2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 1 of 19 Pg ID 2002 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al., Plaintiffs, Case No. 17-10310 v. Hon. Victoria A. Roberts DONALD TRUMP, President of the United States, et al., Defendants. _____________________________________/ DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL i 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 2 of 19 Pg ID 2003 Defendants, by and through counsel, hereby submit their opposition to Plaintiffs’ Motion to Compel Production of Documents (ECF 104) pursuant to this Court’s Order dated May 31, 2017 (ECF 106). INTRODUCTION Plaintiffs are seeking to compel the government Defendants—all sued in their official capacity—to search for and produce a memorandum allegedly commissioned by the Trump Campaign in the spring and summer of 2016 (the “Giuliani Memo”). They claim that this document will reveal whether Mr. Trump, once he became Chief Executive months later, was motivated by a religious purpose when he enacted the religion-neutral Executive Order No. 13780 (the “Executive Order”) with the stated purpose of protecting national security. Yet this private campaign communication—just like all the other material sought by Plaintiffs in discovery in this case—is categorically irrelevant to the legal issues to be resolved in Plaintiffs’ lawsuit. The lawsuit is a facial constitutional challenge to an Executive Order that regulates the entry into the United States of certain foreign nationals from six countries that pose heightened terrorism-related concerns. In such a challenge, as set forth in decades of precedent, the Court may not look beyond whether the Executive Order’s stated rationale is valid and consistent with the government’s action; the law precludes searching for ulterior motives in 1 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 3 of 19 Pg ID 2004 extrinsic material. Even if Plaintiffs could demonstrate the relevance of this document, however, they cannot seek it from the President and his close advisors because they have not shown either a heightened need or an inability to obtain the information sought from other sources. They should not be permitted to seek it from the remaining Defendants because searching for the document among many agency files results in a needless burden when the document is more easily obtainable from the third-party owner(s) of the document: the Trump Campaign or the document’s author(s). PROCEDURAL BACKGROUND Plaintiffs moved to compel production of the Giuliani Memo on Friday, May 26, 2017 (ECF 104), after Defendants had timely objected to Plaintiffs’ request for the Memo on various grounds, including that Plaintiffs have not met the showing of heightened need to justify discovery from the President and his close advisors; that the Request seeks an alleged private campaign communication that is not relevant to the elements of Plaintiffs’ claims; and that the Request is unduly burdensome because the document, if it exists, is properly sought from a less burdensome source: its alleged owner, the Trump Campaign. See Defendants’ Objections and Response to Plaintiffs’ First Set of Document Requests, Request 2 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 4 of 19 Pg ID 2005 No. 1 (“Objections,” attached hereto as Exhibit 1). 1 On May 31, 2017, the Court granted Defendants leave to file this opposition to Plaintiffs’ Motion to Compel. Defendants herein address new issues or arguments raised by Plaintiffs in their Motion to Compel that were not previously addressed in Defendants’ Objections. ARGUMENT I. The Court Should Not Permit Discovery Against Governmental Defendants, and Particularly Against the President, when the Document Sought is Readily Obtainable from Third Parties. As Defendants explained in their Objections and reiterate below, internal campaign communications are irrelevant to Plaintiffs’ claims and should not be discoverable. But even if it were relevant, Plaintiffs are seeking the Giuliani Memo from the wrong parties. A. There Are Less Burdensome and More Convenient Sources from Which to Obtain the Giuliani Memo. Plaintiffs are suing the Executive Branch to enjoin executive action. The Defendants are the President in his official capacity, executive branch agencies, cabinet members, and other executive branch officers in their official capacity. Yet Plaintiffs are seeking through discovery a memorandum that was admittedly not prepared by or for the Executive Branch but instead was allegedly 1 Defendants’ Objections are also attached to Plaintiffs’ Motion to Compel (ECF 104-1). 