U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−02080−TSC

TYPE I−FOIA

MUSLIM ADVOCATES et al v. UNITED STATES DEPARTMENT OF STATE et al Assigned to: Judge Tanya S. Chutkan Case: 1:18−cv−01546−TSC Cause: 05:552 Freedom of Information Act
Plaintiff

Date Filed: 10/05/2017 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

MUSLIM ADVOCATES

represented by David J. Weiner ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave, NW Washington, DC 20001 (202) 942−6702 Fax: (202) 942−5999 Email: david.weiner@apks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nimra H. Azmi MUSLIM ADVOCATES P.O. Box 34440 Washington, DC 20043 202−897−2564 Email: nimra@muslimadvocates.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard B. Katskee AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Legal Department 1310 L Street, NW Suite 200 Washington, DC 20005 (202) 466−7304 Fax: (202) 898−0958 Email: katskee@au.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Johnathan James Smith MUSLIM ADVOCATES P.O. Box 34440 Washington, DC 20043 (202) 897−1897 Fax: (202) 508−1007 Email: johnathan@muslimadvocates.org TERMINATED: 02/01/2019

Sirine Shebaya NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 2201 Wisconsin Ave NW Suite 200 Washington, DC 20007 202−656−4788 Email: sirine@nipnlg.org

Plaintiff AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE
Plaintiff SOUTHERN POVERTY LAW CENTER
V. Defendant UNITED STATES DEPARTMENT OF STATE
Defendant UNITED STATES DEPARTMENT OF HOMELAND SECURITY

TERMINATED: 08/16/2019
represented by David J. Weiner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard B. Katskee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) TERMINATED: 08/16/2019
represented by David J. Weiner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard B. Katskee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sirine Shebaya (See above for address) TERMINATED: 08/16/2019
represented by Dena Michal Roth U.S. DEPARTMENT OF JUSTICE Civil Division/Federal Programs Branch 1100 L Street NW Room 11204 Washington, DC 20005 (202) 514−5108 Email: dena.m.roth@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deepthy Kishore U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20530 (202) 616−4448 Fax: (202) 616−8470 Email: deepthy.c.kishore@usdoj.gov TERMINATED: 07/11/2018
represented by Dena Michal Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
UNITED STATES CUSTOMS AND BORDER PROTECTION

Deepthy Kishore (See above for address) TERMINATED: 07/11/2018
represented by Dena Michal Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deepthy Kishore (See above for address) TERMINATED: 07/11/2018

Date Filed 10/05/2017
10/05/2017 10/06/2017 10/06/2017 11/27/2017 12/01/2017
12/01/2017
12/22/2017
12/26/2017 12/27/2017

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants (Filing fee $ 400) filed by MUSLIM ADVOCATES, SOUTHERN POVERTY LAW CENTER, AMERICANS UNITED FOR SEPARATION OF CHURCH. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Civil Cover Sheet, # 6 Summons DEPT OF STATE, # 7 Summons DEPT OF HOMELAND SECURITY, # 8 Summons CUSTOM AND BOARDER PROTECTION, # 9 Summons DOJ, # 10 Summons US ATTORNEY'S OFFICE)(Weiner, David) (Entered: 10/05/2017)
2 Corporate Disclosure Statement by AMERICANS UNITED FOR SEPARATION OF CHURCH, MUSLIM ADVOCATES, SOUTHERN POVERTY LAW CENTER. (Weiner, David) (Entered: 10/05/2017)
Case Assigned to Judge Tanya S. Chutkan. (zsb) (Entered: 10/06/2017)
3 SUMMONS (5) Issued Electronically as to CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zsb) (Entered: 10/06/2017)
4 NOTICE of Appearance by Richard B. Katskee on behalf of All Plaintiffs (Katskee, Richard) (Entered: 11/27/2017)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES CUSTOMS AND BORDER PROTECTION served on 11/28/2017; UNITED STATES DEPARTMENT OF HOMELAND SECURITY served on 11/28/2017; UNITED STATES DEPARTMENT OF STATE served on 11/28/2017. (Weiner, David) Modified on 12/4/2017 (znmw). (Entered: 12/01/2017)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 11/28/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 12/28/2017.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 11/28/2017. (See Docket Entry 5 to view document). (znmw) (Entered: 12/04/2017)
7 Unopposed MOTION for Extension of Time to Respond to Complaint by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Kishore, Deepthy) (Entered: 12/22/2017)
MINUTE ORDER: Granting 7 Unopposed Motion for Extension of Time to File Answer. Defendant shall answer or otherwise respond to the complaint by January 26, 2018. Signed by Judge Tanya S. Chutkan on 12/26/17. (DJS) (Entered: 12/26/2017)
Set/Reset Deadlines: Defendants' answer or otherwise response to the Complaint is now due by 1/26/2018. (jth) (Entered: 12/27/2017)

01/26/2018 01/27/2018
01/28/2018 01/29/2018 02/02/2018 02/20/2018 02/26/2018
02/27/2018 04/15/2018 04/20/2018 04/23/2018 06/03/2018 07/11/2018 08/14/2018 08/17/2018

