Case 1:20-cv-01142-JMF Document 1 Filed 02/10/20 Page 1 of 22

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

R. L’HEUREUX LEWIS-MCCOY, JAMIL DAKWAR, and JOHN HARLAND GIAMMATTEO, on behalf of themselves and all similarly situated individuals,
Plaintiffs,
v.
CHAD WOLF, in his official capacity as Acting Secretary of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; MARK MORGAN, in his official capacity as Acting Commissioner of United States Customs and Border Protection; and UNITED STATES CUSTOMS AND BORDER PROTECTION,
Defendants.

Case No. 1:20-cv-1142
CLASS ACTION COMPLAINT

INTRODUCTION 1. This class-action lawsuit challenges the most recent effort by the Trump Administration to target immigrants and the states that seek to protect them. From the very day of his inauguration, President Trump has imposed a wide range of punitive, discriminatory, and irrational measures on immigrant communities in the United States, as well as on refugees and asylum-seekers fleeing violence and persecution abroad. New York, which is home to millions of immigrants, has been a particular target for President Trump. 2. In last week’s State of the Union address, President Trump singled out New York for criticism because of efforts taken in the State to protect immigrant communities. One day later, President Trump’s Acting Secretary of Homeland Security, Chad Wolf, announced a

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blanket ban on New York residents’ eligibility to enroll or re-enroll in various programs that enable vetted and approved travelers entering the United States to expedite the border clearance process. The best known of these programs is Global Entry, a program for which millions of people have been approved, including hundreds of thousands of New Yorkers.
3. The Trump Administration claims this abrupt and unprecedented ban on New Yorkers’ participation in the Global Entry program is necessitated by security concerns raised by New York’s recently enacted Green Light Law. That law, which authorizes the issuance of driver’s licenses regardless of citizenship or immigration status, limits federal immigration officials’ access to state Department of Motor Vehicles records. But the Administration’s claim is specious. In fact, that access would provide no relevant information not otherwise available about many if not most New York residents applying for Global Entry, and any information DMV alone may possess would have little or no bearing on their eligibility for the program.
4. In truth, the Trump Administration’s closing of Global Entry and the other expedited-traveler programs to New Yorkers is little more than an attempt to coerce New York into participating in federal immigration enforcement by forcing State officials into disclosing sensitive data about driver’s license applicants. To accomplish this, the administration has unlawfully banned millions of otherwise-eligible New Yorkers from even applying for Global Entry and the other programs. The ban immediately affects about 80,000 New York residents whose applications were pending when the ban went into effect and another 175,000 whose memberships will expire this year but will be barred from attempting to re-enroll.
5. The Trump Administration’s abrupt and summary termination of Global Entry for New York residents is simply another punitive and irrational measure directed at immigrant communities and is one that undermines public safety. It violates the Administrative Procedure
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Act and the United States Constitution, and the plaintiffs respectfully seek a declaration that the termination is unlawful, an order enjoining it, and attorney’s fees.
PARTIES Named Plaintiffs
6. Plaintiff R. L’Heureux Lewis-McCoy is a resident of New York, New York whose application to Global Entry was pending when the defendants barred all New York residents from the program.
7. Plaintiff Jamil Dakwar is a resident of New York, New York whose application to Global Entry was pending when the defendants barred all New York residents from the program.
8. Plaintiff John Harland Giammatteo is a resident of New York, New York who wishes to enroll in Global Entry but cannot because the defendants have barred all New York residents from the program. Defendants
9. Defendant Chad Wolf is the Acting Secretary of the United States Department of Homeland Security. He is sued in his official capacity.
10. Defendant United States Department of Homeland Security (“DHS”) is a cabinet agency within the executive branch of the United States Government, and is an agency within the meaning of 5 U.S.C. § 552(f). DHS is the parent agency of United States Customs and Border Protection and United States Immigration and Customs Enforcement (“ICE”).
11. Defendant Mark Morgan is the Acting Commissioner of United States Customs and Border Protection. He is sued in his official capacity.
12. Defendant United States Customs and Border Protection (“CBP”) is a component agency of DHS, and is an agency within the meaning of 5 U.S.C. § 552(f). It is the law-
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enforcement agency primarily tasked with border protection. CBP administers various programs, including Global Entry, that provide expedited entry into the United States for program members.
FACTS The Trump Administration’s Retaliation Against Jurisdictions that Do Not Enforce Its Anti-Immigrant Agenda 13. Since the beginning of his presidency, President Trump has pursued a cruel antiimmigrant agenda that has sought to vilify and scapegoat immigrants. President Trump has repeatedly made derogatory comments about immigrants, calling undocumented immigrants “animals,” saying, “You wouldn’t believe how bad these people are. These aren’t people, these are animals . . . .”1 He further referred to undocumented immigrants as an “infestation” and compared immigrants and refugees to a “snake” that will “bite[]” those who help it.2 14. Just days after the inauguration, the Trump Administration openly targeted states and municipalities that limit their cooperation with immigration authorities in an effort to protect immigrant communities. On January 25, 2017, President Trump issued Executive Order 13768, which unlawfully threatened to deny federal grant funding to all so-called “sanctuary jurisdictions.” The White House confirmed the order’s clear purpose: “We’re going to strip federal grant money from the sanctuary cities and states that harbor illegal immigrants.”
1 Julie Hirschfield Davis, Trump Calls Some Unauthorized Immigrants ‘Animals’ in Rant, N.Y. Times (May 16, 2018), https://www.nytimes.com/2018/05/16/us/politics/trump-undocumented-immigrantsanimals.html. 2 Donald J. Trump (@realDonaldTrump), Twitter (June 19, 2018, 9:52 am), https://twitter.com /realdonaldtrump/status/1009071403918864385; Dan Merica, Trump reads ‘The Snake,’ repurposed as anti-immigrant poem, at CPAC, CNN (Feb. 25, 2018), at https://www.cnn.com/2018/02/23/politics/trump-the-snake-song/index.html.
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15. In January 2018, President Trump claimed so-called “sanctuary cities” were “the best friends of gangs and cartels.” In March 2018, the Trump Administration sued the State of California to enjoin three state laws that protect immigrants and limit the information that state officials may share with federal immigration enforcement authorities. In April 2018, Trump made derogatory comments about sanctuary cities in California, saying “many Sanctuary areas want OUT of this ridiculous, crime infested & breeding concept.”3
16. Similarly, on April 12, 2019, President Trump confirmed reports that his administration was planning to send undocumented immigrants to “Sanctuary Cities,” tweeting: “Due to the fact that Democrats are unwilling to change our very dangerous immigration laws, we are indeed, as reported, giving strong considerations to placing Illegal Immigrants in Sanctuary Cities only.”4
17. Defendant Wolf has echoed the President’s views. In December 2019 he stated, “[S]anctuary policies do not protect communities, they endanger them,” and referred to such policies as “devastating.” On January 15, 2020, he tweeted, “There has been a complete breakdown of law & order in New York City. NYC proudly passed sanctuary city laws & bragged about it for months. But now they, & more importantly, the citizens of NYC are facing the deadly consequences of the sanctuary policies.”5
18. President Trump has taken particular aim at New York and its support of immigrant communities. At the State of the Union on February 4, 2020, President Trump cited
3 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 18, 2018, 5:59 am), https://twitter.com /realdonaldtrump/status/986544648477868032?lang=en. 4 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 12, 2019, 12:38 pm), https://twitter.com /realdonaldtrump/status/1116742280919044096?lang=en. 5 Acting Secretary Chad Wolf (@DHS_Wolf), Twitter (Jan. 15, 2020, 7:14 pm), https://twitter.com /dhs_wolf/status/1217600924744585216?lang=en.
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New York specifically and repeated his false claims about sanctuary cities being havens for crime. New York’s Driver’s License Access and Protection Act
19. In stark contrast to the Trump Administration, New York officials have sought to protect immigrant communities from hyper-aggressive and unwarranted enforcement measures, both as a matter of respect and to promote public safety.
20. In June 2019, New York State enacted the Driver’s License Privacy and Protection Act, commonly referred to as the “Green Light Law.” That law, which went into effect on December 14, 2019, authorizes the issuance of standard driver’s licenses regardless of citizenship status.
21. Concerned about the Trump Administration’s attacks on immigrants and its pattern of seeking to coerce states into engaging in federal immigration enforcement, New York State chose to include in its Green Light Law restrictions on access to databases that are maintained by its Department of Motor Vehicles (“DMV”) and that contain certain information about those applying for driver’s licenses. Specifically, absent a judicial warrant, the Green Light Law bars access to DMV-maintained records by “any agency that primarily enforces immigration law,” including CBP and ICE. The Global Entry Program
22. The federal government operates several programs designed to expedite border crossings for vetted and approved travelers. Referred to generally as “Trusted Traveler Programs,” the best known of these programs is Global Entry.
23. Global Entry allows expedited border clearance for pre-approved, low-risk travelers arriving to the United States. Upon arrival in the United States at many airports, a
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program member may proceed to a Global Entry kiosk, present their machine-readable passport or U.S. permanent resident card, place their fingerprints on the scanner for fingerprint verification, and complete a customs declaration. The Global Entry kiosk issues the traveler a transaction receipt and directs the traveler to baggage claim and the exit.
24. The federal government has approved millions of people to participate in Global Entry, including qualifying U.S. citizens, lawful permanent residents, and citizens of 11 other countries with whom CBP has made certain arrangements.6 Membership in Global Entry includes the TSA PreCheck benefit, which expedites traveler screening through domestic airport security checkpoints.
25. DHS established Global Entry and the other Trusted Traveler Programs pursuant to a statute directing the Secretary of DHS to “establish an international registered traveler program” in order to “expedite the screening and processing of international travelers, including United States Citizens and residents, who enter and exit the United States.”
26. In requiring DHS to create the program, Congress found that expediting “the travel of previously screened and known travelers across the borders of the United States should be a high priority” and that the “process of expediting known travelers across the borders of the United States can permit inspectors to better focus on identifying terrorists attempting to enter the United States.”
27. To that end, Congress provided that DHS “shall ensure that the international registered traveler program includes as many participants as practicable by (i) establishing a reasonable cost of enrollment; (ii) making program enrollment convenient and easily accessible; and (iii) providing applicants with clear and consistent eligibility guidelines.”
6 Those countries are Argentina, Columbia, Germany, India, Mexico, Panama, Singapore, South Korea, Switzerland, and Taiwan.
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28. In June 2008, CBP began operating a pilot Global Entry program, which was successful. According to the agency’s analysis of the pilot program, “The increased volume of traffic to the kiosks by proven low-risk travelers allows CBP officers more time and resources to address higher risk security concerns” and thereby improve overall security.
29. CBP issued a notice of proposed rulemaking to establish Global Entry as permanent program on November 19, 2009 and published a final rule on February 6, 2012. Global Entry has since been available across the country.
30. Consistent with the congressional mandate to maximize participation in the program, the eligibility criteria for applying for the program are broad. Specifically, the program is open to any U.S. citizen, U.S. national, U.S. lawful permanent resident, and “‘nonimmigrant aliens’ from countries that have entered into arrangements with CBP concerning international trusted traveler programs.” Additionally, any applicant under the age of 18 must have the consent of a parent or legal guardian. All applicants must have a valid “machine-readable passport, a valid machine readable U.S. Lawful Permanent Resident Card (Form I-155), or other appropriate travel document as determined by CBP.”
31. Global Entry’s criteria do not require applicants to have a driver’s license, a driving record, or even residence in the United States.
32. Under these criteria, upon information and belief, millions of New York residents are eligible to apply for Global Entry.
33. When applying for Global Entry, applicants must provide extensive personal information, including name, date of birth, city of birth, country of birth, state of birth, e-mail address, phone number, gender, eye color, height, and prior names used. The applicant must also
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provide information indicating proof of citizenship and proof that the applicant may enter the country, like a passport or lawful permanent resident card.
34. A non-refundable fee of $100 is required with each completed application to submit the application.
35. Once they have submitted their applications, applicants undergo a multi-prong screening process. As part of that process, CBP routes the applications to a vetting center where their biographic information contained in the applications is queried against 21 different data systems, including:
a. UPAX, a consolidated database that includes information to help identify “potential terrorists, transnational criminals, and other persons who pose a higher risk of violating U.S. law”;
b. TECS, data repository that supports “law enforcement ‘lookouts,’ border screening, and reporting for CBP’s primary and secondary inspection processes”;
c. IDENT, which stores and processes biometric data “to establish and verify identities,” including biometric information from INTERPOL;
d. The FBI’s National Crime Information Center’s Interstate Identification Index, an automated database that integrates criminal history records from federal, state, local, tribal, and certain foreign criminal justice agencies; and
e. TSDB, a consolidated database maintained by FBI’s Terrorist Screening Center that “provides information about those known or reasonably suspected of being involved in terrorist activity.”
36. CBP also claims that prior to the Green Light Law, it accessed information from New York’s DMV records as part of the Global Entry vetting process related to aspects of an individual’s criminal history. It is unclear, however, that New York’s DMV data related to possible criminal offenses is not available elsewhere. Moreover, upon information and belief, the only information that is potentially uniquely in DMV records relates to an individual’s New
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York driving record — if they even have one — including convictions for driving while under the influence of drugs or alcohol.
37. After the vetting process, if CBP conditionally approves the application, the applicant is notified to schedule an interview at an approved Global Entry Enrollment Center or certain international airports upon arrival in the United States.
38. On the date of the scheduled interview, the applicant is required to bring their application documents and one other form of identification, like a government-issued identification card. At the interview, CBP conducts a personal interview, obtains biometric information (including a set of fingerprints and a digital photograph), and addresses any additional eligibility questions.
39. Once an application is approved, the new member receives a Global Entry card. Membership in the Global Entry program lasts for a period of 5 years so long as the application is not suspended or terminated by CBP.
40. Global Entry program members may renew their enrollment beginning one year prior to the expiration of the five-year membership. If the member submits a renewal application before their prior Global Entry membership expires, that applicant is allowed to use their Global Entry card for up to six months after the membership application date regardless of whether the card expires, in case the renewal does not get processed prior to expiration.
41. A participant in Global Entry “may be suspended or removed from the program” for reasons including that they no longer meet the program eligibility criteria, or that CBP “determines that such action is otherwise necessary.” The regulations further provide that “[i]f an applicant is denied participation in Global Entry, CBP will notify the applicant of the denial,
