The firm has been litigating on behalf of various American Civil Liberties Union (ACLU) chapters, seeking detailed information from the federal government about how the executive order mentioned above was implemented at the local level. In the hours and days after the executive order was announced, a crisis ensued and contradictory statements were issued by U.S. Customs and Border Protection and the Department of Homeland Security, “fueling mass confusion,” according to the ACLU. (View a timeline of the travel ban compiled by the ACLU NorCal.)
To clarify the public’s understanding of these urgent developments, 50 ACLU affiliates filed Freedom of Information Act (FOIA) requests just days after the executive order starting being enforced. Two months passed, and the federal government still had provided no responsive information. As a result, ACLU chapters across the nation filed a dozen lawsuits demanding responses to the FOIA requests. DWT handled five of the suits—in Los Angeles, Portland (Ore.), San Diego, San Francisco, and Seattle—on behalf of multiple ACLU affiliates across the Western U.S. The DWT team included Thomas R. Burke, Greg Chaimov, Brendan Charney, Derek Green, Dan Laidman, and Eric Stahl.
In an apparent attempt to slow down the litigation, the U.S. Department of Justice took an unusual procedural measure: It sought to coordinate all of the actions into a single lawsuit that would be litigated in Washington, D.C.
As Burke observed in an interview with the National Law Journal: “While the federal judiciary is working overtime to address the legality of the administration’s travel ban, U.S. Customs and Border Protection chose to invoke MDL [Multi-District Litigation] procedures and file motions to stay rather than promptly produce responsive local records about its activities at airports across the nation.” The motion was only the third time ever that the government sought to use MDL procedures to consolidate FOIA lawsuits.
Representing all of the ACLU chapters in the brief opposing what he called the government’s “misfit of a motion,” Burke wrote: “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 [executive order] at a time when they can still influence public policy.”
In August, the Judicial Panel on Multidistrict Litigation, a special body within the federal court system, ruled in our team’s favor and denied the government’s bid to centralize the FOIA lawsuits, which are proceeding locally. Rochelle Wilcox drafted the ACLU’s brief to oppose the MDL procedure.