8 ANSWER to 1 Complaint by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE.(Kishore, Deepthy) Modified to add link on 1/29/2018 (znmw). (Entered: 01/26/2018)
MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. The requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil procedure appear to be inapplicable. IT IS HEREBY ORDERED that the parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule shall address the status of Plaintiffs' FOIA request, the anticipated number of documents responsive to Plaintiffs' FOIA request, the anticipated date(s) for release of the documents requested by Plaintiffs, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when either party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a joint status report that addresses these issues and that contains a proposed schedule and proposed order not later than 2/20/18. Signed by Judge Tanya S. Chutkan on 1/27/18. (DJS) (Entered: 01/27/2018)
Set/Reset Deadlines: The parties shall file a Joint Status Report that contains a proposed schedule and proposed order by 2/20/18. (jth) (Entered: 01/28/2018)
9 NOTICE of Appearance by Sirine Shebaya on behalf of All Plaintiffs (Shebaya, Sirine) (Entered: 01/29/2018)
10 NOTICE of Appearance by Johnathan James Smith on behalf of MUSLIM ADVOCATES (Smith, Johnathan) (Entered: 02/02/2018)
11 Joint STATUS REPORT by AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, MUSLIM ADVOCATES, SOUTHERN POVERTY LAW CENTER. (Weiner, David) (Entered: 02/20/2018)
MINUTE ORDER: Having considered the parties' Joint Status Report, it is hereby ordered that the parties shall file another report by April 15, 2018. The parties are reminded that all reports shall be accompanied by a proposed order, unless the court enters an order to the contrary. Signed by Judge Tanya S. Chutkan on 2/26/18. (DJS) (Entered: 02/26/2018)
Set/Reset Deadlines: Status Report due by 4/15/2018. (tb) (Entered: 02/27/2018)
12 Joint STATUS REPORT by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Kishore, Deepthy) (Entered: 04/15/2018)
MINUTE ORDER: Having considered the parties' joint status report 12 , it is hereby ordered that the parties shall file another joint status report and proposed order by June 3, 2018. Signed by Judge Tanya S. Chutkan on 4/20/18. (DJS) (Entered: 04/20/2018)
Set/Reset Deadlines: Joint Status Report and proposed order due by 6/3/2018.(tb) (Entered: 04/23/2018)
13 STATUS REPORT Third Joint Report by AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, MUSLIM ADVOCATES, SOUTHERN POVERTY LAW CENTER. (Weiner, David) (Entered: 06/03/2018)
14 NOTICE OF SUBSTITUTION OF COUNSEL by Dena Michal Roth on behalf of All Defendants Substituting for attorney Deepthy Kishore (Roth, Dena) (Entered: 07/11/2018)
15 Joint STATUS REPORT (Fourth) by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE. (Roth, Dena) (Entered: 08/14/2018)
MINUTE ORDER: Having considered the parties' Joint Status Report 15 , a Status Conference is hereby set for 10/5/18 at 2:30 pm in Courtroom 9. The parties shall file another joint report by 9/28/18, along with a PROPOSED ORDER. At that time, if both parties agree that the status conference is unnecessary, the court will cancel the conference. Signed by Judge Tanya S. Chutkan on 8/17/18. (DJS) (Entered: 08/17/2018)

08/17/2018 08/20/2018 08/20/2018 09/27/2018 09/28/2018
10/03/2018
10/04/2018 10/26/2018
10/29/2018
10/30/2018 11/29/2018 01/28/2019
01/28/2019
01/29/2019 02/01/2019 02/04/2019 04/05/2019

Set/Reset Deadlines/Hearings: Joint Status Report due by 9/28/2018. Status Conference set for 10/5/2018 at 02:30 PM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 08/17/2018)
16 NOTICE of Change of Address by Johnathan James Smith (Smith, Johnathan) (Entered: 08/20/2018)
17 NOTICE of Change of Address by Sirine Shebaya (Shebaya, Sirine) (Entered: 08/20/2018)
18 NOTICE of Change of Address by Dena Michal Roth (Roth, Dena) (Entered: 09/27/2018)
19 Joint STATUS REPORT (Fifth) by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Roth, Dena) (Entered: 09/28/2018)
MINUTE ORDER: Having considered the parties' joint status report 19 , it is hereby ordered that the status conference previously set for October 5, 2018 is hereby VACATED. The parties shall file another joint status report and proposed order by October 26, 2018. Signed by Judge Tanya S. Chutkan on 10/3/18. (DJS) (Entered: 10/03/2018)
Set/Reset Deadlines: Joint Status Report due by 10/26/2018. (tb) (Entered: 10/04/2018)
20 Joint STATUS REPORT by AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, MUSLIM ADVOCATES, SOUTHERN POVERTY LAW CENTER. (Attachments: # 1 Text of Proposed Order)(Weiner, David) (Entered: 10/26/2018)
MINUTE ORDER: Having considered the parties' joint status report 20 , it is hereby ordered that the parties shall file another joint report by 11/29/18 and every 60 days thereafter. To the extent the parties propose a briefing schedule, the report shall include a proposed order. Signed by Judge Tanya S. Chutkan on 10/29/18. (DJS) (Entered: 10/29/2018)
Set/Reset Deadlines: Joint Status Report due by 11/29/2018. (tb) (Entered: 10/30/2018)
21 Joint STATUS REPORT (Seventh) by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE. (Roth, Dena) (Entered: 11/29/2018)
22 Unopposed MOTION for Extension of Time to file Joint Status Report by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE (Roth, Dena) (Entered: 01/28/2019)
MINUTE ORDER: Granting 22 Motion for Extension of Deadlines. Joint Status report due February 4, 2019 and every 60 days thereafter. To the extent the parties propose a briefing schedule, the report shall include a proposed order. Signed by Judge Tanya S. Chutkan on 1/28/19. (DJS) (Entered: 01/28/2019)
Set/Reset Deadlines: Joint Status report due 2/4/2019 and every 60 days thereafter. To the extent the parties propose a briefing schedule, the report shall include a proposed order. (jth) (Entered: 01/29/2019)
23 NOTICE OF WITHDRAWAL OF APPEARANCE as to MUSLIM ADVOCATES, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE. Attorney Johnathan James Smith terminated. (Smith, Johnathan) . (Entered: 02/01/2019)
24 Joint STATUS REPORT (Eighth) by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE. (Roth, Dena) (Entered: 02/04/2019)
25 Joint STATUS REPORT (Ninth) by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

06/04/2019 08/05/2019 08/16/2019 10/02/2019
10/03/2019 10/21/2019 12/03/2019 01/27/2020 02/03/2020 04/03/2020 04/16/2020
06/02/2020