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and the reasons for the denial. CBP will also provide instructions regarding how to proceed if the applicant wishes to seek additional information as to the reason for the denial.”
42. The background-check requirements that CBP imposes on Global Entry applicants who are foreign nationals living outside the U.S. vary by country. For example, applicants who are resident in Taiwan must “obtain a Police Criminal Record Certificate from their local Taiwan Police Department,” but there is no such requirement on applicants living in Panama.
43. Upon information and belief, CBP has approved Global Entry applications from non-residents — including both U.S. and non-U.S. citizens — residing in jurisdictions that do not share with the defendants the particular information that they now purport CBP requires to determine the Global Entry eligibility of New York residents.
DHS Bans All New York Residents from Global Entry and Other TTPs. 44. In his State of the Union address on February 4, 2020, President Trump singled
out New York for criticism because of efforts in the state to protect immigrants. The following day defendant Wolf announced on Fox News’s Tucker Carlson Tonight that he had sent a letter to New York officials immediately suspending enrollment and re-enrollment in Global Entry and other Trusted Traveler Programs (“TTPs”) for all New York State residents.
45. Defendant Wolf’s February 5 letter announced an unprecedented change to the eligibility requirements for Global Entry and other TTPs: “New York residents will no longer be eligible to enroll or re-enroll in CBP’s Trusted Traveler Programs,” including Global Entry (the “New York Ban”).
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46. In announcing the New York Ban, defendant Wolf claimed banning New York’s nearly 20 million residents from applying for Global Entry was necessitated by the provision of the New York’s Green Light Law that bars immigration officials from accessing the state’s DMV records. In support of this sweeping action, however, the letter offers only one rationale: “The [Green Light Law] prevents DHS from accessing relevant information that only New York DMV maintains, including some aspects of an individual’s criminal history.” The letter does not identify the specific information it refers to and offers little explanation as to how losing access to that information affects the Global Entry vetting process.
47. Notably, this rationale does not apply to over 3.5 million New York residents for whom DMV maintains no records but who may otherwise be eligible to apply for Global Entry.
48. Most of defendant Wolf’s letter makes clear that DHS’s termination of Global Entry for New York residents is simply an attempt to force New York officials to cooperate in federal immigration enforcement by making DMV records available to ICE. While spending precious little time explaining any actual impact on Global Entry, defendant Wolf’s letter devotes substantial space to claiming that losing access to DMV records has impaired law-enforcement activities by ICE.
49. On February 6, 2020, CBP issued a press release entitled “New York Residents No Longer Eligible to Apply for or Renew Trusted Traveler Programs.” The release states:
Effective immediately, . . . . New York residents will no longer be eligible to apply for or renew membership in CBP Trusted Traveler Programs and CBP will cancel all pending Trusted Traveler Program applications submitted by residents of New York. Refunds will be processed automatically. 50. At the time of the filing of this complaint, notifications on CBP’s website, including on the webpage for Global Entry, confirm that New York residents are ineligible for Global Entry:
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51. New York State residents who attempt to enroll in the Global Entry program online now receive an error message and cannot complete their applications:
52. Similarly, a fact sheet provided by the Government to an applicant turned away from his interview at JFK International Airport on February 9 states clearly that CBP has cancelled all applications for residents of New York: “Conditionally approved TTP applicants
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pending an enrollment interview and TTP applications pending risk assessment will be cancelled and issued a fee reimbursement.”
53. Upon information and belief, the New York Ban affects approximately 255,000 New York State residents. Over 80,000 residents — like named plaintiffs Lewis-McCoy and Dakwar — had pending applications for enrollment or reenrollment in Global Entry and other TTPs when the New York Ban went into effect. And by the end of 2020, approximately 175,000 New Yorkers who have been vetted and approved will be removed from TTPs, including Global Entry, because they now are barred from re-enrolling. Beyond those whose current enrollment or pending applications are immediately affected, the New York Ban bars millions of other New York residents — like named plaintiff Giammatteo — who might want to apply for the first time from doing so.
54. Upon information and belief, the curtailing of CBP access to New York’s DMV records has little if any effect on the agency’s ability to assess applicants for Global Entry.
55. As an initial matter, DMV possesses no records regarding millions of New York residents eligible to apply for Global Entry. Many New York residents do not drive and have never applied for a driver’s license.
56. As for those New York residents about whom DMV may possess records, upon information and belief many if not most of those records will contain no information that CBP itself would consider relevant to approval for Global Entry that it does not otherwise access through its other vetting processes.
57. Even for those New York residents whose DMV records contain information CBP might consider relevant to approval for Global Entry, that information is of extremely limited
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consequence given that the only information that DMV alone may possess potentially involves certain driving-related offenses.
58. Finally, before the passage of the Green Light Law, CBP may not have consistently accessed DMV records as part of its Global Entry vetting process. The plaintiffs are unaware of any reports or evidence establishing that CBP was using DMV records in this way.
59. Not only does the New York Ban bar millions of New York residents about whom DMV records contain little or no relevant information, it leaves the program open to persons about whom those records may contain considerable relevant information. Specifically, any person who moves out of New York — for instance to adjoining New Jersey, Connecticut, or Pennsylvania — becomes eligible to apply for Global Entry. A fact sheet provided to an applicant turned away from his interview at JFK International Airport on February 9 states, “If there has been a change in residence (outside i.e., [sic] if an applicant moves from the State of New York to a different state) applicants may reapply with their new information.”
60. Under the New York Ban, a U.S. citizen currently residing in New York could become eligible to apply by moving abroad and establishing residence in any foreign in country in the world, regardless of CBP’s ability to obtain intelligence regarding persons residing in the country. Similarly, under the ban, citizens of Argentina or Germany or India are eligible to apply for Global Entry if they reside in their home country, but would lose that eligibility if they moved to New York.
61. Neither DHS nor CBP has ever before singled out residents of just one state to ban them from Global Entry or any other Trusted Traveler Program.
62. Upon information and belief, CBP has not notified individual applicants of their application statuses as a result of the New York Ban.
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63. As of the time of filing of this complaint, DHS has adopted a new force-of-law eligibility requirement — non-residence in New York — that governs the Global Entry program, without having followed the required notice-and-comment rulemaking process. Indeed, New York officials were surprised by the sudden announcement and did not have the opportunity to engage with DHS over its alleged concerns.
64. Addressing the New York Ban, Ken Cuccinelli, the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security, warned other states about passing laws similar to New York: “I know that the state of Washington is looking at a law like New York’s ‘Green Light Law.’” He further threatened, “They should know that their citizens are going to lose the convenience of entering these Trusted Traveler Programs, just as New York’s did.”
65. Mr. Cuccinelli has also threatened New Yorkers’ future participation in the Transportation Security Administration PreCheck program, saying “PreCheck is not currently on the list (of affected programs), but that is all I'll say about that. It doesn't mean it can’t be in the future.”
The Named Plaintiffs’ Attempts to Enroll in Global Entry R. L’Heureux Lewis-McCoy
66. Plaintiff R. L’Heureux Lewis-McCoy is a U.S. citizen who resides in New York, New York. He is an Associate Professor of Sociology of Education at the New York University Steinhardt School of Culture, Education, and Human Development.
67. Mr. Lewis-McCoy wishes to enroll in the Global Entry program to make international travel with his family and young children more convenient. Mr. Lewis-McCoy also
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hopes to teach a study abroad course, so Global Entry would help make his work-related travel smoother.
68. Mr. Lewis-McCoy has a valid, machine-readable U.S. passport and is eligible to apply for Global Entry.
69. Mr. Lewis-McCoy submitted a complete application for Global Entry online on October 21, 2019, and paid the required $100 application fee. His application was vetted and, upon information and belief, during the vetting process (and before the implementation of the Green Light Law), CBP had access the New York DMV information it claims it needs. Mr. Lewis-McCoy received his “conditional approval” to schedule an interview.
70. On November 5, 2019, Mr. Lewis-McCoy completed his in-person interview for his application for Global Entry at an approved enrollment center located on NYU’s campus. During the interview, Mr. Lewis-McCoy answered the agent’s routine questions like his name, date of birth, and the countries where he had travelled recently. The agent scanned a copy of his passport and his New York state driver’s license. She also took his picture and scanned his hand. Before the interview ended, the agent gave Mr. Lewis-McCoy her contact information and said that if he wanted to enroll his family in the program, as well, he could contact her and she would help enroll them.
71. After he learned New York residents would no longer be able to enroll in the Global Entry Program, Mr. Lewis-McCoy signed into his TTP portal account. His pending application no longer appears on his TTP dashboard and, upon information and belief, his application has been cancelled.
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Jamil Dakwar 72. Plaintiff Jamil Dakwar is a U.S. citizen who resides in New York, New York. He is the Director of the American Civil Liberties Union’s Human Rights Program, and an adjunct professor at Hunter College, Bard College, and John Jay College of Criminal Justice. 73. Mr. Dakwar is a frequent international traveler and wishes to enroll in the Global Entry to enjoy the convenience of expedited border processing when he returns to the United States. 74. Mr. Dakwar has a valid, machine-readable U.S. passport and meets is eligible to apply for Global Entry. 75. Mr. Dakwar submitted his Global Entry application online on January 9, 2020, and paid the required $100 application fee. 76. Upon information and belief, Mr. Dakwar’s application has been cancelled.
John Harland Giammatteo 77. Plaintiff John Harland Giammatteo is a U.S. citizen who lives in New York, New York. He is an immigration attorney in New York City. 78. Mr. Giammatteo is a frequent international traveler who wishes to enroll in Global Entry to benefit from expedited processing times at the airport. In addition, he believes that Global Entry membership would result in more predictable travel times, which would allow him to save time and plan his work and personal schedules more efficiently. 79. Mr. Giammatteo has a valid, machine-readable U.S. passport and is eligible to apply for Global Entry. 80. Mr. Giammatteo is now barred from applying for Global Entry.
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CLASS ALLEGATIONS 81. This case is brought as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of all New York State residents whose applications to enroll or re-enroll in Global Entry were pending at the time of the New York Ban or who otherwise intend to enroll or re-enroll in Global Entry. 82. The proposed class is sufficiently numerous that joinder of all members is impracticable. According to federal officials, approximately 80,000 New York State residents had applications to enroll in Global Entry and other TTPs pending when the defendants barred all the state’s residents from the programs, and approximately 175,000 others will be barred from applying to re-enroll in 2020 as their memberships expire. In addition, there are potentially tens or hundreds of thousands of other New York residents who may wish to apply for Global Entry. 83. Common questions of law and fact affect the class members, including without limitation:
a. Whether DMV information that CBP purports to require in determining New Yorkers’ eligibility for Global Entry is otherwise available to the Defendants;
b. Whether the defendants’ proffered reasons for barring New York residents from applying to enroll or re-enroll in Global Entry are pretextual;
c. Whether the defendants’ proffered reasons for barring New York residents from applying to enroll or re-enroll in Global Entry are otherwise arbitrary and capricious;
d. Whether the defendants exceeded their statutory or regulatory authority by barring New York residents from applying to enroll or re-enroll in Global Entry;
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e. Whether the defendants properly observed legal procedure in barring New York residents from applying to enroll or re-enroll in Global Entry; and
f. Whether the violated the equal sovereignty of the states and Tenth Amendment to the Constitution by barring New York residents from applying to enroll or reenroll in Global Entry.
84. The named plaintiffs’ claims are typical of those of the class with respect to the legality of the agency action at issue.
85. The named plaintiffs will fairly and adequately protect the interests of the class. They have suffered injury from the agency action at issue and are ready, willing, and able to serve as class representatives.
86. Proposed class counsel has extensive experience litigating similar matters on a class-wide basis.
87. The New York Ban applies generally to the entire class, so that final injunctive relief and corresponding declaratory relief is appropriate respecting the class.
JURISDICTION AND VENUE 88. The Court has subject-matter jurisdiction over the plaintiffs’ claims under the U.S. Constitution and federal law pursuant to 5 U.S.C. § 702 and 28 U.S.C. §§ 1331. 89. The declaratory and injunctive relief the plaintiffs seek is authorized pursuant to 28 U.S.C. §§ 2201 and 2202.
FIRST CLAIM FOR RELIEF Violations of the Administrative Procedure Act 90. The defendants’ actions as alleged in the Complaint are “arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
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91. The defendants’ actions as alleged in the Complaint are “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).
92. The defendants’ actions as alleged in the Complaint are “in excess of statutory jurisdiction, authority, [and] limitations, [and] short of statutory right.” 5 U.S.C. § 706(2)(C).
93. The defendants’ actions as alleged in the Complaint are “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
SECOND CLAIM FOR RELIEF Violation of the Tenth Amendment to the United States Constitution 94. The defendants’ actions as alleged in the Complaint violate the Tenth Amendment to the United States Constitution.
RELIEF REQUESTED Wherefore, the plaintiffs respectfully requests that the Court:
a. Assume jurisdiction over this matter; b. Declare that the defendants’ actions violate the Administrative Procedure
Act; c. Declare that the defendants’ actions violate the Tenth Amendment to the
United States Constitution; d. Enjoin the defendants to rescind the bar on New York residents’ applying
to enroll or re-enroll in Global Entry; e. Award the plaintiffs reasonable attorney’s fees and costs; and f. Grant any other relief the Court deems just and proper.
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Dated:

February 10, 2020 New York, New York

NEW YORK CIVIL LIBERTIES UNION FOUNDATION
By: /s/ Antony P.F. Gemmell Antony P.F. Gemmell Molly K. Biklen Jessica Perry Jordan Laris Cohen* Christopher T. Dunn 125 Broad Street, 19th Floor New York, New York 10004 212-607-3300 agemmell@nyclu.org jperry@nyclu.org jlariscohen@nyclu.org mbiklen@nyclu.org cdunn@nyclu.org
Counsel for Named Plaintiffs and the Putative Class

* Application for admission to the Southern District of New York forthcoming

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

R. L’HEUREUX LEWIS-MCCOY; S.T., a minor, by and through her next friend, AMANDA HUGHES; PAUL VANDECARR; JAMIL DAKWAR; and JOHN HARLAND GIAMMATTEO; on behalf of themselves and all similarly situated individuals,
Plaintiffs,
v.
CHAD WOLF, in his official capacity as Acting Secretary of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; MARK MORGAN, in his official capacity as Acting Commissioner of United States Customs and Border Protection; and UNITED STATES CUSTOMS AND BORDER PROTECTION,
Defendants.

