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Case Name Brennan Center for Justice v. U.S. Department of State IM-NY-0056
Docket / Court 1:17-cv-07520-JGK ( S.D.N.Y. )
State/Territory New York
Case Type(s) Immigration and/or the Border
Special Collection Trump Administration FOIA cases
Attorney Organization Brennan Center for Justice
Muslim Advocates
Case Summary
On October 2, 2017, the Brennan Center for Justice at New York University School of Law brought this suit in the U.S. District Court for the Southern District of New York. Represented by Muslim Advocates and private counsel, the Brennan Center sued the Department of State (DOS) under the Freedom of ... read more >
On October 2, 2017, the Brennan Center for Justice at New York University School of Law brought this suit in the U.S. District Court for the Southern District of New York. Represented by Muslim Advocates and private counsel, the Brennan Center sued the Department of State (DOS) under the Freedom of Information Act (FOIA).

The Brennan Center is an organization with a mission "to advance effective national security policies that respect the rule of law and constitutional values." They sought information about President Trump's September 24, 2017 Proclamation restricting entry of persons into the United States from six Muslim-majority countries (and two non-Muslim majority countries), including those with bona-fide relationships with U.S. citizens and lawful permanent residents. (More detail is in the Hawaii litigation.)

The Proclamation stated that it had emerged from a provision of Executive Order 13780 of March 6, 2017, which directed the Secretary of the Department of Homeland Security (DHS), in consultation with the Secretary of State and the Director of National Intelligence, to "identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat." The Proclamation specified that the DHS Secretary had submitted this information to President Trump on July 9 and September 15, 2017.

The complaint arises from the Brennan Center's July 20, 2017 FOIA request to the State Department seeking copies of certain records relating to the worldwide review process mandated by Executive Order 13780 and the Trump Administration's "extreme vetting practices." In the complaint, the Brennan Center claimed that, to date, they had not received a substantive response from DOS.

In the complaint, the Brennan Center sought:
1. The report that the DHS Secretary submitted to President Trump on July 9, 2017, referred to in Section 1(c) of the Proclamation;
2. The report that the DHS Secretary submitted to President Trump on Sept. 15, 2017, referred to in Section 1(h) of the Proclamation;
3. If not included in the above items (1) and (2), the final reports that the DHS Secretary submitted to President Trump on each of the eight countries identified in Section 2 of the Proclamation, i.e., Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia; and
4. If not included in the above items (1) and (2), the final reports that the DHS Secretary submitted to President Trump on the 16 countries that the Secretary identified as "inadequate," referred to in Section 1(e) of the Proclamation, to the extent that they were not included in the list of seven countries in Section 1(h)(ii) of the Proclamation.

They sought a disclosure order under FOIA, legal fees, and expedited action, because the Proclamation contained portions that had already gone into effect immediately and others that would go into effect on October 18, 2017. They also wanted to secure the requested documents so that it and the public could become more informed about and evaluate the Proclamation for unconstitutionality.

On October 3, 2017, the case was assigned to Judge John G. Koeltl and designated to Magistrate Judge Kevin Nathaniel Fox. The case was then reassigned to Judge Paul G. Gardephe on October 17, 2017.

On December 21, 2017, both parties filed a series of motions. The Brennan Center moved to expedite the case and claimed that DOS had not properly informed them whether it would grant or deny the FOIA request. They argued that expedition was proper because of the public interest in the topic. DOS opposed the motion to expedite, arguing that it had already produced six responsive records and referred the request to DHS, which needed time to process records containing classified information. The Brennan Center replied, asking for production of the six responsive records within 21 days.

The Court held a pretrial conference on January 4, 2018 and followed with a January 10 order, compelling DOS to produce all non-exempt materials and an explanation of exemptions by February 9, 2018. Judge Gardephe wrote that the Brennan Center had shown that its FOIA request merited expedited treatment, given the strong public interest in the subject and the time that had already passed since the initial FOIA request.

On March 15, 2018 the Brennan Center moved to compel DOS's compliance with the Jan. 10 order, but the government moved to oppose. On April 16, 2018, Judge Gardephe denied the motion, finding it premature to assess DOS's index, and instead set a briefing schedule for summary judgment, to be completed by July 22, 2018.

On June 29, 2018, Judge Gardephe granted the parties' joint motion for a time extension on their cross-briefing for summary judgment. On August 2, 2018, DOS filed their summary judgment motion, arguing that the government had adequately searched responsive records and properly withheld certain records exempt from FOIA. On the same date, the Brennan Center filed their summary judgment motion and reply in opposition to the government's summary judgment motion. They argued that the government overstated the breadth of the Presidential-Communication Privilege and failed to show that its records search was adequate. In support of these requests, they submitted a memorandum of undisputed facts regarding President's Trump's history of statements against Muslims, the histories of the three travel bans, and an unclassified cable that was sent to consular posts in 191 countries detailing the implementation of the second travel ban.