UNITED STATES DEPARTMENT OF STATE. (Roth, Dena) (Entered: 04/05/2019)
26 Joint STATUS REPORT (Tenth) by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE. (Roth, Dena) (Entered: 06/04/2019)
27 Joint STATUS REPORT (Eleventh) by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE. (Roth, Dena) (Entered: 08/05/2019)
28 NOTICE OF WITHDRAWAL OF APPEARANCE as to MUSLIM ADVOCATES. Attorney Sirine Shebaya terminated. (Shebaya, Sirine) (Entered: 08/16/2019)
29 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Nimra H. Azmi, :Firm− Muslim Advocates, :Address− P.O. Box 34440, Washington, D.C. 20043. Phone No. − 202−897−2564. Filing fee $ 100, receipt number 0090−6412513. Fee Status: Fee Paid. by MUSLIM ADVOCATES (Attachments: # 1 Declaration Declaration of Nimra H. Azmi, # 2 Text of Proposed Order Proposed Order)(Katskee, Richard) (Entered: 10/02/2019)
30 Joint STATUS REPORT by AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, MUSLIM ADVOCATES, SOUTHERN POVERTY LAW CENTER. (Weiner, David) (Entered: 10/03/2019)
MINUTE ORDER: Because movant Nimra H. Azmi has been admitted pro hac vice to this court eight times in the last two years, the court hereby holds her motion 29 for pro hac in abeyance, pending submission of her application for admission to this court. Signed by Judge Tanya S. Chutkan on 10/21/19. (DJS) (Entered: 10/21/2019)
31 Joint STATUS REPORT (Thirteenth) by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE. (Roth, Dena) (Entered: 12/03/2019)
32 NOTICE of Appearance by Nimra H. Azmi on behalf of MUSLIM ADVOCATES (Azmi, Nimra) (Entered: 01/27/2020)
33 Joint STATUS REPORT (Fourteenth) by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE. (Roth, Dena) (Entered: 02/03/2020)
34 Joint STATUS REPORT (15th) by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE. (Roth, Dena) (Entered: 04/03/2020)
MINUTE ORDER: Having considered the parties' joint status report 34 , it is hereby ordered that the parties shall continue filing status reports every 60 days, except that going forward the government shall explain any inability or limitation on processing records and shall provide a supporting affidavit. Prior to filing the report, the parties shall confer in good faith and include in the report, the Plaintiffs' position with respect to the government's affidavit. Signed by Judge Tanya S. Chutkan on 4/16/2020. (DJS) (Entered: 04/16/2020)
35 Joint STATUS REPORT (16th) by UNITED STATES CUSTOMS AND BORDER PROTECTION, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF STATE. (Attachments: # 1 Declaration)(Roth, Dena) (Entered: 06/02/2020)

 
 Case 1:17-cv-02080-TSC Document 1 Filed 10/05/17 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MUSLIM ADVOCATES P.O. Box 66408 Washington, DC 20035
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE 1310 L Street NW, Suite 200 Washington, DC 20005
and
SOUTHERN POVERTY LAW CENTER, 400 Washington Avenue Montgomery, AL 36104
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF STATE 2201 C Street NW Washington, DC 20530
UNITED STATES DEPARTMENT OF HOMELAND SECURITY 3801 Nebraska Avenue NW Washington, DC 20016
and
UNITED STATES CUSTOMS AND BORDER PROTECTION 1300 Pennsylvania Avenue NW Washington, DC 20004
Defendants.

Civil Action No. _______________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:17-cv-02080-TSC Document 1 Filed 10/05/17 Page 2 of 13
1. Plaintiffs Muslim Advocates, Americans United for Separation of Church and State (“Americans United”), and Southern Poverty Law Center (“SPLC,” and collectively with Americans United and Muslim Advocates, “Plaintiffs”) bring this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., for declaratory, injunctive, and other appropriate relief to compel the disclosure and release of documents from Defendants U.S. Department of State, U.S. Department of Homeland Security (“DHS”), and DHS’s component agency, U.S. Customs and Border Protection (“CBP,” and collectively with Department of State and DHS, “Defendants”).
2. On June 27, 2017, Plaintiffs submitted a FOIA request (the “Request”) to Defendants seeking specific information related to the waiver provisions of Executive Order 13,780 (the “Second Executive Order,” which was issued on March 6, 2017) allowing the Commissioner of CBP to determine on a case-by-case basis whether a national from one of the six majorityMuslim countries identified in the Second Executive Order may gain entry into the country. These documents and information are critical to Plaintiffs’ ability to assist and advise affected travelers, and to understand the scope of the Second Executive Order’s waiver provision and the extent to which the government has implemented or is implementing its policies in a discriminatory or unconstitutional manner.
3. To date, Defendants have failed to produce a single document or any substantive response to the Request. In short, Defendants have wholly failed to comply with their obligations under FOIA. Plaintiffs file this lawsuit to compel the production of the documents and information they seek.
JURISDICTION AND VENUE
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4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1346. This Court also has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B).
5. Venue is proper in this District pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e). Venue is proper because a substantial portion of the events giving rise to this action occurred in this District, and because Defendants maintain in this District records and information subject to the Request.
PARTIES 6. Plaintiff Muslim Advocates is a not-for-profit corporation that works to ensure civil rights for Americans of all faiths through national legal advocacy, policy engagement, and civic education. Muslim Advocates submitted the Request that is the subject of this action and is a “person” within the meaning of 5 U.S.C. § 551(2). 7. Plaintiff Americans United is a nonprofit educational and advocacy organization dedicated to advancing the constitutional principle of separation of church and state as the only way to ensure freedom of religion for all Americans. Americans United submitted the Request that is the subject of this action and is a “person” within the meaning of 5 U.S.C. § 551(2). 8. Plaintiff SPLC is a non-profit organization dedicated to fighting hate and bigotry and to seeking justice for the most vulnerable members of our society. Through the use of public education, litigation, and other forms of advocacy, SPLC works toward a vision of equal justice and equal opportunity. SPLC has a longstanding commitment to defending the rights of immigrants, and it provides free legal representation to immigrants who have suffered violations of their civil rights. SPLC submitted the Request that is the subject of this action and is a “person” within the meaning of 5 U.S.C. § 551(2).
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9. Defendant Department of State is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). Department of State is the executive department responsible for international relations and is an agency of the United States. Department of State has possession of and control over the documents and information requested by Plaintiffs under FOIA.
10. Defendant DHS is an “agency” within the meaning of 5 U.S.C. § 552(f)(1). DHS is the executive department responsible for enforcing federal immigration laws and is an agency of the United States. DHS has possession of and control over the documents and information requested by Plaintiffs under FOIA.
11. Defendant CBP is a component agency of DHS and an “agency” within the meaning of 5 U.S.C. § 552(f)(1). CBP is the component agency of DHS responsible for the management and control of the United States’ borders. CBP has possession of and control over the documents and information requested by Plaintiffs under FOIA.
STATUTORY BACKGROUND 12. Any member of the public may request records from an agency of the United States under FOIA. An agency that receives a FOIA request must respond in writing to the requestor within 20 business days after receipt of the request. 5 U.S.C. § 552(a)(6)(A)(i). In its response, the agency must: inform the requestor as to whether it intends to comply with the request; provide reasons for its determination; and inform the requestor of his or her right to appeal the determination. FOIA provides for an extension of this deadline “[i]n unusual circumstances” but limits this extension to “ten working days.” 5 U.S.C. § 552(a)(6)(B)(i). 13. A FOIA requestor is deemed to have exhausted all administrative remedies if the agency fails to comply with the request within statutory time limits. 5 U.S.C. § 552(a)(6)(C)(i). 14. FOIA requires an agency to disclose in a timely manner, in response to a FOIA request, all records that do not fall within nine narrowly construed statutory exemptions. 5 U.S.C. § 552
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(a)(3)(A); 5 U.S.C. § 552(b)(1)-(9). FOIA also requires an agency to make a reasonable search for responsive records. 5 U.S.C. § 552(a)(3)(C).
15. Upon a requestor’s complaint, a district court has jurisdiction to enjoin an agency from withholding records and to order production of records subject to disclosure. 5 U.S.C. § 552(a)(4)(B).
FACTUAL BACKGROUND 16. On January 27, 2017, President Donald Trump issued Executive Order 13,769 (the “First Executive Order”), barring persons from seven majority-Muslim countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen— from entering the United States for 90 days, indefinitely blocking refugees from Syria from entering the United States, and prohibiting all refugees from entering the United States for 120 days. 17. On March 6, 2017, President Trump issued the Second Executive Order, which was to take effect on March 16, 2017. The Second Executive Order replaced the First Executive Order, and continued its general bar to entry into the United States of persons on new visas from six majority-Muslim countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days. Exec. Order No. 13,780 § 2(c). The Second Executive Order also reinstated the prohibition on all refugees entering the United States for 120 days, and it contained increased vetting procedures for Iraqis and a requirement that the Secretary of Homeland Security review current policies to “determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States.” Id. at § 6(a). 18. The Second Executive Order also empowers the Commissioner of CBP or his designee, with oversight from the Secretary of Homeland Security, to grant case-by-case waivers for certain individuals for whom entry into the United States would otherwise be suspended as a
5

