt. No. 21-3] at 8.
2

Case 1:17-cv-00441-LMB-IDD Document 36 Filed 06/26/17 Page 3 of 4 PageID# 281
This Court has considered all three factors and finds that denying a stay will not prejudice the plaintiffs whereas failure to do so will cause the defendants unnecessary and burdensomely duplicative litigation in 13 different districts and, of most significance, would waste judicial resources with duplicative legal issues and pose the risk of inconsistent decisions from different courts. This last consideration has already materialized. According to materials submitted by the parties, of the four courts which have adjudicated motions to stay similar to the pending motion, three have denied stays, see American Civil Liberties Union of Mich. v. DHS, No. 17cv-11149 (E.D. Mich. June 22, 2017), ECF No. 28; American Civil Liberties Union ofN. Cal. v. DHS, No. 4:17-cv-01970 (N.D. Cal. June 22, 2017), ECF No. 28; ACLU of Wash. v.DHSI. No. 2:17-cv-00562 (W.D. Wash. June 6, 2017), ECF No. 20, and one has granted a stay, see ACLU of Maine v. CBP, No. 17-cv-00132 (D. Me. June 19, 2017), ECF No. 20. This is exactly the kind of duplicative judicial proceedings and inconsistent results the multidistrict litigation statute aims to minimize. Judicial resources are limited resources and, unless there is a compelling reason to allow duplicative litigation to go forward in multiple jurisdictions, these resources should be directed in the most efficient fashion, which militates in favor of staying this litigation pending the JPML's decision.
Lastly, although plaintiffs have argued that the motion to stay is a delaying tactic, there is no reason to assume bad faith on the defendants' part. To the contrary, as represented in their reply brief, the defendants have expedited the plaintiffs' request, therefore even if a stay is imposed, defendants will place plaintiffs' document request in the expedited FOlA processing queue and will continue to compile and review records during the stay. [Dkt. No. 32] at 4. Moreover, there is no evidence that a stay will cause delay as plaintiffs have failed to identify
3

Case 1:17-cv-00441-LMB-IDD Document 36 Filed 06/26/17 Page 4 of 4 PageID# 282 any action that will occur in this Court before the JPML's decision that would hasten the release ofresponsive documents.
For all these reasons, defendants' Motion to Stay Proceedings Pending Decision on Motion to Transfer [Dkt. No. 24] is GRANTED, and it is hereby
ORDERED that this civil action be and is STAYED until further order of the Court. The Clerk is directed to forward a copy ofthis Order to counsel of record, remove argument of defendants' motion from the June 30 docket, and remove this civil action from the active docket of the Court. Entered this () ~~ day of June, 2017 Alexandria, Virginia
Leonie M. Brinkema United States District Judge
4

 
 Case 1:17-cv-00441-LMB-IDD Document 37 Filed 08/25/17 Page 1 of 3 PageID# 283
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, Case No.: 1:17-cv-00441-LMB-IDD and AMERICAN CIVIL LIBERTIES UNION OF DELAWARE,
Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.
DEFENDANTS’ CONSENT MOTION TO REINSTATE ADMINISTRATIVELY CLOSED CASE Defendants the U.S. Department of Homeland Security and U.S. Customs and Border Protection, by and through their undersigned counsel, hereby respectfully move this Court to reinstate this administratively closed case. In support of this Motion, Defendants state the following: 1. On June 26, 2017, this Court entered an Order Staying this case pending a decision by the Judicial Panel on Multidistrict Litigation on Defendants’ motion to transfer this and other related actions for consolidated or coordinated proceedings pursuant to 28 U.S.C. § 1407 (“Defendants’ Motion to Transfer”), and administratively closed the case until further order of the Court. 2. Defendants’ Motion to Transfer was denied on August 2, 2017. 3. Defendants now request that this case be returned to the active docket.
1

Case 1:17-cv-00441-LMB-IDD Document 37 Filed 08/25/17 Page 2 of 3 PageID# 284

4. Defendants request that they be given until August 29, 2017, to respond to the Complaint (ECF No. 1).
5. Defendants have conferred with counsel for the Plaintiffs who advises that there is no objection to this motion.
6. A proposed order has been tendered for the convenience of this Court.

Dated: August 25, 2017  

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
DANA J. BOENTE Acting United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
MATTHEW J. BERNS JULIE STRAUS HARRIS Trial Attorneys, Federal Programs Branch
_________/s/_________________________ DENNIS C. BARGHAAN, JR. Deputy Chief, Civil Division Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, Virginia 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

2

Case 1:17-cv-00441-LMB-IDD Document 37 Filed 08/25/17 Page 3 of 3 PageID# 285

CERTIFICATE OF SERVICE I hereby certify that on this date, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will transmit a true and correct copy of the same to the following:

Maya Miriam Eckstein HUNTON & WILLIAMS LLP 951 E Byrd Street Riverfront Plaza Richmond, VA 23219 Tel: (804) 788-8200 Email: meckstein@hunton.com

Date: August 25, 2017

________/s/______________________ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

Case 1:17-cv-00441-LMB-IDD Document 37-1 Filed 08/25/17 Page 1 of 1 PageID# 286

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, Case No.: 1:17-cv-00441-LMB-IDD and AMERICAN CIVIL LIBERTIES UNION OF DELAWARE,
Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.
[Proposed] ORDER
Upon consideration of Defendants’ Consent Motion to Reinstate Administratively Closed
Case, it is hereby
ORDERED that Defendants’ consent motion is GRANTED; and it is further
ORDERED that, on or before August 29, 2017, Defendants shall answer or otherwise
respond to Plaintiffs’ complaint in the above-captioned action.

Date: _____________________

____________________________________ LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE

 
 Case 1:17-cv-00441-LMB-IDD Document 38 Filed 08/25/17 Page 1 of 1 PageID# 287
UNITED STATES DISYR:ICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION AMERICAN CIVIL LffiERTIES UNION OF VIRGINIA, AMERICAN CIVIL LffiERTIES UNION OF MARYLAND, AMERICAN CIVIL LffiERTIES UNION OF PENNSYLVANIA, Case No.: 1: 17-cv-00441-LMB-IDD and AMERICAN CIVIL LffiERTIES UNION OF DELAWARE,
Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.
ORDER Upon consideration ofDefendants' Consent Motion to Reinstate Administratively Closed Case, it is hereby ORDERED that Defendants' consent motion is GRANTED; and it is further ORDERED that, on or before August 29, 2017, Defendants shall answer or otherwise respond to Plaintiffs' complaint in the above-captioned action.
Is/·~
Leonie M. Brinkema United States District Judge

 
 Case 1:17-cv-00441-LMB-IDD Document 39 Filed 08/29/17 Page 1 of 11 PageID# 288
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, Case No.: 1:17-cv-00441-LMB-IDD and AMERICAN CIVIL LIBERTIES UNION OF DELAWARE,
Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.
DEFENDANTS’ ANSWER The U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”) (collectively, “Defendants”), by and through their undersigned counsel, hereby answer the numbered paragraphs of Plaintiffs’ Complaint, ECF No. 1, in the abovecaptioned action. 1. The allegations contained in this paragraph consist of Plaintiffs’ characterization of their Complaint, to which no response is required. 2. The allegations contained in the first sentence of this paragraph consist of Plaintiffs’ characterization of their FOIA request, which does not require a response and to which Defendants respectfully refer the Court for a full and accurate statement of its contents. Defendants admit the allegations contained in the second sentence of this paragraph.
1

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3. The allegations contained in this paragraph consist of Plaintiffs’ characterization of their FOIA request, which does not require a response. To the extent a response is deemed required, Defendants aver that a true and correct copy of the request is attached to Plaintiffs’ Complaint as Exhibit A, and respectfully refer the Court to the request for a full and accurate statement of its contents.
4. The allegations contained in this paragraph consist of statements of law or legal conclusions, and do not set forth a claim for relief or aver facts in support of a claim to which a response is required. To the extent a response is deemed required, Defendants respectfully refer to the Court to the Executive Orders for a full and accurate statement of their contents.
5. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required.
6. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required. To the extent a response is deemed required, Defendants aver that the allegations in this paragraph purport to characterize judicial decisions and refer the Court to the contents of those decisions for a true and accurate statement of their contents.
7. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required. To the extent a response is deemed required, Defendants aver that the allegations in this paragraph purport to characterize news reports and refer the Court to the cited reports for a true and accurate statement of their contents.
8. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required. To the extent a response is
2

Case 1:17-cv-00441-LMB-IDD Document 39 Filed 08/29/17 Page 3 of 11 PageID# 290
deemed required, Defendants aver that the allegations in this paragraph purport to characterize official DHS statements and news reports and refer the Court to the cited materials for a true and accurate statement of their contents.
9. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required. To the extent a response is deemed required, Defendants aver that the allegations in this paragraph purport to characterize news reports and refer the Court to the cited materials for a true and accurate statement of their contents.
10. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required.
11. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required. To the extent a response is deemed required, Defendants aver that the allegations in this paragraph purport to characterize a news report and refer the Court to the cited materials for a true and accurate statement of their contents.
12. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required. To the extent a response is deemed required, Defendants aver that the allegations in this paragraph purport to characterize a news report and refer the Court to the cited materials for a true and accurate statement of their contents.
13. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required. To the extent a response is deemed required, Defendants aver that the allegations in this paragraph purport to characterize
3

Case 1:17-cv-00441-LMB-IDD Document 39 Filed 08/29/17 Page 4 of 11 PageID# 291
news reports and refer the Court to the cited materials for a true and accurate statement of their contents.
14. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required.
15. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required. To the extent a response is deemed required, Defendants aver that the allegations in this paragraph purport to characterize a news report and refer the Court to the cited materials for a true and accurate statement of their contents.
16. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required. To the extent a response is deemed required, Defendants aver that the allegations in this paragraph purport to characterize a news report and refer the Court to the cited materials for a true and accurate statement of their contents.
17. The allegations contained in this paragraph do not set forth a claim for relief or aver facts in support of a claim to which a response is required.
18. Defendants admit that more than 20 business days have elapsed since CBP received the FOIA request, but otherwise deny the allegations in this paragraph.
19. The allegations contained in this paragraph consist of legal conclusions regarding jurisdiction, to which no response is required.
20. The allegations contained in the first and second sentences of this paragraph consist of legal conclusions regarding venue, to which no response is required. The allegations contained in the third sentence of this paragraph do not set forth a claim for relief or aver facts in
4

