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DAVIS WRIGHT TREMAINE LLP 1 THOMAS R. BURKE (CA State Bar No. 141930)
505 Montgomery Street, Suite 800 2 San Francisco, California 94111
Telephone: (415) 276-6500 3 Facsimile: (415) 276-6599
Email: thomasburke@dwt.com
4
DAVIS WRIGHT TREMAINE LLP 5 DAN LAIDMAN (CA State Bar No. 274482)
865 South Figueroa Street, Suite 2400 6 Los Angeles, CA 90017-2566
Telephone: (213) 633-6800 7 Email: danlaidman@dwt.com

8 ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES
9 MITRA EBADOLAHI (CA State Bar No. 275157) P.O. Box 87131
10 San Diego, CA 92138-7131 Telephone: (619) 398-4187
11 Email: mebadolahi@aclusandiego.org

12 Attorneys for Plaintiff

13

UNITED STATES DISTRICT COURT

14

SOUTHERN DISTRICT OF CALIFORNIA

15

AMERICAN CIVIL LIBERTIES UNION) Case No. '_1_7_C_V_0_7_3_3 L JLB

16 OF SAN DIEGO AND IMPERIAL

)

COUNTIES,
17

) COMPLAINT FOR ) DECLARATORY AND

) INJUNCTIVE RELIEF FOR

18

Plaintiff,

) VIOLATION OF THE FREEDOM

19

v.

) OF INFORMATION ACT, 5 U.S.C. ) § 552 et seq.

) 20 U.S. DEPARTMENT OF HOMELAND )

SECURITY and U.S. CUSTOMS AND )

21 BORDER PROTECTION,

)

)

22

Defendants.

)

)

23

)

)
24

25

INTRODUCTION

26

1. The American Civil Liberties Union of San Diego and Imperial

27 Counties (“Plaintiff” or “ACLU”) brings this action under the Freedom of

28 Information Act (“FOIA”), 5 U.S.C. § 552 et seq., as amended, to obtain injunctive
1 FOIA COMPLAINT
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1 and other appropriate relief requiring Defendants U.S. Department of Homeland

2 Security (“DHS”) and U.S. Customs and Border Protection (“CBP”) (collectively,

3 “Defendants”) to respond to a FOIA request sent by Plaintiff on February 2, 2017

4 (“Request”), and to promptly disclose the requested records.

5

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

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

7 From Foreign Terrorist Entry Into the United States,” Exec. Order No. 13769, 82

8 Fed. Reg. 8977 (Feb. 1, 2017) (“Executive Order No. 1”), as well as any other

9 judicial order or executive directive issued regarding Executive Order No.1,

10 including President Trump’s March 6, 2017 Executive Order, identically titled,

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

12 2”) (collectively, “Executive Orders”). A true and correct copy of the Request is

13 attached as Exhibit A.

14

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

15 implementation of the Executive Orders at sites within the purview of CBP’s San

16 Diego Field Office, including San Diego International Airport and the San Diego

17 port of entry.

18

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

19 admissions and bar entrants from several predominantly Muslim countries from

20 entering the United States.

21

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

22 subject of significant public concern, as reflected by mass protests around the

23 country, substantial news coverage, and numerous lawsuits filed following the

24 President’s signing of each Executive Order.

25

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

26 resulted in emergency court orders enjoining implementation of various sections of

27

28
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1 Executive Order No. 1.1 On March 15, 2017, a district court enjoined 2 implementation of Sections 2 and 6 of Executive Order No. 2.2

3

7. News reports described Defendants’ implementation of the Executive

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

5

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

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

7 The next day, however, DHS Secretary John Kelly deemed “the entry of lawful 8 permanent residents to be in the national interest”5 and the government clarified that 9 Executive Order No. 1 did not apply to green card holders.6

10

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

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

12 Department of Homeland Security to investigate Defendants’ implementation of 13 Executive Order No. 1.7 The Senators specifically sought information regarding:

14 1 Vayeghan v. Kelly, No. CV 17-0702, 2017 WL 396531 (C.D. Cal. Jan. 29, 2017);

15

Tootkaboni v. Trump, No. 17-CV-10154, 2017 WL 386550 (D. Mass. Jan. 29, 2017); Doe v. Trump, No. C17-126, 2017 WL 388532 (W.D. Wash. Jan. 28, 2017);

16

Aziz v. Trump, No. 1:17-CV-116, 2017 WL 386549 (E.D. Va. Jan. 28, 2017); Darweesh v. Trump, No. 17 CIV. 480 (AMD), 2017 WL 388504 (E.D.N.Y. Jan. 28,

17 220H1a7w).ai’i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw.

18

Mar. 15, 2017). 3 See, e.g., Ryan Devereaux et al., Homeland Security Inspector General Opens

19

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

20

inspector-general-opens-investigation-of-muslim-ban-rollout-orders-documentpreservation/.

21

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-

22

trump-refugee-ban-bars-green-card-holders-report. 5 Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents

23

Into The United States, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-

24

permanent-residents-united-states. 6 See Robert Mackey, As Protests Escalate, Trump Retreats From Barring Green

25

Card Holders, THE INTERCEPT, Jan. 29, 2017, available at https://theintercept.com/2017/01/29/trumps-executive-order-no-longer-bars-green-

26 7caSrede-hRoyldanerDs/.evereaux et al., Homeland Security Inspector General Opens

27

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

28

inspector-general-opens-investigation-of-muslim-ban-rollout-orders-documentpreservation/.

3

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

2 directions that were provided to Defendants in implementing it; whether CBP

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

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

5 response, the Inspector General directed Defendants’ personnel to preserve all

6 records “that might reasonably lead to the discovery of relevant information relating 7 the implementation of” Executive Order No. 1.8

8

10. Plaintiff’s Request focuses on Defendants’ local implementation of the

9 Executive Orders at the port of entry at San Diego International Airport, a major

10 international travel hub in a border region with a long history of taking in refugees.

11 San Diego County admitted more than 3,000 refugees last year, including many

12 from nations subject to the Executive Orders, and it has led California in such 13 admissions each year since 2009.9 Local residents and their families have been 14 personally affected by the orders,10 and more than a thousand people demonstrated

15 at San Diego International Airport when the first order took effect in January 16 2017.11

17

18

8 Id. 9 See John Wilkens and Peter Rowe, Trump’s refugee actions reverberate in San

19

Diego, a longtime hub for nation’s new arrivals, SAN DIEGO UNION-TRIBUNE, Feb. 4, 2017, available at http://www.sandiegouniontribune.com/news/immigration/sd-

20

me-refugee-hub-20170202-story.html; Tatiana Sanchez, County tops in refugee resettlement, SAN DIEGO UNION-TRIBUNE, Oct. 7, 2015, available at

21 22

http://www.sandiegouniontribune.com/news/immigration/sdut-refugees-resettle1s0yrSieae-i,rea.qg-.c, hTaoldmeaFnu-dsgaieg,oYne-m20e1n5i oSctut0d7e-nhttBmalsctkorIyn.hStamnlD. iego After Travel Ban Lifted, KPBS, Feb. 6, 2017, available at http://www.kpbs.org/news/2017/feb/06/yemeni-

23

student-back-san-diego-after-travel-ban-lif/; Astrid Solorzano, Local Immigrants React to President Trump’s Revised Travel Ban, NBC SAN DIEGO, Mar. 6,2017,

24

available at http://www.nbcsandiego.com/news/local/Local-Immigrants-React-toPresident-Trumps-Revised-Travel-Ban-415522953.html; Artie Ojeda, Encinitas

25

Student, Impacted by Previous Travel Ban, Praises Temporary Hold on New Ban, NBC SAN DIEGO (Mar. 15, 2017), available at

26

http://www.nbcsandiego.com/news/local/Encinitas-Student-Affected-by-PreviousTravel-Ban-Praises-Temporary-Hold-on-New-Ban-416286233.html.

27

11 See Lyndsay Winkley, Demonstrators swarm San Diego airport over travel ban, SAN DIEGO UNION-TRIBUNE, Jan. 29, 2017, available at

28

http://www.sandiegouniontribune.com/news/transportation/sd-me-immigrationprotest-20170129-story.html.

4

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1

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

2 facilitate the public’s understanding of how Defendants implemented and enforced

3 the Executive Orders in the San Diego Field Office, including in particular at San

4 Diego International Airport. Such information is critical to the public’s ability to

5 hold the government accountable.

6

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

7 Plaintiff with a determination as to whether they will comply with the Request,

8 although more than 20 business days have elapsed since Defendants received the

9 Request.

10

JURISDICTION

11

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

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

13 and 28 U.S.C. § 1331.

14

VENUE

15

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

16 § 552(a)(4)(B) as the requested agency records are, upon information and belief,

17 situated within this District at CBP facilities at or near the San Diego Port of Entry

18 Offices and/or San Diego International Airport, and because Plaintiff ACLU of San

19 Diego and Imperial Counties’ principal place of business is in the Southern District

20 of California. For the same reasons, venue also is proper under 28 U.S.C. § 1391(e).

21

PARTIES

22

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

23 educates the public about the civil liberties implications of pending and proposed

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

25 directly lobbies legislators, and mobilizes its members to lobby their legislators.

26

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

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

28 U.S.C. § 552(f)(1).
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1

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

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

3

18. Plaintiff is informed and therefore believes that Defendants have

4 possession, custody, or control of the requested records.

5

FACTS

6

19. On February 2, 2017, Plaintiff sent the Request to CBP’s San Diego

7 Field Office and CBP’s FOIA Officer at CBP Headquarters via certified, trackable

8 mail.

9

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

10 enforcement of the Executive Order at: 1) certain airports specified in the Request,

11 including San Diego International Airport (“Local International Airport”); and 2)

12 certain Port of Entry offices specified in the Request, including San Diego (“Port of

13 Entry Offices”). The Request expressly did not seek information held in the records

14 of CBP Headquarters.

15

21. Specifically, the Request sought the following:

16

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

17

interpretation, enforcement, and implementation of the following at

18

Local International Airport[]:

19

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

20

and titled ‘Protecting the Nation From Foreign Terrorist Entry

21

Into the United States’;

22

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

23

President Trump signed the Executive Order, as referenced in

24

CBP’s online FAQ;12

25 12 To assist CBP in responding, the Request included the following information in a

26

footnote for reference: “Protecting the Nation from Foreign Terrorist Entry into the United States, U.S. CUSTOMS AND BORDER PROTECTION (Jan. 31, 2017), available at

27

https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entryunited-states (‘The Executive Order and the instructions therein were effective at the

28

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

6

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1

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

2

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

3

A.M. on January 27, 2017, instructing DHS employees that they

4

could not adjudicate any immigration claims from the seven

5

targeted countries;13

6

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

7

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

8

New York on January 28, 2017, including records related to

9

CBP’s efforts to comply with the court’s oral order requiring

10

prompt production of a list of all class members detained by

11

CBP;14

12

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

13

Eastern District of Virginia on January 28, 2017;15

14

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

15

Removal, issued in the Western District of Washington on

16

January 28, 2017;16

17

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

18

District of Massachusetts on January 29, 2017;17

19 13 The following footnote was included for reference: “See Alice Speri and Ryan

20

Devereaux, Turmoil at DHS and State Department—‘There Are People Literally Crying in the Office Here,’ THE INTERCEPT, Jan. 30, 2017, available at

21

https://theintercept.com/2017/01/30/asylum-officials-and-state-department-inturmoil-there-are-people-literally-crying-in-the-office-here/.”

22 14 The following footnote was included for reference: “Decision and Order, Darweesh v. Trump, No. 17 Civ. 480 (AMD) (E.D.N.Y. Jan. 28, 2017), available at
23 https://www.aclu.org/legal-document/darweesh-v-trump-decision-and-order.”

24

15 The following footnote was included for reference: “Temporary Restraining Order, Aziz v. Trump, No. 1:17-cv-116 (E.D. Va. Jan. 28, 2017), available at

25 https://www.justice4all.org/wp-content/uploads/2017/01/TRO-order-signed.pdf.” 16 The following footnote was included for reference: “Order Granting Emergency

26 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-

27 Order.pdf.”

28

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

7

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1

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

2

for Temporary Restraining Order, issued in the Central District

3

of California on January 29, 2017;18

4

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

5

District of Pennsylvania that all individuals detained at

6

Philadelphia International Airport under the Executive Order

7

would be admitted to the United States and released from

8

custody on Sunday, January 29, 2017;

9

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

10

January 29, 2017;19

11

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

12

Permanent Residents Into the United States,’ issued on January

13

29, 2017;20

14

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

15

President’s Executive Order,’ issued on January 29, 2017;21 and

16

m. Any other judicial order or executive directive issued regarding

17

the Executive Order on or after January 27, 2017.

18

19 https://aclum.org/wp-content/uploads/2017/01/6-TRO-Jan-29-2017.pdf.”

20

18 The following footnote was included for reference: “Order, Vayeghan v. Trump, No. CV 17-0702 (C.D. Cal. Jan. 29, 2017), available at

21 https://www.aclusocal.org/sites/default/files/vayeghan_-_order_re_tro.pdf.” 19 The following footnote was included for reference: “Department of Homeland
22 Security Response to Recent Litigation, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/department-homeland-

23 security-response-recent-litigation.”

24

20 Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into The United States, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at

25

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

26 21 The following footnote was included for reference: “DHS Statement On Compliance With Court Orders And The President’s Executive Order, DEP’T OF
27 HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/dhs-statement-compliance-court-orders-and-
28 presidents-executive-order.”

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1

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

2

subjected to secondary screening, extending questioning, an

3

enforcement examination, or consideration for a waiver at Local

4

International Airport[] pursuant to the Executive Order, including:

5

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

6

to secondary screening, extending questioning, an enforcement

7

examination, or consideration for a waiver at Local International

8

Airport[] both as of the date of this request and as of the date on

9

which this request is processed; and

10

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

11

subjected to secondary screening, extending questioning, an

12

enforcement examination, or consideration for a waiver for any

13

length of time at Local International Airport[] since January 27,

14

2017, including the number of individuals who have been

15

i. released,

16

ii. transferred into immigration detention, or

17

iii. removed from the United States;

18

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

19

from Local International Airport[] from January 27, 2017 to date

20

pursuant to the Executive Order;

21

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

22

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

23

or green cards who subsequently agreed voluntarily to return; and

24

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

25

personnel shortly’ after President Trump signed the Executive

26

Order.”22

27

28

22 The following footnote was included for reference: “Protecting the Nation from Foreign Terrorist Entry into the United States, U.S. CUSTOMS AND BORDER

9

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1 Exh. A at 5-7.

2

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

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

4 § 552(a)(6)(E)(v)(II) because the information requested is “urgen[tly]” needed by an

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

6 concerning actual or alleged Federal Government activity.” Exh. A at 8.

7

23. The Request provided detail showing that the ACLU is primarily

8 engaged in disseminating information within the meaning of 5 U.S.C.

9 § 552(a)(6)(E)(v), given that a critical and substantial aspect of the ACLU’s mission

10 is to obtain information about government activity, analyze that information, and

11 publish and disseminate that information widely to the press and public. Exh. A at

12 8-12.

13

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

14 dissemination function. See Exh. A at 8-12.

15

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

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

17 records is in the public interest and is “likely to contribute significantly to public

18 understanding of the operations or activities of the government and is not primarily

19 in the commercial interest of the requester.” In particular, the ACLU emphasized

20 that the Request would significantly contribute to public understanding on a matter

21 of profound public importance about which scant specific information had been

22 made public, i.e., how local CBP Field Offices had enforced, and continue to

23 enforce, the Executive Orders. The Request also made clear that the ACLU plans to

24 disseminate the information disclosed as a result of the Request to the public at no

25

26 PROTECTION (Jan. 31, 2017), available at https://www.cbp.gov/bordersecurity/protecting-nation-foreign-terrorist-entry-united-states (‘The Executive
27 Order and the instructions therein were effective at the time of the order’s signing. Guidance was provided to DHS field personnel shortly thereafter.’) (emphasis
28 added).”
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1 cost. Exh. A at 12-13.

2

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

3 § 552(a)(4)(A)(ii)(II) on the grounds that Plaintiff qualifies as a “representative[] of

4 the news media” and the records are not sought for commercial use, given the

5 ACLU’s non-profit mission and substantial activities to publish information for

6 dissemination to the public, as discussed in greater detail in ¶ 25 above. Exh. A at

7 13-14.

8

27. CBP’s San Diego Field Office received the Request on or about

9 February 3, 2017, and CBP’s FOIA Officer at CBP Headquarters received the

10 request on or about February 6, 2017.

11

28. As of April 12, 2017, more than 20 days (excepting Saturdays,

12 Sundays, and legal public holidays) have elapsed since CBP and DHS received the

13 Request.

14

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

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

16

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

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

18 exhausted its administrative remedies with respect to the Request under 5 U.S.C.

19 § 552(a)(6)(C)(i).

20
Violation of FOIA for Failure

21

to Provide a Determination

22

Within 20 Business Days

23

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

24 through 30 above, inclusive.

25

32. Defendants have a legal duty under FOIA to determine whether to

26 comply with a request within 20 days (excepting Saturdays, Sundays, and legal

27 public holidays) after receiving the request, and also have a legal duty to

28 immediately notify the requester of the agency’s determination and the reasons

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1 therefor.

2

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

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

4 and applicable regulations promulgated thereunder.

5
Violation of FOIA for Failure

6

to Make Records Available

7

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

8 through 30 above, inclusive.

9

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

10 records requested on February 2, 2017, and there exists no legal basis for

11 Defendants’ failure to promptly make the requested records available to Plaintiff, its

12 members, and the public.

13

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

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

15 promulgated thereunder.

16

37. On information and belief, Defendants currently have possession,

17 custody or control of the requested records.

18
Violation of FOIA for Failure to

19

Provide a Determination As To

20

Expedited Processing Within 10 Days

21

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

22 through 30 above, inclusive.

23

39. Defendants have a legal duty under FOIA to determine whether to

24 provide expedited processing, and to provide notice of that determination to

25 Plaintiff, within 10 days after the date of the Request.

26

40. Defendants’ failure to determine whether to provide expedited

27 processing and to provide notice of that determination to Plaintiff within 10 days

28 after the date of the Request violates FOIA, 5 U.S.C. § 552(a)(6)(E)(ii)(I), and

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1 applicable regulations promulgated thereunder.

2

41. Because Defendants have not provided a complete response to the

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

4 review Defendants’ failure to make a determination concerning Plaintiff’s request

5 for expedited processing.

6

WHEREFORE, Plaintiff requests that the Court award it the following

7 relief:

8

1. Declare that Defendants violated FOIA by failing to determine

9 whether to comply with the Request within 20 business days and by failing to

10 immediately thereafter notify Plaintiff of such determination and the reasons

11 therefor;

12

2. Declare that Defendants violated FOIA by failing to disclose the

13 requested records;

14

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

15 to provide expedited processing, and to provide notice of that determination to

16 Plaintiff, within 10 days;

17

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

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

19 search or duplication fees, or, in the alternative, provide for expedited proceedings

20 to adjudicate Plaintiff’s rights under FOIA;

21

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

22 ///

23 ///

24 ///

25

26

27

28
13 FOIA COMPLAINT
4816-6893-1653v.3 4852-5651-0790v.1 0050033-000045

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1

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

2

3 DATED this 12th day of April, 2017.

4

Respectfully submitted,

5

DAVIS WRIGHT TREMAINE LLP

THOMAS R. BURKE

6

DAN LAIDMAN

7

ACLU FOUNDATION OF SAN DIEGO AND

IMPERIAL COUNTIES

8

MITRA EBADOLAHI

9

By: /s/ Thomas R. Burke Thomas R. Burke

10

Attorneys for Plaintiff

11

AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
14 FOIA COMPLAINT
4816-6893-1653v.3 4852-5651-0790v.1 0050033-000045

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February 2, 2017
U.S. Customs & Border Protection 610 W. Ash St, Suite 1200 San Diego, CA 92101
FOIA Officer U.S. Customs & Border Protection 1300 Pennsylvania Avenue, NW Room 3.3D Washington, D.C. 20229 Phone: (202) 344-1610
Re: Request Under Freedom of Information Act (Expedited Processing & Fee Waiver/Limitation Requested)
To Whom It May Concern:
The American Civil Liberties Union of San Diego and Imperial Counties and the American Civil Liberties Union of San Diego and Imperial Counties Foundation (together, “ACLU”)1 submits this Freedom of Information Act (“FOIA”) request (“Request”) for records about the implementation of President Trump’s January 27, 2017 Executive Order (“Executive Order”) by U.S. Customs and Border Protection (“CBP”). Titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” the Executive Order halts refugee admissions and bars entrants from seven predominantly Muslim countries from entering the United States.2 By this letter, which constitutes a request pursuant to FOIA, 5 U.S.C. § 552 et seq., and the relevant implementing regulations, see 6 C.F.R. § 5 et seq., the ACLU seeks information regarding CBP’s local implementation of the Executive Order at international airports within the purview of the San Diego Field Office (“Field Office”).
I. Background
1 The American Civil Liberties Union of San Diego & Imperial Counties is a non-profit, 501(c)(4) membership organization that educates the public about the civil liberties implications of pending and proposed state and federal legislation, provide analysis of pending and proposed legislation, directly lobbies legislators, and mobilizes its members to lobby their legislators. The American Civil Liberties Union Foundation of San Diego & Imperial Counties is a separate 501(c)(3) organization that provides legal representation free of charge to individuals and organizations in civil rights and civil liberties cases, educates the public about the civil rights and civil liberties implications of pending and proposed state and federal legislation, provides analyses of pending and proposed legislation, directly lobbies legislators, and mobilizes its members to lobby their legislators. 2 Exec. Order No. 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017).
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On January 27, 2017, President Donald J. Trump issued an executive order that indefinitely blocks refugees from Syria from entering the United States, bars all refugees for 120 days, and prohibits individuals from seven predominantly Muslim countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—from entering the United States for 90 days.3 By the following day, January 28, 2017, CBP officials across the country had detained an estimated 100 to 200 individuals at airports throughout the United States.4 Two unions representing more than 21,000 federal immigration officers praised the Executive Order,5 issuing a joint press release that “applaud[ed] the three executive orders [President Trump] has issued to date.”6 Daniel M. Renaud, Associate Director of Field Operations for U.S. Citizenship and Immigration Services, instructed Department of Homeland Security (“DHS”) employees that they could no longer adjudicate any immigration claims from the seven countries targeted by the Executive Order.7
Beginning Saturday morning, protests erupted nationwide and attorneys rushed to airports to assist detained individuals and their families.8 Over the next twenty-four hours, five federal courts ordered officials to temporarily stop enforcement of the Executive Order.9 First, Judge Donnelly of the Eastern District of New York issued a nationwide order in Darweesh v. Trump, filed by the ACLU’s Immigrants’ Rights Project (among others), that prohibited the government from removing any detained travelers from the
3 See, e.g., Michael D. Shear and Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. TIMES, Jan. 27, 2017, available at https://www.nytimes.com/2017/ 01/27/us/politics/trump-syrian-refugees.html. 4 See, e.g., Michael D. Shear et al., Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Worldwide, N.Y. TIMES, Jan. 28, 2017, available at https://www.nytimes.com/2017/ 01/28/us/refugees-detained-at-us-airports-prompting-legal-challenges-to-trumps-immigration-order.html. 5 Robert Mackey, America’s Deportation Agents Love Trump’s Ban and Rely on Breitbart for Their News, THE INTERCEPT, Jan. 30, 2017, available at https://theintercept.com/2017/01/30/ americas-deportation-agents-love-trumps-ban-rely-breitbart-news/. 6 Joint Press Release Between Border Patrol and ICE Councils, NAT’L ICE COUNCIL, available at http://iceunion.org/news/joint-press-release-between-border-patrol-and-ice-councils. 7 Alice Speri and Ryan Devereaux, Turmoil at DHS and State Department—“There Are People Literally Crying in the Office Here,” THE INTERCEPT, Jan. 30, 2017, available at https://theintercept.com/2017/01/30/asylum-officials-and-state-department-in-turmoil-there-are-peopleliterally-crying-in-the-office-here/. 8 See, e.g., Peter Baker, Travelers Stranded and Protests Swell Over Trump Order, N.Y. TIMES, Jan. 29, 2017, available at https://www.nytimes.com/2017/01/29/us/politics/white-house-official-in-reversal-says-greencard-holders-wont-be-barred.html; Issie Lapowsky and Andy Greenberg, Trump’s Ban Leaves Refugees in Civil Liberties Limbo, WIRED, Jan. 28, 2017, available at https://www.wired.com/2017/01/trumps-refugeeban-direct-assault-civil-liberties/; Zolan Kanno-Youngs and Ben Kesling, Thousands Flood Cities’ Streets to Protest Donald Trump’s Immigration Ban, WALL ST. J., Jan. 30, 2017, available at https://www.wsj.com/ articles/protests-continue-against-trumps-executive-order-banning-some-from-u-s-1485735672. 9 See, e.g., Steve Vladeck, The Airport Cases: What Happened, and What’s Next?, JUST SECURITY, Jan. 30, 2017, available at https://www.justsecurity.org/36960/stock-weekends-district-court-orders-immigration-eo/.
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seven banned countries who had been legally authorized to enter the United States.10 And a few hours later, in Tootkaboni v. Trump, filed by the ACLU of Massachusetts (among others), Judge Burroughs and Magistrate Judge Dein of the District of Massachusetts issued a nationwide order that not only prohibited the removal of such individuals, but also temporarily banned the government from detaining people affected by the Executive Order.11
At the same time, President Trump remained publicly committed to his opposing position. In the early hours of Sunday, January 29, 2017, after the five court orders had been issued, President Trump tweeted, “Our country needs strong borders and extreme vetting, NOW.”12 He also issued a statement on Facebook later that day, indicating that entry from the seven predominantly Muslim countries would remain blocked for the next ninety days.13
In the face of nationwide confusion about the scope and validity of the Executive Order, guidance from other relevant actors offered little clarity. For example, on Saturday, DHS confirmed that the ban “will bar green card holders.”14 But on Sunday, DHS Secretary John Kelly deemed “the entry of lawful permanent residents to be in the national interest”15 and, that evening, the Trump administration clarified that the Executive Order
10 Decision and Order, Darweesh v. Trump, No. 17 Civ. 480 (AMD) (E.D.N.Y. Jan. 28, 2017), available at https://www.aclu.org/legal-document/darweesh-v-trump-decision-and-order.
11 Temporary Restraining Order, Tootkaboni v. Trump, No. 17-cv-10154 (D. Mass. Jan. 29, 2017), available at https://aclum.org/wp-content/uploads/2017/01/6-TRO-Jan-29-2017.pdf. Another federal court issued an order requiring that attorneys be allowed access to all lawful permanent residents detained at Dulles International Airport and barring the government from deporting any such individuals. See Temporary Restraining Order, Aziz v. Trump, No. 1:17-cv-116 (E.D. Va. Jan. 28, 2017), available at https://www.justice4all.org/wp-content/uploads/2017/01/TRO-order-signed.pdf. In Doe v. Trump, filed in part by the ACLU of Washington, the court banned the removal of two individuals. See Order Granting Emergency Motion for Stay of Removal, Doe v. Trump, No. C17-126 (W.D. Wash. Jan. 28, 2017), available at https://www.justsecurity.org/wp-content/uploads/2017/01/Seattle-Order.pdf. Finally, in Vayeghan v. Trump, filed in part by the ACLU of Southern California, the court ordered the government to permit an Iranian individual who had already been removed to Dubai to return to the United States and to admit him pursuant to his approved visa. Order, Vayeghan v. Trump, No. CV 17-0702 (C.D. Cal. Jan. 28, 2017), available at https://www.aclusocal.org/sites/ default/files/vayeghan_-_order_re_tro.pdf.
12 Donald J. Trump, TWITTER (Jan. 29, 2017 5:08 A.M.), https://twitter.com/realDonaldTrump/ status/825692045532618753.
13 Donald J. Trump, Statement Regarding Recent Executive Order Concerning Extreme Vetting, Jan. 29, 2017, available at https://www.facebook.com/DonaldTrump/posts/101585676436107 25 (“We will again be issuing visas to all countries once we are sure we have reviewed and implemented the most secure policies over the next 90 days.”).
14 Max Greenwood, Immigration Ban Includes Green Card Holders: DHS, THE HILL, Jan. 28, 2017, available at http://thehill.com/policy/national-security/316670-trump-refugee-ban-bars-green-card-holders-report.
15 Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into The United States, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residentsunited-states.
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does not apply to green card holders.16 The same day, DHS stated, perhaps contradictorily and without any elaboration, “We are and will remain in compliance with judicial orders. We are and will continue to enforce President Trump’s executive order humanely and with professionalism.”17 On Monday, then–Acting Attorney General Sally Yates announced that the Department of Justice would not present arguments in defense of the Executive Order unless and until she became convinced that it was lawful.18 Shortly thereafter, Ms. Yates was relieved of her position by President Trump.19 The same evening, President Trump also replaced the acting director of U.S. Immigration and Customs Enforcement (“ICE”).20
In spite of court orders to the contrary, some CBP officials appear to be continuing to detain individuals—though the approach appears to differ by location.21 Accordingly, the ACLU seeks to supplement the public record to clarify CBP’s understanding and implementation of the Executive Order at San Diego International Airport (“Local International Airport”) and San Diego (“Port of Entry Offices”). Through this request, the ACLU aims to facilitate the public’s indispensable role in checking the power of our public officials and to learn about the facts on the ground in San Diego, California and the Local International Airport.
16 Robert Mackey, As Protests Escalate, Trump Retreats From Barring Green Card Holders, THE INTERCEPT, Jan, 29, 2017, available at https://theintercept.com/2017/01/29/trumps-executive-order-no-longer-bars-greencard-holders/. 17 DHS Statement On Compliance With Court Orders And The President’s Executive Order, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/ 01/29/dhs-statement-compliance-court-orders-and-presidents-executive-order. 18 Jonathan H. Adler, Acting Attorney General Orders Justice Department Attorneys Not to Defend Immigration Executive Order, WASH. POST, Jan. 30, 2017, available at https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/30/acting-attorney-general-ordersjustice-department-attorneys-not-to-defend-immigration-executive-order/. 19 Read the Full White House Statement on Sally Yates, BOSTON GLOBE, Jan. 30, 2017, available at https://www.bostonglobe.com/news/politics/2017/01/30/read-full-white-house-statement-sallyyates/HkFReIYJidU9deDelPK6SM/story.html. 20 Statement from Secretary Kelly on the President’s Appointment of Thomas D. Homan as Acting ICE Director, DEP’T OF HOMELAND SECURITY (Jan. 30, 2017), available at https://www.dhs.gov/news/2017/01/30/statement-secretary-kelly-presidents-appointment-thomas-d-homanacting-ice-director. 21 See, e.g., Julia Wick, Lawyers Say At Least 17 People Are Still Detained at LAX, Protests Continue, LAIST, Jan. 29, 2017, available at http://laist.com/2017/01/29/people_are_still_ detained_at_lax.php; Daniel Marans, Customs and Border Officials Defy Court Order on Lawful Residents, HUFFINGTON POST, Jan. 29, 2017, available at http://www.huffingtonpost.com /entry/dulles-airport-feds-violated-court-order_us_588d7274e4b08a14f7e67bcf; Tom Cleary, Is Border Patrol Defying Federal Judge’s Stay on Immigration Executive Order?, HEAVY, Jan. 29, 2017, available at http://heavy.com/news/2017/01/border-patrol-homeland-security-defying-ignoring-following-judge-rulingstay-immigration-executive-order-dulles-dfw-muslim-ban/; Tess Owen, Waiting for Answers: We Still Don’t Know How Many People are Being Detained at US Airports, VICE NEWS, Jan. 30, 2017, available at https://news.vice.com/story/we-still-dont-know-how-many-people-are-being-detained-at-us-airports.
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II. Requested Records

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

1.