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result of the Second Executive Order. Id. § 3(c). The First Executive Order similarly empowered the Commissioner or his designee to grant such waivers.
19. Courts entered nationwide injunctions of sections 2(c) and 6(a) of the Second Executive Order.1 On June 26, 2017, the Supreme Court narrowed the scope of those injunctions, allowing implementation of sections 2(c) and 6(a) of the Second Executive Order as to persons who do not have any credible claim of a bona fide connection to persons or institutions in the United States.2
20. On September 24, 2017, President Trump issued a Presidential Proclamation entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” Among other things, the September 24, 2017 Proclamation put in place an indefinite bar to entry for most nationals of Iran, Libya, Somalia, Syria, and Yemen. See Presidential Proclamation, Sept. 24, 2017 §§ 1(h)(ii); 2. The Proclamation also added two countries to the list of countries whose nationals are subject to general restrictions on entry: Chad and North Korea, see id. §§ 2(a), (d), and imposed restrictions on entry of government officials from Venezuela. See id. §§ 1(h)(ii); 2(f).
21. The September 24, 2017 Proclamation provides for a waiver process nearly identical to the waiver process under the Second Executive Order. The Proclamation, like the Second Executive Order, permits consular officers to grant waivers on a “case-by-case” basis to allow entry of foreign nationals otherwise banned by the Proclamation. See id. § 3(c). Information
1 Hawaii v. Trump, No. 17-00050 DKW-KSC, 2017 WL 1167383 (D. Haw. Mar. 29, 2017) (enjoining sections 2 and 6), aff’d in substantial part, 859 F.3d 741 (9th Cir. 2017); Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) (enjoining section 2(c)), aff’d in substantial part, 857 F.3d 554 (4th Cir. 2017).
2 Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088-89 (2017).
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about the implementation of the waiver process is critical to Plaintiffs’ ability to advise and assist travelers who may be affected by the Second Executive Order or the Proclamation.
PLAINTIFFS’ FOIA REQUEST 22. On June 27, Plaintiffs submitted the Request to Defendants and sought expedited review and a fee waiver.3 The Request seeks records created on or after January 27, 2017, concerning interpretation, enforcement, or implementation of the waiver provisions of the Second Executive Order by DHS, CPB, the Department of State, or any component agency of the federal government, including, but not limited to:
a. Policies, practices, and procedures that went into effect on or after January 27, 2017, relating to criteria for evaluating individual waiver requests;
b. Policies, practices, and procedures that went into effect on or after January 27, 2017, concerning the manner in which officers should determine when an individual’s waiver request should be granted;
c. Internal guidance on how to assess when denying an individual’s entry “would cause undue hardship” or when “his or her entry would not pose a threat to national security and would be in the national interest”;
d. The processes for accepting and adjudicating waiver requests; e. The person or office to whom waiver requests should be directed; f. The number of waiver requests received by the Department of State, CBP,
DHS, or any other component agency of DHS; g. The number of waiver requests granted by the Department of State, CBP,
DHS, or any other component agency of DHS, and the reasoning for the grants; h. The number of waiver requests denied by the Department of State, CBP, DHS, or any other component agency of DHS, and the reasoning for the denials;
3 A copy of the Request is attached hereto as Exhibit A.
7

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i. Any guidance provided to CBP, DHS, or Department of State field personnel regarding the waiver provisions of the Second Executive Order;4 and
j. Any memoranda providing guidance for the Department of State, CBP, DHS, or any other component agency of DHS on enforcement of the waiver provisions of the Second Executive Order in light of federal court decisions granting preliminary injunctions against the implementation of the Executive Order.
AGENCY RESPONSE AND EXHAUSTION OF ADMINISTRATIVE REMEDIES
23. On July 12, 2017, in a letter sent by email (“DHS Letter”),5 Defendant DHS acknowledged that it had received the Request on July 5, 2017, and granted Plaintiffs’ request for expedited review and a fee waiver.
24. In the DHS Letter, DHS invoked a 10-day extension beyond the usual 20-day statutory limit to respond to the Request pursuant to 5 § U.S.C. 552(a)(6) and 6 C.F.R. Part 5 § 5.5(c).
25. With the 10-day extension, DHS was required to respond to the Request on or before August 4, 2017.
26. To date, Plaintiffs have received no records responsive to the Request or any substantive response to the Request from DHS.
27. To date, Plaintiffs have received no correspondence from DHS since the July 12, 2017 DHS Letter.
28. On July 11, 2017, in a letter sent by email (“CBP Letter”), Defendant CBP acknowledged that it had received the Request on July 10, 2017. 6
4 See Q&A: Protecting the Nation from Foreign Terrorist Entry to the United States, U.S. Dep’t of Homeland Security (Mar. 6, 2017), https://www.dhs.gov/news/2017/03/06/qaprotecting-nation-foreign-terrorist-entry-united-states (“CPB has and will continue to issue any needed guidance to the field with respect to this Executive Order.”).
5 A copy of the DHS Letter is attached hereto as Exhibit B.
8