Case No. 1:20-cv-1142-JMF
FIRST AMENDED CLASS ACTION
COMPLAINT

INTRODUCTION 1. This class-action lawsuit challenges the most recent effort by the Trump Administration to target immigrants and the states that seek to protect them. From the very day of his inauguration, President Trump has imposed a wide range of punitive, discriminatory, and irrational measures on immigrant communities in the United States, as well as on refugees and asylum-seekers fleeing violence and persecution abroad. New York, which is home to millions of immigrants, has been a particular target for President Trump. 2. In his State of the Union address on February 4, 2020, President Trump singled out New York for criticism because of efforts taken in the State to protect immigrant

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communities. One day later, President Trump’s Acting Secretary of Homeland Security, Chad Wolf, announced a blanket ban on New York residents’ eligibility to enroll or re-enroll in various programs that enable vetted and approved travelers entering the United States to expedite the border clearance process. The best known of these programs is Global Entry, a program for which millions of people have been approved, including hundreds of thousands of New Yorkers.
3. The Trump Administration claims this abrupt and unprecedented ban on New Yorkers’ participation in the Global Entry program is necessitated by security concerns raised by New York’s recently enacted Green Light Law. That law, which authorizes the issuance of driver’s licenses regardless of citizenship or immigration status, limits federal immigration officials’ access to state Department of Motor Vehicles records. But the Administration’s claim is specious. In fact, that access would provide no relevant information not otherwise available about many if not most New York residents applying for Global Entry, and any information DMV alone may possess would have little or no bearing on their eligibility for the program.
4. In truth, the Trump Administration’s closing of Global Entry and the other expedited-traveler programs to New Yorkers is little more than an attempt to coerce New York into participating in federal immigration enforcement by forcing State officials into disclosing sensitive data about driver’s license applicants. To accomplish this, the administration has unlawfully banned millions of otherwise-eligible New Yorkers from even applying for Global Entry and the other programs. The ban immediately affects about 80,000 New York residents whose applications were pending when the ban went into effect and another 175,000 whose memberships will expire this year but will be barred from attempting to re-enroll.
5. The Trump Administration’s abrupt and summary termination of Global Entry for New York residents is simply another punitive and irrational measure directed at immigrant
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communities and is one that undermines public safety. It violates the Administrative Procedure Act and the United States Constitution, and the plaintiffs respectfully seek a declaration that the termination is unlawful, an order enjoining it, and attorney’s fees.
PARTIES Named Plaintiffs
6. Plaintiff R. L’Heureux Lewis-McCoy is a resident of New York, New York whose application to Global Entry was pending when the defendants barred all New York residents from the program.
7. Plaintiff S.T., a one-year-old child, is a resident of New York, New York whose application to Global Entry was pending when the defendants barred all New York residents from the program. She appears in this action through her mother, Amanda Hughes.
8. Plaintiff Paul VanDeCarr is a resident of New York, New York with a current Global Entry membership. Mr. VanDeCarr’s application to re-enroll in Global Entry was pending when the defendants barred all New York residents from the program.
9. Plaintiff Jamil Dakwar is a resident of New York, New York whose application to Global Entry was pending when the defendants barred all New York residents from the program.
10. Plaintiff John Harland Giammatteo is a resident of New York, New York who wishes to enroll in Global Entry but cannot because the defendants have barred all New York residents from the program. Defendants
11. Defendant Chad Wolf is the Acting Secretary of the United States Department of Homeland Security. He is sued in his official capacity.
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12. Defendant United States Department of Homeland Security (“DHS”) is a cabinet agency within the executive branch of the United States Government, and is an agency within the meaning of 5 U.S.C. § 551. DHS is the parent agency of United States Customs and Border Protection and United States Immigration and Customs Enforcement (“ICE”).
13. Defendant Mark Morgan is the Acting Commissioner of United States Customs and Border Protection. He is sued in his official capacity.
14. Defendant United States Customs and Border Protection (“CBP”) is a component agency of DHS, and is an agency within the meaning of 5 U.S.C. § 551. It is the lawenforcement agency primarily tasked with border protection. CBP administers various programs, including Global Entry, that provide expedited entry into the United States for program members.
FACTS The Trump Administration’s Retaliation Against Jurisdictions that Do Not Enforce Its AntiImmigrant Agenda
15. Since the beginning of his presidency, President Trump has pursued a cruel antiimmigrant agenda that has sought to vilify and scapegoat immigrants. President Trump has repeatedly made derogatory comments about immigrants, calling undocumented immigrants “animals,” saying, “You wouldn’t believe how bad these people are. These aren’t people, these are animals . . . .”1 He further referred to undocumented immigrants as an “infestation” and compared immigrants and refugees to a “snake” that will “bite[]” those who help it.2
1 Julie Hirschfield Davis, Trump Calls Some Unauthorized Immigrants ‘Animals’ in Rant, N.Y. Times (May 16, 2018), https://www.nytimes.com/2018/05/16/us/politics/trump-undocumented-immigrantsanimals.html. 2 Donald J. Trump (@realDonaldTrump), Twitter (June 19, 2018, 9:52 am), https://twitter.com /realdonaldtrump/status/1009071403918864385; Dan Merica, Trump reads ‘The Snake,’ repurposed as anti-immigrant poem, at CPAC, CNN (Feb. 25, 2018), at https://www.cnn.com/2018/02/23/politics/trump-the-snake-song/index.html.
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16. Just days after the inauguration, the Trump Administration openly targeted states and municipalities that limit their cooperation with immigration authorities in an effort to protect immigrant communities. On January 25, 2017, President Trump issued Executive Order 13768, which unlawfully threatened to deny federal grant funding to all so-called “sanctuary jurisdictions.” The White House confirmed the order’s clear purpose: “We’re going to strip federal grant money from the sanctuary cities and states that harbor illegal immigrants.”
17. In January 2018, President Trump claimed so-called “sanctuary cities” were “the best friends of gangs and cartels.” In March 2018, the Trump Administration sued the State of California to enjoin three state laws that protect immigrants and limit the information that state officials may share with federal immigration enforcement authorities. In April 2018, Trump made derogatory comments about sanctuary cities in California, saying “many Sanctuary areas want OUT of this ridiculous, crime infested & breeding concept.”3
18. Similarly, on April 12, 2019, President Trump confirmed reports that his administration was planning to send undocumented immigrants to “Sanctuary Cities,” tweeting: “Due to the fact that Democrats are unwilling to change our very dangerous immigration laws, we are indeed, as reported, giving strong considerations to placing Illegal Immigrants in Sanctuary Cities only.”4
19. Defendant Wolf has echoed the President’s views. In December 2019 he stated, “[S]anctuary policies do not protect communities, they endanger them,” and referred to such policies as “devastating.” On January 15, 2020, he tweeted, “There has been a complete breakdown of law & order in New York City. NYC proudly passed sanctuary city laws &
3 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 18, 2018, 5:59 am), https://twitter.com /realdonaldtrump/status/986544648477868032?lang=en. 4 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 12, 2019, 12:38 pm), https://twitter.com /realdonaldtrump/status/1116742280919044096?lang=en.
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bragged about it for months. But now they, & more importantly, the citizens of NYC are facing the deadly consequences of the sanctuary policies.”5
20. President Trump has taken particular aim at New York and its support of immigrant communities. At the State of the Union on February 4, 2020, President Trump cited New York specifically and repeated his false claims about sanctuary cities being havens for crime. New York’s Driver’s License Access and Protection Act
21. In stark contrast to the Trump Administration, New York officials have sought to protect immigrant communities from hyper-aggressive and unwarranted enforcement measures, both as a matter of respect and to promote public safety.
22. In June 2019, New York State enacted the Driver’s License Privacy and Protection Act, commonly referred to as the “Green Light Law.” That law, which went into effect on December 14, 2019, authorizes the issuance of standard driver’s licenses regardless of citizenship status.
23. Concerned about the Trump Administration’s attacks on immigrants and its pattern of seeking to coerce states into engaging in federal immigration enforcement, New York State chose to include in its Green Light Law restrictions on access to databases that are maintained by its Department of Motor Vehicles (“DMV”) and that contain certain information about those applying for driver’s licenses. Specifically, absent a judicial warrant, the Green Light Law bars access to DMV-maintained records by “any agency that primarily enforces immigration law,” including CBP and ICE.
5 Acting Secretary Chad Wolf (@DHS_Wolf), Twitter (Jan. 15, 2020, 7:14 pm), https://twitter.com /dhs_wolf/status/1217600924744585216?lang=en.
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The Global Entry Program 24. The federal government operates several programs, referred to generally as
“Trusted Traveler Programs” (“TTPs”), designed to expedite border crossings for vetted and approved travelers. The best known TTP is Global Entry.
25. Global Entry allows expedited border clearance for pre-approved, low-risk travelers arriving to the United States. Upon arrival in the United States at many airports, a program member may proceed to a Global Entry kiosk, present their machine-readable passport or U.S. permanent resident card, place their fingerprints on the scanner for fingerprint verification, and complete a customs declaration. The Global Entry kiosk issues the traveler a transaction receipt and directs the traveler to baggage claim and the exit.
26. The federal government has approved millions of people to participate in Global Entry, including qualifying U.S. citizens, lawful permanent residents, and citizens of 11 other countries with whom CBP has made certain arrangements.6 Membership in Global Entry includes the TSA PreCheck benefit, which expedites traveler screening through domestic airport security checkpoints.
27. DHS established Global Entry and the other Trusted Traveler Programs pursuant to a statute directing the Secretary of DHS to “establish an international registered traveler program” in order to “expedite the screening and processing of international travelers, including United States Citizens and residents, who enter and exit the United States.”
28. In requiring DHS to create the program, Congress found that expediting “the travel of previously screened and known travelers across the borders of the United States should be a high priority” and that the “process of expediting known travelers across the borders of the
6 Those countries are Argentina, Columbia, Germany, India, Mexico, Panama, Singapore, South Korea, Switzerland, and Taiwan.
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United States can permit inspectors to better focus on identifying terrorists attempting to enter the United States.”
29. To that end, Congress provided that DHS “shall ensure that the international registered traveler program includes as many participants as practicable by (i) establishing a reasonable cost of enrollment; (ii) making program enrollment convenient and easily accessible; and (iii) providing applicants with clear and consistent eligibility guidelines.”
30. In June 2008, CBP began operating a pilot Global Entry program, which was successful. According to the agency’s analysis of the pilot program, “The increased volume of traffic to the kiosks by proven low-risk travelers allows CBP officers more time and resources to address higher risk security concerns” and thereby improve overall security.
31. CBP issued a notice of proposed rulemaking to establish Global Entry as permanent program on November 19, 2009 and published a final rule on February 6, 2012. Global Entry has since been available across the country.
32. Consistent with the congressional mandate to maximize participation in the program, the eligibility criteria for applying for the program are broad. Specifically, the program is open to any U.S. citizen, U.S. national, U.S. lawful permanent resident, and “‘nonimmigrant aliens’ from countries that have entered into arrangements with CBP concerning international trusted traveler programs.” Additionally, any applicant under the age of 18 must have the consent of a parent or legal guardian. All applicants must have a valid “machine-readable passport, a valid machine-readable U.S. Lawful Permanent Resident Card (Form I-155), or other appropriate travel document as determined by CBP.”
33. Global Entry’s criteria do not require applicants to have a driver’s license, a driving record, or even residence in the United States.
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34. Under these criteria, upon information and belief, millions of New York residents are eligible to apply for Global Entry.
35. When applying for Global Entry, applicants must provide extensive personal information, including name, date of birth, city of birth, country of birth, state of birth, e-mail address, phone number, gender, eye color, height, and prior names used. The applicant must also provide information indicating proof of citizenship and proof that the applicant may enter the country, like a passport or lawful permanent resident card.
36. A non-refundable fee of $100 is required with each completed application to submit the application.
37. Once they have submitted their applications, applicants undergo a multi-prong screening process. As part of that process, CBP routes the applications to a vetting center where biographic information provided in their applications is queried against 21 data systems, including:
a. UPAX, a consolidated database that includes information to help identify “potential terrorists, transnational criminals, and other persons who pose a higher risk of violating U.S. law”;
b. TECS, data repository that supports “law enforcement ‘lookouts,’ border screening, and reporting for CBP’s primary and secondary inspection processes”;
c. IDENT, which stores and processes biometric data “to establish and verify identities,” including biometric information from INTERPOL;
d. The FBI’s National Crime Information Center’s Interstate Identification Index, an automated database that integrates criminal history records from federal, state, local, tribal, and certain foreign criminal justice agencies; and
e. TSDB, a consolidated database maintained by FBI’s Terrorist Screening Center that “provides information about those known or reasonably suspected of being involved in terrorist activity.”
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38. CBP also claims that prior to the Green Light Law, it accessed information from New York’s DMV records as part of the Global Entry vetting process related to aspects of an individual’s criminal history. It is unclear, however, that New York’s DMV data related to possible criminal offenses is not available elsewhere. Moreover, upon information and belief, the only information that is potentially uniquely in DMV records relates to an individual’s New York driving record — if they even have one — including non-felony arrests for driving while under the influence of drugs or alcohol.
39. After the vetting process, if CBP conditionally approves the application, the applicant is notified to schedule an interview at an approved Global Entry Enrollment Center or certain international airports upon arrival in the United States.
40. On the date of the scheduled interview, the applicant is required to bring their application documents and one other form of identification, like a government-issued identification card. At the interview, CBP conducts a personal interview, obtains biometric information (including a set of fingerprints and a digital photograph), and addresses any additional eligibility questions.
41. Once an application is approved, the new member receives a Global Entry card. Membership in the Global Entry program lasts for a period of 5 years so long as the application is not suspended or terminated by CBP.
42. Global Entry program members may renew their enrollment beginning one year prior to the expiration of the five-year membership. If the member submits a renewal application before their prior Global Entry membership expires, that applicant is allowed to use their Global Entry card for up to six months after the membership application date regardless of whether the card expires, in case the renewal does not get processed prior to expiration.
