A Customs and Border Protection officer watches travelers at Miami International Airport.
A Customs and Border Protection officer watches travelers at Miami International Airport. (CBS Miami)

It has been two months since federal authorities were sued for dragging their feet in responding to demands for records of persons detained under President Donald Trump’s travel ban. But the wait may grow longer because of an unusual motion by the U.S. Department of Justice to coordinate 13 lawsuits into a multidistrict litigation.

The DOJ’s maneuver drew a sharp rebuke from lawyers for the American Civil Liberties Union, one of whom called it a “misfit of a motion” and a veiled attempt at putting the requests on hold indefinitely.

The legal battle stemmed from federal enforcement of the travel ban while it was in force after Trump signed the executive order aimed at halting travel from several Muslim-majority countries and before federal judges halted its effect. During that time, many travelers were detained at U.S. airports, and Freedom of Information Act requests were aimed at gaining access to records of those detentions. The lawsuits were filed by 43 ACLU chapters, including those in Florida, Georgia, Texas and California, in April after the U.S. Department of Homeland Security and U.S. Customs and Border Protection failed to respond to requests made on Feb. 2.

The DOJ’s request is unusual. Most multidistrict litigation proceedings involve suits over catastrophic injuries or consumer fraud, not FOIA requests. But the DOJ claims that the ACLU cases, filed in 11 states, are effectively asking for the same thing and should be coordinated into multidistrict litigation.

“Transfer and consolidation of the related actions is appropriate because consolidation will alleviate the inefficiencies posed by litigating substantially similar cases in thirteen different jurisdictions,” wrote Matthew Berns, a trial attorney in the federal programs branch of the DOJ’s civil division in Washington.

DOJ spokeswoman Nicole Navas Oxman declined to comment.

ACLU attorney Thomas Burke, co-chairman of the media law practice at Davis Wright Tremaine, chastized the DOJ’s “misfit of a motion” as a veiled attempt at further delaying its response to the FOIA requests. The DOJ also has sought to stay each of the lawsuits pending the MDL panel’s decision.

“While the federal judiciary is working overtime to address the legality of the administration’s travel ban, the CPB chose to invoke MDL procedures and file motions to stay rather than promptly produce responsive local records about its activities at airports across the nation,” said Burke, a partner in the San Francisco office who represents three ACLU chapters in the California cases.

Last week, the U.S. Judicial Panel on Multidistrict Litigation scheduled the DOJ’s request for its next hearing on July 27 in Los Angeles.

Trump’s executive order affected U.S. residents coming from seven majority-Muslim countries. Its implementation in January caused chaos and touched off protests at U.S. airports. Many travelers were detained without warning while the ban was in effect, it was widely reported. The ACLU chapters brought the suits in April after federal authorities failed to respond to the FOIA requests within 20 days. The suits seek records relating to decisions made about travelers who were detained at U.S. airports, despite several court orders halting enforcement of the order and an amended version announced in March.

In pushing for an MDL, the DOJ noted that it would make staffing requirements “leaner” and “reduce the extraordinary number of ACLU lawyers” in the litigation given that 44 attorneys have signed the complaints, including 19 from outside law firms. In addition to Davis Wright Tremaine, those firms include Ballard Spahr, Hunton & Williams and Dentons.

To be sure, federal authorities have their hands full. In its motion, the DOJ cited at least six other lawsuits in addition to the ACLU cases and more than 100 FOIA requests relating to the order.

Each case brought by an ACLU chapter identifies a local CBP field office, but the DOJ insists that the records requests are being handled at the agency’s headquarters in Washington, where all the cases should be coordinated.

The DOJ acknowledged the rarity of MDLs over FOIA requests but cited some curious precedents: Two MDLs created when the Church of Scientology sought records from the Internal Revenue Service in the early 1990s.

ACLU attorneys brushed off those precedents and reiterated their need for records from local CBP field offices, where different individuals were told various instructions about enforcing the order.

The ACLU got a break earlier this month when a Seattle judge refused to halt the litigation for the DOJ. U.S. District Judge Robert Lasnik found on June 6 that a stay wasn’t necessary.

“Plaintiffs’ and the public’s right to know what the government is up to has already been delayed for more than three months,” he wrote. “Given the purposes for which FOIA was enacted, an open-ended stay of this litigation would be preju­dicial.”

Contact Amanda Bronstad at abronstad@alm.com. On Twitter: @abronstadlaw.

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