Case 1:17-cv-02080-TSC Document 1 Filed 10/05/17 Page 9 of 13
29. The CBP Letter neither granted nor denied Plaintiffs’ request for expedited review. 30. The CBP Letter did not address Plaintiffs’ request for a fee waiver, but did state that CBP “shall charge [Plaintiffs] for records in accordance with the DHS FOIA regulations outlined on the DHS website[,]” that “[b]y submitting [the Request, Plaintiffs] have agreed to pay up to $25.00 in applicable processing fees,” and that “the first 100 pages are free.” 31. The CBP Letter stated that FOIA “does permit” a 10-day extension of the 20-day time period to respond to requests, but did not invoke any extension. The CBP Letter advised that “[c]urrently the average time to process a FOIA request related to ‘travel/border incidents’ is a minimum of 3-6 months” but did not advise whether this amount of time would be required to respond to the Request or why Plaintiffs’ request for records relating to the waiver process under the Second Executive Order would be subject to any processing period for requests related to “travel/border incidents.” 32. Without the 10-day extension, CBP was required to respond to the Request on or before August 7, 2017. With the 10-day extension, CBP was required to respond to the Request on or before August 21, 2017. 33. To date, Plaintiffs have received no records responsive to the Request or any substantive response to the Request from CBP. 34. To date, Plaintiffs have received no correspondence from CBP since the July 11, 2017 CBP Letter.
(footnote continued from previous page) 6 A copy of the CBP Letter is attached hereto as Exhibit B.
9

Case 1:17-cv-02080-TSC Document 1 Filed 10/05/17 Page 10 of 13
35. On August 30, 2017, Plaintiffs received a letter sent by email (“State Department Letter”), from Defendant Department of State, acknowledging that it had received the Request on August 18, 2017.7
36. The State Department Letter granted Plaintiffs’ request for a fee waiver. 37. The State Department Letter denied Plaintiffs’ request for expedited review. 38. The State Department Letter provided no explanation of when Plaintiffs would receive a response to the Request. Rather, the State Department Letter stated only that “[u]nusual circumstances (including the number and location of Department components involved in responding to [the R]equest, the volume of requested records, etc.) may arise that would require additional time to process [the R]equest[,]” and that Department of State “will notify [Plaintiffs] as soon as responsive material has been retrieved and reviewed.” 39. The State Department Letter neither mentioned nor invoked the 10-day extension to respond to the Request. 40. Without a 10-day extension, Department of State was required to respond to the Request by September 18, 2017. 41. With a 10-day extension, Department of State was required to respond to the Request by October 2, 2017. 42. To date, Plaintiffs have received no records responsive to the Request nor any substantive response to the Request from the Department of State. 43. To date, Plaintiffs have received no correspondence from Department of State since the August 30, 2017 State Department Letter.
7 A copy of the State Department Letter is attached hereto as Exhibit D.
10

Case 1:17-cv-02080-TSC Document 1 Filed 10/05/17 Page 11 of 13
44. Defendants have not made available any records responsive to the Request or provided any substantive response to the Request.
45. Because Defendants have failed to comply with the FOIA time-limit provision, Plaintiffs are deemed to have exhausted their administrative remedies under 5 U.S.C. § 552(a)(6)(C)(i).
CAUSE OF ACTION: VIOLATION OF THE FREEDOM OF INFORMATION ACT 46. Defendants have violated 5 U.S.C. § 552(a)(6)(A)-(B) and applicable regulations promulgated thereunder by failing to determine whether to comply with Plaintiffs’ Request within 30 days. 47. Defendants have violated 5 U.S.C. § 552(a)(3)(A) by failing to promptly release agency records in response to Plaintiffs’ Request. 48. Defendants have violated 5 U.S.C. § 552(a)(3)(C)-(D) by failing to make reasonable efforts to search for records responsive to Plaintiffs’ Request. 49. Injunctive relief is authorized under 5 U.S.C. § 552(a)(4)(B) because Defendants continue to improperly withhold agency records in violation of FOIA. Plaintiffs will suffer irreparable injury from, and have no adequate remedy for, Defendants’ illegal withholding of government documents subject to Plaintiffs’ Request. 50. Declaratory relief is authorized under 28 U.S.C. § 2201 because an actual and justiciable controversy exists regarding Defendants’ improper withholding of agency records in violation of FOIA.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs Muslim Advocates, Americans United, and SPLC respectfully request that judgment be entered against Defendants and that this Court:
11

Case 1:17-cv-02080-TSC Document 1 Filed 10/05/17 Page 12 of 13
A. Declare that Defendants violated FOIA by failing to determine whether to comply with the Request within 30 business days and by failing to notify Plaintiffs immediately thereafter of such determination and the reasons therefor;
B. Declare that Defendants violated FOIA by unlawfully withholding the requested records; C. Order Defendants to disclose the requested records to the public immediately and to
make copies immediately available to Plaintiffs; D. Award Plaintiffs their reasonable costs and attorneys’ fees pursuant to 5 U.S.C. §
552(a)(4)(E); and E. Grant such other and further relief as this Court may deem just and proper. Dated: October 5, 2017 Respectfully submitted,
12

Case 1:17-cv-02080-TSC Document 1 Filed 10/05/17 Page 13 of 13

/s/ David J. Weiner David J. Weiner (D.C. Bar # 499806) Charles A. Blanchard (D.C. Bar # 1022256) Danielle Pingue (D.C. Bar # 1047971)* ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) david.weiner@apks.com charles.blanchard@apks.com danielle.pingue@apks.com * application for admission forthcoming
Emily Newhouse Dillingham* ARNOLD & PORTER
KAYE SCHOLER LLP 70 West Madison Street Chicago, IL 60602 (312) 583-2300 (312) 583-2360 (fax) emily.dillingham@apks.com * application for admission pending
Andrew D. Bergman* ARNOLD & PORTER
KAYE SCHOLER LLP 700 Louisiana Street, Suite 4000 Houston, TX 77002 (713) 576-2430 (713) 576-2499 (fax) andrew.bergman@apks.com * application for admission forthcoming