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

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

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

b. Any guidance “provided to DHS field personnel shortly” after President Trump signed the Executive Order, as referenced in CBP’s online FAQ;22

c. Associate Director of Field Operations for U.S. Citizenship and Immigration Services
Daniel M. Renaud’s email, sent at 11:12 A.M. on January 27, 2017, instructing DHS
employees that they could not adjudicate any immigration claims from the seven targeted countries;23

d. Judge Donnelly’s Decision and Order granting an Emergency Motion for Stay of Removal,
issued in the Eastern District of New York on January 27, 2017, including records related
to CBP’s efforts to comply with the court’s oral order requiring prompt production of a list of all class members detained by CBP;24

e. Judge Brinkema’s Temporary Restraining Order, issued in the Eastern District of Virginia on January 28, 2017;25

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

g. Judge Burroughs’ Temporary Restraining Order, issued in the District of Massachusetts on January 29, 2017;27

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

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

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

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

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

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

2.

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

secondary screening, extending questioning, an enforcement examination, or consideration

for a waiver at Local International Airports pursuant to the Executive Order, including:

26 Order Granting Emergency Motion for Stay of Removal, Doe v. Trump, No. C17-126 (W.D. Wash. Jan. 28, 2017), available at https://www.justsecurity.org/wpcontent/uploads/ 2017/01/Seattle-Order.pdf.
27 Temporary Restraining Order, Tootkaboni v. Trump, No. 17-cv-10154 (D. Mass. Jan. 29, 2017), available at https://aclum.org/wp-content/uploads/2017/01/6-TRO-Jan-29-2017.pdf.
28 Order, Vayeghan v. Trump, No. CV 17-0702 (C.D. Cal. Jan. 28, 2017), available at https://www.aclusocal.org/sites/default/files/vayeghan_-_order_re_tro.pdf.
29 Department of Homeland Security Response to Recent Litigation, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/01/29/department-homeland-security-response-recentlitigation.
30 Statement from Secretary Kelly on the President’s Appointment of Thomas D. Homan as Acting ICE Director, DEP’T OF HOMELAND SECURITY (Jan. 30, 2017), available at https://www.dhs.gov/news/2017/01/30/statement-secretary-kelly-presidents-appointment-thomas-d-homanacting-ice-director.
31 DHS Statement On Compliance With Court Orders And The President’s Executive Order, DEP’T OF HOMELAND SECURITY (Jan. 29, 2017), available at https://www.dhs.gov/news/2017/ 01/29/dhs-statement-compliance-court-orders-and-presidents-executive-order.
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a. The total number of individuals who remain detained or subject to secondary screening, extending questioning, an enforcement examination, or consideration for a waiver at Local International Airports both as of the date of this request and as of the date on which this request is processed; and

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

i. released,

ii. transferred into immigration detention, or

iii. removed from the United States;

3.

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

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

4.

Records concerning the number of individuals who arrived at Local International Airports

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

voluntarily to return; and

5.

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

after President Trump signed the Executive Order.32

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

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

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

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former employees who may have sent or received emails or text messages regarding the subject matter of this Request, as well as all institutional, shared, group, duty, task force, and all other joint and/or multi-user email accounts and work phones which may have been utilized by each such employee or former employee. Additionally, for each relevant email account identified, all storage areas must be searched, including the inbox “folder” (and all subfolders therein), sent folder, deleted folder, and all relevant archive files.
If any records responsive or potentially responsive to the Request have been destroyed, our Request includes, but is not limited to, any and all records relating or referring to the destruction of those records. This includes, but is not limited to, any and all records relating or referring to the events leading to the destruction of those records.
As required by the relevant case law, the agency should follow any leads it discovers during the conduct of its searches and should perform additional searches when said leads indicate that records may be located in another system. Failure to follow clear leads is a violation of FOIA.
With respect to the form of production, see 5 U.S.C. § 552(a)(3)(B), the ACLU requests that responsive electronic records be provided electronically in their native file format, if possible. Alternatively, the ACLU requests that the records be provided electronically in a text-searchable, static-image format (PDF), in the best image quality in the agency’s possession, and that the records be provided in separate, Bates-stamped files.
III. Application for Expedited Processing
The ACLU requests expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E).33 There is a “compelling need” for these records, as defined in the statute, because the information requested is “urgen[tly]” needed by an organization primarily engaged in disseminating information “to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v)(II).
A. The ACLU is an organization primarily engaged in disseminating information in order to inform the public about actual or alleged government activity.
The ACLU is “primarily engaged in disseminating information” within the meaning of the statute. 5 U.S.C. § 552(a)(6)(E)(v)(II).34 Obtaining information about government activity, analyzing that information, and widely publishing and disseminating that information to the press and public are critical and substantial components of the ACLU’s work and are among its primary activities. See ACLU v. U.S. Dep’t of Justice, 321 F. Supp. 2d 24, 29 n.5 (D.D.C. 2004) (finding non-profit public interest group that “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience” to be
33 See also 6 C.F.R. § 5.5(e)(1). 34 See also 6 C.F.R. § 5.5(e)(1)(ii).
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“primarily engaged in disseminating information”).35
The ACLU regularly publishes STAND, a print magazine that reports on and analyzes civil liberties-related current events. The magazine is disseminated to over 620,000 people. The ACLU also publishes regular updates and alerts via email to approximately 2.1 million subscribers (both ACLU members and non-members). These updates are additionally broadcast to 1.5 million social media followers (members and nonmembers). The magazine as well as the email and social-media alerts often include descriptions and analysis of information obtained through FOIA requests.
The ACLU of San Diego & Imperial Counties (“ACLU-SDIC”) regularly emails its nearly 30,000 subscribers with updates and alerts about important civil liberties issues. The affiliate sends news and information to its audience of 5100 Twitter followers and 6800 Facebook friends on a daily basis. In the month of January 2017, ACLU-SDIC’s Facebook posts received 211,000 views and ACLU-SDIC’s tweets received 545,000 views. ACLUSDIC’s quarterly newsletter reaches approximately 1,000 people. The annual membership report and meeting notice was mailed to more than 8000 people. ACLU-SDIC regularly issues press statements and shares statements generated by the national office and other California affiliates. ACLU-SDIC creates talking points, memes and fact sheets that it shares with community partners, who in turn disseminate the information broadly to their constituents.
The ACLU also regularly issues press releases to call attention to documents obtained through FOIA requests, as well as other breaking news,36 and ACLU attorneys are interviewed frequently for news stories about documents released through ACLU FOIA requests.37
35 Courts have found that the ACLU as well as other organizations with similar missions that engage in information-dissemination activities similar to the ACLU are “primarily engaged in disseminating information.” See, e.g., Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 260 (D.D.C. 2005); ACLU, 321 F. Supp. 2d at 29 n.5; Elec. Privacy Info. Ctr. v. U.S. Dep’t of Defense, 241 F. Supp. 2d 5, 11 (D.D.C. 2003).
36 See, e.g., Press Release, American Civil Liberties Union, U.S. Releases Drone Strike ‘Playbook’ in Response to ACLU Lawsuit (Aug. 6, 2016), https://www.aclu.org/news/us-releases-drone-strike-playbookresponse-aclu-lawsuit; Press Release, American Civil Liberties Union, Secret Documents Describe Graphic Abuse and Admit Mistakes (June 14, 2016), https://www.aclu.org/news/cia-releases-dozens-torturedocuments-response-aclu-lawsuit; Press Release, American Civil Liberties Union, U.S. Releases Targeted Killing Memo in Response to Long-Running ACLU Lawsuit (June 23, 2014), https://www.aclu.org/nationalsecurity/us-releases-targeted-killing-memo-response-long-running-aclu-lawsuit; Press Release, American Civil Liberties Union, Justice Department White Paper Details Rationale for Targeted Killing of Americans (Feb. 4, 2013), https://www.aclu.org/national-security/justice-department-white-paper-details-rationaletargeted-killing-americans; Press Release, American Civil Liberties Union, Documents Show FBI Monitored Bay Area Occupy Movement (Sept. 14, 2012), https://www.aclu.org/news/documents-show-fbi-monitoredbay-area-occupy-movement-insidebayareacom.
37 See, e.g., Karen DeYoung, Newly Declassified Document Sheds Light on How President Approves Drone Strikes, Wash. Post, Aug. 6, 2016, https://www.washingtonpost.com/ world/national-security/newly-declassified-document-sheds-light-on-how-president-approves-dronestrikes/2016/08/06/f424fe50-5be0-11e6-831d-0324760ca856_story.html (quoting former ACLU deputy legal director Jameel Jaffer); Catherine Thorbecke, What Newly Released CIA Documents Reveal About ‘Torture’
9

Case 3:17-cv-00733-L-JLB Document 1 Filed 04/12/17 PageID.24 Page 24 of 29
Similarly, the ACLU publishes reports about government conduct and civil liberties issues based on its analysis of information derived from various sources, including information obtained from the government through FOIA requests. This material is broadly circulated to the public and widely available to everyone for no cost or, sometimes, for a small fee. ACLU national projects regularly publish and disseminate reports that include a description and analysis of government documents obtained through FOIA requests.38 The ACLU also regularly publishes books, “know your rights” materials, fact sheets, and educational brochures and pamphlets designed to educate the public about civil liberties issues and government policies that implicate civil rights and liberties.39
The ACLU publishes a widely-read blog where original editorial content reporting on and analyzing civil rights and civil liberties news is posted daily. See https://www.aclu.org/blog. The ACLU creates and disseminates original editorial and educational content on civil rights and civil liberties news through multi-media projects, including videos, podcasts, and interactive features. See https://www.aclu.org/multimedia. The ACLU also publishes, analyzes, and disseminates information through its heavily visited website, www.aclu.org.40 The website addresses civil rights and civil liberties issues in depth, provides features on civil rights and civil liberties issues in the news, and contains many thousands of documents relating to the issues on which the ACLU is focused. The
in Its Former Detention Program, ABC, June 15, 2016, http://abcnews.go.com/US/newly-released-ciadocuments-reveal-torture-detention-program/story?id=39873389 (quoting ACLU staff attorney Dror Ladin); Nicky Woolf, US Marshals Spent $10M on Equipment for Warrantless Stingray Device, Guardian, Mar. 17, 2016, https://www.theguardian.com/world/2016/mar/17/us-marshals-stingray-surveillance-airborne (quoting ACLU attorney Nate Wessler); David Welna, Government Suspected of Wanting CIA Torture Report to Remain Secret, NPR, Dec. 9, 2015, http://www.npr.org/2015/12/09/ 459026249/cia-torture-report-may-remain-secret (quoting ACLU project director Hina Shamsi).
38 See, e.g., ACLU, ACLU-Obtained Emails Prove that the Federal Bureau of Prisons Covered Up Its Visit to the CIA’s Torture Site (Nov. 22, 2016, 3:15 PM), https://www.aclu.org/blog/speak-freely/aclu-obtainedemails-prove-federal-bureau-prisons-covered-its-visit-cias-torture; ACLU, Details Abound in Drone ‘Playbook’ – Except for the Ones That Really Matter Most (Aug. 8, 2016, 5:30 PM), https://www.aclu.org/blog/speak-freely/details-abound-drone-playbook-except-ones-really-matter-most; ACLU, ACLU- Obtained Documents Reveal Breadth of Secretive Stingray Use in Florida (Feb. 22, 2015, 5:30 PM), https://www.aclu.org/blog/free-future/aclu-obtained-documents-reveal-breadth-secretive-stingrayuse-florida; ACLU, New NSA Documents Shine More Light into Black Box of Executive Order 12333 (Oct. 30, 2014, 3:29 PM), https://www.aclu.org/blog/new-nsa-documents-shine-more-light-black-box-executiveorder-12333; ACLU, ACLU Eye on the FBI: Documents Reveal Lack of Privacy Safeguards and Guidance in Government’s “Suspicious Activity Report” Systems (Oct. 29, 2013), https://www.aclu.org/sites/default/files/assets/eye_on_fbi_-_sars.pdf.
39 See, e.g., ACLU of San Diego and Imperial Counties, Know Your Rights With Border Patrol, https://www.aclusandiego.org/wp-content/uploads/2014/10/KYR-2-pg-flyer-final.pdf (last visited Feb. 2, 2017); see also, e.g., ACLU of San Diego and Imperial Counties, What to Do If You’re Stopped By the Police, https://www.aclusandiego.org/wp-content/uploads/2014/10/What-to-Do-Police-Stops-web.pdf (last visited Feb. 2, 2017).
40 The ACLU of San Diego and Imperial Counties affiliate website (www.aclusandiego,org) also addresses civil rights and civil liberties issues in depth, provides features on civil rights and civil liberties issues in the news, and contains documents relating to the issues on which the ACLU is focused.
10

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ACLU’s website also serves as a clearinghouse for news about ACLU cases, as well as analysis about case developments, and an archive of case-related documents. Through these pages, and with respect to each specific civil liberties issue, the ACLU provides the public with educational material, recent news, analyses of relevant Congressional or executive branch action, government documents obtained through FOIA requests, and further indepth analytic and educational multi-media features.
The ACLU website includes many features on information obtained through the FOIA.41 For example, the ACLU’s “Predator Drones FOIA” webpage, https://www.aclu.org/national-security/predator-drones-foia, contains commentary about the ACLU’s FOIA request, press releases, analysis of the FOIA documents, numerous blog posts on the issue, documents related to litigation over the FOIA request, frequently asked questions about targeted killing, and links to the documents themselves. Similarly, the ACLU maintains an online “Torture Database,” a compilation of over 100,000 pages of FOIA documents that allows researchers and the public to conduct sophisticated searches of FOIA documents relating to government policies on rendition, detention, and interrogation.42 The ACLU of San Diego & Imperial Counties affiliate website also publishes information obtained through FOIA requests.43
The ACLU has also published a number of charts and explanatory materials that collect, summarize, and analyze information it has obtained through the FOIA. For example, through compilation and analysis of information gathered from various sources— including information obtained from the government through FOIA requests—the ACLU created an original chart that provides the public and news media with a comprehensive summary index of Bush-era Office of Legal Counsel memos relating to interrogation, detention, rendition, and surveillance.44 Similarly, the ACLU produced a summary of documents released in response to a FOIA request related to the FISA Amendments Act45; a chart of original statistics about the Defense Department’s use of National Security Letters based on its own analysis of records obtained through FOIA requests46; and an analysis of documents obtained through FOIA requests about FBI surveillance flights over
41 See, e.g., https://www.aclu.org/blog/free-future/fbi-releases-details-zero-day-exploit-decisionmakingprocess; https://www.aclu.org/blog/free-future/fbi-documents-reveal-new-information-baltimoresurveillance-flights; https://www.aclu.org/national-security/anwar-al-awlaki-foia-request; https://www.aclu.org/cases/aclu-v-department-defense; https://www.aclu.org/mappingthefbi; https://www.aclu.org/cases/bagram-foia; https://www.aclu.org/national-security/csrt-foia; http://www.aclu.org/safefree/nsaspying/30022res20060207.html; https://www.aclu.org/patriot-foia; https://www.aclu.org/nsl-documents-released-dod?redirect=cpredirect/32088.
42 https://www.thetorturedatabase.org. See also https://www.aclu.org/foia-collection/targeted-killing-foiadatabase.
43 See, e.g., Press Release, ACLU of San Diego & Imperial Counties, CBP Releases Report, New Training Handbook (May 22, 2014), http://www.aclusandiego.org/radio-silence-border-patrol-use-force-policies-leadslawsuit/ (last visited Feb 2, 2017).
44 https://www.aclu.org/sites/default/files/pdfs/safefree/olcmemos_2009_0305.pdf.
45 https://www.aclu.org/files/pdfs/natsec/faafoia20101129/20101129Summary.pdf.
46 https://www.aclu.org/sites/default/files/field_document/nsl_stats.pdf.
11

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Baltimore.47
The ACLU plans to analyze, publish, and disseminate to the public the information gathered through this Request. The records requested are not sought for commercial use and the requesters plan to disseminate the information disclosed as a result of this Request to the public at no cost.
B. The records sought are urgently needed to inform the public about actual or alleged government activity.
These records are urgently needed to inform the public about actual or alleged government activity. See 5 U.S.C. § 552(a)(6)(E)(v)(II).48 Specifically, as discussed in Part I, supra, the requested records seek to inform the public about the CBP’s current, local enforcement of a new Executive Order amid five court orders, varying directives, and other quickly developing events.
Given the foregoing, the ACLU has satisfied the requirements for expedited processing of this Request.
IV. Application for Waiver or Limitation of Fees
The ACLU requests a waiver of document search, review, and duplication fees on the grounds that disclosure of the requested records is in the public interest and because disclosure is “likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii).49 The ACLU also requests a waiver of search fees on the grounds that the ACLU qualifies as a “representative of the news media” and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II).
A. The Request is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the ACLU.
As discussed above, news accounts underscore the substantial public interest in the records sought through this Request. Given the ongoing and widespread media attention to this issue, the records sought will significantly contribute to public understanding of an issue of profound public importance. Especially because little specific information has been made public about how local CBP Field Offices plan to enforce the Executive Order while also complying with the federal court orders, the records sought are certain to contribute significantly to the public’s understanding of these issues.
47 https://www.aclu.org/blog/free-future/fbi-documents-reveal-new-information-baltimore-surveillanceflights. 48 See also 6 C.F.R. § 5.5(e)(1)(ii). 49 See also 6 C.F.R. § 5.11(k).
12

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The ACLU is not filing this Request to further its commercial interest. As described above, any information disclosed by the ACLU as a result of this FOIA Request will be available to the public at no cost. Thus, a fee waiver would fulfill Congress’s legislative intent in amending the FOIA. See Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (“Congress amended FOIA to ensure that it be liberally construed in favor of waivers for noncommercial requesters.” (quotation marks omitted)).
B. The ACLU is a representative of the news media and the records are not sought for commercial use.
The ACLU also requests a waiver of search fees on the grounds that the ACLU qualifies as a “representative of the news media” and the records are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii)(II). The ACLU meets the statutory and regulatory definitions of a “representative of the news media” because it is an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii)(III);50 see also Nat’l Sec. Archive v. U.S. Dep’t of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989) (finding that an organization that gathers information, exercises editorial discretion in selecting and organizing documents, “devises indices and finding aids,” and “distributes the resulting work to the public” is a “representative of the news media” for purposes of the FOIA); Serv. Women’s Action Network v. U.S. Dep’t of Defense, 888 F. Supp. 2d 282 (D. Conn. 2012) (requesters, including ACLU, were representatives of the news media and thus qualified for fee waivers for FOIA requests to the Department of Defense and Department of Veterans Affairs); ACLU of Wash. v. U.S. Dep’t of Justice, No. C09–0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding that the ACLU of Washington is an entity that “gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience”); ACLU, 321 F. Supp. 2d at 30 n.5 (finding non-profit public interest group to be “primarily engaged in disseminating information”). The ACLU is therefore a “representative of the news media” for the same reasons it is “primarily engaged in the dissemination of information.”
Furthermore, courts have found other organizations whose mission, function, publishing, and public education activities are similar in kind to the ACLU’s to be “representatives of the news media” as well. See, e.g., Cause of Action v. IRS, 125 F. Supp. 3d 145 (D.C. Cir. 2015); Elec. Privacy Info. Ctr., 241 F. Supp. 2d at 10–15 (finding nonprofit public interest group that disseminated an electronic newsletter and published books was a “representative of the news media” for purposes of the FOIA); Nat’l Sec. Archive, 880 F.2d at 1387; Judicial Watch, Inc. v. U.S. Dep’t of Justice, 133 F. Supp. 2d 52, 53–54 (D.D.C. 2000) (finding Judicial Watch, self-described as a “public interest law firm,” a news media requester).51
50 See also 6 C.F.R. § 5.11(b)(6).
51 Courts have found these organizations to be “representatives of the news media” even though they engage in litigation and lobbying activities beyond their dissemination of information / public education activities. See, e.g., Elec. Privacy Info. Ctr., 241 F. Supp. 2d 5; Nat’l Sec. Archive, 880 F.2d at 1387; see also
13

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On account of these factors, fees associated with responding to FOIA requests are regularly waived for the ACLU as a “representative of the news media.”52 As was true in those instances, the ACLU meets the requirements for a fee waiver here.
* * *
Pursuant to applicable statutes and regulations, the ACLU expects a determination regarding expedited processing within 10 days. See 5 U.S.C. § 552(a)(6)(E)(ii); 6 C.F.R. § 5.5(e)(4).
If the Request is denied in whole or in part, the ACLU asks that you justify all deletions by reference to specific FOIA exemptions. The ACLU expects the release of all segregable portions of otherwise exempt material. The ACLU reserves the right to appeal a decision to withhold any information or deny a waiver of fees.
Thank you for your prompt attention to this matter. Please furnish the applicable records to:
ACLU Border Litigation Project c/o Mitra Ebadolahi P.O. Box 87131
Leadership Conference on Civil Rights, 404 F. Supp. 2d at 260; Judicial Watch, Inc., 133 F. Supp. 2d at 5354.
52 In May 2016, the FBI granted a fee-waiver request regarding a FOIA request issued to the DOJ for documents related to Countering Violent Extremism Programs. In April 2013, the National Security Division of the DOJ granted a fee-waiver request with respect to a request for documents relating to the FISA Amendments Act. Also in April 2013, the DOJ granted a fee-waiver request regarding a FOIA request for documents related to “national security letters” issued under the Electronic Communications Privacy Act. In August 2013, the FBI granted a fee-waiver request related to the same FOIA request issued to the DOJ. In June 2011, the DOJ National Security Division granted a fee waiver to the ACLU with respect to a request for documents relating to the interpretation and implementation of a section of the PATRIOT Act. In March 2009, the State Department granted a fee waiver to the ACLU with regard to a FOIA request for documents relating to the detention, interrogation, treatment, or prosecution of suspected terrorists. Likewise, in December 2008, the Department of Justice granted the ACLU a fee waiver with respect to the same request. In November 2006, the Department of Health and Human Services granted a fee waiver to the ACLU with regard to a FOIA request. In May 2005, the U.S. Department of Commerce granted a fee waiver to the ACLU with respect to its request for information regarding the radio-frequency identification chips in United States passports. In March 2005, the Department of State granted a fee waiver to the ACLU for a request regarding the use of immigration laws to exclude prominent non-citizen scholars and intellectuals from the country because of their political views, statements, or associations. In addition, the Department of Defense did not charge the ACLU fees associated with FOIA requests submitted by the ACLU in April 2007, June 2006, February 2006, and October 2003. The DOJ did not charge the ACLU fees associated with FOIA requests submitted by the ACLU in November 2007, December 2005, and December 2004. Finally, three separate agencies—the Federal Bureau of Investigation, the Office of Intelligence Policy and Review, and the DOJ Office of Information and Privacy—did not charge the ACLU fees associated with a FOIA request submitted by the ACLU in August 2002. On April 18, 2016, U.S. Immigration and Customs Enforcement did not charge the ACLU-SDIC fees associated with a FOIA request submitted by the ACLU-SDIC in December, 2014. The Department of Homeland Security, including Customs and Border Protection and other components within DHS, did not charge fees associated with a FOIA request submitted by the ACLU of Southern California and ACLU Border Litigation Project in July 2014.
14

Case 3:17-cv-00733-L-JLB Document 1 Filed 04/12/17 PageID.29 Page 29 of 29 San Diego, CA 92138-7131
I affirm that the information provided supporting the request for expedited processing is true and correct to the best of my knowledge and belief. See 5 U.S.C. § 552(a)(6)(E)(vi).
Respectfully,
Mitra Ebadolahi Border Litigation Project Staff Attorney American Civil Liberties Union of San Diego & Imperial Counties Direct: 619.398.4187 Email: mebadolahi@aclusandiego.org
15

 
 Case 3:17-cv-00733-L-JLB Document 33 Filed 07/03/17 PageID.436 Page 1 of 2

1

CHAD A. READLER Acting Assistant Attorney General

2 Civil Division

3

ALANA W. ROBINSON Acting United States Attorney

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

6

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

7

Trial Attorney United States Department of Justice

8

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

9

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

10 Email: chetan.patil@usdoj.gov

11

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

12 Border Protection

13

UNITED STATES DISTRICT COURT

14

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

15 AMERICAN CIVIL LIBERTIES UNION

16 OF SAN DIEGO AND IMPERIAL

17 COUNTIES,

18

19

v.

Plaintiff,

Case No.: 3:17-cv-00733-L-JLB
NOTICE OF SUPPLEMETNAL AUTHORITY

20 U.S. DEPARTMENT OF HOMELAND

21 SECURITY and U.S. CUSTOMS AND Judge: Hon. M. James Lorenz

22 BORDER PROTECTION,

Courtroom: 5B Date: June 26, 2017

23

Defendants.

Time:

24

25

Defendants the U.S. Department of Homeland Security and U.S. Customs and

26 Border Protection hereby provide notice that on June 30, 2017, the United States

27 District Court for the Northern District of Georgia granted Defendants’ motion for

28 a temporary stay of proceedings in one of the thirteen actions that Defendants have

Notice of Suppl. Auth.

- 1 -

Case No.: 3:17-cv-00733-L-JLB

Case 3:17-cv-00733-L-JLB Document 33 Filed 07/03/17 PageID.437 Page 2 of 2

1 asked the Judicial Panel on Multidistrict Litigation to centralize. See ACLU of

2 Georgia, Inc., et al. v. U.S. Dep’t of Homeland Sec., et al., No. 1:17-cv-1309-RWS

3 (N.D. Ga. June 30, 2017) (ECF No. 23). A copy of the Order is attached as Exhibit

4 1. At this time, seven courts have issued a stay of proceedings, and four courts

5 have denied Defendants’ motion for a stay.

6 7 Dated: July 3, 2017

Respectfully submitted,

8

CHAD A. READLER

9

Acting Assistant Attorney General

10

ALANA W. ROBINSON

11

Acting United States Attorney

12

ELIZABETH J. SHAPIRO

13

Deputy Director, Federal Programs Branch

14

/s/ Chetan A. Patil

15

MATTHEW J. BERNS

16

CHETAN A. PATIL

Trial Attorneys

17

United States Department of Justice

18

Civil Division, Federal Programs Branch

19

20 Massachusetts Ave., NW Washington, DC 20530

20

Tel.: (202) 305-4968; Fax: (202) 616-8470

21

Email: chetan.patil@usdoj.gov

22

Attorneys for Defendants U.S. Department

23

of Homeland Security and U.S. Customs and

Border Protection

24

25

26

27

28

Notice of Suppl. Auth.

- 2 -

Case No.: 3:17-cv-00733-L-JLB

Case 3:17-cv-00733-L-JLB Document 33-1 Filed 07/03/17 PageID.438 Page 1 of 9

1

CHAD A. READLER Acting Assistant Attorney General

2 Civil Division

3

ALANA W. ROBINSON Acting United States Attorney

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

6

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

7

Trial Attorney United States Department of Justice

8

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

9

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

10 Email: chetan.patil@usdoj.gov

11

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

12 Border Protection

13

UNITED STATES DISTRICT COURT

14

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

15 AMERICAN CIVIL LIBERTIES UNION

16 OF SAN DIEGO AND IMPERIAL

17 COUNTIES,

18

19

v.

Plaintiff,

Case No.: 3:17-cv-00733-L-JLB
EXHIBIT TO DEFENDANTS’ NOTICE OF SUPPLEMENTAL

20 U.S. DEPARTMENT OF HOMELAND AUTHORITY 21 SECURITY and U.S. CUSTOMS AND

22 BORDER PROTECTION,

23

Defendants.

24

25

26

27

28

Exhibit to Defs.’ Notice of Suppl. Auth. - 1 - Case No.: 3:17-cv-00733-L-JLB

Case 3:17-cv-00733-L-JLB Document 33-1 Filed 07/03/17 PageID.439 Page 2 of 9

1 Exhibit No. Description

1

Order re Defendants’ Motion to Stay

2

Proceedings Pending Decision on Motion to

3

Transfer, ACLU of Georgia, Inc., et al. v. U.S.

Dep’t of Homeland Sec., et al., No. 1:17-cv-

4

1309-RWS (N.D. Ga. June 30, 2017)

5

Page Numbers Ex. 1-001-006

6 Dated: July 3, 2017 7
8
9

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General

10

ALANA W. ROBINSON

Acting United States Attorney 11

12

ELIZABETH J. SHAPIRO

13

Deputy Director, Federal Programs Branch

14

/s/ Chetan A. Patil

15

MATTHEW J. BERNS

CHETAN A. PATIL

16

Trial Attorneys

17

United States Department of Justice

Civil Division, Federal Programs Branch

18

20 Massachusetts Ave., NW

19

Washington, DC 20530

20

Tel.: (202) 305-4968; Fax: (202) 616-8470 Email: chetan.patil@usdoj.gov

21

22

Attorneys for Defendants U.S. Department

of Homeland Security and U.S. Customs and

23

Border Protection

24

25

26

27

28

Exhibit to Defs.’ Notice of Suppl. Auth. - 2 - Case No.: 3:17-cv-00733-L-JLB

Case 3:17-cv-00733-L-JLB Document 33-1 Filed 07/03/17 PageID.440 Page 3 of 9
Exhibit 1
Order re Defendants’ Motion to Stay Proceedings Pending Decision on Motion to Transfer, ACLU of Georgia, Inc., et al. v. U.S. Dep’t of Homeland Sec., et al., No. 1:17-cv-
1309-RWS (N.D. Ga. June 30, 2017)

Case 3:1C7a-scev-10:0177-3c3v--L0-J1L3B09-DRoWcuSmeDnotc3u3m-1entF2il3ed F0il7e/0d30/16/730/P1a7geIPDa.g4e411ofPa6ge 4 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

AMERICANCIVILLIBERTIES UNIONOFGEORGIA,INC., AMERICANCIVILLIBERTIES UNION OF NORTH CAROLINA, INC., AMERICAN CIVIL LIBERTIES UNION OF SOUTH CAROLINA,INC.,and AMERICANCIVILLIBERTIES UNIONOF WESTVIRGINIA, INC.,
Plaintiffs, v. U.S. DEPARTMENT OF HOMELANDSECURITYand U.S. CUSTOMS AND BORDER PROTECTION, Defendants.

: : : : : CIVILACTIONNO. : 1:17-CV-1309-RWS : : : : : : : : : : : : : : :

ORDER

ThiscasecomesbeforetheCourtonDefendants’ MotiontoStay

ProceedingsPendingDecisionon MotiontoTransfer[9]andConsent Motionby

DefendantsforExtensionofTimetoRespondtoComplaint[22]. After

consideringtherecord,theCourtentersthefollowingorder.

