Case 2:17-cv-00094-RAJ Document 164 Filed 04/25/18 Page 1 of 2 United States Department of Justice Civil Division Office of Immigration Litigation EBK:AEF 39-82-9196.03 April 25, 2018 Hon. Richard A. Jones United States Courthouse 700 Stewart Street, Suite 13128 Seattle, WA 98101-9906 Re: Wagafe, et al., v. Trump, et al., No. 17-00094 (W.D. Wash.) Dear Judge Jones: In light of the Court’s April 24, 2018 order, we have asked the Ninth Circuit to defer consideration of the government’s mandamus petition until the Court has had an opportunity to rule on our motion for reconsideration. A copy of the letter requesting this deferral is attached. We also want to apprise the Court that we will be delivering to the Court’s chambers by hand the case by case determinations for this Court’s in camera, ex parte review. As some of the case by case determinations may include classified information, we would like to use the Department of Justice Classified Information Security Officer to facilitate the Court’s review of that information. Respectfully submitted, //s// August E. Flentje AUGUST E. FLENTJE Special Counsel Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 514-2000 Enclosure cc: Abqiqafar Wagafe, et al. (via ECF): Matt Adams (matt@nwirp.org) Sameer Ahmed (sahmed@aclusocal.org) Glenda M. Aldana Madrid (glenda@nwirp.org) Emily Chiang (Echiang@aclu-wa.org) Lee Gelernt (lgelernt@aclu.org) Nicholas P. Gellert (NGellert@perkinscoie.com) Case 2:17-cv-00094-RAJ Document 164 Filed 04/25/18 Page 2 of 2 Hugh Handeyside (hhandeyside@aclu.org) Laura K. Hennessey (LHennessey@perkinscoie.com) Kristin Macleod-Ball (kmacleod-ball@immcouncil.org) Jennifer Pasquarella (jpasquarella@aclusocal.org) David A. Perez (DPerez@perkinscoie.com) Trina Realmuto (trealmuto@immcouncil.org) Harry H. Schneider, Jr., (HSchneider@perkinscoie.com) Hina Shamsi (hshamsi@aclu.org) Stacy Tolchin (Stacy@tolchinimmigration.com) (1 of 6) Case Case: 2:17-cv-00094-RAJ 18-71171, 04/25/2018, Document ID: 10849622, 164-1 Filed DktEntry: 04/25/18 10-1, Page 1 of 26 United States Department of Justice Civil Division Office of Immigration Litigation AEF:EBK:ldj 39-82-9196.03 April 25, 2018 Hon. Molly Dwyer Clerk, United States Court of Appeals for the Ninth Circuit 95 Seventh Street San Francisco, CA 94103 Re: Donald Trump, et al. v. USDC-WAWSE, No. 18-71171 (9th Cir.) Dear Ms. Dwyer: On April 23, 2018, the government petitioned this Court for a writ of mandamus vacating orders by the United States District Court for the Western District of Washington that compel production of sensitive and privileged law enforcement information by April 25, 2018, and for a stay pending the Court’s ruling on the mandamus petition. The government had previously sought a stay from the district court, but the district court had not acted on that request at the time the government filed its mandamus petition in this Court. On April 24, 2018, the district court acted on the government’s motion by temporarily staying the April 25th production deadline, directing a supplemental filing from the government that includes highly sensitive information explaining why a random sample of individuals are subject to CARRP, and deferring its ruling on the government’s request for reconsideration of its production orders. The district court’s April 24, 2018 order is attached. The government is preparing materials for the supplemental filing. We note that the explanations the court requires are highly privileged and not relevant to plaintiffs’ claims. The government thus maintains its position that the explanations may not be disclosed. In light of the recently-entered temporary stay, Petitioners respectfully request that the Court defer consideration of the government’s mandamus petition until the district court rules on reconsideration. (2 of 6) Case Case: 2:17-cv-00094-RAJ 18-71171, 04/25/2018, Document ID: 10849622, 164-1 Filed DktEntry: 