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Ballard Spahr LLP 1 East Washington Street
Suite 2300 Phoenix, Arizona 85004-2555

1 David J. Bodney (006065)

bodneyd@ballardspahr.com

2 Michael DiGiacomo (032251)

digiacomom@ballardspahr.com 3 Ballard Spahr LLP

4

1 East Washington Street, Suite 2300 Phoenix, AZ 85004-2555

5

Telephone: 602.798.5400 Facsimile: 602.798.5595

6 Kathleen E. Brody (026331)
7 kbrody@acluaz.org ACLU Foundation of Arizona
8 3707 North 7th Street, Suite 235
Phoenix, AZ 85011-0148 9 Telephone: (602) 650-1854

10 Attorneys for Plaintiff American Civil 11 Liberties Union of Arizona

12

UNITED STATES DISTRICT COURT

13

DISTRICT OF ARIZONA

14 American Civil Liberties Union of Arizona,
15
Plaintiff, 16

17

vs.

18

U.S. Department of Homeland Security; and U.S. Customs and Border Protection,

19 Defendants.

20

No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATION OF THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552 et seq.

21

Introduction

22

1. The American Civil Liberties Union of Arizona (“Plaintiff” or “ACLU”)

23 brings this action under the Freedom of Information Act, 5 U.S.C. § 552 et seq., as

24 amended (“FOIA”), to obtain injunctive and other appropriate relief requiring Defendants

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

26 Protection (“CBP”) (collectively, “Defendants”) to respond to a FOIA request sent by

27 Plaintiff on February 2, 2017 (“Request”), and to promptly disclose the requested

28 records.

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1

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

2 President Trump’s January 27, 2017 Executive Order titled “Protecting the Nation From

3 Foreign Terrorist Entry Into the United States,” Exec. Order No. 13769, 82 Fed. Reg.

4 8977 (Feb. 1, 2017) (“Executive Order No. 1”), as well as any other judicial order or

5 executive directive issued regarding Executive Order No. 1, including President Trump’s

6 March 6, 2017 Executive Order, identically titled, Exec. Order No. 13780, 82 Fed. Reg.

7 13209 (Mar. 6, 2017) (“Executive Order No. 2”) (collectively, “Executive Orders”). A

8 true and correct copy of the Request is attached as Exhibit A.

9

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

10 implementation of the Executive Orders at sites within the purview of CBP’s Tucson

11 Field Office, including Phoenix Sky Harbor International Airport.

12

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

13 admissions and bar entrants from several predominantly Muslim countries from entering

14 the United States.

15

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

16 of significant public concern, as reflected by mass protests around the country, substantial

17 news coverage, and numerous lawsuits filed following the President’s signing of each

18 Executive Order.

19

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

20 emergency court orders enjoining implementation of various sections of Executive Order 21 No. 1.1 On March 15, 2017, a district court enjoined implementation of Sections 2 and 6 22 of Executive Order No. 2.2

23

24

25 1 Vayeghan v. Kelly, No. CV 17-0702, 2017 WL 396531 (C.D. Cal. Jan. 29, 2017); Tootkaboni v. Trump, No. 17-CV-10154, 2017 WL 386550 (D. Mass. Jan. 29, 2017);
26 Doe v. Trump, No. C17-126, 2017 WL 388532 (W.D. Wash. Jan. 28, 2017); Aziz v. Trump, No. 1:17-CV-116, 2017 WL 386549 (E.D. Va. Jan. 28, 2017); Darweesh v.
27 Trump, No. 17 CIV. 480 (AMD), 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017).

28

2 Hawai’i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017).

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7. News reports described Defendants’ implementation of the Executive

2 Orders as “chaotic” and “total[ly] lack[ing] . . . clarity and direction.”3

3

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

4 on January 28 that Executive Order No. 1 would “bar green card holders.”4 The next

5 day, however, DHS Secretary John Kelly deemed “the entry of lawful permanent 6 residents to be in the national interest,”5 and the government clarified that Executive 7 Order No. 1 did not apply to green card holders.6

8

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

9 Duckworth and Dick Durbin called upon the Office of the Inspector General of the

10 Department of Homeland Security to investigate Defendants’ implementation of 11 Executive Order No. 1.7 The Senators specifically sought information regarding: any

12 guidance Defendants provided to the White House in developing the order; any directions

13 that were provided to Defendants in implementing it; whether CBP officers complied

14 with the relevant court orders; and whether DHS and CBP officers kept a list of

15 individuals that they had detained at ports of entry under the order. In response, the

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

17

3 See, e.g., Ryan Devereaux et al., Homeland Security Inspector General Opens

18 Investigation of Muslim Ban, Orders Document Preservation, THE INTERCEPT, Feb. 1,

19

2017, available at https://theintercept.com/2017/02/01/homeland-security-inspectorgeneral-opens-investigation-of-muslim-ban-rollout-orders-document-preservation/.

20 4 See Max Greenwood, Immigration Ban Includes Green Card Holders: DHS, THE HILL, Jan. 28, 2017, available at http://thehill.com/policy/national-security/316670-
21 trump-refugee-ban-bars-green-card-holders-report.

22 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
23 https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawfulpermanent-residents-united-states.
24 6 See Robert Mackey, As Protests Escalate, Trump Retreats From Barring Green Card
25 Holders, THE INTERCEPT, Jan. 29, 2017, available at https://theintercept.com/2017/01/29/trumps-executive-order-no-longer-bars-green-card-
26 holders/.

27

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

28

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

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1 reasonably lead to the discovery of relevant information relating the implementation of” 2 Executive Order No. 1.8

3

10. The Tucson Field Office oversees ten ports of entry including ports of entry

4 at Phoenix Sky Harbor International Airport. Phoenix Sky Harbor International Airport

5 ranks as the eleventh busiest airport nationally and the twenty-ninth busiest airport 6 globally.9 It is the sixth-largest hub for American Airlines, a focus city for Southwest

7 Airlines and receives regular international arrivals from Canada, Costa Rica, Mexico and

8 the United Kingdom. In 2016, 1,004,389 passengers deplaned from international flights 9 at Phoenix Sky Harbor International Airport.10

10

11. Disclosure of the records Plaintiff seeks through this action would facilitate

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

12 Orders in the Tucson Field Office, particularly including Phoenix Sky Harbor

13 International Airport. Such information is critical to the public’s ability to hold the

14 government accountable.

15

12. This action is necessary because Defendants have failed to provide Plaintiff

16 with a determination as to whether they will comply with the Request, although more

17 than 20 business days have elapsed since Defendants received the Request.

18

Jurisdiction

19

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

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

21 U.S.C. § 1331.

22

23

24 8 Id.

25 9 Year to Date Passenger Traffic, AIRPORTS COUNCIL INTERNATIONAL, (April 11, 2016) available at http://www.aci.aero/Data-Centre/Monthly-Traffic-Data/Passenger-
26 Summary/Year-to-date

27

10 Monthly Statistical Reports – December 2016, CITY OF PHOENIX AVIATION DEPARTMENT SKY HARBOR INTERNATIONAL AIRPORT FINANCIAL MANAGEMENT

28

DIVISION,

available

at

https://skyharbor.com/docs/default-

source/pdfs/StatisticsReports/stat-jan-dec-2016.pdf?sfvrsn=4

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Venue

2

14. Venue in the District of Arizona is proper under 5 U.S.C. § 552(a)(4)(B)

3 because the requested agency records are, upon information and belief, situated within

4 this District at CBP facilities at or near Phoenix Sky Harbor International Airport and the

5 Tucson Field Office, and because the principal place of business of Plaintiff American

6 Civil Liberties Union of Arizona is in the District of Arizona. For the same reason, venue

7 also is proper under 28 U.S.C. § 1391(e).

8

Parties

9

15. Plaintiff is a non-profit, 501(c)(4) membership organization that educates

10 the public about the civil liberties implications of pending and proposed state and federal

11 legislation, provides analysis of pending and proposed legislation, directly lobbies

12 legislators, and mobilizes its members to lobby their legislators.

13

16. Defendant Department of Homeland Security is a department of the

14 executive branch of the U.S. government and is an agency within the meaning of 5

15 U.S.C. § 552(f)(1).

16

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

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

18

18. Plaintiff is informed and therefore believes that Defendants have

19 possession, custody or control of the requested records.

20

Facts

21

19. On February 2, 2017, Plaintiff sent the Request to CBP’s Tucson Field

22 Office and CBP’s FOIA Officer at CBP Headquarters via certified, trackable mail, with

23 United States Postal Service tracking numbers of 70162710000086270193 and

24 70162710000086270186, respectively.

25

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

26 of the Executive Order at (a) Phoenix Sky Harbor International Airport (“Local

27 International Airport”); and (b) Phoenix Port of Entry (“Port of Entry Office”). (The

28 Request expressly did not seek information held in the records of CBP Headquarters.)

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21. Specifically, the Request sought the following:

2

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

3 interpretation, enforcement, and implementation of the following at Local International

4 Airport:

5

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

6

titled ‘Protecting the Nation From Foreign Terrorist Entry Into the

7

United States’;

8

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

9

President Trump signed the Executive Order, as referenced in CBP’s

10

online FAQ;11

11

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

12

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

13

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

14

adjudicate any immigration claims from the seven targeted

15

countries;12

16

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

17

Motion for Stay of Removal, issued in the Eastern District of New

18

York on January 28, 2017, including records related to CBP’s efforts

19

to comply with the court’s oral order requiring prompt production of

20

a list of all class members detained by CBP;13

21

11 To assist CBP in responding, the Request included the following information in a 22 footnote for reference: “Protecting the Nation from Foreign Terrorist Entry into the

23

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-

24

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.’)

25 (emphasis added).”

12 The following footnote was included for reference: “See Alice Speri and Ryan 26 Devereaux, Turmoil at DHS and State Department—‘There Are People Literally Crying

27

in the Office Here,’ THE INTERCEPT, Jan. 30, 2017, available at https://theintercept.com/2017/01/30/asylum-officials-and-state-department-in-turmoil-

28 there-are-people-literally-crying-in-the-office-here/.”