Johnathan Smith (D.C. Bar # 1029373) Sirine Shebaya (D.C. Bar # 1019748) MUSLIM ADVOCATES P.O. Box 66408 Washington, DC 20035 (202) 897-2622 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskee (D.C. Bar # 474250) Eric Rothschild (D.C. Bar # forthcoming)* AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE 1310 L Street, NW, Suite 200 Washington, DC 20005 (202) 466-3234 (202) 466-3353 (fax) katskee@au.org rothschild@au.org * application for admission forthcoming

13

 
 Case 1:17-cv-02080-TSC Document 11 Filed 02/20/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

MUSLIM ADVOCATES, AMERICANS )

UNITED FOR SEPARATION OF

)

CHURCH AND STATE, and

)

SOUTHERN POVERTY LAW CENTER, )

)

Plaintiffs,

)

)

v.

)

No. 1:17-cv-02080-TSC

)

U.S. DEPARTMENT OF STATE,

)

Hon. Tanya S. Chutkan

U.S. DEPARTMENT OF HOMELAND )

SECURITY, and

)

U.S. CUSTOMS AND BORDER

)

PROTECTION,

)

)

Defendants.

)

____________________________________)

JOINT STATUS REPORT

The parties respectfully submit this Joint Status Report pursuant to the Court’s order of

January 27, 2018. The parties have met and conferred, and they report as follows:

1. Plaintiffs initiated this action under the Freedom of Information Act (“FOIA”) on

October 5, 2017. (ECF No. 1). The complaint alleges that this action involves FOIA requests

dated June 27, 2017, and submitted to the United States Department of State (“DOS”), United

States Department of Homeland Security (“DHS”), and United States Customs and Border

Protection (“CBP”) (collectively, “Defendants”). Defendants answered the complaint on January

26, 2018. (ECF No. 8).

– 1 –

Case 1:17-cv-02080-TSC Document 11 Filed 02/20/18 Page 2 of 5
2. Defendants have informed Plaintiffs that DOS, DHS, and CBP have initiated searches for records responsive to Plaintiffs’ FOIA requests, and each will need additional time to conclude the searches. Because the searches are ongoing, and because the potentially responsive records are not located in one central repository, Defendants are currently unable to determine the total number of documents that are responsive to Plaintiffs’ FOIA requests, and are thus unable to estimate the dates on which they will be able to complete their production of responsive, non-exempt records to Plaintiffs. However, based on the results of its review to date, Defendant anticipates that it will be able to release responsive, non-exempt records to Plaintiff on a rolling basis, with a first production likely to occur by March 23, 2018.
3. At this time, Defendants do not plan to seek an Open America stay. 4. Given that Defendants are in the process of searching for documents responsive to Plaintiffs’ FOIA requests, and thus, have not yet completed their responses to Plaintiffs’ FOIA requests, Defendants believe it is too early to determine whether they will need to prepare Vaughn indices. Plaintiffs anticipate that, once document production begins, they will request a Vaughn index in order to properly assess the basis for Defendants’ withholding of responsive documents. Further, the parties believe it is premature to propose a schedule for the filing of dispositive motions. 5. The parties instead propose that they file with the Court a Second Joint Status Report on April 15, 2018, in which Defendants will provide the Court with an update on the status of Defendants’ searches for responsive documents, and the parties will provide further information responsive to the Court’s January 27 Order.
– 2 –

Case 1:17-cv-02080-TSC Document 11 Filed 02/20/18 Page 3 of 5

6. Plaintiffs separately state as follows: While the Defendants state that they cannot estimate the completion date for production until after they have completed their searches, the Plaintiffs believe that a completion date of June 1, 2018 gives the Defendants sufficient time to meet their legal obligations under FOIA.

Dated: February 20, 2018

Respectfully submitted,
/s/ David J. Weiner David J. Weiner (D.C. Bar # 499806) Charles A. Blanchard (D.C. Bar # 1022256) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) david.weiner@apks.com charles.blanchard@apks.com

– 3 –

Case 1:17-cv-02080-TSC Document 11 Filed 02/20/18 Page 4 of 5
Emily Newhouse Dillingham ARNOLD & PORTER
KAYE SCHOLER LLP 70 West Madison Street Chicago, IL 60602 (312) 583-2300 (312) 583-2360 (fax) emily.dillingham@apks.com
Andrew D. Bergman (D.D.C. Bar # TX0147) ARNOLD & PORTER
KAYE SCHOLER LLP 700 Louisiana Street, Suite 4000 Houston, TX 77002 (713) 576-2400 (713) 576-2499 (fax) andrew.bergman@apks.com
Johnathan Smith (D.C. Bar # 1029373) Sirine Shebaya (D.C. Bar # 1019748) MUSLIM ADVOCATES P.O. Box 66408 Washington, DC 20035 (202) 897-2622 johnathan@muslimadvocates.org sirine@muslimadvocates.org
Richard B. Katskee (D.C. Bar # 474250) AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE 1310 L Street, NW, Suite 200 Washington, DC 20005 (202) 466-3234 (202) 466-3353 (fax) katskee@au.org
Counsel for Plaintiffs
– 4 –

Case 1:17-cv-02080-TSC Document 11 Filed 02/20/18 Page 5 of 5
CHAD A. READLER Acting Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Branch Director /s/ Deepthy Kishore DEEPTHY KISHORE Trial Attorney (IL Bar No. 6306338) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Telephone: (202) 616-4448 Fax: (202) 616-8470 deepthy.c.kishore@usdoj.gov Counsel for Defendants
– 5 –

 
 Case 1:17-cv-02080-TSC Document 12 Filed 04/15/18 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

MUSLIM ADVOCATES, AMERICANS )

UNITED FOR SEPARATION OF

)

CHURCH AND STATE, and

)

SOUTHERN POVERTY LAW CENTER, )

)

Plaintiffs,

)

)

v.

