American Civil Liberties Union of Arizona v. United States Department of Homeland Security et al

Filing 32

ORDER DENYING TRANSFER re: pldg. (25 in AZ/2:17-cv-01083, 29 in CAC/2:17-cv-02778, 33 in CAN/4:17-cv-01970, 28 in CAS/3:17-cv-00733, 29 in FLS/1:17-cv-21382, 31 in GAN/1:17-cv-01309, 30 in ILN/1:17-cv-02768, 81 in MDL No. 2786, 30 in ME/2:17-cv-00132, 32 in MIE/5:17-cv-11149, 30 in OR/3:17-cv-00575, 30 in TXS/4:17-cv-01128, 25 in VAE/1:17-cv-00441, 30 in WAW/2:17-cv-00562), ( 1 in MDL No. 2786) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 8/2/2017. Associated Cases: MDL No. 2786, AZ/2:17-cv-01083, CAC/2:17-cv-02778, CAN/4:17-cv-01970, CAS/3:17-cv-00733, FLS/1:17-cv-21382, GAN/1:17-cv-01309, ILN/1:17-cv-02768, ME/2:17-cv-00132, MIE/5:17-cv-11149, OR/3:17-cv-00575, TXS/4:17-cv-01128, VAE/1:17-cv-00441, WAW/2:17-cv-00562 (CMD)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

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

MDL No. 2786

ORDER DENYING TRANSFER

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

*

Judge Marjorie O. Rendell took no part in the decision of this matter.

1

CBP is a component of DHS.

-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.

-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

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

- 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