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43. A participant in Global Entry “may be suspended or removed from the program” for reasons including that they no longer meet the program eligibility criteria, or that CBP “determines that such action is otherwise necessary.” The regulations further provide that “[i]f an applicant is denied participation in Global Entry, CBP will notify the applicant of the denial, and the reasons for the denial. CBP will also provide instructions regarding how to proceed if the applicant wishes to seek additional information as to the reason for the denial.”
44. The background-check requirements that CBP imposes on Global Entry applicants who are foreign nationals living outside the U.S. vary by country. For example, applicants who are resident in Taiwan must “obtain a Police Criminal Record Certificate from their local Taiwan Police Department,” but there is no such requirement on applicants living in Panama.
45. Upon information and belief, CBP has approved Global Entry applications from non-residents — including both U.S. and non-U.S. citizens — residing in jurisdictions that do not share with the defendants the particular information that they now purport CBP requires to determine the Global Entry eligibility of New York residents.
DHS Bans All New York Residents from Global Entry and Other TTPs. 46. In his State of the Union address on February 4, 2020, President Trump singled
out New York for criticism because of efforts in the state to protect immigrants. The following day defendant Wolf announced on Fox News’s Tucker Carlson Tonight that he had sent a letter to New York officials immediately suspending enrollment and re-enrollment in Global Entry and other TTPs for all New York State residents.
47. Defendant Wolf’s February 5 letter announced an unprecedented change to the eligibility requirements for Global Entry and other TTPs: “New York residents will no longer be
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eligible to enroll or re-enroll in CBP’s Trusted Traveler Programs,” including Global Entry (the “New York Ban”).
48. In announcing the New York Ban, defendant Wolf claimed that banning New York’s nearly 20 million residents from applying for Global Entry was necessitated by the provision of the New York’s Green Light Law that bars immigration officials from accessing the state’s DMV records. In support of this sweeping action, however, the letter offers only one rationale: “The [Green Light Law] prevents DHS from accessing relevant information that only New York DMV maintains, including some aspects of an individual’s criminal history.” The letter does not identify the specific information it refers to and offers little explanation as to how losing access to that information affects the Global Entry vetting process.
49. Notably, this rationale does not apply to over 3.5 million New York residents for whom DMV maintains no records but who may otherwise be eligible to apply for Global Entry.
50. Most of defendant Wolf’s letter makes clear that DHS’s termination of Global Entry for New York residents is an attempt to force New York officials to cooperate in federal immigration enforcement by making DMV records available to ICE. While spending little time explaining any actual impact on Global Entry, defendant Wolf’s letter devotes substantial space to claiming that losing access to DMV records has impaired law-enforcement activities by ICE.
51. On February 6, 2020, CBP issued a press release entitled “New York Residents No Longer Eligible to Apply for or Renew Trusted Traveler Programs.” The release states:
Effective immediately, . . . . New York residents will no longer be eligible to apply for or renew membership in CBP Trusted Traveler Programs and CBP will cancel all pending Trusted Traveler Program applications submitted by residents of New York. Refunds will be processed automatically.
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Case 1:20-cv-01142-JMF Document 24 Filed 04/01/20 Page 13 of 25 52. At the time of the filing of this complaint, notifications on CBP’s website, including on the webpage for Global Entry, confirm that New York residents are ineligible for Global Entry:
53. New York State residents who attempt to enroll in the Global Entry program online now receive an error message and cannot complete their applications:
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54. Similarly, a fact sheet provided by the Government to Mr. VanDeCarr turned away from his interview at JFK International Airport on February 9 states clearly that CBP has cancelled all applications for residents of New York: “Conditionally approved TTP applicants pending an enrollment interview and TTP applications pending risk assessment will be cancelled and issued a fee reimbursement.”
55. Upon information and belief, the New York Ban affects approximately 255,000 New York State residents. Over 80,000 residents — like named plaintiffs Lewis-McCoy, S.T., VanDeCarr, and Dakwar — had pending applications for enrollment or reenrollment in Global Entry and other TTPs when the New York Ban went into effect. And by the end of 2020, approximately 175,000 New Yorkers who have been vetted and approved will be removed from TTPs, including Global Entry, because they now are barred from re-enrolling. Beyond those whose current enrollment or pending applications are immediately affected, the New York Ban bars millions of other New York residents — like named plaintiff Giammatteo — who might want to apply for the first time from doing so.
56. Upon information and belief, the curtailing of CBP access to New York’s DMV records has little if any effect on the agency’s ability to assess applicants for Global Entry.
57. As an initial matter, DMV possesses no records regarding millions of New York residents eligible to apply for Global Entry. Many New York residents do not drive and have never applied for a driver’s license.
58. As for those New York residents about whom DMV may possess records, upon information and belief many if not most of those records will contain no information that CBP itself would consider relevant to approval for Global Entry that it does not otherwise access through its other vetting processes.
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59. Even for those New York residents whose DMV records contain information CBP might consider relevant to approval for Global Entry, that information is of extremely limited consequence given that the only information that DMV alone may possess potentially involves certain driving-related offenses.
60. Finally, before the passage of the Green Light Law, CBP may not have consistently accessed DMV records as part of its Global Entry vetting process. The plaintiffs are unaware of any reports or evidence establishing that CBP was using DMV records in this way.
61. Not only does the New York Ban bar millions of New York residents about whom DMV records contain little or no relevant information, it leaves the program open to persons about whom those records may contain considerable relevant information. Specifically, any person who moves out of New York — for instance to adjoining New Jersey, Connecticut, or Pennsylvania — becomes eligible to apply for Global Entry. A fact sheet provided to an applicant turned away from his interview at JFK International Airport on February 9 states, “If there has been a change in residence (outside i.e., [sic] if an applicant moves from the State of New York to a different state) applicants may reapply with their new information.”
62. Under the New York Ban, a U.S. citizen currently residing in New York could become eligible to apply by moving abroad and establishing residence in any foreign in country in the world, regardless of CBP’s ability to obtain intelligence regarding persons residing in the country. Similarly, under the ban, citizens of Argentina or Germany or India are eligible to apply for Global Entry if they reside in their home country, but would lose that eligibility if they moved to New York.
63. Neither DHS nor CBP has ever before singled out residents of just one state to ban them from Global Entry or any other Trusted Traveler Program.
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64. As of the time of filing of this complaint, DHS has adopted a new force-of-law eligibility requirement for the Global Entry program — non-residence in New York — without having followed the required notice-and-comment rulemaking process. Indeed, New York officials were surprised by the sudden announcement and did not have the opportunity to engage with DHS over its alleged concerns.
65. Addressing the New York Ban, Ken Cuccinelli, the Senior Official Performing the Duties of the Deputy Secretary, warned other states about passing laws similar to New York: “I know that the state of Washington is looking at a law like New York’s ‘Green Light Law.’” He further threatened, “They should know that their citizens are going to lose the convenience of entering these Trusted Traveler Programs, just as New York’s did.”
66. Mr. Cuccinelli has also threatened New Yorkers’ future participation in the Transportation Security Administration PreCheck program, saying “PreCheck is not currently on the list (of affected programs), but that is all I'll say about that. It doesn't mean it can’t be in the future.” The Defendants Prevent the Named Plaintiffs from Enrolling or Reenrolling in Global Entry
R. L’Heureux Lewis-McCoy 67. Plaintiff R. L’Heureux Lewis-McCoy is a U.S. citizen who resides in New York, New York. He is an Associate Professor of Sociology of Education at the New York University Steinhardt School of Culture, Education, and Human Development. 68. Mr. Lewis-McCoy wishes to enroll in the Global Entry program to make international travel with his family and young children more convenient. Mr. Lewis-McCoy also hopes to teach a study abroad course, so Global Entry would help make his work-related travel smoother.
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69. Mr. Lewis-McCoy has a valid, machine-readable U.S. passport and is eligible to apply for Global Entry.
70. Mr. Lewis-McCoy submitted a complete application for Global Entry online on October 21, 2019, and paid the required $100 application fee. His application was vetted and, upon information and belief, during the vetting process (and before the implementation of the Green Light Law), CBP had access to the New York DMV information it claims it needs. Mr. Lewis-McCoy received his “conditional approval” to schedule an interview.
71. On November 5, 2019, Mr. Lewis-McCoy completed his in-person interview for his application for Global Entry at an approved enrollment center located on NYU’s campus. During the interview, Mr. Lewis-McCoy answered the agent’s routine questions like his name, date of birth, and the countries where he had travelled recently. The agent scanned a copy of his passport and his New York state driver’s license. She also took his picture and scanned his hand. Before the interview ended, the agent gave Mr. Lewis-McCoy her contact information and said that if he wanted to enroll his family in the program, as well, he could contact her and she would help enroll them.
72. After he learned New York residents would no longer be able to enroll in the Global Entry Program, Mr. Lewis-McCoy signed into his TTP portal account. His pending application no longer appears on his TTP dashboard.
73. On February 19, 2020, CBP emailed Mr. Lewis-McCoy to confirm that his Global Entry application had been cancelled. The email stated, “You do not meet the program eligibility requirements because you have listed the State of New York as your current residence.” The email also stated, “CBP is unable to verify certain information connected to your application.”
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74. On March 3, 2020, Mr. Lewis-McCoy received a refund of his $100 Global Entry application fee.
S.T., a minor, by and through her next friend, Amanda Hughes 75. Plaintiff S.T. is a one-year-old child. She is a U.S. citizen who resides in New York, New York with her parents, who recently renewed their Global Entry memberships. 76. S.T.’s parents wish to enroll her in the Global Entry program because when they travel internationally as a family, they cannot use their memberships unless S.T. joins the program. Enrolling S.T. in the Global Entry program will make international travel with an infant less stressful and more convenient for the family. 77. S.T.’s parents consented to S.T.’s participation in the Global Entry program. S.T. has a valid, machine-readable U.S. passport and is eligible to apply to Global Entry. S.T. does not have a New York State driver’s license or a New York State non-driver identification card. 78. On November 12, 2019, S.T.’s mother, Amanda Hughes, submitted a Global Entry application on behalf of S.T. and paid the required $100 application fee. 79. On November 19, 2019, CBP notified Ms. Hughes that S.T.’s Global Entry application had received “conditional approval.” 80. S.T.’s interview was scheduled for February 6, 2020, at the U.S. Customs House in lower Manhattan. 81. S.T.’s parents accompanied S.T. to her interview on February 6. While all three were waiting for S.T.’s interview, a CBP representative appeared in the downstairs waiting room and asked to see all applicants’ state identification cards. Since S.T. does not have a state identification card, the representative asked if S.T. was a New York resident. Ms. Hughes replied that she was. The CBP representative said that the U.S. Customs House received a call that
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morning and were told to cancel all applications for New York residents. The CBP representative then told all of the applicants that interviews for New York residents were cancelled.
82. On February 19, CBP emailed Ms. Hughes to confirm that S.T.’s Global Entry application had been cancelled. The email stated, “You do not meet the program eligibility requirements because you have listed the State of New York as your current residence.” The email also stated, “CBP is unable to verify certain information connected to your application.”
83. On March 3, 2020, Ms. Hughes received a refund of S.T.’s $100 Global Entry application fee.
Paul VanDeCarr 84. Paul VanDeCarr is a U.S. Citizen who resides in New York, New York. He is a freelance writer and often travels internationally for work. 85. Mr. VanDeCarr is currently a member of the Global Entry program. His membership will not expire until July 14, 2020. Mr. VanDeCarr first applied for Global Entry in or around 2015 to make his international travel for work more convenient. 86. Mr. VanDeCarr has a valid, machine-readable U.S. passport and is eligible to apply to renew his Global Entry membership. 87. On or around January 29, 2020, Mr. VanDeCarr submitted a complete renewal application via the online TTP portal and paid the required $100 application fee. 88. On February 5, 2020, CBP “conditionally approved” Mr. VanDeCarr’s renewal application. 89. That same day, Mr. VanDeCarr scheduled an interview for his Global Entry application to take place at John F. Kennedy International Airport (“JFK”) on February 9, 2020.
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90. On February 9, 2020, Mr. VanDeCarr traveled to JFK for his scheduled interview. At JFK, a CBP agent told Mr. VanDeCarr that his application had been “cancelled” because he was a New York resident and gave him a document entitled “Trusted Traveler Program Fact Sheet.” The document explained that CBP had “cancelled” Mr. VanDeCarr’s Global Entry application because CBP could “no longer validate that a New York resident applying for TTP membership qualifies for low-risk status or meets other program requirements.” The document also informed Mr. VanDeCarr he would receive a refund of his $100 application fee.
91. On February 18, 2020, CBP emailed Mr. VanDeCarr to confirm that his Global Entry application had been cancelled. The email stated, “You do not meet the program eligibility requirements because you have listed the State of New York as your current residence.” The email also stated, “CBP is unable to verify certain information connected to your application.”
92. On March 16, 2020, Mr. VanDeCarr received a refund of his $100 Global Entry renewal application fee.
Jamil Dakwar 93. Plaintiff Jamil Dakwar is a U.S. citizen who resides in New York, New York. He is the Director of the American Civil Liberties Union’s Human Rights Program, and an adjunct professor at Hunter College, Bard College, and John Jay College of Criminal Justice. 94. Mr. Dakwar is a frequent international traveler and wishes to enroll in the Global Entry to enjoy the convenience of expedited border processing when he returns to the United States. 95. Mr. Dakwar has a valid, machine-readable U.S. passport and is eligible to apply for Global Entry.
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96. Mr. Dakwar submitted his Global Entry application online on January 9, 2020, and paid the required $100 application fee.
97. On February 18, 2020, CBP emailed Mr. Dakwar to confirm that his Global Entry application had been cancelled. The email stated, “You do not meet the program eligibility requirements because you have listed the State of New York as your current residence.” The email also stated, “CBP is unable to verify certain information connected to your application.”
98. On March 3, 2020, Mr. Dakwar received a refund of his $100 Global Entry renewal application fee.
John Harland Giammatteo 99. Plaintiff John Harland Giammatteo is a U.S. citizen who lives in New York, New York. He is an immigration attorney in New York City. 100. Mr. Giammatteo is a frequent international traveler who wishes to enroll in Global Entry to benefit from expedited processing times at the airport. In addition, he believes that Global Entry membership would result in more predictable travel times, which would allow him to save time and plan his work and personal schedules more efficiently. 101. Mr. Giammatteo has a valid, machine-readable U.S. passport and is eligible to apply for Global Entry. 102. Mr. Giammatteo is now barred from applying for Global Entry.
CLASS ALLEGATIONS 103. This case is brought as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of all New York State residents whose applications to
21