AO 72A (Rev.8/82)

Ex. 1-001

Case 3:1C7a-scev-10:0177-3c3v--L0-J1L3B09-DRoWcuSmeDnotc3u3m-1entF2il3ed F0il7e/0d30/16/730/P1a7geIPDa.g4e422ofPa6ge 5 of 9

Background OnFebruary2,2017,PlaintiffssentDefendantsaFreedomofInformation Act(“FOIA”)request,seekingrecordsconcerninglocalimplementationof PresidentTrump’sJanuary27,2017ExecutiveOrdertitled“ProtectingtheNation FromForeignTerroristEntryIntotheUnitedStates”andanyrelatedjudicialor executiveorder.(Compl.,Dkt.[1]¶¶1-2.) OnApril12,2017,Plaintiffsfiledthis actionunderFOIA,allegingthatDefendantsviolatedFOIAby:failingtotimely determinewhethertheywouldcomplywithPlaintiffs’request(CountOne);failing tomaketherequestedrecordsavailable(CountTwo);andfailingtotimely determinewhethertheywouldexpeditetheprocessingofPlaintiffs’request (Count Three). Thiscaseisoneofthirteensimilaractionspendinginthirteendifferent districtcourts. EachofthoseactionsinvolvesidenticalorsimilarFOIArequests directedbytheAmericanCivilLibertiesUnion(“ACLU”)toU.S.Customsand BorderProtectionfieldofficesacrossthecountry. On May8,2017,Defendants filedamotionwiththeJudicialPanelon MultidistrictLitigation(“JPML”)seeking toconsolidatethiscasewiththeothertwelverelatedcasesthattheACLUhas filed. TheJPMLhasscheduledahearingonDefendants’motionforJuly27,
2

AO 72A (Rev.8/82)

Ex. 1-002

Case 3:1C7a-scev-10:0177-3c3v--L0-J1L3B09-DRoWcuSmeDnotc3u3m-1entF2il3ed F0il7e/0d30/16/730/P1a7geIPDa.g4e433ofPa6ge 6 of 9

2017.(Defs.’ReplyBr.inSupp.of Mot.toStayProceedingsPendingDecisionon Mot.toTransfer(“Defs.’ReplyBr.”),Dkt.[16]at6.)
On May12,2017,Defendantsfiledtheir MotiontoStayProceedings[9], askingtheCourttostaythiscasependingadecisionbytheJPMLonwhetherto consolidatethiscasewiththeothertwelve.Plaintiffsopposethestay,arguingthat itwillresultinunfairandunduedelay. OnJune30,2017,Defendantsfileda Consent MotionbyDefendantsforExtensionofTimetoRespondtoComplaint [22],whichwouldextendthetimeforfilingDefendants’responsivepleadingto July 15, 2017.
Discussion I. LegalStandard
“[T]hepowertostayproceedingsisincidentaltothepowerinherentin everycourttocontrolthedispositionofthecausesonitsdocketwitheconomyof timeandeffortforitself,forcounsel,andforlitigants.” Landisv.N.Am.Co.,299 U.S.248,254(1936). Thedecisionwhethertograntordenyastayislefttothe discretionofthecourt.Id.“‘Whenconsideringamotiontostay,thedistrictcourt shouldconsiderthreefactors:(1)potentialprejudicetothenon-movingparty;(2) hardshipandinequitytothemovingpartyiftheactionisnotstayed;and(3)the
3

AO 72A (Rev.8/82)

Ex. 1-003

Case 3:1C7a-scev-10:0177-3c3v--L0-J1L3B09-DRoWcuSmeDnotc3u3m-1entF2il3ed F0il7e/0d30/16/730/P1a7geIPDa.g4e444ofPa6ge 7 of 9

judicialresourcesthatwouldbesavedbyavoidingduplicativelitigationifthe casesareinfactconsolidated.’”Fowlerv.Hamilton Med.Ctr.,Inc.,2008 WL 11336192,at*2(N.D.Ga. May7,2008)(quotingRiversv. WaltDisneyCo.,980 F.Supp.1358,1360(C.D.Cal.1997)). II. Analysis
Havingconsideredtheabovefactors,theCourtfindsthatenteringastayis appropriateatthistime. Tobegin,enteringastaywillnotprejudicePlaintiffs becauseitwillnotfurtherdelaythereleaseofresponsiverecords. Defendants representthatastayofshortduration“wouldhavenoeffectonthetimingof Defendants’releaseofresponsiverecords”fortworeasons.(Defs.’ReplyBr,, Dkt.[16]at2).First,“Defendants’processingoftheACLUaffiliates’FOIA requestsisongoingandwillcontinuewithorwithoutastay.”(Id.at5n.1.) Second,Defendants“havegrantedPlaintiffs’requestforexpeditedtreatmentand haveplacedthecoordinatedrequestsofalltheACLUaffiliatesintheexpedited processingqueue,aheadofallnon-expeditedrequestsandlaterexpedited requests.”(Id.at7.) TheserepresentationsassuagetheACLU’s—andthe Court’s—concernsaboutdelayingthereleaseofresponsiverecords. Aslongas Defendantskeeptotheirrepresentations,astaywillnotrunafoulofPlaintiffs’
4

AO 72A (Rev.8/82)

Ex. 1-004

Case 3:1C7a-scev-10:0177-3c3v--L0-J1L3B09-DRoWcuSmeDnotc3u3m-1entF2il3ed F0il7e/0d30/16/730/P1a7geIPDa.g4e455ofPa6ge 8 of 9

rightsunderFOIA. AndshouldPlaintiffslaterencounternewreasonsforconcern aboutdelay,theCourtcanalwaysconsiderwhetherthecircumstanceswarrant liftingthestay. Asanadditionalnote,Plaintiffs’consenttoextendingDefendants’ timetofileananswerindicatesthatPlaintiffsarewillingtodelaytheproceedings atleasttosomeextentandthattheywillnotbeprejudicedbyaslightdelay.
Turningtothesecondandthirdfactors,absentastay,Defendantsandthe Courtwillbeforcedtoundertakeworkinthiscasethatmayultimatelyprove unnecessary. Whiletheburdenofhavingto“simultaneouslyanswercomplaints, appearinstatusconferences,conferwithopposingcounsel,andsubmitjointstatus reportsinthirteenactions”maynotbeoverwhelming,itisnonethelessworth avoidinggiventhelikelihoodthattheJPMLwillissueadecisioninamatterof weeks.(Defs.’ReplyBr.,Dkt.[16]at9.) Thus,fromanefficiencystandpoint, enteringastayappearstobethebestcourse. Becauseallthreefactorsweighin favorofenteringastay,Defendants’motionisGRANTED.
Conclusion Fortheforegoingreasons,Defendants’ MotiontoStayProceedingsPending Decisionon MotiontoTransfer[9]isGRANTED.ThiscaseisherebySTAYED pendingadecisionfromtheJPMLonwhethertoconsolidatethiscasewiththe
5

AO 72A (Rev.8/82)

Ex. 1-005

Case 3:1C7a-scev-10:0177-3c3v--L0-J1L3B09-DRoWcuSmeDnotc3u3m-1entF2il3ed F0il7e/0d30/16/730/P1a7geIPDa.g4e466ofPa6ge 9 of 9
othertwelverelatedcases. Defendants’Consent MotionbyDefendantsfor ExtensionofTimetoRespondtoComplaint[22]isDENIEDasmoot.
SOORDERED,this30thdayofJune,2017. ________________________________ RICHARD W.STORY United States District Judge

AO 72A (Rev.8/82)

6 Ex. 1-006

 
 Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.467 Page 1 of 81

17cv0733-L-JLB

Jul 06 2017
s/ joanag

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Case MDL No. 2786 Document 79 Filed 06/05/17 Page 2 of 80 Attached hereto as Exhibit A is "PLAINTIFF'S BRJEF IN OPPOSITION TO DEFENDANTS' MOTION TO STAY PROCEEDINGS" filed by the ACLU of Michigan in the United States District Court for the Eastern District of Michigan on June 2, 2017. As indicated in the previously filed MEMORANDUM OF PLAINTIFFS, 42 AMERJCAN CIVIL LIBERTIES UNION AFFILIATES, IN OPPOSITION TO DEFENDANTS' MOTION FOR TRANSFER TO THE DISTRJCT OF COLUMBIA FOR CONSOLIDATION, in footnote 12, the ACLU of Michigan indicated it would file a copy of this response with this Panel.
1

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'

Case MDL No. 2786 Document 79 Filed 06/05/17 Page 3 of 80

Date: June 5, 2017

Respectfully submitted,

Is/ Thomas R. Burke Thomas R. Burke (CSB # 141930)
thomasburke@dwt.com
DAVIS WRIGHT TREMAINE LLP 505 Montgomery St., Suite 800 San Francisco, CA 94111 Phone: (415) 276-6500 Fax: (415) 276-6599
Lead Counsel In this Proceeding for Plaintiffs American Civil Liberties Union ofNorthern California, American Civil Liberties Union ofHawaii, American Civil Liberties Union of Utah, American Civil Liberties Union ofSan Diego and Imperial Counties, American Civil Liberties ofSouthern California, American Civil Liberties Union ofNevada, American Civil Liberties Union ofMaine, American Civil Liberties Union ofNew Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union ofMassachusetts, American Civil Liberties Union ofConnecticut, American Civil Liberties Union ofRhode Island, American Civil Liberties Union ofFlorida, American Civil Liberties Union of Washington, American Civil Liberties Union ofMontana, American Civil Liberties Union of North Dakota, American Civil Liberties Union ofArizona, American Civil Liberties Union of Virginia, American Civil Liberties Union ofMaryland, American Civil Liberties Union of Pennsylvania, American Civil Liberties Union ofDelaware, American Civil Liberties Union ofIllinois, American Civil Liberties Union ofIndiana, American Civil Liberties Union of Iowa, American Civil Liberties Union ofKentucky, American Civil Liberties Union ofMinnesota, American Civil Liberties Union of Missouri, American Civil Liberties Union ofNebraska, American Civil Liberties Union ofOhio, American Civil Liberties Union of South Dakota, American Civil Liberties Union of Wisconsin, American Civil Liberties Union ofOregon, American Civil Liberties Union ofAlaska, American Civil Liberties Union of Colorado, American Civil Liberties Union ofIdaho, American Civil Liberties Union of Wyoming, American Civil Liberties Union ofMichigan, American Civil Liberties Union ofTexas, Inc., American Civil Liberties Union ofGeorgia, Inc., American Civil Liberties Union ofNorth Carolina, Inc., American Civil Liberties Union ofSouth Carolina, Inc., and American Civil Liberties Union of West Virginia, Inc.

2

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'

Case MDL No. 2786 Document 79 Filed 06/05/17 Page 4 of 80

EXHIBIT A

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'

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMERICAN CIVIL LIBERTIES UNION OF Case No. 5:17-CV-11149-JEL-EAS MICHIGAN,

Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY and U.S. CUSTOMS AND BORDER PROTECTION,
Defendants.

Hon. Judith E. Levy Mag. Elizabeth A. Stafford

PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO STAY PROCEEDINGS

24780753.3

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' ISSUE PRESENTED
1. Whether a stay of proceedings pending the decision by the Judicial Panel on Multidistrict Litigation on Defendants' motion to transfer this and twelve other local actions brought by ACLU affiliates in thirteen unique districts is warranted where a stay would not advance judicial economy, Plaintiff would be severely prejudiced by further delay of its time-sensitive FOIA requests, and Defendants would suffer no hardship ifthe action is not stayed? Plaintiffanswers "No. "
I

Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.473 Page 7 of 81 MOST APPROPRIATE AUTHORITIES
1. The Freedom oflnformation Act, 5 U.S.C. § 552 2. In re iPhone Application. Litig., No. 10-cv-5878-LHK, 2011 WL 2149102
(N.D. Cal. May 31, 2011) 3. Smith v. City ofInkster, No. 12-15440, 2016 WL 6277181 (E.D. Mich. Oct.
27, 2016)
11

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TABLE OF AUTHORITIES Page(s)
CASES
555 M Mfg., Inc. v. Calvin Klein, Inc., 13 F. Supp. 2d 719 (N.D. Ill. 1998) .................................................................... 18
ACLUv.DOD, 2006 WL 1469418 (N.D. Cal. May 25, 2006) .................................................... 12
Arab American Civil Rights League v. Trump, No. 17-10310 (E.D. Mich. Feb. 2, 2017) (Roberts, J.) .........................................4
Barber v. BP, PLC, 2010 WL 2266760 (S.D. Ala. June 4, 2010) ...................................................... 17
Bearup v. Pfizer, Inc., No. 15CV13995, 2015 WL 9266908 (E.D. Mich. Dec. 16, 2015) (Levy, J.) ............................................................................................................. 14
Donald J. Trump, eta!., v. !RAP, et al. (June 1, 2016), available at https ://www.documentcloud.org/documents/3765441-16A-Trumpv-IRAP-CA4-Stay-Application-amp-Addendum.html ...................................... 13
Donham v. US. Dep'tofEnergy, 192 F. Supp. 2d 877 (S.D. Ill. 2002)............;........................................................3
EP!Cv. DOJ, 416 F. Supp. 2d 30 (D.D.C. 2006) ...................................................................... 12
Ferguson v. FBI, 722 F. Supp. 1137 (S.D.N.Y. 1989) .............................................................. .3, 12
Freedom Commc 'ns Inc. v. FDIC, 157 F.R.D. 485 (C.D. Cal. 1994).......................................................................... 3
Gerstein v. CIA, 2006 WL 3462658 (N.D. Cal. Nov. 29, 2005) ................................................... 12
111

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Gilmore v. Dep 't ofEnergy, 33 F. Supp. 2d 1184 (N.D. Cal. 1998) ..................................................................2
Grove Fresh Distributors, Inc. v. Ever.fresh Juice Co., 24 F. 3d 893 (7th Cir. 1994) ............................................................................... 13
Hamlin v. Kelley, 433 F. Supp. 180 (N.D. Ill. 1977) ....................................................................... 13
In re iPhone Application. Litig., No.10-cv-5878-LHK,2011 WL2149102(N.D.Cal.2011) ............................. 11
Keys v. Dep 't ofHomeland Sec., 570 F. Supp. 2d 59 (D.D.C. 2008) ...................................................................... 16
Landis v. N Am. Co.,
299 u.s. 248 (1936) ............................................................................................ 15
Longv. IRS, 693 F.2d 907 (9th Cir. 1982) .............................................................................. 13
In re Maxwell Techs., Inc., 2014 WL 2919297 (S.D. Cal. June 26, 2014) .................................................... 16
Nebraska Press Ass 'n v. Stuart,
423 u.s. 1327 (1975) .......................................................................................... 14
Ramos v. Capital One, 2017 WL 895635 (N.D. Cal. Mar. 7, 2017) ....................................................... 16
Schroder v. Hess Industries, Inc., No. 1:12-CV-668, 2013 WL 2389489 (E.D. Mich. May 30, 2013) ................... 15
Sehler v. Prospect Mortgage, LLC, 2013 WL 5184216 (E.D. Va. Sept. 16,2013) .................................................... 17
Smith v. City ofInkster, No. 12-15440,2016 WL 6277181, at *2 (E.D. Mich. Oct. 27, 2016) ........................................................................................... 11
St. Joe Co. v. Transocean Offihore Deepwater Drilling Inc., 774 F. Supp. 2d 596 (D. Del. 2011).................................................................... 17
IV

Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.476 Page 10 of 81
Sullivan v. Cottrell, Inc., 2012 WL 694825 (W.D.N.Y. Feb. 29, 2012) ..................................................... 17
STATUTES
5 U.S.C. § 552(a)(4)(A)(ii)(II) ................................................................................... 8 5 U.S.C. § 552(a)(4)(A)(iii) ................................................................................... 7, 8 5 U.S.C. § 552(a)(4)(C) ............................................................................................. 3 5 U.S.C. § 552(a)(6)(A)(i) ......................................................................................... 2 5 U.S.C. § 552 (a)(6)(B) .......................................................................................... 10 5 U.S.C. § 552(a)(6)(E)(v)(II)............................................................................2, 7, 8 28 U.S.C. § 1657(a) ................................................................................................... 3 FOIA ................................................................................................................ passim Freedom of Information Act ......................................................................................2
OTHER AUTHORITIES
6 C.P.R.§ 5.3(a)(1) .................................................................................................. 15 H.R. Rep. 98-985,4, 1984 U.S.C.C.A.N. 5779 ......................................................... 3 H.R. Rep. 98-985, 5-6, 1984 U.S.C.C.A.N. 5779 ................................................... 12 US., THE GUARDIAN (Nov. 15,2016 7:33PM),
https://www.theguardian.com/us-news/20 15/nov/15/michiganmuslim-majority-city-council-hamtramck-detroit................................................ 5
v

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I. INTRODUCTION Defendants U.S. Department of Homeland Security ("DHS") and U.S. Customs and Border Patrol ("CBP") (collectively, "Defendants" or the "Agencies") filed a Motion to Stay Proceedings (the "Motion" or "Motion to Stay") in order to impose a prejudicial delay on Plaintiff American Civil Liberties Union of Michigan ("ACLU of Michigan" or "Plaintiff') and suspend its access to documents of immediate public concern. The Agencies ultimately seek to undermine FOIA's central purpose, which is to inform the American public and keep the government accountable. Granting the Motion to Stay would provide the Agencies with nothing but more time to stall. The ACLU of Michigan initiated this action in order to obtain governmental records from the Detroit CBP Field Office concerning the local implementation of President Trump's January 27, 2017 and March 6, 2017 Executive Orders at Michigan's airports and land borders with Canada. Nearly four months have elapsed since the ACLU of Michigan submitted its two FOIA requests on February 2 and February 10, 2017. The Agencies have nevertheless refused to produce any substantive response. Indeed, while the Agencies have granted Plaintiffs request for expedited processing, they have failed to produce a single document. The Agencies argue that the Court should stay this proceeding until the Judicial Panel on Multidistrict Litigation ("JPML") rules on a motion to consolidate
1

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this litigation in Washington, D.C. with other FOIA lawsuits seeking different local records from different local CBP field offices. The Agencies however fail to acknowledge that a ruling by the JPML would have no dispositive effect on the requests in this action. Indeed, Plaintiff only seeks records held by the Detroit CBP Field Office, and its FOIA requests are in no way affected by litigations in other jurisdictions. And, regardless of whether this action is consolidated with other litigations, the Agencies will nevertheless need to answer the Complaint and submit a production schedule. The Court should therefore not delay this action any further but should instead require that the Agencies respond to the pending Complaint. The Motion to Stay should be denied.
II. BACKGROUND A. The Freedom of Information Act
Congress enacted FOIA in order to limit the ability of federal agencies to unilaterally dictate how and, crucially here, when to respond to requests for public records. "Congress intentionally set harsh time limits for agencies to respond to FOIA requests because it recognized that information is often useful only if it is timely." Gilmore v. Dep 't ofEnergy, 33 F. Supp. 2d 1184, 1189 (N.D. Cal. 1998). Accordingly, FOIA requires a federal agency to respond to any request within twenty (20) days, 5 U.S.C. § 552(a)(6)(A)(i), and, in cases of heightened public interest like this, it creates an enforceable right to expedited disclosure. 5 U.S.C.
2

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§ 552(a)(6)(E)(v)(II). To prevent attempts by agencies to circumventthese standard, expedited deadlines, Congress has narrowed the circumstances under which agencies may extend the time limitations, and courts routinely deny stays requested by agencies seeking to suspend those deadlines. See Donham v. U.S. Dep't of Energy, 192 F. Supp. 2d 877, 882 (S.D. Ill. 2002) (collecting cases and holding that agency backlogs do not justify stays or suspend expedited processing).
Further, to prevent crowded dockets or inefficient case management from undermining these provisions, FOIA mandates prompt judicial review in adjudicating FOIA disputes. See, e.g., Ferguson v. FBI, 722 F. Supp. 1137, 1144 (S.D.N.Y. 1989) ("Prompt review ... is critical to FOIA users and to the purposes ofthe Act"). For example, FOIA provides the United States only thirty (30) days to respond to a complaint under the act, 5 U.S.C. § 552(a)(4)(C). Similarly, the Priorities Act requires courts to expedite deadlines and the processing of responsive records in FOIA actions where the FOIA claims are non-frivolous and involve timesensitive records. 28 U.S.C. § 1657(a); Ferguson, 722 F. Supp. At 1144; Freedom Commc'ns Inc. v. FDIC, 157 F.R.D. 485, 486 (C.D. Cal. 1994) (The "special designation makes FOIA actions first among equals."); see also H.R. Rep. 98-985, 4, 1984 U.S.C.C.A.N. 5779, 5782-84 (expedited treatment is necessary where "there is a special public or private interest in expeditious treatment oftheir case" or where "failure to expedite would result in mootness or deprive the relief requested ofmuch
3

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of its value"). B. CBP's Local Implementation of the Executive Orders
On January 27, 2017, President Trump signed an Executive Order entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States." (Compl. (Dkt. No. 1) at~ 2.) Among other things, the Executive Order purported to halt refugee admissions and bar entrants from several predominantly Muslim countries from entering the United States. (Jd. at ~ 5.) News reports described Defendants' implementation of the Executive Order as "chaotic" and "total[ly] lack[ing] ... clarity and direction." (Jd. ~ 4.) On March 6, 2017, President Trump issued another identically titled Executive Order after at least five lawsuits resulted in emergency court orders enjoining implementation of various sections of the first Executive Order, (id. at ~~ 2, 7), including a nationwide injunction issued in the Eastern District of Michigan barring application of the Executive Order to lawful permanent residents in a suit brought by Michiganders who were stranded or whose loved ones were stranded outside the country. See Arab American Civil Rights League v. Trump, No. 17-10310 (E.D. Mich. Feb. 2, 2017) (Roberts, J.).
The Agencies' implementation of the two Executive Orders was the subject of significant public concern, as reflected by mass protests around the country, substantial news coverage and multiple lawsuits following the President's signing of each Executive Order. (Id. ~ 6.) Federal officials issued conflicting and
4

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contradictory interpretations of the Executive Order. (Jd. ~ 9.) The unprecedented nature of and lack of clarity in the Executive Order, along with the continually evolving and contradictory interpretations by Federal officials created uncertainty among travelers, lawful permanent residents, dual-citizens and immigration attorneys. See Exs. 1, 2, 3.
The impact the Executive Orders had was felt particularly strongly in Michigan due to the state's demographic composition and shared border with Canada. Ofthe major metropolitan areas in the United States, Detroit has the highest number ofresidents per capita from the countries barred under the Executive Orders. (Compl. ~ 19.) The large Muslim population is particularly concentrated in some areas near the Michigan-Canada border. For example, Dearborn, Michigan has the highest percentage of Muslims in the country. Nearby cities, such as Hamtramck, Livonia, Sterling Heights, and Warren, also have a large number of Muslim residents.' Michigan also ranks fourth among states resettling refugees, having welcomed more than 4,250 individuals in fiscal year 2016. (Compl. ~ 16.) Michigan residents were therefore among the most severely impacted by the Executive Orders, with confusion surrounding the Order evident at both Michigan airports and
' See Ryan Felton, Michigan Town Said to Have First Majority Muslim City Council in the U.S., THE GUARDIAN (Nov. 15, 2016 7:33 PM), https://www.theguardian.com/us-news/20 15/nov/15/michigan-muslim-majoritycity-council-hamtramck-detroit.
5

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Michigan's land borders. (Compl. 'lf'lf 11, 14, 16.)
In the wake of the issuance of the Executive Order, CBP detained, interrogated, and adjudicated people at Michigan's airports and land borders.
(Compl. at 'lf'lf 11-15.) While the total number ofindividuals is unknown (and indeed
is a subject of the FOIA requests), information on specific incidents gives some sense of the chaos at Michigan's borders. For example, both a U.S. citizen and her husband, a U.S. permanent legal resident and Canadian citizen, were detained shortly after the issuance of the first Executive Order. See Ex. 1. The couple was detained for several hours during which time agents were unresponsive regarding their status and unable to give any concrete answers about when they could be let go. See id. CBP agents in fact told travelers that they did not know what was going on, "this [was] above our pay grade," and they were waiting for further clarification. See id. C. The Airport Request
In light of such confusion and the pressmg public concern about the implementation ofthe first Executive Order, on February 2, 2017 (six days after the Order was issued), the ACLU of Michigan submitted a FOIA request (the "Airport Request") seeking records related to CBP's local interpretation and enforcement of the Executive Order at Detroit Metropolitan Airport and the Detroit Metropolitan
Airport Land Border Office. (Compl. at 'lf'lf 24-25.) The Airport Request focused on
6

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the CBP's Detroit Field Office and expressly did not seek information held in the records ofCBP Headquarters. (!d. at~~ 25-26.)
The Airport Request included an application for expedited processing citing the "compelling need" for these records under 5 U.S.C. § 552(a)(6)(E)(v)(II) because the information requested is "urgen[tly]" needed by an organization primarily engaged in disseminating information "to inform the public concerning actual or alleged Federal Government activity."2 (Jd at~ 28.)
The CBP Detroit Field Office received the Airport Request on February 7, 2017 and the CBP Headquarters FOIA Officer received the Airport Request on February 9, 2017. (!d. at~ 33.) CBP's Detroit Field Office acknowledged receipt of the Airport Request in a letter dated February 16, 2017. (Compl. at~ 34.) The letter did not otherwise comment on Plaintiffs requests expedited processing. (Compl., Ex. E.) In its acknowledgement of receipt, CBP did not provide a determination as to whether, or when, CBP would comply with the Airport Request. !d.
2 The Airport Request also included an application for a fee waiver or limitation under 5 U.S.C. § 552(a)(4)(A)(iii) on the grounds that disclosure of the requested records was in the public interest and was "likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest ofthe requester." (!d. at ~ 31.)
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D. The Land Border Request On February 10, 2017, the ACLU of Michigan submitted a second FOIA
request (the "Land Border Request") seeking records related to CBP's local interpretation and enforcement ofthe Executive Order at certain land border offices, including at the Detroit-Windsor Tunnel, Detroit, the Ambassador Bridge, Detroit, the International Bridge, and the Blue Water Bridge, Port Huron ("Land Border Offices"). (Compl. at~~ 36-3 7.) The Land Border Request focused on information held at the CBP's Detroit Field Office and expressly did not seek information held in the records ofCBP Headquarters. (!d. at~ 37.)
The Land Border Request also included an application for expedited processing, on the grounds that there was a "compelling need" for these records under 5 U.S.C. § 552(a)(6)(E)(v)(II) because the information requested was "urgen[tly]" needed by an. organization primarily engaged in disseminating information "to inform the public concerning actual or alleged Federal Government activity."3 (!d. at~ 39; Compl. Ex. B at 8.)
3 The Land Border Request further included an application for a fee waiver or limitation under 5 U.S.C. § 552(a)(4)(A)(iii) on the grounds that disclosure of the requested records was in the public interest and was "likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." (Compl. at~ 42.) The Land Border Request also applied for a waiver of search fees under 5 U.S.C. § 552(a)(4)(A)(ii)(II) on the grounds that Plaintiff qualifies as "representatives of the news media" and the records are not sought for commercial use. (!d. at~ 43.)
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The CBP Detroit Field Office received the Land Border Request on February 13, 2017 and the CBP Headquarters FOIA Officer received the Land Border Request on February 17, 2017. (!d. at, 44.) The CBP's Detroit Field Office acknowledged receipt of the Land Border Request in a letter dated February 16, 2017. (Compl., Ex. F.) This acknowledgement of receipt did not provide a determination as to whether the CBP will respond to the Request, nor did it acknowledge ACLU's request for an expedited response. (!d.)
III. PROCEDURAL BACKGROUND On Aprill2, 2017-after receiving no substantive response to its FOIA requests for more than two months-the ACLU of Michigan filed its Complaint before this Court. The ACLU of Michigan alleges that Defendants violated FOIA by failing to (1) provide a determination whether they would comply with the request within 20 business days; (2) promptly make available the records sought by Plaintiff; and (3) respond to the ACLU of Michigan's request for expedited processing within ten days. (Compl. at,, 52-53, 56-57, 61-62.) The Agencies responded by filing a motion with the Judicial Panel on Multidistrict Litigation ("JPML") on May 8, 201 7, seeking to transfer this case to the United States District Court for the District of Columbia in order to coordinate pretrial proceedings with twelve other FOIA lawsuits. (Dkt. No. 14.) The other litigations were filed by ACLU affiliates in other jurisdictions, each involving
9

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different FOIA requests for different local records held by different regional CBP offices. None of the other suits involve the records at issue in this lawsuit, i.e., the records held by the Detroit CBP Field Office. Notably, this Complaint is the only pleading that seeks records in two separate FOIA requests. Unlike any of the other cases, the ACLU of Michigan is seeking records not just for the local airports, but also records for land border crossings between Michigan and Canada.
On May 19, 20 17, the Agencies filed with this Court a Motion to Stay Proceedings Pending Decision on Motion to Transfer. (Dkt. No. 16.) The Agencies' Motion for Stay is the only motion currently pending.
On May 26, 2017, the Director of FOIA Appeals and Litigation, Kevin L. Tyrrell, sent a letter to the various ACLU affiliates involved in pending litigation regarding the eighteen FOIA requests received on February 2, 2017 and the Michigan Land Border Request received on February I0, 2017. Mr. Tyrrell invoked a ten-day extension pursuant to 5 U.S.C. § 552 (a)(6)(B). The letter granted the request for expedited processing, thereby acknowledging the time sensitivity of release of these records.4 To date, Defendants have yet to provide a single record responsive to the ACLU of Michigan's FOIA requests. In addition, to the best of the ACLU of Michigan's knowledge, CBP's Detroit Field Office has not publicly
4 The letter also assigned the pending requests a single reference number and granted a fee waiver. However, the letter did not provide a determination as to whether the waiver of search fees was to be granted.
10

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disclosed any ofthe instructions its local officials were provided with respect to the Executive Order nor any records explaining its interpretation ofthe order.
IV. ARGUMENT When filing a motion to stay, a party must plead the following factors: "(1) conserving judicial resources and avoiding duplicative litigation; (2) hardship and inequity to the moving party if the action is not stayed; and (3) potential prejudice to the non-moving party." See In re iPhone Application. Litig., No. 10cv-5878-LHK, 2011 WL 2149102, at *2 (N.D. Cal. May 31, 2011)(denying motion to stay for failure to sufficiently allege elements); see also Smith v. City ofInkster, No. 12-15440,2016 WL 6277181, at *2 (E.D. Mich. Oct. 27, 2016) (denying motion to stay where movant's alleged hardship was speculative). No one factor is determinative, and courts instead consider and balance all ofthe factors. See Smith, 2016 WL 6277181 at *2. The Agencies have failed to demonstrate that any ofthese factors favor a stay, likely because each element weighs strongly against further delaying these proceedings. Instead, the Agencies argue that "[a] stay of proceedings, for the sole purpose and duration necessary for the JPML to decide Defendants' motion" is appropriate. (Mot. at 4.) Not so. What's more, the Agencies overlook well-settled provisions of FOIA, through which any further delays in the adjudication of Defendants' continuing noncompliance would prejudice Plaintiffs right of timely
11

