Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 1 of 13

DAVIS WRIGHT TREMAINE LLP

1 Thomas R. Burke (State Bar No. 141930)

2

thomasburke@dwt.com DAVIS WRIGHT TREMAINE LLP

3

505 Montgomery Street, Suite 800 San Francisco, CA 94111

4

Telephone: (415) 276-6500 Facsimile: (415) 276-6599

5 Linda Lye (State Bar No. 215584)

6

llye@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION

7

OF NORTHERN CALIFORNIA 39 Drumm Street

8

San Francisco, CA 94111 Telephone: (415) 621-2493

9 Mateo Caballero (admission pro hac vice forthcoming)

10

mcaballero@acluhawaii.org AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI FOUNDATION

11

P.O. Box 3410 Honolulu, HI 96801

12 Telephone: (808) 522-5908

13

Leah Farrell (admission pro hac vice forthcoming) lfarrell@acluutah.org

14

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF UTAH 355 North 300 West

15

Salt Lake City, UT 84103 (801) 521-9862

16 Attorneys for Plaintiffs

17

18

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

19

SAN FRANCISCO-OAKLAND DIVISION

20

21

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN

Case No. 3:17-cv-01970

22 23

CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION OF UTAH,

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552 et seq.

24

Plaintiffs,

25

v.

26 U.S. DEPARTMENT OF HOMELAND

27

SECURITY and U.S. CUSTOMS AND BORDER PROTECTION,

28

Defendants.

FOIA COMPLAINT Case No. 3:17-cv-01970

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 2 of 13

DAVIS WRIGHT TREMAINE LLP

1

INTRODUCTION

2

1. The American Civil Liberties Union of Northern California, American Civil

3 Liberties Union of Hawaiʻi, and American Civil Liberties Union of Utah (collectively, “Plaintiffs”

4 or “ACLU”) bring this action under the Freedom of Information Act, 5 U.S.C. § 552 et seq., as

5 amended (“FOIA”), to obtain injunctive and other appropriate relief requiring Defendants U.S.

6 Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”)

7 (collectively, “Defendants”) to respond to a FOIA request sent by Plaintiffs on February 2, 2017,

8 and amended by letter dated February 3, 2017 (collectively, “Request”), and to promptly disclose

9 the requested records.

10

2. The Request seeks records concerning CBP’s local implementation of President

11 Trump’s January 27, 2017 Executive Order titled “Protecting the Nation From Foreign Terrorist

12 Entry Into the United States,” Exec. Order No. 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017)

13 (“Executive Order No. 1”), as well as any other judicial order or executive directive issued

14 regarding Executive Order No.1, including President Trump’s March 6, 2017 Executive Order,

15 identically titled, Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017) (“Executive Order

16 No. 2”) (collectively, “Executive Orders”). A true and correct copy of the Request is attached as

17 Exhibit A.

18

3. Specifically, the Request seeks records concerning CBP’s local implementation of

19 the Executive Orders at international airports within the purview of CBP’s San Francisco Field

20 Office. These airports include Honolulu International Airport, Kona International Airport, Salt

21 Lake City International Airport, San Francisco International Airport, and San Jose International

22 Airport.

23

4. Among other things, the Executive Orders purport to halt refugee admissions and

24 bar entrants from several predominantly Muslim countries from entering the United States.

25

5. Defendants’ implementation of the Executive Orders has been the subject of

26 significant public concern, as reflected by mass protests around the country, substantial news

27 coverage, and numerous lawsuits filed following the President’s signing of each Executive Order.

28

1 FOIA COMPLAINT Case No. 3:17-cv-01970

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 3 of 13

DAVIS WRIGHT TREMAINE LLP

1

6. Over the weekend of January 27–29, 2017, at least five lawsuits resulted in

2 emergency court orders enjoining implementation of various sections of Executive Order No. 1.1

3 On March 15, 2017, a district court enjoined implementation of Sections 2 and 6 of Executive

4 Order No. 2.2

5

7. News reports described Defendants’ implementation of the Executive Orders as

6 “chaotic” and “total[ly] lack[ing] . . . clarity and direction.” Official DHS statements reflected this

7 confusion. 3

8

8. Official DHS statements reflected this confusion. For example, DHS stated on

9 January 28 that Executive Order No. 1 would “bar green card holders.” 4 The next day, however,

10 DHS Secretary John Kelly deemed “the entry of lawful permanent residents to be in the national 11 interest”5 and the government clarified that Executive Order No. 1 did not apply to green card 12 holders.6

13

9. Reportedly spurred by this chaos, on January 29, Senators Tammy Duckworth and

14 Dick Durbin called upon the Office of the Inspector General of the Department of Homeland

15 Security to investigate Defendants’ implementation of Executive Order No. 1.7 The Senators

16

17 1 Vayeghan v. Kelly, No. CV 17-0702, 2017 WL 396531 (C.D. Cal. Jan. 29, 2017); Tootkaboni v.

18

Trump, No. 17-CV-10154, 2017 WL 386550 (D. Mass. Jan. 29, 2017); Doe v. Trump, No. C17126, 2017 WL 388532 (W.D. Wash. Jan. 28, 2017); Aziz v. Trump, No. 1:17-CV-116, 2017 WL

19

386549 (E.D. Va. Jan. 28, 2017); Darweesh v. Trump, No. 17 CIV. 480 (AMD), 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017).

20

2 3

Hawai’i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017). See, e.g., Ryan Devereaux et al., Homeland Security Inspector General Opens Investigation of

21

Muslim Ban, Orders Document Preservation, THE INTERCEPT, Feb. 1, 2017, available at https://theintercept.com/2017/02/01/homeland-security-inspector-general-opens-investigation-of-

22

muslim-ban-rollout-orders-document-preservation/. 4 See Max Greenwood, Immigration Ban Includes Green Card Holders: DHS, THE HILL, Jan. 28,

23

2017, available at http://thehill.com/policy/national-security/316670-trump-refugee-ban-barsgreen-card-holders-report.

24

5 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

25

https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanentresidents-united-states.

26

6 See 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-

27

order-no-longer-bars-green-card-holders/. 7 See Ryan Devereaux et al., Homeland Security Inspector General Opens Investigation of Muslim

28

Ban, Orders Document Preservation, THE INTERCEPT, Feb. 1, 2017, available at https://theintercept.com/2017/02/01/homeland-security-inspector-general-opens-investigation-of-

muslim-ban-rollout-orders-document-preservation/.

2

FOIA COMPLAINT

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 4 of 13

DAVIS WRIGHT TREMAINE LLP

1 specifically sought information regarding: any guidance Defendants provided to the White House

2 in developing the order; any directions that were provided to Defendants in implementing it;

3 whether CBP officers complied with the relevant court orders; and whether DHS and CBP officers

4 kept a list of individuals that they had detained at ports of entry under the order. In response, the

5 Inspector General directed Defendants’ personnel to preserve all records “that might reasonably

6 lead to the discovery of relevant information relating the implementation of” Executive Order

7 No. 1.8

8

10. CBP officials across the country detained an estimated 100 to 200 individuals at

9 airports throughout the United States, including San Francisco International Airport.9

10

11. Disclosure of the records Plaintiffs seek through this action would facilitate the

11 public’s understanding of how Defendants implemented and enforced the Executive Orders here in

12 the San Francisco Field Office, including in particular at San Francisco International Airport. Such

13 information is critical to the public’s ability to hold the government accountable.

14

12. This action is necessary because Defendants have failed to provide Plaintiffs with a

15 determination as to whether they will comply with the Request, although more than 30 business

16 days have elapsed since Defendants received the Request.

17

JURISDICTION

18

13. This Court has subject-matter jurisdiction over this action and personal jurisdiction

19 over the parties under 5 U.S.C. § 552(a)(4)(B), 5 U.S.C. § 701–706, and 28 U.S.C. § 1331.

20

VENUE

21

14. Venue in the Northern District of California is proper under 5 U.S.C.

22 § 552(a)(4)(B) as the requested agency records are, upon information and belief, situated within

23

24

8 9

Id. See,

e.g.,

Michael

D.

Shear

et

al.,

Judge

Blocks

Trump

Order

on

Refugees

Amid

Chaos

and

25

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-immigration-

26

order.html; Emma Brown et al., Refugees Detained at U.S. airports, including SFO, challenge Trump executive order, SAN JOSE MERCURY NEWS, Jan. 28, 2017, available at

27

http://www.mercurynews.com/2017/01/28/refugees-detained-at-u-s-airports-challenge-trumpsexecutive-order/; Joe Fitzgerald Rodriguez, Detainees released from SFO as thousands protest

28

Trump refugee orders, Jan. 29, 2017, available at http://www.sfexaminer.com/detainees-releasedsfo-thousands-protest-trump-refugee-orders/.

3 FOIA COMPLAINT

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 5 of 13

DAVIS WRIGHT TREMAINE LLP

1 this District at CBP facilities at or near San Francisco International Airport and San Jose

2 International Airport and because Plaintiff American Civil Liberties Union of Northern

3 California’s principal place of business is in this district. For the same reasons, venue also is

4 proper under 28 U.S.C. § 1391(e).

5

15. Pursuant to Local Rule 3-2(c) and (d), assignment to the San Francisco Division is

6 proper because a substantial portion of the events giving rise to this action occurred at San

7 Francisco International Airport, which is in San Mateo County, and because Plaintiff American

8 Civil Liberties Union of Northern California is headquartered in San Francisco.

9

PARTIES

10

16. The American Civil Liberties Union of Northern California, American Civil

11 Liberties Union of Hawaii, and American Civil Liberties Union of Utah are non-profit, 501(c)(4)

12 membership organizations that educate the public about the civil liberties implications of pending

13 and proposed state and federal legislation, provide analysis of pending and proposed legislation,

14 directly lobby legislators, and mobilize their members to lobby their legislators.

15

17. Defendant Department of Homeland Security is a department of the executive

16 branch of the U.S. government and is an agency within the meaning of 5 U.S.C. § 552(f)(1).

17

18. Defendant U.S. Customs and Border Protection is a component of DHS and is a

18 federal agency within the meaning of 5 U.S.C. § 552(f)(1).

19

19. Plaintiffs are informed and therefore believe that Defendants have possession,

20 custody, or control of the requested records.

21

FACTS

22

20. On February 2, 2017, Plaintiffs sent the Request to CBP’s San Francisco Field

23 Office and CBP’s FOIA Officer at CBP Headquarters via certified, trackable United States mail,

24 with United States Postal Service tracking numbers of 70162070000003798167 (request to San

25 Francisco Field Office) and 70162070000003798150 (request to CBP Headquarters). On

26 February 3, 2017, Plaintiffs sent an amendment to the Request to CBP’s San Francisco Field

27 Office and CBP’s FOIA Officer at CBP Headquarters via first class mail. Copies of the February 3

28 amendment to the Request were later mailed a second time to CBP’s San Francisco Field Office

4 FOIA COMPLAINT

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 6 of 13

DAVIS WRIGHT TREMAINE LLP

1 and CBP’s FOIA Officer at CBP Headquarters via priority express, trackable United States mail,

2 with a United States Postal Service tracking number of EL378106957US (to San Francisco Field

3 Office) and EL378106965US (to CBP Headquarters) on February 15, 2017.

4

21. The Request sought copies of CBP’s local interpretation and enforcement of the

5 Executive Order at: 1) certain airports specified in the Request, including Honolulu International

6 Airport, Kona International Airport, Salt Lake City International Airport, San Francisco

7 International Airport, and San Jose International Airport (“Local International Airports”); and 2)

8 certain Port of Entry offices specified in the Request, including Honolulu International Airport,

9 Kona International Airport, Salt Lake City International Airport, San Francisco International Airport,

10 and San Jose International Airport (“Port of Entry Offices”). The Request expressly did not seek

11 information held in the records of CBP Headquarters.

12

22. Specifically, the Request sought the following:

13

1. “Records created on or after January 27, 2017 concerning CBP’s interpretation,

14

enforcement, and implementation of the following at Local International Airports:

15

a. President Trump’s Executive Order, signed on January 27, 2017 and titled

16

‘Protecting the Nation From Foreign Terrorist Entry Into the United States’;

17

b. Any guidance ‘provided to DHS field personnel shortly’ after President

18

Trump signed the Executive Order, as referenced in CBP’s online FAQ;10

19

c. Associate Director of Field Operations for U.S. Citizenship and

20

Immigration Services Daniel M. Renaud’s email, sent at 11:12 A.M. on

21

January 27, 2017, instructing DHS employees that they could not adjudicate

22

any immigration claims from the seven targeted countries;11

23

10 To assist CBP in responding, the Request included the following information in a footnote for 24 reference: “Protecting the Nation from Foreign Terrorist Entry into the United States, U.S.

25

CUSTOMS AND BORDER PROTECTION (Jan. 31, 2017), available at https://www.cbp.gov/bordersecurity/protecting-nation-foreign-terrorist-entry-united-states (‘The Executive Order and the

26

instructions therein were effective at the time of the order’s signing. Guidance was provided to DHS field personnel shortly thereafter.’) (emphasis added).”

27 11 The following footnote was included for reference: “See Alice Speri and Ryan Devereaux,

Turmoil at DHS and State Department—‘There Are People Literally Crying in the Office Here,’

28

THE INTERCEPT, Jan. 30, 2017, available at https://theintercept.com/2017/01/30/asylum-officialsand-state-department-in-turmoil-there-are-people-literally-crying-in-the-office-here/.”

5 FOIA COMPLAINT

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 7 of 13

DAVIS WRIGHT TREMAINE LLP

1

d. Judge Donnelly’s Decision and Order granting an Emergency Motion for

2

Stay of Removal, issued in the Eastern District of New York on January 27,

3

2017, including records related to CBP’s efforts to comply with the court’s

4

oral order requiring prompt production of a list of all class members

5

detained by CBP;12

6

e. Judge Brinkema’s Temporary Restraining Order, issued in the Eastern

7

District of Virginia on January 28, 2017;13

8

f. Judge Zilly’s Order Granting Emergency Motion for Stay of Removal,

9

issued in the Western District of Washington on January 28, 2017;14

10

g. Judge Burroughs’ Temporary Restraining Order, issued in the District of

11

Massachusetts on January 29, 2017;15

12

h. Judge Gee’s Order granting an Amended Ex Parte Application for

13

Temporary Restraining Order, issued in the Central District of California on

14

January 29, 2017;16

15

i. Assurances from the U.S. Attorney’s Office for the Eastern District of

16

Pennsylvania that all individuals detained at Philadelphia International

17

Airport under the Executive Order would be admitted to the United States

18

and released from custody on Sunday, January 29, 2017;

19

20 12 The following footnote was included for reference: “Decision and Order, Darweesh v. Trump,

21

No. 17 Civ. 480 (AMD) (E.D.N.Y. Jan. 28, 2017), available at https://www.aclu.org/legaldocument/darweesh-v-trump-decision-and-order.”

22 13 The following footnote was included for reference: “Temporary Restraining Order, Aziz v.

23

Trump, No. 1:17-cv-116 (E.D. Va. Jan. 28, 2017), available at https://www.justice4all.org/wpcontent/uploads/2017/01/TRO-order-signed.pdf.”

24

14 The following footnote was included for reference: “Order Granting Emergency Motion for Stay of Removal, Doe v. Trump, No. C17-126 (W.D. Wash. Jan. 28, 2017), available at

25 https://www.justsecurity.org/wpcontent/uploads/2017/01/Seattle-Order.pdf.”

26

15 The following footnote was included for reference: “Temporary Restraining Order, Tootkaboni v. Trump, No. 17-cv-10154 (D. Mass. Jan. 29, 2017), available at https://aclum.org/wp-

27

content/uploads/2017/01/6-TRO-Jan-29-2017.pdf.” 16 The following footnote was included for reference: “Order, Vayeghan v. Trump, No. CV 17-

28

0702 (C.D. Cal. Jan. 28, 2017), available at https://www.aclusocal.org/sites/default/files/vayeghan_-_order_re_tro.pdf.”

6 FOIA COMPLAINT

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 8 of 13

DAVIS WRIGHT TREMAINE LLP

1

j.

DHS’s ‘Response to Recent Litigation’ statement, issued on January 29,

2

2017;17

3

k. DHS Secretary John Kelly’s ‘Statement on the Entry of Lawful Permanent

4

Residents Into the United States,’ issued on January 29, 2017;18

5

l. DHS’s ‘Statement on Compliance with Court Orders and the President’s

6

Executive Order,’ issued on January 29, 2017;19 and

7

m. Any other judicial order or executive directive issued regarding the

8

Executive Order on or after January 27, 2017.

9

2. Records concerning the number of individuals who were detained or subjected to

10

secondary screening, extending questioning, an enforcement examination, or

11

consideration for a waiver at Local International Airports pursuant to the Executive

12

Order, including:

13

a. The total number of individuals who remain detained or subject to

14

secondary screening, extending questioning, an enforcement examination,

15

or consideration for a waiver at Local International Airports both as of the

16

date of this request and as of the date on which this request is processed;

17

and

18

b. The total number of individuals who have been detained or subjected to

19

secondary screening, extending questioning, an enforcement examination,

20

or consideration for a waiver for any length of time at Local International

21

22

23

17 The following footnote was included for reference: “Department of Homeland Security Response to Recent Litigation, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at

24 https://www.dhs.gov/news/2017/01/29/department-homeland-security-response-recent-litigation.”

25

18 The following footnote was included for reference: “Statement from Secretary Kelly on the President’s Appointment of Thomas D. Homan as Acting ICE Director, DEP’T OF HOMELAND

26

SECURITY (Jan. 30, 2017), available at https://www.dhs.gov/news/2017/01/30/statementsecretary-kelly-presidents-appointment-thomas-d-homan-acting-ice-director.”

27

19 The following footnote was included for reference: “DHS Statement On Compliance With Court Orders And The President’s Executive Order, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017),

28

available at https://www.dhs.gov/news/2017/01/29/dhs-statement-compliance-court-orders-andpresidents-executive-order.”