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

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

2

Eastern District of Virginia on January 28, 2017;14

3

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

4

Removal, issued in the Western District of Washington on January

5

28, 2017;15

6

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

7

District of Massachusetts on January 29, 2017;16

8

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

9

Temporary Restraining Order, issued in the Central District of

10

California on January 29, 2017;17

11

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

12

of Pennsylvania that all individuals detained at Philadelphia

13

International Airport under the Executive Order would be admitted

14

to the United States and released from custody on Sunday, January

15

29, 2017;

16

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

17

29, 2017;18

18 Trump, No. 17 Civ. 480 (AMD) (E.D.N.Y. Jan. 28, 2017), available at

https://www.aclu.org/legal-document/darweesh-v-trump-decision-and-order.” 19
14 The following footnote was included for reference: “Temporary Restraining Order,

20 Aziz v. Trump, No. 1:17-cv-116 (E.D. Va. Jan. 28, 2017), available at

https://www.justice4all.org/wp-content/uploads/2017/01/TRO-order-signed.pdf. 21 15 The following footnote was included for reference: “Order Granting Emergency

22 Motion for Stay of Removal, Doe v. Trump, No. C17-126 (W.D. Wash. Jan. 28, 2017), available at https://www.justsecurity.org/wpcontent/uploads/2017/01/Seattle-Order.pdf.”

23 16 The following footnote was included for reference: “Temporary Restraining Order,

24

Tootkaboni v. Trump, No. 17-cv-10154 (D. Mass. Jan. 29, 2017), available at https://aclum.org/wp-content/uploads/2017/01/6-TRO-Jan-29-2017.pdf.”

25 17 The following footnote was included for reference: “Order, Vayeghan v. Trump, No. CV 17-0702 (C.D. Cal. Jan. 29, 2017), available at
26 https://www.aclusocal.org/sites/default/files/vayeghan_-_order_re_tro.pdf.”

27 18 The following footnote was included for reference: “Department of Homeland Security

Response to Recent Litigation, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available

28 at

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

recent-litigation.”

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

2

Permanent Residents Into the United States,’ issued on January 29,

3

2017;19

4

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

5

President’s Executive Order,’ issued on January 29, 2017;20 and

6

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

7

Executive Order on or after January 27, 2017.

8

23. Records concerning the number of individuals who were detained or

9 subjected to secondary screening, extending questioning, an enforcement examination, or

10 consideration for a waiver at Local International Airport pursuant to the Executive Order,

11 including:

12

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

13

secondary screening, extending questioning, an enforcement

14

examination, or consideration for a waiver at Local International

15

Airport both as of the date of this request and as of the date on which

16

this request is processed; and

17

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

18

to secondary screening, extending questioning, an enforcement

19

examination, or consideration for a waiver for any length of time at

20

Local International Airport since January 27, 2017, including the

21

number of individuals who have been

22

i. released,

23

ii. transferred into immigration detention, or

24 19 Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into
25 The United States, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-
26 permanent-residents-united-states.
27 20 The following footnote was included for reference: “DHS Statement On Compliance With Court Orders And The President’s Executive Order, DEP’T OF HOMELAND
28 SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/dhsstatement-compliance-court-orders-and-presidents-executive-order.”

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iii. removed from the United States;

2

2. Records concerning the number of individuals who have been removed

3

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

4

the Executive Order;

5

3. Records concerning the number of individuals who arrived at Local

6

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

7

green cards who subsequently agreed voluntarily to return; and

8

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

9

personnel shortly’ after President Trump signed the Executive Order.”21

10 Exh. A. at 5–9.

11

24. The Request included an application for expedited processing, on the

12 grounds that there is a “compelling need” for these records under 5 U.S.C.

13 § 552(a)(6)(E)(v)(II) because the information requested is “urgen[tly]” needed by an

14 organization primarily engaged in disseminating information “to inform the public

15 concerning actual or alleged Federal Government activity.” Exh. A at 9–13.

16

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

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

18 a critical and substantial aspect of the ACLU’s mission is to obtain information about

19 government activity, analyze that information and publish and disseminate that

20 information widely to the press and public. Exh. A at 9–13.

21

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

22 function. Exh. A at 9–13. Specifically, the Request described the ACLU’s dissemination

23 of information to the public, including information obtained through FOIA requests,

24 through an email list of approximately 35,000 Arizonans, via social media (ACLU-AZ

25
26 21 The following footnote was included for reference: “Protecting the Nation from Foreign Terrorist Entry into the United States, U.S. CUSTOMS AND BORDER PROTECTION
27 (Jan. 31, 2017), available at https://www.cbp.gov/border-security/protecting-nationforeign-terrorist-entry-united-states (‘The Executive Order and the instructions therein
28 were effective at the time of the order’s signing. Guidance was provided to DHS field personnel shortly thereafter.’) (emphasis added).”

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1 has more than 14,000 Facebook followers and 7,500 Twitter followers), and through a

2 printed newsletter delivered to roughly 9,500 homes in Arizona.

3

27. The Request also included an application for a fee waiver or limitation

4 under 5 U.S.C. § 552(a)(4)(A)(iii) on the grounds that disclosure of the requested records

5 is in the public interest and is “likely to contribute significantly to public understanding

6 of the operations or activities of the government and is not primarily in the commercial

7 interest of the requester.” In particular, the ACLU emphasized that the Request would

8 significantly contribute to public understanding on a matter of profound public

9 importance about which scant specific information had been made public (i.e., how local

10 CBP Field Offices had enforced, and continue to enforce, the Executive Orders). The

11 Request also made clear that the ACLU plans to disseminate the information disclosed as

12 a result of the Request to the public at no cost. Exh. A at 13.

13

28. 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 Plaintiff qualifies as “representatives of the

15 news media” and the records are not sought for commercial use, given the ACLU’s non-

16 profit mission and substantial activities to publish information for dissemination to the

17 public, as discussed in greater detail in ¶ 26 above.

18

29. CBP received the Request on February 6, 2017. See Exhibit B.

19

30. CBP has not acknowledged receipt of the Request.

20

31. As of April 12, 2017, more than 20 days (excepting Saturdays, Sundays and

21 legal public holidays) have elapsed since CBP received the Request.

22

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

23 Plaintiff of a determination as to whether Defendants will comply with the Request.

24

33. Because Defendants failed to comply with the 20-business-day time limit

25 provision of FOIA, 5 U.S.C. § 552(a)(6)(A)(i), Plaintiff is deemed to have exhausted its

26 administrative remedies with respect to the Request under 5 U.S.C. § 552(a)(6)(C)(i).

27

28

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Violation of FOIA for Failure

to Provide a Determination

2

Within 20 Business Days

3

34. Plaintiff repeats and re-alleges the allegations contained in paragraphs 1

4 through 33 above, inclusive.

5

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

6 with a request within 20 days (excepting Saturdays, Sundays and legal public holidays)

7 after receiving the request, and also have a legal duty to immediately notify a requester of

8 the agency’s determination and the reasons therefor.

9

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

10 within 20 business days after receiving it violates FOIA, 5 U.S.C. § 552(a)(6)(A)(i), and

11 applicable regulations promulgated thereunder.

12

Violation of FOIA for Failure

to Make Records Available

13

14

37. Plaintiff repeats and re-alleges the allegations contained in paragraphs 1

15 through 33 above, inclusive.

16

38. Plaintiff has a legal right under FOIA to obtain the specific agency records

17 requested on February 2, 2017, and there exists no legal basis for Defendants’ failure to

18 make the requested records promptly available to the Plaintiff, its members and the

19 public.

20

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

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

22 thereunder.

23

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

24 or control of the requested records.

25

Violation of FOIA for Failure to

Provide a Determination As To

26

Expedited Processing Within 10 Days

27

41. Plaintiff repeats and re-alleges the allegations contained in paragraphs 1

28 through 33 above, inclusive.

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

2 expedited processing, and to provide notice of that determination to the ACLU, within 10

3 days after the date of the Request.

4

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

5 and to provide notice of that determination to Plaintiff within 10 days after the date of the

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

7 promulgated thereunder.

8

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

9 this Court has jurisdiction under FOIA, 5 U.S.C. § 552(a)(6)(E)(iv), to review

10 Defendants’ failure to make a determination concerning the Plaintiff’s request for

11 expedited processing.

12

WHEREFORE, Plaintiff requests that the Court award it the following relief:

13

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

14 comply with the Request within 20 business days and by failing to immediately thereafter

15 notify the Plaintiff of such determination and the reasons therefor;

16

2. Declare that Defendants violated FOIA by unlawfully withholding the

17 requested records;

18

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

19 provide expedited processing, and to provide notice of that determination to Plaintiff,

20 within 10 days;

21

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

22 public and make copies immediately available to Plaintiff without charge for any search

23 or duplication fees, or, in the alternative, provide for expedited proceedings to adjudicate

24 Plaintiff’s rights under FOIA;

25

5. Award Plaintiff their its costs and attorneys’ fees; and

26

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

27 / / /

28 / / /

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DATED this 12th day of April, 2017.

2

Respectfully submitted,

3

BALLARD SPAHR LLP

4

By: s/ David J. Bodney

David J. Bodney

5

Michael A. DiGiacomo

1 East Washington Street, Suite 2300

6

Phoenix, AZ 85004-2555

7

Kathleen E. Brody

8

kbrody@acluaz.org

ACLU Foundation of Arizona

9

3707 North 7th Street, Suite 235

Phoenix, AZ 85011-0148 10

Attorneys for Plaintiff American Civil Liberties

11

Union of Arizona

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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CERTIFICATE OF SERVICE

2

I certify that on the 12th day of April, 2017, I electronically transmitted a PDF

3 version of this document to the Office of the Clerk of the Court, using the CM/ECF

4 System for filing and transmittal of a Notice of Electronic Filing to all CM/ECF

5 registrants listed for this matter.