3 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 5 of 19 Pg ID 2006 commissioned by private individuals and created by private individuals and/or a congressional representative acting in their personal capacities. See Ex. 1, Document Requests at p. 8 & n.2; Pls.’ Mem. in Support of Mot. to Compel (ECF 104) (“Mem.”) at p. 3. That is, the discovery Plaintiffs seek involves private activities conducted outside of the government’s purview several months before the Trump administration was in place. Accordingly, the relative burden in searching for this document is much greater for the government than for the Trump Campaign, which allegedly commissioned the document, or than for the third-party individual(s) alleged to be involved in the creation of this document. Further, given that there is a lower likelihood that Defendants possess a document generated by private individuals for private individuals, the relative benefit of directing such a request to the likely owner(s) is much greater than directing the request to the government. See Fed. R. Civ. P. 26(b)(1) (the proper scope of discovery takes into account the “relative access to relevant information” and whether “the burden … outweighs the likely benefit”), 26(b)(2)(C) (the Court “must limit” discovery if “the discovery sought … can be obtained from some other source that is more convenient, less burdensome, or less expensive”). Requiring a search of massive troves of government files for one private campaign document is thus unreasonable when 4 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 6 of 19 Pg ID 2007 there are more obvious third-party owners of the document at issue.2 Plaintiffs have no real answer to this point. They fail to explain why they cannot seek this discovery from third parties—parties who may have privileges concerning the document and who may need to intervene in the litigation regardless of whether or not they themselves produce the document—or, more importantly, why such third-party discovery would be more burdensome or less convenient. Plaintiffs simply argue that a party should ordinarily first obtain discovery from its party opponent before seeking discovery from third parties. See Mem. at p. 24. Yet this is not an ordinary case. Searching for private, nongovernmental documents within the Department of State, the Department of Homeland Security, the Office of the Director of National Intelligence, and the Department of Justice constitutes an unwarranted disruption of executive operations. Plaintiffs argue that they have shown that Defendants likely possess the document, but the evidence they point to is so negligible that it underscores Defendants’ position regarding the relative burdens and benefits involved. Plaintiffs misrepresent the vague news report regarding Defendant Kelly’s 2 Moreover, although Plaintiffs have isolated their request for the Giuliani Memo from their remaining Document Requests, this request cannot be separated from their topically related Document Requests Nos. 2-3 and Interrogatory No. 1, which are exceedingly more expansive and burdensome, and which seek information and documents allegedly connected to the Giuliani Memo and related campaign issues. 5 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 7 of 19 Pg ID 2008 supposed statement to Representative McCaul, which does not suggest Defendant Kelly’s possession of the Giuliani Memo. See Mot. To Compel, Raofield Decl. Ex. O (“McCaul, who as chairman of the House Homeland Security Committee has advocated for tougher vetting of refugees for terrorism ties, said he learned about the order from homeland security chief John Kelly last Friday. He was told that it was based on his past legislation, he said, as well as a memo he helped prepare for then-candidate Trump on extreme vetting.”). And the remaining individuals that Plaintiffs point to as likely to possess the document are congressional representatives and employees who are not defendants in this matter and whose documents are not controlled by the Defendants. See infra § I.B. Therefore, if the document sought is otherwise discoverable (and Defendants maintain it is not), Plaintiffs should seek third-party discovery rather than burden Defendants with unreasonable obligations.3 3 Indeed, none of the cases Plaintiffs cite in support of their position (Mem. at pp. 24-25) address this situation, in which the burden of a third party to respond to a subpoena is clearly much less than the burden on the party-opponent to respond to document requests, and the likely benefit much greater. In Hansen Beverage Co. v. Innovation Ventures, LLC, the court expressly found that, based on the particular nature of the discovery sought, it was more convenient and “less burdensome” to obtain that discovery from the party-opponent than from the subpoenaed third party. No. 09-50630, 2009 WL 2351769, at *2 (E.D. Mich. July 28, 2009). Here, the reverse is true. And in Haworth, Inc. v. Herman Miller, Inc., the analysis makes clear that the party-opponent and the subpoenaed third party had equal access to the information sought. 