Nothing further has happened since August 2018. As of November 11, 2018, Judge Gardephe has not yet ruled on the parties' summary judgment motions.

Ava Morgenstern - 04/20/2018
Veronica Portillo Heap - 11/11/2018


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Issues and Causes of Action
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Issues
Discrimination-basis
National origin discrimination
Religion discrimination
General
Record-keeping
Records Disclosure
Terrorism/Post 9-11 issues
Immigration/Border
Admission - criteria
Admission - procedure
Status/Classification
Visas - criteria
Visas - procedures
National Origin/Ethnicity
Arab/Afgani/Middle Eastern
Plaintiff Type
Non-profit NON-religious organization
Causes of Action Freedom of Information Act (FOIA), 5 U.S.C. ยง 552
Defendant(s) U.S. Department of State
Plaintiff Description A nonprofit organization with a mission to advance effective national security policies that respect the rule of law and constitutional values
Indexed Lawyer Organizations Brennan Center for Justice
Muslim Advocates
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filing Year 2017
Case Ongoing Yes
Additional Resources
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  Court Orders Government Response for Information Used to Justify Muslim Ban 3.0 by February 9
www.brennancenter.org
Date: Jan. 10, 2018
By: Brennan Center for Justice
[ Detail ] [ External Link ]

  Brennan Center v. Department of State
www.brennancenter.org
Date: Oct. 3, 2017
By: Brennan Center for Justice
[ Detail ] [ External Link ]

Docket(s)
1:17-cv-7520 (S.D.N.Y.)
IM-NY-0056-9000.pdf | Detail
Date: 04/16/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
IM-NY-0056-0001.pdf | Detail
Date: 08/21/2017
Source: PACER [Public Access to Court Electronic Records]
Memorandum of Law in Support of Plaintiff's Motion to Expedite Freedom of Information Act ("FOIA") Action [ECF# 23]
IM-NY-0056-0002.pdf | Detail
Date: 12/21/2017
Source: PACER [Public Access to Court Electronic Records]
Memorandum of Law in Opposition to Plaintiff's Motion to Expedite [ECF# 25]
IM-NY-0056-0003.pdf | Detail
Date: 12/21/2017
Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Reply Memorandum of Law in Further Support of Plaintiff's Motion to Expedite Freedom of Information Act ("FOIA") Action [ECF# 27]
IM-NY-0056-0004.pdf | Detail
Date: 12/21/2017
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion & Order [ECF# 30] (2018 WL 369783) (S.D.N.Y.)
IM-NY-0056-0005.pdf | WESTLAW | Detail
Date: 01/10/2018
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 37] (S.D.N.Y.)
IM-NY-0056-0006.pdf | Detail
Date: 04/16/2018
Source: PACER [Public Access to Court Electronic Records]
Judges Gardephe, Paul G. (S.D.N.Y.)
IM-NY-0056-0005 | IM-NY-0056-0006 | IM-NY-0056-9000
Plaintiff's Lawyers Creelan, Jeremy (New York)
IM-NY-0056-0001
Deininger, Emily S (New York)
IM-NY-0056-0001
Katskee, Richard B. (District of Columbia)
IM-NY-0056-0002 | IM-NY-0056-0004 | IM-NY-0056-9000
Lynch, Mark H. (District of Columbia)
IM-NY-0056-0002 | IM-NY-0056-0004 | IM-NY-0056-9000
Martinez Resly, Jaclyn E. (District of Columbia)
IM-NY-0056-0002 | IM-NY-0056-0004 | IM-NY-0056-9000
Nellis, Andrew L. (District of Columbia)
IM-NY-0056-0002 | IM-NY-0056-0004 | IM-NY-0056-9000
Roman, Neil Kenneth (New York)
IM-NY-0056-0002 | IM-NY-0056-0004 | IM-NY-0056-9000
Rothschild, Eric J. (Pennsylvania)
IM-NY-0056-0002 | IM-NY-0056-0004 | IM-NY-0056-9000
Schwartztol, Laurence Michael (New York)
IM-NY-0056-0001
Shebaya, Sirine (District of Columbia)
IM-NY-0056-0002 | IM-NY-0056-0004 | IM-NY-0056-9000
Smith, Johnathan James (District of Columbia)
IM-NY-0056-0002 | IM-NY-0056-0004 | IM-NY-0056-9000
Spiegel, Justin O (New York)
IM-NY-0056-0001
Stegelmeier, Derek (New York)
IM-NY-0056-0001
Sussman, David W (New York)
IM-NY-0056-0001
Wedoff, Carl N (New York)
IM-NY-0056-0001
Weiser, Wendy R. (New York)
IM-NY-0056-0001
Defendant's Lawyers Connolly, Christopher Kendrick (New York)
IM-NY-0056-9000
Kim, Joon H. (New York)
IM-NY-0056-0003

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