Case 1:17-cv-00441-LMB-IDD Document 39 Filed 08/29/17 Page 5 of 11 PageID# 292
support of a claim to which a response is required. To the extent a response is deemed required, Defendants aver that the allegations in the third sentence of this paragraph purport to characterize a news report and refer the Court to the cited materials for a true and accurate statement of their contents. The allegations contained in the fourth sentence of this paragraph consist of legal conclusions regarding venue, to which no response is required.
21. The allegations contained in this paragraph consist of legal conclusions regarding assignment to this division, to which no response is required, or do not set forth a claim for relief or aver facts in support of a claim to which a response is required. To the extent a response is deemed required, Defendants aver that the allegations in this paragraph purport to characterize a news report and refer the Court to the cited materials for a true and accurate statement of their contents.
22. Defendants lack knowledge or information sufficient to form a belief as to the allegations in this paragraph.
23. Defendants admit that DHS is a department of the Executive Branch of the United States Government. The remainder of the allegations contained in this paragraph consist of legal conclusions, to which no response is required.
24. Defendants admit that CBP is a component of DHS. The remainder of the allegations contained in this paragraph consist of legal conclusions, to which no response is required.
25. The allegations contained in this paragraph consist of legal conclusions, to which no response is required.
26. Defendants admit that Plaintiffs sent a FOIA request dated February 2, 2017 to CBP’s Baltimore Field Office and CBP’s FOIA Officer at CBP’s Headquarters. Defendants lack
5

Case 1:17-cv-00441-LMB-IDD Document 39 Filed 08/29/17 Page 6 of 11 PageID# 293
knowledge or information sufficient to form a belief as to the remaining allegations in this paragraph.
27. The allegations contained in this paragraph consist of Plaintiffs’ characterization of their FOIA request, which does not require a response. To the extent a response is deemed required, Defendants aver that a true and correct copy of the request received by Defendants is attached as Exhibit A to Plaintiffs’ Complaint, and respectfully refer the Court to the request for a full and accurate statement of its contents.
28. The allegations contained in this paragraph consist of Plaintiffs’ characterization of their FOIA request, which does not require a response. To the extent a response is deemed required, Defendants aver that a true and correct copy of the request received by Defendants is attached as Exhibit A to Plaintiffs’ Complaint, and respectfully refer the Court to the request for a full and accurate statement of its contents.
29. The allegations contained in this paragraph consist of Plaintiffs’ characterization of their FOIA request, which does not require a response. To the extent a response is deemed required, Defendants aver that a true and correct copy of the request received by Defendants is attached as Exhibit A to Plaintiffs’ Complaint, and respectfully refer the Court to the request for a full and accurate statement of its contents.
30. The allegations contained in this paragraph consist of Plaintiffs’ characterization of their FOIA request, which does not require a response. To the extent a response is deemed required, Defendants aver that a true and correct copy of the request received by Defendants is attached as Exhibit A to Plaintiffs’ Complaint, and respectfully refer the Court to the request for a full and accurate statement of its contents.
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Case 1:17-cv-00441-LMB-IDD Document 39 Filed 08/29/17 Page 7 of 11 PageID# 294
31. The allegations contained in this paragraph consist of Plaintiffs’ characterization of their FOIA request, which does not require a response. To the extent a response is deemed required, Defendants aver that a true and correct copy of the request received by Defendants is attached as Exhibit A to Plaintiffs’ Complaint, and respectfully refer the Court to the request for a full and accurate statement of its contents.
32. The allegations contained in this paragraph consist of Plaintiffs’ characterization of their FOIA request, which does not require a response. To the extent a response is deemed required, Defendants aver that a true and correct copy of the request received by Defendants is attached as Exhibit A to Plaintiffs’ Complaint, and respectfully refer the Court to the request for a full and accurate statement of its contents.
33. The allegations contained in this paragraph consist of Plaintiffs’ characterization of their FOIA request, which does not require a response. To the extent a response is deemed required, Defendants aver that a true and correct copy of the request received by Defendants is attached as Exhibit A to Plaintiffs’ Complaint, and respectfully refer the Court to the request for a full and accurate statement of its contents.
34. Defendants admit that CBP’s Baltimore Field Office and CBP’s Headquarters received the FOIA request on February 3, 2017.
35. Defendants deny the allegations in this paragraph. 36. Admitted. 37. Admitted. 38. The allegations contained in this paragraph consist of legal conclusions regarding exhaustion, to which no response is required.
7

Case 1:17-cv-00441-LMB-IDD Document 39 Filed 08/29/17 Page 8 of 11 PageID# 295
39. This paragraph repeats and re-alleges the allegations contained in paragraphs 1 through 38. To the extent a response is deemed required, Defendants refer the Court to their responses to paragraphs 1 through 38 of the Complaint.
40. The allegations contained in this paragraph consist of legal conclusions, to which no response is required. To the extent a response is deemed required, Defendants deny the allegations contained in this paragraph.
41. The allegations contained in this paragraph consist of legal conclusions, to which no response is required. To the extent a response is deemed required, Defendants deny the allegations contained in this paragraph.
42. This paragraph repeats and re-alleges the allegations contained in paragraphs 1 through 38. To the extent a response is deemed required, Defendants refer the Court to their responses to paragraphs 1 through 38 of the Complaint.
43. The allegations contained in this paragraph consist of legal conclusions, to which no response is required. To the extent a response is deemed required, Defendants deny the allegations contained in this paragraph.
44. The allegations contained in this paragraph consist of legal conclusions, to which no response is required. To the extent a response is deemed required, Defendants deny the allegations contained in this paragraph.
45. The allegations contained in this paragraph consist of legal conclusions, to which no response is required.
46. This paragraph repeats and re-alleges the allegations contained in paragraphs 1 through 38. To the extent a response is deemed required, Defendants refer the Court to their responses to paragraphs 1 through 38 of the Complaint.
8

Case 1:17-cv-00441-LMB-IDD Document 39 Filed 08/29/17 Page 9 of 11 PageID# 296
47. The allegations contained in this paragraph consist of legal conclusions, to which no response is required.
48. The allegations contained in this paragraph consist of legal conclusions, to which no response is required. To the extent a response is deemed required, Defendants deny the allegations contained in this paragraph and aver that the agency has granted Plaintiffs’ request for expedited processing.
49. The allegations contained in this paragraph consist of legal conclusions, to which no response is required. To the extent a response is deemed required, Defendants deny the allegations contained in this paragraph and aver that the agency has granted Plaintiffs’ request for expedited processing.
The remaining paragraphs of the Complaint consist of Plaintiffs’ requested relief, to which no response is required.
Defendants hereby deny all allegations of the Complaint not otherwise specifically answered above.
FIRST DEFENSE This action is one of multiple related actions involving coordinated FOIA requests submitted to CBP by the American Civil Liberties Union and its affiliates. Depending on the course of the litigation, re-litigation of one or more issues or claims in this action may be precluded. /// ///
9

Case 1:17-cv-00441-LMB-IDD Document 39 Filed 08/29/17 Page 10 of 11 PageID# 297

Dated: August 29, 2017  

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
DANA J. BOENTE United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
MATTHEW J. BERNS JULIE STRAUS HARRIS Trial Attorneys, Federal Programs Branch
_________/s/_________________________ DENNIS C. BARGHAAN, JR. Deputy Chief, Civil Division Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, Virginia 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

10

Case 1:17-cv-00441-LMB-IDD Document 39 Filed 08/29/17 Page 11 of 11 PageID# 298

CERTIFICATE OF SERVICE
I hereby certify that on this date, I electronically filed the foregoing with the Clerk of
Court by using the CM/ECF system, which will transmit a true and correct copy of the same to
the following:
Maya Miriam Eckstein HUNTON & WILLIAMS LLP 951 E Byrd Street Riverfront Plaza Richmond, Virginia 23219 Tel: (804) 788-8200 Email: meckstein@hunton.com

Date: August 29, 2017

________/s/______________________ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

 
 Case 1:17-cv-00441-LMB-IDD Document 43 Filed 10/04/17 Page 1 of 9 PageID# 314

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

AMERICAN CIVIL LIBERTIES UNION OF )

VIRGINIA, AMERICAN CIVIL LIBERTIES ) Case No. 1:17-cv-00441-LMB-IDD

UNION OF MARYLAND, AMERICAN CIVIL )

LIBERTIES UNION OF PENNSYLVANIA, )

and AMERICAN CIVIL LIBERTIES UNION )

OF DELAWARE,

)

)

)

Plaintiffs,

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY and U.S. CUSTOMS AND

)

BORDER PROTECTION,

)

)

Defendants.