998 F.2d 975, 98 (Fed. Cir. 1993). In In re 6 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 8 of 19 Pg ID 2009 B. Congress and Its Employees Are Not Parties to this Litigation and Not Within the Scope of Discovery. For the first time in their Motion to Compel, Plaintiffs imply that documents possessed by members and employees of the Legislative Branch are within the scope of discovery in this case. Specifically, they assert that Defendants likely possess the Giuliani Memo because (1) the United States is a Defendant, and (2) as stated in Document Request No. 1, “two federal employees”—Rep. McCaul of the House of Representatives and Susan Phelan, spokesperson for a House Committee—“discussed the memo’s contents publicly after the first Executive Order was signed.” Mem. in Support of Mot. to Compel at p. 23 (emphasis in original). To the extent Plaintiffs are seeking documents in the possession of Congress, their request misunderstands the constitutional separation between our three branches of government. As an initial matter, although Plaintiffs have named the “United States of America” as a Defendant, Plaintiffs themselves define the “United States of CareSource Mgmt. Grp., the court decided not to enforce a third-party subpoena “as currently drafted” because it appeared that much of the information sought may have already been produced or was in the process of being produced by a party to the case. 289 F.R.D. 251, 253-54 (S.D. Ohio 2013); see also United States v. Blue Cross Blue Shield of Mich., No. 10-cv-14155, 2012 WL 4513600, at *6 (E.D. Mich. Oct. 1, 2012) (declining to enforce subpoena due to undue burden on third parties). 7 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 9 of 19 Pg ID 2010 America” as “all government agencies and departments responsible for enforcement and implementation of the Executive Orders.” Second Am. Compl. (ECF 41) ¶ 50. That is, Plaintiffs’ own definition of the “United States” includes only the Executive Branch—and only those parts of the Executive Branch that are responsible for enforcing the Executive Orders. 4 This makes sense, given that Plaintiffs’ lawsuit seeks to enjoin executive action and makes no mention of seeking review of congressional action. Second Am. Compl. ¶ 17, Prayer for Relief; Bowsher v. Synar, 478 U.S. 714, 726 (1986) (“The structure of the Constitution does not permit Congress to execute the laws … .”). Moreover, it is axiomatic that Defendants—the President and executive branch departments and agencies and their heads—do not have control over documents in the possession of Congress, its committees, or its employees. See, e.g., United States v. Libby, 429 F. Supp. 2d 1, 7 (D.D.C. 2006) (“[I]t is settled that the government generally need not produce documents that are in the possession, custody, or control of a separate branch of government such as Congress, or a state or local government agency … .”) (citations omitted). “The three branches of the United States function as separate and distinct entities.” U.S. v. Davis, 140 F.R.D. 4 Defendants also object to any other attempt by Plaintiffs to expand the scope of discovery beyond the officials, departments, and agencies that are specifically named as Defendants. See Objections at p. 5 8 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 10 of 19 Pg ID 2011 261, 263 (D.R.I. 1992). In Davis, the District Court of Rhode Island refused to compel the Department of Justice to subpoena and log documents that were in the possession, custody, or control of Congress. It explained that only executive agencies—the Department of Justice and the Environmental Protection Agency— were involved in the lawsuit; expanding the scope of discovery against the “United States” to a subcommittee of Congress was not proper because Congress “is in fact an entirely separate branch of the federal government.” Id. at 263; see also United States v. Safavian, 233 F.R.D. 12, 14 (D.D.C. 2005) (holding that the United