7 FOIA COMPLAINT

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 9 of 13

DAVIS WRIGHT TREMAINE LLP

1

Airports since January 27, 2017, including the number of individuals who

2

have been

3

i. released,

4

ii. transferred into immigration detention, or

5

iii. removed from the United States;

6

3. Records concerning the number of individuals who have been removed from Local

7

International Airports from January 27, 2017 to date pursuant to the Executive

8

Order;

9

4. Records concerning the number of individuals who arrived at Local International

10

Airports from January 27, 2017 to date with valid visas or green cards who

11

subsequently agreed voluntarily to return; and

12

5. Records containing the ‘guidance’ that was ‘provided to DHS field personnel

13

shortly’ after President Trump signed the Executive Order.”20

14 Exh. A (February 2, 2017 request at 6-9).

15

23. The Request included an application for expedited processing, on the grounds that

16 there is a “compelling need” for these records under 5 U.S.C. § 552(a)(6)(E)(v)(II) because the

17 information requested is “urgen[tly]” needed by an organization primarily engaged in

18 disseminating information “to inform the public concerning actual or alleged Federal Government

19 activity.” Exh. A (February 2, 2017 request at 10-16).

20

24. The Request provided detail showing that the ACLU is primarily engaged in

21 disseminating information within the meaning of 5 U.S.C. § 552(a)(6)(E)(v), given that a critical

22 and substantial aspect of the ACLU’s mission is to obtain information about government activity,

23 analyze that information, and publish and disseminate that information widely to the press and

24 public. Exh. A (February 2, 2017 request at 10-15).

25

26 20 The following footnote was included for reference: “Protecting the Nation from Foreign

27

Terrorist Entry into the United States, U.S. CUSTOMS AND BORDER PROTECTION (Jan. 31, 2017), available at https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-

28

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).”

8 FOIA COMPLAINT

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 10 of 13

DAVIS WRIGHT TREMAINE LLP

1

25. The Request described examples of the ACLU’s information-dissemination

2 function. Exhibit A (February 2, 2017 request at 11-15).

3

26. The Request also included an application for a fee waiver or limitation under 5

4 U.S.C. § 552(a)(4)(A)(iii) on the grounds that disclosure of the requested records is in the public

5 interest and is “likely to contribute significantly to public understanding of the operations or

6 activities of the government and is not primarily in the commercial interest of the requester.” In

7 particular, the ACLU emphasized that the Request would significantly contribute to public

8 understanding on a matter of profound public importance about which scant specific information

9 had been made public, i.e., how local CBP Field Offices had enforced, and continue to enforce, the

10 Executive Orders. The Request also made clear that the ACLU plans to disseminate the

11 information disclosed as a result of the Request to the public at no cost. Exh. A (February 2, 2017

12 request at 16).

13

27. The Request also applied for a waiver of search fees under 5 U.S.C.

14 § 552(a)(4)(A)(ii)(II) on the grounds that Plaintiffs qualify as “representatives of the news media”

15 and the records are not sought for commercial use, given the ACLU’s non-profit mission and

16 substantial activities to publish information for dissemination to the public, as discussed in greater

17 detail in ¶ 25 above. Exh. A (February 2, 2017 request at 16-17).

18

28. CBP’s San Francisco Field Office received the February 2, 2017 request on

19 February 3, 2017, and CBP Headquarters received the February 2, 2017 request on February 6,

20 2017 The ACLU mailed the February 3, 2017 request by first class mail on February 3, 2017. It

21 also re-delivered the February 3, 2017 request by priority mail, and the request was received by

22 the San Francisco Field Office on February 17, 2017, and CBP Headquarters on February 21,

23 2017.21 See Exhibit B.

24

29. DHS, on behalf of its component CBP, acknowledged receipt of the Request on

25 March 30, 2017. A true and correct copy of the CBP’s acknowledgement of receipt is attached as

26 Exhibit C. The acknowledgement of receipt invoked a 10-day extension of time for the Request

27

28

21 In all likelihood, the amendment mailed on February 3, 2017, via first class mail was received prior to these dates, but the ACLU does not have a record of when the amendment mailed on

February 3, 2017, was actually received.

9

FOIA COMPLAINT

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 11 of 13

DAVIS WRIGHT TREMAINE LLP

1 pursuant to 5 U.S.C. § 552(a)(6)(B) and stated that DHS would assess fees applicable to non-

2 commercial requesters. See Exh. C.

3

30. In its acknowledgement of receipt, however, CBP did not provide a determination

4 as to whether, or when, CBP will comply with the Request. See Exh. C.

5

31. As of the filing date of this Complaint, more than 30 days (excepting Saturdays,

6 Sundays, and legal public holidays) have elapsed since CBP received the Request.

7

32. As of the filing date of this Complaint, Defendants have not notified Plaintiffs of a

8 determination as to whether Defendants will comply with the Request.

9

33. Because Defendants failed to comply with the time limit provision of FOIA,

10 Plaintiffs are deemed to have exhausted their administrative remedies with respect to the Request

11 under 5 U.S.C. § 552(a)(6)(C)(i).

12

Violation of FOIA for Failure

13

to Provide a Determination

Within 30 Business Days

14

34. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 33

15 above, inclusive.

16

35. Defendants have a legal duty under FOIA to determine whether to comply with a

17 request within 30 days (excepting Saturdays, Sundays, and legal public holidays) after receiving

18 the request, and also have a legal duty to immediately notify a requester of the agency’s

19 determination and the reasons therefor.

20

36. Defendants’ failure to determine whether to comply with the Request within 30

21 business days after receiving it violates FOIA, 5 U.S.C. § 552(a)(6)(A)(i), and applicable

22 regulations promulgated thereunder.

23

24

Violation of FOIA for Failure to Make Records Available

25

37. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 3

26 above, inclusive.

27

28

10 FOIA COMPLAINT

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 12 of 13

DAVIS WRIGHT TREMAINE LLP

1

38. Plaintiffs have a legal right under FOIA to obtain the specific agency records

2 sought in the Request, and there exists no legal basis for Defendants’ failure to promptly make the

3 requested records available to Plaintiffs, their members, and the public.

4

39. Defendants’ failure to promptly make available the records sought by the Request

5 violates FOIA, 5 U.S.C. § 552(a)(3)(A), and applicable regulations promulgated thereunder.

6

40. On information and belief, Defendants currently have possession, custody or

7 control of the requested records.

8

Violation of FOIA for Failure to

9

Provide a Determination As To

Expedited Processing Within 10 Days

10

41. Plaintiffs repeat and re-allege the allegations contained in paragraphs 1 through 333

11 above, inclusive.

12

42. Defendants have a legal duty under FOIA to determine whether to provide

13 expedited processing, and to provide notice of that determination to Plaintiffs, within 10 days after

14 the date of the Request.

15

43. Defendants’ failure to determine whether to provide expedited processing and to

16 provide notice of that determination to Plaintiffs within 10 days after the date of the Request

17 violates FOIA, 5 U.S.C. § 552(a)(6)(E)(ii)(I), and applicable regulations promulgated thereunder.

18

44. Because Defendants have not provided a complete response to the Request, this

19 Court has jurisdiction under FOIA, 5 U.S.C. § 552(a)(6)(E)(iv) to review Defendants’ failure to

20 make a determination concerning Plaintiffs’ request for expedited processing.

21

WHEREFORE, Plaintiffs request that the Court award them the following relief:

22

1. Declare that Defendants violated FOIA by failing to determine whether to comply

23 with the Request within 30 business days and by failing to immediately thereafter notify Plaintiffs

24 of such determination and the reasons therefor;

25

2. Declare that Defendants violated FOIA by unlawfully withholding the requested

26 records;

27

3. Declare that Defendants violated FOIA by failing to determine whether to provide

28 expedited processing, and to provide notice of that determination to Plaintiffs, within 10 days;

11 FOIA COMPLAINT

Case 3:17-cv-01970 Document 1 Filed 04/10/17 Page 13 of 13

DAVIS WRIGHT TREMAINE LLP

1

4. Order Defendants to immediately disclose the requested records to the public and

2 make copies immediately available to Plaintiffs without charge for any search or duplication fees,

3 or, in the alternative, provide for expedited proceedings to adjudicate Plaintiffs’ rights under

4 FOIA;

5

5. Award Plaintiffs their reasonable costs and attorneys’ fees; and

6

6. Grant such other relief as the Court may deem just and proper.

7

8 DATED this 10th day of April, 2017.

9

Respectfully submitted,

10

DAVIS WRIGHT TREMAINE LLP

11

By: /s/ Thomas R. Burke

12

Thomas R. Burke Attorneys for Plaintiffs

13

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN

14

CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION OF

15

UTAH

16

17

18

19

20

21

22

23

24

25

26

27

28

12 FOIA COMPLAINT

 
 Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 1 of 14

DAVIS WRIGHT TREMAINE LLP

1 Thomas R. Burke (State Bar No. 141930) thomasburke@dwt.com
2 DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800
3 San Francisco, CA 94111 Telephone: (415) 276-6500
4 Facsimile: (415) 276-6599

5 Linda Lye (State Bar No. 215584) llye@aclunc.org
6 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
7 39 Drumm Street San Francisco, CA 94111
8 Telephone: (415) 621-2493

9 Mateo Caballero (admission pro hac vice forthcoming) mcaballero@acluhawaii.org
10 AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI FOUNDATION P.O. Box 3410
11 Honolulu, HI 96801 Telephone: (808) 522-5908
12
Leah Farrell (admission pro hac vice forthcoming) 13 lfarrell@acluutah.org
AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION 14 355 North 300 West
Salt Lake City, UT 84103 15 Telephone: (801) 521-9862

16 Attorneys for Plaintiffs

17

IN THE UNITED STATES DISTRICT COURT 18
FOR THE NORTHERN DISTRICT OF CALIFORNIA 19
SAN FRANCISCO-OAKLAND DIVISION 20

AMERICAN CIVIL LIBERTIES UNION OF 21 NORTHERN CALIFORNIA, AMERICAN

Case No. 4:17-cv-01970-SBA

22

CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION

OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS

OF UTAH,

23

24

Plaintiffs,

25

v.

26 U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND
27 BORDER PROTECTION,

28

Defendants.

OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS Case No. 3:17-cv-01970
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 2 of 14

DAVIS WRIGHT TREMAINE LLP

1

Plaintiffs the American Civil Liberties Union of Northern California, American Civil

2 Liberties Union of Hawaiʻi, and American Civil Liberties Union of Utah (collectively, “Plaintiffs”

3 or the “ACLU”) respectfully submits this Opposition to the Motion to Stay Proceedings filed by

4 Defendants U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border

5 Protection (“CBP”).

6

I. SUMMARY OF ARGUMENT

7

Plaintiffs oppose the motion of DHS and CBP for a blanket stay of proceedings pending a

8 decision by the Joint Panel on Multidistrict Litigation (“MDL”) to transfer this case to

9 Washington, D.C. The requested stay is unnecessary, overbroad, and prejudicial to the ACLU’s

10 right to obtain a timely response to its Freedom of Information Act (“FOIA”) request for records

11 about an issue of tremendous current importance: the chaotic local implementation of President

12 Trump’s Executive Orders purporting to bar individuals from several predominantly Muslim

13 countries from entering the United States.

14

This Court should exercise its discretion to deny the requested stay, first, because it will

15 result in needless and prejudicial delay to ACLU’s access to these important public records.

16 FOIA’s central purpose of assuring an informed citizenry and an accountable government is

17 undermined when federal agencies are permitted to delay responding to requests or adjudicating a

18 requester’s right to records. Defendants seek just such a delay here.

19

Second, the stay cannot be justified by any harm to DHS and CBP. Their claim of

20 potentially inconsistent adjudications is entirely conjectural and premature. Defendants identify

21 no pending or anticipated ruling that pose a meaningful risk of inconsistency, and they ignore the

22 factual differences between this case and the other FOIA cases they seek to transfer (all of which

23 seek only local records). Moreover, the litigation events that are likely to occur before the MDL

24 issue is decided – such as answering ACLU’s Complaint and cooperating on a discovery plan –

25 are not onerous, and are activities the government would be required to undertake even if its MDL

26 motion is granted.

27

Third, Defendants have identified no substantial efficiencies to be gained by a stay. The

28 activities likely to occur before the MDL motion is considered are minimal, and would need to
1 OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS Case No. 3:17-cv-01970
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 3 of 14

DAVIS WRIGHT TREMAINE LLP

1 occur regardless of any JPML decision. Moreover, the FOIA request in this case sought only

2 records held by the San Francisco CBP Field Office. Thus, the question of whether Defendants

3 properly searched for and provided requested records will have to be addressed on a local basis,

4 even if some pretrial activity is consolidated. A stay will not aid judicial economy on that or any

5 other anticipated issue.

6

I. FACTUAL AND PROCEDURAL BACKGROUND

7 A. Background on Local Implementation of the Executive Orders

8

The ACLU brought this FOIA lawsuit in order to obtain timely access to information of

9 extreme importance, both in the San Francisco region and nationally.

10

On January 27, 2017, President Trump signed an Executive Order entitled “Protecting the

11 Nation From Foreign Terrorist Entry Into the United States.” See Complaint (Dkt. No. 1) at ¶ 2.

12 Among other things, the order purported to halt refugee admissions and bar entrants from several

13 predominantly Muslim countries from entering the United States. Compl. ¶ 4. News reports

14 described Defendants’ implementation of the Executive Order as “chaotic” and “total[ly] lack[ing]

15 . . . clarity and direction.” Id. ¶ 4.1 On March 6, 2017, President Trump issued another,

16 identically titled, Executive Order after at least five lawsuits2 resulted in emergency court orders

17 enjoining implementation of various sections of the first Executive Order. Compl. ¶¶ 2, 6.

18

Residents and their families in San Francisco, Utah, and Hawai’i have been personally

19 affected by the orders,3 and more than a thousand people demonstrated at San Francisco

20 1 See, e.g., Ryan Devereaux et al., Homeland Security Inspector General Opens
21 Investigation of Muslim Ban, Orders Document Preservation, THE INTERCEPT, Feb. 1, 2017,

22 available at https://theintercept.com/2017/02/01/homeland-security-inspector-general-opensinvestigation-of-muslim-ban-rollout-orders-document-preservation/.

23

2 Doe v. Trump, No. C17-126, 2017 WL 388532 (W.D. Wash. Jan. 28, 2017); Vayeghan v.

Kelly, No. CV 17-0702, 2017 WL 396531 (C.D. Cal. Jan. 29, 2017); Tootkaboni v. Trump, No.

24 17-CV-10154, 2017 WL 386550 (D. Mass. Jan. 29, 2017); Aziz v. Trump, No. 1:17-CV-116, 2017

WL 386549 (E.D. Va. Jan. 28, 2017); Darweesh v. Trump, No. 17 CIV. 480 (AMD), 2017 WL 25 388504 (E.D.N.Y. Jan. 28, 2017).

26

3 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/

27 01/28/us/refugees-detained-at-us-airports-prompting-legal-challenges-to-trumps-immigration-
order.html; Emma Brown et al., Refugees Detained at U.S. airports, including SFO, challenge 28 Trump executive order, SAN JOSE MERCURY NEWS, Jan. 28, 2017, available at

http://www.mercurynews.com/2017/01/28/refugees-detained-at-u-s-airports-challenge-trumps-

2

OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 4 of 14

DAVIS WRIGHT TREMAINE LLP

1 International Airport when the first order took effect in January 2017. See Compl. ¶ 10.4 The

2 immigration policy debate surrounding the order has particular resonance in Northern California,

3 Hawaii and Utah. San Francisco, a major international travel hub with a long history of taking in

4 refugees, lies only a few hours from Manzanar War Relocation Center, the most notorious of the

5 camps where Japanese Americans were, to this country’s enduring shame, interned during the

6 Second World War.5 Utah’s state culture prizes personal decency and compassion towards

7 immigrants and refugees.6 Hawai’i, the first state to challenge the second Executive Order, and

8 among the most diverse states in the country, preserves its traditional value of welcoming visitors

9 and strangers with an open heart, and has been defined by the continuous waves of immigrants

10 who have built homes on its islands over generations.7

11 B. ACLU’s FOIA Request

12

While the Executive Order remains enjoined, the public is still largely in the dark about

13 CBP’s actions, including its enforcement of the directive at San Francisco International Airport,

14 the instructions given to officials at the San Francisco CBP Field Office, and the basis for their

15 interpretation of the order. On February 2, 2017, Plaintiff submitted a FOIA request seeking

16 records related to CBP’s local interpretation and enforcement of the order. Compl. ¶¶ 1-3, 20-22

17 & Ex. A. The Request expressly excluded records held by CBP Headquarters. Id. ¶ 3, 21 & Ex.

18

19 executive-order/; Joe Fitzgerald Rodriguez, Detainees released from SFO as thousands protest Trump refugee orders, SAN FRANCISCO EXAMINER, Jan. 29, 2017, available at

20 http://www.sfexaminer.com/detainees-released-sfo-thousands-protest-trump-refugee-orders/. 4 Joe Fitzgerald Rodriguez, Detainees released from SFO as thousands protest Trump
21 refugee orders, Jan. 29, 2017, SAN FRANCISCO EXAMINER, available at

http://www.sfexaminer.com/detainees-released-sfo-thousands-protest-trump-refugee-orders/.

22

5 Alexander Nazaryan, 75 Years Later, Internment of Japanese Remains Stain on American

23

History, NEWSWEEK, Feb. 15, 2017, available at http://www.newsweek.com/2017/02/24/ manzanar-japanese-internment-camp-trump-extreme-vetting-556944.html.