)

JOINT STATUS REPORT Pursuant to the Court’s September 14, 2017 Order (D.E. #42) requiring the parties to submit a Joint Status Report on October 4, 2017, the parties jointly submit this Report. For the reasons outlined below, the parties jointly request that the Court set October 25, 2017 as the date to submit a subsequent Joint Status Report and reschedule the scheduling conference currently set for October 11, 2017 to a date on or after November 1, 2017. 1. PLAINTIFFS’ POSITION Plaintiffs filed this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 on April 12, 2017, based on a FOIA request submitted to the U.S. Department of Homeland Security and U.S. Customs and Border Protection (“CBP” or “the agency”) on February 2, 2017; it is attached to the Complaint as Exhibit A (“the Request”) (D.E. #1). The Request sought records concerning CBP’s local implementation of President Trump’s January 27, 2017 Executive Order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” Exec. Order

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No. 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017) (“Executive Order No. 1”), as well as any other judicial order or executive directive issued regarding Executive Order No. 1, including President Trump’s March 6, 2017 Executive Order, identically titled, Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017) (“Executive Order No. 2) (collectively, the “Executive Orders”). The Request explicitly sought records from sites within the purview of the CBP’s Baltimore Field Office. These sites include Washington Dulles Washington Dulles International Airport, Baltimore Washington International Airport, Philadelphia International Airport, and Pittsburgh International Airport (“Local International Airports”) and Baltimore, Philadelphia, Pittsburgh, Port of Washington-Dulles and Wilmington (“Port of Entry Offices”).
Defendants filed a motion to transfer with the Judicial Panel on Multidistrict Litigation (“JPML”) and obtained a stay of this proceeding pending resolution of that motion. D.E. 36. Defendants’ efforts were unsuccessful, as the JPML denied Defendants’ transfer motion. D.E. 37.
Defendants have had Plaintiffs’ Request since February 2 and have had the Complaint in this matter since April 12. Yet, Defendants have yet to produce substantively responsive documents. While Defendants have made small initial releases of records, those records were not responsive to Plaintiffs’ Request, as the records appear to have been produced from CBP’s headquarters, rather than from the local sites within the purview of the CBP’s Baltimore Field Office (“Local Sites”), as explicitly sought in the Request.
Plaintiffs understand that Defendants have begun the effort to search for responsive records relating to the Local Sites, but Defendants have yet to advise Plaintiffs when they expect to produce those records. Plaintiffs further understand that Defendants have not applied search terms requested by Plaintiffs, are not searching files proposed by Plaintiffs, and are not searching for records from all appropriate custodians.
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Defendants’ continued protestations about their inability to timely produce records responsive to Plaintiffs’ Request stands against the fact that the Request was served on February 2 – more than eight months ago. Defendants have had a substantial amount of time in which to search for and produce responsive records. Further delays should not be countenanced.
Plaintiffs continue to believe that Defendants should be required to meet the January 12, 2018 deadline set forth in the Court’s August 31, 2017 Order (D.E. #40). While that deadline is for the completion of fact discovery, it similarly should be the deadline for the completion of Defendants’ production of all records responsive to Plaintiffs’ Request.
Accordingly, Plaintiffs believe the Court should set deadlines for Defendants’ production of responsive records, a Vaughn index, and a privilege log. Additionally, should the parties fail to reach agreement regarding the issues noted above – the application of certain search terms, the search for certain files, and the search for records from all appropriate custodians – Plaintiff will seek appropriate discovery about the sufficiency (or lack thereof) of Defendants search for and production of responsive documents.
Plaintiffs look forward to receiving from Defendants “a processing and production schedule in two weeks,” as promised by Defendants below. Plaintiffs anticipate addressing the propriety of that schedule in the next Joint Status Report and the Scheduling Conference. 2. DEFENDANTS’ POSITION
The FOIA Request at issue is attached to Plaintiffs’ Complaint and speaks for itself. Defendants are processing Plaintiffs’ Request as quickly as practicable and have begun making releases of records responsive to Plaintiffs’ Request on a rolling basis, including three releases on July 14, 2017, July 26, 2017, and September 21, 2017 (“Interim Releases”). Defendants’ Interim Releases focus primarily on information responsive to parts 2 through 4 of the Request, which seek certain numerical data, and parts 1(b) and 5 of the Request, which seek “‘guidance’ that was
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‘provided to DHS field personnel shortly’ after President Trump signed [Executive Order No. 1].” Additionally, some of the material in Defendants’ Interim Releases consisted of email exchanges between personnel at CBP’s headquarters and personnel in CBP field offices across the country, including personnel in CBP’s Baltimore Field Office.
These communications between personnel at CBP headquarters and personnel in the field offices are responsive to Plaintiffs’ Request. Though Plaintiffs’ Request seeks records “held” locally and disclaims records “held” at headquarters, this distinction is nonexistent in the context of electronic documents. By their nature, electronic communications between personnel at headquarters and personnel in the Baltimore Field Office are “held” both locally and at headquarters. While the copy of the email that the agency produced happens to be the copy that was located in the files of the custodian at CBP headquarters, that copy is identical to the copy that would be located in the files of the custodians at CBP field offices across the country.1
As Defendants previously explained, the agency has gathered over 8,600 potentially responsive email messages and attachments (“email records”), totaling over 23,700 pages2, from six custodians for the time period from January 27 through February 4, 2017 by searching for all email messages to or from these custodians during that period. The six custodians are the Director of Field Operations for the Baltimore Field Office, the Assistant Director of Field Operations for
1 For example, many emails already released by the agency consist of communications sent from personnel at CBP headquarters to the directors of field operations in all 20 field offices throughout the country. Plaintiffs’ suggestion that an email is only responsive if produced from a “local” field office custodian would mean that a single such email would need to be produced from the Baltimore Director of Field Operations in this case; from the Detroit Director of Field Operations in the related case in the Eastern District of Michigan; from the Chicago Director of Field Operations in the related case in the Northern District of Illinois; and so on for all field offices covered by the ACLU affiliate requests. That outcome would only delay the release of records and unnecessarily burden the agency, and is inconsistent with the purposes and requirements of the FOIA. 2 This total page count does not include spreadsheets attached to email messages, as it is difficult to translate spreadsheets into pages.
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the Baltimore Field Office, the Port Director for Baltimore-Washington International Airport, the Port Director for Philadelphia International Airport, the Port Director for Pittsburgh International Airport, and the Port Director for Washington Dulles International Airport. The agency identified these custodians as those most likely to possess email records responsive to the Request as the agency understands it.
Defendants also note that the CBP FOIA Office has received nearly 100 requests for information pertaining to Executive Order 13,769, and 21 of those requests are in litigation in district courts around the country. Nineteen of these requests were submitted by ACLU affiliates, and 15 of these requests are in litigation in thirteen cases brought by the requesting ACLU affiliate(s). For each of the 19 ACLU requests seeking records from CBP field offices, the agency identified the local custodians most likely to possess email records responsive to each respective request. Nationwide, the agency has identified 84 field office custodians across all 19 ACLU field office requests, in addition to the headquarters custodians whose records the agency is searching in connection with another ACLU request and other non-ACLU FOIA requests. From these 84 custodians, the agency gathered over 100,000 potentially responsive email records for the time period from January 27 through February 4, 2017 by searching for all email messages to or from those custodians during that period. These email records total approximately 275,000 pages of potentially responsive records for the agency to search and review. This total page count does not include several thousand spreadsheets attached to email messages, for the reason stated supra n.1.
In processing Plaintiffs’ request and the requests of other ACLU entities, as well as some of the others of the nearly 100 requests for information pertaining to Executive Order 13,769 that seek overlapping information, some coordination of the processing is equitable and fair to all of the requests. Further, such coordination will yield economies of scale in processing and review
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that will increase the efficiency and speed of the agency’s processing and response times. For example, coordinating review for the 19 ACLU field office requests would allow streamlined review of similar documents located across the field offices. It would also allow de-duplication of identical documents located in multiple field offices that cannot be achieved when searches are conducted separately by field office.
Plaintiffs in this case and the plaintiffs in some of the other cases brought by ACLU affiliates have proposed search terms for the agency to apply to these email records. Applying these proposed search terms has not significantly reduced the page count of the universe of potentially responsive email records. In the last couple of weeks, Defendants have been analyzing the proposed search terms to identify a set of search times that is reasonably calculated to identify responsive records, and intends to complete this analysis and reach out to Plaintiffs about search terms later this week.
The agency is also searching for non-email records but intends to prioritize processing of email records. The agency intends to assess whether additional searches are warranted based in part on its review of the records located in its initial searches, and Defendants are open to continuing discussions with Plaintiffs regarding the scope of the agency’s search.
Given the immense volume of potentially responsive records for review, Defendants cannot at this time provide a schedule for completion of processing these email records, although Defendants intend to continue making rolling interim releases of responsive records to Plaintiffs. Defendants note, however, that completing the processing of what is likely to be upwards of 200,000 pages of email records by January 12, 2018, as Plaintiffs suggest should be required, is both unlikely and inequitable in light of the agency’s FOIA obligations and resources. Moreover, until processing is complete, it would be premature to set a deadline for Defendants’ production
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of a Vaughn index.3 Defendants anticipate that they will be in a better position to discuss a processing and production schedule in two weeks, after they have completed the analysis of the proposed search terms, conferred with Plaintiffs about the search terms, and applied a reasonable set of search terms to the email records to ascertain the total number of pages requiring review and processing.
In response to Plaintiffs’ suggestion that they may seek discovery about Defendants’ search for and processing of responsive records, Defendants reiterate that discovery is generally unavailable to plaintiffs in FOIA actions. The adequacy of an agency’s search for records responsive to a FOIA request and the appropriateness of an agency’s decision to withhold information are ordinarily determined on the basis of declarations supplied by the agency at the summary judgment stage, which the court may direct the agency to supplement with additional information if the court finds that the agency’s initial submissions do not establish the agency’s compliance with the FOIA.
3 Plaintiffs also state that they “believe the Court should set [a] deadline[] for Defendants’ production of . . . a privilege log.” See Pls.’ Position, supra at 3. A separate privilege log is generally not produced in a FOIA case; rather, information regarding the agency’s privilege assertions and other statutory withholdings is provided in the agency’s declaration and Vaughn index. As the D.C. Circuit, which handles the appeals from a significant portion of the nation’s FOIA actions and is widely recognized for its expertise in the subject matter, has explained regarding an agency’s obligations in a FOIA case:
In a Vaughn index, an agency “indicates in some descriptive way which documents the agency is withholding and which FOIA exemptions it believes apply.” American Civil Liberties Union v. CIA, 710 F.3d 422, 432 (D.C. Cir. 2013). The name comes from Vaughn v. Rosen, which first established the process by which an agency may discharge its burden to justify withholding information under FOIA exemptions. See 484 F.2d 820, 826–828 (D.C. Cir. 1973). Although agencies frequently rely on Vaughn indices, “[t]he materials provided by the agency may take any form so long as they give the reviewing court a reasonable basis to evaluate the claim of privilege.” American Civil Liberties Union, 710 F.3d at 433 (quoting Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994)). DiBacco v. U.S. Army, 795 F.3d 178, 186 n.2 (D.C. Cir. 2015).
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DATED this 4th day of October, 2017.