6

7

s/ Tasha Hart

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9

10

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EXHIBIT A
Exhibit A

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EXHIBIT B
Exhibit B

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 Case 2:17-cv-01083-DJH Document 33 Filed 08/02/17 Page 1 of 5

case MDL No. 2786 Document 88 Filed 08/02/17 Page 1 of 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 o. 2786

ORDER DENYING TRANSFER
Before the Panel:• Defendants, the U.S. Department ofHomeland Security (DHS) nd U.S. Customs and Border Protection (CBP),l move to centralize thirteen Freedom of Informa 'on Act (FOIA) actions in the District of District of Columbia. The actions, which are pending in hirteen 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 sk that the action in the Eastern District of Michigan be excluded, and that the litigation be centra ized in the Eastern District of Virginia or, alternatively, in the District of Maine or the Western Di trict of Washington.
On the basis of the papers filed and the hearing session held, we deny Defendants' The actions arguably share a limited number offactual issues arising out ofFOIA requests plaintiffs for records concerning CBP's interpretation and implementation- at local inte airports and, in the Eastern District ofMichigan case, U.S ./Canada border crossings- ofthe anuary 27, 2017, Executive Order No. 13769, titled "Protecting the Nation From Foreign Terrori t Entry Into the United States," as well as any judicial order or executive directive issued regar ing 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 ofthe searches by its Wash 'ngton, D.C., headquarters, appear relatively straightforward and unlikely to entail extensive retrial proceedings. SeeRiccardiv. US. Dep 'tofJustice, 32 F. Supp. 3d 59,63 (D.D.C. 2014)("In FOIA case, where the adequacy of an agency's search is questioned, the Court may grant su mary judgment based on information provided in' [a] reasonably detailed affidavit, setting forth th search terms and the type of search performed, and averring that all files likely to contain res onsive materials (if such records exist) were searched."') (quoting Valencia-Lucena v. US. Coast uard, 180 F.3d321, 326 (D.C. Cir.1999)). Indeed, as Defendants acknowledge, these actions proba lywill not involve any discovery. See Mem. in Supp. ofDefs.' Mot. for Transfer, at 16 n.8 (ECF o. 1-1)
• Judge Marjorie 0. Rendell took no part in the decision of this matter. 1 CBP is a component of DHS.

Case 2:17-cv-01083-DJH Document 33 Filed 08/02/17 Page 2 of 5
Case MDL No. 2786 Document 88 Filed 08/02/17 Page 2 of 5
-2-
("In the unlikely event that discovery is authorized in these Related Actions, Defendants a ticipate that CBP witnesses would be located in Washington, DC, while Plaintiffs would not h ve any witnesses of their own."); see also, e.g., Justice v. I.R.S., 798 F. Supp. 2d 43, 47 (D.D. . 2011) (noting that in FOIA actions, discovery is "disfavored")?
Defendants also contend that common factual questions will inform any review o determinations to withhold information from disclosure pursuant to FOIA's statutory exe ptions. This argument is unconvincing, because the application of those exemptions is a legal iss e. See, e.g., Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (lOth Cir. 2007) ("Whether FOIA exemption justifies withholding a record is a question oflaw that we review de novo."); see Mgmt. Servs., LLC v. Dep 't ofthe Army, 703 F.3d 724, 729 (4th Cir. 2013) (same).
Although defendants heavily rely on the Panel's 1992 decision in MDL No. 91 , In re: Freedom Magazine/Internal Revenue Service FOIA Litigation, and its 1991 decision in M L No. 892, In re: Church of Scientology Flag Service Organization/Internal Revenue Servic FOIA Litigation, those decisions are in at least some tension with more recent Panel precedent. .g., In re: Clean Water Rule: Definition of "Waters of the United States," 140 F. Supp. 3d 134 , 1341 (J.P.M.L. 2015) (denying federal government defendants' motion for centralization ofnine actions pending in seven districts involving challenges to EPA rule, where resolution of the action would "involve only very limited pretrial proceedings," and discovery, if any, would be "mi imal"). Moreover, the decisions are distinguishable. In Freedom Magazine, the eight cases were Iled by a single plaintiff, which specifically sought records located at the IRS's Washingto , D.C. headquarters. See Freedom Magazine Transfer Order at 2 (J.P.M.L. Feb. 12, 1992) (unpub ished). And, in Church ofScientology, "every FOIA request in the litigation was made upon theIR office in Jacksonville in [the Middle District of Florida, where the cases were centralized]," and related litigation was pending in that district. See Church ofScientology Transfer Order at 2 (J.P.M. .. 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 re resent, without contradiction, that it was unnecessary for the ACLU plaintiffs to submit a separat 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 ag ncy to search the same field offices for the same records covered by the multiple requests. ut, the potential for litigation cost savings, without more, does not warrant centralization, part'cularly 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 dupl'cative pretrial discovery, Defendants are free to file another motion for centralization.

Case 2:17-cv-01083-DJH Document 33 Filed 08/02/17 Page 3 of 5
Case MDL No. 2786 Document 88 Filed 08/02/17 Page 3 of 5 -3-
IT IS THEREFORE ORDERED that the motion for centralization ofthese actions
PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance Chair

Charles R. Breyer Ellen Segal Huvelle Catherine D. Perry

Lewis A. Kaplan R. David Proctor

Case 2:17-cv-01083-DJH Document 33 Filed 08/02/17 Page 4 of 5 Case MDL No. 2786 Document 88 Filed 08/02/17 Page 4 of 5

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

MDL o. 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, ETA . 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 SECU TY, 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 L., 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. 1:17-02 68

Case 2:17-cv-01083-DJH Document 33 Filed 08/02/17 Page 5 of 5
Case MDL No. 2786 Document 88 Filed 08/02/17 Page 5 of 5 - A2-
MDL No. 2786 Schedule A (Continued) District of Maine
AMERICAN CIVIL LIBERTIES UNION OF MAINE, ET AL. v. U.S. CUSTOM AND BORDER PROTECTION, ET AL., C.A. No. 2:17-00132 Eastern District of Michigan
AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN v. U.S. DEPARTMEN 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. 3:17-0 575 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. 1:17-0 441 Western District of Washington
AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON, ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 2:17-0 562

 
 Case 2:17-cv-01083-DJH Document 70 Filed 05/08/19 Page 1 of 3

1 JOSEPH H. HUNT Assistant Attorney General
2 Civil Division ELIZABETH A. STRANGE
3 First Assistant United States Attorney ELIZABETH J. SHAPIRO
4 Deputy Director, Federal Programs Branch CAROL FEDERIGHI
5 Senior Trial Counsel United States Department of Justice
6 Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW
7 Washington, DC 20530 Tel.: (202) 514-1903
8 Email: carol.federighi@usdoj.gov

9 Attorneys for Defendants U.S. Department of Homeland Security and
10 U.S. Customs and Border Protection

11
UNITED STATES DISTRICT COURT
12
FOR THE DISTRICT OF ARIZONA
13

14 American Civil Liberties Union of

Arizona,

Civil Action No. 2:17-cv-01083-PHX-

15

DJH

Plaintiff,

16

v.

JOINT STATUS REPORT

17

U.S. Department of Homeland Security

18 and U.S. Customs and Border

Protection,

19

Defendants.

20

21

22

The American Civil Liberties Union of Arizona (“Plaintiff” or “ACLU-AZ”)

23 and the U.S. Department of Homeland Security and U.S. Customs and Border

24 Protection (“Defendants” and together with the Plaintiff, the “Parties”), through

25 their respective counsel, submit this status report pursuant to this Court’s Order of

26 April 9, 2019 [Dkt. No. 69].

Case 2:17-cv-01083-DJH Document 70 Filed 05/08/19 Page 2 of 3

1

1. This case involves a Freedom of Information Act (“FOIA”) request

2 submitted by Plaintiff to Defendants, seeking U.S. Customs and Border Protection

3 (“CBP”) records. As of December 4, 2018, CBP reported that the processing of

4 records potentially responsive to Plaintiff’s FOIA request was completed on

5 October 31, 2018 [Dkt. No. 59].

6

2. The parties previously reported that they have determined that no

7 dispositive motions will be required [Dkt. No. 64]. The parties continue to discuss

8 how to resolve any remaining issues in the case, including Plaintiff’s alleged

9 entitlement to attorneys’ fees.

10

3. If a mutual resolution cannot be reached regarding Plaintiff’s

11 attorneys’ fees on or before May 24, 2019, Plaintiff will file a motion for an award

12 of its reasonable attorneys’ fees pursuant to the FOIA as directed by the Court’s

13 Order of April 9, 2019. Resolution of Plaintiff’s motion for award of attorneys’

14 fees, if needed, will resolve all remaining issues in this litigation.

15

16

17

18

19

20

21

22

23

24

25

26

2

Case 2:17-cv-01083-DJH Document 70 Filed 05/08/19 Page 3 of 3

1
Dated: May 8, 2019.
2
s/Michael A. DiGiacomo 3 David J. Bodney 4 Michael A. DiGiacomo
1 East Washington Street, Suite 2300 5 Phoenix, AZ 85004-2555
6
Kathleen E. Brody 7 William B. Peard 8 ACLU Foundation of Arizona
3707 North 7th Street, Suite 235 9 Phoenix, AZ 85011-0148
10
Counsel for Plaintiff.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Dated: May 8, 2019.
JOSEPH H. HUNT Acting Assistant Attorney General
ELIZABETH A. STRANGE First Assistant United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch
s/Carol Federighi CAROL FEDERIGHI U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044
Counsel for Defendants.

3

 
 Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 1 of 13

1 WO

2

NOT FOR PUBLICATION

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 American Civil Liberties Union of Arizona, No. CV-17-01083-PHX-DJH

10

Plaintiff,

ORDER

11 v.

12 United States Department of Homeland Security, et al.,
13

14

Defendants.

15

Pending before the Court is the Motion for Award of Attorneys’ Fees Pursuant to 5

16 U.S.C. § 552(a)(4)(E) filed by Plaintiff American Civil Liberties Union of Arizona (Doc. 17 71).1 In this Freedom of Information Act (“FOIA”) matter, Plaintiff is requesting

18 attorneys’ fees in the amount of $88,889.30 and costs in the amount of $400.00 on the basis

19 that Plaintiff “substantially prevailed in this action to secure public access to government

20 records.” (Doc. 71 at 1). Defendants, United States Department of Homeland Security

21 and United States Customs and Border Protection (collectively “Defendants”), filed an

22 Opposition (Doc. 74), and Plaintiff filed a Reply (Doc. 79).

23

I. Background

24

Plaintiff, the American Civil Liberties Union of Arizona (“ACLU”) filed this FOIA

25 action on April 12, 2017. (Doc. 1). The ACLU is a non-profit, 501(c)(3) organization that,

26 according to its Complaint, “educates the public about the civil liberties implications of

27

28

1 Plaintiff requested oral argument in this matter. The Court finds that the issues have been fully briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b)

(court may decide motions without oral hearings); LRCiv 7.2(f) (same).

Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 2 of 13

1 pending and proposed state and federal legislation, provides analysis of pending and

2 proposed legislation, directly lobbies legislators, and mobilizes its members to lobby their

3 legislators.” (Doc. 1 at ¶ 15; see also Doc. 71-2 at 1).