04/25/18 10-1, Page 2 of 26 Respectfully submitted, //s// August E. Flentje AUGUST E. FLENTJE Special Counsel Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 514-2000 Enclosure cc: Counsel for Abqiqafar Wagafe (Via ECF) (3 of 6) Case Case Case: 2:17-cv-00094-RAJ 2:17-cv-00094-RAJ 18-71171, 04/25/2018, Document Document ID: 10849622, 164-1 162 Filed Filed DktEntry: 04/24/18 04/25/18 10-2,Page Page113ofof446 1 HONORABLE RICHARD A. JONES 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 ABDIQAFAR WAGAFE, et al., 11 Plaintiffs, 12 ORDER v. 13 CASE NO. C17-94 RAJ DONALD TRUMP, President of the United States, et al., 14 15 Defendants. 16 17 This matter comes before the Court on Defendants’ emergency motion for stay 18 19 20 21 22 23 24 25 26 27 pending appellate review. Dkt. # 156. Plaintiffs oppose the motion. Dkt. # 157. I. BACKGROUND Despite the Court’s orders, the Government maintains its refusal to produce the class list to Plaintiffs. This dispute has been pending since Plaintiffs’ August 1, 2017 discovery requests, in which Plaintiffs sought the class list. Dkt. ## 91, 92. Plaintiffs filed a motion to compel, and on October 19, 2017, the Court granted it in part, requiring the Government to produce the class list. Dkt. # 98. On November 2, 2017, the Government moved for reconsideration, which the Court denied. Dkt. ## 99, 102. But the Government did not produce the class list. ORDER- 1 (4 of 6) Case Case Case: 2:17-cv-00094-RAJ 2:17-cv-00094-RAJ 18-71171, 04/25/2018, Document Document ID: 10849622, 164-1 162 Filed Filed DktEntry: 04/24/18 04/25/18 10-2,Page Page224ofof446 1 On February 8, 2018, Plaintiffs filed another motion to compel the class list. Dkt. 2 # 109. On February 13, 2018, the Government agreed to produce “a copy of the list of 3 each potential class member by March 5, 2018,” but reserved the right to seek further 4 relief if necessary. Dkt. # 114. On February 14, 2018, the Court held a hearing regarding 5 the outstanding discovery issues. Dkt. # 115. 6 On March 1, 2018, the Government moved for a protective order with regard to 7 producing the class list. Dkt. # 126. On March 5, 2018, the Government produced a 8 redacted version of the class list to Plaintiffs. Dkt. # 127 at 7. On April 11, 2018, the 9 Court denied the Government’s motion for a protective order to the extent that all names 10 must be produced on the basis of “attorney eyes only.” Dkt. # 148. However, the Court 11 offered the Government an alternative: the Government could produce the class list under 12 the current stipulated protective order, or, it could make case-by-case determinations with 13 regard to names it refused to provide, see Al Haramain Islamic Found., Inc. v. U.S. Dept. 14 of Treasury, 686 F. 3d 965, 984 (9th Cir. 2012) and Latif v. Holder, 28 F. Supp. 3d 1134, 15 1162 (D. Or. 2014), and produce such information under the “attorney eyes only” 16 provision that it requested. Id. Either way, the Court required the Government to 17 produce the class list or the case-by-case determinations by April 25, 2018. Id. The 18 Government did not raise objections to this Order until filing an emergency motion on 19 April 20, 2018. Dkt. # 156. 20 21 II. DISCUSSION Although the instant motion is styled as an emergency motion to stay, the Court 22 finds it more appropriate to consider the motion as one for reconsideration of its April 11, 23 2018 Order. See Local Rules W.D. Wash. LCR 7(h). The Government seeks 24 reconsideration of the portion of the Court’s Order requiring the Government to produce 25 the unredacted class list or to produce case-by-case determinations of the individuals for 26 whom production would create a national security concern. Dkt. # 156. However, the 27 Government grossly misreads the Court’s Order as “creat[ing] a new harm.” Dkt. # 156- ORDER- 2 (5 of 6) Case Case Case: 2:17-cv-00094-RAJ 2:17-cv-00094-RAJ 18-71171, 04/25/2018, Document