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General
DANA J. BOENTE United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
JULIE STRAUS HARRIS Trial Attorney, Federal Programs Branch
________/s/_________________________ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

__________/s/___________________ Maya M. Eckstein (Va. Bar No. 41413) HUNTON & WILLIAMS LLP 951 E. Byrd St. Richmond, Virginia 23229 meckstein@hunton.com T: 804-788-8200 F: 804-343-4630
Leslie Chambers Mehta (Va. Bar No. 90437) Legal Director ACLU OF VIRGINIA 701 E. Franklin St., Ste. 1412 Richmond, VA 23219 lmehta@acluva.org T: 804-523-2152 F: 804-649-2733
Attorneys for Plaintiffs American Civil Liberties Union of Virginia, American Civil Liberties Union of Maryland, American Civil Liberties Union of Pennsylvania, and American Civil Liberties Union of Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

AMERICAN CIVIL LIBERTIES UNION OF )

VIRGINIA, AMERICAN CIVIL LIBERTIES ) Case No. 1:17-cv-00441-LMB-IDD

UNION OF MARYLAND, AMERICAN CIVIL )

LIBERTIES UNION OF PENNSYLVANIA, )

and AMERICAN CIVIL LIBERTIES UNION )

OF DELAWARE,

)

)

)

Plaintiffs,

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND

)

SECURITY and U.S. CUSTOMS AND

)

BORDER PROTECTION,

)

)

Defendants.

)

JOINT STATUS REPORT Pursuant to the Court’s October 10, 2017 Order (D.E. #44) requiring the parties to submit a Joint Status Report on October 25, 2017, the parties jointly submit this Report. The parties incorporate by reference their October 4, 2017 Joint Status Report (D.E. #42) and September 13, 2017 Joint Case Management Report (D.E. # 41). In their initial status report, the parties agreed that it was premature to set a schedule for discovery or other case deadlines. (D.E. #41). The parties jointly requested that the Court set October 4, 2017 as the deadline for the submission of another Joint Status Report and stated that they would confer cooperatively ahead of that submission. Id. In their October 4 Joint Status Report, the parties again jointly requested permission to defer any case scheduling, and to permit the parties to file another supplemental status report on October 25. (D.E. #42).

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For reasons set forth below, Plaintiffs now ask the Court to set a schedule requiring Defendants (i) to provide, within 14 days, an initial production from the 2,800 responsive emails they have already identified as potentially responsive to Plaintiffs’ Request (none of which have yet been produced); (ii) to produce, on a rolling basis at 30-day intervals, all records responsive to the request; (iii) to identify the date by which production of responsive records and any Vaughn index will be completed.
Defendants propose that the Court set a schedule of rolling releases of responsive, nonexempt records from the email records collected from six identified custodians under the purview of the Baltimore Field Office, with the first interim release scheduled for no earlier than 30 days after the upcoming status conference scheduled for November 3, 2017, successive releases every 30 days thereafter until completed. Defendants further propose that the parties provide the Court with quarterly joint status reports while Defendants’ processing of these records is ongoing. 1. PLAINTIFFS’ POSITION
Plaintiffs are the ACLU affiliates in states with ports of entry covered by the Baltimore Customs and Border Protection (“CBP”) Field Office. On February 2, 2017, they submitted a FOIA request seeking records related to CBP’s local interpretation and enforcement of President Trump’s January 27, 2017, Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” See Complaint (D.E. #1) & Ex. A. The order purported to halt refugee admissions and bar entrants from a number of predominantly Muslim countries from entering the United States. Id. at ¶ 4.
The requested records are of manifest public interest, due in part to the chaotic implementation of the Executive Order at Washington-Dulles International Airport and Philadelphia International Airport. Id. at ¶¶ 11-16. CBP officials at the airport – apparently relying on their interpretation of the Executive Order – detained a number of arriving passengers, some of
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whom were refused entry to the United States. Id. at ¶¶ 11-13 CPB officials at Dulles and Philadelphia also appeared to ignore court orders requiring that detained travelers have access to attorneys. Id. at ¶¶ 12, 14. Plaintiffs submitted their FOIA request specifically so that they could learn what happened at Dulles, Philadelphia and elsewhere during the Executive Order rollout.
But Defendants have had Plaintiffs’ Request for almost 9 months – since February 2, 2017 – and have yet to produce a single responsive record. While Defendants have made small, initial releases of records (a total of 469 pages; without duplicates, the total is 277 pages), those records are not responsive to Plaintiffs’ Request, which explicitly seeks documents from sites within the purview of the CBP’s Baltimore Field Office, i.e. Washington Dulles Washington Dulles International Airport, Baltimore Washington International Airport, Philadelphia International Airport, Pittsburgh International Airport, and “Port of Entry Offices” in Baltimore, Philadelphia, Pittsburgh, Port of Washington-Dulles and Wilmington (collectively “Local Sites”). Defendants’ initial release of records came solely from CBP’s headquarters, rather than the Local Sites, as explicitly sought in the Request. Indeed, the Request explicitly excludes CPB headquarters. And only a small handful of the 469 pages produced from CBP headquarters appear to have Baltimore Field Office personnel as recipients or senders. Plaintiffs understand that Defendants intend to release additional records this week, but, again, only from CPB headquarters, not from the Local Sites.
Defendants recently informed Plaintiffs that it expects to take 27 months to complete processing and releasing responsive email records only. This delay is untenable and unacceptable, and exacerbated by the fact that Defendants also have advised Plaintiffs that they have yet to collect or review documents other than emails, are limiting the email search to January 27 through February 4, 2017, and will not apply search terms specifically requested by Plaintiffs in an effort
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to capture responsive records, all in contravention of the Request. If Defendants meet their own proposed time frame, Defendants’ proposal means that their production of responsive records will not be complete for 36 months since receipt of Plaintiffs’ Request.
Even more surprising is that Defendants advised Plaintiffs that it has identified just “approximately 2,800 [email] records totaling approximately 9,100 pages held by custodians in the Baltimore Field Office.” 10/16/17 Email from J. Straus Harris to M. Eckstein (email string attached as Exh. 1). The agency asserts a review rate of “approximately 3,575 pages per month.” 10/20/17 Email from J. Straus Harris to M. Eckstein (Exh. 1). At that rate, it should be able to review and produce the approximately 9,100 pages of responsive email records in 2 ½ months. Yet, Defendants contend that they cannot be produced for 27 months.
Defendants’ continued protestations about their inability to timely produce records responsive to Plaintiffs’ Request stands against the fact that the Request was served on February 2 – more than nine months ago. Defendants have had a substantial amount of time in which to search for and produce responsive records. Further delays should not be countenanced.
Accordingly, Plaintiffs believe the Court should set a 14-day deadline for an initial production from the 2,800 responsive email records that Defendants have already identified as potentially responsive to Plaintiffs’ Request. Defendants also should be required to produce, on a rolling basis at 30-day intervals, all records – email and otherwise – responsive to the Request. Finally, the Court should set a date by which all responsive records will be produced and a Vaught index provided. Additionally, should the parties fail to reach agreement regarding the issues noted above – the application of certain search terms, the search for certain files, and the date range applicable to the Request – Plaintiff will seek appropriate discovery about, and/or move for
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summary judgment regarding, the sufficiency (or lack thereof) of Defendants’ search for and production of responsive documents. 2. DEFENDANTS’ POSITION
The FOIA Request at issue is attached to Plaintiffs’ Complaint and speaks for itself. Defendants are processing Plaintiffs’ Request as quickly as practicable and have begun making releases of records responsive to Plaintiffs’ Request on a rolling basis, including three releases on July 14, 2017, July 26, 2017, and September 21, 2017 (“Interim Releases”). The agency anticipates making another interim release of responsive records this week. Defendants’ Interim Releases focus primarily on information responsive to parts 2 through 4 of the Request, which seek certain numerical data, and parts 1(b) and 5 of the Request, which seek “‘guidance’ that was ‘provided to DHS field personnel shortly’ after President Trump signed [Executive Order No. 1].” Additionally, some of the material in Defendants’ Interim Releases consisted of email exchanges between personnel at CBP’s headquarters and personnel in CBP field offices across the country, including personnel in CBP’s Baltimore Field Office.
Despite Plaintiffs’ protestations to the contrary, these communications between personnel at CBP headquarters and personnel in the field offices are responsive to Plaintiffs’ Request. Though Plaintiffs’ Request seeks records “held” locally and disclaims records “held” at headquarters, this distinction is nonexistent in the context of electronic documents. By their nature, electronic communications between personnel at headquarters and personnel in the Baltimore Field Office are “held” both locally and at headquarters. While the copy of the email that the agency produced happens to be the copy that was located in the files of the custodian at CBP
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headquarters, that copy is identical to the copy that would be located in the files of the custodians at CBP field offices across the country.1
As Defendants previously explained, the agency has gathered over 8,600 potentially responsive email messages and attachments (“email records”), totaling over 23,700 pages2, from six custodians for the time period from January 27 through February 4, 2017 by searching for all email messages to or from these custodians during that period. The six custodians are the Director of Field Operations for the Baltimore Field Office, the Assistant Director of Field Operations for the Baltimore Field Office, the Port Director for Baltimore-Washington International Airport, the Port Director for Philadelphia International Airport, the Port Director for Pittsburgh International Airport, and the Port Director for Washington Dulles International Airport. The agency identified these custodians as those most likely to possess email records responsive to the Request as the agency understands it.
Defendants also note that the CBP FOIA Office has received nearly 100 requests for information pertaining to Executive Order 13,769, and 21 of those requests are in litigation in district courts around the country. Nineteen of these requests were submitted by ACLU affiliates, and 15 of these requests are in litigation in thirteen cases brought by the requesting ACLU affiliate(s). For each of the 19 ACLU requests seeking records from CBP field offices, the agency
1 For example, many emails already released by the agency consist of communications sent from personnel at CBP headquarters to the directors of field operations in all 20 field offices throughout the country. Plaintiffs’ suggestion that an email is only responsive if produced from a “local” field office custodian would mean that a single such email would need to be produced from the Baltimore Director of Field Operations in this case; from the Detroit Director of Field Operations in the related case in the Eastern District of Michigan; from the Chicago Director of Field Operations in the related case in the Northern District of Illinois; and so on for all field offices covered by the ACLU affiliate requests. That outcome would only delay the release of records and unnecessarily burden the agency, and is inconsistent with the purposes and requirements of the FOIA. 2 This total page count does not include spreadsheets attached to email messages, as it is difficult to translate spreadsheets into pages.
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identified the local custodians most likely to possess email records responsive to each respective request. Nationwide, the agency has identified 85 field office custodians across all 19 ACLU field office requests, in addition to the headquarters custodians whose records the agency is searching in connection with another ACLU request and other non-ACLU FOIA requests. From these 85 custodians, the agency gathered over 100,000 potentially responsive email records for the time period from January 27 through February 4, 2017 by searching for all email messages to or from those custodians during that period. These email records total approximately 275,000 pages of potentially responsive records for the agency to search and review. This total page count does not include several thousand spreadsheets attached to email messages, for the reason stated supra n.1.
In processing Plaintiffs’ request and the requests of other ACLU entities, as well as some of the others of the nearly 100 requests for information pertaining to Executive Order 13,769 that seek overlapping information, some coordination of the processing is equitable and fair to all of the requests. Further, such coordination will yield economies of scale in processing and review that will increase the efficiency and speed of the agency’s processing and response times. For example, coordinating review for the 19 ACLU field office requests would allow streamlined review of similar documents located across the field offices. It would also allow de-duplication of identical documents located in multiple field offices that cannot be achieved when searches are conducted separately by field office.
Plaintiffs in this case and the plaintiffs in some of the other cases brought by ACLU affiliates proposed search terms for the agency to apply to these email records. Applying these proposed search terms did not significantly reduce the page count of the universe of potentially responsive email records. Accordingly, over the last several weeks, Defendants have analyzed the proposed search terms to identify a set of search times that is reasonably calculated to identify
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responsive records. By email to Plaintiffs’ counsel dated October 16, 2017, Defendants’ counsel provided Plaintiffs with the “core list of search terms” that the agency has determined are reasonably calculated to identify records responsive to Plaintiffs’ FOIA request, as well as the FOIA requests submitted by the other ACLU affiliates. See Exh. 1.
As Defendants’ counsel explained in the October 16, 2017 email, and further explained in an email to Plaintiffs’ counsel dated October 20, 2017, the agency has loaded the email records collected from the 85 field office custodians across all 19 ACLU field office requests into a review platform that allows for deduplication and email threading, which enable considerable efficiencies. Id. To maximize the efficiencies gained by deduplication and email threading, the agency will conduct a single search across all of the custodians during the applicable time period, rather than run separate, sequential searches in the records collected from particular custodians or field offices. Id.
The agency has begun its review of these documents by applying the core list of search terms attached to Defendants’ counsel’s October 16, 2017 email. See id. These terms identify approximately 30,000 potentially responsive documents totaling approximately 90,000 pages, including approximately 2,800 documents totaling approximately 9,100 pages held by custodians in the Baltimore Field Office. Id. While the records from the Baltimore field office custodians amount to approximately 10% of these records by page count, as explained supra, in order to take advantage of the significant efficiencies gained by deduplication and email threading, the agency will not be processing the records identified from the Baltimore field office custodians in isolation. Id. For the consolidated review of the records of all 85 ACLU custodians, the agency has determined that it can process approximately 3,575 pages per month. Each month, those approximately 3,575 processed pages will include records from each of the field offices, so some
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fraction of each monthly release will consist of records from the Baltimore field office custodians. Based on this processing rate, the agency estimates that it will be able to complete processing and release of all responsive, non-exempt records from the 85 ACLU custodians within 27 months. The agency intends to release these records on a rolling basis. Defendants propose that the Court order quarterly status reports to advise the Court on the agency’s progress and to assure the Court that the agency is proceeding diligently under the circumstances.
This estimated completion date reflects the agency’s estimate as to when it will review all of the approximately 30,000 records identified by the agency’s core list of search terms across the 85 field office custodians. As Defendants have explained, centralization of the agency’s processing of these parallel requests allows for efficiencies from de-duplication across cases and streamlined review and treatment of similar records. The agency believes that this centralized review will allow for faster processing of records potentially responsive to all ACLU requests, and that production schedules for records tied to any particular field office will likely prevent the agency from ensuring that it is processing the requests in the most efficient way possible. In addition, this centralized review process will enhance the agency’s ability to ensure consistent and accurate treatment of exempt information, which may implicate sensitive government information and personally identifiable information pertaining to individual travelers.
Importantly, during this same time, the agency will continue to process and release responsive, non-exempt records located through searches of the records collected from personnel at CBP headquarters. As explained, supra, many emails collected from headquarters custodians
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(including many already released to Plaintiffs) consist of communications sent from personnel at headquarters to the directors of field operations in all 20 field offices throughout the country.
The agency is also searching for non-email records but intends to prioritize processing of email records. The agency intends to assess whether additional searches are warranted based in part on its review of the records located in its initial searches, and Defendants are open to continuing discussions with Plaintiffs regarding the scope of the agency’s search. Specifically, in the October 20, 2017 email from Defendants’ counsel to Plaintiffs’ counsel, Defendants noted that although the agency plans to move forward with a search consisting of the agency’s core list of search terms, the agency will later consider whether additional searches are reasonably calculated to identify additional records responsive to Plaintiffs’ request and, as part of that process, the agency will consider the additional search terms proposed by Plaintiffs in the October 20, 2017 email from Plaintiffs’ counsel to Defendants’ counsel. See Exh. 1. As in any FOIA case, the agency is entitled to determine in the first instance what search is reasonable and adequate. Further, as Defendants’ counsel explained in the October 20, 2017 email to Plaintiffs’ counsel, the agency is unlikely to adopt search terms that appear calculated solely to seek records with respect to the identity of particular individual travelers. Setting aside whether such terms would be reasonably likely to identify records responsive to the request, such terms would likely raise significant privacy concerns.
In response to Plaintiffs’ suggestion that they may seek discovery about Defendants’ search for and processing of responsive records, Defendants reiterate that discovery is generally unavailable to plaintiffs in FOIA actions. The adequacy of an agency’s search for records responsive to a FOIA request and the appropriateness of an agency’s decision to withhold information are ordinarily determined on the basis of declarations supplied by the agency at the
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summary judgment stage, which the court may direct the agency to supplement with additional information if the court finds that the agency’s initial submissions do not establish the agency’s compliance with the FOIA.