4

Plaintiff initiated this action following a February 2, 2017, FOIA request that

5 Plaintiff submitted to Defendants. (Doc. 1 at ¶ 1). The FOIA request sought records

6 concerning the United States Customs and Border Protection’s (“CBP”) local

7 implementation of President Trump’s January 27, 2017, Executive Order, titled “Protecting

8 the Nation from Foreign Terrorist Entry Into the United States,” as well as other judicial

9 orders or directives regarding that Executive Order, including President Trump’s March 6,

10 2017, Executive Order, which was identically titled (the “Executive Orders”). (Doc. 1 at

11 ¶ 2; Doc. 1-1).

12

Plaintiff filed a Motion for Order Setting Schedule for Production of Responsive

13 Documents on December 13, 2017. (Doc. 39). In that Motion, Plaintiff requested that the

14 Court enter an order directing Defendants to begin producing records responsive to the

15 FOIA request at the rate of 1,000 pages per month. (Doc. 39 at 4). In response, Defendants

16 stated that, while they had no objection to a production schedule, Plaintiff’s proposed

17 schedule would not be “feasible” because Defendants’ resources were “monopolized”

18 through the end of February. (Doc. 42 at 2). Accordingly, Defendants suggested that it

19 should produce 200 pages of records by February 28, 2018, and thereafter produce records

20 on a “rolling basis at rates that will significantly increase.” (Doc. 42 at 2). In its January

21 10, 2018, Reply, Plaintiff requested that Defendants begin producing responsive

22 documents in bi-monthly productions of at least 200 documents per production. (Doc. 44

23 at 6). On May 21, 2018, this Court issued an Order to Show Cause regarding the number

24 of pages per month the Defendants could produce and ordering Defendants to show cause

25 as to why the Court should not order Defendants to produce documents at a rate of 1,000

26 pages per month. (Doc. 46).

27

On May 29, 2018, the parties submitted a Joint Status Report (Doc. 47). The Joint

28 Status Report indicated that Defendants had produced 611 pages that Defendants

- 2 -

Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 3 of 13

1 contended were responsive to the FOIA request. (Doc. 47 at 2). The Joint Status Report

2 also stated that the Defendants’ average processing rate since January 1, 2018, had been

3 approximately 581 pages per month. (Doc. 47 at 3). Finally, Defendants estimated that

4 they had not yet processed 2241 pages of potentially responsive documents and stated that

5 they proposed a processing schedule under which production would be complete by

6 November 30, 2018. (Id.). Last, the Joint Status Report indicated that Plaintiff intended

7 to file a Motion for an order directing Defendants to produce a Vaughn Index. (Id.).

8

On May 31, 2018, Defendants responded to the Court’s May 21, 2018, Order to

9 Show Cause. (Doc. 48). In their Response, Defendants presented its proposed schedule

10 for completing the processing of the remaining 2,241 potentially responsive pages. (Doc.

11 48 at 2). That schedule provided that Defendants would process at least 500 pages of the

12 remaining 2,241 pages by June 30; at least 1000 pages of the remaining 2,241 pages by

13 August 31; at least 2,129 pages of the remaining 2,241 pages by October 31; and all 2,241

14 pages by November 30, 2018. (Doc. 48 at 2). By Order dated June 5, 2018, the Court

15 found that this proposed schedule was reasonable and ordered Defendants to process the

16 remaining documents pursuant to that schedule. (Doc. 49 at 2; Doc. 53).

17

On June 13, 2018, Plaintiff filed a Motion requesting an Order directing Defendants

18 to produce a Vaughn Index. (Doc. 50). Defendants filed an Opposition to this Motion,

19 arguing that the Motion was premature (Doc. 54), and Plaintiff submitted a Reply,

20 disputing the claim of premature filing. (Doc. 57). On October 18, 2018, this Court denied

21 the Motion without prejudice. (Doc. 58). The Court held that it did not need to reach the

22 merits of Plaintiff’s Motion because the processing schedule for the FOIA request was

23 already in place. (Doc. 58 at 2).

24

On December 4, 2018, Defendants filed a Status Report stating that the processing

25 of all potentially responsive documents was completed on October 31, 2018. (Doc. 59).

26 On February 8, 2019, the parties filed a Joint Status Report, indicating that the parties had

27 consulted with each other and that no dispositive motions would be filed. (Doc. 64). On

28 May 24, 2019, Plaintiff filed this Motion for Attorneys’ Fees (Doc. 71). Defendants filed

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Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 4 of 13

1 a Response in Opposition to the Motion for Attorneys’ Fees (Doc. 74), and Plaintiff filed

2 a Reply (Doc. 79).

3

II. Discussion

4

Under the Freedom of Information Act (“FOIA”), if a complainant has

5 “substantially prevailed,” the court “may assess against the United States reasonable

6 attorney fees and other litigation costs reasonably incurred.” 5 U.S.C. § 552(a)(4)(E)(i).

7 “[A] complainant has substantially prevailed if the complainant has obtained relief through

8 either (1) a judicial order, or an enforceable written agreement or consent decree; or (2) a

9 voluntary or unilateral change in position by the agency, if the complainant’s claim is not

10 insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). The Court does not automatically award costs

11 and fees to the prevailing party in a FOIA action. Rosenfeld v. U.S. Dep’t of Justice, 904

12 F. Supp. 2d 988, 994 (N.D. Cal. 2012) (citing Church of Scientology v. U.S. Postal Serv.,

13 700 F.2d 486, 489 (9th Cir. 1983)). Instead, the plaintiff must present “convincing

14 evidence” that it is both eligible for an attorneys’ fee award and entitled to an attorneys’

15 fee award. Church of Scientology, 700 F.2d at 489. Once the plaintiff has established

16 eligibility for and entitlement to fees, the plaintiff submits its bill to the court, and the court

17 evaluates the bill for reasonableness of the hours expended and the hourly fee claimed.

18 Long v. U.S. Internal Revenue Serv., 932 F.2d 1309, 1313-14 (9th Cir. 1991).

19

A. Eligibility and Entitlement

20

To establish eligibility for an attorneys’ fee award, the moving party must show that:

21 “(1) the filing of the action could reasonably have been regarded as necessary to obtain the

22 information,” and “(2) the filing of the action had a substantial causative effect on the

23 delivery of the information.” Church of Scientology, 700 F.2d at 489 (emphasis in

24 original). If the party establishes eligibility for an attorneys’ fee award, the court must then

25 determine whether the party is entitled to an attorneys’ fee award. Hiken v. Dep’t of

26 Defense. 836 F.3d 1037, 1043-44 (9th Cir. 2016). This decision is within the trial court’s

27 discretion. Id. at 1044. In exercising this discretion, the trial court considers four factors:

28 “(1) the public benefit from disclosure, (2) any commercial benefit to the plaintiff resulting

- 4 -

Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 5 of 13

1 from disclosure, (3) the nature of the plaintiff’s interest in the disclosed records, and (4)

2 whether the government’s withholding of the records had a reasonable basis in law.” Long,

3 932 F.2d at 1313.

4

Defendants concede that Plaintiff is eligible for a fee award. (Doc. 74 at 9 (stating

5 “Defendants do not contend here that Plaintiff is not eligible for fees”)). This Court agrees

6 with the parties that the filing of the action could reasonably have been regarded as

7 necessary to obtain the information and that the filing of the action had a substantial

8 causative effect on the delivery of the information. Accordingly, the Court finds that the

9 eligibility requirement has been satisfied.

10

Regarding entitlement, Defendants contend that Plaintiff is not entitled to fees

11 because there was no public benefit. Defendants assert that there was no public benefit

12 because there were no affected travelers who passed through the Phoenix airport during the

13 time in question and because there were no materials specific to the Customs and Border

14 Protection Field Office regarding “enforcement of the Executive Order as it pertained to

15 specific individuals or specific circumstances.” (Doc. 74 at 10-11). Defendants further

16 argue that there was little public benefit due to the multiple similar lawsuits throughout the

17 country and the many more pages produced in those other actions. (Id.). In response,

18 Plaintiff argues that the documents received “contribute to the public’s ability to make an

19 informed judgment as to the government’s actions.” (Doc. 79 at 3). Plaintiff further

20 explains that, regardless of the lack of travelers through the Phoenix airport, information

21 was disclosed that assists the citizenry in understanding “important governmental

22 operations.”2 (Doc. 79 at 4).

23

In addressing the public benefit factor, Defendants correctly state that one

24 consideration is the degree of dissemination of the information and the likely public impact

25 that might result from disclosure. Church of Scientology, 700 F.2d at 493. The public

26

27

2 In support of this contention, Plaintiff cites, for example, an email in which the Customs and Border Protection Executive Assistant Commissioner wrote to various recipients,

28

including the Tucson Field Office, regarding the potential for certain members of Congress to visit airports seeking information regarding the first Executive Order and recommending

a policy of non-engagement.

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Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 6 of 13

1 benefit factor, however, may also be met “[e]ven where the degree of dissemination is

2 limited, or where the level of public interest in the requested information itself is minimal.”

3 Public.Resource.org v. U.S. Internal Revenue Serv., 2015 WL 9987018, at *3 (N.D. Cal.

4 2015); see also Sierra Club v. U.S. Envtl. Prot. Agency, 75 F. Supp. 3d 1125, 1143-44

5 (N.D. Cal. 2014) (finding public benefit when documents were not disseminated because

6 the data plaintiffs obtained was being used to “inform Plaintiffs’ ongoing oversight and

7 enforcement efforts”). In determining whether the public benefit factor is met, the court

8 should assess “the potential public value of the information sought, and not the public value

9 of the information received.” Civil Beat Law Center for the Public Interest, Inc. v. Centers

10 for Disease Control and Prevention, 2017 WL 664446, at *6 (D. Haw. 2017) (emphasis

11 added) (internal quotations omitted). This “potential public value” is present when there

12 is “at least a modest probability of generating useful new information about a matter of

13 public concern.” Morley v. Central Intelligence Agency, 810 F.3d 841, 844 (D.C. Cir.

14 2016). An additional goal of the public benefit analysis is to ensure that a fee award is not

15 used to subsidize “a matter of private concern.” Church of Scientology, 700 F.2d at 493.