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enroll or re-enroll in Global Entry were pending at the time of the New York Ban or who otherwise intend to enroll or re-enroll in Global Entry.
104. The proposed class is sufficiently numerous that joinder of all members is impracticable. According to federal officials, approximately 80,000 New York State residents had applications to enroll in Global Entry and other TTPs pending when the defendants barred all the state’s residents from the programs, and approximately 175,000 others will be barred from applying to re-enroll in 2020 as their memberships expire. In addition, there are potentially tens or hundreds of thousands of other New York residents who may wish to apply for Global Entry.
105. Common questions of law and fact affect the class members, including without limitation:
a. Whether DMV information that CBP purports to require in determining New Yorkers’ eligibility for Global Entry is otherwise available to the Defendants;
b. Whether the defendants’ proffered reasons for barring New York residents from applying to enroll or re-enroll in Global Entry are pretextual;
c. Whether the defendants’ proffered reasons for barring New York residents from applying to enroll or re-enroll in Global Entry are otherwise arbitrary and capricious;
d. Whether the defendants exceeded their statutory or regulatory authority by barring New York residents from applying to enroll or re-enroll in Global Entry;
e. Whether the defendants properly observed legal procedure in barring New York residents from applying to enroll or re-enroll in Global Entry; and
22

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f. Whether the violated the equal sovereignty of the states and Tenth Amendment to the Constitution by barring New York residents from applying to enroll or reenroll in Global Entry.
106. The named plaintiffs’ claims are typical of those of the class with respect to the legality of the agency action at issue.
107. The named plaintiffs will fairly and adequately protect the interests of the class. They have suffered injury from the agency action at issue and are ready, willing, and able to serve as class representatives.
108. Proposed class counsel has extensive experience litigating similar matters on a class-wide basis.
109. The New York Ban applies generally to the entire class, so that final injunctive relief and corresponding declaratory relief is appropriate respecting the class.
JURISDICTION AND VENUE 110. The Court has subject-matter jurisdiction over the plaintiffs’ claims under the U.S. Constitution and federal law pursuant to 5 U.S.C. § 702 and 28 U.S.C. § 1331. 111. The declaratory and injunctive relief the plaintiffs seek is authorized pursuant to 28 U.S.C. §§ 2201 and 2202.
FIRST CLAIM FOR RELIEF Violations of the Administrative Procedure Act 112. The defendants’ actions as alleged in the Complaint are “arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
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113. The defendants’ actions as alleged in the Complaint are “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).
114. The defendants’ actions as alleged in the Complaint are “in excess of statutory jurisdiction, authority, [and] limitations, [and] short of statutory right.” 5 U.S.C. § 706(2)(C).
115. The defendants’ actions as alleged in the Complaint are “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
SECOND CLAIM FOR RELIEF Violation of the Tenth Amendment to the United States Constitution 116. The defendants’ actions as alleged in the Complaint violate the Tenth Amendment to the United States Constitution.
RELIEF REQUESTED Wherefore, the plaintiffs respectfully request that the Court:
a. Assume jurisdiction over this matter; b. Declare that the defendants’ actions violate the Administrative Procedure
Act; c. Declare that the defendants’ actions violate the Tenth Amendment to the
United States Constitution; d. Enjoin the defendants to rescind the bar on New York residents’ applying
to enroll or re-enroll in Global Entry; e. Award the plaintiffs reasonable attorney’s fees and costs; and f. Grant any other relief the Court deems just and proper.
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Dated:

April 1, 2020 New York, New York

* Application for admission to the Southern District of New York forthcoming

NEW YORK CIVIL LIBERTIES UNION FOUNDATION
By: /s/ Antony P.F. Gemmell Antony P.F. Gemmell Molly K. Biklen Jessica Perry Jordan Laris Cohen* Christopher T. Dunn 125 Broad Street, 19th Floor New York, New York 10004 212-607-3300 agemmell@nyclu.org mbiklen@nyclu.org jperry@nyclu.org jlariscohen@nyclu.org cdunn@nyclu.org
Counsel for Named Plaintiffs and the Putative Class

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 Case 1:20-cv-01142-JMF Document 38 Filed 04/17/20 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

R. L’HEUREUX LEWIS-MCCOY; S.T., a minor, by and through her next friend, AMANDA HUGHES; PAUL VANDECARR; JAMIL DAKWAR; and JOHN HARLAND GIAMMATTEO; on behalf of themselves and all similarly situated individuals,
Plaintiffs,
v.
CHAD WOLF, in his official capacity as Acting Secretary of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; MARK MORGAN, in his official capacity as Acting Commissioner of United States Customs and Border Protection; and UNITED STATES CUSTOMS AND BORDER PROTECTION,
Defendants.

Case No. 1:20-cv-1142-JMF

[PROPOSED] STIPULATED ORDER CERTIFYING CLASS Plaintiffs’ Unopposed Motion for Class Certification in this action was filed on April 15, 2020. Plaintiffs sought, and Defendants agreed by stipulation to, certification of the Plaintiffs’ proposed class, appointment of Plaintiffs’ counsel as counsel for the class, and appointment of the named Plaintiffs as class representatives. Having reviewed the Plaintiffs’ Motion for Class Certification, the Memorandum of Law in Support of their Motion for Class Certification, the Declaration of Antony Gemmell, the Declaration of R. L’Heureux Lewis-McCoy, the Declaration of Amanda Hughes, the Declaration of Plaintiff Paul VanDeCarr, the Declaration of Plaintiff Jamil Dakwar, the Declaration of John

Case 1:20-cv-01142-JMF Document 38 Filed 04/17/20 Page 2 of 2

Harland Giammatteo, and the concurrently filed stipulation of the parties, and GOOD CAUSE APPEARING, THE COURT HEREBY ORDERS THAT:
1. The Plaintiffs’ Motion for Class Certification is GRANTED. The Court certifies a Class defined as “All New York State residents whose applications to enroll or re-enroll in Global Entry were pending at the time Acting Secretary of Homeland Security Chad Wolf issued his decision to prohibit the enrollment or re-enrollment of New York residents in U.S. Customs and Border Protection’s Trusted Traveler Programs or who otherwise intend to enroll or re-enroll in Global Entry.” The Court finds Plaintiffs have satisfied the elements of Federal Rule Civil Procedure Rule 23(a) and Rule 23(b)(2), including establishing numerosity, commonality, typicality, adequacy, and Rule 23(b)(2) status. To the extent ascertainability is required for Rule 23(b)(2) class actions, the Court also finds the class is ascertainable.
2. The Plaintiffs’ request that the New York Civil Liberties Union Foundation (the “NYCLU”) be appointed Class Counsel is GRANTED. The Court finds the NYCLU satisfies the requirements of Federal Rule of Civil Procedure 23(g)(1)(A).
3. The Plaintiffs’ request that the named Plaintiffs be appointed Class representatives is GRANTED. The Court finds that named Plaintiffs R. L’Heureux Lewis-McCoy, S.T., by and through her next friend, Amanda Hughes, Paul VanDeCarr, Jamil Dakwar, and John Harland Giammatteo will fairly and adequately represent the interests of the Class.

IT IS SO ORDERED.
Dated: ____A_p_r_il_1_7______, 2020 New York, New York
The Clerk of Court is directed to terminate ECF No. 34.

____________________________________ Honorable Jesse M. Furman United States District Judge

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 Case 1:20-cv-01142-JMF Document 68 Filed 06/10/20 Page 1 of 12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------------- X

:

STATE OF NEW YORK,

:

:

Plaintiff,

:

:

-v-

:

:

CHAD F. WOLF, in his official capacity as Acting

:

Secretary of Homeland Security, et al.,

:

:

Defendants.

:

:

---------------------------------------------------------------------- X

:

R. L’HEUREUX LEWIS-MCCOY et al., on behalf of :

themselves and all similarly situated individuals,

:

:

Plaintiffs,

:

:

-v-

:

:

CHAD WOLF, in his official capacity as Acting

:

Secretary of Homeland Security, et al.,

:

:

Defendants.

:

:

---------------------------------------------------------------------- X

20-CV-1127 (JMF)
20-CV-1142 (JMF) OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

Plaintiffs in these cases challenge a decision by the Acting Secretary of Homeland

Security to prohibit New York residents from enrolling or re-enrolling in the Trusted Traveler

Programs (“TTP”), including the Global Entry Program, in part on the ground that the decision

violates the Administrative Procedure Act (“APA”). See 20-CV-1127, ECF No. 1, ¶¶ 28, 51,

114-134; 20-CV-1142, ECF No. 1, ¶¶ 2, 90-93.1 On May 22, 2020, Defendants produced a

1

Unless otherwise noted, all ECF citations are to Docket No. 20-CV-1127.

Case 1:20-cv-01142-JMF Document 68 Filed 06/10/20 Page 2 of 12
revised Administrative Record (“AR”), ECF No. 54-1, as well as an updated privilege log noting several redactions in the AR and 170 documents that Defendants withheld from the AR in full on the basis of the deliberative-process privilege, the law-enforcement privilege, the attorney-client privilege, or the attorney work-product doctrine, ECF No. 55-1. Plaintiffs now move to compel Defendants to produce all documents withheld or redacted on these grounds. See ECF No. 50. For the reasons that follow, the Court largely sustains Defendants’ privilege invocations, but orders disclosure of a few withheld or redacted documents.
APPLICABLE LEGAL PRINCIPLES A. The Deliberative-Process Privilege
Defendants assert that most of the documents at issue are protected under the deliberative-process privilege (“DPP”). The DPP is a “sub-species” of the work-product doctrine designed to protect the “process by which governmental decisions and policies are formulated.” Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (internal quotation marks omitted). It does so by “preserving and encouraging candid discussion between officials.” Nat’l Council of La Raza v. Dep’t of Justice, 411 F.3d 350, 356 (2d Cir. 2005). The DPP allows Defendants to withhold “an inter- or intra-agency document . . . if it is: (1) predecisional, i.e., prepared in order to assist an agency decisionmaker in arriving at his decision, and (2) deliberative, i.e., actually related to the process by which policies are formulated.” Id. (alterations and internal quotation marks omitted). The DPP typically protects “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Dipace v. Goord, 218 F.R.D. 399, 403 (S.D.N.Y. 2003) (quoting Grand Cent. P’Ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999)). Notably, however, the DPP is only a “qualified” privilege and,
2

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thus, must be balanced “against the need of the particular litigant for access to the privileged information.” MacNamara v. City of New York, 249 F.R.D. 70, 79 (S.D.N.Y. 2008) (internal quotation marks and emphasis omitted).
Plaintiffs contend that the “deliberative process privilege does not apply at all where, as here, ‘the party’s cause of action is directed at the government’s intent in rendering its policy decision.’” ECF No. 50, at 3 (quoting Children First Found. v. Martinez, No. 04-CV-0927 (NPM/RFT), 2007 WL 4344915, at *7 (N.D.N.Y. Dec. 10, 2007)). Separate and apart from the fact that such a rule would make it too easy to obtain otherwise privileged materials, Children First Foundation was not an APA case: It concerned claims under 42 U.S.C. § 1983 for viewpoint discrimination. Id. at *2.2 The court relied on a case from the D.C. Circuit indicating that, in discrimination cases, the DPP may not apply at all. Id. at *7 (citing In re Subpoena Duces Tecum Served on the Off. of the Comptroller of Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998) (“[I]t seems rather obvious to us that the privilege has no place in a Title VII action or in a constitutional claim for discrimination.”)). But the same is not true in APA cases, which ordinarily do not concern the agency decision-maker’s subjective intent. See In re Subpoena Duces Tecum Served on the Off. of the Comptroller of Currency, 156 F.3d 1279, 1279-80 (D.C. Cir. 1998). The relevance of evidence of the agency’s intent, if any, may be considered as part of the balancing test for determining whether the privilege, although applicable, is overcome by the need for disclosure. See In re Delphi Corp., 276 F.R.D. 81, 85 (S.D.N.Y. 2011). But the Court is not persuaded by Plaintiffs’ assertion of a categorical rule.

2

To be sure, this is not solely an APA case either, as Plaintiffs also bring constitutional

claims. But their constitutional claims are the subject of a pending motion to dismiss. See ECF

No. 29. The Court will address whether and to what extent Plaintiffs are entitled to discovery

with respect to their constitutional claims if or when that motion is denied.