DATED this 25th day of October, 2017.

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General
DANA J. BOENTE United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
JULIE STRAUS HARRIS Trial Attorney, Federal Programs Branch
_______/s/__________________________ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

________/s/_____________________ Maya M. Eckstein (Va. Bar No. 41413) HUNTON & WILLIAMS LLP 951 E. Byrd St. Richmond, Virginia 23229 meckstein@hunton.com T: 804-788-8200 F: 804-343-4630
Leslie Chambers Mehta (Va. Bar No. 90437) Legal Director ACLU OF VIRGINIA 701 E. Franklin St., Ste. 1412 Richmond, VA 23219 lmehta@acluva.org T: 804-523-2152 F: 804-649-2733
Attorneys for Plaintiffs American Civil Liberties Union of Virginia, American Civil Liberties Union of Maryland, American Civil Liberties Union of Pennsylvania, and American Civil Liberties Union of Delaware

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EXHIBIT 1

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From: To: Cc: Subject: Date:

Straus Harris, Julie (CIV) Eckstein, Maya Barghaan, Dennis (USAVAE) RE: ACLU-Virginia v. DHS Friday, October 20, 2017 3:14:18 PM

Maya,

Thank you for getting the ball rolling on the next JSR. I will actually be traveling Tuesday and Wednesday next week for a hearing on Wednesday morning, so my response time during that period will likely be delayed; accordingly, it would be great to get as much of this worked out before Tuesday afternoon as possible.

As explained in my email below, the agency has determined that it can maximize efficiency in its review by conducting a single search across all of the 85 custodians for the parallel requests submitted by ACLU affiliates across the country ( “ACLU custodians”), rather than running separate, sequential searches in the records collected from particular custodians or field offices. As also explained below, applying search terms to all of these records has yielded approximately 30,000 potentially responsive documents totaling approximately 90,000 pages. While the records from the Baltimore field office custodians amount to approximately 10% of these records by page count, the agency will not be processing them in isolation. For the consolidated review of the records of all 85 ACLU custodians, the agency has determined that it can process approximately 3,575 pages per month. Each month, those ~3,575 processed pages will include records from each of the field offices, so some fraction (which will likely vary from month-to-month) of each monthly release will consist of records from the Baltimore field office custodians. Based on this processing rate, the agency expects to complete processing and release of all responsive, non-exempt records from the 85 ACLU custodians within 27 months. Importantly, during this same time, the agency will continue to process and release to you responsive, non-exempt records located through searches of the records collected from personnel at CBP headquarters. (As explained in the last JSR, many emails collected from headquarters custodians (including many already released to you by the agency) consist of communications sent from personnel at headquarters to the directors of field operations in all 20 field offices throughout the country.) Also, as previously explained, the agency will also be searching for non-email records but intends to prioritize processing of email records.

With respect to your request regarding the additional search terms you proposed on September 11, 2017, the agency plans to move forward with its current search consisting of the core set of search terms attached to my prior email for the reasons stated there. As I stated in that email, the agency will later consider whether additional searches are reasonably calculated to identify additional records responsive to your request and, as part of that process, the agency will consider your additional proposed search terms. As in any FOIA case, the agency is entitled to determine in the first instance what search is reasonable and adequate. Please note that the agency is unlikely in any event to adopt search terms that appear calculated solely to seek records with respect to the identity of particular individual travelers. Setting aside whether such terms would be reasonably likely to identify records responsive to the request, such terms would likely raise significant privacy concerns.

Case 1:17-cv-00441-LMB-IDD Document 45-1 Filed 10/24/17 Page 3 of 5 PageID# 338
Additionally, the agency expects to make its next interim release to you next week. As requested, the release will be sent to Mitra. I want to make sure you are aware of this upcoming release so that you can coordinate with Mitra given that this was an issue for the release last month.
Thank you, Julie
Julie Straus Harris Trial Attorney U.S. Department of Justice, Civil Division Federal Programs Branch (202) 353-7633 Julie.StrausHarris@usdoj.gov

From: Eckstein, Maya [mailto:meckstein@hunton.com] Sent: Friday, October 20, 2017 9:29 AM To: Straus Harris, Julie (CIV) <julharri@CIV.USDOJ.GOV> Cc: Barghaan, Dennis (USAVAE) <Dennis.Barghaan@usdoj.gov> Subject: RE: ACLU-Virginia v. DHS

Julie,

Thank you for this update.