24

6 Brady McCombs, Mixed Reviews for Travel Ban in Refugee Friendly Utah, U.S. NEWS AND WORLD REPORT (crediting ASSOCIATED PRESS), Mar. 6, 2017, available at

25

https://www.usnews.com/news/best-states/utah/articles/2017-03-06/revised-travel-ban-mostlypanned-in-refugee-friendly-utah

26

7 Alan Neuhauser, Hawaii Files First State Challenge to Trump's Travel Ban, U.S. NEWS AND WORLD REPORT, Mar. 8, 2017, available at https://www.usnews.com/news/best-

27

states/articles/2017-03-08/hawaii-is-first-state-to-challenge-trumps-new-travel-ban; Hawai’i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017); Hawaii

28

Resolution Calls For Creating Sanctuary State, HONOLULU STAR ADVERTISER (crediting ASSOCIATED PRESS), Apr. 18, 2017, available at http://www.staradvertiser.com/2017/04/18/

breaking-news/hawaii-resolution-calls-for-creating-sanctuary-state/

3

OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 5 of 14

DAVIS WRIGHT TREMAINE LLP

1 A at 9. The FOIA request sought expedited processing, on the ground that there is a “compelling

2 need” for these records under 5 U.S.C. § 552(a)(6)(E)(v)(II) because the information requested is

3 “urgen[tly]” needed by an organization primarily engaged in disseminating information “to inform

4 the public concerning actual or alleged Federal Government activity.” Compl., ¶ 23 & Ex. A, at p.

5 10-15.

6

CBP has not notified Plaintiff of a determination as to whether it will respond to the

7 Request, not has it acknowledged ACLU’s request for an expedited response. Id. ¶¶ 28-32. To

8 date, Defendants have yet to provide a single record responsive to the request. To ACLU’s

9 knowledge, CBP’s San Francisco Field Office has yet to disclose any of the instructions its local

10 officials were provided with respect to the Executive Order or any record explaining its

11 interpretation of the order.

12 C. Procedural Background and Pending Proceedings

13

ACLU filed its complaint on April 12, 2017. It alleges Defendants violated FOIA by

14 failing to (i) produce responsive records, (ii) state whether it will make records available, and (iii)

15 to respond to ACLU’s request for expedited processing. Compl. ¶¶ 34-44. On May 8, Defendants

16 filed a motion with the JPML, seeking to transfer this case to the district court for the District of

17 Columbia in order to coordinate pretrial proceedings with 12 other FOIA lawsuits (all filed in

18 other districts, seeking different local records from Defendants). Mot, at p. 2. The 12 other cases

19 were filed by separate ACLU affiliates in other jurisdictions. Each involves different FOIA

20 requests for local records held by different regional CBP offices. None of the other 12 suits

21 involves the records at issue in this lawsuit – i.e., records held by the San Francisco CBP Field

22 Office.

23

ACLU did not oppose CBP and DHS’ request for an extension of time to respond to the

24 Complaint, and Defendants’ response is not due until July 2, 2017. See Dkt. # 15. No other

25 conferences or hearings are currently on calendar, and no discovery has been served. The only

26 pending motion is the instant motion.

27

28

4 OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 6 of 14

DAVIS WRIGHT TREMAINE LLP

1 II. DEFENDANTS HAVE NOT CARRIED THEIR BURDEN OF SHOWING THAT

2

THIS ACTION SHOULD BE STAYED.

3 A. The Pending MDL Motion Is Not A Sufficient Ground To Stay These Proceedings

4

A district court “should not automatically stay discovery, postpone rulings on pending

5 motions, or generally suspend further rulings upon a [party’s] motion to the MDL Panel for

6 transfer and consolidation.” Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal.

7 1997); accord, Perry v. Luu, 2013 WL 3354446, at *3 (E.D. Cal. July 3, 2013). Indeed, there is

8 no requirement that a court stay litigation pending a JPML decision on a motion to transfer: such a

9 motion “does not affect or suspend orders and pretrial proceedings in any pending federal district

10 court action and does not limit the pretrial jurisdiction of that court.” MDL Rule 2.1(d) (emphasis

11 added); Litchfield Co., LLC v. BP, P.L.C., 2010 WL 2802498, at *1 (D.S.C. July 14, 2010) (“A

12 pending transfer motion before the MDL panel does not deprive the district court in which the

13 action is then pending of jurisdiction over pretrial matters.”); Jozwiak v. Stryker Corp., 2010 WL

14 147143, *2 (M.D. Fla. Jan. 11, 2010). Accordingly, courts have denied requests for stays under 15 the circumstances presented here. 8 See e.g., Sehler v. Prospect Mortgage, LLC, 2013 WL

16 5184216, at *3 (E.D. Va. Sept. 16, 2013); Sullivan v. Cottrell, Inc., 2012 WL 694825, at *4

17 (W.D.N.Y. Feb. 29, 2012); St. Joe Co. v. Transocean Offshore Deepwater Drilling Inc., 774 F.

18

19

20

8 Defendants cite distinguishable cases from this Court in which stays were granted based

21

on circumstances that are not present here. See Freitas v. McKesson Corp., No. C 11-05967, 2012 WL 161211, at *2 (N.D. Cal. Jan. 10, 2012) (plaintiff claimed that prejudice would result only from

22 transfer of the case to MDL, and offered no prejudice arising from stay); Sanborn v. Asbestos Corp., No. C 08-5260, 2009 WL 195922, at *2 (N.D. Cal. Jan. 27, 2009) (transfer to MDL proceeding

23 that, for more than 20 years, had handled claims arising from the same product at issue, where
prejudice to plaintiffs would be “minimal” given that “a final decision by the MDL Panel is likely to 24 be made soon”); Good v. Prudential Ins. Co. of Am., 5 F. Supp. 2d 804, 809 (N.D. Cal. 1998)

(ordering stay that would “likely be brief” given that MDL panel had already entered a condition 25 transfer order concerning the case); Davis v. Pfizer, Inc., No. C 14-1204, 2014 WL 1599005, at *1

26 (N.D. Cal. Apr. 21, 2014) (ordering stay in product-liability action where stay would cause only “slight delay” and only prejudice contemplated was “degradation of memories or the loss of

27 material evidence,” rather than delayed disclosure of public records); J.W. v. Pfizer, Inc., No. 13-
CV-00318-YGR, 2013 WL 1402962, at *4 (N.D. Cal. Apr. 5, 2013) (ordering stay to prevent 28 inconsistent rulings on questions of federal preemption where party opposing stay could point to

“no tangible harm” arising from delay).

5

OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 7 of 14

DAVIS WRIGHT TREMAINE LLP

1 Supp. 2d 596, 601 (D. Del. 2011); Barber v. BP, PLC, 2010 WL 2266760, at *2 (S.D. Ala. June 4,

2 2010).

3

“The decision to grant or deny a temporary stay of proceedings pending a ruling by the

4 MDL Panel on a motion to consolidate is discretionary.” Burns v. Gerber Products Co., 2012 WL

5 8251405, at *4 (E.D. Wash. Sept. 4, 2012), citing Conroy v. Fresh Del Monte Produce, Inc., 325

6 F. Supp. 2d 1049, 1053 (N.D. Cal. 2004). That discretion is exercised in light of three factors: (1)

7 the “potential prejudice to the non-moving party”; (2) any “hardship and inequity to the moving

8 party if the action is not stayed”; and (3) “judicial resources that would be saved by avoiding

9 duplicative litigation if the cases are in fact consolidated.” Burns, 2012 WL 8251405, at *4

10 (quoting Rivers, 980 F. Supp. at 1360).

11

Each of these considerations is discussed below. None justifies a stay here.

12 B. A Stay Will Prejudice Plaintiffs By Delaying Access To Records Of Significant Public Interest Amid An Ongoing Controversy.
13
The government’s requested stay would prejudice Plaintiffs because it would undermine a 14
central purpose of FOIA: ensuring records of public interest are produced promptly to enable 15
citizens to learn about government conduct and to act on it at a time when public engagement 16
would be effective. This case is a textbook example of the importance of timely disclosure, given 17
the ongoing controversy and debate about the Executive Orders. See Compl. ¶¶ 5-11. 18
FOIA’s “core purpose is to inform citizens about what their government is up to” so as to 19
“ensure an informed citizenry,” which is “vital to the functioning of a democratic society, needed 20
to check against corruption and to hold the governors accountable to the governed.” Yonemoto v. 21
VA, 686 F.3d 681, 687 (9th Cir. 2012), overruled in part on other grounds by Animal Legal Def. 22
Fund v. FDA, 836 F.3d 987 (9th Cir. 2016) (en banc). Because “disclosure, not secrecy, is the 23
dominant objective of the Act,” the statute presumes all agency records are public and places the 24
burden on the government to justify withholding based on specific exemptions that must be 25
narrowly construed. Id. at 687-88 (quotation omitted); see 5 U.S.C. § 552(a)(8)(A)(i) 26
(presumption of openness). 27
The statute recognizes the importance of prompt disclosure by requiring agencies to 28
respond to requests within 20 days, absent “unusual” or “exceptional” circumstances. 5 U.S.C. §
6
OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 8 of 14

DAVIS WRIGHT TREMAINE LLP

1 552(a)(6)(A)(i). “[U]unreasonable delays in disclosing non-exempt documents violate the intent

2 and purpose of the FOIA, and the courts have a duty to prevent these abuses.” Long v. IRS, 693

3 F.2d 907, 910 (9th Cir. 1982). Legislative history shows “Congress intentionally set harsh time

4 limits for agencies to respond to FOIA requests because it recognized that information is often

5 useful only if it is timely.” Gilmore v. Dept’ of Energy, 33 F. Supp. 2d 1184, 1189 (N.D. Cal.

6 1998); see also Our Children’s Earth Found. v. Nat’l Marine Fisheries Serv., 85 F. Supp. 3d

7 1074, 1089 (N.D. Cal. 2015) (“Congress was specifically concerned that agencies would delay in

8 responding to requests”); Martins v. USCIS, 962 F. Supp. 2d 1106, 1127 (N.D. Cal. 2013)

9 (recognizing “expeditious release of documents…furthers FOIA’s core purpose of shed[ding] light

10 on an agency’s performance”) (quotation omitted).

11

Moreover, agencies must expedite processing and respond “as soon as practicable” where,

12 as here, a requester shows “urgency to inform the public concerning actual or alleged Federal

13 Government activity.” Id. § 552(a)(6)(E)(i). “[E]xpedited processing of a FOIA request is a

14 statutory right, not just a matter of court procedure.” Edmonds v. FBI, 417 F.3d 1319, 1323 (D.C.

15 Cir. 2005). Courts consistently require expedited disclosure in cases like this one that involve

16 requests for documents about matters that are subjects of intense media scrutiny and ongoing

17 public debate. For example, in EPIC v. DOJ, 416 F. Supp. 2d 30 (D.D.C. 2006), the court found

18 that “given the great public and media attention that the government’s warrantless surveillance

19 program has garnered and the recent hearings before the Senate Judiciary committee, the public

20 interest is particularly well-served by the timely release of the requested documents.” Id. at 42.

21 Likewise, in ACLU v. DOD, 2006 WL 1469418 (N.D. Cal. May 25, 2006), the court held ACLU

22 had an urgent need for records about a government program to gather information on political

23 protesters because “[g]etting the requested information quickly might be valuable to would-be

24 protesters and opposition groups” to “help them decide how to express their political viewpoints,”

25 and, given the pending controversy over the program, delay also would harm “the media’s interest

26 in quickly disseminating breaking, general-interest news.” Id. at *7-8. See also Gerstein v. CIA,

27 2006 WL 3462658, at *6 (N.D. Cal. Nov. 29, 2005) (expedited response appropriate where

28

7 OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 9 of 14

DAVIS WRIGHT TREMAINE LLP

1 records concerned “an issue that is not only newsworthy, but was the subject of an ongoing

2 national debate”).

3

These principles apply here. ACLU sought expedited processing of its FOIA request in

4 order to provide the public with information about how the San Francisco CBP Field Office read

5 and implemented the Executive Order. Compl. ¶¶ 23-25. This has been, and continues to be, a

6 hotly contested public issue. Id. ¶¶ 5-11. As noted above and in the Complaint, the local

7 implementation has resulted in mass protests (including demonstrations at San Francisco

8 International Airport), widespread media coverage, calls for action by elected officials, and

9 extensive litigation. Id. Although the Executive Order is on hold, the legal and public policy

10 debate surrounding its initial enforcement remains very much alive, and related litigation 11 challenging the Orders remains pending in the Ninth Circuit.9

12

Defendants’ request to delay this litigation is squarely at odds with FOIA’s purpose and

13 ACLU’s statutory right to expedited access to the requested records. Moreover, Defendants fail to

14 cite a single decision that delayed litigation about disclosure of public records in the midst of such

15 an ongoing controversy. See Mot. at 3-6. Their discussion of prejudice does not cite any FOIA

16 cases, only readily distinguishable lawsuits involving private disputes where there was no showing 17 of an imminent public interest in the dissemination of government information.10 ACLU, and the

18 public, have an urgent need for the records at issue, so that its members, media organizations,

19 community groups, and ordinary citizens can have the information necessary to participate in the

20 ongoing debate over the Orders at a time when they can still influence public policy. See EPIC,

21 416 F. Supp. 2d at 42. Consequently, Plaintiff would suffer significant prejudiced if the action is

22 stayed.

23

24

9 See, e.g., State of Hawaii, et al. v. Trump, Ninth Circuit No. 17-15589; cases listed at

25 Compl. ¶ 6. Underscoring the public interest in this matter, the Ninth Circuit’s February 7, 2017
oral argument in State of Washington v. Trump has drawn more than 140,000 views on YouTube. 26 See U.S. Court of Appeals for the Ninth Circuit, 17-35105,

https://www.youtube.com/watch?v=RPOFowWqFGU. 27 10 See Davis, 2014 WL 1599005 at *1 (products liability action); J.W., 2013 WL 1402962 at *4

28

(same); Freitas, 2012 WL 161211 at *2 (same); Sanborn, 2009 WL 195922 at *2; American Seafood, Inc. v. Magnolia Processing, Inc., 1992 WL 102762, at *1 (E.D. Pa. May 7, 1992) (antitrust

lawsuit against catfish producer); Good, 5 F. Supp. 2d at 809 (fraud claim against insurer).

8

OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS
4849-3169-7481v.3 0050033-000045

DAVIS WRIGHT TREMAINE LLP

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 10 of 14
C. The Government Will Not Suffer Any Cognizable Hardship Absent A Stay 1
In recognizing a court’s power to stay proceedings, the Supreme Court also cautioned that 2
an applicant “for a stay must make out a clear case of hardship or inequity in being required to go 3
forward, if there is even a fair possibility that the stay for which he prays will work damage to 4
some one else.” Landis v. N. Am. Co., 299 U.S. 248, 255 (1936) (emphasis added). Applying this 5
limiting principle, the Ninth Circuit will deny a stay where the moving party failed to make a clear 6
showing of hardship: “To be sure…. if the stay is vacated [moving party] must proceed toward 7
trial in the suit in the district court, but being required to defend a suit, without more, does not 8
constitute a ‘clear case of hardship or inequity’ within the meaning of Landis.” Lockyer v. Mirant 9
Corp., 398 F.3d 1098, 1112 (9th Cir. 2005). 10
Here, Defendants fail to identify any real hardship they would suffer absent its proposed 11
blanket stay, other than having to defend this action on a normal schedule. See Mot. at 5. They 12
vaguely speculate “moving forward could also result” in conflicting rulings. Id. at 6 (emphasis 13
added). But Defendants do not identify these potential conflicts, or explain why they are likely, let 14
alone imminent absent a stay. They simply claim the agencies are also litigating requests for 15
“identical or similar categories of records” from requesters other than Plaintiff. Id. at 1. This 16
simply ignores that each of those other complaints has been brought by different plaintiffs and 17
seeks different records. As discussed above, in this case ACLU’s request seeks only locally-held 18
records from the San Francisco CBP Field Office, and expressly excludes national or common 19
records held at CBP Headquarters or elsewhere. Compl. ¶¶ 3, 21; Compl. Ex. A at 9. Thus, this 20
case involves different factual and legal issues than the other pending actions. The inquiry in this 21
case will focus on the factual circumstances surrounding CBP’s local implementation of the 22
Orders in the San Francisco Field Office, and the reasonableness of the searches for records held 23
in that office. The other actions, by contrast, seek records about CBP’s implementation of the 24
Orders in other CBP field offices, and as a result will raise the reasonableness of searches 25
conducted for different records held in different locations. It is impossible to know whether the 26
lawsuits will raise any of the same claimed exemptions because each action seeks different 27
records. 28
9
OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 11 of 14

DAVIS WRIGHT TREMAINE LLP

1

Courts consistently reject stay requests founded on such mere conjecture. For example, in

2 Ramos v. Capital One, 2017 U.S. Dist. LEXIS 32368 (N.D. Cal. Mar. 7, 2017), defendants

3 claimed hardship from litigating related cases at the same time, but the court noted, “[a]side from

4 conclusory assertions, Defendants have not provided any detail as to why simultaneous litigation

5 of this case and [another] case that have substantial overlap in their factual and legal issues would

6 cause a significant burden.” Id. at *8-9. Given the vague showing, the court concluded that any

7 such hardships would “weigh only slightly in favor of granting the stay and do not outweigh the

8 possible prejudice to Plaintiff.” Id. at *12. See also In re Maxwell Techs., Inc., 2014 U.S. Dist.

9 LEXIS 87955, at *5 (S.D. Cal. June 26, 2014) (denying stay litigation in light of related

10 proceeding because moving party’s claim of hardship was “speculative”).11

11

The pendency of Defendant’s MDL motion does not change this analysis. For example, in

12 Barber – a case on similar procedural footing to this one – the court denied a motion to stay as

13 “premature” when it was brought one month prior to an MDL transfer decision. The court found

14 “the only tangible effect of entering a stay at this time would be to allow defendants a three-month

15 reprieve after service of process before being required to answer the allegations brought by

16 plaintiffs in the Complaint. Such a protracted delay appears both unnecessary and unwarranted.”