States’s disclosure obligations in criminal matters under Brady does not encompass committees “of the United States Senate (or the House of Representatives) because the Congress is a separate branch of the government” and the United States as party does not therefore have “possession, custody or control” of a coordinate branch of government’s documents).5 5 See also, e.g., United States v. Trie, 21 F.Supp.2d 7, 25 n. 17 (D.D.C.) (“The Congress is not an ‘agency,’ and the DOJ has no obligation under Brady to disclose information in the possession of Congress that is not also in the possession of the DOJ or [another Executive Branch agency].”); cf. United States v. Am. Tel. & Tel. Co., 461 F. Supp. 1314, 1335–36 (D.D.C. 1978) (the Department of Justice was not required to produce under Rule 34 documents and records from the Federal Communications Commission, an independent, quasi-legislative agency); In re Air Crash at Dallas/Fort Worth Airport on Aug. 2, 1985, 117 F.R.D. 392, 393 (N.D. Tex. 1987) (holding that the “United States” could not produce documents from the National Transportation Safety Board, which “is an entirely autonomous entity, not subject to any other executive agency”). The Executive Branch’s lack 9 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 11 of 19 Pg ID 2012 Plaintiffs cannot alter this basic constitutional reality simply by pointing to their naming of the “United States” as a Defendant. Cf. Safavian, 233 F.R.D. at 14 (“‘the government’ includes any and all agencies and departments of the Executive Branch of the government and their subdivisions, . . . [but does] not, however, include a committee of the United States Senate (or the House of Representatives”). Accordingly, to the extent that Request No. 1 asks Defendants to obtain and produce documents from Congress, it is not a proper request under Federal Rule of Civil Procedure 34. See, e.g., Annabel v. Heyns, No. 2:12-CV13590, 2014 WL 1207802, at *2 (E.D. Mich. Mar. 24, 2014) (“[A] party cannot be forced to produce documents that are not in its custody, control, or possession.”); United States v. Dempster Bros., 31 F.R.D. 207, 208 (E.D. Tenn. 1962) (same). C. Discovery Against the President is Improper in this Case. Contrary to Plaintiffs’ assertions (Mem. at pp. 15-16), compelling the President to comply with civil discovery is the rare exception, not the rule. See of control over Congressional records is confirmed by numerous cases in which the Executive Branch has sought records from the Legislative Branch through some sort of compelled process directed to the Member or congressional entity from whom or which it sought the records. See, e.g., In re Grand Jury Subpoenas, 571 F.3d 1200, 1201 (4th Cir. 2009) (federal grand jury issued subpoena to congressional staffer); In re Grand Jury Subpoenas, 571 F.3d 1200, 1201 (D.C. Cir. 2009) (federal grand jury issued subpoenas to House Member’s attorneys for congressional documents). 10 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 12 of 19 Pg ID 2013 Objections at p. 24. Defendants have asserted that the President is generally not subject to civil process with respect to his official acts, and, therefore, he cannot be subject to an order compelling discovery in a lawsuit challenging official acts. See Objections at pp. 23-24. Plaintiffs do not point to a single case that directly contradicts that argument. Instead, they cite the order denying a stay of proceedings pending appeal in Judicial Watch, Inc. v. NEPDG, 230 F. Supp. 2d 12, 15 (D.D.C. 2002), the very case and appeal which resulted in the Supreme Court’s decision in Cheney, which espoused the doctrine that parties to civil litigation must show a heightened need before seeking discovery from the President or his close advisors. See Cheney v. U.S. Dist. Ct. for the Dist. of Columbia, 542 U.S. 367 (2004); see also Objections at pp. 20-23. Moreover, Judicial Watch cites only Clinton v. Jones, 520 U.S. 681, 704 (1997), for the proposition that discovery is routinely provided by the President and Vice President; Clinton cites no other example of a President responding to civil (rather than criminal) discovery summons or orders.6 Further, the “appropriate circumstances” required to subject the President to 6 Although the decision reports that President Monroe responded to interrogatories (Clinton, 520 U.S. at 704-05), it appears that Monroe did so in lieu of providing oral testimony in a court martial proceeding (and not a civil, Article III proceeding). See Rotunda, Robert D., “Presidents and Ex-Presidents as Witnesses: a Brief Historical Footnote,” 1975 U. Ill. L. F. 1 (attached hereto as Exhibit 2). 