)

No. 1:17-cv-02080-TSC

)

U.S. DEPARTMENT OF STATE,

)

Hon. Tanya S. Chutkan

U.S. DEPARTMENT OF HOMELAND )

SECURITY, and

)

U.S. CUSTOMS AND BORDER

)

PROTECTION,

)

)

Defendants.

)

____________________________________)

JOINT STATUS REPORT

The parties respectfully submit this Second Joint Status Report pursuant to the Court’s

order of February 26, 2018. The parties have met and conferred, and they report as follows:

1. Plaintiffs initiated this action under the Freedom of Information Act (“FOIA”) on

October 5, 2017. (ECF No. 1). The complaint alleges that this action involves FOIA requests

dated June 27, 2017, and submitted to the United States Department of State (“DOS”), United

States Department of Homeland Security (“DHS”), and United States Customs and Border

Protection (“CBP”) (collectively, “Defendants”). Defendants answered the complaint on January

26, 2018. (ECF No. 8). The parties filed a joint status report on February 20, 2018.

– 1 –

Case 1:17-cv-02080-TSC Document 12 Filed 04/15/18 Page 2 of 4
2. Consistent with the timeline set forth in the February 20 report, Defendants made an initial release of responsive, non-exempt records to Plaintiffs on March 23, 2018. In addition, Defendants DHS and CBP have concluded their searches for records that are potentially responsive to Plaintiffs’ FOIA requests and DOS anticipates finishing by the end of next month.
3. Defendants are currently reviewing the results of their searches and will need additional time to determine the total number of documents that are responsive to Plaintiffs’ FOIA requests. Defendants thus are unable to estimate the dates on which they will be able to complete their production of responsive, non-exempt records to Plaintiffs. However, based on the results of their reviews to date, Defendants anticipate that they can release additional responsive, non-exempt records to Plaintiff on a rolling basis, with a second production to occur by April 30, and a third production to occur by May 31.
4. The parties propose that they file with the Court a Third Joint Status Report on June 4, 2018, in which Defendants will provide the Court with an update on the status of Defendants’ processing of Plaintiffs’ FOIA requests, and the parties will provide further information responsive to the Court’s January 27 Order.
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Case 1:17-cv-02080-TSC Document 12 Filed 04/15/18 Page 3 of 4

Dated: April 15, 2018

Respectfully submitted,

/s/ David J. Weiner

9

David J. Weiner (D.C. Bar # 499806)

Charles A. Blanchard (D.C. Bar # 1022256)

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

(202) 942-5999 (fax)

david.weiner@apks.com

charles.blanchard@apks.com

Emily Newhouse Dillingham ARNOLD & PORTER
KAYE SCHOLER LLP 70 West Madison Street Chicago, IL 60602 (312) 583-2300 (312) 583-2360 (fax) emily.dillingham@apks.com

Andrew D. Bergman (D.D.C. Bar # TX0147) ARNOLD & PORTER
KAYE SCHOLER LLP 700 Louisiana Street, Suite 4000 Houston, TX 77002 (713) 576-2400 (713) 576-2499 (fax) andrew.bergman@apks.com

Johnathan Smith (D.C. Bar # 1029373) Sirine Shebaya (D.C. Bar # 1019748) MUSLIM ADVOCATES P.O. Box 66408 Washington, DC 20035 (202) 897-2622 johnathan@muslimadvocates.org sirine@muslimadvocates.org

– 3 –

Case 1:17-cv-02080-TSC Document 12 Filed 04/15/18 Page 4 of 4
Richard B. Katskee (D.C. Bar # 474250) AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE 1310 L Street, NW, Suite 200 Washington, DC 20005 (202) 466-3234 (202) 466-3353 (fax) katskee@au.org Counsel for Plaintiffs
CHAD A. READLER Acting Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Branch Director /s/ Deepthy Kishore DEEPTHY KISHORE Trial Attorney (IL Bar No. 6306338) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, DC 20530 Telephone: (202) 616-4448 deepthy.c.kishore@usdoj.gov Counsel for Defendants
– 4 –

 
 Case 1:17-cv-02080-TSC Document 35 Filed 06/02/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

MUSLIM ADVOCATES, AMERICANS )

UNITED FOR SEPARATION OF

)

CHURCH AND STATE, and

)

SOUTHERN POVERTY LAW CENTER, )

)

Plaintiffs,

)

)

v.

)

No. 1:17-cv-02080-TSC

)

U.S. DEPARTMENT OF STATE,

)

Hon. Tanya S. Chutkan

U.S. DEPARTMENT OF HOMELAND )

SECURITY, and

)

U.S. CUSTOMS AND BORDER

)

PROTECTION,

)

)

Defendants.

)

____________________________________)

SIXTEENTH JOINT STATUS REPORT

In accordance with the Court’s January 28, 2019 Order, the parties respectfully submit this

Sixteenth Joint Status Report. The parties report as follows:

1. Plaintiffs initiated this action under the Freedom of Information Act (“FOIA”) on

October 5, 2017. (ECF No. 1). This action involves FOIA requests dated June 27, 2017, submitted

to the United States Department of State (“DOS”), United States Department of Homeland Secu-

rity (“DHS”), and United States Customs and Border Protection (“CBP”) (collectively, “Defend-

ants”). Defendants answered the complaint on January 26, 2018. (ECF No. 8). The parties filed

a joint status report on February 20, 2018, (ECF No. 11), a second joint status report on April 15,

2018 (ECF No. 12), a third joint status report on June 3, 2018 (ECF No. 13), a fourth joint status

report on August 14, 2018 (ECF No. 15), a fifth joint status report on September 28, 2018 (ECF

No. 19), a sixth joint status report on October 26, 2018 (ECF No. 20), a seventh joint status report