17 Barber, 2010 WL 2266760, at *2. Just as in this case, “there is no reason in the world why

18 defendants cannot file responsive pleadings prior to the MDL’s determination on the pending

19 transfer and consolidation issues,” because “[r]egardless of whether and where the MDL Panel

20 ultimately transfers this action for consolidated and coordinated pretrial proceedings, defendants

21

22

11 The cases Defendants cite are readily distinguishable because they involved tort claims

where there was little or no dispute over the common issues that posed a serious risk of

23 overlapping proceedings. See Wilbanks v. Merck & Co., Inc., 2005 WL 2234071, at *1 (W.D. Tenn. Sept. 13, 2005) (stay granted where cases from same district raising similar jurisdictional
24 issue had already been transferred to MDL panel and “hundreds, possibly thousands, of others that

have been transferred or are awaiting transfer in other districts”); Freitas, 2012 WL 161211 at *2 25 (judicial economy justified stay where “[o]ver 100 cases involving allegations of harm resulting

26 from the ingestion of medications containing” the same drug); Namovicz v. Cooper Tire & Rubber Co., 225 F. Supp. 2d 582, 583 n.2 (D. Md. 2001) (stay granted where lawsuits were “filed on

27 identical grounds seeking the same relief”); In re Musha Cay Litigation, 330 F. Supp. 2d 1364,
1365 (J.P.M.L. 2004) (granting unopposed request to consolidate arising “from the same 28 underlying commercial transaction,” not addressing any stay request); In re Air Crash Near

Kirksville, Missouri, 383 F. Supp. 2d 1382, 1383 (J.P.M.L. 2005) (same).

10 OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 12 of 14

DAVIS WRIGHT TREMAINE LLP

1 will need to file answers or responsive pleadings.” Id. Given the limited activity likely to occur in

2 this case before the MDL motion is decided, Defendants cannot demonstrate any real harm

3 justifying their proposed blanket stay.

4

Because Plaintiff has demonstrated far more than a “fair possibility” of prejudice and the

5 government points to no hardship other than simply “being required to defend a suit,” its request

6 should be denied. Lockyer, 398 F.3d at 1112.

7 D. A Stay Will Not Significantly Promote Judicial Economy

8

Defendants’ attempt to justify a blanket stay on grounds of judicial economy fail for

9 reasons largely set forth above. They argue, first, that stays are “typically” granted pending

10 motions to transfer to the JPML. Mot. at 2. This is overstated: as noted in Section A, courts

11 frequently deny – and certainly do not automatically grant – requests for stays merely because a

12 motion to transfer pretrial proceedings to the JPML is pending. Defendants’ pending motion

13 “does not affect” this Court’s pretrial jurisdiction. MDL Rule 2.1(d).

14

Next, Defendants argue a stay should be granted because the government “is coordinating

15 [CBP’s] search for records responsive to all of the requests” filed by ACLU affiliates in this and

16 other FOIA actions around the country. Mot. at 4. While Defendants are certainly free to

17 coordinate their efforts from “CBP’s headquarters in Washington, DC,” id., doing so will not

18 result in any particular judicial efficiencies. Again, ACLU’s FOIA request in this case seeks

19 records held by CBP employees in the San Francisco Field Office, related to implementation of

20 the Executive Order at San Francisco International Airport and the other ports of entry under that

21 field office’s control; records held at “CBP Headquarters” were expressly excluded from the

22 request at issue in this case. Compl. Ex. A, at p. 9. Transfer thus will not obviate the need for

23 Defendants to account in this litigation for the records held (or withheld) by CBP in San

24 Francisco, or the search for such records conducted in the San Francisco Field Office. The

25 requested stay will serve only to delay that accounting, and the public’s access to these crucial

26 records.

27

It is telling that the only specific “inefficiency” Defendants identify is that “[a]bsent a stay,

28 Plaintiff may ask the Court to set a schedule for Defendants’ search for, and potential release of,

11 OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 13 of 14

DAVIS WRIGHT TREMAINE LLP

1 responsive information.” Mot. at 4. This argument is problematic, for several reasons. First,

2 CBP’s concern that the court might “set a schedule” to begin searching for records is a tacit

3 admission that Defendants have not yet done so – which would be a violation of their statutory

4 obligation to process ACLU’s FOIA request promptly. 5 U.S.C. § 552(a)(6)(A)(i), (E)(i). A

5 government agency should not be permitted to use a litigation stay to justify evasion of its basic

6 FOIA obligations. Second, Plaintiff has not yet asked the Court to set a schedule; granting a stay

7 on that basis would, at best, be premature. Third, were the Court to set such a schedule, it would

8 not be a waste of judicial resources because it would only affect the FOIA request at issue in this

9 case – which, again, only applies to local records.

10

Similarly, any other litigation activity likely to occur in this case before the MDL motion is

11 decided – such as answering the Complaint and conferring on a joint discovery plan – would not

12 be wasted effort even if this case were transferred by the JPML. As noted above, these activities

13 likely will impose little burden on the parties, and even less (if any) on this Court. Given that the

14 Court has not been asked to decide any motion (other than this one) or intervene in any discovery

15 dispute (again, discovery has yet to begin), Defendants’ request for a blanket stay is patently

16 overbroad. In light of the prejudicial delay in public access that would result from a stay, and the

17 absence of any meaningful efficiencies to be achieved, the stay sought by Defendants is

18 unwarranted.

19

III. CONCLUSION

20

For all of the foregoing reasons, ACLU respectfully requests that the Court deny

21 Defendants’ motion to stay the proceedings.

22 DATED this 24 May 2017.

23

Respectfully submitted,

DAVIS WRIGHT TREMAINE LLP 24

25

By: /s/ Thomas R. Burke

Thomas R. Burke

26

Attorneys for Plaintiffs

AMERICAN CIVIL LIBERTIES UNION OF

27

NORTHERN CALIFORNIA, AMERICAN

CIVIL LIBERTIES UNION OF HAWAIʻI, AND

28

AMERICAN CIVIL LIBERTIES UNION OF

UTAH

12 OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS
4849-3169-7481v.3 0050033-000045

Case 4:17-cv-01970-SBA Document 19 Filed 05/24/17 Page 14 of 14

DAVIS WRIGHT TREMAINE LLP

PROOF OF SERVICE 1

2

I am employed in the City and County of San Francisco, State of California, in the office of a member of the bar of this court, at whose direction the service was made. I am over the age of

3 eighteen (18) years, and not a party to or interested in the within-entitled action. I am an employee of DAVIS WRIGHT TREMAINE LLP, and my business address is 865 S. Figueroa Street, Suite

4 2400, Los Angeles, CA 90017.

5

I caused to be served a copy of the following document: OPPOSITION TO

DEFENDANTS’ MOTION TO STAY PROCEEDINGS I caused the above document to be

6 served on each of the persons listed below by the following means:

7

Matthew J. Berns, Esq. Chetan A. Patil, Esq.

8

Trial Attorney United States Department of Justice

9

Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW

10

Washington, DC 20530 Tel: (202) 305-4968

11

Fax: (202) 616-8470 Email: chetan.patil@usdoj.gov

12

matthew.j.berns@usdoj.gov Counsel for Defendants U.S. Department of

13

Homeland Security and U.S. Customs and Border Protection

14 ☑ I enclosed a true and correct copy of said document in an envelope and placed it for

15

collection and mailing with the United States Post Office on May 24, 2017, following the

ordinary business practice.

16 □ I enclosed a true and correct copy of said document in an envelope and placed it for

17

collection and mailing via Federal Express on May 24, 2017, for guaranteed delivery on

[date of delivery], following the ordinary business practice.

18 □ I consigned a true and correct copy of said document for facsimile transmission on May

19

24, 2017.

20 □ A true and correct copy of said document was emailed on May 24, 2017.

21

I am readily familiar with my firm’s practice for collection and processing of

22 correspondence for delivery in the manner indicated above, to wit, that correspondence will be deposited for collection in the above-described manner this same day in the ordinary course of

23 business.

24

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct. 25

26

Executed on May 24, 2017, at Los Angeles, California.

27

/s/Lina Pearmain Lina Pearmain

28

1 OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS Case No. 3:17-cv-01970
4849-3169-7481v.3 0050033-000045

 
 Case 4:17-cv-01970-SBA Document 20 Filed 05/31/17 Page 1 of 2

DAVIS WRIGHT TREMAINE LLP

1 Thomas R. Burke (State Bar No. 141930)

2

thomasburke@dwt.com DAVIS WRIGHT TREMAINE LLP

3

505 Montgomery Street, Suite 800 San Francisco, CA 94111

4

Telephone: (415) 276-6500 Facsimile: (415) 276-6599

5 Linda Lye (State Bar No. 215584)

6

llye@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION

7

OF NORTHERN CALIFORNIA 39 Drumm Street

8

San Francisco, CA 94111 Telephone: (415) 621-2493

9 Mateo Caballero (admission pro hac vice forthcoming)

10

mcaballero@acluhawaii.org AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI FOUNDATION

11

P.O. Box 3410 Honolulu, HI 96801

12 Telephone: (808) 522-5908

13

Leah Farrell (admission pro hac vice forthcoming) lfarrell@acluutah.org

14

AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION 355 North 300 West

15

Salt Lake City, UT 84103 Telephone: (801) 521-9862

16 Attorneys for Plaintiffs

17

18

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

19

SAN FRANCISCO-OAKLAND DIVISION

20

21

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN

Case No. 4:17-cv-01970-SBA

22 23

CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION OF UTAH,

NOTICE OF FILING OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER TO THE DISTRICT OF COLUMBIA FOR CONSOLIDATION

24

Plaintiffs,

25

v.

26 U.S. DEPARTMENT OF HOMELAND

27

SECURITY and U.S. CUSTOMS AND BORDER PROTECTION,

28

Defendants.

NOTICE OF FILING MDL OPPOSITION
4828-9742-3689v.1 0050033-000045

Case 4:17-cv-01970-SBA Document 20 Filed 05/31/17 Page 2 of 2

DAVIS WRIGHT TREMAINE LLP

1

NOTICE IS HEREBY GIVEN that Plaintiffs American Civil Liberties Union of Northern

2 California, American Civil Liberties Union of Hawai’I, and American Civil Liberties Union of

3 Utah (collectively, the “ACLU Affiliates”), filed a “MEMORANDUM OF PLAINTIFFS, 42

4 AMERICAN CIVIL LIBERTIES UNION AFFILIATES, IN OPPOSITION TO DEFENDANTS’

5 MOTION FOR TRANSFER TO THE DISTRICT OF COLUMBIA FOR CONSOLIDATION”

6 with the United States Judicial Panel on Multidistrict Litigation on May 30, 2017.

7 DATED this 31 May 2017. 8
9

Respectfully submitted, DAVIS WRIGHT TREMAINE LLP

10

By: /s/ Thomas R. Burke

11

Thomas R. Burke Attorneys for Plaintiffs

12

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN

13

CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION OF

14

UTAH

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1
NOTICE OF FILING MDL OPPOSITION
4828-9742-3689v.1 0050033-000045

 
 Case 4:17-cv-01970-SBA Document 21 Filed 05/31/17 Page 1 of 8

1

CHAD A. READLER Acting Assistant Attorney General

2 Civil Division

3

BRIAN J. STRETCH United States Attorney

4 ELIZABETH J. SHAPIRO 5 Deputy Director, Federal Programs Branch

6

MATTHEW J. BERNS (DC 998094) CHETAN A. PATIL (NY 4780599)

7

Trial Attorney United States Department of Justice

8

Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW

9

Washington, DC 20530 Tel.: (202) 305-4968; Fax: (202) 616-8470

10 Email: chetan.patil@usdoj.gov

11

Attorneys for Defendants U.S. Department of Homeland Security and U.S. Customs and

12 Border Protection

13

UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

15

16

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN

17 CIVIL LIBERTIES UNION OF HAWAI’I,

18

AND AMERICAN CIVIL LIBERTIES UNION Case No.: 4:17-cv-01970-SBA OF UTAH,

19

Plaintiffs,

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STAY PROCEEDINGS

20

v.

21

PENDING DECISION ON MOTION TO TRANSFER

22

U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND

Date: June 14, 2017 Time: 1:00 p.m.

23 BORDER PROTECTION,

24

Defendants.

Judge: Hon. Saundra B. Armstrong Courtroom: 210

25

26

27

28

Reply in support of Defs.’ Mot. to Stay Proceedings Case No. 4:17-cv-01970-SBA

Case 4:17-cv-01970-SBA Document 21 Filed 05/31/17 Page 2 of 8

1

INTRODUCTION

2

In their Motion to stay the proceedings, Defendants requested that this Court impose a

3 brief stay of the proceedings—likely only for a matter of weeks—while their motion to transfer

4 this and twelve other related actions filed by ACLU affiliates is pending before the Judicial Panel

5 on Multidistrict Litigation. Plaintiffs spend the bulk of their Opposition arguing against

6 consolidation. Plaintiffs repeatedly argue that this case is unrelated to the others, Pls.’ Opp’n at

7 2, 4, 9, 11-12 (ECF No. 19)—even though all of them were brought by ACLU affiliates as

8 admittedly “coordinated” lawsuits and even though they all concern parallel FOIA requests for

9 identical or nearly identical categories of records, see Transfer Mot. at 4-7 (ECF No. 15-3)—

10 because the plaintiffs are different ACLU affiliates and because the requests seek records from

11 different CBP field offices. Such arguments should instead be addressed to the JPML, which is

12 considering whether consolidated or coordinated pretrial proceedings would be appropriate (and

13 which has previously centralized FOIA actions over similar objections). As Defendants have

14 explained, a temporary stay of proceedings until the JPML can decide Defendants’ motion to

15 transfer serves the interests of judicial economy and avoids any significant burden to either party.

16 The JPML is likely to hear and decide the transfer motion only a few weeks after the first

17 deadline in this case. Any stay of this duration would have no effect on the timing of

18 Defendants’ release of responsive records, and thus Plaintiffs will suffer no prejudice.

19 Moreover, the strategic behavior of Plaintiffs and the other ACLU affiliates in unnecessarily

20 bringing the related actions as thirteen separate cases obviously imposes a burden on Defendants

21 from having to engage in parallel proceedings in thirteen courts. And Plaintiffs have not

22 explained why this Court should now expend its resources on pretrial proceedings—including

23 status reports, scheduling orders, and possible discovery—when those issues would need to be

24 re-litigated before the transferee court.

25

Stays pending a JPML motion, while not automatic, are routine. See, e.g., Defs.’ Mot. at

26 3 (ECF No. 17) (collecting authorities); see also, e.g., San Diego Unified Port Dist. v. Monsanto

27 Co., No. 15-cv-00578-WQH-JLB, 2016 WL 4496826, at *1 (S.D. Cal. Feb. 1, 2016) (“majority

28 of courts have concluded that it is often appropriate to stay preliminary pretrial proceedings”);

Reply in support of Defs.’ Mot. to Stay Proceedings - 1 Case No. 4:17-cv-01970-SBA

Case 4:17-cv-01970-SBA Document 21 Filed 05/31/17 Page 3 of 8

1 Automated Transactions, LLC v. Bath Sav. Inst., No. 2:12-cv-393-JAW, 2013 WL 1346470, at

2 *2 (D. Me. Mar. 14, 2013) (courts grant stays “frequently”) Bonenfant v. R.J. Reynolds Tobacco

3 Co., No. 07-60301-CIV, 2007 WL 2409980, at *1 (S.D. Fla. July 31, 2007) (“common practice”

4 to grant stays).1 Contrary to Plaintiffs’ contention, there is no exception to the typical practice

5 when the government seeks transfer of FOIA cases. Indeed, as discussed below, stays pending a

6 decision of the JPML have been granted in numerous FOIA cases, and Plaintiffs identify no

7 FOIA case in which such a stay was denied. In light of the limited duration of any potential stay

8 here, the ACLU affiliates’ strategic approach to the litigation, and the burden that a piecemeal

9 approach imposes on the government and the courts, this Court should grant Defendants’ request

10 for a temporary stay.

11

ARGUMENT

12 I. PLAINTIFFS WILL NOT SUFFER HARDSHIP FROM A TEMPORARY STAY

13

Plaintiffs do not dispute that this case is in the early stages of litigation and that any stay

14 would likely be of a brief duration—likely a matter of weeks, not months. Courts have readily

15 found that plaintiffs suffer no prejudice in similar circumstances. See Defs.’ Mot. at 5-6.

16

Instead, Plaintiffs suggest that FOIA is different and that Plaintiffs will suffer “significant

17 prejudice[]” because a stay would delay the release of responsive, non-exempt records by

18 Defendants. Pls.’ Opp’n at 6-8. Contrary to Plaintiffs’ suggestion, there is no reason that stays

19 in FOIA cases should be treated differently in this context. Plaintiffs cite no FOIA case in which

20

21

1 Plaintiffs erroneously suggest that courts “frequently deny . . . requests for stays” pending a decision by the JPML. Pls.’ Opp’n at 11. Their Opposition relies primarily on non-JPML cases and only identifies four cases in

22

which courts denied a stay pending a JPML decision. These cases are easily distinguishable, and, in any event, are against the clear weight of authority recognizing that stays in this context are routine. See Sehler v. Prospect Mortg.,

23

LLC, No. 1:13cv473(JCC/TRJ), 2013 WL 5184216, at *3 (E.D. Va. Sept. 16, 2013) (denying stay where defendant agreed to decertification of class before moving for consolidation before the JPML and where stay would have

24

delayed case by four to six months, during which time trial would occur); Sullivan v. Cottrell, Inc., No. 11CV1076S, 2012 WL 694825, at *5 (W.D.N.Y. Feb. 29, 2012) (holding that stay was not warranted where motion to remand

25

raised issues regarding court’s jurisdiction and where court could decide remand motion and motion to dismiss before the JPML heard transfer motion); St. Joe Co. v. Transocean Offshore Deepwater Drilling Inc., 774 F. Supp.

26

2d 596, 600-02 (D. Del. 2011) (denying stay where motion to remand was fully briefed by parties and was granted by court in same opinion as stay motion); Barber v. BP, PLC, No. 10-0263-WS-B, 2010 WL 2266760, at *2 (S.D.

27

Ala. June 4, 2010) (denying stay motion in putative class action where district court had previously denied 23 “substantively identical motions to stay” proceedings). Moreover, none of these cases addresses the key

28

circumstances here—a weeks-long stay at an early stage of the litigation, where Plaintiffs would not be prejudiced, and where the need for consolidation arose because of Plaintiffs’ “coordinated” effort to file piecemeal actions.