Document ID: 10849622, 164-1 162 Filed Filed DktEntry: 04/24/18 04/25/18 10-2,Page Page335ofof446 1 2 (Renaud Decl.) at ¶ 9. The Court did not order the Government to produce the case-by2 case information unless it continued to refuse to produce the class list under the current 3 stipulated protective order—something that the Court had ordered the Government to do 4 months earlier. The Government is under no obligation to produce this information to 5 Plaintiffs if it simply abides by the Court’s prior orders to produce the class list. 6 Importantly, the issue continues to be that the Government claims vague and speculative 7 national security threats when such general statements are not sufficient. Hawaii v. 8 Trump, 878 F.3d 662, 699 (9th Cir. 2017). “Everyone agrees that the Government’s 9 interest in combating terrorism is an urgent objective of the highest order.” Holder v. 10 Humanitarian Law Project, 561 U.S. 1, 28 (2010). Indeed, “no governmental interest is 11 more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 12 (1981). But national security “cannot be used as a ‘talisman ... to ward off inconvenient 13 claims.’” Hawaii, 878 F.3d at 699. 14 It appears that the parties and the Court will never move past the endless cycle of 15 motions to compel, motions to reconsider, and the Government’s ultimate refusal to 16 produce the compelled documents. The Court maintains that, based on the record before 17 it, wholesale production of the class list under a more robust protective order is 18 unnecessary. At each junction, the Government has failed to present facts or arguments 19 that are meaningfully new or different that could not have been previously raised with 20 regard to its general “national security threat” arguments. The Government’s opposition 21 continues to be rooted in its fundamental disagreement with the Court’s determinations. 22 Such disagreement does not amount to manifest error. LCR 7(h) (moving parties carry 23 the burden to show manifest error when seeking reconsideration of a prior order). 24 The Court acknowledges that potential national security threats may exist with 25 regard to specific individuals on the class list. Rather than provide case-by-case 26 determinations to Plaintiffs, the Court will give the Government an opportunity to file a 27 sampling of such determinations in camera with the Court. The Court requires the ORDER- 3 (6 of 6) Case Case Case: 2:17-cv-00094-RAJ 2:17-cv-00094-RAJ 18-71171, 04/25/2018, Document Document ID: 10849622, 164-1 162 Filed Filed DktEntry: 04/24/18 04/25/18 10-2,Page Page446ofof446 1 Government to identify the total number of potential class members to the Court. The 2 Court then requires a random sampling of these members with explanations why their 3 names may not be produced to Plaintiffs. See, e.g., Latif, 28 F. Supp. 3d at 1162 4 (“Defendants must make such a determination on a case-by-case basis including 5 consideration of, at a minimum, the factors outlined in Al Haramain; i.e., (1) the nature 6 and extent of the classified information, (2) the nature and extent of the threat to national 7 security, and (3) the possible avenues available to allow the Plaintiff to respond more 8 effectively to the charges.”). The Court requests at least fifty records from this random 9 sample. The Government must file these case-by-case determinations with the Court 10 within seven (7) days from the date of this Order. The Court will reserve ruling on this 11 motion for reconsideration pending review of the Government’s samples. 12 The Court finds it appropriate to stay the April 25, 2018 deadline to produce the 13 unredacted class list until the Court has ruled on the motion for reconsideration. No other 14 discovery deadlines are stayed. 15 16 Dated this the 24th day of April, 2018. 17 A 18 19 The Honorable Richard A. Jones United States District Judge 20 21 22 23 24 25 26 27 ORDER- 4