16

There was a public benefit in this case. Plaintiff is a non-profit organization that,

17 according to the Complaint, “educates the public about the civil liberties implications of

18 pending and proposed state and federal legislation, provides analysis of pending and

19 proposed legislation, directly lobbies legislators, and mobilizes its members to lobby their

20 legislators.” (Doc. 1 at ¶ 15). There is no suggestion that Plaintiff used its FOIA request

21 to subsidize a matter of private concern. Further, even if the documents Plaintiff received

22 were not widely disseminated to the public, the information sought had public value. The

23 Executive Orders were widely reported and were subject to public protests. The

24 information sought by Plaintiff was valuable because it could provide further information

25 regarding the implementation and practical impact of the Executive Orders. Therefore, the

26 information sought had “at least a modest probability of generating useful new information

27 about a matter of public concern.” See Morley, 810 F.3d at 844. The Court thus finds that

28 the public benefit factor is met.

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Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 7 of 13

1

Defendants do not contend that the remaining factors are not met, and the Court

2 agrees that the factors support an award of attorneys’ fees. First, Plaintiff did not secure a

3 commercial benefit from disclosure; as discussed above, Plaintiff is a non-profit

4 organization that focuses on the civil liberties implications of legislation and proposed

5 legislation. Likewise, because Plaintiff sought the documents in order to inform the public

6 regarding the Executive Orders, Plaintiff’s interest in the disclosed records also supports a

7 finding of eligibility for fees. See Church of Scientology, 700 F.2d at 494 (stating that, if

8 the plaintiff “is indigent or a nonprofit public interest group, an award of attorney’s fees

9 furthers the FOIA policy of expanding access to government information”). Finally, the

10 Court finds that there was no reasonable basis in law for the government’s withholding of

11 the records. Therefore, because all four factors are met, Plaintiff is entitled to an award of

12 attorneys’ fees, in addition to being eligible for a fee award.

13

B. Reasonableness of the Fees Requested

14

Once a plaintiff has established both eligibility for and entitlement to fees, the

15 plaintiff must submit a record of its fees to the court so that the court can examine the

16 reasonableness of both the hourly fee claimed and the number of hours expended. Long,

17 932 F.2d at 1314. If the two figures are reasonable, “then there is a strong presumption

18 that their product, the lodestar figure, represents a reasonable award.” Id. (internal

19 quotations omitted). The fee applicant must produce evidence that the requested rates “are

20 in line with those prevailing in the community.” Hiken, 836 F.3d at 1044. Sufficient

21 evidence typically includes affidavits of the moving party’s attorney and other attorneys

22 regarding fees in the community. Id. Regarding the number of hours expended, the moving

23 party must “document[] the appropriate hours expended” and must “submit evidence

24 supporting the hours worked.” Sierra Club, 75 F. Supp. 3d at 1148 (internal citations

25 omitted).

26

1. Hourly Rates

27

Defendants assert that Plaintiff is seeking fees based upon “unreasonably high

28 hourly rates that are not in line with rates prevailing in the community for similar work.”

- 7 -

Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 8 of 13

1 (Doc. 74 at 19). Defendants specifically point to Mr. Bodney’s hourly rate of between

2 $675 and $710 and Mr. DiGiacomo’s hourly rate of between $310 and $375. (Id.). In

3 response, Plaintiff states that Mr. Bodney’s rate is reflective of his “nearly 40 years of

4 experience since graduating from the University of Virginia School of Law.” (Doc. 71 at

5 12). Likewise, Plaintiff states that Mr. DiGiacomo’s hourly rate reflects his five years of

6 civil litigation experience. (Id.). In support of Plaintiff’s attorneys’ fees claim, Plaintiff

7 attaches Mr. Bodney’s Declaration. (Doc. 71-1). In that Declaration, Mr. Bodney states

8 that the hourly rates charged are “the same as, or lower than, the prevailing rates charged

9 by comparable law firms in the community for similar services.” (Doc. 71-1 at 3). Mr.

10 Bodney declares that he bases this statement on his personal experience, including

11 previously serving as the Managing Partner of the Phoenix office of Steptoe & Johnson,

12 LLP, previously reviewing billing rate information for firms in the metropolitan Phoenix

13 area, and having served as an expert witness in connection with another firm’s FOIA fee

14 application. (Doc. 71-1 at 3).

15

In determining a reasonable hourly rate, courts consider “the prevailing market rate

16 in the community for similar services by lawyers of reasonably comparable skill,

17 experience, and reputation.” Rosenfeld, 904 F. Supp. 2d at 1001. The Court should also

18 consider evidence, including declarations “of the plaintiffs’ attorney” regarding prevailing

19 fees. Id. The Court finds that Mr. Bodney’s many years of legal experience and his legal

20 expertise, in addition to his Declaration attesting that the rate claimed is the same as or

21 lower than prevailing rates in the Phoenix legal community for similar services, is

22 sufficient evidence that his claimed hourly rate is reasonable. The evidence also establishes

23 the reasonableness of Mr. DiGiacomo’s hourly rate, based on Mr. DiGiacomo’s

24 experience.

25

Defendants do not contest the reasonableness of the hourly rates claimed for the

26 work of two paralegals who assisted Mr. Bodney, Susan Brady Pearce and Tasha M. Hart.

27 In his Declaration, Mr. Bodney states; “Both Ms. Brady Pearce (with whom I have worked

28 for over 20 years) and Ms. Hart have extensive litigation experience and assisted

- 8 -

Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 9 of 13

1 throughout this litigation.” (Doc. 71-1 at 3). Mr. Bodney also attests that their hourly rates

2 are comparable to those in the community for similar services. (Doc. 71-1 at 3). The Court

3 agrees and finds that there is sufficient evidence to support the stated hourly rates of $185-

4 $195 for Ms. Brady Pearce and of $160-$195 for Ms. Hart.

5

Defendants similarly do not object to the hourly rates requested for work performed

6 by Ms. Kathleen E. Brody, Plaintiff’s Legal Director; Plaintiff’s staff attorney, Mr. William

7 P. Peard; or Plaintiff’s paralegal, Ms. Gloria Torres. Ms. Brody’s Declaration states that

8 she is personally familiar with the billing practices and rates of attorneys in the Phoenix

9 market. (Doc. 71-2 at 2). She also attests that her hourly rate for this matter ranged

10 between $361 and $382. (Doc. 71-2 at 3). She further notes that she has previously been

11 awarded fees at the hourly rates of $350 and $361. (Id.). Regarding Mr. Peard, whose

12 hourly rate ranged from $245 to $260, Ms. Brody states that he received his Juris Doctor

13 in 2013 and previously worked as a staff attorney for Massachusetts legal aid and for the

14 Georgia Legal Services Program. (Id.). Regarding Ms. Torres, whose billable rate in this

15 matter was $191, Ms. Brody states that she has worked as a paralegal and legal

16 administrator in Phoenix for more than 20 years and that she has previously been awarded

17 fees at a rate of $185 and $191. (Doc. 71-2 at 4). Upon reviewing Ms. Brody’s Declaration,

18 the Court finds that there is sufficient evidence to establish the reasonableness of the

19 requested rates, based upon years of experience, as well as prior fee awards in comparable

20 cases. (Doc. 71-2).

21

2. Hours Requested

22

In analyzing the number of hours requested, “the Court has discretion in determining

23 the number of hours reasonably expended on this case.” Rosenfeld, 904 F. Supp. 2d at

24 1003. The fee applicant must document the “appropriate hours expended” and must

25 “submit evidence supporting the hours worked.” Hensley v. Eckerhart, 461 U.S. 424, 433

26 (1983). “Where the documentation of hours is inadequate, the district court may reduce an

27 award accordingly.” Id. If the court finds that time was not “reasonably expended,” the

28 court should exclude that time from a fee award. Sierra Club, 75 F. Supp. 3d at 1148

- 9 -

Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 10 of 13

1 (citing Hensley, 461 U.S. at 433).

2

In Defendants’ Response, Defendants assert that several categories of requested fees

3 are not recoverable. These include fees for billing entries that are “either redacted or

4 otherwise too brief to establish their relationship to this case” (Doc. 74 at 13); fees for

5 attorneys consulting with each other (Doc. 74 at 15); and fees for time spent on “Plaintiff’s

6 unsuccessful and unnecessary motion for a Vaughn index.” (Doc. 74 at 17). In Reply,

7 Plaintiff states that the billing entries were “appropriately redacted to protect both the

8 attorney-client privilege and work product information.” (Doc. 79 at 5). Plaintiff also

9 states that the time was not excessive; for example, Mr. Bodney billed just over 40 hours

10 on the matter, while Mr. DiGiacomo billed an average of 5.6 hours per month. (Doc. 79 at

11 6). Finally, regarding the Motion for Vaughn index, Plaintiff states that it prepared the

12 motion “more than seven months after serving the FOIA Request, at a time when

13 Defendants were only slowly producing sometimes heavily-redacted documents.” (Doc.

14 79 at 7 (emphasis in original)).

15

First, regarding the “redacted” time entries, the Court appreciates the importance of

16 maintaining attorney-client confidentiality and work-product privilege; therefore, the

17 Court will award fees for attorney-client communications and communications between

18 co-counsel, even when the specific contents of those communications are not stated. If,

19 however, insufficient information is provided for the Court to determine whether a time-

20 entry was necessary for this action, the Court will decline to award the claimed fees. See

21 Rosenfeld, 904 F. Supp. 2d at 1003 (“The fee applicant bears the burden of ‘documenting

22 the appropriate hours expended’” (citing Hensley, 461 U.S. at 433)). Additionally, if such

23 entries were block-billed, the Court will not award any of the claimed fees for that billable

24 entry. See Civil Beat Law Center, 2017 WL 664446, at *12 (“District courts have the

25 authority to reduce hours that are billed in block format”). Accordingly, the Court will

26 exclude the following entries, which provide insufficient information regarding the work

27 performed3:

28 3 The time entries refer to those in Doc. 79-6 at 1-18 and Doc. 71-2 at 6-11.