Reply in support of Defs.’ Mot. to Stay Proceedings - 2 Case No. 4:17-cv-01970-SBA

Case 4:17-cv-01970-SBA Document 21 Filed 05/31/17 Page 4 of 8

1 a court denied a stay pending a decision by the JPML. Defendants are aware of two instances in

2 which the government sought centralization of FOIA actions by the JPML. See Transfer Mot. at

3 9-10. In both, transferor courts granted motions to stay the proceedings pending the JPML’s

4 decision, and Defendants are not aware of any transferor court in these actions that denied a stay

5 motion. See, e.g., Freedom Magazine v. IRS, No. 91-cv-6813 (S.D. Fla.) (ECF No. 10);

6 Freedom Magazine v. IRS, No. 91-cv-2921 (D. Md.) (ECF No. 6); Freedom Magazine v. IRS,

7 No. 91-cv-12598 (D. Mass.) (ECF entry Feb. 7, 1992); Freedom Magazine v. IRS, No. 91-cv-704

8 (S.D. Ohio) (ECF No. 6); Bach v. IRS, No. 91-cv-20184 (N.D. Cal.) (ECF No. 13); Chandler v.

9 IRS, No. 91-cv-20183 (N.D. Cal.) (ECF No. 15); Kimmich v. IRS, No. 91-cv-20182 (N.D. Cal.)

10 (ECF No. 13); Licciardi v. IRS, No. 91-cv-148 (D.N.H.) (ECF No. 5). Plainly, then, stays

11 pending JPML decisions are equally justified in FOIA cases.

12

Moreover, notwithstanding their conclusory assertions of “delay,” Pls.’ Opp’n at 8,

13 Plaintiffs fail to explain how a temporary stay would have any effect on the timing of the release

14 of responsive records in this case. Currently, Defendants’ response to the complaint is due June

15 26, 2017, and the Court has instructed the parties to meet and confer regarding initial disclosures,

16 alternative dispute resolution, and a discovery plan no later than August 14, 2017. (ECF No. 18.)

17 Defendants anticipate that their motion to transfer will be heard by the JPML on July 27, 2017

18 and decided shortly thereafter. As Defendants explained in their Motion, even if a stay is

19 imposed, Defendants will continue to compile and review records during the pendency of the

20 stay. Defs.’ Mot. at 6. Indeed, Defendants recently granted Plaintiffs’ request for expedited

21 treatment and have placed the coordinated requests of all the ACLU affiliates in the expedited

22 processing queue, ahead of all non-expedited requests and later expedited requests. Thus,

23 Defendants’ response to Plaintiffs’ request will proceed on the same track with or without the

24 stay.2

25

Further, Plaintiffs do not identify anything that will occur in this Court before the JPML’s

26

27

2 Plaintiffs grasp at straws when they suggest that “CBP’s concern that the court might ‘set a schedule’” is a “tacit admission” that Defendants have not begun processing Plaintiffs’ request. Pls.’ Opp’n at 12. As Defendants

28

have already explained, CBP headquarters is currently in the process of compiling and reviewing records for responsiveness to the FOIA requests in the related actions. See supra Pt. I; Defs.’ Mot. at 6.

Reply in support of Defs.’ Mot. to Stay Proceedings - 3 Case No. 4:17-cv-01970-SBA

Case 4:17-cv-01970-SBA Document 21 Filed 05/31/17 Page 5 of 8

1 decision that would actually hasten the release of responsive documents. Though Defendants

2 will process Plaintiffs’ request “as soon as practicable,” 6 C.F.R. § 5.5(e)(4), there is no reason to

3 believe—particularly in light of the substantial volume of recent FOIA requests received by

4 Defendants and the complexity of Plaintiffs’ request—that production of all responsive records

5 will be complete by the time the JPML decides Defendants’ transfer motion. Indeed, Plaintiffs

6 do not claim it would be, as they “have not yet asked the Court to set a [production] schedule”

7 and believe that only “limited activity [is] likely to occur in this case before the MDL motion is

8 decided.” Pls.’ Opp’n at 11-12. It is difficult to square these assertions with Plaintiffs’ dire

9 warnings of unspecified “delay.”

10 II. SIMULTANEOUS AND DUPLICATIVE PROCEEDINGS IN THIRTEEN

11

PARALLEL ACTIONS WILL IMPOSE AN UNNECESSARY BURDEN

12

As Defendants explained, proceeding in this case (and the other related cases) while their

13 motion to transfer is pending forces them to engage in simultaneous proceedings in thirteen

14 separate cases before thirteen different courts. See Defs.’ Mot. at 5. Plaintiffs disregard this

15 burden as not a “real hardship” and claim that Defendants are only seeking to avoid “having to

16 defend this action on a normal schedule.” Pls.’ Opp’n at 9.

17

Plaintiffs’ attempt to minimize the obvious burden to Defendants requires looking at this

18 case in isolation from the other related actions. But, as a direct result of the ACLU’s coordinated

19 strategy to gerrymander these FOIA requests into thirteen separate cases, see Transfer Mot. at 4-

20 8, Defendants must simultaneously answer complaints, appear in status conferences, and submit

21 joint status reports in the thirteen related actions. In this action in particular, Defendants would,

22 at a minimum, be required to respond to the complaint and confer with Plaintiffs on initial

23 disclosures and a discovery plan. This work would be duplicated in the other related actions and

24 in the transferee court, and “litigating essentially the same claims in courts all over the country is

25 no doubt burdensome.” Bd. of Trustees of Teachers’ Retirement Sys. of Illinois v. Worldcom,

26 Inc., 244 F. Supp. 2d 900, 905 (N.D. Ill. 2002).

27

Plaintiffs’ suggestion that “answering the Complaint and conferring on a joint discovery

28 plan . . . would not be wasted effort even if this case were transferred by the JPML,” Pls.’ Opp’n

Reply in support of Defs.’ Mot. to Stay Proceedings - 4 Case No. 4:17-cv-01970-SBA

Case 4:17-cv-01970-SBA Document 21 Filed 05/31/17 Page 6 of 8

1 at 12, is plainly wrong. If the cases are consolidated, Defendants may not need to answer

2 thirteen individual complaints at all, because the transferee court would likely require all of the

3 ACLU affiliate plaintiffs to file a single amended consolidated complaint, which would require

4 only one answer. See, e.g., Manual for Complex Litigation § 20.132, at 224 n.668 (4th ed.

5 2004). And if the cases are transferred to Defendants’ proposed forum, this action would be

6 exempt under the local rules from any requirement to engage in a Rule 16 conference or confer

7 on a joint discovery plan. See Transfer Mot. at 15. Thus, absent a stay, Defendants will be

8 required to undertake time-consuming work—in as many as thirteen separate cases—that may

9 otherwise prove unnecessary.

10

Moreover, Plaintiffs do not disclaim any intent to request either discovery or a production

11 schedule while Defendants’ transfer motion is pending. See Pls.’ Opp’n at 12. Any decision that

12 this Court may reach on these issues clearly may conflict with those of other courts and/or the

13 transferee court. Defs.’ Mot. at 5. Any such inconsistency would be plainly prejudicial—it

14 would likely place competing demands on the same agency personnel responsible for processing

15 the responses to the requests in each of the related cases. Id. And, if Defendants’ motion to

16 transfer is granted, Defendants would be forced to re-litigate these exact same issues before the

17 transferee court. Id. Plaintiffs ignore this fact.

18

Courts routinely find that the burden in time and expense from rearguing the same issues

19 in different courts and the potential for inconsistent rulings justify a temporary stay pending a

20 decision by the JPML on a motion to transfer. See id. (collecting cases); see also, e.g., Cooper v.

21 Siddighi, No. EDCV 13-00345 JGB (SPx), 2013 WL 12140988, at *4 (C.D. Cal. May 8, 2013);

22 Oregon ex rel. Kroger v. Johnson & Johnson, No. 11-CV-86-AC, 2011 WL 1347069, at *6 (D.

23 Or. Apr. 8, 2011); Paul v. Aviva Life & Ann. Co., No. 09-1038, 2009 WL 2244766, at *2 (N.D.

24 Ill. July 27, 2009); Palmer v. Am. Honda Motor Co., No. CV 07-1904-PHX-DGC, 2008 WL

25 54914, at *1 (D. Ariz. Jan. 3, 2008). For those same reasons, a stay is warranted here as well.

26 III. 27 28

A STAY WOULD SERVE JUDICIAL ECONOMY BY AVOIDING UNNECESSARY AND DUPLICATIVE PROCEEDINGS
Plaintiffs also try to minimize the waste of judicial resources from duplicative

Reply in support of Defs.’ Mot. to Stay Proceedings - 5 Case No. 4:17-cv-01970-SBA

Case 4:17-cv-01970-SBA Document 21 Filed 05/31/17 Page 7 of 8

1 proceedings in the related cases by arguing essentially that there are no duplicative proceedings

2 because this action has nothing to do with the other related actions. Pls.’ Opp’n at 11-12. As

3 discussed above, Plaintiffs are simply wrong. In any event, Plaintiffs’ argument speaks more to

4 whether transfer is appropriate than to whether this Court should stay proceedings while the

5 JPML considers the appropriateness of transfer. There can be no doubt that, if the case is

6 transferred, any time this Court has devoted to pretrial proceedings will have been for naught.

7

Finally, Plaintiffs suggest that a stay would be “premature” because they “have not yet

8 asked the Court to set a schedule.” Pls.’ Opp’n at 12. As discussed, the imminent deadlines

9 Defendants face in this and the twelve other related cases make Defendants’ stay motion

10 anything but premature. In any event, that Plaintiffs have not “yet” asked the Court to set a

11 schedule does not mean Plaintiffs will not seek to do so before the JPML decides Defendants’

12 motion, or that they will not engage in other unnecessary proceedings. A stay would make it

13 unnecessary for the Court to devote its time to resolving any disputes over such pretrial matters.

14 Cf. Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997) (granting stay in

15 interests of judicial economy because absent stay “this Court will have needlessly expended its

16 energies familiarizing itself with the intricacies of a case that would be heard by another judge”).

17

CONCLUSION

18

For the foregoing reasons and those stated in Defendants’ Motion, this Court should grant

19 Defendants’ request for a temporary stay of proceedings.

20

21 Dated: May 31, 2017

Respectfully submitted,

22

CHAD A. READLER

23

Acting Assistant Attorney General

24

BRIAN J. STRETCH

United States Attorney
25

26

ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch

27

28

Reply in support of Defs.’ Mot. to Stay Proceedings - 6 Case No. 4:17-cv-01970-SBA

Case 4:17-cv-01970-SBA Document 21 Filed 05/31/17 Page 8 of 8

1

/s/ Chetan A. Patil MATTHEW J. BERNS

2

CHETAN A. PATIL

3

Attorneys for Defendants U.S. Department of

4

Homeland Security and U.S. Customs and Border Protection

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Reply in support of Defs.’ Mot. to Stay Proceedings - 7 Case No. 4:17-cv-01970-SBA

 
 Case 4:17-cv-01970-SBA Document 24 Filed 06/07/17 Page 1 of 7

DAVIS WRIGHT TREMAINE LLP

1 Thomas R. Burke (State Bar No. 141930) thomasburke@dwt.com
2 DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800
3 San Francisco, CA 94111 Telephone: (415) 276-6500
4 Facsimile: (415) 276-6599

5 Linda Lye (State Bar No. 215584) llye@aclunc.org
6 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
7 39 Drumm Street San Francisco, CA 94111
8 Telephone: (415) 621-2493

9 Mateo Caballero (admitted pro hac vice) mcaballero@acluhawaii.org
10 AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI FOUNDATION P.O. Box 3410
11 Honolulu, HI 96801 Telephone: (808) 522-5908
12
Leah Farrell (admitted pro hac vice) 13 lfarrell@acluutah.org
AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION 14 355 North 300 West
Salt Lake City, UT 84103 15 Telephone: (801) 521-9862

16 Attorneys for Plaintiffs

17

IN THE UNITED STATES DISTRICT COURT 18
FOR THE NORTHERN DISTRICT OF CALIFORNIA 19
SAN FRANCISCO-OAKLAND DIVISION 20

AMERICAN CIVIL LIBERTIES UNION OF 21 NORTHERN CALIFORNIA, AMERICAN

Case No. 3:17-cv-01970-SBA

22

CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION

STATEMENT OF RECENT DECISION

OF UTAH, 23

24

Plaintiffs,

25

v.

26 U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND
27 BORDER PROTECTION,

28

Defendants.

STATEMENT OF RECENT DECISION Case No. 3:17-cv-01970
4827-9867-3482v.2 0201195-000001

Case 4:17-cv-01970-SBA Document 24 Filed 06/07/17 Page 2 of 7

DAVIS WRIGHT TREMAINE LLP

1

In accordance with L.R. 7-3(d)(2), Plaintiffs American Civil Liberties Union of Northern

2 California, American Civil Liberties Union of Hawaiʻi, and American Civil Liberties Union of

3 Utah (collectively, “Plaintiffs”) hereby bring to the Court’s attention a relevant judicial opinion

4 published after the date of filing of Plaintiffs’ Opposition to Defendants’ Motion to Stay (ECF No.

5 19). In particular, on June 6, 2017, the United States District Court for the Western District of

6 Washington issued an order denying the Motion to Stay Proceedings filed by Defendants

7 Department of Homeland Security and Customs and Border Protection in a FOIA case brought by

8 the American Civil Liberties of Washington. See Order Denying Motion to Stay Proceeding,

9 ACLU of Washington v. DHS, No. 17-cv-00562 (W.D. Wa. June 6, 2017), ECF No. 20 (attached

10 hereto as Exhibit A).

11

12 DATED this 7 June 2017.

13

Respectfully submitted,

DAVIS WRIGHT TREMAINE LLP 14

15

By: /s/ Thomas R. Burke

Thomas R. Burke

16

Attorneys for Plaintiffs

AMERICAN CIVIL LIBERTIES UNION OF

17

NORTHERN CALIFORNIA, AMERICAN

CIVIL LIBERTIES UNION OF HAWAIʻI, AND

18

AMERICAN CIVIL LIBERTIES UNION OF

UTAH 19

20

21

22

23

24

25

26

27

28
1 STATEMENT OF RECENT DECISION Case No. 3:17-cv-01970
4827-9867-3482v.2 0201195-000001

Case 4:17-cv-01970-SBA Document 24 Filed 06/07/17 Page 3 of 7

Case 42:17-cv-010957602-SRBSAL Document 204 Filed 06/067/17 Page 14 of 47

1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7

8

AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON, et al.,

9 Plaintiffs,

10 v.

11 UNITED STATES DEPARTMENT OF
12 HOMELAND SECURITY, et al.,

13

Defendants.

CASE NO. C17-0562RSL
ORDER DENYING MOTION TO STAY PROCEEDING

14

15 This matter comes before the Court on “Defendants’ Motion to Stay Proceedings
16 Pending Decision on Motion to Transfer.” Dkt. # 11. Having reviewed the memoranda
17 submitted by the parties and the remainder of the record, the Court finds as follows:
18 On February 2, 2017, plaintiffs, ACLU affiliates in Washington, Montana, and North
19 Dakota, made a request for records from the United States Customs & Border Protection
20 (“CBP”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. The request seeks
21 information regarding the interpretation and implementation of an Executive Order1 at
22
international airports within the purview of the Seattle CBP Field Office. Plaintiffs requested 23
expedited processing. When defendants failed to respond to the request for expedited 24

25
1 The Executive Order was dated January 27, 2017, and titled “Protecting the Nation From 26 Foreign Terrorist Entry Into the United States.”

ORDER DENYING MOTION TO STAY PROCEEDING - 1

Case 42:17-cv-010957602-SRBSAL Document 204 Filed 06/067/17 Page 25 of 47

1 processing and failed to produce responsive documents within the time allowed by statute,

2 plaintiffs filed this lawsuit.

3

At or about the same time, ACLU affiliates around the country filed twelve other

4 lawsuits attempting to force the production of documents related to the way their local CBP

5 Field Offices implemented the Executive Order. On May 8, 2017, defendants filed a motion

6 with the Judicial Panel on Multidistrict Litigation seeking transfer and consolidation of all

7 thirteen actions in the United States District Court for the District of Columbia. Defendants

8 seek to stay this litigation until the motion to transfer is resolved. Defendants assert, and

9 plaintiffs do not dispute, that the motion will likely be heard on July 27, 2017, with a decision

10 issued shortly thereafter. Defendants’ response to the complaint in this matter is currently due

11 on June 29, 2017. The parties are to submit a joint status report on July 20, 2017, which will

12 trigger the issuance of a case management order.

13

Whether to stay proceedings while the Judicial Panel on Multidistrict Litigation

14 considers a motion to transfer is within the sole discretion of the transferor judge. In re Air

15 Crash Disaster at Paris, France, on Mar. 3, 1974, 376 F. Supp. 887, 888 (J.P.M.L. 1974).

16 “When considering a motion to stay, the district court should consider three factors:

17 (1) potential prejudice to the non-moving party; (2) hardship and inequity to the moving party

18 if the action is not stayed; and (3) the judicial resources that would be saved by avoiding

19 duplicative litigation if the cases are in fact consolidated.” Rivers v. Walt Disney Co., 980 F.

20 Supp. 1358, 1360 (C.D. Cal. 1997). See also Landis v. N. Am. Co., 299 U.S. 248, 254-55

21 (courts must weigh the competing interests which will be affected by a stay, including the

22 possible damage which may result from granting the stay, any hardship or inequity that may

23 arise if the matter moves forward, and judicial economy and efficiency).

24

The Court finds that this matter should proceed as currently scheduled. FOIA

25 represents a congressional mandate for full agency disclosure unless information falls within a

26

ORDER DENYING MOTION TO STAY PROCEEDING - 2

Case 42:17-cv-010957602-SRBSAL Document 204 Filed 06/067/17 Page 36 of 47

1 clearly delineated statutory exemption. One of its core purposes is to keep the citizenry

2 “informed about what their government is up to,” a vital hallmark of a functioning democracy.

3 U.S. Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994) (quoting U.S.

4 Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 773 (1989)). The

5 February FOIA requests relate to matters of great public interest and are relevant to on-going

6 legal actions. In addition, local Field Offices may be a primary, if not the best, source for

7 information regarding how the Executive Order was interpreted and implemented, i.e., how

8 the agency performed its duties. Despite the standard 20-day response period (5 U.S.C.