Please advise when you expect to be able to review and produce documents specific to the Baltimore Field Office. With your search terms resulting in just “approximately 2800 documents totaling approximately 9100 pages”, it should not take a considerable amount of time to review and produce them.

In addition, we ask that you apply the following search terms, previously provided to you on Sept. 11, 2017, to the “approximately 6,600 documents totaling approximately 18,200 pages held by custodians in the Baltimore Field Office.”

A. Warner [US Senator]

B. Kaine [US Senator]

C.

Beyer [US Representative for VA]

D. Raskin [US Representative for MD]

E.

Kenney [Philadelphia mayor]

F.

Brady [US Representative for PA]

G. Casey [US Senator]

H. Wolf [PA Gov]

I.

Evans [US Representative for PA]

Case 1:17-cv-00441-LMB-IDD Document 45-1 Filed 10/24/17 Page 4 of 5 PageID# 339

J.

Harris [state representative for PA]

K. Sims [state representative for PA]

L.

Aziz [barred native of Yemen]

M. Al Murisi [barred native of Yemen]

Please advise us of the document and page count resulting from the application of these search terms to these documents.

Please provide this information by Monday, so that we can advise the Court in the status report due on Wednesday.

We are making these requests without any waiver of our objections to the search conducted by the agency thus far.

Maya

Maya Eckstein meckstein@hunton.com Hunton & Williams LLP Riverfront Plaza 951 East Byrd Street Richmond, VA 23219 Phone: (804) 788-8788
2200 Pennsylvania Ave., N.W. Washington, D.C. 20037 Phone: (202) 955-1960
This communication is confidential and is intended to be privileged pursuant to applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this message in error, please notify Hunton & Williams LLP immediately by telephone (877-374-4937) and by electronic mail to: help_desk@hunton.com and then delete this message and all copies and backups thereof.

From: Straus Harris, Julie (CIV) [mailto:Julie.StrausHarris@usdoj.gov] Sent: Monday, October 16, 2017 9:22 PM To: Eckstein, Maya Cc: Barghaan, Dennis (USAVAE) Subject: ACLU-Virginia v. DHS
Counsel,
I am writing to update you on CBP’s search for documents responsive to your FOIA request, and the parallel requests brought in other districts.
The agency has identified three classes of field office custodians whose email records have been collected and will be searched in response to these requests: Directors of Field Operations, Assistant

Case 1:17-cv-00441-LMB-IDD Document 45-1 Filed 10/24/17 Page 5 of 5 PageID# 340
Directors of Field Operations, and Port Directors. There are 85 such custodians in the field offices subject to these parallel requests, including 6 in the Baltimore Field Office. The agency is searching these email records from January 27 through February 4, 2017.
The agency has loaded these documents into a review platform that allows for deduplication and email threading, which enable considerable efficiencies. Deduplication and email threading are being been applied across all identified field office custodians for the applicable date range. After completing that process, there are approximately 100,000 documents totaling approximately 275,000 pages, including approximately 6,600 documents totaling approximately 18,200 pages held by custodians in the Baltimore Field Office. To maximize the efficiencies gained by deduplication and email threading, however, the agency will conduct a single search across all of the custodians during the applicable time period, rather than run separate, sequential searches in the records collected from particular custodians or field offices.
The agency has begun its review of these documents by applying a core list of search terms, which is attached to this email. These terms identify approximately 30,000 potentially responsive documents totaling approximately 90,000 pages, including approximately 2,800 documents totaling approximately 9,100] pages held by custodians in the Baltimore Field Office. The list of core search terms was largely derived from the terms suggested by you and some of your colleagues around the country. The agency reviewed and analyzed all of the search terms suggested by the ACLU affiliates. Where suggested terms were omitted, it was because the agency determined that they would return a large proportion of unresponsive documents and that responsive records containing those search terms were likely to contain other terms on the core list attached here. The agency intends to review the documents identified by its core search terms for responsiveness and for any information that should be withheld pursuant to a FOIA exemption, and to release responsive, nonexempt documents on a rolling basis. That review is now underway. As it nears completion, the agency will consider whether additional searches are reasonably likely to identify additional records responsive to your request.
Please let me know if you have any questions about this process.
Julie
Julie Straus Harris Trial Attorney U.S. Department of Justice, Civil Division Federal Programs Branch (202) 353-7633 Julie.StrausHarris@usdoj.gov

 
 Case 1:17-cv-00441-LMB-IDD Document 61 Filed 03/15/18 Page 1 of 2 PageID# 468
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, Case No.: 1:17-cv-00441-LMB-IDD and AMERICAN CIVIL LIBERTIES UNION OF DELAWARE,
Plaintiffs, v. U.S. DEPARTMENT OF HOMELAND SECURITY, and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.
JOINT STATUS REPORT Pursuant to the Court’s January 11, 2018 order (“Order”), plaintiffs American Civil Liberties Union of Virginia, American Civil Liberties Union of Maryland, American Civil Liberties Union of Pennsylvania, and American Civil Liberties Union of Delaware, and defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection (“the agency”) hereby advise the Court as follows regarding the agency’s progress in processing plaintiffs’ FOIA request: 1. The agency represents that between the date of the Court’s Order and February 28, 2018, the agency has completed processing 914 pages of potentially responsive email messages and attachments, as well as 8 spreadsheets, from the files of custodians in the Baltimore Field Office. 2. The agency further represents that in four interim responses sent to plaintiffs on

Case 1:17-cv-00441-LMB-IDD Document 61 Filed 03/15/18 Page 2 of 2 PageID# 469

January 16, January 19, February 27, and February 28, 2018, the agency has produced to plaintiffs 914 pages of responsive email messages and attachments from the files of custodians in the Baltimore Field Office.

Dated: March 15, 2018
___/s/__________________________ Maya M. Eckstein (Va. Bar No. 41413) HUNTON & WILLIAMS LLP 951 E. Byrd St. Richmond, Virginia 23229 meckstein@hunton.com T: 804-788-8200 F: 804-343-4630
Attorney for Plaintiffs American Civil Liberties Union of Virginia, American Civil Liberties Union of Maryland, American Civil Liberties Union of Pennsylvania, and American Civil Liberties Union of Delaware

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
TRACY DOHERTY-McCORMICK Acting United States Attorney
ELIZABETH J. SHAPIRO  Deputy Director, Federal Programs Branch
JULIE STRAUS HARRIS Trial Attorney, Federal Programs Branch
/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 Email: dennis.barghaan@usdoj.gov
Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

2

 
 Case 1:17-cv-00441-LMB-IDD Document 76 Filed 06/05/19 Page 1 of 2 PageID# 503

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, and AMERICAN CIVIL LIBERTIES UNION OF DELAWARE,
Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.

Case No. 1:17-cv-00441-LMB-IDD

STIPULATION OF DISMISSAL OF ACTION WITH PREJUDICE Plaintiffs American Civil Liberties Union of Virginia, American Civil Liberties Union of Maryland, American Civil Liberties Union of Pennsylvania, and American Civil Liberties Union of Delaware and defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection, by and through their undersigned counsel, stipulate that the above-captioned action is dismissed with prejudice in its entirety under Federal Rule of Civil Procedure 41(a)(1)(A)(ii), each side to bear its own costs, fees, and expenses.

Case 1:17-cv-00441-LMB-IDD Document 76 Filed 06/05/19 Page 2 of 2 PageID# 504

Dated: May 17, 2019
/s/ Maya M. Eckstein (Va. Bar No. 41413) HUNTON ANDREWS KURTH LLP 951 E. Byrd St. Richmond, Virginia 23229 meckstein@hunton.com T: 804-788-8200 F: 804-343-4630
Attorney for Plaintiffs American Civil Liberties Union of Virginia, American Civil Liberties Union of Maryland, American Civil Liberties Union of Pennsylvania, and American Civil Liberties Union of Delaware

Dated: May 17, 2019
JOSEPH H. HUNT Assistant Attorney General
G. ZACHARY TERWILLIGER United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
GARRETT COYLE Trial Attorney, Federal Programs Branch
/s/ DENNIS C. BARGHAAN, JR. Assistant U.S. Attorney 2100 Jamieson Avenue Alexandria, VA 22314 Tel: (703) 299-3891 Fax: (703) 299-3983 E-mail: dennis.barghaan@usdoj.gov
Counsel for Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection

2

 
 U.S. District Court Eastern District of Virginia - (Alexandria) CIVIL DOCKET FOR CASE #: 1:17-cv-00441-LMB-IDD

American Civil Liberties Union of Virginia et al v. U.S. Date Filed: 04/12/2017

Department of Homeland Security et al

Date Terminated: 06/05/2019

Assigned to: District Judge Leonie M. Brinkema

Jury Demand: None

Referred to: Magistrate Judge Ivan D. Davis

Nature of Suit: 895 Freedom of

Cause: 05:552 Freedom of Information Act

Information Act

Jurisdiction: U.S. Government

Defendant

Plaintiff
American Civil Liberties Union of Virginia

represented by Maya Miriam Eckstein Hunton Andrews Kurth LLP 951 E Byrd St Riverfront Plaza Richmond, VA 23219 (804) 788-8200 Email: meckstein@hunton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties of Maryland

John Jay Range Hunton Andrews Kurth LLP 2200 Pennsyvania Ave NW Washington, DC 20037 (202) 955-1500 Email: jrange@hunton.com ATTORNEY TO BE NOTICED
represented by Maya Miriam Eckstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
American Civil Liberties Union of Pennsylvania

John Jay Range (See above for address) ATTORNEY TO BE NOTICED
represented by Maya Miriam Eckstein (See above for address) LEAD ATTORNEY

Plaintiff American Civil Liberties of Delaware
Defendant U.S. Department of Homeland Security
Defendant U.S. Customs and Border Protection

ATTORNEY TO BE NOTICED
John Jay Range (See above for address) ATTORNEY TO BE NOTICED
represented by Maya Miriam Eckstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Jay Range (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis Carl Barghaan , Jr. United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299-3700 Email: dennis.barghaan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Carl Barghaan , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/12/2017
04/13/2017