3

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B. The Law-Enforcement Privilege Defendants also assert that several documents are protected under the law-enforcement
privilege (“LEP”). The LEP protects “information pertaining to law enforcement techniques and procedures, information that would undermine the confidentiality of sources, information that would endanger witnesses and law enforcement personnel or the privacy of individuals involved in an investigation, and information that would otherwise interfere with an investigation.” In re City of New York, 607 F.3d 923, 944 (2d Cir. 2010) (internal quotation marks, alterations, and ellipsis omitted). Like the DPP, the privilege is “qualified, not absolute,” and thus subject to a balancing test. Id. at 945. Significantly, however, the presumption against lifting the privilege is “pretty strong.” Goodloe v. City of New York, 136 F. Supp. 3d 283, 294 (E.D.N.Y. 2015) (quoting In re City of New York, 607 F.3d at 945). C. The Attorney-Client Privilege and Work-Product Doctrine
Finally, Defendants assert that several documents are protected by the attorney-client privilege (“ACP”) and work-product doctrine. “In civil suits between private litigants and government agencies, the attorney-client privilege protects most confidential communications between government counsel and their clients that are made for the purpose of obtaining or providing legal assistance.” In re Cty. of Erie, 473 F.3d 413, 418 (2d Cir. 2007). A party invoking the attorney-client privilege must show “(1) a communication between client and counsel that (2) was intended to be and was in fact kept confidential, and (3) was made for the purpose of obtaining or providing legal advice.” Id. at 419. The work-product doctrine protects “attorneys’ mental impressions, opinions or legal theories concerning specific litigation.” Wultz v. Bank of China Ltd., 61 F. Supp. 3d 272, 283 (S.D.N.Y. 2013) (internal quotation marks omitted). The latter is qualified, while the attorney-client privilege is absolute. Id.
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DISCUSSION
The Court has reviewed the documents at issue in camera. Applying the standards set
forth above, the Court concludes that the following documents were properly withheld and that,
to the extent an applicable privilege is only qualified, Plaintiffs’ need for the documents does not
outweigh the relevant privilege:
 Document Nos. PRIV_046, PRIV_048 to PRIV_052, PRIV_060 to PRIV_066, PRIV_072 to PRIV_073, PRIV_075 to PRIV_080, PRIV_082 to PRIV_084, PRIV_086 to PRIV_108, PRIV_112 to PRIV_165, and PRIV_167 to PRIV_170, which are draft documents and internal agency communications about various drafts and revisions, were properly withheld on the basis of the DPP. See Nat’l Res. Def. Council v. U.S. EPA, No. 17-CV-5928 (JMF), 2019 WL 4142725, at *7 (S.D.N.Y. Aug. 30, 2019).3
 AR page numbers DHSGLL007 to DHSGLL008, and DHSGLL011 to DHSGLL014, and Document Nos. PRIV_004 to PRIV_005, PRIV_014, PRIV_016 to PRIV_021, PRIV_024 to PRIV_028, PRIV_030, PRIV_036 to PRIV_045, PRIV_054 to PRIV_057, and PRIV_109 to PRIV_111, which constitute “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer,” were properly withheld or redacted on the basis of the DPP. See Dipace, 218 F.R.D. at 403 (internal quotation marks omitted).
 AR page numbers DHSGLL050, and DHSGLL062 to DHSGLL064 were properly redacted on the basis of the LEP. See United States Longueuil, 567 F. App’x 13, 16 (2d Cir. 2014) (summary order) (stating that the LEP was “designed to prevent disclosure of law enforcement techniques and procedures . . . [and] to safeguard the privacy of individuals involved in an investigation” (quoting In re Dep’t. of Investigation, 856 F.2d 481, 484 (2d Cir. 1988) (internal quotation marks omitted)).
 Document Nos. PRIV_002 to PRIV_003, PRIV_006, PRIV_010 to PRIV_013, PRIV_015, PRIV_023, PRIV_029, PRIV_033 to PRIV_035, PRIV_058 to PRIV_059, PRIV_067 to PRIV_071, PRIV_074, and PRIV_085 were properly withheld on the basis of the ACP.
Next, the Court has identified several sets of documents that were improperly withheld or
redacted. First, Defendants improperly withheld Document Nos. PRIV_007 and PRIV_166 and

3

Document No. PRIV_047, a Memorandum of Agreement, was improperly withheld on

the basis of the DPP, but it is already in the AR (at DHSGLL042 to DHSGLL047A), and thus

need not be produced again.

5

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improperly redacted a portion of AR page number DHSGLL017 under the DPP because they involve purely factual material. It is well established that the DPP “does not extend to purely factual material.” See Nat’l Day Laborer Org. Network v. U.S. Immigration & Customs Enf’t Agency, 811 F. Supp. 2d 713, 736, 757-58 (S.D.N.Y. 2011) (finding that a “briefing paper” was not protected because it “consists of factual reporting, rather than an agency’s interpretation of the facts”); see also Citizens Union of City of N.Y. v. Attorney Gen. of N.Y., 269 F. Supp. 3d 124, 161-62 (S.D.N.Y. 2017) (noting that “research conducted for use in drafting” may not be protected under the DPP, which, unlike the legislative privilege, does not extend to purely factual material). Moreover, disclosure would not “reveal an agency’s or official’s mode of formulating or exercising policy-implicating judgment.” See Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992). Nor does Document No. PRIV_0166 qualify for the LEP, as Defendants fail to carry their burden of establishing that the statistics and general factual information it contains would jeopardize law enforcement sources, witnesses, personnel, or investigations, or would otherwise implicate information the LEP was designed to protect. Accordingly, Document Nos. PRIV_007 and PRIV_166 must be produced in full.
For the same reasons, portions of Document Nos. PRIV_008, PRIV_022, and PRIV_031 must be produced. Although some portions of these documents were properly withheld pursuant to the DPP, they contain purely factual information that can be produced. Specifically, for Document No. PRIV_008, Defendants may redact the fourth, fifth, and sixth bullet points under the “Background” section. For Document No. PRIV_022, Defendants may redact everything except for the top email concerning the number of New York State titled vehicles exported in 2019. For Document No. PRIV_031, Defendants may redact the portion of the top email following “while others are city or county-level.” The unredacted portion of PRIV_031 does not
6

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qualify for the LEP, as it merely discusses in general terms the level of access that the Department of Homeland Security (“DHS”) has to various state databases. Accordingly, subject to these redactions, Defendants must produce these documents.
Next, the Court turns to a set of documents to which the DPP applies, but for which the balance of competing considerations is close. These are the redactions on AR page numbers DHSGLL039 (beginning below “Options for addressing laws . . .”) to DHSGLL041, and Document Nos. PRIV_001, PRIV_009, PRIV_053, and PRIV_081. For each, the Court must determine “whether the public interest in disclosing the document is outweighed by the government’s interest in preventing disclosure,” considering factors such as “the relevance of the evidence sought, the availability of other evidence, the role for the government in the litigation, issues involved and the impact on the effectiveness of government employees, and the possibility of future timidity by government employees who will be forced to recognize that their secrets are voidable.” City of New York v. Grp. Health, Inc., No. 06-CV-13122 (RJS) (RLE), 2008 WL 4547199, at *3 (S.D.N.Y. Oct. 10, 2008) (internal quotation marks omitted). Balancing these considerations, the Court concludes that Defendants properly withheld Document Nos. PRIV_009, PRIV_053, and PRIV_081, and properly redacted AR page numbers DHSGLL039 (beginning below “Options for addressing laws . . .”) to DHSGLL041.4 These documents reflect internal discussions about potential policy responses — the core of the DPP — including options that were not ultimately selected and therefore not relevant to this litigation. Thus, any interest in disclosure is outweighed by the important interests protected by non-disclosure.

4

The Court notes that, in Defendants’ privilege log, nothing is listed in the “Privilege”

column for Document No. PRIV_081. See ECF No. 55-1, at 10. The Court presumes, based on

the “Privilege Description” column, that Defendants withheld the document on the basis of the

DPP. See id.

7

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The balance weighs differently, however, for Document No. PRIV_001. The public interest in disclosure of that document is strong enough to require that it be produced, as it bears directly on the “searching and careful” inquiry that the Court must conduct in its review under the APA. New York v. U.S. Dep’t of Health & Human Servs., 414 F. Supp. 3d 475, 540 (S.D.N.Y. 2019) (internal quotation marks omitted). Because Plaintiffs in both cases allege that the decision to terminate New Yorkers’ eligibility for the TTP was arbitrary and capricious, the Court must evaluate whether “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. (internal quotation marks omitted). The record reflects several justifications given by the agency for its decision, including DHS’s inability to “determine whether a TTP applicant or re-applicant meets program eligibility requirements” without DMV records, the importance of maintaining access to state DMV records for “DHS’s efforts to keep our Nation secure,” and the “lack of security cooperation from the New York DMV.” DHSGLL001 to DHSGLL003; see also DHSGLL039 to DHSGLL040 (noting as an “[o]ption for addressing laws that restrict access to state DMV information” the decision to “[e]xclude residents of uncooperative states from participating in DHS Trusted Traveler Programs”). Document No. PRIV_001 bears on and clarifies these justifications and others present in the AR. The need for disclosure is strengthened by the seriousness of the litigation and the limited availability of other evidence. Finally, the risk of chilling agency deliberations is limited because the views expressed in Document No. PRIV_001 were incorporated in the agency’s justifications of the Acting Secretary’s decision. Cf. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (noting that documents
8

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can even lose DPP protection altogether if they are “adopted, formally or informally, as the agency position on an issue”). Ultimately, the public’s interest in disclosure outweighs competing interests in non-disclosure. Accordingly, Defendants shall produce the document.
Next, the Court concludes that there is a set of documents over which Defendants improperly asserted the LEP: AR page numbers DHSGLL018 to DHSGLL020, and Document No. PRIV_032. These documents do not “contain information that the law enforcement privilege is intended to protect.” In re City of New York, 607 F.3d at 948. Instead, they simply reflect the extent to which various states have limited DHS access to state DMV databases and what information DHS cannot access, as a result — the same information Defendants produced with respect to New York, see DHSGLL018; DHSGLL020 to DHSGLL021. Accordingly, Defendants shall produce these documents.
In addition, the Court concludes that there is a set of documents to which the LEP attaches, but for which the strong presumption against disclosure is overcome: AR page numbers DHSGLL052, and DHSGLL054 to DHSGLL061. The redacted material in these documents concerns the vetting process and standards for evaluating applicants for the TTP. “To rebut that strong presumption, the party seeking disclosure bears the burden of showing (1) that the suit is non-frivolous and brought in good faith, (2) that the information sought is [not] available through other discovery or from other sources, and (3) that the party has a compelling need for the privileged information. If the presumption against disclosure is successfully rebutted (by a showing of, among other things, a ‘compelling need’), the district court must then weigh the public interest in nondisclosure against the need of the litigant for access to the privileged information before ultimately deciding whether disclosure is required.” In re City of New York, 607 F.3d at 948 (internal quotation marks and citations omitted). Here, the requirements for
9

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overcoming the presumption against disclosure have been met: This suit is not frivolous and has been brought in good faith; the material is unique because it comes from the authoritative Consolidated Trusted Traveler Programs Handbook; and there is a “compelling need” for the information because a primary justification for Acting Secretary Wolf’s decision was the assertion that losing access to DMV records “compromises CBP’s ability to confirm whether an individual applying for TTP membership meets program eligibility requirements.” DHSGLL002. Evaluating that assertion requires an understanding of the vetting process and relevant standards, especially concerning criminal offenses. See id. (specifically citing the lack of access to “some aspects of an individual’s criminal history”). Defendants argue that “[e]xposing how CBP administers its programs and utilizes certain information including DMV data to adjudicate TTP applications would allow future TTP applicants and individuals crossing the border to exploit the information deficit created by the Green Light Law, hampering CBP’s ability to conduct effective risk assessments of travelers.” See ECF No. 55, at 4; ECF No. 55-3, ¶¶ 9-15. But the information at issue primarily concerns the discretion exercised in the vetting process, not firm rules that could conceivably be exploited. Ultimately, the need for this evidence outweighs the countervailing interests Defendants identify, especially because, as Defendants acknowledge, DHS has already “made a considerable amount of information public regarding how vetting is conducted.” ECF No. 55-3, ¶¶ 11, 15. Accordingly, Defendants shall produce these documents, except that Defendants may redact Section 5.10 appearing on AR page number DHSGLL061, as this information concerns law enforcement investigatory procedures outside the vetting process for TTP applicants, and disclosure would pose a significant risk to ongoing investigations.
10

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Finally, the Court concludes that Defendants improperly redacted AR page numbers DHSGLL025 and DHSGLL038 to DHSGLL039 (up to “Options for addressing laws that restrict access . . .”). Defendants properly assert the DPP over some of the redacted information — specifically, those portions discussing long-term policy initiatives that are not relevant to this litigation. But Defendants also assert the DPP over information that directly concerns statements in the same paragraphs of the document that Defendants have chosen to disclose, including the assertion that “[w]ithout the ability to obtain DMV information independently and expeditiously, ICE HSI investigations and operations will suffer serious security consequences.” DHSGLL025. By choosing to disclose these assertions, Defendants waived their right to invoke the DPP over statements in the same document qualifying or explaining those assertions. See Am. Civil Liberties Union v. Dep’t of Defense, No. 17-CV-3391 (PAE), 2020 WL 419757, at *13 (S.D.N.Y. Jan. 27, 2020) (noting that the deliberative process privilege may be waived by voluntary disclosure of “all or part of a document”). In the alternative, Defendants’ selective disclosure has shifted the balance of competing interests in favor of disclosure of the related statements. Defendants have also failed to demonstrate that the information qualifies under the LEP, as it reveals nothing specific that would jeopardize law enforcement efforts. Accordingly, for AR page number DHSGLL025, Defendants may redact the final two sentences in the first paragraph of subsection 6(a), as well as the entire second paragraph of subsection 6(a). For AR page numbers DHSGLL038 to DHSGLL039 (up to “Options for addressing laws that restrict access . . .”), Defendants may redact the final three sentences on AR page number DHSGLL038. Subject to these redactions, Defendants shall produce these documents.
11

Case 1:20-cv-01142-JMF Document 68 Filed 06/10/20 Page 12 of 12

CONCLUSION For the foregoing reasons, Plaintiffs’ motion is GRANTED in part and DENIED in part. In particular, no later than June 17, 2020, Defendants shall disclose the following in full: AR page numbers DHSGLL017 to DHSGLL020, DHSGLL052, DHSGLL054 to DHSGLL060, and Document Nos. PRIV_001, PRIV_007, PRIV_032, and PRIV_166. No later than the same date, Defendants shall disclose Document Nos. PRIV_008, PRIV_022, and PRIV_031, and AR page numbers DHSGLL025, DHSGLL038 to DHSGLL039, and DHSGLL061 subject to the redactions approved above. In all instances, Defendants may redact email addresses, telephone numbers, and other contact information, consistent with the Court’s Order of April 29, 2020. See ECF No. 45. In addition, by June 15, 2020, the parties shall meet and confer and submit an agreed-upon proposed protective order governing the documents to be disclosed pursuant to this Opinion and Order. The Clerk of Court is directed to terminate 20-CV-1127, ECF No. 50, and 20-CV-1142, ECF No. 56.