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access to critical information regarding a matter of significant public concern. A. The ACLU of Michigan Will Be Prejudiced By A Stay In The
Proceedings The ACLU of Michigan (and the public it represents) would be severely prejudiced by any additional delay in these proceedings, given the nature of the FOIA requests and the information in question. Indeed, the Motion to Stay inherently prejudices the very rights that FOIA guarantees. Ferguson v. FBI, 722 F. Supp. 1137, 1144 (S.D.N.Y. 1989) ("Prompt review of decision denying access to government information is critical to FOIA users and to the purposes of the Act."); see also H.R. Rep. 98-985, 5-6, 1984 U.S.C.C.A.N. 5779, 5783-84 ("[T]he value of disclosed information is transitory. If this information is not released in a timely manner, it may be of no value at all."). Indeed, like other cases involving "great public and media attention" to controversial actions of government, the public's interest in transparency is particularly vulnerable to delays. EPIC v. DOJ, 416 F. Supp. 2d 30, 42 (D.D.C. 2006); see also ACLU v. DOD, 2006 WL 1469418, at *7-8 (N.D. Cal. May 25, 2006) ("Getting the requested information quickly might be valuable to would-be protestors and opposition groups" to "help them decide how to express their political viewpoints"); Gerstein v. CIA, 2006 WL 3462658, at *6 (N.D. Cal. Nov. 29, 2005) (requiring expedited processing about "an issue that is not only newsworthy, but was the subject of an ongoing national debate"). The ACLU of Michigan has waited nearly four months since submitting the
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Airport and Land Border Requests. And yet, today, the Agencies are able to provide nothing more than further delay. In the Motion to Stay, the Agencies claim that this action should be stayed until the JPML rules on its motion to consolidate at the end of July-nearly six months after the FOIA requests were issued. This is precisely the prejudice that FOIA seeks to prevents See Long v. IRS, 693 F.2d 907, 910 (9th Cir. 1982) ("[U]nreasonable delays in disclosing non-exempt documents violate the intent and purpose ofFOIA, and the courts have a duty to prevent these abuses."); Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F. 3d 893, 897 (7th Cir. 1994) ("[T]o delay or postpone disclosure undermines the benefit ofpublic scrutiny and may have the same result as complete suppression.").
As discussed above, FOIA was enacted to guarantee the very accountability that the Agencies ask this Court to suspend. Hamlin v. Kelley, 433 F. Supp. 180, 182 (N.D. Ill. 1977) ("Congress established strict time limits to prevent the present practices of defendants, and it is Congress' decision in law and not the agencies in
5 Ironically, on June 1, 2017, the Department of Justice filed a petition for a writ of certiorari in Trump v. International Refugee Assistance Project seeking reversal of an injunction against implementation of the travel ban, accompanied by a request to expedite briefing before the Supreme Court given "the exceptionally important issues presented". See Application for Stay Pending Disposition of a Petition for a Writ of Certiorari to the United States Court ofAppeals for the Fourth Circuit and for Expedited Briefing and Consideration at 41, Donald J. Trump, eta/., v. !RAP, et a/. (June 1, 2016), available at https ://www.documentcloud.org/documents/3765441-16A-Trump-v-IRAP-CA4Stay-Application-amp-Addendum.html.
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delay which governs this case."). In addition, by arguing that "Plaintiffs would not . be prejudiced by the limited stay that Defendants have requested," the Agencies in fact fail to cite a single FOIA case.6 (Mot. at 8 (citing Davis v. Pfizer, Inc., 2014 WL 1599005, at *1 (N.D. Cal. Apr. 21, 2014) (products liability action) and American Seafood, Inc. v. Magnolia Processing,Inc., 1992 WL 102762, at *1 (E.D. Pa. May 7, 1992) (antitrust lawsuit against catfish producer)).)
The Agencies do not refute the continuing harm caused by their noncompliance. Instead, Defendants suggest that it should be excused because they "anticipate" that the MDL Panel will hold argument on their Motion to Consolidate at the end of July, and, expecting a quick ruling, claim that the stay "would likely be of limited duration." (Mot. at 8.) However, where access to information is unlawfully restricted, "each passing day" works irreparable harm to the public conversation that relies on it, as "suppressed information grows older" and "[o]ther events crowd upon it." Nebraska Press Ass 'n v. Stuart, 423 U.S. 1327, 1329 (1975) ("Delay itself is a final decision."). B. The Agencies Will Not Suffer Any Hardship If A Stay Is Denied
Defendants have failed to carry their burden of demonstrating a "clear case of
6 Defendants' reliance on this Court's decision in Bearup v. Pfizer, Inc., No. 15CV13995, 2015 WL 9266908 (E.D. Mich. Dec. 16, 2015) (Levy, J.) is not controlling here and can be distinguished. In Bearup, a products liability and not a FOIA case, the MDL had already issued an order temporarily consolidating the cases at issue. No such order has been entered here.
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hardship or inequity in being required to go forward. Landis v. N Am. Co., 299 U.S. 248,255 (1936); see also Schroder v. Hess Industries, Inc., No. 1:12-CV-668, 2013 WL 2389489, at *1 (E.D. Mich. May 30, 2013) (quoting Landis). Instead, the Agencies complain that they would be required to respond to thirteen ''materially identical" complaints, without acknowledging that each complaint presents locationand fact-specific questions. Defendants further speculate about what might happen as a result ofa JPML ruling to consolidate that they wrongly treat as inevitable. Mot. at 7. As set out in the ACLU Affiliates' Opposition to Defendants' Motion for Transfer to the District of Columbia for Consolidation, Ex. 4 (Dkt. No. 19, Ex. 1), there are strong arguments against transfer. Moreover, as the Opposition explains, the Michigan litigation is unlike any of the other cases because it seeks land border records, and therefore should not be consolidated even if the JPML decides to consolidate the other actions.
The Agencies submit that a stay would avoid "competing demands on the same agency personnel-yet such a procedure for processing the Michigan FOIA requests would subvert DHS and CBP policy for responding to FOIA requests, which describes a "decentralized system for responding to FOIA requests" and direct requesters to make requests to local offices for the "quickest possible response." 6 C.F.R. § 5.3(a)(1). Moreover, Defendants' cannot be allowed to manufacture a
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hardship,7 when they will be required to search locally for documents relevant to each action.
In reality, the only concrete hardship the Agencies identify is that they might be forced to defend this action on a normal schedule-notwithstanding that Plaintiff already agreed to extend their deadline for answering the Complaint by a month. Mot. at 6-7. Defendants' conclusory, speculative statements of harm cannot justify the imposition of a stay, especially not in light of the time-sensitive nature ofFOIA litigation. See, e.g., Ramos v. Capital One, 2017 WL 895635, at *3 (N.D. Cal. Mar. 7, 2017) ("Aside from conclusory assertions, Defendants have not provided any detail as to why simultaneous litigation of this case and [another] case that have substantial overlap in their factual and legal issues would cause a significant burden."); In re Maxwell Techs., Inc., 2014 WL 2919297, at *1 (S.D. Cal. June 26, 2014) (denying stay because moving party's claim of hardship was "speculative"). Complying with the requirements of FOIA is not a hardship, and the Agencies cannot rely on speculation about what might happen before the MDL to avoid their responsibilities.
7 It is improper to delay referral from local CBP field offices to CBP Headquarters until after a lawsuit for noncompliance has been initiated. See, e.g., , Keys v. Dep 't ofHomeland Sec., 570 F. Supp. 2d 59,70 (D.D.C. 2008) (referral was not prompt and significantly delayed resolution ofFOIA request).
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In Barber v. BP, PLC, 2010 WL 2266760, at *2 (S.D. Ala. June 4, 2010), the court denied a stay while an MDL action was pending, stating that the motion to stay was "premature" and that its only effect would be to give the defendants a monthslong "reprieve" before answering the Complaint. The court reasoned that such a delay, which Defendants likewise seek to impose here, would be "unnecessary and unwarranted," and that "there is no reason in the world why defendants cannot file responsive pleadings prior to the MDL's determination on the pending transfer and consolidation issues, because regardless of the MDL's decision, "defendants will need to file answers or responsive pleadings.'' !d. Here, this Court should deny a stay for precisely the same reasons, as Defendants have delayed responding to Plaintiffs FOIA requests for months already, the Agencies have already been granted an extension oftheir answer deadline by Plaintiff, and Defendants will have to answer Plaintiffs Complaint regardless of what court this action proceeds in. C. A Stay Will Not Promote Judicial Economy
Contrary to the Agencies' assertions, courts do not grant motions to stay while MDL proceedings are pending as a matter of course. See, e.g., See, e.g., Sehler v. Prospect Mortgage, LLC, 2013 WL 5184216, at *3 (E.D. Va. Sept. 16, 2013); Sullivan v. Cottrell, Inc., 2012 WL 694825, at *4 (W.D.N.Y. Feb. 29, 2012); St. Joe Co. v. Transocean Offshore Deepwater Drilling Inc., 774 F. Supp. 2d 596, 601 (D. Del. 2011); Barber v. BP, PLC, 2010 WL 2266760, at *2 (S.D. Ala. June 4, 2010).
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Rather, judicial economy only favors a stay where "adjudication of the claim would be a waste ofjudicial effort." 555 M Mfg., Inc. v. Calvin Klein, Inc., 13 F. Supp. 2d 719, 724 (N.D. Ill. 1998). No matter what court this action proceeds in, Defendants will have to answer the Complaint and conduct records searches specific to the local CBP field offices and Plaintiffs two FOIA requests, and judicial economy is not advanced by suspending these responsibilities until at least the end of July. Judicial economy is in fact advanced by compliance with FOIA's requirements, and the parties only find themselves before this Court because Defendants have refused to carry out their statutory responsibilities.
Despite the Agencies' claims, the records requested by the ACLU of Michigan from the Detroit CBP field office are wholly different from the records requested by other ACLU affiliates from other CBP field offices in other cases, a fact that is especially clear because the ACLU of Michigan was the only affiliate to submit an additional FOIA request for information regarding the land border crossings. Indeed, the ACLU of Michigan is prepared to negotiate a production schedule under which the documents regarding the implementation ofthe Executive Order at the Canadian/Michigan border would be released first, meaning it is likely that the JPML will rule before production of the Detroit Metropolitan Airport documents (which again require a local search) would even be due. Because the ACLU of Michigan is not seeking agency-wide records, and is only seeking non-
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overlapping, locally maintained records, Defendants' unilateral decision to coordinate a centralized search through its headquarters is improper and only serves to harm judicial economy. The adequacy of a centralized search for locally-specific records will be subject to challenge by every ACLU plaintiff, and it would be more efficient to have each local tribunal adjudicate these context-specific disputes rather than educate a single tribunal about facts specific to nearly every state in the country. A stay would only harm the ability to resolve conflicts in this litigation while the MDL ruling is pending for months.
CONCLUSION The Agencies have failed to meet their burden to show that a stay of proceedings is warranted. As such, the Court should deny the stay.

Dated: June 2, 2017

Respectfully submitted,
By: Is/ Gabriel E. Bedoya
Gabriel E. Bedoya (P80839) AndrewM. Pauwels (P79167) Andrew M. Goddeeris (P80674) 2290 First National Building 600 Woodward Avenue Detroit, Michigan 48226 (313) 465-7254 gbedoya@honigman.com apauwels@honigman.com agoddeeris@honigman.com
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Michael J. Steinberg (P43085) Kary Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, Michigan 48201 (313) 578-6800 msteinberg@aclurnich.org Miriam J. Aukerman (P63165) American Civil Liberties Union Fund of Michigan 1514 Wealthy SE, Suite 242 Grand Rapids, M149506 (616) 301-0930 maukerman@aclumich.org Attorneys for PlaintiffAmerican Civil Liberties Union ofMichigan
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Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.497 Page 31 of 81 CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing was served on the attorneys of record in this matter by efiling on June 2, 2017.
The statement above is true to the best of my knowledge, information and belief.
Is/ Gabriel E. Bedoya Gabriel E. Bedoya
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INDEX OF EXHIBITS

Exhibit 1: Exhibit 2: Exhibit 3: Exhibit 4:

Declaration of Farah Al-Khersan
Declaration of Ruby Robinson
Declaration of Ahmed Shalabi, MD
Memorandum of Plaintiffs, 42 American Civil Liberties Union Affiliates, In Opposition to Defendants' Motion for Transfer to the District of Columbia for Consolidation

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EXHIBIT 1

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMERICAN CIVIL LIBERTIES UNION OF

MICHIGAN,

Case No. 2:17-CV-11149-JEL-EAS

Plaintiff, v.

Judge Judith E. Levy Magistrate Judge Elizabeth A. Stafford

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

Defendants.

DECLARATION OF FARAH AL-KHERSAN
I, Farah Al-Khersan, hereby declare and state as follows:
1. I am over the age of eighteen (18) and am competent to attest to this Declaration. I have personal knowledge ofthe facts set forth herein, and if called to testify, I could and would competently testify hereto.
2. I am an attorney licensed in the State of Michigan with Attorney Number: P80152.
3. I am an Iraqi-born, naturalized United States citizen.
4. My family and I immigrated to the United States in 1998, and I became a naturalized United States citizen in 2013 during my first year of law school.
5. My husband, Osama Fadel, is an Iraqi-born Canadian citizen and lawful permanent resident of the United States.
6. My husband and I currently live in West Bloomfield, Michigan.
7. I am a practicing attorney with the law firm, Law Office of Michael Carlin PLLC, which focuses on immigration law.

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5:17(GasNMilbJ\Iill..-~:MD IDl:m;tlri19Fll79'ihffii96/0WCl!i/11"g l&qfEB35~$D 226
8. I have practiced immigration and nationality law on a full-time basis as a licensed attorney since November of2015. Prior to graduating law school, I worked with Wayne State University Law School's Asylum and Immigration Clinic as well as the Immigration Court in Detroit.
9. I have also worked with Justice for Our Neighbors of Southeastern Michigan, serving as an appointment coordinator and translator for immigrants.
10. My husband and I were in Canada on Friday, January 27, 2017, the day President Trump signed his Executive Order banning individuals from seven countries. We had driven to Sarnia, Canada, which is located minutes from the U.S.-Canada border, to visit my husband's parents. Originally, my husband and I had planned to stay the night in Sarnia.
11. As an immigration attorney, I had read the Order, but I was unprepared for the far-reaching consequences and chaos that ensued shortly after it was put into effect. I believed that my husband would not be affected by the Order.
12. As the night progressed at my in-law's house, I began to receive numerous messages and alerts from other attorneys, colleagues, and organizations I had worked with expressing concern about the Order. These messages expressed the worry that the Order was a lot more far-reaching than originally thought. There was an overwhelming concern that anyone from any of the seven countries designated in the Order, including anybody who had green cards and was born in one of those countries, or even non-immigrant visas, such as student visas, were going to be affected.
13. Due to these concerns, I woke up my sleeping husband and headed for the border around 11 :00 p.m. in order to beat the morning rush. We arrived at the U.S.-Canada border about half an hour later to my best recollection.
14. Once we arrived at the Port Huron crossing at the U.S.-Canada border, we were stopped. We were told by Customs and Border Protection (CBP) agents to get out of the car and go inside an office due to the order and that it would not take long. Agents took our car keys, my
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U.S. passport card, my husband's Canadian passport and U.S. green card. The officers kept saying that due to the Order, we had to wait, but that they were not sure for how long.
15. One ofthe officers proceeded to ask me and my husband a long range of questions about when we left Iraq. These included such questions as where did we go, how did I naturalize, how did my husband get here, who did we know in Iraq, and when was the last time we were in Iraq.
16. This was concerning because although my husband and I had been born in Iraq, we had not been back there since the 1990's when our families fled from persecution.
17. Agents asked when I had become a naturalized citizen and why we were in Canada. Agents also searched our car but were unable to give any concrete answers about when we could be let go, telling us that they didn't know what was going on, that "this is above our pay grade" and that they were waiting for further clarification.
18. At this point on Friday night, the situation for dual nationals, specifically a national of one ofthe seven affected countries and an additional country not on the list, such as my husband, was unclear.
19. Eventually, I was told that while I was free to go, my husband was required to stay.
20. The Agents stated we could call someone, but we never got the chance. My husband and I later found out that around that same time, my husband's parents, also born in Iraq and Canadian citizens, were worried about us because we had not called them. They subsequently were allowed to cross into the United States despite the fact that my husband, who has a green card, was not allowed to.
21. As an immigration attorney, I was aware of stories of people being forced to relinquish their green cards by border agents, and I was worried that this would happen to my husband. I stayed with my husband.
22. We were held at the border for several hours and finally were told to just go back to Canada and try to cross into the United States the next day when they would have more answers. My husband and I
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reluctantly agreed because we had already been there for several hours.
23. A few hours later, I told the Agents that we would go back to Canada but also told them that we needed our immigration documents back. Even though we had agreed to return to Canada, the agents made us wait another hour once I asked for our immigration documents.
24. At this time, we were filled with uncertainty. The agents were unresponsive regarding our status and the news reports kept changing. It was very unclear how the Order affected dual-citizens, and whether lawful permanent residems would be admitted, or whether they would be admitted only on a case-by-case basis.
25. To my best recollection, at around 3:00am to 3:30a.m. on Saturday, agents returned our documents and let my husband and I pass through the border. After hours of waiting, I was and remain unsure about what prompted this decision. They told my husband to not return to Canada until the situation became clearer. We were overwhelmed with emotion.
26. After re-entering the United States, my husband and I rented a hotel in Port Huron. We continued to follow any new developments relating to the Executive Order and the confusion surrounding it.
27. On Saturday, January 28, 2017, the Department of Homeland Security said the ban covered green card holders. This was concerning because, many green card holders, like my husband, have been living in the U.S. for years. In particular, Secretary of Homeland Security John Kelly stated that, "In applying the provisions of the president's executive order, I hereby deem the entry oflawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations." Available at: https://www dhs.gov/news/2017/01/29/statement-secretarv-john-kell y-entrv-lawful-permanent-residents-united-states, visited February 7, 2017.
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28. Secretary Kelly's statement did not explain what "significant derogatory information" means, nor is that term defined anywhere in the immigration laws.
29. This was contradicted on Sunday, January 29, 2017, when White House Chief of StaffReince Priebus said that the executive order "doesn't affect" green card holders. However, minutes later Priebus reversed this position said "of course" it affected them.
30. The confusion surrounding this issue was further enhanced due to reports that on Saturday night, Canadian Prime Minister Justin Trudeau was told by National Security Adviser Michael Flynn that Canadian citizens and Canadians who are dual nationals with countries on the list will be allowed into the U.S.
31. A "fact sheet" published January 29,2017, by the Department of Homeland Security reiterated that, "The Congress provided the President ofthe United States, in section 212(f) of the Immigration and Nationality Act (INA), with the authority to suspend the entry of any class of aliens the president deems detrimental to the national interest." Lawful Permanent Residents (LPRs), such as green card holders, are aliens. The fact sheet also stated that, "Lawful Permanent Residents ofthe United States traveling on a valid 1-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate. The entry of these individuals, subject to national security checks, is in the national interest. Therefore, we expect swift entry for these individuals." Available at: https://www.dhs.gov/news/2017/01h9/protecting-nationforeign-terrorist-entrv-united-states, visited February 7, 2017.
32. On February 1, 2017, the White House Counsel issued a Memorandum to the Acting Secretary of State, the Acting Attorney General, and the Secretary OfHomeland Security from Donald F. McGahn II, Counsel to the President (Feb. 1, 2017). The Memorandum does not contain any legal analysis but states that Section 3(c) and 3(e) to not apply to LPRs. The Memorandum does not discuss the test ofthe Executive Order, nor does it clarify how this latest statement intersects with the earlier statement by Secretary Kelly regarding barring entry for LPRs with "significant derogatory information" of the Department of Homeland Security fact sheet statement that LPRs will be eligible for "exceptions" from the ban.
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33. After my husband and I were released, I posted about the experience on Facebook, and it has been shared nearly 1,000 times. In addition, I have spoken to news organizations such as local Fox News, Detroit Free Press, Michigan Radio, Associated Press, Newsweek, and Reuters about this experience.
34. Since this incident, I have not travelled abroad except once alone to Windsor. My husband has remained in the United States. My husband and I do not plan to travel outside the U.S. in the near future to ensure we do not get held at the border again.
35. Our inability to travel abroad is severely limiting. My husband and I live near the U.S.-Canada border; the Port Huron crossing is only 70 miles from our home. We frequently travel to Canada to meet with friends and family. My husband's family lives in Canada and we travel to Canada about once a month, and sometimes travel multiple times a month.
36. Professionally, the Executive Order has impacted the manner in which I advise my immigration clients. Based on the unprecedented nature of and lack of clarity in the Executive Order, the continually evolving nature ofthe subsequent executive agency actions, the unresolved litigation, and the many qualifications in Department of Homeland Security statements, it is my opinion as an immigration practitioner that I cannot issue a general statement that any Lawful Permanent Residents, but particularly those from the designated countries in the order, may safely travel and expect to be readmitted to the United States.
37. Because ofthe extreme brevity of the government's statements on Lawful Permanent Residents, the initial confusion about the meaning of "immigrant visa" in the implementation of the Executive Order, the ongoing developments in litigation nationwide as the Department of Justice seeks to defend the Executive Order, and the uncertainty about the meaning of "significant derogatory information" or the standards for determining whether Lawful Permanent Residents are eligible for "exceptions" to the ban, I have continued to advise Lawful Permanent Residents from countries affected by the ban to be cautious against travel as there is no certainty they will be allowed to reenter the United States.
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•

5:17~J'Bih.-~J!Im !IDm;tirt!leFR 7ffi1Eif:IIE!6/0il/Cl!i/1JI'g 18CI!fEB40~ 810 231

38. As a practitioner, I am awaiting additional legal developments that will allow me to provide clearer communication to affected immigrant

community members and organizations.

39. As an Iraqi-born United States citizen and wife of an Iraqi-born Canadian citizen and lawful permanent resident of the United States, I remain uncertain as to the effects the Order will have on our family's ability to travel. I understand that the federal government now claims that the Executive Order does not apply to lawful permanent residents. However, given how much confusion there has been about the Executive Order and how many different positions the government has taken so far, I am concerned that the government may again change its position and leave me or my husband stranded abroad if we
were to engage in international travel.

I declare under penalty of perjury that the foregoing is true and correct. Executed on: May~' 20 17 West Bloomfield, Michigan
Farah Al-Khersan

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EXHIBIT 2

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

American Civil Liberties Union of Michigan,

Plaintiff,

vs.

Case No. CaseNumber

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

I

DECLARATION OF RUBY ROBINSON
1. I am an attorney licensed in the State of Michigan with Attorney Number P75244. I am a citizen of the United States.
2. I am a supervising attorney at the Michigan Immigrant Rights Center (MIRC), a division of the Michigan Advocacy Program (MAP), a nonprofit civil legal services group established ;nore than 50 years ago. MIRC was founded as a project of MAP in early 2009 to serve as a resource center for nonprofit immigration legal services programs and other advocates providing support and technical assistance throughout the state. I started working at MIRC in December 2012.
3. I have practiced immigration and nationality law on a full time basis as a licensed attorney since 2011. I have attached my resume to this declaration.
4. I currently serve as a co-chair on the advocate education subcommittee of the Michigan Coalition on Immigrant and Refugee Rights (MCIRR), a nonprofit membership organization of more than 40 nonprofit, faith, and educational groups founded in 1989 with many members focused on nonprofit immigration legal services. In that role, I help develop and disseminate critical legal materials to an e-mail list of 3,000 immigration advocates and contacts. Further, I serve as the pro bono liaison for the Michigan chapter of the American Immigration Lawyers Association (AILA).
5. On January 27, 2017, the day that the Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry Into the United States," was signed, our office began communicating via e-mail and social media (Facebook and Twitter) with our

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24701196.1
advocacy community and the public. There was significant delay between the signing of the Executive Order and the posting of the final text of what was signed to any government website. So, we were initially forced to rely, until we received a copy on January 28 from a refugee services agency, on quotes from the Department of Homeland Security given to reporters.
6. On Saturday, January 28, 2017, numerous media sources quoted the Department of Homeland Security as stating that the seven country ban would apply to lawful permanent residents (LPRs, aka green card holders) but I had not turned on the news yet that day.
7. I learned about this development on an urgent and unexpected phone call from my managing attorney, Susan Reed, that permanent residents were being denied entry and/or detained at ports of entry. The call came in at 2:24 PM. Susan knows that I do not work on Saturdays for religious purposes and for her to call me indicated that something was defmitely awry.
8. Thankfully, I was eating lunch at a friend's apartment in downtown Detroit and could investigate what was happening at the closest port of entry, the DetroitWindsor Tunnel.
9. Within minutes, I had parked my car near the tunnel and approached the entrance on foot. I was met by two men with large guns asking about my business.
10. I introduced myself, stated my title and organization, and asked whether I could speak with a supervisor about reports of permanent residents being denied entry into the United States. They led me to the office.
11. Inside the office, I waited for a supervisor whose name, unfortunately, I do not recall. I again introduced myself, my position, and the reports that I heard. I asked whether he could confirm this so that we could share this information with other attorneys and advocates to disseminate to their communities to minimize risks with travel.
12. The supervisor said that he could not provide answers to this question. I asked ifhe had received guidance or direction from headquarters on whether LPRs would be permitted to enter. Again, the supervisor said that he could not provide this
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information to me and instructed that I speak with the public affairs liaison at a 202 area. I left the port of entry.
13. I updated Susan Reed about what I learned and called a few fellow advocates to see if they had additional information. No one had further information.
14. I then drove to the Ambassador Bridge, parked my car, and approached on foot toward the inspection area. Again, I was met by two officers/agents with large guns who asked about my business. I informed these men with my name, purpose, and provided them a business card. They radioed for a supervisor.
15. I met with the supervisor outside and asked him about whether he or his officers/agents had information or received guidance on whether LPRs were being denied entry into the United States at ports of entry. He said that he could not provide me with this information and, like the other supervisor at the DetroitWindsor Tunnel, indicated that I should speak with the public information officer. He provided me the phone number and e-mail address for Chief Ken Hammond at CBP. I left Chief Hammond a message which went unanswered.
16. My house is very close to the bridge so I returned home and started to collect information from other immigration attorneys and advocates about what they were seeing. This is when I frrst read the executive order and was shocked that LPRs were being denied entry based on the language in the order and that the Immigration and Nationality Act did not provide a mechanism for this to happen. Normally, LPRs are always to be admitted and Section 212(f) of the INA does not apply to them, rather, it would be Section 101(a)(13) See, e.g. Matter ofBenno Rivens, 25 I&N Dec. 623 (BIA 2011) which states that the Department bears the burden of proving that an LPR falls into one of those categories by clear and convincing evidence.
17. Despite my analysis that the enforcement of the executive order in this scenario was unlawful to deny entry to LPRs, it was critical that we share this information widely so as to limit the risks of permanent residents being unnecessarily separated from family, friends, school, and community.
18. We shared our updates via e-mail and social media. I remained in regular touch with Susan Reed in coordinating these efforts based on piecemeal information received. We fielded calls and e-mails from concerned advocates that
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afternoon/evening and prepared for the following day. We were also in regular contact with local print, radio, and television media to share this information and update them as we learned more.
19. MIRC's initial Facebook post about this development, which we did not pay to promote, was shared 177 times and viewed by 28,051 people within a short period of time. I worked all day on January 29, 2017 to coordinate and disseminate community legal education information warning permanent residents not to travel outside ofthe United States.
20. Late in the evening on Saturday, January 28, 2017, our office learned of a Michigan doctor who was an LPR from a country affected by the ban who had traveled to Toronto, Ontario, Canada for the weekend to visit with friends and was fearful of not being permitted to re-enter. I discussed the case with Susan Reed. She decided to travel to Canada to escort him to the United States to see what was happening at the border. By that time, media reports were indicating that LPRs might be allowed to return home on a "case by case" basis, so we gathered materials to show that he client was a surgeon who had lived in the U.S. for 20 years, was the son of a U.S. citizen mother, and worked in a medically underserved area, among other positive attributes. Because it was unclear whether my client would be allowed to enter the U.S., he had put his practice on notice that he might be unavailable for several surgeries he had scheduled for Monday, January 30, 2017.
21. He was permitted to enter the United States at the Detroit-Windsor Tunnel after secondary inspection which took approximately 90 minutes.
22. When we returned to the office on Monday, January 30, the onslaught of phone calls, e-mails, Facebook messages, and other inquiries really started. Over the next few days, we worked twelve and fourteen hour days fielding hundreds of inquiries from affected persons and organizations seeking assistance.
23. The lack of clear information on the implementation of the executive order greatly inhibited our ability to fully advise our clients and communities about the risks involved in traveling outside the United States if a person is or was a national from one of the seven affected countries.
. 4
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24. On January 29, 2017, we reviewed the Secretary of Homeland Security John Kelly's formal statement that, "In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations." Available at: https://www dhs.gov/news/2017/01129/statementsecretary-john-kell y-entrv-lawful-permanent-residents-united-states. visited February 7, 2017.
25. This statement, in addition to the fact sheet published that same day and the White House Counsel's memorandum ofFebruary 1, 2017 did not mollifY our concerns, especially as they related to permanent residents. Specifically, that memorandum did not provide analysis for Sections 3(c), but simply stated that it did not apply to LPRs. The White House counsel is not the arbiter of whether and how the executive order should be implemented/understood. Nor did the memorandum clarifY how this affects Secretary Kelly's earlier statement barring entry for LPRs with "significant derogatory information."
26. As a result ofthis incomplete/inconsistent information, the only prudent thing from a public information perspective was for us to advise the community about the significant risks in traveling or attempting to travel based on being a national from one ofthe seven affected countries, regardless ofone's inunigration status.
27. Therefore, on the front page of our website, we added clear, unambiguous language about these concerns: WARNING: DO NOT TRAVEL OUTSIDE THE UNITED STATES IF YOU ARE FROM AN AFFECTED COUNTRY President Trump issued an Executive Order on Friday, January 27, 2017, that says that people who are citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen may not enter the U.S. for at least 90' days. This includes people with Lawful Permanent Resident or "Green Card" status as well as any other visas. Citizens of those countries SHOULD NOT TRAVEL OUTSIDE THE UNITED STATES for any reason. This includes travel to Canada.
28. This remained on the main page of our website for several weeks until there was a little more clarity from courts interpreting and enjoining several sections of the Executive Orders.
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29. Following the promulgations of the Executive Order, I could not fully perform my role as a counselor dispensing legal advice beyond "don't travel" because of the inconsistent manner in which this Order was administered and limited information that was provided to the public. In essence, I could not risk my clients being denied entry, detained, and/or having their green cards revoked unless they were willing to endure time-consuming and difficult litigation to enforce their rights.
30. As an attorney, one of the most critical functions I perform is providing legal advise so that my clients can weigh the risks and benefits of their actions (e.g. applying for citizenship, petitioning for a spouse, traveling). Put another way, what I do is help manage expectations based on my deep knowledge of the subject matter and applying my client's own personal circumstances. When our office cannot fully rely on precedent or established practice to predict the likely
consequences for certain actions, we cannot manage expectations and therefore,
cannot advise or inform the public about the consequences for certain behavior, like travel, that until a few days earlier, would have gone unquestioned.
31. Despite multiple courts having issued injunctions against this section of the Executive Order and the revised version in March 2017, I am still wary about LPR.s from the (now) six affected nations regularly traveling in and out of the United States based on the inconsistent interpretations and enforcement schemes that followed the first order in January 2017.
32. As a practitioner, I am awaiting additional legal developments that will allow me to provide clearer communication to affected immigrant community members and organizations.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
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EXHIBIT 3

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18. Overthe weekend after the Executive Order was issued, Ms. Reed helped me to figure out whether and how I could reenter the United States.
19. Ms. Reed helped me to compile documents related to my time in the United States, my U.S. citizen mother, and my medical career. Ms. Reed informed me that we would likely have to argue for my admission and that these documents would be necessary to convince the Customs and Border Protection officers to allow me to return to my home and practice.
20. On Sunday, January 29,2017, I presented myself at the border crossing at the Windsor Tunnel with Ms. Reed present as my attorney. I was sent to secondary inspection where I was separated from Ms. Reed by officers, who refused to allow her to represent me in my interview. I spent a total of about an hour and a half with agents in secondary inspection before they finally allowed me to enter the country.
21. Since re-entering the country, I have not travelled abroad. Prior to the Executive Order I had planned a vacation to Egypt in February 2017, and a vacation to the United Arab Emirates in March 2017. In order to ensure surgical coverage at my hospital, I have to request time off in advance for these two trips. Unfortunately, I was forced to cancel these plans (without being able to reschedule my time oft) because it was unclear whether the Executive Order would again be applied to lawful permanent residents.
22. Since re-entering the country, I have not traveled abroad. Prior to the Executive Order I had planned a vacation to Egypt in February 2017, and a vacation to the United Arab Emirates in March 2017. In order to ensure surgical coverage at my hospital, I have to request time off in advance for these two trips. Unfortunately, I was forced to cancel these plans (without being able to reschedule my time oft) because it was unclear whether the Executive Order would again be applied to lawful permanent residents.
23. My inability to travel abroad is severely limiting. I live near the U.S.-Canada border. I frequently travel to Canada to meet with friends and also go occasionally for professional meetings and conferences. I travel to Canada about once a month, and sometimes travel multiple times a month.
24. If the injunction barring application of the Executive Order to lawful permanent residents remains in effect, I will be able to travel to Canada knowing that I will be allowed back in the country. However, ifthe injunction is dissolved, I will be very reluctant to travel abroad based on the fear that the
3

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'i;/;f¢at'tlltl1.tl~egoifeJ."lrJ.IDent will again change its interpretation of the Executive

prohibited from reentering.