- 10 -

Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 11 of 13

1 Date Attorney Description

Hours Amount

4/10/17 DiGiacomo Review Correspondence from K. Brody .5

$155

2

and REDACTED

4/11/17 Bodney Review REDACTED

.1

$67.50

3 4/11/17 DiGiacomo Review correspondence from K. Brody .3

$93

analyze issues raised re: REDACTED

4 4/14/17 DiGiacomo Research REDACTED

.2

$62

5/12/17 DiGiacomo Review and respond to correspondence .2

$62

5

from M. Ebadolahi4 re REDACTED

6

5/16/17 DiGiacomo Review and analyze correspondence from .2 M. Ebadolahi re REDACTED

$62

7

5/22/17 DiGiacomo Incorporate REDACTED

.4

5/22/17 DiGiacomo Review correspondence re REDACTED .2

$124 $62

8

5/25/17 DiGiacomo Review and analyze correspondence from .3 M. Ebadolahi re REDACTED

$93

9

5/31/17 Bodney Review emails re REDACTED

.2

6/22/17 DiGiacomo Review and analyze decisions re motion 1.6

$135 $496

10

for stay pending JPML decision; REDACTED

11

6/30/17 DiGiacomo Review and analyze correspondence re .1 REDACTED

$31

12 8/4/17 Bodney

Teleconference with T. Burke re .5 REDACTED

$337.50

13

8/4/17

DiGiacomo Analyze REDACTED with D. Bodney and .5 K. Brody

$155

14

8/4/17

DiGiacomo Draft and send REDACTED to B. Peard .3 and K. Brody

$93

15

11/1/17 DiGiacomo Analyze issues re REDACTED with D. .3 Bodney

$93

16

12/8/17 DiGiacomo Review correspondence from M. .4 Ebadolahi re REDACTED

$124

17 12/13/17 DiGiacomo Review filed motion for entry of .2

$62

production schedule; REDACTED

18 1/3/18 DiGiacomo Analysis

and

correspondence .9

$310.50

REDACTED

19 1/24/18 DiGiacomo Review correspondence from M. .1

$34.50

Ebadolahi REDACTED

20 2/7/18 DiGiacomo Review and analyze correspondence from .2

$69

M. Ebadolahi re REDACTED

21 5/14/18 Peard

Reviewing and analyzing REDACTED 2.8 $705.60

5/18/19 DiGiacomo Analyze REDACTED

.3

$103.50

22 6/22/18 DiGiacomo REDACTED

.1

$34.50

8/9/18 DiGiacomo Draft and circulate summary of .8

$276

23

REDACTED; review correspondence

from REDACTED

24 11/26/18 Bodney Review email re REDACTED

.1

$68.50

2/14/19 DiGiacomo REDACTED 25

.1

$37.50

TOTAL

$3946.60

26

27

28

4 Because Plaintiff has not clarified the relationship of M. Ebadolahi or T. Burke to this matter, the Court does not have sufficient information to award fees for redacted

communications with M. Ebadolahi and T. Burke.

- 11 -

Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 12 of 13

1

Regarding fees for attorneys consulting with each other, Defendants argue that

2 Plaintiff’s attorneys are claiming an excessive amount of fees for communications both

3 between the attorneys at the law firm of Ballard Spahr and between Ballard Spahr attorneys

4 and Plaintiff’s in-house attorneys. Plaintiff requests $20,770.80, based upon 43.4 hours,

5 for assorted communications between co-counsel, including telephone conferences, e-mail

6 correspondence, and in-person conferences. This amount is slightly more than 23% of the

7 total fees requested. Although conferences between attorneys to discuss and strategize are

8 an important aspect of effective litigation, see McKenzie v. Kennickell, 645 F. Supp. 437,

9 450 (D.D.C. 1986), the party seeking fees must establish that the communications were

10 efficient and essential. Fresh Packing Corp. v. Guicho, 2016 WL 1718286, at *7 (N.D.

11 Cal. 2016); see also Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 949 (9th Cir. 2007)

12 (affirming reduction in fees for intra-office conferences when fee claimant failed to provide

13 a “persuasive justification” for the conferences). The Court first notes that this FOIA

14 matter was not particularly complex; although there was an initial motion to stay, this

15 matter was resolved with a production schedule. Further, upon review of the billing entries,

16 there are a number of duplicative and inconsistent entries.5 In light of the duplicative and

17 inconsistent entries, as well as the relative lack of complexity of this matter, the Court finds

18 that Plaintiff has not established that the substantial time spent on counsel communications

19 was efficient and essential. See Cruz v. Starbucks Corp., 2013 WL 2447862, at *8 (N.D.

20 Cal. 2014) (reducing time for conferencing when over 20% of counsel time was spent in

21 conferences with co-counsel); Clark v. Marsh, 609 F. Supp. 1028, 1034-35 (D.C. Cir.

22

23

5 For example, on November 7, 2017, there was a phone call between Mr. DiGiacomo, Mr. Peard, and Ms. Brody. Mr. DiGiacomo billed .6, for a fee of $186; Mr. Peard and Ms.

24

Brody each billed .4, for fees of $98 and $144.40. Similarly, on August 3, 2017, Mr. Bodney and Mr. DiGiacomo apparently conferenced each other; however, Mr. DiGiacomo

25

recorded .7 for the conference, at a fee of $217, while Mr. Bodney recorded .1 for the conference, at a fee of $67.50. Still other conferencing entries do not have matching entries

26

between counsel, such as a May 8, 2017, entry by Mr. Bodney, billing .2 and $135 for a conference with Mr. DiGiacomo, but without a corresponding time entry by Mr.

27

DiGiacomo. The Court is troubled by these inconsistencies. See Rodriguez v. Barrita, Inc., (reducing uncorroborated conferencing time because, although there is no suggestion

28

of billing impropriety, party requesting fees failed to meet its burden of demonstrating entitlement to all requested fees).

- 12 -

Case 2:17-cv-01083-DJH Document 80 Filed 03/27/20 Page 13 of 13

1 1985) (finding 38.8 hours, or “almost one full work week” an excessive amount of time for

2 communications between attorney and client”). Accordingly, the Court will reduce that

3 time by 15%, resulting in a deduction of $3,027.80.6

4

Finally, Defendants assert that Plaintiff should not recover fees related to preparing

5 the Motion for Vaughn Index, which this Court denied without prejudice because the

6 processing schedule for the FOIA request was already in place. (Doc. 58 at 2). As this

7 Court noted in its Order denying the Motion, case law indicates that, where a Vaughn Index

8 is appropriate, it is usually appropriate at the summary judgment stage. (Id.). Nonetheless,

9 almost immediately after this Court issued its Order approving the production schedule,

10 Plaintiff began preparing the Motion for Vaughn Index. Because the Motion was

11 premature and unnecessary, the Court declines to award attorneys’ fees associated with

12 that Motion, resulting in a deduction from the fees requested of $4,986.10.

13

III. Conclusion

14

In this FOIA matter, Plaintiff is requesting $88,889.30 in attorneys’ fees and $400

15 in costs. Plaintiff is both eligible for and entitled to fees. After careful review of Plaintiff’s

16 billing records, and having adjusted the amounts claimed as appropriate and as explained

17 above, the Court awards Plaintiff $76,928.80 in attorneys’ fees. Accordingly,

18

IT IS ORDERED granting Plaintiff’s Motion for Award of Attorneys’ Fees

19 Pursuant to 5 U.S.C. § 552(a)(4)(E) (Doc. 71) and awarding Plaintiff attorneys’ fees in the

20 amount of $76,928.80 and costs in the amount of $400.

21

Dated this 27th day of March, 2020.

22

23

24

Honorable Diane J. Humetewa

25

United States District Judge

26

27

28

6 This amount is 15% of $20,185.30, which represents the $20,770.80 requested for fees for attorney communications less amounts already subtracted based upon “redacted” time

entries, as detailed above.

- 13 -

 
 Case: 2:17-cv-1083 As of: 08/14/2020 04:23 PM MST 1 of 8
CLOSED,EXP,STAY−CASE
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:17−cv−01083−DJH

American Civil Liberties Union of Arizona v. United States Department of Homeland Security et al Assigned to: Judge Diane J Humetewa Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 04/12/2017 Date Terminated: 03/31/2020 Jury Demand: None Nature of Suit: 895 Other Statutes: Freedom of Information Act Jurisdiction: U.S. Government Defendant

American Civil Liberties Union of Arizona

represented by David Jeremy Bodney Ballard Spahr LLP − Phoenix, AZ 1 E Washington St., Ste. 2300 Phoenix, AZ 85004−2555 602−798−5400 Fax: 602−798−5595 Email: bodneyd@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen E Brody ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−650−1854 Fax: 602−650−1376 Email: kbrody@acluaz.org TERMINATED: 07/15/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Anthony DiGiacomo Ballard Spahr LLP − Phoenix, AZ 1 E Washington St., Ste. 2300 Phoenix, AZ 85004−2555 602−798−5400 Fax: 602−798−5595 Email: digiacomom@ballardspahr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Martin Lieberman ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−773−6011 Email: mlieberman@acluaz.org ATTORNEY TO BE NOTICED

William Bradford Peard ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 520−256−5387 Email: bpeard@acluaz.org ATTORNEY TO BE NOTICED

V. Defendant

Case: 2:17-cv-1083 As of: 08/14/2020 04:23 PM MST 2 of 8

United States Department of Homeland Security

represented by Carol Federighi US Dept of Justice − Civil Division Federal Programs Branch P.O. Box 883 Washington, DC 20044 202−514−1903 Email: carol.federighi@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chetan Patil US Dept of Justice − Federal Programs Branch Federal Programs Branch 1100 L St. NW Washington, DC 20005 202−305−4968 Fax: 202−616−8470 Email: chetan.patil@usdoj.gov TERMINATED: 08/21/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J Berns US Dept of Justice − Civil Division − Federal Programs Branc 20 Massachusetts Ave. NW Washington, DC 20530 202−616−8016 Fax: 202−616−8470 Email: matthew.j.berns@usdoj.gov TERMINATED: 08/21/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
United States Customs and Border Protection

represented by Carol Federighi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Chetan Patil (See above for address) TERMINATED: 08/21/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew J Berns (See above for address) TERMINATED: 08/21/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

# Docket Text
1 COMPLAINT. Filing fee received: $ 400.00, receipt number 0970−14116866 filed by American Civil Liberties Union of Arizona. (Submitted by David Bodney). (Attachments: # 1 Exhibit, # 2 Civil Cover Sheet)(SLQ) (Entered: 04/12/2017)
2 Filing fee paid, receipt number 0970−14116866. This case has been assigned to the Honorable Deborah M Fine. All future pleadings or documents should bear the correct case number: CV−17−01083−PHX−DMF. Magistrate Election form attached. (Attachments: # 1 Magistrate Consent Form Instructions)(SLQ) (Entered: 04/12/2017)

Case: 2:17-cv-1083 As of: 08/14/2020 04:23 PM MST 3 of 8

04/12/2017 04/12/2017 04/12/2017
04/12/2017
04/13/2017 04/13/2017 04/14/2017
05/08/2017 05/08/2017
05/08/2017 05/09/2017 05/10/2017 05/10/2017
05/11/2017