# Docket Text
1 COMPLAINT against U.S. Customs and Border Protection, U.S. Department of Homeland Security ( Filing fee $ 400, receipt number 0422-5471604.), filed by American Civil Liberties Union of Virginia, American Civil Liberties of Maryland, American Civil Liberties of Delaware, American Civil Liberties Union of Pennsylvania. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet)(acha, ) (Entered: 04/12/2017)
2 Corporate Disclosure Statement by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Entered: 04/13/2017)

04/13/2017 04/18/2017 04/18/2017 04/18/2017 04/19/2017
04/19/2017
04/19/2017 04/19/2017

3 Proposed Summons by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Entered: 04/13/2017)
Notice of Correction re 3 Proposed Summons. Filing user notified to file completed proposed summons for EACH defendant. (dvanm, ) (Entered: 04/18/2017)
4 Proposed Summons re 1 Complaint, Customs and Border Protection by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Entered: 04/18/2017)
5 Proposed Summons re 1 Complaint, Department of Homeland Security by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Entered: 04/18/2017)
6 DOCUMENT REMOVED - FILED IN ERROR - Proposed Summons re 1 Complaint, U.S. Department of Homeland Security by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Main Document 6 replaced on 4/20/2017) (dvanm, ). Modified on 4/20/2017 (dvanm, ). (Entered: 04/19/2017)
7 DOCUMENT REMOVED - FILED IN ERROR - Proposed Summons re 1 Complaint, United States Customs and Border Protection by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Main Document 7 replaced on 4/20/2017) (dvanm, ). Modified on 4/20/2017 (dvanm, ). (Entered: 04/19/2017)
8 Proposed Summons re 1 Complaint, Civil Process Clerk, United States Attorney's Office by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Entered: 04/19/2017)
9 DOCUMENT REMOVED - FILED IN ERROR - Proposed Summons re 1 Complaint, Civil Process Clerk, United States Attorney's Office by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Main Document 9 replaced on 4/20/2017) (dvanm, ). Modified on 4/20/2017 (dvanm, ). (Entered: 04/19/2017)

04/19/2017 04/19/2017 04/19/2017 04/19/2017 04/20/2017 04/26/2017 04/26/2017 04/26/2017

10 Proposed Summons re 1 Complaint, United States Department of Homeland Security by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Entered: 04/19/2017)
11 Proposed Summons re 1 Complaint, United States Customs and Border Protection by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Entered: 04/19/2017)
12 Proposed Summons re 1 Complaint, United States Department of Justice by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Entered: 04/19/2017)
13 DOCUMENT REMOVED - FILED IN ERROR - Proposed Summons re 1 Complaint, United States Department of Justice by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Main Document 13 replaced on 4/20/2017) (dvanm, ). Modified on 4/20/2017 (dvanm, ). (Entered: 04/19/2017)
14 Summons Issued as to U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Attorney and U.S. Attorney General NOTICE TO ATTORNEY: Print out two electronically issued summons and one copy of the attachments for each defendant to be served with the complaint. (Attachments: # 1 Notice)(dvanm, ) (Entered: 04/20/2017)
15 AFFIDAVIT re 14 Summons Issued as to USA, 1 Complaint, Affidavit of Service by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Main Document 15 replaced on 4/27/2017) (dvanm, ). (Entered: 04/26/2017)
16 CERTIFICATE of Service Acknowledgement of Receipt by U.S. Department of Homeland Security re 1 Complaint, 10 Proposed Summons, by Maya Miriam Eckstein on behalf of American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland (Eckstein, Maya) (Main Document 16 replaced on 4/27/2017) (dvanm, ). (Entered: 04/26/2017)
17 CERTIFICATE of Service U.S. Department of Customs and Border Protection re 11 Proposed Summons, 1 Complaint, by Maya Miriam

04/26/2017
04/27/2017 04/27/2017 05/09/2017 05/09/2017 05/11/2017 05/12/2017 05/17/2017 05/17/2017

Eckstein on behalf of American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland (Eckstein, Maya) (Main Document 17 replaced on 4/27/2017) (dvanm, ). (Entered: 04/26/2017)
18 CERTIFICATE of Service Acknowledgement of Receipt by U.S. Department of Justice re 1 Complaint, 12 Proposed Summons, by Maya Miriam Eckstein on behalf of American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland (Eckstein, Maya) (Main Document 18 replaced on 4/27/2017) (dvanm, ). (Entered: 04/26/2017)
Notice of Correction re 17 Certificate of Service, 16 Certificate of Service, 15 Affidavit, 18 Certificate of Service. The filing user has been notified to re-file the service returns in paper form as they are exempt from ECF. Documents have been removed as filed in error. (dvanm, ) (Entered: 04/27/2017)
19 SUMMONS Returned Executed by American Civil Liberties Union of Virginia, American Civil Liberties of Maryland, American Civil Liberties of Delaware, American Civil Liberties Union of Pennsylvania. U.S. Attorney served on 4/24/2017, answer due 6/23/2017. (dvanm, ) (Entered: 04/27/2017)
20 NOTICE of Appearance by Dennis Carl Barghaan, Jr on behalf of U.S. Customs and Border Protection, U.S. Department of Homeland Security (Barghaan, Dennis) (Entered: 05/09/2017)
21 NOTICE by U.S. Customs and Border Protection, U.S. Department of Homeland Security (Attachments: # 1 Exhibit Index, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Barghaan, Dennis) (Entered: 05/09/2017)
22 MOTION for Extension of Time to File Answer re 1 Complaint, (Unopposed) by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 05/11/2017)
23 ORDER granting 22 Motion for Extension of Time to Answer; it is furtherORDERED that, on or before July 7, 2017, defendants shall answer or otherwise respond to plaintiffs' complaint in the above-captioned action. Signed by District Judge Leonie M. Brinkema on 05/12/2017. (dvanm, ) (Entered: 05/12/2017)
24 MOTION to Stay Proceedings Pending Decision on Motion to Transfer by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 05/17/2017)
25 Memorandum in Support re 24 MOTION to Stay Proceedings Pending Decision on Motion to Transfer filed by U.S. Customs and Border

05/18/2017 05/24/2017 05/24/2017
05/30/2017 05/31/2017 05/31/2017
06/01/2017 06/06/2017 06/06/2017

Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 05/17/2017)
Notice of Correction re 24 MOTION to Stay Proceedings Pending Decision on Motion to Transfer The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (clar, ) (Entered: 05/18/2017)
26 Notice of Hearing Date set for 6/16/2017 re 24 MOTION to Stay Proceedings Pending Decision on Motion to Transfer (Barghaan, Dennis) (Entered: 05/24/2017)
27 ORDER - Defendants have noticed a hearing on their Motion to Stay Proceedings Pending Decision on Motion to Transfer 24 for June 16, 2017. 26 . The Court is not conducting a docket on that day. Accordingly, it is hereby ORDERED that the parties confer regarding availability and renotice the hearing for June23, June 30, or July 7, 2017 at 10:00 a.m. Signed by District Judge Leonie M. Brinkema on 05/24/2017. (dvanm, ) (Entered: 05/24/2017)
28 Memorandum in Opposition re 24 MOTION to Stay Proceedings Pending Decision on Motion to Transfer filed by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Entered: 05/30/2017)
29 Notice of Hearing Date (Amended) set for 6/30/2017 re 24 MOTION to Stay Proceedings Pending Decision on Motion to Transfer (Barghaan, Dennis) (Entered: 05/31/2017)
30 Memorandum in Opposition re 24 MOTION to Stay Proceedings Pending Decision on Motion to Transfer filed by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Attachments: # 1 Exhibit Exhibit A)(Eckstein, Maya) (Entered: 05/31/2017)
Reset Deadlines as to 24 MOTION to Stay Proceedings Pending Decision on Motion to Transfer. Motion Hearing set for 6/30/2017 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 06/01/2017)
31 NOTICE by U.S. Customs and Border Protection, U.S. Department of Homeland Security of Reply Brief Filed With the United States Judicial Panel on Multidistrict Litigation (Attachments: # 1 Reply Brief)(Barghaan, Dennis) (Entered: 06/06/2017)
32 REPLY to Response to Motion re 24 MOTION to Stay Proceedings Pending Decision on Motion to Transfer filed by U.S. Customs and

06/20/2017 06/23/2017 06/23/2017
06/26/2017 08/25/2017 08/25/2017
08/29/2017 08/31/2017
09/13/2017 09/14/2017

Border Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 06/06/2017)
33 NOTICE by U.S. Customs and Border Protection, U.S. Department of Homeland Security re 24 MOTION to Stay Proceedings Pending Decision on Motion to Transfer (Attachments: # 1 District of Maine Order)(Barghaan, Dennis) (Entered: 06/20/2017)
34 NOTICE of Appearance by John Jay Range on behalf of American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland (Range, John) (Entered: 06/23/2017)
35 NOTICE by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland of Supplemental Authorities (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Range, John) (Entered: 06/23/2017)
36 ORDER granting 24 Motion to Stay. Signed by District Judge Leonie M. Brinkema on 06/26/2017. (dvanm, ) (Entered: 06/26/2017)
37 Consent MOTION to Reopen Case by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 08/25/2017)
38 ORDER - It is hereby ORDERED that Defendants' consent motion 37 is GRANTED; and it is further ORDERED that, on or before August 29, 2017, Defendants shall answer or otherwise respond to Plaintiffs' complaint in the above-captioned action. Signed by District Judge Leonie M. Brinkema on 8/25/17. (gwalk, ) (Entered: 08/25/2017)
39 ANSWER to 1 Complaint, by U.S. Customs and Border Protection, U.S. Department of Homeland Security.(Barghaan, Dennis) (Entered: 08/29/2017)
40 SCHEDULING ORDER: Initial Pretrial Conference set for 9/20/2017 at 11:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. Discovery due by 1/12/2018. Final Pretrial Conference set for 1/18/2018 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. Signed by District Judge Leonie M. Brinkema on 8/31/17. (Attachments: # 1 Mag.Consent, # 2 Pretrial Notice)(yguy) (Entered: 08/31/2017)
41 Discovery Plan by U.S. Customs and Border Protection, U.S. Department of Homeland Security.(Barghaan, Dennis) (Entered: 09/13/2017)
42 ORDERED that the parties' request to continue the Initial Pretrial Conference is GRANTED. The Initial Pretrial Conference is continued to 10/11/2017 at 11:00 a.m.; that the parties shall file a Joint Status Report by