~;;i;!z,''ii·f~.~,,~)e:.!Pl1:rqde~JtJ~et~sdl.di,l.(.'t)htaatrmthlve

federal government to lawful permanent

now claims that the residents. However,

Executive given how

;j'(i,c';ttJlJil~l~)¢qfilf!;l$iror1 the1re has been about the Executive Order and how many

go'v-enrlffi,ent has taken so far, I am concerned that the
if":; gciy~:~i~n~tll:!~Y again· c;qange its position and leave me stranded abroad ifl

·. · travel.

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EXHIBIT 4

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UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

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

MDLN0.2786

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

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TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................... 1 II. BACKGROUND .................................................................................................................2
A. Underlying Facts ......................................................................................................2 B. Procedural Background and Pending Proceedings ....................,.............................4 III. LEGAL STANDARD..........................................................................................................4 A. MDL Is Designed For Complex Or Fact-Intensive Cases.......................................4 B. FOIA Litigation Must Be Promptly Resolved.........................................................6 IV. THESE CASES DO NOT MEET THE DEMANDING STANDARD FOR MDL TREATMENT .....................................................................................................................7 A. Common Questions Of Fact, If Any Even Exist, Do Not Predominate
Over Questions Of Law And Unique Questions Of Fact........................................? B. Any Common Legal Questions Are Illusory And Irrelevant. ................................ 12 C. Transfer Would Impair, Not Advance, Convenience, Justice And
Efficiency............................................................................................................... 14 D. Alternatives to Centralization Exist. ...................................................................... 17 E. If This Motion Is Granted, The Michigan Border Crossing Case Should
Not Be Consolidated With The Other Actions...................................................... 18 F. If this Motion Is Granted, The Cases Should Be Consolidated in the
Eastern District of Virginia, District of Maine or the Western District of Washington............................................................................................................ 19 V. CONCLUSION..................................................................................................................20
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TABLE OF AUTHORITIES

Page(s)

CASES

ACLUv.DOD, 2006 WL 1469418 (N.D. Cal. May 25, 2006) ...........................................................................7

Caldo Oil Co. v. GulfOil Co. (In re Petroleum Prods. Antitrust Litig.), 476 F. Supp. 455, 457 (J.P.M.L. 1979)....................................................................................15

Dept. ofthe Air Force v. Rose,
425 u.s. 352 (1976)"."...."..."....."..."...".."..........".........."...."........."....""""...".............." .. 12

Edmonds v. F.B.I., Case No. 02-1294,2002 WL 32539613 (D.D.C. Dec. 03, 2002) ..............................................7

Edmonds v. FBI, 417 F.3d 1319 (D.C. Cir. 2005) .................................................................................................7

Elec. Privacy Info. Ctr. v. DOJ, 416 F. Supp. 2d 30 (D.D.C. 2006) .......................................................................................7, 16

Ferguson v. FBI, 722 F. Supp. 1137 (S .D.N.Y. 1989)...........................................................................................7

Gilmore v. Dep 't ofEnergy, 33 F. Supp. 2d 1184 (N.D. Cal. 1998) .......................................................................................6

In re Airline "Age ofEmployee" Emp 't Practices Litig., 483 F. Supp. 814 (J.P.M.L. 1980)..............................................................................................8

In re American Home Products Corp "Released Value" Claims Litigation, No. 333, 448 F. Supp. 276 (J .P.M.L. 1978) ............................................................................. 11

In re Ameriquest Mtg. Co. Lending Practices Litig., 408 F. Supp. 2d 1354 (J.P.M.L. 2005).....................................................................................20

In re Asbestos & Asbestos Insul. Mat. Prods. Liab. Litig., 431 F. Supp. 906 (J .P.M.L. 1977)...................................................................................... 11, 16

In re Best Buy Co., Inc., Cal. Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376 (J.P.M.L. 2011).......................................................................................5

In re BMW Reverse Trans. Prod. Liab. Litig., 543 F. Supp. 2d 1382 (J.P.M.L. 2008).....................................................................................17

ii
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In re Cessna Aircraft Distributorship Antitrust Litig., 460 F. Supp. 159 (J.P.M.L. 1978) ................................................:...........................................14
In re Church ofScientology Flag Serv. Org./IRS FOIA Litig., No. 892 (J.P.M.L. Sept. 4, 1991) .......................................................................................11, 14
In re Classicstar Mare Lease Litig., 528 F. Supp. 2d 1345 (J.P.M.L. 2007).....................................................................................19
In re Clean Water Rule, 140 F. Supp. 3d 1340 (J.P.M.L. 2015).....................................................................................12
In re Concrete Pipe, 302 F. Supp. 244 (J.P.M.L 1969).........................................................................................5, 19
In re Cybil Fisher Litig., 987 F. Supp. 1376 (J.P.M.L. 2013).......................................................................................... 14
In re: Cymbalta (Duloxetine) Prod Liab. Litig. (No. II), 138 F. Supp. 3d 1375 (J.P.M.L. 2015).....................................................................................17
In re FalstaffBrewing Corp. Antitrust Litig., 434 F. Supp. 1225 (J.P.M.L 1977).............................................................................................5
In re Freedom Magazine/IRS FOIA Litig., No. 910 (J.P.M.L. Feb. 12, 1992) ...................................................................................... 11, 12
In re G.D. Searle & Co. "Copper 7" IUD Prods. Liab. Litig., 483 F. Supp. 1343 (J.P.M.L. 1980)............................................................................................5
In re Garrison Diversion Unit Litig., 458 F. Supp. 223 (J.P.M.L. 1978) ..............................................................................................8
In re: Home Depot US.A., Inc. Wage and Hour Litigation, 818 F. Supp. 2d 1376 (JPML 2011).........................................................................................14
In re Lumber Liquidators Chinese-Mfd. Flooring Prods. Mktg., Sales Practices & Prods. Liab. Litig., 109 F. Supp. 3d 1382 (J.P.M.L. 2015).....................................................................................20
In Re: Nat'! Ass'nfor the Adv. ofMultijurisdictional Practice Litig., 52 F. Supp. 3d 1377 (J.P.M.L. 2014).......................................................................................12
In re Ok. Ins. Holding Co. Act Litig., 464 F. Supp. 961 (J.P.M.L. 1979) ............................................................................................ 12
In re Pharmacy Benefit Plan Administrator Pricing Litig., 206 F. Supp. 2d 1362 (J.P.M.L. 2002)..................................................................................... 11
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In re: Proton-Pump Inhibitor Prod Liab. Litig., No. 2757 (J.P.M.L Feb 2, 2017) .............................................................................................. 16
In re: Raymond Lee Org., Inc. Sec. Litig., 446 F. Supp. 1266 (JPML 1978).............................................................................................. 14
In re Rite Aid Corp. and Wage & Hour Emp't Practices Litig., 655 F. Supp. 2d 1376 (J.P.M.L. 2009).....................................................................................15
In Re: Samsung Galaxy Smartphone Mktg.& Sales Prac. Litig., MDL No. 2771 ......................................................................................................................... 16
In re Shoulder Pain Pump-Chondrolysis Prods. Liab. Litig., 571 F. Supp. 2d 1367 (J.P.M.L. 2008) ..................................................................................... 17
In re Sugar Indus. Antitrust Litig., 405 F. Supp. 1404 (J.P.M.L. 1975).......................................................................................... 17
In Re: Townsend Farms Organic Anti-Oxidant Blend Prod Liab. Litig., 24 F. Supp. 3d 1372 (J.P.M.L. 2014).........................................................................................8
In re: Transocean Ltd Sec. Litig. (No. II), 753 F. Supp. 2d 1373 (J.P.M.L. 2010) ..................................................................................... 16
Int'l Refugee Assis. Proj. v. Trump, -- F.3d --,2017 WL 2273306 (4th Cir. May 25, 2017)..............................................................2
Keys v. Dep 't ofHomeland Sec., 570 F. Supp. 2d 59 (D.D.C. 2008) ........................................................................................... 15
Longv. IRS, 693 F.2d 907 (9th Cir. 1982) .....................................................................................................6
Martins v. USCIS, 962 F. Supp. 2d 1106 (N.D. Cal. 2013) .....................................................................................6
McGehee v. CIA, 697 F.2d 1095 (D.C. Cir. 1983) ............................................................................................... 15
Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) ................................................................................................. 10
Smith v. Bayer Corp., 131 S. Ct. 2368 (2011) ............................................................................................................. 14
Taylor v. Sturgell, 553 U.S. 880 (2008) ................................................................................................................. 13
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United States v. Philip Morris, Inc. (In re Tobacco/Gov 't Health Care Litig.), 76 F. Supp. 2d 5 (D.D.C. 1999) ........................................................................................... 5, 14
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ...................................................................................................2
Weisberg v. U.S. Dep 't ofJustice, 705 F.2d 1344 (D.C. Cir. 1983) ............................................................................................... 10
Yonemoto v. VA, 686 F.3d 681 (9th Cir. 2012 .......................................................................................................6
STATUTES
5U.S.C. § 552(a)(4)(b) ..................................................................................................................... 12, 19 § 552(a)(6)(A)(i) ..................................................................................................................6, 16 § 552(a)(6)(E)(i).........................................................................................................................7 § 552(a)(6)(E)(v)(II) ..................................................................................................................3 § 552(a)(8)(A)(i) ........................................................................................................................6 § 552(b)(1 )(A)-(9).................................................................................................................... 12
28 u.s.c.
§ 1407............................................................................................................................... passim § 1657(a) ....................................................................................................................................7
OTHER AUTHORITIES
19 C.F.R. § 103.5(d)(2), (g) ........................................................................................................... 10 15 Charles A. Wright, et a/., FEDERAL PRACTICE & PROCEDURE: JURISDICTION &
RELATED MATTERS§ 3862, 380,407, 413 (2007).....................................................................5 House Report No. 1130, 90th Cong., 2d Sess. 4, reprinted in 1968 U.S. Code
Cong. &Admin. News at 1898, 1901 ..............................................................................4, 5,14
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Plaintiffs, affiliates of the American Civil Liberties Union (the "Affiliates"), oppose the "Motion for Transfer of Actions Pursuant to 28 U.S.C. § 1407 for Coordination or Consolidated Pretrial Proceedings" ("Transfer Motion"), filed by U.S. Customs and Border Protection ("Defendants" or "CBP"), a component of the U.S. Department of Homeland Security ("DHS").
I. INTRODUCTION Plaintiffs in these 13 actions are ACLU Affiliates who submitted requests to obtain records from CBP under the Freedom oflnformation Act ("FOIA"). The requests were directed to CBP field offices and limited to local records, that exist within each separate district, related to implementation of President Trump's January 27, 2017 Executive Order titled "Protecting the Nation From Foreign Terrorist Entry Into the United States," Exec. Order No. 13769, 82 Fed. Reg. 8977 (Feb. I, 2017) (the "E.O."). Because each request expressly disclaimed any request for documents held in the District of Columbia, if there are any factual disputes - and the Affiliates do not anticipate any- those disputes will revolve around compliance within each local CBP field office, and whether it thoroughly searched for and produced relevant, nonexempt documents. If any case requires discovery -which is exceedingly rare in FOIA litigation -that discovery will occur after summary judgment (and only if Defendants fail to prove their searches were adequate) concerning local compliance obligations. Any facts related to CBP' s decision to coordinate records searches through agency headquarters -the only allegedly common facts CBP invokes (Memo. at 9-1 0) - are not likely to be disputed, but if they are, those disputes will not be complex. Granting consolidation and transfer would promote forum-shopping and delay, not justice. Indeed, Defendants' decision to flout their FOIA obligations- refusing to produce a single document in every action except one or even suggest a production schedule, and delaying
1
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these FOIA cases by months through this Motion and concurrently-filed stay motions- suggests delay and obstruction is their motive. 1 Across the Nation, federal judges have scrambled to resolve issues raised by the E.O., citizens have protested, and attorneys have offered services free of charge. E.g., Int'l Refugee Assis. Proj. v. Trump, -- F.3d --, 2017 WL 2273306 (4th Cir. May 25, 2017); Washington v. Trump, 847 F.3d 1151, 1156 (9th Cir. 2017). Yet, the government cannot be bothered to produce even the most non-controversial documents and, so far as the Affiliates can tell, has not even begun to search in most jurisdictions, despite FOIA's mandate of prompt production. These actions are not complex, but they are exceedingly important. This Court should reject Defendants' attempt to derail them through this misfit of a Motion.
The multiple ACLU Affiliates seeking local records are committed to collaborating and cooperating to reduce any duplication between the cases. However, if the Panel is inclined to grant the Motion, they request that the cases be transferred to the Eastern District of Virginia, the District of Maine or the Western District of Washington, in which an ACLU Affiliate lawsuit for local records is pending and which have court dockets with capacity to promptly resolve these cases. Transfer to any one would help expedite these matters, a requirement in FOIA litigation.
II. BACKGROUND
A. Underlying Facts President Trump signed the E.O. on January 27, 2017. See Compl. '1[2.2 Among other things, the E.O. purported to halt refugee admissions and bar entrants to the United States from
1 In Texas, the CBP produced a "final" answer on Aprill8, 2017, consisting of two pages of highly redacted records. If CBP in fact only has two pages of responsive documents in Texas, and other jurisdictions are similar, plainly, these cases are not complex, and the compliance burden on the government will be minimal. For other jurisdictions, CBP sent a form letter on May 26, 2017, stating that CBP agrees to expeditious treatment and is searching for records, but not committing to, or even suggesting, a production schedule.
2 For general background information, the ACLU Affiliates refer to the first-filed Complaint, from the Northern District of California ("Compl."). The other Complaints are referenced by their jurisdiction, e.g., "W.D. Wash. Compl."
2
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seven predominantly Muslim countries. Campi. '1[4. News reports described Defendants' implementation of the E.O. as "chaotic" and "total[ly]lack[ing] ... clarity and direction." !d. '1[7 & n.3. Demonstrators and pro bono attorneys appeared in airports across the country by the thousands. As discussed below, different enforcement issues arose as local CBP officials in the various airports and border crossings struggled to implement the E.O. with no advance notice and little guidance. E.g., Campi. '1[8; see Section IV. A, infra. Within days, various judicial orders were entered barring implementation of portions of the E.O. Campi. '1[6.
Although the E.O. and a revised version issued March 6, 2017, remain enjoined, the public is still largely in the dark about CBP's actions, including its disastrous local implementation at various airports across the Nation, the instructions given to local CBP officials at those airports, and the basis for these officials' interpretation of the order locally. On February 2, 2017, Plaintiffs- ACLU Affiliates in states with ports of entry that were heavily impacted by the E.O.- submitted eighteen separate FOIA requests seeking records related to the local interpretation and enforcement of the E.O. Campi. '1['1[20-22 & Ex. A. In each of these cases, local ACLU Affiliates seek local information specific to one local CBP Field Office, specifically, information held by local CBP employees and offices regarding CBP' s local interpretation and enforcement of the E.O. at the local international airports (and in Michigan's case, the local land border crossings), and the corresponding port of entry offices and regional field operations office, specified in each underlying FOIA request. !d. '1[21 & Ex. A at 8. None of the ACLU Affiliates seeks any information held in the records ofCBP Headquarters. !d.
The requests sought expedited processing, on the ground that there is a "compelling need" for these records under 5 U.S.C. § 552(a)(6)(E)(v)(II) because the records are "urgen[tly]" needed by an organization primarily engaged in disseminating information "to inform the public
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concerning actual or alleged Federal Government activity." Compl. ~ 23 & Ex. A at 9. Except for Texas, CBP has not indicated whether, or when, it will comply with the FOIA requests. !d. ~ 30. To Plaintiffs' knowledge, CBP's local field offices have yet to disclose any of the instructions its local officials were provided with respect to the Executive Order or any record explaining its interpretation of the Order.
B. Procedural Background and Pending Proceedings Having received no response from CBP within the period allotted by the statute, the Affiliates within the jurisdiction ofthe San Francisco CBP Field Office- the ACLU of Northern California, the ACLU of Hawaii, and the ACLU of Utah- filed a Complaint on AprillO, 2017; two days later, Affiliates within the jurisdictions of twelve additional CBP Field Offices also filed suits. Although the National ACLU had filed a FOIA request for CBP Headquarters records on February 2, no lawsuit has been filed seeking the records specified in that request, which differ from the local records sought in each of the pending thirteen actions here at issue. The Complaints each allege that Defendants violated FOIA by failing to (i) produce responsive records, (ii) state whether they will make records available, and (iii) respond to the request for expedited processing. Compl. ~~ 34-44. However, each Complaint addresses the unique facts specific to the targeted local CBP Field Office, as CBP officials at local international airports scrambled to enforce the E.O. on virtually no notice. Section IV. A, infra. On May 8, Defendants filed a motion with the JPML, seeking transfer to the District of Columbia in order to coordinate pretrial proceedings in the thirteen FOIA lawsuits.
III. LEGAL STANDARD A. MDL Is Designed For Complex Or Fact-Intensive Cases. Congress adopted the MDL process for the rare case that is complex enough to justify the unusual procedure. As one House Report explained, "[i]t is possible ... that afew exceptional
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cases may share unusually complex questions offact, or that many complex cases may share a few questions offact. In either of these instances substantial benefit may accrue to courts and litigants through consolidated or coordinated pretrial proceedings." House Rep. No. 1130, 90th Cong., 2d Sess. 4, reprinted in 1968 U.S. Code Cong. & Admin. News ("H.R. 1130") at 1898, 190I (emphasis added). The Panel has adhered to the intentionally narrow reach of Section 1407, making clear that "centralization under Section 1407 should be the last solution after considered review ofall other options." In re Best Buy Co., Inc., Cal. Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011) (emphasis added).
Accordingly this Panel may transfer civil actions to any district for coordinated or consolidated pretrial proceedings only if the moving party bears the heavy burden of demonstrating that: (I) there are common questions of fact; (2) consolidation will "serve the convenience of the parties and witnesses"; and (3) "the just and efficient conduct of the actions will be served" by transfer and centralization. 28 U.S.C. § 1407; see 15 Charles A. Wright, et a/., FEDERAL PRACTICE & PROCEDURE: JURISDICTION & RELATED MATTERS § 3862, 380, 407, 413 (2007); United States v. Philip Morris, Inc. (In re Tobacco/Gov 't Health Care Litig. ), 76 F. Supp. 2d 5, 7 (D.D.C. 1999); In re G.D. Searle & Co. "Copper 7" IUD Prods. Liab. Litig., 483 F. Supp. 1343, 1345 (J.P.M.L. 1980). Common questions of facts are not enough to justify transfer; justice and efficiency must also be "sufficiently served to justify the necessary inconveniences of transfer and remand." In re Concrete Pipe, 302 F. Supp. 244,254 (J.P.M.L 1969). The Panel must weigh the interests of all plaintiffs and defendants. See In re Fa/staff Brewing Corp. Antitrust Litig., 434 F. Supp. 1225, 1229 (J.P.M.L 1977). If transfer and consolidation do not serve all statutory objectives, the request should be denied. In re Concrete Pipe, 302 F. Supp. at 255 ("If we are to order transfer, the statute requires us to determine that
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the answer to that question, including each of its four elements, is in the affirmative."). B. FOIA Litigation Must Be Promptly Resolved. In its decades-long history, the Panel has considered only two cases addressing FOIA
litigation- both of them resolved decades ago. For good reason. MDL transfer makes no sense in FOIA litigation. FOIA's "core purpose is to inform citizens about what their government is up to" so as to "ensure an informed citizenry," which is "vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." Yonemoto v. VA, 686 F.3d 681,687 (9th Cir. 2012) (citation omitted), overruled in part on other grounds by Animal Legal Def Fund v. FDA, 836 F .3d 987 (9th Cir. 20 16) (en bane). Because "disclosure, not secrecy, is the dominant objective ofthe Act," FOIA presumes all agency records are public and places the burden on the government to justifY withholding based on specific exemptions that must be narrowly construed. /d. at 687-88 (quote omitted); see 5 U.S.C. § 552(a)(8)(A)(i). As discussed below, FOIA requires compliance by local agencies, as established by declarations from compliance officers in that jurisdiction, rendering factual disputes, and discovery into those disputes, uniquely local. Sections IV. A, IV. C, iY!fra.
The statute advances the policy of prompt disclosure by requiring agencies to respond to requests within 20 days, absent "unusual" or "exceptional" circumstances. /d. § 552(a)(6)(A)(i). "[U]nreasonable delays in disclosing non-exempt documents violate the intent and purpose of the FOIA, and the courts have a duty to prevent these abuses." Long v. IRS, 693 F.2d 907, 910 (9th Cir. 1982). Legislative history shows that "Congress intentionally set harsh time limits for agencies to respond to FOIA requests because it recognized that information is often useful only if it is timely." Gilmore v. Dep 't ofEnergy, 33 F. Supp. 2d 1184, 1189 (N.D. Cal. 1998).3
3 See also Martins v. USCIS, 962 F. Supp. 2d 1106, 1127 (N.D. Cal. 2013)(recognizing "expeditious release of documents ... furthers FOIA's core purpose of shed[ding] light on an
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Agencies must expedite processing and respond "as soon as practicable" where, as here,
the requesters show "urgency to inform the public concerning actual or alleged Federal
Government activity." Id § 552(a)(6)(E)(i). "[E]xpedited processing of a FOIA request is a
statutory right, not just a matter of court procedure." Edmonds v. FBI, 417 F.3d 1319, 1323
(D.C. Cir. 2005). The public has a particularly strong interest in the swift adjudication of cases
like these, which are the subject of"widespread and exceptional media interest," and deal with
"public confidence" in government institutions. Edmonds v. F.B.I., Case No. 02-1294,2002 WL
32539613 (D.D.C. Dec. 03, 2002). As one court explained, "President Bush [] invited
meaningful debate about the warrantless surveillance program ... [t]hat can only occur ifDOJ
processes its FOIA requests in a timely fashion and releases the information sought." Elec. Privacy Info. Ctr. v. DOJ, 416 F. Supp. 2d 30,41 (D.D.C. 2006).4 Here, while CBP has agreed
in principle that these FOIA requests must be expedited (see footnote 1, supra), this Motion,
combined with its pending stay motions, seek only delay.
IV. THESE CASES DO NOT MEET THE DEMANDING STANDARD FOR MDL TREATMENT A. Common Questions Of Fact, If Any Even Exist, Do Not Predominate Over Questions Of Law And Unique Questions Of Fact.
Defendants carry a heavy burden to show that common factual questions exist, and that
agency's performance") (quotation omitted). The Priorities Act also furthers this purpose, by expressly including FOIA litigation in its mandate that district courts "expedite the consideration of any action" upon a showing of"good cause." 28 U.S.C. § 1657(a); see also Ferguson v. FBI, 722 F. Supp. 1137, 1144 (S.D.N.Y. 1989)("Prompt review of decisions denying access to government information is critical to FOIA users and to the purposes of the Act.") (quoting legislative history). This is because "the value of disclosed information is transitory. If this information is not released in a timely manner, it may be of no value at all." H.R. Rep. 98-985, 5-6, 1984 U.S.C.C.A.N. 5779,5783-84.
4 Likewise, in ACLU v. DOD, 2006 WL 1469418 (N.D. Cal. May 25, 2006), the court held the ACLU had an urgent need for records about a government program to gather information on political protesters because "[g]etting the requested information quickly might be valuable to would-be protesters and opposition groups" to "help them decide how to express their political viewpoints," and, given the pending controversy over the program, delay also would harm "the media's interest in quickly disseminating breaking, general-interest news." Id at *7-8.
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they are "sufficiently complex [such] that accompanying discovery will be so time-consuming as to further the purposes ofSection 1407." In re Garrison Diversion Unit Litig., 458 F. Supp. 223,225 (J.P.M.L. 1978) (emphasis added). Consolidation and transfer are not justified where individual, rather than common, factual questions predominate, and common questions between the actions, if any, will be mainly legal questions. See In re Airline "Age ofEmployee" Emp 't Practices Litig., 483 F. Supp. 814, 817 (J.P.M.L. 1980).
Defendants' brief in support of their Transfer Motion shows this Section 1407(a) requirement is not satisfied. Memo. at 9-10. Although they claim that common questions of fact exist, their brief does not identify a single factual dispute (or even potential dispute). See In Re: Townsend Farms Organic Anti-Oxidant Blend Prod. Liab. Litig., 24 F. Supp. 3d 1372 (J.P.M.L. 2014) (denying transfer in part because "factual core appears to be largely undisputed"). Defendants vaguely invoke CBP's unilateral decision to "coordinate an initial search for records" through its headquarters, and speculate about issues that may arise in the course of that search. Memo. at 2, 9. They argue that the FOIA requests are virtually identical, but they ignore a key fact- each request makes clear that it is seeking only local records, and expressly disclaims any request for records housed at CBP' s headquarters in the District of Columbia:
To reiterate: The ACLU seeks information regarding CBP's interpretation and enforcement of the Executive order at the Local International Airports, not information held in the records of CBP Headquarters. Specifically, the ACLU seeks records held by CBP employees and offices at the Local International Airports, and the corresponding Port of entry Offices and Regional Field Operations Office. Compl. Ex. 1 at 9 (emphasis in original). Although the FOIA requests use the same language to request documents, the similarities end there. These cases involve 42 different plaintiffs seeking different records, represented by 46 different attorneys, including 21 local counsel from 12local firms. Each ACLU Affiliate
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wants to obtain local records regarding tbe actions of government officials who live and work in
their communities. Allegations from a few of the complaints highlight the factual differences
between events in different jurisdictions, and thus the documents that should be available locally:
• CBP Detroit Field Office: The Michigan litigation concerns two separate FOIAS - one concerning events at Detroit Metropolitan Airport, and one concerning events at U.S./Canada border crossings in Michigan. Detroit, which is located on the border, has tbe highest number of residents per capita from the seven countries barred under the E.O., and also has the two busiest land crossings with Canada (the Ambassador Bridge and the Detroit-Windsor Tunnel). Conditions at tbe Michigan land ports of entry -which affected commuters not just international travelers -were chaotic, with CBP agents reportedly telling people that the "[didn't] know what's going on." The Michigan ACLU seeks information on incidents like that in Port Huron, where a U.S. citizen and legal permanent resident were detained at the Canadian border. E.D. Mich. Compl. ~~ 11-16.
• CBP Atlanta Field Office: In the Northern District of Georgia, at least eleven people were detained, including a 76-year-old with a heart condition and glaucoma, and a CNN producer. This ACLU Affiliate understands that when Georgia Congressmen John Lewis and Hank Johnson arrived at the Hartsfield-Jackson Atlanta International Airport on January 28, 2017 to ascertain how many people were being detained, immigration officials refused to provide any information. It was not until after the Congressman refused to leave the airport and sat with waiting family members that immigration officials met privately with him. After tbe meeting, Congressman Lewis reported that there were no written protocols for enforcing the Executive Order. N.D. Ga. Compl. ~~ 10-15.
• CBP Boston Field Office: In Maine, scholars and academics from Boston-area institutions were denied entry into the United States. Doctors from New England hospitals and patients seeking medical care were delayed, denied entry, or subjected to unnecessary anguish. Me. Compl. ~ 10.
• CBP Los Angeles Regional Field Office: In the Central District of California, which is home to Los Angeles International Airport- one of tbe busiest airports in tbe nation - CBP agents detained (1) a lawful permanent resident from Iran who was scheduled to be sworn in as a U.S. citizen in February, and who was traveling with her U.S. citizen infant son; (2) an Iranian citizen with a valid U.S. student visa, whom CBP removed from the country nearly two hours after a federal judge had ordered the government to halt all removals immediately; and (3) an Iranian citizen with a valid U.S. visa that had been granted as a result of a petition filed by his U.S. citizen son. Additionally, upon information and belief, an 80-year-old insulin-dependent Iranian diabetic with a heart condition was detained with her husband for nearly twenty-four hours after the couple arrived at Los Angeles International Airport to visit their son, a lawful permanent resident; the couple had valid tourist visas. C.D. Cal. Compl. ~~ 10-13.
• CBP Houston Field Office: In Texas, travelers were pressured into signing papers to voluntarily withdraw their admission into the United States. S.D. Tex. Compl. ~ 11-16.
• CBP Baltimore Field Office: In the Eastern District of Virginia, Yemeni individuals flying
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to Dulles with valid, government-issued visas had their visas cancelled and were refused entry into the United States. After several courts entered orders that, among other things, required that detained travelers have access to attorneys, CBP officials at Dulles appeared to ignore the orders. Two Syrian families with valid immigrant visas arrived at the Philadelphia International Airport in Pennsylvania to join family and were threatened with imprisonment and a 5-year ban on travel to the U.S., and so bought tickets to return to Qatar (resulting in a need for medical intervention for one ofthe patients). Lawyers, as well as local, state and federal politicians were denied access to detainees, some of whom were transferred to local jails to spend the night. E.D. Va. Compl. '1['1[10-16.5
As evident, each ofthe pending FOIA requests focuses on the factual circumstances surrounding local implementation ofthe E.O. in a particular CBP Field Office. As litigation proceeds, one legal question that will need resolution is the reasonableness of CBP' s searches for records held in the relevant local Field Office, with reference to relevant events at the local international airport(s) within that Field Office'sjurisdiction (or, for the Michigan FOIA action, at the local land border crossings).
CBP's own regulations require FOIA requesters who seek records from CBP field offices to serve their FOIA request on the field office itself, not CBP headquarters, and require CBP officers to attempt to locate any such local records upon receipt of a request. 19 C.F.R. § 103.5(d)(2), (g). For each of these pending FOIA cases, CBP's declarations attesting to the adequacy of the search and the pace of disclosure in the various jurisdictions necessarily will be submitted by employees within those respective jurisdictions, because only they will be able to attest that the search was adequately performed. Indeed, Weisberg v. U.S. Dep 't ofJustice, 705 F.2d 1344 (D.C. Cir. 1983), supports the ACLU Affiliates. The requirements enunciated there make clear that local facts will predominate on the single factual issue presented- adequacy of the search. Id at 1351. See also Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015) ("[t]his
5 Due to space limitations, the ACLU Affiliates are not able to identify all of the disparate facts in the various cases. If the Panel needs additional information, the Affiliates request permission to submit a supplemental brief.
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court applies a reasonableness standard to determine whether an agency performed an adequate search, 00 ., and our review is heavily fact-dependent 00 .." (citations omitted)).
Because unique factual questions will predominate, transfer is not warranted.6 Defendants try to avoid this result by invoking their decision to coordinate compliance through CBP headquarters. But this is meaningless. Whatever CBP' s internal procedures, the question in each of these pending FOIA actions will be whether the local office conducted the requisite search. Section III. B, supra. Thus, while any intra-agency communications (which presumably will be electronic) may provide guidance regarding that search, any factual disputes will concern the application of that guidance within each individual CBP Field Office, and whether the resulting search suffices.
Finally, neither case invoked by Defendants supports their request. Memo. at 2, 11-12, citing In re Church ofScientology Flag Serv. Org.IIRS FOIA Litig., No. 892 (J.P.M.L. Sept. 4, 1991) ("Church ofScientology"); In re Freedom Magazine/IRS FOIA Litig., No. 910 (J.P.M.L. Feb. 12, 1992) ("Freedom Magazine"). These decades-old decisions involved FOIA requests to the IRS seeking specific records, regardless of location, related to the Church of Scientology. The Panel agreed to transfer the 30 cases at issue in Church ofScientology to a Florida venue because 20 ofthe 30 cases were pending there and "every FOIA request in the litigation was made upon the IRS office in Jacksonville in that district, and accordingly relevant IRS witnesses and documents will be found there." Order at 2. Here, in contrast, the 13 FOIA lawsuits were
6 See, e.g., In re American Home Products Corp "Released Value" Claims Litigation, No. 333, 448 F. Supp. 276,278 (J.P.M.L. 1978) ("The factual issues presented are primarily, if not entirely, unique questions pertaining to the numerous distinct shipments involved in each action."); In re Pharmacy Benefit Plan Administrator Pricing Litig., 206 F. Supp. 2d 1362 (J.P.M.L. 2002) (denying§ 1407 transfer on five class actions, even where they shared common legal questions and a few factual questions, because unique factual questions predominated); In re Asbestos & Asbestos Insul. Mat. Prods. Liab. Litig., 431 F. Supp. 906,910 (J.P.M.L. 1977) ("Many factual questions unique to each [class] action ... already pending in a single district clearly predominate, and therefore transfer is unwarranted.").
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filed in 13 different districts, none of which is Defendants' preferred district. In Freedom Magazine, the Panel approved transfer of 8 FOIA cases filed by a single plaintiff because "many relevant witnesses and documents" were likely to be found in the transferee district and a constituent action sought records located there. Order at 2. Here, however, the FOIA requests are explicit in disclaiming any request for documents in the District of Columbia.
Defendants have not met their heavy burden to disrupt these proceedings by transferring them for consolidation. The Panel should deny Defendants' Motion in its entirety.
B. Any Common Legal Questions Are Illusory And Irrelevant. CBP suggests that common legal issues may arise if they invoke exemptions from disclosure under FOIA. E.g., Memo. at 2; see 5 U.S.C. § 552(b)(l)(A)-(9). These exemptions protect defined categories of information and must be narrowly construed. Dept. ofthe Air Force v. Rose, 425 U.S. 352, 361 (1976). Unless a record falls within one of these well-defined categories, the government will bear the burden of proving that each particular record falls within a FOIA exemption. 5 U.S.C. § 552(a)(4)(b). Although it is impossible to know whether Defendants will raise the same claimed exemptions -because each action seeks different records and Defendants have only responded in one case - it would not be relevant even if they did. This Panel repeatedly has held that consolidation and transfer are not justified by the existence of common legal issues. Thus, in In Re: Nat 'I Ass 'n for the Adv. ofMultijurisdictional Practice Litig., 52 F. Supp. 3d 1377, 1378 (J.P.M.L. 2014), the Panel explained that '"[m]erely to avoid [different] federal courts having to decide the same issue is, by itself, usually not sufficient to justify Section 1407 centralization." (Citations omitted.)7 In In re Clean Water
7 See also, e.g., In re Ok. Ins. Holding Co. Act Litig., 464 F. Supp. 961, 965 (J.P.M.L. 1979) ("while the purportedly common questions listed by movants 000 may involve some subsidiary factual inquiries, 000 the legal aspects ofthese questions clearly predominate" and thus transfer is denied).
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Rule, !40 F. Supp. 3d 1340, 1341 (J.P.M.L. 2015), for example, the Panel denied transfer of actions challenging a rule promulgated by the EPA because discovery would be minimal and the actions would tum on questions oflaw.
Even if Defendants invoked similar exemptions, it still would not support centralization because the exemptions will apply differently, depending on the facts of the case. The cases seek records related to enforcement ofthe E.O. at different airports, with some cases addressing orders apparently violated by the CBP, others addressing denial of counsel and others addressing conduct leading to physical injury, among other things. In addition, the Michigan case requests records related to implementation of the E.O. at the U.S./Canada land border. Section A, supra. These disparate facts will drive the legal question of whether an exemption applies to a particular record, and must be resolved on a case-by-case basis. Thus, even if Defendants invoke a particular exemption in every case, the disparate facts still will predominate.
Defendants' reliance on Taylor v. Sturgell, 553 U.S. 880 (2008), is particularly misplaced. Memo. at 12. There, the United States Supreme Court refused to bar the FOIA action of an individual who sought the same records as his friend, who had unsuccessfully attempted to acquire the records in a previous FOIA action. Overturning lower court decisions barring the FOIA suit, the Court embraced the individualized nature of relief under FOIA, stating that the "Act, however, instructs agencies receiving FOIA requests to make the information available not to the public at large, but rather to the 'person' making the request." !d. at 885, 902. "[A] successful FOIA action results in a grant of relief to the individual plaintiff, not a decree benefiting the public at large." !d. at 902-903. Accordingly, the Court found that Congress never meant to preclude successive actions seeking the same records, undercutting Defendants' argument that any common legal questions must be resolved in the same way. See
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also Smith v. Bayer Corp., 131 S. Ct. 2368,2381 (2011) (allowing a "series of repetitive lawsuits demanding the selfsame documents" although "the payoff in a single successful FOIA suitdisclosure of documents to the public - could 'trum[p]' or 'subsum[e]' all prior losses"). Given this clear law, Defendants' attempt to maneuver these cases to the District of Columbia, in the hope that they will obtain a single decision rejecting all of them, should be flatly rejected.
C. Transfer Would Impair, Not Advance, Convenience, Justice And Efficiency. The Panel has emphasized that the mere presence of common issues of fact is not sufficient to justify transfer in the absence of a showing that transfer will be more convenient for parties and witnesses and will promote the just and efficient conduct of the action. See In re Cessna Aircraft Distributorship Antitrust Litig., 460 F. Supp. 159, 161-62 (J.P.M.L. 1978).8 Thus, even if Defendants had identified sufficient common factual questions, the Motion should be denied because consolidation and transfer would not serve the Section 1407 statutory objectives of convenience, efficiency and justice. As the Panel held in In re Cybil Fisher Litig., 987 F. Supp. 1376 (J.P.M.L. 2013), centralization is not warranted in cases like this one, that "are generally summary in nature." Defendants recognize, as they must, that discovery is rare in FOIA litigation. Memo. at 12, 16 n.8. Yet, Defendants fail to acknowledge the impact of this fact on their Motion. Because reducing discovery burdens is a primary reason for transfer and consolidation under MDL (H.R. 90-1130 at 1900), the Panel rarely orders transfer if discovery is not anticipated.9 Rather than the decades-old Scientology cases that Defendants invoke, the Affiliates are not aware of a single case granting transfer where the parties either have completed or do not anticipate discovery.
8 See also United States v. Philip Morris, Inc, 76 F. Supp. 2d at 8 (holding that this is the most im,portant factor in the Panel's transfer decision).
See, e.g., In re: Home Depot US.A., Inc. Wage and Hour Litigation, 818 F. Supp. 2d 1376 (JPML 2011); In re: Raymond Lee Org., Inc. Sec. Litig., 446 F. Supp. 1266 (JPML 1978).
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Moreover, where it is clear that any discovery would require an individualized, factintensive inquiry, consolidation should be denied. In re Rite Aid Corp. and Wage & Hour Emp 't Practices Litig., 655 F. Supp. 2d 1376 (J.P.M.L. 2009) (centralization would not further the just and efficient conduct of the litigation, since discovery was likely to require an individualized, factual inquiry into the job duties performed by each employee).10 Here, any discovery that would arise would be uniquely local and tailored, relating to the adequacy of the search for and disclosure of the specific records that may exist in each specific jurisdiction. Defendants' unilateral decision to process these disparate requests through headquarters is not required by FOIA- indeed, it is arguably contrary to FOIA's requirement that the government expeditiously search for and disclose documents. 11 In any event, CBP's alleged internal agency mechanics are certainly insufficient to justify the extraordinary relief Defendants seek with this Motion.
The need for prompt resolution is particularly acute in these cases. The records sought involve an Executive Order that has been the subject of substantial media coverage and is a source of ongoing public debate. Plaintiffs sought expedited processing of their FOIA requests in order to provide the public with information about how the CBP read and implemented the E.O. in various local international airports and border crossings across the country. See Campi. '1['1[23-26. This has been, and continues to be, a matter of pressing public concern. Id. '1['1[5-12. As noted above and in each Complaint, CBP's local implementation of the Executive Order resulted in mass protests, widespread media coverage, calls for action by elected officials, and extensive litigation. Id. Although the E.O. itself is on hold, the legal and public policy debates
10 See also Caldo Oil Co. v. GulfOil Co. (In re Petroleum Prods. Antitrust Litig.), 476 F. Supp. 455, 457 (J.P.M.L. 1979) (refusing to consolidate case involving unique discovery).
11 Delayed, post-suit referral is improper. See Keys v. Dep 't ofHomeland Sec., 570 F. Supp. 2d 59, 70 (D.D.C. 2008) (referral was not prompt and significantly delayed resolution ofFOIA request); McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983) ("when an agency receives a FOIA request for "agency records" in its possession, it must take responsibility for processing the request").
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surrounding the propriety and mechanics ofCBP's local implementation thereof remain very much alive, including in each of the Districts in which these separate proceedings were filed.
Defendants' request to transfer these cases to the District of Columbia will only delay them, which is squarely at odds with FOIA's purpose and the ACLU Affiliates' statutory right to expedited access. The ACLU Affiliates requested these records on February 2, 2017, four months ago. Although FOIA requires compliance within 20 days (5 U.S.C. § 552(a)(6)(A)(i)), Defendants have not produced a single document except the paltry production in Texas, nor have they suggested a production schedule in the other actions. By the time this Motion is heard and resolved, six full months will have passed since the FOIA requests were submitted. The Panel should not delay this matter any longer. The ACLU Affiliates and the public have an urgent need for the records at issue, so that their members, media organizations, community groups, and ordinary citizens can have the information necessary to participate in the ongoing debate over the E.O. at a time when they can still influence public policy. See EPIC, 416 F. Supp. 2d at 42.
Further, "the proponent of centralization bears" an even "heavier burden to demonstrate that centralization is appropriate" where, as here, "only a minimal number of actions are involved." See In re: Transocean Ltd. Sec. Litig. (No. II), 753 F. Supp. 2d 1373, 1374 (J.P.M.L. 2010); see also In Re: Samsung Galaxy Smartphone Mktg.& Sales Prac. Litig., MDL No. 2771 (denying consolidation of 8 actions). In addition, the number of cases here is small, and they are not complex. See In re: Proton-Pump Inhibitor Prod Liab. Litig., No. 2757 at 3 (J.P.M.L Feb 2, 2017) (denying motion to centralize 15 actions and 24 tag-alongs). Moreover, the ACLU Affiliates all oppose consolidation and transfer, which should weigh heavily against granting Defendants' Motion. See In re Asbestos & Asbestos Insul. Material Prod Liab. Litig., 431 F. Supp. 906, 910 (J.P.M.L. 1977) ("[t]he virtually unanimous opposition of the parties to transfer"
16
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Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.540 Page 74 of 81
is "a very persuasive factor"). Transfer would not promote the objectives of Section 1407. If discovery in a handful of
jurisdictions happens to become necessary, the transferee court would be required to coordinate discovery into individualized questions of fact regarding Defendants' compliance in distant jurisdictions - potentially delaying other actions, with no similar issues, while it resolves those disputes. Transfer also would be inconvenient to the parties and any potential witnesses. Each case has counsel within its jurisdiction, where any witnesses and discovery potentially relevant to compliance will be located. See In re Sugar Indus. Antitrust Litig., 405 F. Supp. 1404, 1406 (J.P.M.L. 1975) (severing defendant because "on balance the convenience of parties and witnesses will be best served"). Defendants' attempt to force the ACLU Affiliates to litigate in a district of their choosing, although no record or relevant witnesses can be found there, and most ofthe cases are on the other side of the country, contravenes the objectives ofjustice.
D. Alternatives to Centralization Exist. Transfer is particularly inappropriate here because the benefits of centralization can be achieved through informal coordination. In re Shoulder Pain Pump-Chondrolysis Prods. Liab. Litig., 571 F. Supp. 2d 1367, 1368 (J.P.M.L. 2008) ("parties can avail themselves of alternatives to Section 1407 transfer to minimize whatever possibilities there might be of duplicative discovery and/or inconsistent pretrial rulings"); accord In re BMW Reverse Trans. Prod. Liab. Litig., 543 F. Supp. 2d 1382 (J.P.M.L. 2008). As evidenced by this consolidated Opposition, coordination already is occurring amongst the ACLU Affiliates. This is a persuasive factor where counsel overlap or already are coordinating their efforts. See In re: Cymbalta (Duloxetine) Prod. Liab. Litig. (No. II), 138 F. Supp. 3d 1375, 1377 (J.P.M.L. 2015) (denying centralization of 41 actions in part because informal coordination and cooperation remained practicable). Counsel commit to continuing to make every effort possible to minimize any
17
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Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.541 Page 75 of 81
duplication and reduce inefficiencies. E. If This Motion Is Granted, The Michigan Border Crossing Case Should Not Be Consolidated With The Other Actions. The Michigan action, which concerns not just implementation of the E.O. at the Detroit
Metro Airport, but also implementation at Michigan's land border crossings with Canada, should in no event be consolidated.12 As suggested by the Michigan ACLU's submission of two separate FO!As, Michigan's situation is particularly unique. E.D. Mich. Compl. 'I[ I; see id. '1['1[10-18. The metro Detroit region has the highest number of residents per capita from the seven countries barred under the E.O., and is one of the primary locations for resettlement of Syrian refugeesP Moreover, not only is Michigan's Arab-American population concentrated right on the land border with Canada,14 but the border crossings in the Detroit region- the Ambassador Bridge and the Detroit Windsor Tunnel- are the two busiest U.S./Canadian land crossings in the country. E.D. Mich. Compl. '1[15 The Michigan-Canada border is so close that it is common for people, including people from the banned countries residing in Canada, to commute to work or school from Windsor to Detroit daily during the week.15
The implementation of the E.O. at Michigan's land borders thus raises unique local issues, such as how the E.O. was applied to commuters or individuals who were in Canada to shop or dine when the E.O. went into effect. Given that the records on the Canada/Michigan
12 The ACLU of Michigan will more fully set out the distinctiveness of the Michigan litigation in its forthcoming response (due June 2, 2017) to the government's motion to stay proceedings in the Eastern District of Michigan, and will file a copy of that response with this Panel.
13 George Hunter, Number ofRefugees Coming to Michigan Expected to Climb, DET. NEWS, March 19,2016, available at http://www.detroitnews.com/story/news/local/oaklandcounty/2016/03/19/refugees-michigan-recent-high/82031954/ (visited May 30, 2017).
14 Dearborn, Michigan has the highest percentage ofMuslims in the country, U.S. DEPT. OF COM., THE ARAB POPULATION: 2000-CENSUS BRIEF, U.S. CENSUS BUREAU (May 22, 2017), available at https://www.census.gov/prod/2003pubs/c2kbr-23.pdf (visited May 30, 2017).
15 Lauren Hayes, Michigan/Windsor Cross Border Employment, 5 J. FOR GLOBAL Bus. AND COMMUNITY 2, available at http://jgbc.fiu.edu/files/journals/2/articles/l 09/public/109-587-1PB.pdf (visited May 30, 2017).
18
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Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.542 Page 76 of 81
general docket conditions permit us to make the Section 1407 assignment knowing that the court has the resources available to manage this litigation"). The Judge in the pending FOIA case, the Hon. Leonie M. Brinkema, has no MDL proceedings assigned to her. See, e.g., In re Lumber Liquidators Chinese-Mfd Flooring Prods. Mktg., Sales Practices & Prods. Liab. Litig., 109 F. Supp. 3d 1382, 1383 (J.P.M.L. 2015) ("Centralization ... allows us to assign this litigation to a district to which we have transferred relatively few MDLs."). It also is easily accessible, located in Alexandria, Virginia, a mere 9.1 miles from CBP Headquarters, and with three major airports and non-stop flights from most jurisdictions involved here, and of course conveniently located for defense counsel. See In re Ameriques! Mtg. Co. Lending Practices Litig., 408 F. Supp. 2d 1354, 1355 (J.P.M.L. 2005) (transferring cases to a "geographically central district [that] will be a convenient location for a litigation already nationwide in scope"). Transfer to the Eastern District of Virginia would further the goals of expedited relief in FOIA actions.
Alternatively, the Districts of Maine or Western Washington both would be superior choices to the District of Columbia. Maine has an average pending caseload of only 219 cases per judge, a median time of 6.3 months from filing to disposition in civil cases, and only 1.5% of its civil cases are more than 3 years old. It has no MDL proceedings pending in the District. Western Washington has an average pending caseload of only 400 cases per judge, a median time in civil cases of 6.5 months from filing to disposition and 17.2 months from filing to trial, and only 3% of its cases are more than 3 years old. It also has no MDL proceedings pending. In addition, because 6 of the 13 FOIA cases are pending in the Ninth Circuit Court of Appeals, Western Washington would be a convenient choice for nearly half of the Affiliates' counsel.
V. CONCLUSION The ACLU Affiliates respectfully request that the Panel deny the Motion.
20
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Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.543 Page 77 of 81