3 SUMMONS Submitted by American Civil Liberties Union of Arizona. (Bodney, David) (Entered: 04/12/2017)
4 Corporate Disclosure Statement by American Civil Liberties Union of Arizona. (Bodney, David) (Entered: 04/12/2017)
5 ORDER that motions pursuant to Fed. R. Civ. P. 12(b) are discouraged if the defect can be cured by filing an amended pleading. The parties must meet and confer prior to the filing of such motions to determine whether it can be avoided. FURTHER ORDERED that Plaintiff(s) serve a copy of this Order upon Defendant(s) and file a notice of service. See attached Order for complete details. Signed by Magistrate Judge Deborah M Fine on 4/12/17. (KGM) (Entered: 04/12/2017)
6 SCHEDULING ORDER: Defendant shall serve an answer or otherwise plead within thirty days after service, unless the Court otherwise directs for good cause shown. The deadline for filing dispositive motions is six months from the date the case is at issue. Failure to file such a motion shall result in dismissal for lack of prosecution. Plaintiff shall serve Defendant with a copy of this Order. Signed by Magistrate Judge Deborah M Fine on 4/12/17. (KGM) (Entered: 04/12/2017)
7 SUMMONS Submitted by American Civil Liberties Union of Arizona. (Bodney, David) (Entered: 04/13/2017)
8 SUMMONS Submitted by American Civil Liberties Union of Arizona. (Bodney, David) (Entered: 04/13/2017)
9 Summons Issued as to United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Summons)(BAS). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 04/14/2017)
10 NOTICE of Appearance by Chetan Patil on behalf of United States Customs and Border Protection, United States Department of Homeland Security. (Patil, Chetan) (Entered: 05/08/2017)
11 NOTICE re: of Motion filed with the JPML to Transfer Action Pursuant to 28 U.S.C. 1407 by United States Customs and Border Protection, United States Department of Homeland Security . (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit 1 − Transfer Motion, # 3 Exhibit Exhibit 2 − Supporting Memorandum, # 4 Exhibit Exhibit 3 − Schedule of Actions)(Patil, Chetan) (Entered: 05/08/2017)
12 Magistrate Election Form Deadline set as to United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Consent Form)(MAP) (Entered: 05/09/2017)
13 Order that American Civil Liberties Union of Arizona show cause for failure to comply with LRCiv 3.7(b) before Judge G Murray Snow. Show Cause Hearing set for 6/5/2017 at 04:30 PM before Judge G Murray Snow. (Attachments: # 1 Instructions, # 2 Consent Form)(MAP) (Entered: 05/09/2017)
14 Party Elects Assignment of Case to District Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAP) (Entered: 05/10/2017)
15 MINUTE ORDER: Pursuant to Local Rule 3.7(b), a request has been received for a random reassignment of this case to a District Judge. FURTHER ORDERED Case reassigned by random draw to Judge Diane J. Humetewa. All further pleadings/papers should now list the following COMPLETE case number: CV−17−1083−PHX−DJH. FURTHER ORDERED that the Order to Show Cause Hearing scheduled for June 5, 2017 is hereby VACATED. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAP) (Entered: 05/10/2017)
16 Joint MOTION for Extension of Time to File Answer re: 1 Complaint or otherwise respond to Complaint by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Patil, Chetan) (Entered: 05/11/2017)

Case: 2:17-cv-1083 As of: 08/14/2020 04:23 PM MST 4 of 8

05/11/2017
05/12/2017
05/26/2017
06/01/2017 06/02/2017
06/06/2017 06/07/2017 06/19/2017 06/22/2017
06/26/2017 06/26/2017 06/27/2017 06/28/2017 06/29/2017 07/03/2017 07/10/2017 08/02/2017

17 ORDER granting the parties' Stipulation for Extension of Time to Respond to Complaint 16 and allowing Defendants up to and including July 10, 2017 to file an answer or otherwise respond to Plaintiff's complaint. Signed by Judge Diane J Humetewa on 5/11/2017.(LMR) (Entered: 05/11/2017)
18 MOTION to Stay Proceedings pending decision by the Judicial Panel on Multidistrict Litigation on Defendants' Motion to Transfer by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Patil, Chetan) (Entered: 05/12/2017)
19 RESPONSE in Opposition re: 18 MOTION to Stay Proceedings pending decision by the Judicial Panel on Multidistrict Litigation on Defendants' Motion to Transfer filed by American Civil Liberties Union of Arizona. (DiGiacomo, Michael) (Entered: 05/26/2017)
20 NOTICE re: Notice of Filing Opposition to Defendants' Motion to Transfer to the District of Columbia for Consolidation by American Civil Liberties Union of Arizona . (DiGiacomo, Michael) (Entered: 06/01/2017)
21 REPLY to Response to Motion re: 18 MOTION to Stay Proceedings pending decision by the Judicial Panel on Multidistrict Litigation on Defendants' Motion to Transfer filed by United States Customs and Border Protection, United States Department of Homeland Security. (Patil, Chetan) (Entered: 06/02/2017)
22 NOTICE re: 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) (Entered: 06/06/2017)
23 NOTICE re: of Order Denying Motion to Stay Proceeding Entered in the United States District Court for the Western District of Washington by American Civil Liberties Union of Arizona . (DiGiacomo, Michael) (Entered: 06/07/2017)
24 NOTICE re: Decision in Related Case by United States Customs and Border Protection, United States Department of Homeland Security . (Attachments: # 1 District of Maine Order)(Berns, Matthew) (Entered: 06/19/2017)
25 NOTICE re: Recent Decisions by United States Customs and Border Protection, United States Department of Homeland Security . (Attachments: # 1 Central District of California Opinion, # 2 District of Oregon Opinion)(Berns, Matthew) (Entered: 06/22/2017)
26 NOTICE re: Decisions in Related Cases by United States Customs and Border Protection, United States Department of Homeland Security . (Attachments: # 1 Eastern District of Virginia Order)(Patil, Chetan) (Entered: 06/26/2017)
27 NOTICE re: of Orders Denying Motions to Stay Proceedings by American Civil Liberties Union of Arizona . (Attachments: # 1 Exhibit, # 2 Exhibit)(DiGiacomo, Michael) (Entered: 06/26/2017)
28 NOTICE of Errata re: 27 Notice (Other) by Plaintiff American Civil Liberties Union of Arizona.. (DiGiacomo, Michael) (Entered: 06/27/2017)
29 NOTICE re: Decision in Related Case by United States Customs and Border Protection, United States Department of Homeland Security . (Attachments: # 1 Northern District of Illinois Order)(Patil, Chetan) (Entered: 06/28/2017)
30 NOTICE re: Decision in Related Case by United States Customs and Border Protection, United States Department of Homeland Security . (Attachments: # 1 Southern District of Florida Order)(Patil, Chetan) (Entered: 06/29/2017)
31 NOTICE re: Decision in Related Case by United States Customs and Border Protection, United States Department of Homeland Security . (Attachments: # 1 Northern District of Georgia Order)(Patil, Chetan) (Entered: 07/03/2017)
32 ANSWER to 1 Complaint by United States Customs and Border Protection, United States Department of Homeland Security.(Patil, Chetan) (Entered: 07/10/2017)
33 MDL ORDER DENYING TRANSFER. ORDERED That the Motion for Centralization of these Actions (Listed on Schedule A) is Denied. (MAP) (Entered:

Case: 2:17-cv-1083 As of: 08/14/2020 04:23 PM MST 5 of 8

08/03/2017 08/21/2017 08/30/2017 10/17/2017 10/24/2017
12/13/2017 12/22/2017 01/03/2018 01/03/2018
01/10/2018 01/10/2018 05/21/2018
05/21/2018
05/29/2018 05/31/2018

08/02/2017)
34 ORDER denying as moot Defendants' 18 Motion to Stay. Signed by Judge Diane J Humetewa on 8/3/2017.(LFIG) (Entered: 08/03/2017)
35 NOTICE OF ATTORNEY SUBSTITUTION: Carol Federighi appearing for United States Customs and Border Protection, United States Department of Homeland Security. Attorney Matthew J Berns and Chetan Patil terminated. . (Federighi, Carol) (Entered: 08/21/2017)
36 NOTICE of Appearance by William Bradford Peard on behalf of American Civil Liberties Union of Arizona. (Peard, William) (Entered: 08/30/2017)
37 STIPULATION Setting Deadline to File Joint Status Report by American Civil Liberties Union of Arizona. (Attachments: # 1 Text of Proposed Order)(DiGiacomo, Michael) (Entered: 10/17/2017)
38 ORDER granting the 37 Stipulation. ORDERED that the parties shall file a Joint Status Report on or before January 10, 2018, describing the status of the production of documents responsive to Plaintiff's FOIA request, stating whether dispositive motions will be required, and, if so, setting forth a schedule for such motions. Signed by Judge Diane J Humetewa on 10/24/2017. (LFIG) (Entered: 10/24/2017)
39 MOTION for Order Setting Schedule for Production of Responsive Documents filed by American Civil Liberties Union of Arizona. (Attachments: # 1 Proposed Order)(DiGiacomo, Michael) (Entered: 12/13/2017)
40 STIPULATION re: 39 MOTION for Order Setting Schedule for Production of Responsive Documents filed by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Federighi, Carol) (Entered: 12/22/2017)
41 ORDER approving the parties' 40 Stipulation and Defendants shall have until 1/3/2018 to file their Response to Plaintiff's 39 MOTION for Order Setting Schedule for Production of Responsive Documents. Signed by Judge Diane J Humetewa on 1/3/2018. (LFIG) (Entered: 01/03/2018)
42 RESPONSE to Motion re: 39 MOTION for Order Setting Schedule for Production of Responsive Documents filed filed by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Exhibit A: Howard Declaration, # 2 Exhibit B: Federighi Declaration)(Federighi, Carol) (Entered: 01/03/2018)
43 STATUS REPORT // Joint Status Report by American Civil Liberties Union of Arizona. (DiGiacomo, Michael) (Entered: 01/10/2018)
44 REPLY to Response to Motion re: 39 MOTION for Order Setting Schedule for Production of Responsive Documents filed filed by American Civil Liberties Union of Arizona. (DiGiacomo, Michael) (Entered: 01/10/2018)
45 ORDER: IT IS ORDERED the parties shall file a Joint Status Report by May 28, 2018 regarding the status of the documents produced to date related to the Motion for Discovery Schedule (Doc. 39 ). ORDERED by Judge Diane J Humetewa on 5/21/2018. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) (Entered: 05/21/2018)
46 ORDER that Defendants must SHOW CAUSE in writing on or before Thursday, May 31, 2018, as to the number of pages per month of the documents referenced in the Motion (Doc. 39 ), the Defendants are currently able to produce, and why the Court should not Order Defendants to produce the documents a rate of 1,000 pages per month. Signed by Judge Diane J Humetewa on 5/21/2018. (LFIG) (Entered: 05/21/2018)
47 STATUS REPORT (Joint) by United States Customs and Border Protection, United States Department of Homeland Security. (Federighi, Carol) (Entered: 05/29/2018)
48 RESPONSE TO ORDER TO SHOW CAUSE re: 46 Order to Show Cause by Defendants United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Exhibit Second Howard