09/14/2017 10/04/2017 10/10/2017
10/10/2017 10/24/2017 11/03/2017 11/03/2017
12/12/2017

no later than close of business on 10/4/2017. Signed by Magistrate Judge Ivan D. Davis on 9/14/2017. (rban, ) (Entered: 09/14/2017)
Reset Scheduling Order Deadline: Initial Pretrial Conference reset for 10/11/2017 at 11:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (rban, ) (Entered: 09/14/2017)
43 STATUS REPORT (Joint) by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 10/04/2017)
44 ORDER re 43 Status Report filed by U.S. Department of Homeland Security, U.S. Customs and Border Protection. Finding that the request is reasonable given the issues raised by counsel, the request is GRANTED and it is hereby ORDERED that the parties file their next Joint Status Report by October 25, 2017 and appear in court for a scheduling conference Friday, November 3, 2017 at 10:00 am. Signed by District Judge Leonie M. Brinkema on 10/10/2017. (dvanm, ) (Entered: 10/10/2017)
Reset Scheduling Order Deadline: Initial Pretrial Conference set for 11/3/2017 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (dvanm, ) (Entered: 10/10/2017)
45 STATUS REPORT (Joint) by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Exhbit 1)(Barghaan, Dennis) (Entered: 10/24/2017)
46 Minute Entry for proceedings held before Magistrate Judge Ivan D. Davis:Initial Pretrial Conference held on 11/3/2017. Appearances of Counsel for Plaintiff and Defendants. Discovery Plan approved. Order to issue. (lgue, ) (Entered: 11/03/2017)
47 Order Rule 16(b) Scheduling Order. Pursuant to Rule 16(b) and the Court's October 10, 2017 Order, a pretrial conference was held in this matter on November 3, 2017. Upon consideration of the representations made by the parties in their Joint Case Management and Discovery Plan 41 and for the reasons discussed during the pretrial conference, the Court makes the following rulings: The Discovery Plan filed by the parties is approved and shall control discovery to the extent of its application unless further modified by the Court(see order for further details). Signed by Magistrate Judge Ivan D. Davis on 11/03/2017. (lgue, ) (Entered: 11/03/2017)
48 MOTION to Vacate 40 Scheduling Order, by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 12/12/2017)

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49 Memorandum in Support re 48 MOTION to Vacate 40 Scheduling Order, filed by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Declaration)(Barghaan, Dennis) (Entered: 12/12/2017)
50 Notice of Hearing Date set for 1/5/2018 re 48 MOTION to Vacate 40 Scheduling Order, (Barghaan, Dennis) (Entered: 12/12/2017)
Set Deadlines as to 48 MOTION to Vacate 40 Scheduling Order, . Motion Hearing set for 1/5/2018 at 10:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. (clar, ) (Entered: 12/13/2017)
MOTIONS REFERRED to Magistrate Judge: Davis. 48 MOTION to Vacate 40 Scheduling Order, (clar, ) (Entered: 12/13/2017)
Set/Reset Deadlines as to 48 MOTION to Vacate 40 Scheduling Order. Motion Hearing set for 1/5/2018 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (gwalk, ) (Entered: 12/18/2017)
51 ORDER - Before the Court is defendants' Motion to Vacate Scheduling Order 48 which they have noticed for oral argument on Friday, January 5, 2018, a day the Court is not hearing motions. Accordingly, it is hereby ORDERED that the motion be renoticed for a hearing on Friday, January 12,2018 at 10:00 a.m. before the undersigned judge. Signed by District Judge Leonie M. Brinkema on 12/19/2017. (dvanm, ) (Entered: 12/19/2017)
52 Withdrawal of Motion by U.S. Customs and Border Protection, U.S. Department of Homeland Security re 48 MOTION to Vacate 40 Scheduling Order, (Without Prejudice) (Barghaan, Dennis) (Entered: 12/21/2017)
53 MOTION to Vacate 40 Scheduling Order, (Revised) by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 12/21/2017)
54 Memorandum in Support re 53 MOTION to Vacate 40 Scheduling Order, (Revised) filed by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Howard Declaration)(Barghaan, Dennis) (Entered: 12/21/2017)
55 Notice of Hearing Date set for 1/12/18 re 53 MOTION to Vacate 40 Scheduling Order, (Revised) (Barghaan, Dennis) (Entered: 12/21/2017)
Set Deadlines as to 53 MOTION to Vacate 40 Scheduling Order, (Revised). Motion Hearing set for 1/12/2018 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 12/22/2017)

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01/03/2018 01/08/2018 01/11/2018 01/11/2018

56 MOTION for Extension of Time to File Response/Reply as to 53 MOTION to Vacate 40 Scheduling Order, (Revised) Plaintiff's Unopposed Motion for Extension of Time by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Attachments: # 1 Proposed Order)(Eckstein, Maya) (Entered: 01/02/2018)
57 ORDER granting 56 Motion for Extension of Time to File Response/Reply. Plaintiffs shall file a response to Defendants' Revised Motion to Vacate Scheduling Order filed on December 21, 2017 53 no later than Monday,January 8,. 2018 at 12 p.m. Signed by Magistrate Judge Ivan D. Davis on 01/03/2018. (dvanm, ) (Entered: 01/03/2018)
58 Opposition to 53 MOTION to Vacate 40 Scheduling Order, (Revised) filed by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Attachments: # 1 Exhibit Email)(Eckstein, Maya) (Entered: 01/08/2018)
59 Memorandum (Joint) to 53 MOTION to Vacate 40 Scheduling Order, (Revised) filed by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 01/11/2018)
60 ORDER: For the reasons stated in the parties' Joint Submission Regarding Defendants' Pending Revised Motion to Vacate Scheduling Order, and for good cause shown, it is hereby ORDERED that by February 28, 2018, Defendant U.S. Customs and Border Protection ("CBP") will process 200 pages of potentially responsive email messages and attachments from the files of custodians in the Baltimore Field Office, and produce to plaintiffs any responsive, non-exempt records; and it is further ORDERED that by April 30, 2018, CBP will process 400 pages of potentially responsive email messages and attachments from the files of custodians in the Baltimore Field Office, and produce to plaintiffs any responsive, nonexempt records; and it is further ORDERED that after April 30, 2018, on a bi-monthly (once every two months) basis, CBP will make rolling productions of responsive, non-exempt records consisting of email messages and attachments from the files of custodians in the Baltimore Field Office, and produce to plaintiffs any responsive, non-exempt records to plaintiffs, with at least 95 percent of all potentially responsive such records processed and any responsive, non-exempt pages released to plaintiffs by August 31,2018; and it is further ORDERED that by December 31,2018, CEP will have completed processing all potentially responsive email messages and attachments from the files of custodians in the Baltimore Field Office and released all responsive, non-exempt such records to plaintiffs; and it is further ORDERED that on a bi-monthly (once every two months) basis, on the 15th day of the month following

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02/06/2019 02/06/2019 02/22/2019

each bi-monthly production, the parties will file with the Court a joint statusreport advising the Court of the agency's progress in processing plaintiffs' request; and it is further ORDERED that the Court's August 31,2017 Order be VACATED; and it is further ORDERED that the January 18,2018 final pretrial conference be CONTINUED until a date after the parties' filing of their final joint status report advising the Court that the agency has completed processing plaintiffs' request. (see order for details). Signed by District Judge Leonie M. Brinkema on 1/11/18. (yguy) (Entered: 01/11/2018)
61 STATUS REPORT (Joint) by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 03/15/2018)
62 STATUS REPORT by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 05/14/2018)
63 STATUS REPORT by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 07/12/2018)
64 STATUS REPORT by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 09/13/2018)
65 STATUS REPORT by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 11/16/2018)
66 Consent MOTION for Extension of Time by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 01/16/2019)
67 ORDER granting 66 Motion for Extension of Time to File. It is further ORDERED that, on or before February 6, 2019, the parties shall file a joint status report in the above-captioned action. Signed by District Judge Leonie M. Brinkema on 01/16/2019. (dvanm, ) (Entered: 01/16/2019)
68 STATUS REPORT by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 02/06/2019)
69 ORDERED that the parties file a joint status report no later than February 22, 2019. Signed by District Judge Leonie M. Brinkema on 02/06/2019. (dvanm, ) (Entered: 02/06/2019)
70 STATUS REPORT by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of

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04/18/2019
06/05/2019 06/05/2019

Delaware, American Civil Liberties of Maryland. (Attachments: # 1 Proposed Order)(Eckstein, Maya) (Entered: 02/22/2019)
71 ORDERED that the parties shall address all issues relating to attorney's fees according to the following schedule:. Signed by District Judge Leonie M. Brinkema on 2/22/2019. (see Order for details)(dvanm, ) (Entered: 02/22/2019)
72 Joint MOTION for Extension of Time by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Proposed Order)(Barghaan, Dennis) (Entered: 03/22/2019)
73 ORDER granting 72 Motion for Extension of Time to File. Signed by Magistrate Judge Ivan D. Davis on 3/25/2019. (see Order for details) (dvanm, ) (Entered: 03/25/2019)
74 Joint MOTION to Vacate 73 Order on Motion for Extension of Time to File Joint Motion to Vacate Briefing Schedule by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Attachments: # 1 Proposed Order)(Eckstein, Maya) (Entered: 04/18/2019)
75 ORDER granting 74 Motion to Vacate the briefing schedule. ORDERED that the parties shall promptly file a stipulation of dismissal when a final settlement has been reached. ORDERED that if no final settlement has been reached within 60 days, the parties shall file a status report. Signed by District Judge Leonie M. Brinkema on 4/18/19. (klau, ) (Entered: 04/18/2019)
76 STIPULATION of Dismissal of Action with Prejudice by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. (Eckstein, Maya) (Entered: 06/05/2019)
77 So Ordered re 76 Stipulation of Dismissal filed by American Civil Liberties Union of Pennsylvania, American Civil Liberties Union of Virginia, American Civil Liberties of Delaware, American Civil Liberties of Maryland. Signed by District Judge Leonie M. Brinkema on 06/05/2019. (dvanm, ) (Entered: 06/05/2019)