Date: May 30, 2017

Respectfully submitted,

/s/ Thomas R. Burke
Thomas R. Burke (CSB # 141930) thomasburke@dwt.com
DAVIS WRIGHT TREMAINE LLP 505 Montgomery St., Suite 800 San Francisco, CA 94111 Phone: (415) 276-6500 Fax: (415) 276-6599
Lead Counsel In this Proceeding for Plaintiffs American Civil Liberties Union ofNorthern California, American Civil Liberties Union ofHawaii, American Civil Liberties Union of Utah, American Civil Liberties Union ofSan Diego and Imperial Counties, American Civil Liberties ofSouthern California, American Civil Liberties Union ofNevada, American Civil Liberties Union ofMaine, American Civil Liberties Union ofNew Hampshire, American Civil Liberties Union of Vermont, American Civil Liberties Union ofMassachusetts, American Civil Liberties Union ofConnecticut, American Civil Liberties Union ofRhode Island, American Civil Liberties Union ofFlorida, . American Civil Liberties Union of Washington, American Civil Liberties Union ofMontana, American Civil Liberties. Union of North Dakota, American Civil Liberties Union ofArizona, American Civil Liberties Union of Virginia, American Civil Liberties Union ofMaryland, American Civil Liberties Union of Pennsylvania, American Civil Liberties Union ofDelaware, American Civil Liberties Union ofIllinois, American Civil Liberties Union ofIndiana, American Civil Liberties Union of Iowa, American Civil Liberties Union ofKentucky, American Civil Liberties Union ofMinnesota, American Civil Liberties Union of Missouri, American Civil Liberties Union ofNebraska, American Civil Liberties Union ofOhio, American Civil Liberties Union of South Dakota, American Civil Liberties Union of Wisconsin, American Civil Liberties Union ofOregon, American Civil Liberties Union ofAlaska, American Civil Liberties Union of Colorado, American Civil Liberties Union ofIdaho, American Civil Liberties Union of Wyoming, American Civil Liberties Union ofMichigan, American Civil Liberties Union ofTexas, Inc., American Civil Liberties Union ofGeorgia, Inc., American Civil Liberties Union ofNorth Carolina, Inc., American Civil Liberties Union ofSouth Carolina, Inc., and American Civil Liberties Union of West Virginia, Inc.

21
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Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.544 Page 78 of 81 Case MDL No. 2786 Document 79-1 Filed 06/05/17 Page 1 of 3

BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

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

MDL Docket No. 2786

PROOF OF SERVICE
In Compliance with Rule 4.l(a) of the Rules of Procedures for the United States Judicial Panel on Multidistrict Litigation I hereby certify that copies of the foregoing NOTICE OF FILING PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO STAY PROCEEDINGS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN were transmitted for filing to the District Courts listed below by First Class Mail on June 5, 2017:
Clerk, U.S. District Court for the District of Maine Edward T. Gignoux U.S. Courthouse !56 Federal Street Portland, ME 0410 I
Clerk, U.S. District Court for the Southern District of California 333 West Broadway, Suite 420 San Diego, CA 9210 I
Clerk, U.S. District Court for the Southern District of Florida Wilkie D. Ferguson, Jr. U.S. Courthouse 400 North Miami Avenue Miami, FL 33128
Clerk, U.S. District Court for the Western District of Washington 700 Stewart Street, Suite 2310 Seattle, WA 9810 I
Clerk, U.S. District Court for the District of Arizona Sandra Day O'Connor U.S. Courthouse, Suite 130 40 I West Washington Street, SPC I Phoenix, AZ 85003-2118
1

Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.545 Page 79 of 81

' '

Case MDL No. 2786 Document 79-1 Filed 06/05/17 Page 2 of 3

Clerk, U.S. District Court for the Eastern District ofVirgiuia Albert V. Bryan U.S. Courthouse 40 I Courthouse Square Alexandria, VA 223 I4
Clerk, U.S. District Court for the Northern District of Illinois Everett McKinley Dirksen United States Courthouse 2 I 9 South Dearborn Street Chicago, IL 60604
Clerk, U.S. District Court for the Northern District of California Ronald V. Dellums Federal Building & United States Courthouse Suite 400S, 1301 Clay Street Oakland, CA 94612
Clerk, U.S. District Court for the District of Oregon Mark 0. Hatfield U.S. Courthouse 1000 S.W. Third Avenue Portland, OR 97204
Clerk, U.S. District Court for the Eastern District of Michigan Federal Building 200 E. Liberty Street Ann Arbor, MI 48104
Clerk, U.S. District Court for the Southern District of Texas David J. Bradley P.O. Box 61010 Houston, TX 77208
Clerk, U.S. District Court for the Northern District of Georgia Richard B. Russell Federal Building 22 I I United States Courthouse 75 Ted Turner Drive, SW Atlanta, GA 30303-3309
Clerk, U.S. District Court for the Central District of California Suite43!1, 350 W.lst Street Los Angeles, CA 90012-4565

2

Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.546 Page 80 of 81 Case MDL No. 2786 Document 79-1 Filed 06/05/17 Page 3 of 3
In Compliance with Rule 4.1(a) of the Rules of Procedures for the United States Judicial Panel on Multidistrict Litigation I hereby certify that copies of the foregoing NOTICE OF FILING PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO STAY PROCEEDINGS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, were served on all parties in the following cases electronically via ECF on June 5, 2017:
Counsel for Defendants U.S. Customs and Border Protection; U.S. Department of Homeland Security
Chad A. Readier Elizabeth J. Shapiro Matthew J. Berns Chetan A. Patil U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Email: matthew.j.berns@usdoj.gov

DATE this 51h day of June, 2017

Respectfully submitted,
/s/ Thomas R. Burke THOMAS R. BURKE Davis Wright Tremaine LLP 505 Montgomery Street, Suite 800 San Francisco, CA 94111 Tel: (415) 276-6500 Email: thomasburke@dwt.com

3

Case 3:17-cv-00733-L-JLB Document 35 Filed 07/06/17 PageID.547 Page 81 of 81

L•-;~ Davis VJright •• Trema1ne LLP

505 Montgomery Street, Surte 800

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San Francisco, CA 94111 ~6533

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 Case 3:17C-cavs-0e0M73D3L-LN-oJL. B278D6ocDuomceunmt e4n0t 8F8ileFdil0e8d/1058//1072/1P7agPeaIDg.e5616of P5age 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

Aug 15 2017
s/ joanag
MDL No. 2786

ORDER DENYING TRANSFER
Before the Panel:* Defendants, the U.S. Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP),1 move to centralize thirteen Freedom of Information Act (FOIA) actions in the District of District of Columbia. The actions, which are pending in thirteen districts, are listed on the attached Schedule A.
Plaintiffs, which are various affiliates of the American Civil Liberties Union, oppose centralization. If the Panel grants the Section 1407 motion over their objections, plaintiffs ask that the action in the Eastern District of Michigan be excluded, and that the litigation be centralized in the Eastern District of Virginia or, alternatively, in the District of Maine or the Western District of Washington.
On the basis of the papers filed and the hearing session held, we deny Defendants’ motion. The actions arguably share a limited number of factual issues arising out of FOIA requests made by plaintiffs for records concerning CBP’s interpretation and implementation – at local international airports and, in the Eastern District of Michigan case, U.S./Canada border crossings – of the January 27, 2017, Executive Order No. 13769, titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” as well as any judicial order or executive directive issued regarding the Executive Order. But these factual issues, which principally concern the adequacy of CBP’s searches for the requested records, as well as CBP’s coordination of the searches by its Washington, D.C., headquarters, appear relatively straightforward and unlikely to entail extensive pretrial proceedings. See Riccardi v. U.S. Dep’t of Justice, 32 F. Supp. 3d 59, 63 (D.D.C. 2014) (“In a FOIA case, where the adequacy of an agency’s search is questioned, the Court may grant summary judgment based on information provided in ‘[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.’”) (quoting Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir.1999)). Indeed, as Defendants acknowledge, these actions probably will not involve any discovery. See Mem. in Supp. of Defs.’ Mot. for Transfer, at 16 n.8 (ECF No. 1-1)
* Judge Marjorie O. Rendell took no part in the decision of this matter.
1 CBP is a component of DHS.

Case 3:17C-cavs-0e0M73D3L-LN-oJL. B278D6ocDuomceunmt e4n0t 8F8ileFdil0e8d/1058//1072/1P7agPeaIDg.e5627of P5age 2 of 5
-2-
(“In the unlikely event that discovery is authorized in these Related Actions, Defendants anticipate that CBP witnesses would be located in Washington, DC, while Plaintiffs would not have any witnesses of their own.”); see also, e.g., Justice v. I.R.S., 798 F. Supp. 2d 43, 47 (D.D.C. 2011) (noting that in FOIA actions, discovery is “disfavored”).2
Defendants also contend that common factual questions will inform any review of CBP’s determinations to withhold information from disclosure pursuant to FOIA’s statutory exemptions. This argument is unconvincing, because the application of those exemptions is a legal issue. See, e.g., Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007) (“Whether a FOIA exemption justifies withholding a record is a question of law that we review de novo.”); see also Am. Mgmt. Servs., LLC v. Dep’t of the Army, 703 F.3d 724, 729 (4th Cir. 2013) (same).
Although defendants heavily rely on the Panel’s 1992 decision in MDL No. 910, In re: Freedom Magazine/Internal Revenue Service FOIA Litigation, and its 1991 decision in MDL No. 892, In re: Church of Scientology Flag Service Organization/Internal Revenue Service FOIA Litigation, those decisions are in at least some tension with more recent Panel precedent. E.g., In re: Clean Water Rule: Definition of “Waters of the United States,” 140 F. Supp. 3d 1340, 1341 (J.P.M.L. 2015) (denying federal government defendants’ motion for centralization of nine actions pending in seven districts involving challenges to EPA rule, where resolution of the actions would “involve only very limited pretrial proceedings,” and discovery, if any, would be “minimal”). Moreover, the decisions are distinguishable. In Freedom Magazine, the eight cases were filed by a single plaintiff, which specifically sought records located at the IRS’s Washington, D.C. headquarters. See Freedom Magazine Transfer Order at 2 (J.P.M.L. Feb. 12, 1992) (unpublished). And, in Church of Scientology, “every FOIA request in the litigation was made upon the IRS office in Jacksonville in [the Middle District of Florida, where the cases were centralized],” and related litigation was pending in that district. See Church of Scientology Transfer Order at 2 (J.P.M.L.. Sept. 4, 1991) (unpublished). Here, the actions are brought by separate plaintiffs (albeit all ACLU affiliates), and each FOIA request targets a different CBP field office.
Defendants also argue that centralization would reduce litigation costs. They represent, without contradiction, that it was unnecessary for the ACLU plaintiffs to submit a separate FOIA request for each CBP field office, and that the national ACLU, or the various affiliates acting together, simply could have sent CBP headquarters a single FOIA request asking the agency to search the same field offices for the same records covered by the multiple requests. But, the potential for litigation cost savings, without more, does not warrant centralization, particularly where, as here, there is little likelihood of complex pretrial proceedings.
2 In the unlikely event that these cases actually involve a significant amount of duplicative pretrial discovery, Defendants are free to file another motion for centralization.

Case 3:17C-cavs-0e0M73D3L-LN-oJL. B278D6ocDuomceunmt e4n0t 8F8ileFdil0e8d/1058//1072/1P7agPeaIDg.e5638of P5age 3 of 5
-3IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.
PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance Chair

Charles R. Breyer Ellen Segal Huvelle Catherine D. Perry

Lewis A. Kaplan R. David Proctor

Case 3:17C-cavs-0e0M73D3L-LN-oJL. B278D6ocDuomceunmt e4n0t 8F8ileFdil0e8d/1058//1072/1P7agPeaIDg.e5649of P5age 4 of 5

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

MDL No. 2786

SCHEDULE A

District of Arizona
AMERICAN CIVIL LIBERTIES UNION OF ARIZONA v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 2:17-01083
Central District of California
AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA, ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 2:17-02778
Northern District of California
ACLU OF HAWAI'I, ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, C.A. No. 4:17-01970
Southern District of California
AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 3:17-00733
Southern District of Florida
AMERICAN CIVIL LIBERTIES UNION OF FLORIDA v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 1:17-21382
Northern District of Georgia
AMERICAN CIVIL LIBERTIES UNION OF GEORGIA, INC., ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 1:17-01309
Northern District of Illinois
AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 1:17-02768

Case 3:17C-cavs-0e0M73D3L-LN-oJL. B278D6ocDuomceunmt e4n0t 8F8ileFdil0e8d/1058//1072/1P7agPeaIDg.e5750of P5age 5 of 5
- A2 -
MDL No. 2786 Schedule A (Continued) District of Maine
AMERICAN CIVIL LIBERTIES UNION OF MAINE, ET AL. v. U.S. CUSTOMS AND BORDER PROTECTION, ET AL., C.A. No. 2:17-00132 Eastern District of Michigan
AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 5:17-11149 District of Oregon
AMERICAN CIVIL LIBERTIES UNION OF OREGON, INC., ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 3:17-00575 Southern District of Texas
ACLU FOUNDATION OF TEXAS, INC. v. U.S. CUSTOMS AND BORDER PROTECTION, ET AL., C.A. No. 4:17-01128 Eastern District of Virginia
AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 1:17-00441 Western District of Washington
AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON, ET AL. v. U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., C.A. No. 2:17-00562

 
 Case 3:17-cv-00733-L-JLB Document 48 Filed 10/13/17 PageID.610 Page 1 of 8

1 CHAD A. READLER

2

Acting Assistant Attorney General Civil Division

3 ALANA W. ROBINSON 4 Acting United States Attorney
ELIZABETH J. SHAPIRO 5 Deputy Director, Federal Programs Branch

6 CHETAN A. PATIL (NY 4780599)

Trial Attorney

7 United States Department of Justice

Civil Division, Federal Programs Branch

8

20 Massachusetts Ave., NW Washington, DC 20530

9

Tel.: (202) 305-4968; Fax: (202) 616-8470 Email: chetan.patil@usdoj.gov

10 Attorneys for Defendants

11

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

12

13

UNITED STATES DISTRICT COURT

14

SOUTHERN DISTRICT OF CALIFORNIA

15 AMERICAN CIVIL LIBERTIES UNION Case No. 3:17-cv-00733-L-JLB

16

OF SAN DIEGO AND IMPERIAL COUNTIES,

Assigned to Hon. Jill L. Burkhardt

17

Plaintiff,

JOINT STATUS REPORT

18

vs.

CMC Date: October 17, 2017

Time:

1:45 p.m.

19 U.S. DEPARTMENT OF HOMELAND Action Filed: April 12, 2017

20

SECURITY and U.S. CUSTOMS AND BORDER PROTECTION,

21

Defendants.

22

23 Plaintiff American Civil Liberties Union of San Diego and Imperial Counties
24 25 and Defendants U.S. Department of Homeland Security (“DHS”) and U.S. Customs 26 and Border Protection (“CBP”) respectfully submit this Joint Status Report pursuant 27 to this Court’s Minute Order of September 28, 2017. ECF No. 47. The parties 28 submit this Report following a conference of counsel on October 10, 2017. The

Joint Status Report

1

Case No.: 3:17-cv-00733-L-JLB

Case 3:17-cv-00733-L-JLB Document 48 Filed 10/13/17 PageID.611 Page 2 of 8

1 parties incorporate by reference the previously filed Joint Discovery Plan, ECF No.

2 46.