Case: 2:17-cv-1083 As of: 08/14/2020 04:23 PM MST 6 of 8

06/05/2018
06/13/2018 06/15/2018 06/15/2018 06/22/2018
06/26/2018 06/29/2018 07/10/2018 07/13/2018 10/18/2018 12/04/2018 12/06/2018 12/26/2018

Declaration)(Federighi, Carol) (Entered: 05/31/2018)
49 *ORDER granting Plaintiff's 39 Motion. ORDERED that Defendants shall produce the remaining documents pursuant to the following schedule: at least 500 pages by June 30, 2018; at least 1,000 pages by August 31, 2018; at least 2,129 pages by October 31, 2018; and all 2,241 pages by November 30, 2018. Signed by Judge Diane J Humetewa on 6/4/2018. (LFIG) *Modified on 6/22/2018 to reflect order is amended in part to clarify the term produce per Doc. 53. (LFIG) (Entered: 06/05/2018)
50 MOTION to Produce Vaughn Index and Memorandum in Support Thereof by American Civil Liberties Union of Arizona. (Attachments: # 1 Text of Proposed Order)(DiGiacomo, Michael) (Entered: 06/13/2018)
51 * MOTION for Clarification re: 49 Order on Motion for Miscellaneous Relief by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Federighi, Carol) *Modified on 6/18/2018 to correct event type (MSA). (Entered: 06/15/2018)
52 *AMENDED MOTION for Clarification re: 49 Order on Motion for Miscellaneous Relief (to Clarify Order) by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Federighi, Carol) *Modified on 6/18/2018 to correct event type (MSA). (Entered: 06/15/2018)
53 ORDER: Upon review, IT IS ORDERED granting Defendants' 52 Amended Motion to Clarify the Court's Order of June 5, 2018. The Court's 49 Order is hereby amended to clarify that Defendants are to "process" rather than "produce" pages in accordance with the timeline described in the 49 Order. The Order remains unaltered in all other respects. ORDERED by Judge Diane J Humetewa on 6/22/2018. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) (Entered: 06/22/2018)
54 RESPONSE in Opposition re: 50 MOTION to Produce Vaughn Index and Memorandum in Support Thereof filed by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Federighi, Carol) (Entered: 06/26/2018)
55 STIPULATION Extending Deadline for Plaintiff to File Reply in Support of Motion for Order Directing Defendants to Produce a Vaughn Index by American Civil Liberties Union of Arizona. (Attachments: # 1 Text of Proposed Order)(DiGiacomo, Michael) (Entered: 06/29/2018)
56 ORDER approving 55 Stipulation and that Plaintiff shall have to and including July 13, 2018 to file its reply in support of the 50 Motion for Order Directing Defendants to Produce a Vaughn Index. Signed by Judge Diane J Humetewa on 7/10/18. (LAD) (Entered: 07/10/2018)
57 REPLY to Response to Motion re: 50 MOTION to Produce Vaughn Index and Memorandum in Support Thereof /Plaintiff's Reply in Support of Motion for Order Directing Defendants to Produce a Vaughn Index filed by American Civil Liberties Union of Arizona. (Attachments: # 1 Exhibit A)(DiGiacomo, Michael) (Entered: 07/13/2018)
58 ORDER denying without prejudice to re−file the 50 Motion for an Order Directing Defendants to Produce a Vaughn Index. Signed by Judge Diane J Humetewa on 10/18/2018. (See Order for details.) (LFIG) (Entered: 10/18/2018)
59 STATUS REPORT by United States Customs and Border Protection, United States Department of Homeland Security. (Federighi, Carol) (Entered: 12/04/2018)
60 ORDER that the parties shall file a Joint Status Report on or before January 4, 2019 stating whether dispositive motions will be required, and, if so, setting forth a schedule for such motions. Signed by Judge Diane J Humetewa on 12/6/2018. (LFIG) (Entered: 12/06/2018)
61 MOTION to Stay re: 60 Order, Set Deadlines by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Federighi, Carol) (Entered: 12/26/2018)

Case: 2:17-cv-1083 As of: 08/14/2020 04:23 PM MST 7 of 8

01/04/2019 01/08/2019
02/08/2019 02/14/2019 03/08/2019 03/11/2019 04/08/2019 04/09/2019 05/08/2019 05/24/2019 06/05/2019 06/06/2019 06/21/2019
06/25/2019 06/26/2019

62 RESPONSE to Motion re: 61 MOTION to Stay re: 60 Order, Set Deadlines /Plaintiff's Response to Defendants' Unopposed Motion For Stay of Due Date to File Joint Status Report in Light of Lapse of Appropriations filed by American Civil Liberties Union of Arizona. (DiGiacomo, Michael) (Entered: 01/04/2019)
63 ORDER granting the 61 Motion to Stay. ORDERED the stay automatically lifts upon restoration of government funding to the Department. IT IS FURTHER ORDERED that within 14 days of restoration of government funding, the parties shall file a joint status report regarding effect of the stay on all pending case deadlines. Signed by Judge Diane J Humetewa on 1/7/2019. (LFIG) (Entered: 01/08/2019)
64 STATUS REPORT (Joint) by United States Customs and Border Protection, United States Department of Homeland Security. (Federighi, Carol) (Entered: 02/08/2019)
65 ORDER the parties shall file a Joint Status Report on or before March 8, 2019. Signed by Judge Diane J Humetewa on 2/13/2019. (LFIG) (Entered: 02/14/2019)
66 STATUS REPORT (Joint) by United States Customs and Border Protection, United States Department of Homeland Security. (Federighi, Carol) (Entered: 03/08/2019)
67 ORDER: Pursuant to the parties' 66 Joint Status Report, IT IS ORDERED the parties shall file a Joint Status Report with the Court on or before 4/8/2019. ORDERED by Judge Diane J Humetewa on 3/11/2019. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) (Entered: 03/11/2019)
68 STATUS REPORT by American Civil Liberties Union of Arizona. (DiGiacomo, Michael) (Entered: 04/08/2019)
69 ORDER that the parties shall have until May 8, 2019, to file an updated Status Report regarding their settlement discussions. ORDERED that a motion for award of attorneys' fees, if necessary, shall be filed no later than May 24, 2019. Signed by Judge Diane J Humetewa on 4/9/2019. (LFIG) (Entered: 04/09/2019)
70 STATUS REPORT (Joint) by United States Customs and Border Protection, United States Department of Homeland Security. (Federighi, Carol) (Entered: 05/08/2019)
71 MOTION for Attorney Fees by American Civil Liberties Union of Arizona. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(DiGiacomo, Michael) (Entered: 05/24/2019)
72 STIPULATION re: 71 MOTION for Attorney Fees Setting Deadline for Defendants to Respond by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Federighi, Carol) (Entered: 06/05/2019)
73 ORDER approving the 72 Stipulation and allowing Defendants up to and including 6/21/2019 to file their Response re: 71 MOTION for Attorney Fees. Signed by Judge Diane J Humetewa on 6/5/2019. (LFIG) (Entered: 06/06/2019)
74 RESPONSE in Opposition re: 71 MOTION for Attorney Fees filed by United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: # 1 Exhibit 1: W.D. Wash. Complaint, # 2 Exhibit 2: E.D. Va. Complaint, # 3 Exhibit 3: Pl's Fees Charts with Reference Row Numbers, # 4 Exhibit 4: Redacted Entries, # 5 Exhibit 5: Attorney Communications, # 6 Exhibit 6: Partner's Hours, # 7 Exhibit 7: Fees for Complaint, # 8 Exhibit 8: Fees for Vaughn Motion, # 9 Exhibit 9: AZ billing rates)(Federighi, Carol) (Entered: 06/21/2019)
75 STIPULATION Stipulation Extending Deadline for Plaintiff to File Reply in Support of Motion for Award of Attorneys' Fees by American Civil Liberties Union of Arizona. (Attachments: # 1 Text of Proposed Order Order)(DiGiacomo, Michael) (Entered: 06/25/2019)
76 ORDER: IT IS ORDERED the parties' 75 Stipulation Extending Deadline for Plaintiff to File Reply in Support of Motion for Attorneys' Fees is approved. Plaintiff shall have until and through July 29, 2019 to file its reply in support of the Motion for Award of Attorneys' Fees. ORDERED by Judge Diane J Humetewa on 6/26/2019. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) (Entered: 06/26/2019)

Case: 2:17-cv-1083 As of: 08/14/2020 04:23 PM MST 8 of 8

07/15/2019 07/15/2019 07/29/2019
03/27/2020
03/31/2020

77 NOTICE of Appearance by Martin Lieberman on behalf of American Civil Liberties Union of Arizona. (Lieberman, Martin) (Entered: 07/15/2019)
78 NOTICE of Attorney Withdrawal Kathleen E. Brody filed by Martin Lieberman. (Lieberman, Martin) (Entered: 07/15/2019)
79 REPLY to Response to Motion re: 71 MOTION for Attorney Fees // Plaintiff's Reply in Support of Motion for Award of Attorneys' Fees filed by American Civil Liberties Union of Arizona. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(DiGiacomo, Michael) (Entered: 07/29/2019)
80 ORDER granting Plaintiff's Motion for Award of Attorneys' Fees Pursuant to 5 U.S.C. § 552(a)(4)(E) (Doc. 71 ) and awarding Plaintiff attorneys' fees in the amount of $76,928.80 and costs in the amount of $400.00. Signed by Judge Diane J Humetewa on 3/27/2020. (See Order for details.) (LFIG) (Entered: 03/27/2020)
81 ORDER: The parties having informed the Court that no other issues remain (Docs. 70 , 71 ), IT IS ORDERED directing the Clerk of Court to close this case. ORDERED by Judge Diane J Humetewa on 3/31/2020. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (LFIG) (Entered: 03/31/2020)