9 § 552(a)(6)(A)(i)), there is no indication that defendants have initiated a search for, much less

10 produced, responsive documents or claimed any statutory exemptions. Plaintiffs’ and the

11 public’s right to know what the government is up to has already been delayed for more than

12 three months. Given the purposes for which FOIA was enacted, an open-ended stay of this

13 litigation would be prejudicial.

14

Plaintiff has alleged multiple violations of FOIA, namely that defendants failed to

15 comply with the 20-day deadline, failed to make the requested records available, and failed to

16 timely resolve the request for expedited processing. If this matter is not stayed, defendants will

17 be required to file a motion to dismiss or to answer plaintiffs’ allegations before the MDL

18 considers the motion to transfer. They will also be required to confer with counsel regarding

19 case management procedures and deadlines. Defendants argue that the thirteen pending

20 lawsuits are substantially similar, that defendants’ investigation and responses will be

21 centralized, and that requiring them to respond to each litigation is unnecessarily duplicative.

22 While there will undoubtedly be some duplication, defendants have not shown that it would 23 rise to the level of hardship or inequity. If defendants are right, the responses and case 24 management proposals throughout the country will be similar, if not identical, and will require 25 little more than a change of caption and formatting to accommodate the various districts in 26

ORDER DENYING MOTION TO STAY PROCEEDING - 3

Case 42:17-cv-010957602-SRBSAL Document 204 Filed 06/067/17 Page 47 of 47

1 which these cases are pending. Case management conferences with thirteen sets of opposing

2 counsel will be time consuming, but they can be accomplished via telephone and will not

3 involve any extraordinary expense or delay.

4

The Court’s interest in staying the case at this stage of the litigation is minimal. The

5 procedural and case management orders in this district are standardized, require little judicial

6 involvement, and are designed to move cases toward resolution in an efficient and expeditious

7 manner. Between now and the end of July, there is virtually no risk of inconsistent substantive

8 rulings. At most, there will be a pending motion to dismiss when the MDL decides whether to

9 grant defendants’ transfer request. Whether the MDL takes the case or not, the issues raised in

10 the motion to dismiss will be ready for consideration by the assigned judicial officer.

11

12

For all of the forgoing reasons, the Court finds that the balance of relevant factors does

13 not warrant a stay. The duplication of effort of which defendants complain does not outweigh

14 plaintiffs’ interest in full and timely agency disclosure regarding an issue of on-going national

15 interest. If the current, stipulated schedule remains in place, by the end of July 2017, the case 16 either will have a fully-briefed motion to dismiss ready for consideration or will be moving 17 crisply toward the filing of cross-motions for summary judgment. No judicial inefficiency or 18 waste are likely in the time frame at issue. The motion to stay proceedings (Dkt. # 11) is 19 DENIED. 20

21

22

Dated this 5th day of June, 2017.

23

A

Robert S. Lasnik

24

United States District Judge

25

26

ORDER DENYING MOTION TO STAY PROCEEDING - 4

 
 CaCseas4e:1M7-DcLv-N01o9. 7207-8S6BADoDcuomcuemnte8n8t 30FileFdile0d8/0082//0137/17PaPgeag1eo1f 5of 5

UNITED STATES JUDICIAL PANEL on
MULTIDISTRICT LITIGATION
IN RE: AMERICAN CIVIL LIBERTIES UNION FREEDOM OF INFORMATION ACT (FOIA) REQUESTS REGARDING EXECUTIVE ORDER 13769

MDL No. 2786

ORDER DENYING TRANSFER
Before the Panel:* Defendants, the U.S. Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP),1 move to centralize thirteen Freedom of Information Act (FOIA) actions in the District of District of Columbia. The actions, which are pending in thirteen districts, are listed on the attached Schedule A.
Plaintiffs, which are various affiliates of the American Civil Liberties Union, oppose centralization. If the Panel grants the Section 1407 motion over their objections, plaintiffs ask that the action in the Eastern District of Michigan be excluded, and that the litigation be centralized in the Eastern District of Virginia or, alternatively, in the District of Maine or the Western District of Washington.
On the basis of the papers filed and the hearing session held, we deny Defendants’ motion. The actions arguably share a limited number of factual issues arising out of FOIA requests made by plaintiffs for records concerning CBP’s interpretation and implementation – at local international airports and, in the Eastern District of Michigan case, U.S./Canada border crossings – of the January 27, 2017, Executive Order No. 13769, titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” as well as any judicial order or executive directive issued regarding the Executive Order. But these factual issues, which principally concern the adequacy of CBP’s searches for the requested records, as well as CBP’s coordination of the searches by its Washington, D.C., headquarters, appear relatively straightforward and unlikely to entail extensive pretrial proceedings. See Riccardi v. U.S. Dep’t of Justice, 32 F. Supp. 3d 59, 63 (D.D.C. 2014) (“In a FOIA case, where the adequacy of an agency’s search is questioned, the Court may grant summary judgment based on information provided in ‘[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.’”) (quoting Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir.1999)). Indeed, as Defendants acknowledge, these actions probably will not involve any discovery. See Mem. in Supp. of Defs.’ Mot. for Transfer, at 16 n.8 (ECF No. 1-1)
* Judge Marjorie O. Rendell took no part in the decision of this matter.
1 CBP is a component of DHS.

CaCseas4e:1M7-DcLv-N01o9. 7207-8S6BADoDcuomcuemnte8n8t 30FileFdile0d8/0082//0137/17PaPgeag2eo2f 5of 5
-2-
(“In the unlikely event that discovery is authorized in these Related Actions, Defendants anticipate that CBP witnesses would be located in Washington, DC, while Plaintiffs would not have any witnesses of their own.”); see also, e.g., Justice v. I.R.S., 798 F. Supp. 2d 43, 47 (D.D.C. 2011) (noting that in FOIA actions, discovery is “disfavored”).2
Defendants also contend that common factual questions will inform any review of CBP’s determinations to withhold information from disclosure pursuant to FOIA’s statutory exemptions. This argument is unconvincing, because the application of those exemptions is a legal issue. See, e.g., Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007) (“Whether a FOIA exemption justifies withholding a record is a question of law that we review de novo.”); see also Am. Mgmt. Servs., LLC v. Dep’t of the Army, 703 F.3d 724, 729 (4th Cir. 2013) (same).
Although defendants heavily rely on the Panel’s 1992 decision in MDL No. 910, In re: Freedom Magazine/Internal Revenue Service FOIA Litigation, and its 1991 decision in MDL No. 892, In re: Church of Scientology Flag Service Organization/Internal Revenue Service FOIA Litigation, those decisions are in at least some tension with more recent Panel precedent. E.g., In re: Clean Water Rule: Definition of “Waters of the United States,” 140 F. Supp. 3d 1340, 1341 (J.P.M.L. 2015) (denying federal government defendants’ motion for centralization of nine actions pending in seven districts involving challenges to EPA rule, where resolution of the actions would “involve only very limited pretrial proceedings,” and discovery, if any, would be “minimal”). Moreover, the decisions are distinguishable. In Freedom Magazine, the eight cases were filed by a single plaintiff, which specifically sought records located at the IRS’s Washington, D.C. headquarters. See Freedom Magazine Transfer Order at 2 (J.P.M.L. Feb. 12, 1992) (unpublished). And, in Church of Scientology, “every FOIA request in the litigation was made upon the IRS office in Jacksonville in [the Middle District of Florida, where the cases were centralized],” and related litigation was pending in that district. See Church of Scientology Transfer Order at 2 (J.P.M.L.. Sept. 4, 1991) (unpublished). Here, the actions are brought by separate plaintiffs (albeit all ACLU affiliates), and each FOIA request targets a different CBP field office.
Defendants also argue that centralization would reduce litigation costs. They represent, without contradiction, that it was unnecessary for the ACLU plaintiffs to submit a separate FOIA request for each CBP field office, and that the national ACLU, or the various affiliates acting together, simply could have sent CBP headquarters a single FOIA request asking the agency to search the same field offices for the same records covered by the multiple requests. But, the potential for litigation cost savings, without more, does not warrant centralization, particularly where, as here, there is little likelihood of complex pretrial proceedings.
2 In the unlikely event that these cases actually involve a significant amount of duplicative pretrial discovery, Defendants are free to file another motion for centralization.

CaCseas4e:1M7-DcLv-N01o9. 7207-8S6BADoDcuomcuemnte8n8t 30FileFdile0d8/0082//0137/17PaPgeag3eo3f 5of 5
-3IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.
PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance Chair

Charles R. Breyer Ellen Segal Huvelle Catherine D. Perry

Lewis A. Kaplan R. David Proctor

CaCseas4e:1M7-DcLv-N01o9. 7207-8S6BADoDcuomcuemnte8n8t 30FileFdile0d8/0082//0137/17PaPgeag4eo4f 5of 5

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

MDL No. 2786

SCHEDULE A

District of Arizona
AMERICAN CIVIL LIBERTIES UNION OF ARIZONA v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 2:17-01083
Central District of California
AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 2:17-02778
Northern District of California
ACLU OF HAWAI'I, ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, C.A. No. 4:17-01970
Southern District of California
AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 3:17-00733
Southern District of Florida
AMERICAN CIVIL LIBERTIES UNION OF FLORIDA v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 1:17-21382
Northern District of Georgia
AMERICAN CIVIL LIBERTIES UNION OF GEORGIA, INC., ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 1:17-01309
Northern District of Illinois
AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 1:17-02768

CaCseas4e:1M7-DcLv-N01o9. 7207-8S6BADoDcuomcuemnte8n8t 30FileFdile0d8/0082//0137/17PaPgeag5eo5f 5of 5
- A2 -
MDL No. 2786 Schedule A (Continued) District of Maine
AMERICAN CIVIL LIBERTIES UNION OF MAINE, ET AL. v. U.S. CUSTOMS AND BORDER PROTECTION, ET AL., C.A. No. 2:17-00132 Eastern District of Michigan
AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 5:17-11149 District of Oregon
AMERICAN CIVIL LIBERTIES UNION OF OREGON, INC., ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 3:17-00575 Southern District of Texas
ACLU FOUNDATION OF TEXAS, INC. v. U.S. CUSTOMS AND BORDER PROTECTION, ET AL., C.A. No. 4:17-01128 Eastern District of Virginia
AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 1:17-00441 Western District of Washington
AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON, ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 2:17-00562

 
 Case 4:17-cv-01970-SBA Document 37 Filed 08/25/17 Page 1 of 5

DAVIS WRIGHT TREMAINE LLP

1 Thomas R. Burke (State Bar No. 141930)

2

thomasburke@dwt.com DAVIS WRIGHT TREMAINE LLP

3

505 Montgomery Street, Suite 800 San Francisco, CA 94111

4

Telephone: (415) 276-6500 Facsimile: (415) 276-6599

5 Linda Lye (State Bar No. 215584)

6

llye@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION

7

OF NORTHERN CALIFORNIA 39 Drumm Street

8

San Francisco, CA 94111 Telephone: (415) 621-2493

9 Mateo Caballero (admitted pro hac vice)

10

mcaballero@acluhawaii.org AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI FOUNDATION

11

P.O. Box 3410 Honolulu, HI 96801

12 Telephone: (808) 522-5908

13

Leah Farrell (admitted pro hac vice) lfarrell@acluutah.org

14

AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION 355 North 300 West

15

Salt Lake City, UT 84103 Telephone: (801) 521-9862

16 Attorneys for Plaintiffs

17

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN

18

CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION OF UTAH

19

IN THE UNITED STATES DISTRICT COURT

20

FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO-OAKLAND DIVISION

21 AMERICAN CIVIL LIBERTIES UNION OF

22

NORTHERN CALIFORNIA, AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI,

23

AND AMERICAN CIVIL LIBERTIES UNION OF UTAH,

24

Plaintiffs,

25

v.

26

U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND

27 BORDER PROTECTION,

28

Defendants.

Case No. 3:17-cv-01970-SBA
JOINT REQUEST FOR RELIEF FROM AUTOMATIC REFERRAL TO ADR MULTIOPTION PROGRAM; [PROPOSED] ORDER

JOINT REQUEST FOR RELIEF FROM AUTOMATIC REFERRAL TO ADR MULTI-OPTION PROGRAM; STIPULATION TO RESET DATES; [PROPOSED] ORDER Case No. 3:17-cv-01970

Case 4:17-cv-01970-SBA Document 37 Filed 08/25/17 Page 2 of 5

DAVIS WRIGHT TREMAINE LLP

1

The parties, through their undersigned attorneys, hereby stipulate and request relief from

2 the Court’s ADR program. Each of the undersigned certifies that he or she has read either the

3 handbook entitled “Dispute Resolution Procedures in the Northern District of California,” or the

4 specified portions of the ADR Internet site, www.cand.uscourts.gov/adr, discussed the available

5 dispute resolution options provided by the Court and private entities; and considered whether this

6 case might benefit from any of the available dispute resolution options.

7

The parties agree that in this instance referral to a formal ADR process may unnecessarily

8 consume the Court’s time and resources because ADR is generally not helpful to resolve FOIA

9 disputes at this stage in the litigation. If any party subsequently determines that submission to the

10 formal ADR process would be beneficial to the efficient resolution of this matter, that party may

11 request placement in one of the Court’s ADR programs at that time.

12

A proposed order is attached.

13

14 DATED: August 23, 2017

15

Respectfully submitted,

16

DAVIS WRIGHT TREMAINE LLP

17

By: /s/ Thomas R. Burke

18

Thomas R. Burke Attorneys for Plaintiffs

19

AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN

20

CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION OF

21

UTAH

22

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA

23

24

By: /s/ Linda Lye Linda Lye

25

Attorneys for Plaintiff AMERICAN CIVIL LIBERTIES UNION OF

26

NORTHERN CALIFORNIA

27

28

1 JOINT REQUEST FOR RELIEF FROM AUTOMATIC REFERRAL TO ADR MULTI-OPTION PROGRAM; [PROPOSED] ORDER Case No. 3:17-cv-01970

Case 4:17-cv-01970-SBA Document 37 Filed 08/25/17 Page 3 of 5

DAVIS WRIGHT TREMAINE LLP

1

AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI FOUNDATION

2

3

By: /s/ Mateo Caballero Mateo Caballero

4

Attorneys for Plaintiff AMERICAN CIVIL LIBERTIES UNION OF

5

HAWAIʻI

6

AMERICAN CIVIL LIBERTIES UNION OF UTAH

7

FOUNDATION

8

By: /s/ Leah Farrell

9

Leah Farrell Attorneys for Plaintiff

10

AND AMERICAN CIVIL LIBERTIES UNION OF UTAH

11

12

13

By: Matthew J. Berns Matthew J. Berns

14

Attorneys for Defendants U.S. DEPARTMENT OF HOMELAND

15

SECURITY AND U.S. CUSTOMS AND BORDER PROTECTION

16

17

18

19

20

21

22

23

24

25

26

27

28

2 JOINT REQUEST FOR RELIEF FROM AUTOMATIC REFERRAL TO ADR MULTI-OPTION PROGRAM; STIPULATION TO RESET DATES; [PROPOSED] ORDER Case No. 3:17-cv-01970

Case 4:17-cv-01970-SBA Document 37 Filed 08/25/17 Page 4 of 5

DAVIS WRIGHT TREMAINE LLP

1

CERTIFICATION

2

Pursuant to Local Rule 5-1(i)(3), the undersigned hereby attests that I have conferred with

3 the other signatories to this document, who have represented that they concur in the filing of this

4 document and that I am authorized to file it on their behalf.

5 DATED: August 23, 2017

6

Respectfully submitted,

7

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA

8

9

By: /s/ Linda Lye Linda Lye

10

Attorneys for Plaintiff AMERICAN CIVIL LIBERTIES UNION OF

11

NORTHERN CALIFORNIA

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 JOINT REQUEST FOR RELIEF FROM AUTOMATIC REFERRAL TO ADR MULTI-OPTION PROGRAM; [PROPOSED] ORDER Case No. 3:17-cv-01970

Case 4:17-cv-01970-SBA Document 37 Filed 08/25/17 Page 5 of 5

DAVIS WRIGHT TREMAINE LLP

1

[PROPOSED] ORDER

2

Pursuant to stipulation and to ADR L.R. 3-3(c), the parties are hereby removed from the

3 ADR Multi-Option Program and are excused from participating in the ADR phone conference and

4 any further formal ADR process. Should any party subsequently determine that submission to the

5 formal ADR process would be beneficial to the efficient resolution of this matter, that party may

6 request placement in one of the Court’s ADR programs at that time.

7

8 SO ORDERED. 9 DATED: August 25, 2017 10
11

HONORABLE SAUNDRA B. ARMSTRONG UNITED STATES DISTRICT COURT JUDGE

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 JOINT REQUEST FOR RELIEF FROM AUTOMATIC REFERRAL TO ADR MULTI-OPTION PROGRAM; [PROPOSED] ORDER Case No. 3:17-cv-01970

 
 Case 4:17-cv-01970-SBA Document 49 Filed 12/20/17 Page 1 of 8

DAVIS WRIGHT TREMAINE LLP

1 Thomas R. Burke (State Bar No. 141930) thomasburke@dwt.com
2 DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800
3 San Francisco, CA 94111 Telephone: (415) 276-6500
4 Facsimile: (415) 276-6599

5 Linda Lye (State Bar No. 215584) llye@aclunc.org
6 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA
7 39 Drumm Street San Francisco, CA 94111
8 Telephone: (415) 621-2493

9 Mateo Caballero (admitted pro hac vice) mcaballero@acluhawaii.org
10 AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI FOUNDATION P.O. Box 3410
11 Honolulu, HI 96801 Telephone: (808) 522-5908
12
Leah Farrell (admitted pro hac vice) 13 lfarrell@acluutah.org
AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION 14 355 North 300 West
Salt Lake City, UT 84103 15 Telephone: (801) 521-9862

16 Attorneys for Plaintiffs

17

IN THE UNITED STATES DISTRICT COURT 18
FOR THE NORTHERN DISTRICT OF CALIFORNIA 19
SAN FRANCISCO-OAKLAND DIVISION 20

AMERICAN CIVIL LIBERTIES UNION OF 21 NORTHERN CALIFORNIA, AMERICAN

Case No. 4:17-cv-01970-SBA

22

CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION

STATEMENT OF RECENT DECISION

OF UTAH, 23

24

Plaintiffs,

25

v.