3 I. PLAINTIFF’S POSITION

4

Plaintiff continues to disagree with Defendants’ request to replace the Court’s

5 tentative calendar with an open-ended schedule with no production or dispositive

6 motion deadlines. This action seeks the disclosure of records and related relief in

7 connection with Plaintiff’s FOIA request about CBP’s local implementation of

8 President Trump’s Executive Orders purporting to halt refugee admissions and to bar

9 travelers from several predominantly Muslim countries. As Defendants recognized

10 in granting Plaintiff’s request for a fee waiver, this is a matter of substantial public

11 concern. See 5 U.S.C. § 552(a)(4)(A)(iii) (fee waiver appropriate when disclosure of

12 requested records is in the public interest and is “likely to contribute significantly to

13 public understanding of the operations or activities of the government ”).

14

To ensure that such material is disclosed when it still can inform ongoing

15 public debate, FOIA requires that agencies promptly produce non-exempt records.

16 See 5 U.S.C. § 552(a)(6)(A)(i) (establishing 20-day response deadline absent

17 “unusual” or “exceptional” circumstances). In setting this timeline, “Congress was

18 specifically concerned that agencies would delay in responding to requests.” Our

19 Children’s Earth Found. v. Nat’l Marine Fisheries Serv., 85 F. Supp. 3d 1074, 1089

20 (N.D. Cal. 2015). See also Martins v. USCIS, 962 F. Supp. 2d 1106, 1127 (N.D. Cal.

21 2013) (recognizing that “expeditious release of documents … furthers FOIA’s core

22 purpose of shed[ding] light on an agency’s performance”) (quotation omitted). More

23 than eight months have gone by since Plaintiff submitted the request at issue.

24 Defendants have not established good cause to further delay disclosure by replacing

25 the Court’s tentative calendar with a schedule involving quarterly or monthly status

26 reports but no production or dispositive motion deadlines.

27

Defendants’ request is based on the asserted administrative burden from

28 processing records related to other litigation arising from separate FOIA requests by

Joint Status Report

2

Case No.: 3:17-cv-00733-L-JLB

Case 3:17-cv-00733-L-JLB Document 48 Filed 10/13/17 PageID.612 Page 3 of 8

1 different entities seeking different records. While the actions may have some

2 overlap, Defendants already sought to consolidate this case with the other lawsuits on

3 that basis, and the United States Judicial Panel on Multidistrict Litigation (“MDL”)

4 denied their request. See ECF No. 40. The MDL panel permitted this action to

5 proceed independently, on its own terms. Id. Consequently, these other FOIA

6 requests and lawsuits do not provide a proper basis for delaying disclosure in this

7 particular action. Defendants have not shown that processing the records responsive

8 to Plaintiff’s request presents an unreasonable burden.

9

To the contrary, Defendants state that CBP has collected approximately 3,555

10 potential responsive email messages and attachments from three records custodians

11 in the San Diego Field Office and Port of San Diego. While Plaintiff does not

12 concede that this is a sufficiently responsive search, the figure demonstrates that the

13 request at issue in this lawsuit is a manageable one that is not so voluminous or

14 burdensome as to justify the requested modification to the Court’s schedule.

15 Defendants should not be permitted to delay producing this limited set of records for

16 an undetermined amount of time simply because they chose to move them from San

17 Diego to Washington DC for processing, despite having their request to consolidate

18 this action with the other cases denied.

19

Plaintiff therefore respectfully requests that the Court adopt its tentative

20 schedule for the parties to file dispositive motions by December 22, 2017.1 In order

21 to frame the issues to be adjudicated on summary judgment, Plaintiff requests that

22 the Court order Defendants to produce all non-exempt responsive records along with

23 a Vaughn index identifying any withheld documents and the exemptions being

24 claimed no later than November 22, 2017. Plaintiff would consider a request by

25 Defendants supported by sufficient good cause to continue these deadlines for a

26

27 1 As discussed in the previously filed Joint Discovery Plan, ECF No. 46, because this 28 FOIA case will likely be fully resolved on a motion or cross-motions for summary
judgment, the other deadlines in the tentative schedule will likely be inapplicable.

Joint Status Report

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1 reasonable, specific period of time, but it continues to oppose an open-ended

2 schedule with no production or dispositive motion deadline.

3 II. DEFENDANTS’ POSITION

4

Plaintiff submitted its FOIA request to CBP on February 2, 2017 seeking

5 records related to the implementation and enforcement of Executive Order 13,769,

6 titled “Protecting the Nation from Foreign Terrorist Entry into the United States” at

7 what Plaintiff describes as sites within the purview of CBP’s San Diego Field Office.

8 On the same day, various other ACLU affiliates submitted 17 other FOIA requests

9 seeking the same or substantially similar categories of records from other CBP field

10 offices, including one request submitted by the national ACLU organization which

11 sought records from CBP headquarters. In addition, on February 10, 2017, the

12 ACLU of Michigan submitted a supplemental request also seeking the same or

13 substantially similar categories of records. By letter dated May 26, 2017, CBP

14 advised Plaintiff and the other ACLU affiliates that, due to the overlapping nature of

15 the 19 FOIA requests, it would centrally coordinate the search for records responsive

16 to the requests.

17

CBP has collected and begun processing email records, including attachments,

18 to or from over 80 custodians in the various field offices covered by the ACLU

19 affiliates’ requests. To date, CBP has fully processed approximately 564 pages of

20 records and released the non-exempt information in three interim releases of records,

21 on July 14, July 26, and September 21, 2017.

22

However, the volume of the records compiled and the complexity of the

23 review necessary for processing records potentially responsive to Plaintiff’s request

24 compelled the agency to transition the collected email files to a new review platform

25 that allows for more efficient processing. This effort is designed to streamline

26 processing for all of the ACLU FOIA requests, avoid duplication, and expedite

27 review. That transition has recently been completed. The agency anticipates that

28 after an initial ramp-up period for its FOIA processors to become trained and

Joint Status Report

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1 proficient on this platform, the new platform will allow for an improved processing

2 rate as compared to its prior platform.

3

Furthermore, the new review platform allows for increased efficiencies from

4 de-duplication of documents within and across field offices and email threading. To

5 date, CBP has collected and begun processing approximately 103,000 records

6 consisting of email messages and attachments to or from over 80 custodians in the

7 various field offices covered by the ACLU affiliates’ requests. These records

8 comprise approximately 275,000 pages.2 Specifically with respect to Plaintiff’s

9 request, CBP has collected approximately 3,555 potentially responsive email

10 messages and attachments, comprising over 8,700 pages (not including spreadsheets,

11 see supra n.2), to or from three custodians in the San Diego Field Office and the Port

12 of San Diego. The three custodians are the Director of Field Operations for the San

13 Diego Field Office, the Assistant Director of Field Operations for the San Diego

14 Field Office, and the Port Director for the Port of San Diego. In addition, CBP has

15 also collected approximately 10,000 email messages and attachments from

16 custodians at CBP Headquarters, some of which include communications with the

17 custodians in the San Diego Field Office.3 The agency is also searching for non-

18 email records but intends to prioritize processing of email records.

19

CBP is also in the process of applying a core list of search terms to identify

20 records that are likely to be responsive to the ACLU affiliates’ requests. CBP

21 received proposed lists of search terms from plaintiffs in six of the parallel actions

22 brought by other ACLU affiliates involving the FOIA requests submitted on

23 February 2, 2017 and February 10, 2017. The agency has reviewed and analyzed the

24

25
26 2 This total page count does not include spreadsheets attached to email messages, as it is difficult to translate spreadsheets into pages.
27 3 The agency has not yet determined how many, if any, of these records are not 28 duplicative of records collected from the custodians in the San Diego Field Office
and/or are potentially responsive to Plaintiff’s request.

Joint Status Report

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1 search terms provided by these affiliates and used these lists to derive its core list of

2 search terms. The agency will share that core list of search terms with Plaintiff

3 shortly. The agency will then review the documents identified by its core search

4 terms for responsiveness and for any information that should be withheld pursuant to

5 a FOIA exemption, and will continue to release responsive, non-exempt records on a

6 rolling basis. In addition, once its releases near completion, the agency will consider

7 whether any additional searches are reasonably likely to identify additional

8 responsive records and will engage in discussions with Plaintiff to that end.

9

Accordingly and as set forth in the parties’ Joint Discovery Plan, Defendants

10 continue to maintain that good cause exists to modify the Court’s tentative schedule

11 regarding the date by which all motions would be filed. Defendants continue to

12 propose that CBP be permitted to continue releasing non-exempt records responsive

13 to Plaintiff’s FOIA request on a rolling basis while submitting quarterly or monthly

14 status reports to advise the Court on CBP’s progress and to assure the Court that CBP

15 is proceeding diligently under the circumstances. CBP anticipates that by the next

16 such status report, it will be able to provide additional information pertinent to

17 scheduling in this litigation, including anticipated processing rates (e.g., number of

18 pages per month, factoring in staffing considerations, as well as the competing

19 interests of all the related FOIA litigation across the country) and an estimated

20 processing schedule. In addition, Defendants will continue to confer with Plaintiff in

21 good faith regarding the scope, timing, and protocol of the agency’s search and

22 release of records, and simultaneously will continue to process and release records on

23 a rolling basis.

24

25

26

27

28

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1 DATED: October 13, 2017 2 3 4 5 6 7 8 9 DATED: October 13, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DAVIS WRIGHT TREMAINE LLP THOMAS R. BURKE DAN LAIDMAN ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES MITRA EBADOLAHI By: /s/ Thomas R. Burke
Thomas R. Burke Attorneys for Plaintiff AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES
UNITED STATES DEPARTMENT OF JUSTICE CHAD A. READLER Acting Assistant Attorney General
ALANA W. ROBINSON Acting United States Attorney
ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch CHETAN A. PATIL By: /s/ Chetan A. Patil
Chetan A. Patil Attorneys for Defendants U.S. DEPARTMENT OF HOMELAND SECURITY AND U.S. CUSTOMS AND BORDER PROTECTION

Joint Status Report

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1

SIGNATURE CERTIFICATION

2 Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative
3

4 Policies and Procedures Manual, I hereby certify that the content of this document is

5 acceptable to Thomas R. Burke, counsel for Plaintiff ACLU of San Diego and
6 Imperial Counties, and that I have obtained Mr. Burke’s authorization to affix his
7
8 electronic signature to this document.

9

/s/ Chetan A. Patil

10

CHETAN A. PATIL

11

12

13

14

15

16

17

18

19

20

21

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25

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Joint Status Report

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Case No.: 3:17-cv-00733-L-JLB

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

5 DAVIS WRIGHT TREMAINE LLP DAN LAIDMAN (CA State Bar No. 274482)
6 865 South Figueroa Street, Suite 2400 Los Angeles, CA 90017-2566
7 Telephone: (213) 633-6800 Email: danlaidman@dwt.com
8 ACLU FOUNDATION OF SAN DIEGO
9 AND IMPERIAL COUNTIES MITRA EBADOLAHI (CA State Bar No. 275157)
10 P.O. Box 87131 San Diego, CA 92138-7131
11 Telephone: (619) 398-4187 Email: mebadolahi@aclusandiego.org
12

13

Attorneys for Plaintiff AMERICAN CIVIL LIBERTIES UNION OF

14 SAN DIEGO AND IMPERIAL COUNTIES

15

UNITED STATES DISTRICT COURT

16

SOUTHERN DISTRICT OF CALIFORNIA

17

18

AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL

Case No. 3:17-cv-00733-L-JLB Assigned to Hon. Jill L. Burkhardt

19 COUNTIES,

JOINT STATUS REPORT

20

Plaintiff,

ENE Date: November 6, 2017

21

vs.

Time:

10:30 a.m.

22

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

23 BORDER PROTECTION,

Action Filed:

April 12, 2017

24

Defendants.

25

26

27

28

1
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1

Plaintiff American Civil Liberties Union of San Diego and Imperial Counties

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

3 and Border Protection (“CBP”) respectfully submit this Joint Status Report in

4 advance of the further Early Neutral Evaluation (“ENE”) scheduled for November 6,

5 2017. The parties incorporate by reference their previously filed Joint Discovery

6 Plan and Joint Status Report. ECF Nos. 46, 48.

7

I. Plaintiff’s Position.

8

On October 17, 2017, this Court continued the ENE for 20 days and ordered

9 Defendants (1) to identify a reasonable processing rate and specific production

10 timeline, and (2) to produce records responsive to Plaintiff’s Freedom of Information

11 Act (“FOIA”) request prior to the November 6, 2017 ENE. Defendants have not

12 complied with the Court’s directions or justified any further delay.

13

First, Defendants still refuse to provide any specific production schedule –

14 e.g., no start or end dates – indicating only that CBP intends to release records on an

15 indefinite rolling basis. They still fail to provide any evidence or particularized

16 explanation as to why they cannot process the relatively small number of San Diego-

17 specific records at issue in a timely manner. Instead, they repeat the same conclusory

18 assertion about the agency’s purported burdens in responding to other requests by

19 different entities seeking different records. This issue already was litigated and

20 decided in Plaintiff’s favor when the United States Judicial Panel on Multidistrict

21 Litigation (“MDL”) denied Defendants’ request to consolidate this lawsuit with other

22 FOIA cases related to the Executive Orders. See ECF No. 40. The MDL panel

23 permitted this action to proceed independently, on its own terms, which means that

24 the other lawsuits are not a proper basis for Defendants to shirk their disclosure

25 obligations here. Id.

26

If anything, CBP itself has made responding to Plaintiff’s request more

27 burdensome with its decision to flout the MDL ruling and centralize processing in

28 Washington in conjunction with other, unrelated FOIA requests. CBP essentially has

2
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1 taken the straightforward task of searching a relatively small number of accounts in

2 San Diego and processing a few thousand emails and made it far more complicated

3 than necessary. In advance of the last ENE, Defendants represented that CBP has

4 collected approximately 3,555 potentially responsive email messages and

5 attachments from three records custodians in the San Diego Field Office and Port of

6 San Diego. Presumably, this is not the totality of CBP’s anticipated production of

7 responsive records – only the start. Accordingly, CBP should be required to produce

8 these records promptly so that Plaintiff can determine if the production is sufficiently

9 responsive and the parties can address further searches, proceed to summary

10 judgment, or end the litigation.

11

Second, Defendants have not identified a processing rate for the San Diego-

12 specific records responsive to Plaintiff’s request. Instead they estimate that CBP will

13 process approximately 3,575 pages per month nationwide in response to all

14 Executive Order-related FOIA requests, including those at issue in the MDL ruling.

15 Of course, this number could include no pages responsive to Plaintiff’s request in any

16 given month, making it patently unreasonable beyond the general impropriety of

17 centralizing the processing of the different requests despite the MDL ruling.

18

Defendants’ claim about fairness to other FOIA requesters also rings hollow

19 because they granted Plaintiff’s request for expedited processing under 5 U.S.C.

20 § 552(a)(6)(E)(v)(II). The statute contemplates that some requests will be processed

21 ahead of others, and Defendants determined more than five months ago, on May 26,

22 2017, that Plaintiff has shown a compelling need for prompt disclosure.

23

Courts frequently order agencies to process thousands of pages per month in

24 response to particular FOIA requests on matters of significant public interest,

25 regardless of the agencies’ claims about the burdens of responding to other requests.

26 E.g., Clemente v. FBI, 71 F. Supp. 3d 262, 269 (D.D.C. 2014) (explaining that a

27 “court … may use its equitable powers to require the agency to process documents

28 according to a court-imposed timeline” and ordering FBI to process 5,000 records a

3
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1 month); Seavey v. DOJ, --- F.Supp.3d ----, 2017 WL 3112816, at *4-6 (D.D.C. July

2 20, 2017) (ordering production “at a rate of not less than 2,850 pages per month”

3 despite FBI’s claim that 500 pages would be consistent with its “comprehensive

4 policy” for responding to all FOIA requests); Electronic Privacy Information Center

5 v. FBI, 933 F. Supp. 2d 42, 48-50 (D.D.C. 2013) (rejecting FBI’s claim that

6 “‘exceptionally large number’ of FOIA cases involving the FBI currently in

7 litigation” justified only processing 1,500 pages per month, and ordering

8 significantly higher volume in response to plaintiff’s request).

9

The Western District of Washington rejected Defendants’ same arguments in

10 another Executive Order-related FOIA suit, and ordered them to process 1,000 pages

11 per month of records that are specifically responsive to those plaintiffs’ request, with

12 the production to be completed by January 16, 2018. See ACLU of Washington et al.

13 v. DHS, W.D. Wash. No. C17-00562, ECF No. 36 (Oct. 20, 2017). Remarkably,

14 Defendants seek to use that order to justify delaying disclosure in this case, an

15 approach that “would create a new definition of chutzpah.” Embury v. King, 361

16 F.3d 562, 566 n.21 (9th Cir. 2004) (defining chutzpah as “that quality enshrined in a

17 man who, having killed his mother and father, throws himself on the mercy of the

18 court because he is an orphan”) (quotation omitted).

19

Third, Defendants have not meaningfully complied with the Court’s direction

20 to produce additional responsive records prior to the November 6 ENE. On October

21 24, 2017, CBP posted 250 pages of heavily redacted records to its website, which

22 apparently have been drawn from a centralized search relating to all of the Executive

23 Order-related FOIA cases. CBP indicates that seven pages out of 250 are responsive

24 to “All Field Offices,” and zero pages are specifically responsive to Plaintiff’s

25 request for records from the San Diego Field Office.

26

More than nine months have passed since Plaintiff made its FOIA request.

27 Despite recognizing the strong public interest here and granting expedited

28

4
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1 processing, Defendants still have not committed to any specific timeline for

2 disclosure. Therefore, Plaintiff proposes that the Court adopt the following schedule:

3

(1) Defendants shall process the approximately 3,555 potentially responsive

4

email messages and attachments CBP has collected from three custodians

5

in the San Diego Field Office and the Port of San Diego and produce all

6

non-exempt responsive records and a Vaughn index within 60 days;

7

(2) The parties shall file a Joint Status Report no later than 30 days after the

8

production is completed addressing whether the production is sufficiently

9

responsive or further searches are required, and proposing an appropriate

10

timeline for additional processing or the filing of dispositive motions.

11

II. Defendants’ Position.

12

CBP’s Processing Rate. As Defendants previously explained, CBP has

13 applied a core list of search terms to the records it has collected from 85 custodians

14 in the various field offices covered by the ACLU affiliates’ requests. Application of

15 this core list of search terms identifies over 30,000 potentially responsive records

16 totaling over 90,000 pages (not including spreadsheets). With respect to the

17 Plaintiff’s request in particular, the search terms identify approximately 1,540

18 records totaling approximately 4,300 pages (not including spreadsheets).

19

Plaintiff refers in several places to the approximately 3,555 records the agency

20 has collected from custodians in the San Diego Field Office and the Port of San

21 Diego, which reflect the total number of emails collected from those custodians. The

22 agency has discretion to apply reasonable search terms to these records, and there is

23 no requirement that the agency review for responsiveness and withholdings every

24 single record before application of search terms. See, e.g., Bigwood v. DOD, 132 F.

25 Supp. 3d 124, 140 (D.D.C. 2015) (“A federal agency has discretion in crafting a list

26 of search terms that they believe to be reasonably tailored to uncover documents

27 responsive to the FOIA request.” (citations omitted)).

28

5
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1

At this point, Defendants estimate that CBP can process on average 3,575

2 pages of potentially responsive records per month, across all ACLU affiliate requests

3 for field office records, of which Plaintiff’s is one.1 CBP intends to release

4 responsive, non-exempt records to Plaintiff and the other ACLU affiliates2 on a

5 rolling basis until processing of the records identified by the core search terms is

6 complete. As that process nears completion, the agency intends to consider, based on

7 its review of these records and consultations with Plaintiff and the other ACLU

8 affiliates, whether additional searching is required. Rather than setting a production

9 schedule based on this current estimated rate—which would result in the completion

10 of the processing of the records identified by the core list of search terms for all

11 ACLU affiliates’ requests in approximately 27 months—Defendants submit that CBP

12 make rolling productions and submit quarterly joint status reports so that the Court

13 can monitor the agency’s progress.

14

The agency’s current estimated processing rate reflects the agency’s best guess

15 of its processing capabilities at this time based on its current level of resources,

16 current levels of staffing and FOIA experience, and current competing FOIA and

17 litigation obligations. That estimated rate may change as the review process ramps

18 up due to any number of factors, including reviewers’ increased experience with the

19 FOIA and the particular records at issue; changes to the agency’s other FOIA

20 obligations; discussions with Plaintiff and the other ACLU affiliates’ about

21 narrowing the scope of the request; and if the fruits of streamlining review of similar

22

23 1 Though Plaintiff represents above that this processing rate applies “nationwide in 24 response to all Executive Order-related FOIA requests,” this estimated processing
rate reflects the agency’s processing of only the ACLU affiliate field office 25 requests—not all Executive Order related FOIA requests. 26 2 All 18 requests submitted on February 2, 2017 request that responsive records be
released to Ms. Ebadolahi. The ACLU of Michigan’s supplemental request 27 submitted on February 10, 2017 requests that responsive records be released to Mr. 28 Juan Caballero. The agency has been making all releases to both Ms. Ebadolahi and
Mr. Caballero.
6
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1 records are greater than anticipated. Rolling productions—rather than a firm

2 completion deadline based on the agency’s estimates of its processing capacity right

3 now—along with quarterly status reports would better enable the Court and the

4 parties to monitor the agency’s progress and adjust accordingly.

5

CBP’s current estimated average monthly processing rate of 3,575 pages

6 reflects the agency’s best efforts to process Plaintiff’s and the other ACLU affiliates’

7 requests as soon as practicable. 5 U.S.C. § 552(a)(6)(E)(iii) (expedited requests must

8 be processed “as soon as practicable”). What is practicable—and hence what is

9 required by the statute—will vary depending on the size, scope, detail, and

10 complexity of the issues presented by the request; other agencies or components

11 which must be consulted or to which documents might have to be referred for

12 additional review; exemption issues; and the resources available to process the

13 request. These considerations substantially limit the agency’s current ability to

14 process the request faster than its estimated processing rate.3

15

First, the review of records potentially responsive to Plaintiff’s request is

16 complex, as many of these documents implicate sensitive information compiled for

17 law enforcement purposes, privileged information, or personally identifiable

18 information of individual travelers, the disclosure of which would constitute an

19 invasion of privacy. FOIA review is substantially different from and more time-

20 consuming than document review for civil discovery. As a result, review rates for

21 FOIA processing are not comparable to those achievable in civil discovery. CBP’s

22 reviewers—many of whom are not lawyers—must engage in line-by-line review of

23 records to apply redactions for statutory exemptions. Each record is reviewed by a

24 first-level reviewer, a second-level reviewer, and an agency attorney. In addition,

25 many records implicate the equities of other agencies or components of DHS and

26

27 3 The representations made herein regarding the agency’s review process, processing 28 efforts, and resource considerations are supported by a forthcoming declaration that
will be filed in the parallel action in the Northern District of Illinois.
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1 thus require inter- or intra-agency consultations, which necessarily take time.

2 Notably, the agency’s review involves personnel in various field offices, including—

3 in addition to CBP government information specialists who are dedicated FOIA

4 processors—individuals brought in for temporary details and attorneys from CBP’s

5 Office of Chief Counsel.

6

Second, as Defendants have explained in prior filings, the agency’s FOIA

7 resources are stretched thin. The agency has received a substantial increase in FOIA

8 requests in Fiscal Year 2017, exceeding requests from Fiscal Year 2016 by

9 approximately 33% and exceeding requests from Fiscal Year 2015 by approximately

10 70%. In particular, the agency has received over 100 requests related to Executive

11 Orders 13,769 and/or 13,780, both entitled “Protecting the Nation from Foreign

12 Terrorist Entry Into the United States.” At least 21 of these requests are the subject

13 of litigation in actions in district courts throughout the country. In addition, the

14 agency has received approximately 90 requests related to the President’s proposed

15 border wall, 52 of which are still open and four of which are currently in litigation.

16

Third, Plaintiff’s case does not exist in a vacuum. The agency’s estimate that

17 it can process on average 3,575 pages per month across all of the ACLU cases

18 reflects the agency’s efforts to devote substantial resources to processing the ACLU

19 affiliates’ requests while managing its other competing FOIA obligations. Already,

20 two orders in the parallel cases in the Western District of Washington and the Eastern

21 District of Michigan require the agency to process approximately 6,100 pages in 90

22 days and 820 pages per month, respectively. See ACLU of Washington v. DHS, No.

23 C17-00562-MJP (W.D. Wash. Oct. 20, 2017) (ECF No. 36); ACLU of Michigan v.

24 DHS, No. 17-cv-11149 (E.D. Mich. Oct. 26, 2017). These orders alone monopolize

25 approximately 80% of the agency’s estimated processing capacity for the ACLU

26 field office requests over the next three months. Another similar burdensome order

27 here would effectively force the other ACLU affiliates to wait in the back of the line.

28 What Plaintiff terms “chutzpah” is simply a refusal to turn a blind eye to what is

8
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1 occurring in actions that Plaintiff itself has described as a “coordinated” litigation 2 effort regarding “coordinated FOIA filings”4 and a corresponding acknowledgement

3 that the agency’s FOIA resources are finite.

4

Moreover, Plaintiff’s request—because it was aggregated with the other

5 ACLU affiliates’ requests—was granted expedited treatment, see 6 C.F.R. § 5.5(e),

6 which means that it was already moved ahead all non-expedited requests, but behind

7 earlier-filed requests in the expedited processing queue. In asking the Court to order

8 CBP to further accelerate the processing of its request, Plaintiff effectively demands

9 that the agency displace expedited requests ahead of Plaintiff’s in the processing

10 queue, which are no less important or time-sensitive than Plaintiff’s. Such a result

11 would be inequitable and inconsistent with the agency’s obligations under the FOIA.

12 See Daily Caller v. DOS, No. 15-1777 (BAH), 2015 WL 9907802, at *11 (D.D.C.

13 Dec. 8, 2015) (“[T]he plaintiff’s effort to accelerate review of its requests necessarily

14 will displace in processing priority those of third parties who submitted equally

15 urgent requests before the plaintiff.”); EPIC v. DOJ, 15 F. Supp. 3d 32, 47 (D.D.C.

16 2014) (recognizing that given finite agency resources, “allowing EPIC to jump to the

17 head of the line would upset the agency’s processes and be detrimental to the other

18 expedited requesters”); cf. Exner v. FB I, 542 F.2d 1121, 1123 (9th Cir. 1976)

19 (holding that agency processing of requests on “first in first out” basis is reasonable

20 and that court orders prioritizing processing of a request can result “mov[ing] such

21 petitioner ‘up the line’”); Caifano v. Wampler, 588 F. Supp. 1392, 1394 (N.D. Ill.

22 1984) (concluding that ordering agency to prioritize particular plaintiff’s request

23

24 4 See, e.g., ACLU of Delaware Files Lawsuit Demanding Documents on 25 Implementation of Trump Muslim Ban (Apr. 12, 2017), https://www.aclu26 de.org/news/aclu-of-delaware-demandsdocuments-on-implementation-of-trump-
muslim-ban/2017/04/12; ACLU, Press Release, ACLU Files Demands for 27 Documents on Implementation of Trump’s Muslim Ban (Feb. 2, 2017), 28 https://www.aclu.org/news/aclu-filesdemands-documents-implementation-trumps-
muslim-ban.
9
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1 would have effect of “‘vault[ing]’ plaintiff’s request over the requests of other

2 individuals who were ahead of him in the FOIA line but who did not seek judicial

3 relieve,” which “would unfairly prejudice those other individuals.”). Moreover,

4 several of the requests that would be displaced by Plaintiff’s demand also concern

5 Executive Order 13,769 and seek records about the implementation or enforcement

6 of the Executive Order nationwide, as opposed to Plaintiff’s “local” request.

7

Fourth, the agency believes that the most efficient and expeditious way to

8 process the potentially responsive records for all the ACLU affiliates’ requests—and

9 thus hasten the ultimate release of responsive, non-exempt records—is not to parse

10 the records to satisfy processing thresholds specific to individual field offices. The

11 agency believes that such a review process would allow the agency to take advantage

12 of certain efficiencies, including de-duplication of records across cases and

13 streamlined review of records raising similar issues regarding responsiveness and

14 withholdings. Not only would this expedite the release of responsive, non-exempt

15 records, it would also ensure more consistent and accurate treatment of exempt

16 information, including sensitive law enforcement information and information

17 implicating individual travelers’ privacy rights. See, e.g., Daily Caller v. DOS, 152

18 F. Supp. 3d 1, 15 (D.D.C. 2015) (noting that compelling production on truncated

19 timeline “raises a significant risk of inadvertent disclosure of records properly subject

20 to exemption under FOIA”); Allied Progress v. CFPB, No. 17-686 (CKK), 2017 WL

21 1750263, at *7 (D.D.C. May 4, 2017) (recognizing that “ordering production by a

22 date-certain would impugn . . . the interest in ensuring that agencies have sufficient

23 time to review materials for responsiveness and exemptions”). By contrast, requiring

24 the agency to process records on a case-by-case basis to meet field office-specific

25 processing thresholds may slow the release of records, as the agency will need to

26 shift resources to identify and focus its review on records tied to particular field

27 offices, rather than conducting the review in the most efficient manner possible.

28

10
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Case 3:17-cv-00733-L-JLB Document 51 Filed 11/03/17 PageID.630 Page 11 of 15

1

Finally, Plaintiff’s suggestion that the Judicial Panel on Multidistrict Litigation

2 addressed the manner in which the agency must process Plaintiff’s FOIA request is

3 without merit. Though the Panel denied Defendants’ motion to consolidate the

4 litigation, it did not address any substantive issue regarding the processing of the

5 ACLU affiliates’ FOIA requests. Moreover, counsel for the ACLU affiliates

6 represented before the Panel that formal coordination through the MDL process was

7 unnecessary, because the ACLU affiliates would informally coordinate. See, e.g.,

8 Mem. of Pls.’ in Opp’n to Defs.’ Mot. to Transfer at 17-18, In re ACLU FOIA

9 Requests Regarding Executive Order 13769, MDL No. 2786 (J.P.M.L. May 30,

10 2017) (ECF No. 47). Plaintiff now relies on the MDL ruling to refuse coordination.

11 Furthermore, Plaintiff fails to recognize that CBP’s FOIA processing is a zero-sum

12 endeavor. To the extent one ACLU affiliate is given priority, the next ACLU affiliate

13 will fall further down the queue. With 18 such requests, one affiliate will be first,

14 and another, by necessity, will be 18th. The more efficient method of processing, as

15 we have described, is to process the requests together—a consolidating of like

16 requests expressly authorized by statute. See 5 U.S.C. § 552(a)(6)(B)(iv); 6 C.F.R. §

17 5.5(d).

18

CBP’s Fourth Interim Release. On October 27, 2017, CBP made a fourth

19 interim release of records to Plaintiff and the other ACLU affiliates. The release

20 totaled 269 pages—19 of which were withheld—of field office records. The release

21 contained seven pages of records responsive to the San Diego Field Office. As

22 Defendants have explained above, CBP believes that the most efficient and

23 expeditious manner in which to process the ACLU affiliate requests and release the

24 records requested by all ACLU affiliates is to process the records without field

25 office-specific processing thresholds. As a result, the processing of records for a

26 particular field office will vary from month to month.

27

Plaintiff’s Request for a Vaughn index. Plaintiff’s demand for a “Vaughn

28 index,” see Vaughn v. Rosen, 428 F.2d 820 (D.C. Cir. 1973), within 60 days is

11
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1 unwarranted and premature. Plaintiff has not established that it has any right to a

2 Vaughn index, let alone one within 60 days. A Vaughn index often includes a list of

3 “each document withheld, the statutory exemption[s] claimed, and a particularized

4 explanation of how disclosure of the particular document[s] would damage the

5 interest[s] protected by the claimed exemption[s].” Wiener v. FBI, 943 F.2d 972, 977

6 (9th Cir. 1991). However, “there is no statutory requirement for a Vaughn index,”

7 Fiduccia v. DOJ, 185 F.3d 1035, 1045 (9th Cir. 1999), and the Ninth Circuit has

8 recognized that “Vaughn indices . . . are not appropriate in all FOIA cases.” Minier

9 v. CIA, 88 F.3d 796, 804 (9th Cir. 1996).