SO ORDERED.
Dated: June 10, 2020 New York, New York

__________________________________ JESSE M. FURMAN
United States District Judge

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 Case 1:20-cv-01142-JMF Document 86 Filed 07/23/20 Page 1 of 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

STATE OF NEW YORK,

:

:

Plaintiff,

:

:

-v-

:

:

CHAD F. WOLF, in his official capacity as Acting

:

Secretary of Homeland Security, et al.,

:

:

Defendants.

:

:

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:

R. L’HEUREUX LEWIS-MCCOY et al., on behalf of :

themselves and all similarly situated individuals,

:

:

Plaintiffs,

:

:

-v-

:

:

CHAD WOLF, in his official capacity as Acting

:

Secretary of Homeland Security, et al.,

:

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Defendants.

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20-CV-1127 (JMF)
20-CV-1142 (JMF) ORDER

JESSE M. FURMAN, United States District Judge:

Earlier today, the Department of Homeland Security announced that it “will lift its ban on the Trusted Traveler Program (TTP) for New York residents.” July 23, 2020 Press Release, available at https://www.dhs.gov/news/2020/07/23/new-york-amends-dangerous-green-lightlaw-cooperate-federal-law-enforcement-dmv. No later than July 28, 2020, counsel shall confer and advise the Court what effect that announcement has on these cases, including whether or when they should be dismissed as moot.

SO ORDERED.

Dated: July 23, 2020 New York, New York

__________________________________ JESSE M. FURMAN
United States District Judge

 
 Case 1:20-cv-01142-JMF Document 87 Filed 07/23/20 Page 1 of 3

[Type text]

U.S. Department of Justice

United States Attorney Southern District of New York

86 Chambers Street New York, New York 10007

July 23, 2020

By ECF The Honorable Jesse M. Furman United States District Judge Southern District of New York Thurgood Marshall United States Courthouse 40 Foley Square New York, New York 10007

Re: New York v. Chad F. Wolf, et al., No. 20 Civ. 1127 (JMF) (S.D.N.Y.) Lewis-McCoy, et al. v. Chad Wolf, et al., No. 20 Civ. 1142 (JMF) (S.D.N.Y.)

Dear Judge Furman:

This Office represents the defendants in the above-referenced actions. We write respectfully to correct several statements in defendants’ briefs and declarations, and to withdraw defendants’ motion to dismiss, Dkt. Nos. 29-30,1 and motion for summary judgment, Dkt. Nos. 67-68, along with the materials submitted in support of those motions. We also write to inform the Court and the plaintiffs that the Acting Secretary of Homeland Security has determined that it is appropriate to restore New York residents’ eligibility to participate in Trusted Traveler Programs (“TTPs”), effective immediately. See Dep’t of Homeland Security, New York Amends Dangerous Green Light Law to Cooperate with Federal Law Enforcement on DMV Records, available at https://www.dhs.gov/news/2020/ 07/23/new-york-ame nds-da ngerous-green- light- law-cooperatefederal-law-enforcement-dmv (July 23, 2020).

As the Court is aware, defendants have maintained that the TTP Decision at issue in this litigation is constitutionally permissible, and not arbitrary and capricious, because the data restrictions imposed by New York’s Green Light Law—in particular, its restriction of access to certain criminal history information in New York DMV records—were unique and precluded CBP from conducting adequate risk assessments of New York applicants for TTPs. For example, the TTP Decision itself asserted that the Green Light Law “prevents DHS from accessing relevant information that only New York DMV maintains, including some aspects of an individua l’s criminal history. As such, the Act compromises CBP’s ability to confirm whether an individua l applying for TTP membership meets program eligibility requirements.” AR 2. Similar statements appeared in other, pre-decisional documents contained in the administrative record, see, e.g., AR 62 (“The NY Green Light law would prevent CBP from receiving information relating to criminal convictions involving motor vehicles . . . . Membership in a CBP Trusted Traveler Program requires application of strict standards for multiple convictions that can no longer be assessed for

1 Citations refer to the docket of New York v. Wolf, No. 20 Civ. 1127 (JMF) (S.D.N.Y.).

Case 1:20-cv-01142-JMF Document 87 Filed 07/23/20 Page 2 of 3
Page 2
applicants residing in the State of NY.”), and in the declarations submitted by Department of Homeland Security (“DHS”) officials in support of defendants’ motion for summary judgment, see, e.g., Decl. of Pete R. Acosta, dated June 19, 2020 (Dkt. No. 68-1) ¶ 24 (“Currently, New York is the only state that has terminated CBP’s access to driver license and vehicle data via Nlets.”). Based on these statements and representations, defendants made similar assertions in their briefs in support of their motions. See, e.g., Motion to Dismiss (Dkt. No. 30) at 14 (“Here, no other state has adopted a policy barring CBP’s access to records to vet TTP applicants.”); Motion for Summary Judgment (Dkt No. 68) at 12 (“In other words, without DMV information, DHS determined that TTP applicants from New York could not satisfy TTP eligibility requirements.”).
Last Friday afternoon, July 17, DHS advised this Office that those statements and representations are inaccurate in some instances and give the wrong impression in others. Specifically, in connection with preparing defendants’ opposition to plaintiffs’ cross-motion for summary judgment, DHS learned and informed this Office that several states, the District of Columbia, and a territory provide access to driver’s license information (referred to as Driver Query) and vehicle registration information via Nlets, but do not currently provide access to driving history information, including driving-related criminal histories. In addition, DHS determined that two territories do not participate in Nlets DMV-related queries, such that DMV records are not available to CBP (or other Nlets users). Nevertheless, CBP has continued to accept, vet, and, where appropriate, approve TTP applications from these states and territories.
These revelations undermine a central argument in defendants’ briefs and declarations to date: that CBP is not able to assure itself of an applicant’s low-risk status because New York fails to share relevant DMV information with CBP for TTP purposes. Because this argument supplies the rationale for the TTP Decision, see AR 2-3, and supports defendants’ defense of the TTP Decision, defendants have determined that the proper course of action is to withdraw their motion to dismiss and motion for summary judgment.
Furthermore, although the parties have agreed that New York’s April amendment to its Green Light Law need not be considered in adjudicating this matter, see Dkt. No. 72 at 2-4; Dkt. No. 79 at 2 n.2, DHS has also informed this Office of an issue concerning the amendment’s effect on the TTP Decision. The declarations of DHS officials Scott L. Glabe and Robert Perez both state that any cabining of New York DMV information to ensure compliance with the Green Light Law amendment’s criminalization of information sharing for immigration enforcement purposes would be antithetical to DHS’s congressionally-mandated mission and data access policies. See, e.g., Decl. of Scott L. Glabe, dated June 19, 2020 (Dkt. No. 68-2) ¶¶ 4-8, 12-14; Decl. of Robert Perez, dated June 19, 2020 (Dkt. No. 68-3) ¶¶ 15-16. Accordingly, in their brief in support of summary judgment, defendants argued that by purporting to impose restrictions on DHS’s ability to share DMV information obtained to vet TTP applicants, the amendment to the New York Green Light Law failed to cure the problems that necessitated the TTP Decision. See Motion for Summary Judgment (Dkt. No. 68) at 7-8, 24-25. Last Friday, however, DHS informed this Office that in 2019, CBP, at the local level, entered into agreements with the California Department of Justice that preclude the use of non-criminal history information accessed through Nlets for immigration enforcement purposes. According to DHS, it does not appear that those agreements were vetted by DHS’s headquarters, as is required under the One DHS Policy. See Glabe Decl. ¶ 8. Thus, according to DHS, it remains true that, as asserted in the Glabe and Perez declarations

Case 1:20-cv-01142-JMF Document 87 Filed 07/23/20 Page 3 of 3
Page 3
and defendants’ summary judgment brief, information restrictions of the type contemplated by New York’s Green Light Law amendment are contrary to the recommendations of the 9-11 Commission as embodied by the One DHS Policy. See, e.g., Glabe Decl. ¶ 14; Perez Decl. ¶ 17. However, considering DHS’s agreements with the California Department of Justice, defendants no longer wish to press this argument to support the TTP Decision.
Defendants deeply regret the foregoing inaccurate or misleading statements and apologize to the Court and plaintiffs for the need to make these corrections at this late stage in the litigation. Defendants respectfully request that the Court accept this letter to correct the record, and permit them to withdraw their motions to dismiss and for summary judgment, along with all briefs and declarations submitted in support of those motions. As noted above, the Acting Secretary of Homeland Security has decided to restore New York residents’ access to the Trusted Traveler Programs, effective immediately.
We thank the Court for its consideration of this letter.
Respectfully submitted,
AUDREY STRAUSS Acting United States Attorney for the Southern District of New York
By: /s/ Zachary Bannon ZACHARY BANNON ELIZABETH KIM CHRISTOPHER CONNOLLY Assistant United States Attorneys 86 Chambers St. 3rd Floor New York, New York 10007 Tel.: 212-637-2728, 2745, 2761 Fax: 212-637-2717 E-mail: Zachary.Bannon@usdoj.gov Elizabeth.Kim@usdoj.gov Christopher.Connolly@us doj. gov

 
 Create an Alert for This Case on RECAP

ECF,RELATED

U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:20-cv-01142-JMF

Lewis-McCoy et al v. Wolf et al Assigned to: Judge Jesse M. Furman Related Case: 1:20-cv-01127-JMF Cause: 05:702 Administrative Procedure Act

Date Filed: 02/10/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff
R. L'Heureux Lewis-McCoy on behalf of themselves and all similarly situated individuals

represented by Christopher Thomas Dunn New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 344-3005 Fax: (212) 344-3318 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED

Jessica Perry New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10024 212-607-3323 Fax: 212-607-3318 Email: jperry@nyclu.org ATTORNEY TO BE NOTICED

Jordan Laris Cohen New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10024 212-607-3343 Email: jlariscohen@nyclu.org

Plaintiff Jamil Dakwar on behalf of themselves and all similarly situated individuals
Plaintiff John Harland Giammatteo on behalf of themselves and all similarly situated individuals

ATTORNEY TO BE NOTICED
Molly Knopp Biklen New York Civil Liberties Union 125 Broad St. New York, NY 10004 212-607-3380 Email: mbiklen@nyclu.org ATTORNEY TO BE NOTICED
Antony Philip Falconer Gemmell New York Civil Liberties Union 125 Broad Street, 19th Floor New York, NY 10024 212-607-3320 Email: agemmell@nyclu.org ATTORNEY TO BE NOTICED
represented by Christopher Thomas Dunn (See above for address) ATTORNEY TO BE NOTICED
Jessica Perry (See above for address) ATTORNEY TO BE NOTICED
Jordan Laris Cohen (See above for address) ATTORNEY TO BE NOTICED
Molly Knopp Biklen (See above for address) ATTORNEY TO BE NOTICED
Antony Philip Falconer Gemmell (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Thomas Dunn (See above for address) ATTORNEY TO BE NOTICED
Jessica Perry

Plaintiff S.T. a minor, by and through her next friend, Amanda Hughes, on behalf of themselves and all similarly situated individuals
Plaintiff Paul VanDeCarr on behalf of himself and all similarly situated individuals

(See above for address) ATTORNEY TO BE NOTICED
Jordan Laris Cohen (See above for address) ATTORNEY TO BE NOTICED
Molly Knopp Biklen (See above for address) ATTORNEY TO BE NOTICED
Antony Philip Falconer Gemmell (See above for address) ATTORNEY TO BE NOTICED
represented by Jordan Laris Cohen (See above for address) ATTORNEY TO BE NOTICED
Antony Philip Falconer Gemmell (See above for address) ATTORNEY TO BE NOTICED
represented by Jordan Laris Cohen (See above for address) ATTORNEY TO BE NOTICED
Antony Philip Falconer Gemmell (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Chad Wolf in his official capacity as Acting Secretary of Homeland Security

represented by Christopher Kendrick Connolly United States Attorney's Office SDNY 86 Chambers Street 3 Floor New York, NY 10007 (212) 637-2761 Fax: (212) 637-2786

Defendant
United States Department of Homeland Security

Email: christopher.connolly@usdoj.gov ATTORNEY TO BE NOTICED
Elizabeth J. Kim DOJ-USAO 86 Chambers St New York, NY 10007 212-637-2745 Email: Elizabeth.Kim@usdoj.gov ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212-637-2200 Fax: 212-637-2730 Email: Jeffrey.Oestericher@usdoj.gov ATTORNEY TO BE NOTICED
Zachary Bannon DOJ-USAO 86 Chambers St New York, NY 10007 212-637-2728 Email: zachary.bannon@usdoj.gov ATTORNEY TO BE NOTICED
represented by Christopher Kendrick Connolly (See above for address) ATTORNEY TO BE NOTICED
Elizabeth J. Kim (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED
Zachary Bannon

Defendant Mark Morgan in his official capacity as Acting Commissioner of United States Customs and Border Protection
Defendant United States Customs and Border Protection

(See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Kendrick Connolly (See above for address) ATTORNEY TO BE NOTICED
Elizabeth J. Kim (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED
Zachary Bannon (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Kendrick Connolly (See above for address) ATTORNEY TO BE NOTICED
Elizabeth J. Kim (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Stuart Oestericher (See above for address) ATTORNEY TO BE NOTICED
Zachary Bannon (See above for address) ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

02/10/2020 1

COMPLAINT against Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. (Filing Fee $ 400.00, Receipt Number ANYSDC-18747597)Document filed by Jamil Dakwar, John