11 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 13 of 19 Pg ID 2014 civil discovery are not present here. See Clinton, 520 U.S. at 703. The concerns expressed by the Supreme Court with allowing discovery to proceed against the office of the Vice President are applicable a fortiori here, if not more so because the discovery is sought from the President. The total discovery sought by Plaintiffs in their discovery requests is exceedingly broad and disruptive. See Cheney, 542 U.S. at 372 (expressing concern with broad discovery orders interfering with officials’ “discharge of their duties” and impinging on the “President’s constitutional prerogatives”). In Cheney, which involved alleged violations of disclosure laws with respect to a group convened by the Vice President, the government argued that the very application of the disclosure law to the group violated separation of powers and interfered with Presidential decisionmaking, and that conducting an inquiry and discovery into such matters, was inappropriate. Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 44 (D.D.C. 2002). Defendants raise similar separation-of-powers concerns here, as they have substantial arguments that discovery in this matter is not appropriate given the deferential level of review that the political branches are typically afforded, and that has historically been applied, in similar lawsuits. See Objections at pp. 25-27; infra § II. Indeed, the government has raised that very issue in its pending Petition for Certiorari in another case challenging the Executive Order. 12 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 14 of 19 Pg ID 2015 See Petition for a Writ of Certiorari, Trump v. Int’l Refugee Assistance Project, No. 16-01436 (U.S. June 1, 2017) (attached hereto as Exhibit 3). The Supreme Court ordered the filing of a response to the government’s Petition for Certiorari by 3:00 p.m. on June 12, 2017. Order, Trump v. Int’l Refugee Assistance Project, No. 1601436 (U.S. June 2, 2017) (attached hereto as Exhibit 4). Finally, Plaintiffs’ assertion that Defendants must be “prepared to assert executive privilege” in order to seek the protections of Cheney is backwards. See Mem. at 19. Defendants cannot possibly formally invoke the privilege before searching for and reviewing the document, including its context and whether or not it was later used in the context of executive decisionmaking. Cheney instructs that responding to the discovery requests and asserting executive privilege are not necessary until after Plaintiffs have satisfied the requirement of heightened need, which, as already explained, Plaintiffs cannot do. See Objections at pp. 21-23. II. The Document Sought Has No Bearing on Any of Plaintiffs’ Claims. Contrary to Plaintiffs’ argument (Mem. at p. 14), Defendants have in fact objected to Document Request No. 1 on the grounds that the Giuliani Memo is not relevant to any of Plaintiffs’ claims. This is because Mandel’s “facially legitimate and bona fide” standard governs all three of Plaintiffs’ constitutional challenges to the Executive Order. See Objections at pp. 25-26 (“Under well-established law, 13 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 15 of 19 Pg ID 2016 the validity of executive action involving the exclusion of non-resident aliens turns on whether it is facially legitimate and bona fide.” See, e.g., Kleindeinst v. Mandel, 408 U.S. 753, 770 (1972) [First Amendment case]; Fiallo v. Bell, 430 U.S. 787, 796 (1977) [Equal Protection case]; Almario v. Att’y Gen., 872 F.2d 147, 151 (6th Cir. 1989)). Accordingly, the Court cannot look behind the President’s stated purpose for the Executive Order, except to determine whether that reason is supported by a bona fide factual basis—that is, that it bears a rational relationship to the government’s stated action. Here, that test is easily met on the face of the Order. 7 Plaintiffs cannot dispute that the Mandel standard governs their free speech/association claim, as Mandel addressed the same type of First Amendment claim they assert here: the right of U.S. Citizens to associate with and hear speech from a non-resident alien. See Second Am. Compl. (ECF No. 41) ¶¶ 373-74; 7 Defendants acknowledge that the Fourth Circuit recently held that Mandel’s “bona fide” requirement allowed it to look at public statements to determine whether the stated reason for the executive action “was provided in good faith,” and then could also move on to apply other legal tests if bad faith was shown. See International Refugee Assistance Project v. Trump, --- F.3d ---, 2017 WL 2273306, at *16-18 (4th Cir. May 25, 2017). Defendants maintain that this analysis is wrong and misapplies precedent, and the government has sought Supreme Court review of the decision on this basis. See Ex. 3, Petition for a Writ of Certiorari, Trump v. Int’l Refugee Assistance Project, No. 16-01436 (U.S. June 1, 2017). 