10

It is the agency’s burden under the FOIA to sustain its claimed withholdings,

11 and as such, the agency is best positioned to assess in the first instance what

12 information it must provide, and in what form, to carry its burden, or to conclude (if

13 applicable) that preparing a Vaughn index would be unnecessary or overly

14 burdensome. If after review of the agency’s submission, the Court concludes that

15 more is needed to sustain the agency’s withholdings, the Court may require the

16 agency to provide more information at that time. That still may not warrant a

17 document-by-document index of the sort Plaintiff appears to demand. See, e.g.,

18 Fiduccia, 185 F.3d at 1044 (“Any form . . . may be adequate or inadequate,

19 depending on the circumstances.”); Minier, 88 F.3d at 804 (Vaughn index not

20 required where “affidavit submitted by an agency is sufficient to establish”

21 withholdings); Lewis v. IRS, 823 F.2d 375, 380 (9th Cir. 1987) (Vaughn index not

22 required where claimed exemption is “dependent on the category of the requested

23 records rather than the individual subject matters contained within each document”);

24 see also Bonner v. DOS, 928 F.2d 1148, 1151 (D.C. Cir. 1991) (Ginsburg, J.)

25 (“Representative sampling is an appropriate procedure to test an agency’s FOIA

26 exemption claims when a large number of documents are involved.”).

27

Furthermore, any request for a Vaughn index is certainly premature at this

28 stage. “[T]he purpose of a Vaughn index is to aid a district court in its ruling on

12
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Case 3:17-cv-00733-L-JLB Document 51 Filed 11/03/17 PageID.632 Page 13 of 15

1 claimed exemptions to FOIA,” Lewis v. IRS, 823 F.2d 375, 380 (9th Cir. 1987), and

2 courts ordinarily consider the validity of claimed exemptions at summary judgment,

3 see, e.g., Lane v. Dep’t of Interior, 523 F.3d 1128, 1134-35 (9th Cir. 2008).

4 “Generally, agencies should be given the opportunity to file dispositive motions and

5 produce affidavits regarding claimed exemptions before they are ordered to produce

6 Vaughn indices.” Ioane v. Comm’r of Internal Revenue, No. 3:09-CV-00243-RCJ-

7 (RAM), 2010 WL 2600689, at * (D. Nev. Mar. 11, 2010); see also Miscavige v. IRS,

8 2 F.3d 366, 369 (11th Cir. 1993) (“The plaintiff’s early attempt in litigation of this

9 kind to obtain a Vaughn index . . . is inappropriate until the government has first had

10 a chance to provide the court with the information necessary to make a decision on

11 the applicable exemptions.”); Stimac v. DOJ, 620 F. Supp. 212, 213 (D.D.C. 1985)

12 (“[T]he preparation of a Vaughn index would be premature before the filing of

13 dispositive motions.”). Indeed, Plaintiff indicates that the approximately 3,555

14 records they want processed within 60 days is “only a start” to the searching. While

15 Defendants do not take a position on that at this time, CBP has also explained that it

16 intends to consider at a later point whether additional searching would be reasonable.

17 Plaintiff’s demand for a Vaughn index prior to the completion of the processing of

18 Plaintiff’s request is thus, meritless.

19

In addition, Defendants expect to meet and confer with Plaintiff prior to the

20 filing of dispositive motions in an effort to narrow the issues of dispute regarding

21 claimed exemptions. Plaintiff’s demand that the agency prepare a Vaughn index

22 justifying each withholding the agency has made while simultaneously processing

23 3,555 records would impose a substantial unnecessary burden on the agency, given

24 the likelihood that the parties may agree that only a subset of the agency’s

25 withholdings are in dispute.

26

Finally, Defendants object to any demand that it file a Vaughn index prior to

27 the completion of the processing of, at the very least, all the records identified by the

28 core list of search terms across all the ACLU affiliates’ requests. Preparing an index

13
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Case 3:17-cv-00733-L-JLB Document 51 Filed 11/03/17 PageID.633 Page 14 of 15

1 of information withheld from disclosure is burdensome on agencies even in run-of-

2 the-mill FOIA cases. Ordering the agency to do so while it continues to process the

3 other ACLU affiliate field office requests would require the agency to divert

4 resources away from the processing and release of responsive, non-exempt records

5 for requests that are obviously just as important as Plaintiff’s. Such a diversion of

6 resources necessarily will delay the agency’s release of responsive, non-exempt

7 records, and does not reflect an equitable use of the agency’s finite resources.

8

9

10 DATED: November 3, 2017 11 12 13 14 15 16 17

DAVIS WRIGHT TREMAINE LLP THOMAS R. BURKE DAN LAIDMAN
ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES MITRA EBADOLAHI
By: /s/ Thomas R. Burke Thomas R. Burke
Attorneys for Plaintiff AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO AND IMPERIAL COUNTIES

18 DATED: November 3, 2017 19 20 21 22 23

UNITED STATES DEPARTMENT OF JUSTICE MATTHEW J. BERNS CHETAN A. PATIL
By: /s/ Chetan A. Patil Chetan A. Patil
Attorneys for Defendants U.S. DEPARTMENT OF HOMELAND SECURITY AND U.S. CUSTOMS AND BORDER PROTECTION

24

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1

SIGNATURE CERTIFICATION

2 Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative
3

4 Policies and Procedures Manual, I hereby certify that the content of this document is

5 acceptable to Chetan A. Patil, counsel for defendants U.S. Department of Homeland
6 Security and U.S. Customs and Border Protection, and that I have obtained Mr.
7
8 Patil’s authorization to affix his electronic signature to this document.

9

/s/ Thomas R. Burke

10

THOMAS R. BURKE

11

12

13

14

15

16

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15
JOINT STATUS REPORT
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 Create an Alert for This Case on RECAP

CLOSED,.,ENE,MDL

U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:17-cv-00733-L-JLB

American Civil Liberties Union of San Diego and Imperial Counties v. U.S. Department of Homeland Security et al Assigned to: Judge M. James Lorenz Referred to: Magistrate Judge Jill L. Burkhardt Cause: 05:0552fi Freedom of Information Act

Date Filed: 04/12/2017 Date Terminated: 10/18/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff
American Civil Liberties Union of San Diego and Imperial Counties

represented by Thomas Rohlfs Burke Davis Wright Tremaine LLP 505 Montgomery Street Suite 800 San Francisco, CA 94111 415-276-6500 Fax: 415-276-6599 Email: thomasburke@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Aaron Laidman Davis Wright and Tremaine 865 South Figueroa Street Suite 2400 Los Angeles, CA 90017-2566 213-633-6800 Fax: 213-633-6899 Email: danlaidman@dwt.com ATTORNEY TO BE NOTICED

Mitra Ebadolahi ACLU Foundation of San Diego PO Box 87131 San Diego, CA 92138 (619) 232-2121 Fax: (619) 232-0036

V. Defendant U.S. Department of Homeland Security
Defendant U.S. Customs and Border Protection

Email: mebadolahi@aclusandiego.org ATTORNEY TO BE NOTICED
represented by U S Attorney CV U S Attorneys Office Southern District of California Civil Division 880 Front Street Suite 6253 San Diego, CA 92101 (619)557-5662 Fax: (619)557-7122 Email: Efile.dkt.civ@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chetan A Patil U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box No. 883 Ben Franklin Station Washington, DC 20044 202-305-4968 Fax: 202-616-8470 Email: chetan.patil@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Joseph Berns United States Department of Justice Civil Rights Division Post Office 65998 Washington, DC 20035-5998 202-514-4736 Email: matthew.j.berns@usdoj.gov ATTORNEY TO BE NOTICED
represented by U S Attorney CV (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chetan A Patil (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Joseph Berns (See above for address) ATTORNEY TO BE NOTICED

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

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0974-9979023.), filed by American Civil Liberties Union of San Diego and Imperial Counties. (Attachments: # 1 Civil Cover Sheet)
The new case number is 3:17-cv-733-L-JLB. Judge M. James Lorenz and Magistrate Judge Jill L. Burkhardt are assigned to the case. (Burke, Thomas)(mpl) (jao). (Entered: 04/12/2017)
2 NOTICE OF RELATED CASE(S) by American Civil Liberties Union of San Diego and Imperial Counties re 1 Complaint,. (mpl) (jao). (Entered: 04/12/2017)
3 NOTICE of Party With Financial Interest by American Civil Liberties Union of San Diego and Imperial Counties re 1 Complaint, (mpl) (jao). (Entered: 04/12/2017)
4 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (mpl) (jao). (Entered: 04/12/2017)
5 NOTICE of Appearance by Daniel Aaron Laidman on behalf of American Civil Liberties Union of San Diego and Imperial Counties (Laidman, Daniel)Attorney Daniel Aaron Laidman added to party American Civil Liberties Union of San Diego and Imperial Counties(pty:pla) (fth). (Entered: 04/12/2017)
6 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Accepting re 5 Notice of Appearance from Plaintiff American Civil Liberties Union of San Diego and Imperial Counties. Non-compliance with local rule(s), Civ. L. Rule 5.1: Improper Format.

IT IS HEREBY ORDERED: The document is accepted despite the discrepancy noted above. Any further non-compliant documents may be stricken from the record. Signed by Judge M. James Lorenz on 4/13/2017.(sjt) (Entered: 04/13/2017)

04/19/2017

7 NOTICE of Appearance of Mitra Ebadolahi by Mitra Ebadolahi on behalf of American Civil Liberties Union of San Diego and Imperial Counties (Attachments: # 1 Proof of Service)(Ebadolahi, Mitra)Attorney Mitra Ebadolahi added to party American Civil Liberties Union of San Diego and Imperial Counties(pty:pla) (fth). (Entered: 04/19/2017)

05/08/2017

8 NOTICE of Appearance by Chetan A Patil on behalf of U.S. Customs and Border Protection, U.S. Department of Homeland Security (Patil, Chetan)Attorney Chetan A Patil added to party U.S. Customs and Border Protection(pty:dft), Attorney Chetan A Patil added to party U.S. Department of Homeland Security(pty:dft) (QC mailer sent re: proof of service not field as separate attachment) (sjt). (Entered: 05/08/2017)

05/08/2017

9 NOTICE of Appearance by Matthew Joseph Berns on behalf of U.S. Customs and Border Protection, U.S. Department of Homeland Security (Berns, Matthew)Attorney Matthew Joseph Berns added to party U.S. Customs and Border Protection(pty:dft), Attorney Matthew Joseph Berns added to party U.S. Department of Homeland Security(pty:dft) (QC mailer sent re: proof of service not field as separate attachment) (sjt). (Entered: 05/08/2017)

05/08/2017

10 NOTICE of Motion filed with the JPMDL to Transfer Action Pursuant to 28 U.S.C. 1407 by U.S. Customs and Border Protection, U.S. Department of Homeland Security (Attachments: # 1 Exhibits 1-3)(Patil, Chetan) (sjt). (Entered: 05/08/2017)

05/10/2017

11 Ex Parte MOTION for Extension of Time to File Answer or otherwise respond to Complaint by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Patil, Chetan)(QC mailer sent re: proof of service not filed as separate attachment) (sjt). (Entered: 05/10/2017)

05/11/2017

12 MOTION to Stay Proceedings pending a decision by the Judicial Panel on Multidistrict Litigation on Defendants' Motion to Transfer by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Memo of Points and Authorities)(Patil, Chetan) (sjt). (Entered: 05/11/2017)

05/12/2017

13 ORDER denying without Prejudice 11 Ex Parte Motion for Extension of Time to Answer. Signed by Judge M. James Lorenz on 5/11/2017. (sjt) (Entered: 05/12/2017)

05/12/2017

14 Ex Parte MOTION for Extension of Time to File Answer or otherwise respond to the Complaint by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Declaration of Chetan A. Patil)(Patil, Chetan) (QC mailer sent re: proof of service not filed as separate attachment) (sjt). (Entered: 05/12/2017)

05/15/2017

15 ORDER granting 14 Motion for Extension of Time to Answer. No later than July 2, 2017, Defendants shall serve and file their response to the complaint, if any. Signed by Judge M. James Lorenz on 5/15/2017. (sjt) (Entered: 05/15/2017)

05/16/2017

16 NOTICE of MDL Filing: Defendants' Motion for Transfer of Actions Pursuant to 28 U.S.C. 1407 for Coordinated or Consolidated Pretrial Proceedings by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (jjg) (Entered: 05/19/2017)

05/31/2017

17 NOTICE of Filing with MDL Panel, Opposition to Defendants' Motion to Transfer to the District of Columbia for Consolidation by American Civil Liberties Union of San Diego and Imperial Counties (Attachments: # 1 Exhibit Memorandum of Plaintiffs, 42 American Civil Liberties Union Affiliates, In Opposition To Defendants' Motion for Transfer to the District of Columbia for Consolidation)(Burke, Thomas) Modified on 6/1/2017 (sjt). (Entered: 05/31/2017)

06/01/2017 18 NOTICE of MDL Filing: Notice of Appearance (jjg) (Entered: 06/02/2017)

06/06/2017

19 NOTICE NOTICE of Filing with MDL Panel of Reply Brief by U.S. Customs and Border Protection, U.S. Department of Homeland Security (Attachments: # 1 Exhibit 1 - JPML Reply Brief)(Patil, Chetan) Modified on 6/7/2017 (sjt). (Entered: 06/06/2017)

06/07/2017 20 NOTICE of MDL Filing: Amended Notice of Appearance (jjg) (Entered: 06/07/2017)

06/12/2017

21 RESPONSE in Opposition re 12 MOTION to Stay Proceedings pending a decision by the Judicial Panel on Multidistrict Litigation on Defendants' Motion to Transfer Opposition to Defendants' Motion to Stay Proceedings filed by American Civil Liberties Union of San Diego and Imperial Counties. (Charney, Brendan) (QC mailer sent re: proof of service not filed as separate attachment) (sjt). (Entered: 06/12/2017)

06/19/2017

22 REPLY to Response to Motion re 12 MOTION to Stay Proceedings pending a decision by the Judicial Panel on Multidistrict Litigation on Defendants' Motion to Transfer filed by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Proof of Service)(Patil, Chetan) (sjt). (Entered: 06/19/2017)

06/21/2017

23 SUPPLEMENTAL DOCUMENT by American Civil Liberties Union of San Diego and Imperial Counties re 21 Response in Opposition to Motion, to Stay Proceedings. (Attachments: # 1 Exhibit A, # 2 Proof of Service)(Laidman, Daniel) (sjt). (Entered: 06/21/2017)

06/22/2017

24 NOTICE of Supplemental Authority by U.S. Customs and Border Protection, U.S. Department of Homeland Security re 12 MOTION to Stay Proceedings pending a decision by the Judicial Panel on Multidistrict Litigation on Defendants' Motion to Transfer (Attachments: # 1 Exhibit 1 - Central District of California Order, # 2 Proof of Service)(Patil, Chetan) (sjt). (Entered: 06/22/2017)

06/22/2017

25 SUPPLEMENTAL DOCUMENT by American Civil Liberties Union of San Diego and Imperial Counties re 21 Response in Opposition to Motion, To Stay. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proof of Service)(Laidman, Daniel)(sjt). (Entered: 06/22/2017)

06/22/2017

26 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Accepting re 23 Supplemental Document, from Plaintiff American Civil Liberties Union of San Diego and Imperial Counties. Non-compliance with local rule(s), ECF § 2(g)(2) - Documents in Support not filed as attachments. IT IS HEREBY ORDERED: The document is accepted despite the discrepancy noted above. Any further non-compliant documents may be stricken from the record. Signed by Judge M. James Lorenz on 6/22/2017.(sjt) (Entered: 06/22/2017)

06/23/2017

27 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Accepting re 24 Notice (Other),, from Defendants U.S. Customs and Border Protection, U.S. Department of Homeland Security. Non-compliance with local rule(s), ECF § 2(g)(2) Document in support not filed as attachment. IT IS HEREBY ORDERED: The document is accepted despite the discrepancy noted above. Any further noncompliant documents may be stricken from the record. Signed by Judge M. James Lorenz on 6/23/2017.(sjt) (Entered: 06/23/2017)

06/23/2017

28 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Accepting re 25 Supplemental Document, from Plaintiff American Civil Liberties Union of San Diego and Imperial Counties. Non-compliance with local rule(s), ECF § 2(g)(2) Document in support not filed as attachment. IT IS HEREBY ORDERED: The document is accepted despite the discrepancy noted above. Any further noncompliant documents may be stricken from the record. Signed by Judge M. James Lorenz on 6/23/2017.(sjt) (Entered: 06/23/2017)

06/27/2017 29 NOTICE of Supplemental Authority by U.S. Customs and Border Protection, U.S. Department of Homeland Security (Attachments:

# 1 Exhibit 1 - Eastern District of Virginia Order, # 2 Proof of Service)(Patil, Chetan) (lrf). (Entered: 06/27/2017)

06/28/2017

30 NOTICE of Supplemental Authority by U.S. Customs and Border Protection, U.S. Department of Homeland Security (Attachments: # 1 Exhibit 1 - Northern District of Illinois Order, # 2 Proof of Service)(Patil, Chetan) (lrf). (Entered: 06/28/2017)

06/29/2017

31 NOTICE of Supplemental Authority by U.S. Customs and Border Protection, U.S. Department of Homeland Security (Attachments: # 1 Exhibit 1 - Southern District of Florida Order, # 2 Proof of Service)(Patil, Chetan) (lrf). (Entered: 06/29/2017)

06/30/2017

32 ANSWER to 1 Complaint, by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Proof of Service)(Patil, Chetan) (acc). (Entered: 06/30/2017)

07/03/2017

33 NOTICE of Supplemental Authority by U.S. Customs and Border Protection, U.S. Department of Homeland Security (Attachments: # 1 Exhibit 1 - Northern District of Georgia Order, # 2 Proof of Service)(Patil, Chetan) (sjt). (Entered: 07/03/2017)

07/06/2017

34 SUMMONS Returned Executed by American Civil Liberties Union of San Diego and Imperial Counties. All Defendants served. (Laidman, Daniel) (sjt). (Entered: 07/06/2017)

07/06/2017

35 NOTICE of MDL Filing: Plaintiff's Brief In Opposition to Defendant's Motion to Stay Proceedings in the United States District Court for the Eastern District of Michigan (jjg) (Entered: 07/06/2017)

07/31/2017 37 NOTICE of MDL Filing: Letter re Requests Regarding Executive Order 13769 (jjg) (Entered: 08/02/2017)

08/01/2017 36 NOTICE of MDL Filing: Amended Notice of Presentation or Waiver of Oral Argument (jjg) (Entered: 08/02/2017)

08/03/2017 38 ORDER denying 12 Defendant's Motion to Stay. Signed by Judge M. James Lorenz on 8/3/2017. (sjt) (Entered: 08/03/2017)

08/10/2017

39 ORDER Setting Briefing Schedule : The Administrative Record shall be filed with the Court by August 30, 2017. Plaintiff shall file and serve his motion for summary judgment on or before September 8, 2017. On or before September 22, 2017, Defendants shall file and serve a consolidated memorandum of points and authorities consisting of their opposition and cross-motion for summary judgment, if any. On or before September 29, 2017, Plaintiff shall file and serve its consolidated memorandum of points and authorities consisting of its opposition to

Defendants' cross-motion and reply to their opposition, if any. On or before October 6, 2017, Defendants shall file any reply to Plaintiffs opposition. Upon filing the foregoing, the matter will be deemed submitted on the briefs. There will be no oral argument unless requested by the Court. Signed by Judge M. James Lorenz on 8/10/2017.(sjt) (Entered: 08/10/2017)

08/15/2017 40 NOTICE of MDL Filing: Order Denying Transfer (jjg) (Entered: 08/15/2017)

08/22/2017

41 Joint MOTION to Modify Schedule re 39 Order Setting Briefing Schedule,,, by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Proof of Service)(Berns, Matthew) (sjt). (Entered: 08/22/2017)

08/24/2017

42 ORDER granting in part and denying in part 41 Joint Motion to Modify Schedule. The August 10, 2017, Order Setting Briefing Schedule 39 is vacated. The parties shall forthwith contact the chambers of Magistrate Judge Jill L. Burkhardt to set a Neutral Evaluation Conference. The request for extension of time, implied in the Joint Motion to Modify Schedule, is denied for failure to show good cause. Any further requests for extension of time must be supported by a showing of good cause pursuant to Federal Rule of Civil Procedure 6(b)(1)(A) or (B), as appropriate depending on the timing of the request. Signed by Judge M. James Lorenz on 8/24/2017. (sjt) (jao). (Entered: 08/24/2017)

09/01/2017

43 NOTICE AND ORDER for Early Neutral Evaluation Conference Early Neutral Evaluation set for 9/27/2017 09:00 AM before Magistrate Judge Jill L. Burkhardt. Case Management Conference set for 9/27/2017 09:00 AM before Magistrate Judge Jill L. Burkhardt. Joint Discovery Plan due 9/13/2017. Signed by Magistrate Judge Jill L. Burkhardt on 9/1/2017.(sjt) (Entered: 09/01/2017)

09/06/2017

44 Joint MOTION Modify Order Setting Early Neutral Evaluation Conference and Case Management Conference re 43 Notice and Order for Early Neutral Evaluation conference, by American Civil Liberties Union of San Diego and Imperial Counties. (Attachments: # 1 Declaration Declaration of Thomas R. Burke In Support of Joint Motion, # 2 Declaration Declaration of Dan Laidman In Support of Joint Motion, # 3 Proof of Service Certificate of Service)(Burke, Thomas) (sjt). (Entered: 09/06/2017)

09/11/2017

45 MINUTE ORDER by Magistrate Judge Jill L. Burkhardt granting ECF No. 44 Joint Motion to Modify Order Setting Early Neutral Evaluation Conference and Case Management Conference: For sufficient cause shown, the Joint Motion to Modify is GRANTED (ECF No. 44 ). The date for the Early Neutral Evaluation and Case Management

Conferences is RESET for 10/17/2017 at 01:45 PM in the Chambers of Magistrate Judge Jill L. Burkhardt, Edward J. Schwartz U.S. Courthouse, 221 West Broadway, Suite 5140, San Diego, California 92101. This order does not otherwise alter the mandatory directions and other dates and deadlines set forth in the Court's 9/1/2017 Order (ECF No. 43 ). (no document attached) (smm) (Entered: 09/11/2017)

09/13/2017

46 JOINT DISCOVERY PLAN by American Civil Liberties Union of San Diego and Imperial Counties and Defendants U.S. Department of Homeland Security and U.S. Customs and Border Protection (Attachments: # 1 Proof of Service)(Burke, Thomas) (sjt). (Entered: 09/13/2017)

09/28/2017

47 MINUTE ORDER by Magistrate Judge Jill L. Burkhardt re ECF No. 46 , Joint Discovery Plan: At the parties' request, the Court grants the parties leave to file a Joint Status Report. The Joint Status report shall be filed on or before October 13, 2017. (no document attached) (smm) (Entered: 09/28/2017)

10/13/2017

48 STATUS REPORT (Joint) by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Proof of Service)(Patil, Chetan) (sjt). (Entered: 10/13/2017)

10/17/2017

49 Minute Order for proceedings held before Magistrate Judge Jill L. Burkhardt: An Early Neutral Evaluation Conference was held on 10/17/2017. A continued Early Neutral Evaluation Conference is SET for Monday, 11/6/2017, at 10:30 AM in the Chambers of Magistrate Judge Jill L. Burkhardt, Edward J. Schwartz U.S. Courthouse, 221 West Broadway, Suite 5140, San Diego, California 92101. In the event the case does not settle at the ENE Conference, a Case Management Conference is SET for 11/6/2017, and will be held at the conclusion of the ENE Conference. Only 1 litigation attorney for Plaintiff (Thomas R. Burke or Dan Laidman) need attend the Conferences. The mandatory directions for the Conferences set forth in the Court's 9/1/2017 Order shall otherwise apply (ECF No. 43 ). (Plaintiff Attorney Thomas R. Burke; Dan Laidman).(Defendant Attorney Chetan A. Patil). (no document attached) (smm) (Entered: 10/17/2017)

10/17/2017

50 MINUTE ORDER by Magistrate Judge Jill L. Burkhardt: The parties shall file an updated Joint Status Report on or before 11/3/2017. (no document attached) (smm) (Entered: 10/17/2017)

11/03/2017

51 STATUS REPORT Joint Status Report by American Civil Liberties Union of San Diego and Imperial Counties. (Attachments: # 1 Proof of Service)(Burke, Thomas)(mxn). (Entered: 11/03/2017)

11/06/2017

52 Minute Entry for proceedings held before Magistrate Judge Jill L. Burkhardt: An Early Neutral Evaluation Conference was held on 11/6/2017. The case did not settle. A Case Management Conference was held on 11/6/2017. Scheduling order to follow. (Plaintiff Attorney Dan Laidman). (Defendant Attorney Chetan A. Patil). (no document attached) (smm) (Entered: 11/06/2017)

11/06/2017

53 SCHEDULING ORDER. A Case Management Conference was held on 11/6/2017. By 4/30/2018, the parties shall file a Supplemental Joint Discovery Plan. A second Case Management Conference is set for 5/7/2018 at 11:00 AM before Magistrate Judge Jill L. Burkhardt. The CMC shall be a telephonic, counsel-only Conference. Signed by Magistrate Judge Jill L. Burkhardt on 11/6/2017.(mxn) (Entered: 11/06/2017)

04/30/2018

54 JOINT DISCOVERY PLAN by American Civil Liberties Union of San Diego and Imperial Counties re 46 Joint Discovery Plan, 48 Status Report, 51 Status Report Supplemental Joint Discovery Plan (Attachments: # 1 Proof of Service Certificate of Service)(Laidman, Daniel) (sjt). (Entered: 04/30/2018)

05/04/2018

55 Minute Order by Magistrate Judge Jill L. Burkhardt re ECF No. 53 : At the request of the parties (ECF No. 54 ), the second CMC is RESET from 5/7/2018 to Friday, 6/22/2018, at 09:00 AM before Magistrate Judge Jill L. Burkhardt. The CMC shall be a telephonic, counsel-only Conference. Plaintiff's principal attorney responsible for the litigation is responsible for placing one joint call with all participating counsel already on the line into Judge Burkhardt's Chambers at (619) 557-6624. IT IS FURTHER ORDERED THAT by Friday, 6/15/2018, the parties shall file a Second Supplemental Joint Discovery Plan that provides both a status update and a proposed deadline for the parties to file crossmotions for summary judgment. (no document attached) (smm) (Entered: 05/04/2018)

06/15/2018

56 JOINT DISCOVERY PLAN by American Civil Liberties Union of San Diego and Imperial Counties re 46 Joint Discovery Plan, 48 Status Report, 51 Status Report, 54 Joint Discovery Plan, Second Supplemental Joint Discovery Plan (Attachments: # 1 Proof of Service)(Burke, Thomas) (sjt). (Entered: 06/15/2018)

06/20/2018

57 MINUTE ORDER by Magistrate Judge Jill L. Burkhardt re ECF No. 56 Joint Discovery Plan: Having reviewed the parties' Second Supplemental Joint Discovery Plan, the 6/22/2018 Case Management Conference is VACATED. Scheduling order to follow. (no document attached) (smm) (Entered: 06/20/2018)

06/21/2018

58 Order Setting Briefing Schedule on Cross-Motions for Summary Judgment: Defendants Motion for Summary Judgment must be filed no later than October 30, 2018. Plaintiffs Opposition and/or Cross-Motion for Summary Judgment must be filed no later than November 30, 2018. Defendants Reply in support of their Motion for Summary Judgment and/or Opposition to Plaintiffs Cross-Motion for Summary Judgment must be filed no later than December 21, 2018. Plaintiffs Reply in support of their Cross-Motion for Summary Judgment must be filed no later than January 11, 2019. Signed by Magistrate Judge Jill L. Burkhardt on 6/21/2018.(sjt) (Entered: 06/21/2018)

10/15/2018

59 NOTICE of Settlement by American Civil Liberties Union of San Diego and Imperial Counties (Attachments: # 1 Proof of Service Certificate of Service)(Burke, Thomas) (anh). (Entered: 10/15/2018)

10/16/2018 60 NOTICE of Change of Address by Chetan A Patil (Attachments: # 1 Proof of Service)(Patil, Chetan) (anh). (Entered: 10/16/2018)

10/17/2018

61 Joint MOTION to Dismiss and to Extend Plaintiff's Deadline to Move to Recover Fees and Costs by American Civil Liberties Union of San Diego and Imperial Counties. (Attachments: # 1 Proof of Service Certificate of Service)(Burke, Thomas)(sjt). (Entered: 10/17/2018)

10/18/2018

62 ORDER Granting Joint Motion to Dismiss and Extend Deadline for Attorneys' Fees and Costs [ECF No. 61 ]. The Court hereby dismisses his matter with prejudice upon the parties' request. In light of the parties' representation that they will meet and confer in hopes of resolving the attorneys' fees and costs issuewithout motion practice, the Court finds good cause has been shown to extend the deadline to file a motion for attorneys' fees and cost to no later than 60 days after the filing of this order. Signed by Judge M. James Lorenz on 10/18/2018.(lrf) (jao). (Entered: 10/18/2018)

12/04/2018

63 Joint MOTION for Extension of Time to File Motion to Recover Attorneys' Fees by American Civil Liberties Union of San Diego and Imperial Counties. (Attachments: # 1 Proof of Service)(Laidman, Daniel) (sjt). (Entered: 12/04/2018)

12/05/2018

64 ORDER Granting Joint Motion. For good cause shown pursuant to Federal Rule of Civil Procedure 6(b), the Joint Motion to Extend Plaintiff's Deadline to Move to Recover Fees and Costs is granted. No later than 3/7/2019, Plaintiff shall file and serve its motion, if any, to recover attorneys' fees and costs pursuant to 5 U.S.C. §552(a)(4)(E). Signed by Judge M. James Lorenz on 12/5/2018. (lrf) (Entered: 12/05/2018)

02/14/2019

65 Joint MOTION for Extension of Time to File Plaintiff's motion for attorney's fees by U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Proof of Service)(Patil, Chetan) (sjt). (Entered: 02/14/2019)

02/15/2019

66 ORDER Granting Joint Motion. For good cause shown pursuant to Federal Rule of Civil Procedure 6(b), the second Joint Motion to Extend Plaintiff's Deadline to Move to Recover Fees and Costs is granted. No later than 5/6/2019, Plaintiff shall file and serve its motion, if any, to recover attorneys' fees and costs pursuant to 5 U.S.C. §552(a)(4)(E). Signed by Judge M. James Lorenz on 2/15/2019. (lrf) Modified date on 2/19/2019 (lrf). (Entered: 02/19/2019)

05/01/2019

67 Joint MOTION for Extension of Time to File Motion to Recover Attorneys' Fees and Costs by American Civil Liberties Union of San Diego and Imperial Counties. (Attachments: # 1 Proof of Service)(Laidman, Daniel) (tcf). (Entered: 05/01/2019)

05/02/2019

68 ORDER Granting Joint Motion [ECF No. 67 ]. The third Joint Motion to Extend Plaintiff's Deadline to Move to Recover Fees and Costs is granted. No later than 8/14/2019, Plaintiff shall file and serve its motion, if any, to recover attorneys' fees and costs pursuant to 5 U.S.C. §552(a)(4)(E). Signed by Judge M. James Lorenz on 5/2/2019. (lrf) (Entered: 05/02/2019)

07/11/2019

69 NOTICE of Settlement by American Civil Liberties Union of San Diego and Imperial Counties (Attachments: # 1 Certificate of Service)(Burke, Thomas)(sjt). (Entered: 07/11/2019)

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