26 U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND
27 BORDER PROTECTION,

28

Defendants.

STATEMENT OF RECENT DECISION Case No. 4:17-cv-01970
4834-7861-9225v.1 0201195-000001

Case 4:17-cv-01970-SBA Document 49 Filed 12/20/17 Page 2 of 8

DAVIS WRIGHT TREMAINE LLP

1

In accordance with L.R. 7-3(d)(2), Plaintiffs American Civil Liberties Union of Northern

2 California, American Civil Liberties Union of Hawaiʻi, and American Civil Liberties Union of

3 Utah (collectively, “Plaintiffs”) hereby bring to the Court’s attention a judicial opinion relevant to

4 Plaintiffs’ request for an order requiring Defendants Department of Homeland Security and

5 Customs and Border Patrol to process the records Defendants have identified as potentially

6 responsive to Plaintiffs’ FOIA request at a rate of 1,000 pages per month. (ECF No. 47 at p. 1). In

7 particular, on December 13, 2017, the United States District Court for the Central District of

8 California issued an order requiring Defendants to produce 1,000 or more documents a month in a

9 FOIA case brought by the American Civil Liberties Union of Southern California, et al. See

10 Order Setting Production Schedule, ACLU of Southern California v. DHS, No. 2:17-cv-2778-

11 RHW (C.D. Cal. Dec. 13, 2017), ECF No. 61 (attached hereto as Exhibit A).

12

13 DATED this 20 December 2017.

14

Respectfully submitted,

DAVIS WRIGHT TREMAINE LLP 15

16

By: /s/ Thomas R. Burke

Thomas R. Burke

17

Attorneys for Plaintiffs

AMERICAN CIVIL LIBERTIES UNION OF

18

NORTHERN CALIFORNIA, AMERICAN

CIVIL LIBERTIES UNION OF HAWAIʻI, AND

19

AMERICAN CIVIL LIBERTIES UNION OF

UTAH 20

21

22

23

24

25

26

27

28
1 STATEMENT OF RECENT DECISION Case No. 4:17-cv-01970
4834-7861-9225v.1 0201195-000001

Case 4:17-cv-01970-SBA Document 49 Filed 12/20/17 Page 3 of 8

Case 2:17-Ccav-s0e247:7187--RcvH-W01-9A7S0-SDBoAcumDeonctu6m1enFt i4le9d 1F2il/e1d3/1127/20P/1a7ge P1aogfe54 Pofa8ge ID #:449

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9

10 AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN
11 CALIFORNIA, et al.
12 Plaintiffs,
13 v.
14 U.S. DEPARTMENT OF
15 HOMELAND SECURITY, et al.,

Case No. 2:17-cv-2778-RHW ORDER SETTING PRODUCTION SCHEDULE

16 Defendants.
17 On November 13, 2017, the parties filed a Joint Status Report. ECF No. 42.
18 A status conference occurred before this Court on December 1, 2017. ECF No. 49.
19 At that time, the Court found there was insufficient factual evidence before it to
20 determine the production capacity of Defendants and requested supplemental
21 briefing. Id. In particular, the Court requested factual affidavits to address the
22 production capability of the approximately 9,000 pages of documents identified to
23 be specific to the Los Angeles Field Office. Both parties filed supplemental
24 briefing (ECF Nos. 52, 53), and the Court heard argument on the matter on
25 December 11, 2017. ECF No. 57.
26 Defendants provided a Declaration from Patrick A. Howard, Branch Chief
27 within the Freedom of Information Act (“FOIA”) Division of the United States
28
ORDER SETTING PRODUCTION ORDER * 1

Case 2:17-Ccav-s0e247:7187--RcvH-W01-9A7S0-SDBoAcumDeonctu6m1enFt i4le9d 1F2il/e1d3/1127/20P/1a7ge P2aogfe55 Pofa8ge ID #:450

1 Customs and Border Protection (“CBP”) of the United States Department of

2 Homeland Security. ECF No. 52-1. Mr. Howard verified that CBP has identified

3 approximately 3,000 documents totaling approximately 9,200 pages as potentially

4 responsive to Plaintiffs’ request. Id. at ¶ 5. 1,400 of these pages have been

5 processed, id., and Defendants noted at argument that only approximately 300 of

6 those 1,400 were provided to Plaintiffs, either due to being non-responsive or

7 protected by a FOIA exemption.

8

Plaintiffs initially requested that the Court issue an order requiring

9 production of the remaining approximately 7,800 pages by December 22, 2017.

10 Mr. Howard’s Declaration and argument by Defendants both asserted that this

11 would be impossible. Mr. Howard explained that FOIA requests of this nature

12 require multiple levels of review, as well as possible consultation with outside

13 agencies. ECF No. 52-1 at ¶¶ 33-36. Currently, CBP estimates that it can process

14 6,500 pages per month on average across all affiliates. Id. at ¶ 40.

15

Contrary to the Court’s request, Defendants did not provide, either in

16 argument or in Mr. Howard’s Declaration, an estimate of how many pages could

17 be processed monthly that are specifically responsive to Plaintiffs’ request in this

18 district. Rather, Mr. Howard asserted that based on the nature of the request and

19 limitations of resources, CBP could not achieve a faster national monthly

20 processing rate. Id. at ¶ 41. Nothing in the supplemental briefing provided by

21 Defendants provided the Court with a factual basis on which to determine the

22 output capability for this specific request.

23

Five other courts have issued production orders for requests in similar FOIA

24 cases. See ACLU of San Diego and Imperial Counties v. U.S. Dept. of Homeland

25 Security, et al., 17-cv-0733-L-JLB; ACLU of Michigan v. U.S. Dept. of Homeland

26 Security and U.S. Customs and Border Protection, 17-cv-11149-JEL-EAS; ACLU

27 of Washington, et al. v. U.S. Dept. of Homeland Security, et al., 17-cv-00562-MJP;

28 ACLU of Oregon, et al. v. U.S. Dept. of Homeland Security, et al., 17-cv-00575ORDER SETTING PRODUCTION ORDER * 2

Case 2:17-Ccav-s0e247:7187--RcvH-W01-9A7S0-SDBoAcumDeonctu6m1enFt i4le9d 1F2il/e1d3/1127/20P/1a7ge P3aogfe56 Pofa8ge ID #:451

1 HZ; ACLU of Illinois et al. v. U.S. Dept. of Homeland Security, et al., 17-cv-

2 02768. These orders each generally require production of roughly 800 to 1000

3 pages per month, although the Western District of Washington requires a larger

4 production in the third month (see ACLU of Washington, et al. v. U.S. Dept. of

5 Homeland Security, et al., 17-cv-00562-MJP), and the District of Oregon has set a

6 time deadline rather than a monthly production requirement (see ACLU of Oregon,

7 et al. v. U.S. Dept. of Homeland Security, et al., 17-cv-00575-HZ).

8

Defendants argue that they do not believe a production order is appropriate,

9 but if they Court intends to issue one, they request it be 800 to 1,000 pages, similar

10 to the output in five other court orders. Plaintiffs respond that production averaging

11 2,000-3,000 pages would be more appropriate, particularly given the length of time

12 that has elapsed since their request. The request was sent on February 2, 2017. ECF

13 No. 42 at 2.

14

The Court has reviewed the record in each of these cases and cannot

15 determine the reasoning behind the number or the timeline on which it arrived. The

16 Court seeks to avoid an arbitrary production order. In calculating the following

17 production schedule, the Court has taken in account numerous factors and seeks to

18 reach a balance between the public interest need in Plaintiffs’ request and

19 statements made by Defendants regarding the government’s production abilities.

20

The Court notes that Defendants stated in argument that they would not

21 oppose a production schedule of 1,000 pages per month. In the month of January,

22 however, this would exceed their alleged 6,500 page maximum production

23 capacity. The Court reaches this conclusion by adding 1,000 pages to the

24 following: 820 pages in the Eastern District of Michigan, 867 pages in the District 25 of Oregon,1 950 pages in the Northern District of Illinois, 1,000 pages in the

26 Southern District of California, and 2,700 pages in the Western District of

27 1 The court order in the District of Oregon does not require an exact monthly production, however, it does require 28 all production by May 31, 2018. The Court arrived at 867 as an average number for production by this date.
ORDER SETTING PRODUCTION ORDER * 3

Case 2:17-Ccav-s0e247:7187--RcvH-W01-9A7S0-SDBoAcumDeonctu6m1enFt i4le9d 1F2il/e1d3/1127/20P/1a7ge P4aogfe57 Pofa8ge ID #:452

1 Washington, the bulk remaining after two months of 1,000-page monthly

2 production. This total is 6,337. If Defendants can produce 1,000 pages in this

3 district monthly as presented to the Court in argument, this means the government

4 has a higher capacity than 6,500 pages by 837. Thus, the Court finds it reasonable

5 to conclude that the total monthly capability for production is 7,337 pages per

6 month at this time, but based on representations by Defendant will increase by

7 January.

8

The Court next calculated the total required production across the five

9 existing court orders and subtracted these figures from 7,337 for each month. The

10 Court arrives at the following production numbers: (1) December: 4,637 pages 11 across all orders, resulting in a remaining capacity of 2,700 pages2; (2) January:

12 6,337 pages across all orders, resulting in a remaining capacity of 1,000 pages; and

13 (3) February: 3,637 pages across all orders, with production in the instant case of

14 all remaining documents that have not been turned over. The Court notes that the

15 February output will be higher than the projected monthly capacity; however,

16 Defendants represented to the Court that the government is actively increasing its

17 production capacity, and the Court finds it reasonable to expect these enhanced

18 procedures should be in place by February. Further, February 2018 will be one full

19 year since Plaintiffs’ requests. The Court finds this timeline of roughly 90 days

20 since the December 1, 2017, status conference to be in the interest of justice.

21

Accordingly, IT IS HEREBY ORDERED:

22

1. By January 2, 2018, Defendants shall have reviewed for responsiveness

23

and exemption under FOIA and then produced to Plaintiffs the first 2,700

24

pages of documents identified as potentially responsive to Plaintiff’s

25

26
2 The Court notes that this order is being issued on December 12, 2017; however, the parties were put on notice at
27 the December 1, 2017, status conference that the Court was inclined to issue a full production order by December 28 22, 2017, and thus Defendants should have been preparing accordingly.
ORDER SETTING PRODUCTION ORDER * 4

Case 2:17-Ccav-s0e247:7187--RcvH-W01-9A7S0-SDBoAcumDeonctu6m1enFt i4le9d 1F2il/e1d3/1127/20P/1a7ge P5aogfe58 Pofa8ge ID #:453

1

FOIA request, based on searches of records of the custodians in the CBP

2

Los Angeles Field Office.

3

2. By no later than January 31, 2018, Defendants shall have reviewed for

4

responsiveness and exemption under FOIA and then produced to

5

Plaintiffs the next 1,000 pages of documents identified as potentially

6

responsive to Plaintiff’s FOIA request, based on searches of records of

7

the custodians in the CBP Los Angeles Field Office.

8

3. By no later than February 28, 2018, Defendants shall have reviewed for

9

responsiveness and exemption under FOIA and then produced to

10

Plaintiffs all remaining documents identified as potentially responsive to

11

Plaintiff’s FOIA request, based on searches of records of the custodians

12

in the CBP Los Angeles Field Office.

13

4. By March 14, 2018, the parties shall submit a joint status report and

14

proposed case schedule to the Court, including but not limited to the

15

status of the case and a proposed briefing scheduled for motions.

16

IT IS SO ORDERED. The District Court Executive is directed to enter this

17 Order and forward copies to counsel.

18

DATED this 12th day of December, 2017.

19

20

s/Robert H. Whaley

ROBERT H. WHALEY

21

Senior United States District Judge

22

23

24

25

26

27

28 ORDER SETTING PRODUCTION ORDER * 5

 
 Case 4:17-cv-01970-SBA Document 51 Filed 01/22/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO-OAKLAND DIVISION
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION OF UTAH,

Plaintiffs, v.

Case No. 3:17-cv-01970-SBA
[PROPOSED] SCHEDULING ORDER

U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND BORDER PROTECTION,

Defendants.

1

The parties are hereby ORDERED to proceed in this Freedom of Information Act

2 case as follows:

3

1. By February 28, 2018, Defendants will process 200 pages of potentially

4 responsive email messages and attachments from the files of custodians in the San

5 Francisco Field Office, and produce to plaintiffs any responsive, non-exempt records.

6

2. By April 30, 2018, Defendants will process 400 pages of potentially

7 responsive email messages and attachments from the files of custodians in the San

8 Francisco Field Office, and produce to plaintiffs any responsive, non-exempt records.

9

3. After April 30, on a bi-monthly basis, Defendants will make rolling

10 productions of responsive, non-exempt records consisting of email messages and

11 attachments from the files of custodians in the San Francisco Field Office identified by

12 their core search terms, as described in the Joint Status Report of November 16, 2017,

13 and produce to plaintiffs any responsive, non-exempt records, with at least 95 percent of

14 all such potentially responsive records processed and any responsive, non-exempt pages

15 contained therein released to plaintiffs by August 31, 2018.

16

4. By December 31, 2018, Defendants will have finished processing all

Case 4:17-cv-01970-SBA Document 51 Filed 01/22/18 Page 2 of 2

1 potentially responsive email messages and attachments from the files of custodians in the

2 San Francisco Field Office identified by their core search terms, and released all such

3 responsive, non-exempt records to plaintiffs.

4

5. On a bi-monthly basis, on the first business day after the 14th day of the

5 month following each bi-monthly production, the parties will file with the Court a joint

6 status report advising the Court of Defendants’ progress in processing Plaintiffs’ request.

7

8

SO ORDERED this _2_2_n_d___ day of _J_a_n_u_ar_y___, 2018.

_______________________ Saundra B. Armstrong United States District Judge

 
 Case 4:17-cv-01970-SBA Document 52 Filed 03/15/18 Page 1 of 4

James Bickford (N.Y. Bar No. 5163498) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 James.Bickford@usdoj.gov Telephone: (202) 305-7632 Attorney for Defendants U.S. DEPARTMENT OF HOMELAND SECURITY U.S. CUSTOMS AND BORDER PROTECTION

Thomas R. Burke (State Bar No. 141930) thomasburke@dwt.com DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111 Telephone: (415) 276-6500 Attorney for Plaintiffs AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION OF UTAH [Complete list of counsel appears below]

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO-OAKLAND DIVISION
AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI, AND AMERICAN CIVIL LIBERTIES UNION OF UTAH,

Plaintiffs, v.

Case No. 4:17-cv-01970-SBA JOINT STATUS REPORT

U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND BORDER PROTECTION,

Defendants.

1

Pursuant to the Court’s January 22, 2018 order (“Order”), plaintiffs American

2 Civil Liberties Union of Northern California, American Civil Liberties Union of Hawai’i,

1

Case 4:17-cv-01970-SBA Document 52 Filed 03/15/18 Page 2 of 4

1 and American Civil Liberties Union of Utah, and defendants U.S. Department of

2 Homeland Security and U.S. Customs and Border Protection (“the agency”) hereby

3 advise the Court as follows regarding the agency’s progress in processing plaintiffs’

4 FOIA request:

5

1. The agency represents that between the date of the Court’s Order and

6 February 28, 2018, the agency has completed processing 1,283 pages of potentially

7 responsive email messages and attachments, as well as 8 spreadsheets, from the files of

8 custodians in the San Francisco Field Office.

9

2. The agency further represents that in two interim responses sent to

10 plaintiffs on February 27 and February 28, 2018, the agency has produced to plaintiffs

11 1,283 pages of responsive email messages and attachments from the files of custodians in

12 the San Francisco Field Office.

Respectfully submitted this 15th day of March, 2018,

/s/ Thomas R. Burke Thomas R. Burke (State Bar No. 141930) thomasburke@dwt.com DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111 Telephone: (415) 276-6500
/s/ Linda Lye Linda Lye (State Bar No. 215584) llye@aclunc.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493
/s/ Mateo Caballero Mateo Caballero (admitted pro hac vice) mcaballero@acluhawaii.org AMERICAN CIVIL LIBERTIES UNION OF HAWAIʻI FOUNDATION
2

CHAD A. READLER Acting Assistant Attorney General BRIAN J. STRETCH United States Attorney ELIZABETH J. SHAPIRO Deputy Director Federal Programs Branch
/s/ James Bickford JAMES BICKFORD Trial Attorney Federal Programs Branch Civil Division U.S. Department of Justice 20 Massachusetts Avenue, NW Washington, DC 20530 Telephone: (202) 305-7632 James.Bickford@usdoj.gov
Attorneys for Defendants

Case 4:17-cv-01970-SBA Document 52 Filed 03/15/18 Page 3 of 4 P.O. Box 3410 Honolulu, HI 96801 Telephone: (808) 522-5908 /s/ Leah Farrell Leah Farrell (admitted pro hac vice) lfarrell@acluutah.org AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION 355 North 300 West Salt Lake City, UT 84103 Telephone: (801) 521-9862 Attorneys for Plaintiffs
3

Case 4:17-cv-01970-SBA Document 52 Filed 03/15/18 Page 4 of 4

1

CERTIFICATION

2

Pursuant to Local Rule 5-1(i)(3), I hereby attest that I have conferred with

3 Thomas Burke, Linda Lye, Mateo Caballero, and Leah Farrell, co-counsel for plaintiffs,

4 regarding this filing, who represented that they concur in the filing of this document and

5 that I am authorized to file it on their behalf.