14 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 16 of 19 Pg ID 2017 Mandel, 408 U.S. at 759-60.8 Similarly, the Mandel standard has been applied by the Supreme Court to immigration-related classifications alleged to violate equal protection and implicate rights of U.S. Citizen family members. Fiallo, 430 U.S. at 791-95. Accordingly, with respect to these claims, just as with Plaintiffs’ Establishment Clause claim, the Court cannot reach the factual question that Plaintiffs’ discovery is aimed at: the subjective motivation behind the faciallyneutral Executive Order. Finally, Defendants have already explained that even the Establishment Clause test that Plaintiffs contend applies to their claim (rather than Mandel) (see Mem. at pp. 12-13) does not countenance looking behind the readily available context of officials’ actions, such as the “text, legislative history, and implementation of the … official act,” to purely private documents authored by Rudolph Giuliani and/or Rep. McCaul, who are not decisionmakers with respect the Executive Order. See McCreary Cnty v. ACLU of Ky., 545 U.S. 844, 862 (2005); Objections, at pp. 26-27. Accordingly, Plaintiffs’ discovery request is 8 In any event, Plaintiffs do not convincingly explain how the “purpose” of the Executive Order is relevant to their free speech/association claim. Even if the Court were to examine whether the Executive Order restricts speech by “distinguishing among different speakers, allowing speech by some but not others,” Mem. at p. 15, that inquiry would be an inquiry into the effect of potential viewpoint discrimination, not the purpose of the Executive Order. 15 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 17 of 19 Pg ID 2018 irrelevant even under their own tests. III. Plaintiffs’ Proposed Order Does Not Appropriately Account for Defendants’ Burden and Privilege Objections and the Need for Third Parties To Be Heard. Defendants maintain that the Giuliani Memo sought in Request No. 1 (and discovery generally) is completely unnecessary to the resolution of Plaintiffs’ claims, and that Request No. 1 is irrelevant or at least disproportional to the needs of the case. Moreover, that document, if discoverable, should be sought from third parties who are more likely to be in possession of it. If, however, the Court were to overrule these objections, Plaintiffs’ proposed order and timeline (Mem. at pp.27-29) does not account for the burdens on the government of searching numerous agency files; the unavailability of civil discovery from the President; the time needed for the government to assess the document and formally invoke any applicable privileges; and the time needed to allow notice and opportunity to be heard to third parties who have an interest in the Giuliani Memo (including, but not limited to, the Trump Campaign). In particular, the timelines and steps proposed by Plaintiffs are woefully inadequate to allow the proper notice to third parties and the assertion of privileges. 16 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 18 of 19 Pg ID 2019 CONCLUSION For the foregoing reasons and the reasons stated in Defendants’ Objections, the Court should deny Plaintiffs’ Motion to Compel. Dated: June 5, 2017 Respectfully submitted, AUGUST E. FLENTJE Special Counsel WILLIAM C. PEACHEY Director GISELA A. WESTWATER Assistant Director EREZ REUVENI Senior Litigation Counsel By: /s/ Katherine J. Shinners KATHERINE J. SHINNERS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 598-8259 Katherine.J.Shinners@usdoj.gov JOSHUA S. PRESS BRIANA YUH Trial Attorneys Attorneys for Defendants 17 2:17-cv-10310-VAR-SDD Doc # 111 Filed 06/05/17 Pg 19 of 19 Pg ID 2020 CERTIFICATE OF SERVICE I hereby certify that on June 5, 2017, I electronically filed the foregoing Motion, including exhibits, with the Clerk of the Court for the United States District Court for the Eastern District of Michigan by using the CM/ECF system, which will electronically serve all counsel of record. /s/ Katherine J. Shinners KATHERINE J. SHINNERS Trial Attorney United States Department of Justice Office of Immigration Litigation 18