– 1 –

Case 1:17-cv-02080-TSC Document 35 Filed 06/02/20 Page 2 of 6
on November 29, 2018 (ECF No. 21), an eighth joint status report on February 4, 2019 (ECF No. 24), a ninth joint status report on April 5, 2019 (ECF No. 25); a tenth joint status report on June 4, 2019 (ECF No. 26); an eleventh joint status report on August 5, 2019 (ECF No. 27); a twelfth joint status report on October 3, 2019 (ECF No. 30); a thirteenth joint status report on December 3, 2019 (ECF No. 31); a fourteenth joint status report on February 3, 2020 (ECF No. 33); and a fifteenth joint status report on April 3, 2020 (ECF No. 34).
2. Defendants have concluded their searches for records that are potentially responsive to Plaintiffs’ FOIA requests. Defendant DOS made a first production of responsive, nonexempt records to Plaintiffs on March 23, 2018; a second production on April 30, 2018; a third production on May 31, 2018; a fourth production on July 13, 2018; a fifth production on August 10, 2018; a sixth production on September 14, 2018; a seventh production on October 22, 2018; an eighth production on November 27, 2018; a ninth production on December 21, 2018; a tenth production on February 20, 2019; an eleventh production on March 21, 2019; a twelfth production on April 23, 2019; a thirteenth production on May 21, 2019; a fourteenth production on June 25, 2019; a fifteenth production on July 23, 2019; a sixteenth production on August 21, 2019; a seventeenth production on September 20, 2019; an eighteenth production on October 23, 2019; a nineteenth production on November 22, 2019; a twentieth production on December 23, 2019; a twenty-first production on January 21, 2020; a twenty-second production on February 21, 2020; and a twenty-third production on March 25, 2020. Defendant CBP made its first production on August 14, 2018, and second production on September 28, 2018. Defendant DHS released a first production of responsive, non-exempt records on October 29, 2018; a second production on November 29, 2018; a third production on February 13, 2019; a fourth production on March 13, 2019; a fifth production on April 18, 2019; a sixth production on May 13, 2019; a seventh production on
– 2 –

Case 1:17-cv-02080-TSC Document 35 Filed 06/02/20 Page 3 of 6
June 13, 2019; an eighth production on August 9, 2019; a ninth production on October 17, 2019; a tenth production on November 21, 2019; an eleventh production on February 11, 2020; a twelfth production on February 28, 2020; a thirteenth production on April 16, 2020; and anticipates that it will release a fourteenth production by June 5, 2020.
3. Defendants’ Position: As reported in the parties’ Fifteenth Joint Status Report, due to COVID-19-related operational restrictions, Defendant DOS is currently unable to process any additional documents for production in response to Plaintiffs’ request. DOS is providing Plaintiffs with monthly updates regarding the status of its processing capabilities until such time as that document processing resumes. In accordance with the Court’s April 16, 2020 order, DOS has attached the supporting affidavit of Eric F. Stein, Director of DOS’s Office of Information Programs and Services, which explains DOS’s present inability to process records in response to Plaintiffs’ request. In summary, the potentially responsive documents to Plaintiffs’ request reside in a system that is maintained on a classified network that cannot be accessed remotely, and the individuals responsible for processing Plaintiffs’ request are exclusively teleworking pursuant to Executive Branch guidance. As a result, DOS remains unable to process any additional documents for production at this time. Prior to filing this report, the parties conferred in good faith about the attached affidavit and Plaintiffs’ position is set forth below. Defendants disagree with Plaintiffs’ characterization of the Stein Declaration. Specifically, the Stein Declaration sets forth in detail the steps that DOS is taking to resume work on many of its FOIA cases to the greatest extent practicable under the circumstances, and why those developments do not allow DOS to resume processing documents in response to Plaintiffs’ request. See Stein Decl. ¶¶ 17-18. 4. Plaintiffs’ Position: Defendant DOS’s position, as reflected in the declaration of Eric F. Stein, is that there will be no more processing of documents in response to Plaintiffs’ FOIA request
– 3 –

Case 1:17-cv-02080-TSC Document 35 Filed 06/02/20 Page 4 of 6

and there’s nothing anyone can do about it. Missing from Mr. Stein’s declaration is any explana-

tion about why provisions cannot be made to permit individuals to review documents on a differ-

ent, remotely accessible, network. Mr. Stein’s declaration also explains that most of DOS’s review

of documents in response to FOIA requests is carried out by retired Foreign Service Officers, or

REAs, many of whom are in higher age groups, which are at increased risk for complications from

COVID-19. But the Stein Declaration does not identify what steps, if any, DOS has taken or is

taking to ensure that some individuals will be available to process FOIA requests, either in the

short term or as the pandemic eases. Defendants’ position instead seems to be that there may not

be any processing of Plaintiffs’ request unless and until the pandemic has ended completely. The

COVID-19 pandemic unquestionably requires shared sacrifice, and many in the legal profession,

including the undersigned counsel for Plaintiffs, have transitioned to working from home. Plain-

tiffs submit that DOS should likewise be expected, going forward, to make whatever accommoda-

tions are necessary to meet the demands of the new normal so that the government can fulfill its

statutory obligations under FOIA.

Per the Court’s April 16, 2020 Order, the parties will file another joint status report by

August 3, 2020.

Dated: June 2, 2020

Respectfully submitted,

/s/ David J. Weiner David J. Weiner (D.C. Bar # 499806) Charles A. Blanchard (D.C. Bar # 1022256) ARNOLD & PORTER
KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) david.weiner@apks.com charles.blanchard@apks.com

– 4 –

Case 1:17-cv-02080-TSC Document 35 Filed 06/02/20 Page 5 of 6
Emily Newhouse Dillingham ARNOLD & PORTER
KAYE SCHOLER LLP 70 West Madison Street Chicago, IL 60602 (312) 583-2300 (312) 583-2360 (fax) emily.dillingham@apks.com
Andrew D. Bergman (D.D.C. Bar # TX0147) ARNOLD & PORTER
KAYE SCHOLER LLP 700 Louisiana Street, Suite 4000 Houston, TX 77002 (713) 576-2400 (713) 576-2499 (fax) andrew.bergman@apks.com
Nimra H. Azmi (D.C. Bar #1614977) MUSLIM ADVOCATES P.O. Box 34440 Washington, DC 20043 (202) 897-2564 nimra@muslimadvocates.org
Richard B. Katskee (D.C. Bar # 474250) AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE 1310 L Street, NW, Suite 200 Washington, DC 20005 (202) 466-3234 (202) 466-3353 (fax) katskee@au.org
Counsel for Plaintiffs
JOSEPH H. HUNT Assistant Attorney General
ELIZABETH J. SHAPIRO Deputy Branch Director
/s/ Dena M. Roth DENA M. ROTH (DC Bar # 1001184)
– 5 –

Case 1:17-cv-02080-TSC Document 35 Filed 06/02/20 Page 6 of 6 Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW, Room 11204 Washington, D.C. 20005 Tel: (202) 514-5108 Facsimile: (202) 616-8460 Email: dena.m.roth@usdoj.gov Counsel for Defendants
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