DATED: March 15, 2018

Respectfully submitted, /s/ James Bickford James Bickford

4

 
 Case: 4:17-cv-1970 As of: 07/25/2018 07:36 PM PDT 1 of 7
ADRMOPTERM
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:17−cv−01970−SBA

ACLU of Hawai'i et al v. US Dept of Homeland Security Assigned to: Hon. Saundra Brown Armstrong Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 04/10/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

ACLU of Northern California

represented by Leah Farrell ACLU of Utah 355 N 300 W Salt Lake City, UT 84103 801−871−0335 Email: lfarrell@acluutah.org ATTORNEY TO BE NOTICED

Linda Lye ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−8437 Email: llye@aclunc.org ATTORNEY TO BE NOTICED

Mateo Caballero ACLU of Hawaii PO Box 3410 Honolulu, HI 96801 808−522−5908 Fax: 808−522−5909 Email: mcaballero@acluhawaii.org ATTORNEY TO BE NOTICED

Thomas R. Burke Davis Wright Tremaine LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111−6533 415/276−6500 Fax: 415/276−6599 Email: thomasburke@dwt.com ATTORNEY TO BE NOTICED

Plaintiff ACLU of Hawai'i

represented by Leah Farrell (See above for address) ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Mateo Caballero (See above for address) ATTORNEY TO BE NOTICED

Thomas R. Burke (See above for address)

Case: 4:17-cv-1970 As of: 07/25/2018 07:36 PM PDT 2 of 7

ATTORNEY TO BE NOTICED

Plaintiff ACLU of Utah

represented by Leah Farrell (See above for address) ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Mateo Caballero (See above for address) ATTORNEY TO BE NOTICED

Thomas R. Burke (See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States Department of Homeland Security
Defendant United States Customs and Border Protection

represented by Matthew J. Berns U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 202−616−8016 Email: Matthew.J.Berns@usdoj.gov TERMINATED: 08/28/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Bickford U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 202−305−7632 Email: James.Bickford@usdoj.gov ATTORNEY TO BE NOTICED
Patil Chetan U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Room 7109 Washington, DC 20530 202−305−4968 Fax: 202−616−8470 Email: chetan.patil@usdoj.gov TERMINATED: 08/28/2017 ATTORNEY TO BE NOTICED
represented by Matthew J. Berns (See above for address) TERMINATED: 08/28/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Bickford

Case: 4:17-cv-1970 As of: 07/25/2018 07:36 PM PDT 3 of 7
(See above for address) ATTORNEY TO BE NOTICED
Patil Chetan (See above for address) TERMINATED: 08/28/2017 ATTORNEY TO BE NOTICED

Date Filed 04/10/2017
04/10/2017 04/10/2017 04/10/2017 04/10/2017
04/11/2017 04/11/2017 04/11/2017 04/12/2017 04/12/2017 04/12/2017

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief for Violation of the Freedom of Information Act, 5 U.S.C. § 552 et seq. against United States Customs and Border Protection, United States Department of Homeland Security ( Filing fee $ 400, receipt number 0971−11300996.). Filed byACLU of Northern California, ACLU of Utah, ACLU of Hawai'i. (Attachments: # 1 Exhibit Exhibit A to Complaint, # 2 Exhibit Exhibit B to Complaint, # 3 Exhibit Exhibit C to Complaint)(Burke, Thomas) (Filed on 4/10/2017) (Entered: 04/10/2017)
2 Civil Cover Sheet by ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah . (Burke, Thomas) (Filed on 4/10/2017) (Entered: 04/10/2017)
3 Proposed Summons. (Burke, Thomas) (Filed on 4/10/2017) (Entered: 04/10/2017)
4 MOTION for leave to appear in Pro Hac Vice Re: Mateo Cabellero (Filing fee $310, receipt number 0971−11303686) filed by ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah. (Attachments: # 1 Certificate of Good Standing)(Caballero, Mateo) (Filed on 4/10/2017) Modified on 4/11/2017 (cjlS, COURT STAFF). (Entered: 04/10/2017)
5 Case assigned to Hon. Saundra Brown Armstrong.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (haS, COURT STAFF) (Filed on 4/10/2017) (Entered: 04/10/2017)
6 NOTICE of Appearance by Linda Lye (Lye, Linda) (Filed on 4/11/2017) (Entered: 04/11/2017)
7 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 7/5/2017. Case Management Conference set for 7/12/2017 02:30 PM. (cjlS, COURT STAFF) (Filed on 4/11/2017) (Entered: 04/11/2017)
8 Summons Issued as to United States Customs and Border Protection, United States Department of Homeland Security, U.S. Attorney. (cjlS, COURT STAFF) (Filed on 4/11/2017) (Entered: 04/11/2017)
9 MOTION for leave to appear in Pro Hac Vice Re: Leah Farrell ( Filing fee $ 310, receipt number 0971−11308522.) filed by ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah. (Attachments: # 1 Exhibit Certificate of Good Standing)(Farrell, Leah) (Filed on 4/12/2017) (Entered: 04/12/2017)
10 Order by Hon. Saundra Brown Armstrong granting 4 Motion for Pro Hac Vice by Mateo Caballero.(dtmS, COURT STAFF) (Filed on 4/12/2017) (Entered: 04/12/2017)
11 Order by Hon. Saundra Brown Armstrong granting 9 Motion for Pro Hac Vice by Leah Farrell.(dtmS, COURT STAFF) (Filed on 4/12/2017) (Entered: 04/12/2017)

Case: 4:17-cv-1970 As of: 07/25/2018 07:36 PM PDT 4 of 7

04/25/2017 05/08/2017 05/08/2017 05/08/2017 05/10/2017 05/10/2017
05/11/2017 05/11/2017 05/24/2017 05/31/2017
05/31/2017 06/06/2017 06/07/2017

12 CASE MANAGEMENT SCHEDULING ORDER FOR ASSIGNED CIVIL CASE. Joint Case Management Statement due by 7/6/2017. Telephonic Case Management Conference set for 7/13/2017 02:30 PM. Signed by Judge Saundra B Armstrong on 4/25/17. (dtmS, COURT STAFF) (Filed on 4/25/2017) (Entered: 04/25/2017)
13 NOTICE of Appearance by Matthew J. Berns (Berns, Matthew) (Filed on 5/8/2017) (Entered: 05/08/2017)
14 NOTICE of Appearance by Patil Chetan (Chetan, Patil) (Filed on 5/8/2017) (Entered: 05/08/2017)
15 NOTICE by United States Customs and Border Protection, United States Department of Homeland Security of Motion filed with the JPML to Transfer Action Pursuant to 28 U.S.C. 1407 (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Transfer Motion, # 3 Exhibit 2 − Supporting Memorandum, # 4 Exhibit 3 − Schedule of Actions)(Berns, Matthew) (Filed on 5/8/2017) (Entered: 05/08/2017)
16 STIPULATION WITH PROPOSED ORDER regarding extension of time to respond to Complaint filed by United States Customs and Border Protection, United States Department of Homeland Security, ACLU of Hawai'i, ACLU of Northern California and ACLU of Utah. (Chetan, Patil) (Filed on 5/10/2017) Modified on 5/11/2017 (jmlS, COURT STAFF). (Entered: 05/10/2017)
17 MOTION to Stay Proceedings pending decision by Judicial Panel on Multidistrict Litigation on Defendants' Motion to Transfer filed by United States Customs and Border Protection, United States Department of Homeland Security. Motion Hearing set for 6/14/2017 01:00 PM in Courtroom 210, 2nd Floor, Bankruptcy Court, Oakland before Hon. Saundra Brown Armstrong. Responses due by 5/24/2017. Replies due by 5/31/2017. (Attachments: # 1 Declaration of Matthew J. Berns)(Chetan, Patil) (Filed on 5/10/2017) (Entered: 05/10/2017)
18 Order by Hon. Saundra Brown Armstrong granting 16 Stipulation re Extension of Time to Respond to Complaint.(dtmS, COURT STAFF) (Filed on 5/11/2017) (Entered: 05/11/2017)
Set Deadlines/Hearings: Joint Case Management Statement due by 8/23/2017. Telephonic Case Management Conference set for 8/30/2017 02:30 PM. (dtmS, COURT STAFF) (Filed on 5/11/2017) (Entered: 05/11/2017)
19 OPPOSITION/RESPONSE (re 17 MOTION to Stay Proceedings pending decision by Judicial Panel on Multidistrict Litigation on Defendants' Motion to Transfer ) Opposition to Defendants' Motion to Stay Proceedings filed by ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah. (Burke, Thomas) (Filed on 5/24/2017) Modified on 5/24/2017 (jmlS, COURT STAFF). (Entered: 05/24/2017)
20 NOTICE by ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah of Filing Opposition to Defendants' Motion to Transfer to District of Columbia for Consolidation (Attachments: # 1 Exhibit Memorandum of Plaintiffs, 42 American Civil Liberties Union Affiliates, in Opposition to Defendants' Motion for Transfer to District of Columbia for Consolidation)(Burke, Thomas) (Filed on 5/31/2017) (Entered: 05/31/2017)
21 REPLY (re 17 MOTION to Stay Proceedings pending decision by Judicial Panel on Multidistrict Litigation on Defendants' Motion to Transfer ) filed byUnited States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Declaration of Chetan A. Patil)(Chetan, Patil) (Filed on 5/31/2017) (Entered: 05/31/2017)
22 NOTICE of Filing of JPML Reply Brief by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 JPML Reply Brief)(Berns, Matthew) (Filed on 6/6/2017) Modified on 6/7/2017 (cjlS, COURT STAFF). (Entered: 06/06/2017)
23 CLERK'S NOTICE. You are hereby notified that the 6/14/2017 hearing re 17 Motion to Stay is VACATED. The motion will be decided on the papers. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 6/7/2017) (Entered: 06/07/2017)

Case: 4:17-cv-1970 As of: 07/25/2018 07:36 PM PDT 5 of 7

06/07/2017 06/19/2017 06/21/2017 06/22/2017 06/22/2017 06/26/2017 08/03/2017 08/14/2017 08/15/2017 08/23/2017 08/23/2017
08/24/2017
08/24/2017 08/25/2017 08/25/2017 08/28/2017

24 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byACLU of Hawai'i, ACLU of Northern California, ACLU of Utah. (Related document(s) 19 ) (Burke, Thomas) (Filed on 6/7/2017) (Entered: 06/07/2017)
25 NOTICE of Decision in Related Case by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 District of Maine Order)(Chetan, Patil) (Filed on 6/19/2017) Modified on 6/20/2017 (cjlS, COURT STAFF). (Entered: 06/19/2017)
26 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byACLU of Hawai'i, ACLU of Northern California, ACLU of Utah. (Related document(s) 19 ) (Burke, Thomas) (Filed on 6/21/2017) (Entered: 06/21/2017)
27 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byUnited States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Central District of California Order)(Related document(s) 17 ) (Chetan, Patil) (Filed on 6/22/2017) (Entered: 06/22/2017)
28 Order by Hon. Saundra Brown Armstrong denying 17 Motion to Stay Proceedings.(dtmS, COURT STAFF) (Filed on 6/22/2017) (Entered: 06/22/2017)
29 ANSWER to Complaint byUnited States Customs and Border Protection, United States Department of Homeland Security. (Berns, Matthew) (Filed on 6/26/2017) (Entered: 06/26/2017)
30 MDL ORDER Denying Transfer (jmlS, COURT STAFF) (Filed on 8/3/2017) (Entered: 08/04/2017)
31 STIPULATION WITH PROPOSED ORDER re Joint Request for Extension of ADR Deadline filed by ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah. (Burke, Thomas) (Filed on 8/14/2017) (Entered: 08/14/2017)
32 Order by Hon. Saundra Brown Armstrong granting 31 Stipulation for Extension of ADR Deadline.(dtmS, COURT STAFF) (Filed on 8/15/2017) (Entered: 08/15/2017)
33 JOINT CASE MANAGEMENT STATEMENT filed by ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah, United States Department of Homeland Security and United States Customs and Border Protection. (Lye, Linda) (Filed on 8/23/2017) Modified on 8/24/2017 (jmlS, COURT STAFF). (Entered: 08/23/2017)
34 STIPULATION WITH PROPOSED ORDER Requesting Relief from Automatic Referral to ADR filed by ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah., United States Department of Homeland Security and United States Customs and Border Protection. (Lye, Linda) (Filed on 8/23/2017) Modified on 8/24/2017 (jmlS, COURT STAFF). (Entered: 08/23/2017)
Electronic filing error. There is no [Proposed] Order attached to your document as stated on the caption page. Please re−file the document with the [proposed] order or file the [proposed] order as a separate document Re: 33 Joint Case Management Statement, filed by United States Customs and Border Protection, ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah, United States Department of Homeland Security. (jmlS, COURT STAFF) (Filed on 8/24/2017) (Entered: 08/24/2017)
35 JOINT CASE MANAGEMENT STATEMENT and [Proposed] Order (Corrected) filed by ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah. (Lye, Linda) (Filed on 8/24/2017) (Entered: 08/24/2017)
36 Error, See Entry 37 Order by Hon. Saundra Brown Armstrong granting 34 Stipulation for Relief from Automatic Referral to ADR Multi−Option Program.(dtmS, COURT STAFF) (Filed on 8/25/2017) Modified on 8/25/2017 (dtmS, COURT STAFF). (Entered: 08/25/2017)
37 Order by Hon. Saundra Brown Armstrong granting 34 Stipulation for Relief from Automatic Referral to ADR Multi−Option Program. (dtmS, COURT STAFF) (Filed on 8/25/2017) (Entered: 08/25/2017)
38 NOTICE of Substitution of Counsel by James Bickford (Bickford, James) (Filed on 8/28/2017) (Entered: 08/28/2017)

Case: 4:17-cv-1970 As of: 07/25/2018 07:36 PM PDT 6 of 7

08/30/2017 08/30/2017
10/06/2017 10/13/2017 10/18/2017
10/26/2017 10/27/2017 11/03/2017 11/16/2017 11/27/2017 12/20/2017 01/19/2018
01/22/2018 03/15/2018

39 CLERK'S NOTICE. The Case Management Conference set for today, 8/30/2017, is OFF CALENDAR. The Court will be issuing an order resetting the date. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 8/30/2017) (Entered: 08/30/2017)
40 ORDER CONTINUING CASE MANAGEMENT CONFERENCE. Joint Status Report due by 10/6/2017. Telephonic Case Management Conference set for 10/18/2017 02:30 PM. Signed by Judge Saundra B Armstrong on 8/30/17. (dtmS, COURT STAFF) (Filed on 8/30/2017) Modified on 8/30/2017 (dtmS, COURT STAFF). (Entered: 08/30/2017)
41 STATUS REPORT (Joint) by ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah. (Lye, Linda) (Filed on 10/6/2017) (Entered: 10/06/2017)
42 Joint STATUS REPORT by ACLU of Hawai'i, ACLU of Northern California, ACLU of Utah, U.S. Department of Homeland Security and U.S. Customs and Border Protection. (Burke, Thomas) (Filed on 10/13/2017) Modified on 10/16/2017 (jmlS, COURT STAFF). (Entered: 10/13/2017)
43 CLERK'S NOTICE. You are hereby notified that the Telephonic Case Management Conference set for 10/18/2017 is continued to 10/26/2017 at 2:30 pm. Plaintiff's counsel is to set up the conference call with all the parties on the line and call chambers at (510) 879−3550. (No party shall contact chambers directly without prior authorization of the court.) (This is a text−only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 10/18/2017) (Entered: 10/18/2017)
44 Minute Entry for proceedings held before Judge Saundra Brown Armstrong: Telephonic Case Management Conference held on 10/26/2017. Court Reporter: Not Reported. (dtmS, COURT STAFF) (Date Filed: 10/26/2017) (Entered: 10/26/2017)
45 NOTICE by United States Customs and Border Protection, United States Department of Homeland Security of Filing of Orders in Parallel Cases (Attachments: # 1 Exhibit Washington Order, # 2 Exhibit Michigan Order)(Bickford, James) (Filed on 10/27/2017) (Entered: 10/27/2017)
46 ORDER. Signed by Judge Saundra B. Armstrong on 11/3/17. (dtmS, COURT STAFF) (Filed on 11/3/2017) (Entered: 11/06/2017)
47 JOINT STATUS REPORT by United States Customs and Border Protection, United States Department of Homeland Security, ACLU of Hawai'i, ACLU of Northern California and ACLU of Utah. (Attachments: # 1 Exhibit)(Bickford, James) (Filed on 11/16/2017) Modified on 11/17/2017 (jmlS, COURT STAFF). (Entered: 11/16/2017)
48 NOTICE by United States Customs and Border Protection, United States Department of Homeland Security of Updated Processing Rate (Bickford, James) (Filed on 11/27/2017) (Entered: 11/27/2017)
49 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byACLU of Hawai'i, ACLU of Northern California, ACLU of Utah. (Related document(s) 47 ) (Burke, Thomas) (Filed on 12/20/2017) (Entered: 12/20/2017)
50 Joint MOTION for Scheduling Order filed by United States Customs and Border Protection, United States Department of Homeland Security, ACLU of Hawai'i, ACLU of California and ACLU of Utah. Responses due by 2/2/2018. Replies due by 2/9/2018. (Attachments: # 1 Proposed Order)(Bickford, James) (Filed on 1/19/2018) Modified on 1/22/2018 (jmlS, COURT STAFF). (Entered: 01/19/2018)
51 Order by Judge Saundra Brown Armstrong granting 50 Stipulation re Scheduling Order.(dtmS, COURT STAFF) (Filed on 1/22/2018) (Entered: 01/22/2018)
52 JOINT STATUS REPORT by United States Customs and Border Protection, United States Department of Homeland Security, ACLU of Hawai'i, ACLU of Northern California and ACLU of Utah. (Bickford, James) (Filed on 3/15/2018) Modified on 3/16/2018 (jmlS, COURT STAFF). (Entered: 03/15/2018)

Case: 4:17-cv-1970 As of: 07/25/2018 07:36 PM PDT 7 of 7

05/15/2018 07/16/2018

53 STATUS REPORT (Jointly Filed) by United States Customs and Border Protection, United States Department of Homeland Security. (Bickford, James) (Filed on 5/15/2018) Modified on 5/16/2018 (jmlS, COURT STAFF). (Entered: 05/15/2018)
54 STATUS REPORT (Jointly Filed) by United States Customs and Border Protection, United States Department of Homeland Security, ACLU of Hawai'i, ACLU of Northern California and ACLU of Utah. (Bickford, James) (Filed on 7/16/2018) Modified on 7/17/2018 (jmlS, COURT STAFF). (Entered: 07/16/2018)