02/10/2020 02/10/2020 02/10/2020 02/10/2020
02/10/2020 02/10/2020 02/11/2020 02/11/2020

Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Gemmell, Antony) (Entered: 02/10/2020)
2 CIVIL COVER SHEET filed..(Gemmell, Antony) (Entered: 02/10/2020)
3 STATEMENT OF RELATEDNESS re: that this action be filed as related to 20-cv-1127. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Gemmell, Antony) (Entered: 02/10/2020)
4 REQUEST FOR ISSUANCE OF SUMMONS as to Chad Wolf,
re: 1 Complaint,. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Gemmell, Antony) (Entered: 02/10/2020)
5 REQUEST FOR ISSUANCE OF SUMMONS as to United States
Department of Homeland Security, re: 1 Complaint,. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Gemmell, Antony) (Entered: 02/10/2020)
6 REQUEST FOR ISSUANCE OF SUMMONS as to Mark Morgan,
re: 1 Complaint,. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Gemmell, Antony) (Entered: 02/10/2020)
7 REQUEST FOR ISSUANCE OF SUMMONS as to United States
Customs and Border Protection, re: 1 Complaint,. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Gemmell, Antony) (Entered: 02/10/2020)
8 NOTICE OF APPEARANCE by Jessica Perry on behalf of Jamil Dakwar, John Harland Giammatteo, R. L'Heureux LewisMcCoy..(Perry, Jessica) (Entered: 02/11/2020)
***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Antony Philip Falconer Gemmell. The party information for the following party/parties has been modified: R. L'Heureux Lewis-McCoy; Jamil Dakwar; John Harland Giammatteo. The information for the party/parties has been modified for the following

02/11/2020 02/11/2020 02/11/2020 02/11/2020 02/11/2020 02/11/2020 02/11/2020 02/11/2020 02/11/2020 02/11/2020
02/12/2020 02/12/2020

reason/reasons: party text was omitted;. (jgo) (Entered: 02/11/2020)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Unassigned. .(jgo) (Entered: 02/11/2020)
Case Designated ECF. (jgo) (Entered: 02/11/2020)
CASE REFERRED TO Judge Jesse M. Furman as possibly related to 20-cv-1127. (jgo) (Entered: 02/11/2020)
9 ELECTRONIC SUMMONS ISSUED as to Chad Wolf..(jgo) (Entered: 02/11/2020)
10 ELECTRONIC SUMMONS ISSUED as to Mark Morgan..(jgo) (Entered: 02/11/2020)
11 ELECTRONIC SUMMONS ISSUED as to United States Customs and Border Protection..(jgo) (Entered: 02/11/2020)
12 ELECTRONIC SUMMONS ISSUED as to United States Department of Homeland Security..(jgo) (Entered: 02/11/2020)
13 NOTICE OF APPEARANCE by Molly Knopp Biklen on behalf of Jamil Dakwar, John Harland Giammatteo, R. L'Heureux LewisMcCoy..(Biklen, Molly) (Entered: 02/11/2020)
14 NOTICE OF APPEARANCE by Christopher T Dunn on behalf of Jamil Dakwar, John Harland Giammatteo, R. L'Heureux LewisMcCoy..(Dunn, Christopher) (Entered: 02/11/2020)
15 SUMMONS RETURNED EXECUTED. Mark Morgan served on 2/11/2020, answer due 3/3/2020; United States Customs and Border Protection served on 2/11/2020, answer due 3/3/2020; United States Department of Homeland Security served on 2/11/2020, answer due 3/3/2020; Chad Wolf served on 2/11/2020, answer due 3/3/2020. Service was accepted by Derick Mayers, Civil Clerk. Service was made by Mail. Document filed by Jamil Dakwar; John Harland Giammatteo; R. L'Heureux LewisMcCoy..(Gemmell, Antony) (Entered: 02/11/2020)
NOTICE OF CASE REASSIGNMENT to Judge Jesse M. Furman. Judge Unassigned is no longer assigned to the case..(wb) (Entered: 02/12/2020)
Magistrate Judge Ona T. Wang is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are

02/12/2020 02/24/2020
02/25/2020 03/19/2020 03/19/2020 03/19/2020

notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: https://nysd.uscourts.gov/sites/default/files/2018-06/AO3.pdf. (wb) (Entered: 02/12/2020)

CASE ACCEPTED AS RELATED. Create association to 1:20-cv01127-JMF. Notice of Assignment to follow. (wb) (Entered: 02/12/2020)

NOTICE OF INITIAL PRETRIAL CONFERENCE: It is hereby

16

ORDERED that counsel for all parties appear for an initial pretrial

conference with the Court on March 26, 2020, at 4:00 p.m. in

Courtroom 1105 of the Thurgood Marshall Courthouse, 40 Centre

Street, New York, New York. As of this order, no motion for

consolidation has been filed, but case number 20-CV-1142 has

been accepted by the Court as related to case number 20-CV-1127,

and the cases appear to involve common questions of law and fact.

Thus, the Court is inclined to consolidate the cases pursuant to

Rule 42 of the Federal Rules of Civil Procedure for all purposes.

Counsel in both cases shall promptly confer and be prepared to

discuss at the initial conference whether and to what extent the two

cases should be consolidated or otherwise coordinated. And as set

forth herein. SO ORDERED. Initial Conference set for 3/26/2020

at 04:00 PM in Courtroom 1105, 40 Centre Street, New York, NY

10007 before Judge Jesse M. Furman. (Signed by Judge Jesse M.

Furman on 2/24/2020) (ama) (Entered: 02/24/2020)

17 LETTER addressed to Judge Jesse M. Furman from Antony Gemmell dated February 25, 2020 re: Proof of notice to the Defendants of the Courts February 24, 2020 Order. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy. (Attachments: # 1 Exhibit 1).(Gemmell, Antony) (Entered: 02/25/2020)

18 NOTICE OF APPEARANCE by Zachary Bannon on behalf of Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 03/19/2020)

19 NOTICE OF APPEARANCE by Elizabeth J. Kim on behalf of Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Kim, Elizabeth) (Entered: 03/19/2020)

20 NOTICE OF APPEARANCE by Christopher Kendrick Connolly on behalf of Mark Morgan, United States Customs and Border

03/19/2020 03/23/2020
04/01/2020

Protection, United States Department of Homeland Security, Chad Wolf..(Connolly, Christopher) (Entered: 03/19/2020)

21 JOINT LETTER addressed to Judge Jesse M. Furman from Counsel for All Parties dated March 19, 2020 re: Letter in Anticipation of the Initial Pretrial Conference. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. (Attachments: # 1 Plaintiffs' Proposed Case Management Plan).(Kim, Elizabeth) (Entered: 03/19/2020)

ORDER: Per the Court's Emergency Individual Rules and

22

Practices, the initial pretrial conference scheduled in this case for

March 26, 2020, at 4:00 p.m. will be conducted telephonically.

The Court has arranged for the use of CourtCall, an independent

conference call company, to enable the parties, counsel, and

anyone interested (including members of the press) to attend

remotely. Counsel for the parties must call CourtCall's reservation

desk at (888) 882-6878, or make a reservation online at

www.courtcall.com, no later than 4:00 p.m. Eastern Time one

business day prior to the conference date... To ensure public access

to the conference, the Court has arranged for CourtCall to provide

a toll-free number for members of the public and press to listen to

the conference. Members of the public and press should call (855)

855-8556, and enter access code 587-8792, followed by the pound

(#) key. There will be no charge for using this line. Anyone using

this line will be in "listen-only" mode and will not be able to speak

during the proceedings. (SEE ORDER.) (Signed by Judge Jesse

M. Furman on 3/23/2020) (ab) (Entered: 03/23/2020)

ORDER: Additionally, unless and until the Court orders

23

otherwise, the following deadlines shall apply to proceedings in

these cases: By April 1, 2020, Plaintiffs shall file any amended

complaints. By April 15, 2020, Defendants shall file any motion to

dismiss and, after meeting and conferring with defense counsel,

the Lewis-McCoy Plaintiffs shall file any motion for class

certification. By April 24, 2020, Defendants shall produce the

Administrative Record. By April 29, 2020, Plaintiffs shall file a

joint opposition to Defendants' motion to dismiss and Defendants

shall file any opposition to any motion for class certification.

Unless and until the Court orders otherwise, by May 1, 2020,

Defendants shall provide to Plaintiffs a privilege log listing any

documents withheld, in whole or in part, from the Administrative

Record on the basis of privilege. If Defendants believe that they

should not be required to provide a privilege log, they shall file a

letter-motion to that effect, not to exceed five pages, by April 8,

04/01/2020
04/08/2020 04/14/2020

2020. Any opposition to such a motion, also by letter not to exceed five pages, shall be filed by April 15, 2020. No reply shall be filed absent leave of Court. By May 6, 2020, Defendants shall file any reply in support of their motion to dismiss and the Lewis-McCoy Plaintiffs shall file any reply in support of any motion for class certification. By May 11, 2020, after meeting and conferring with defense counsel, Plaintiffs shall file any motion, by letter not to exceed five pages, to complete the Administrative Record or compel extra-record discovery. Any opposition to such a motion, also by letter not to exceed five pages, shall be filed by May 18, 2020. No reply shall be filed absent leave of Court. By June 5, 2020, Defendants shall file any motion for summary judgment as to the Administrative Procedure Act claims. Plaintiffs shall file any opposition and any cross-motion (supported by one consolidated memorandum of law) by June 26, 2020. Defendants shall file any reply and opposition to any cross-motion (also supported by one consolidated memorandum of law) by July 10, 2020. If Plaintiffs file a cross-motion, they shall file any reply in support by July 17, 2020. As long as the Court's Emergency Individual Rules and Practices in Light of COVID-19 remain in effect, the parties should not submit paper courtesy copies of any briefing to the Court. SO ORDERED. (Amended Pleadings due by 4/1/2020., Cross Motions due by 6/26/2020., Motions due by 6/5/2020., Responses due by 7/10/2020, Replies due by 7/17/2020.) (Signed by Judge Jesse M. Furman on 4/1/2020) (jca) (Entered: 04/01/2020)

24

FIRST AMENDED COMPLAINT amending 1 Complaint,

against Mark Morgan, United States Customs and Border

Protection, United States Department of Homeland Security, Chad

Wolf.Document filed by Jamil Dakwar, John Harland

Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr.

Related document: 1 Complaint,..(Gemmell, Antony) (Entered: 04/01/2020)

25 LETTER addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/8/2020 re: Opposition to Production of Privilege Log. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 04/08/2020)

26 LETTER addressed to Judge Jesse M. Furman from Plaintiffs dated April 14, 2020 re: production of a privilege log identifying all materials withheld from the Administrative Record. Document

04/14/2020 04/14/2020 04/14/2020 04/14/2020
04/14/2020

filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4).(Gemmell, Antony) (Entered: 04/14/2020)
27 FIRST LETTER MOTION for Extension of Time addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/14/2020. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 04/14/2020)
28 ORDER with respect to 27 Letter Motion for Extension of Time: Given tomorrow's motion deadline, Plaintiffs shall file a response to the request for an extension of all deadlines by TODAY at 2 p.m. For now, all dates and deadlines remain in effect. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 04/14/2020)
29 JOINT LETTER addressed to Judge Jesse M. Furman from Plaintiffs dated April 14, 2020 re: Plaintiffs opposition to Defendants request for an extension of time. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux LewisMcCoy, S.T., Paul VanDeCarr. (Attachments: # 1 Exhibit Exhibit 1).(Gemmell, Antony) (Entered: 04/14/2020)
30 ORDER denying 27 Letter Motion for Extension of Time. Defendants' request for an extension is DENIED, substantially for the reasons set forth in Footnote 2 of Plaintiffs' letter. Defendants would have been on firmer ground had they not waited until the day before their motion deadline to seek relief or had they seriously engaged with Plaintiffs after the change in state law. The bottom line is that, based on the totality of circumstances, there is no reason to alter the agreed-upon schedule. The Court would be willing to grant a limited extension if the parties confer and agree that there is a good-faith basis to believe that the case could be resolved and that their resources are better spent exploring a resolution that litigating. But absent that, all dates and deadlines remain in effect. The Clerk of Court is directed to terminate the motions filed earlier today in both cases. So Ordered. (Signed by Judge Jesse M. Furman on 4/14/20) (yv) (Entered: 04/14/2020)
31 NOTICE OF APPEARANCE by Jordan Laris Cohen on behalf of Jamil Dakwar, John Harland Giammatteo, R. L'Heureux LewisMcCoy, S.T., Paul VanDeCarr..(Cohen, Jordan) (Entered: 04/14/2020)

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32 MOTION to Dismiss Plaintiffs' Constitutional Claims. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 04/15/2020)
33 MEMORANDUM OF LAW in Support re: 32 MOTION to Dismiss Plaintiffs' Constitutional Claims. . Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 04/15/2020)
34 MOTION to Certify Class . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 04/15/2020)
35 MEMORANDUM OF LAW in Support re: 34 MOTION to Certify Class . . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 04/15/2020)
36 DECLARATION of Antony P.F. Gemmell in Support re: 34 MOTION to Certify Class .. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr. (Attachments: # 1 Exhibit Declaration of R. L'Heureux Lews-McCoy, # 2 Exhibit Declaration of Amanda Hughes, # 3 Exhibit Declaration of Paul VanDeCarr, # 4 Exhibit Declaration of Jamil Dakwar, # 5 Exhibit Declaration of John Harland Giammatteo).(Gemmell, Antony) (Entered: 04/15/2020)
37 PROPOSED STIPULATION AND ORDER. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux LewisMcCoy, S.T., Paul VanDeCarr. (Attachments: # 1 Text of Proposed Order).(Gemmell, Antony) (Entered: 04/15/2020)
38 STIPULATED ORDER CERTIFYING CLASS, THE COURT HEREBY ORDERS THAT: 1. The Plaintiffs' Motion for Class Certification is GRANTED. The Court certifies a Class defined as "All New York State residents whose applications to enroll or reenroll in Global Entry were pending at the time Acting Secretary of Homeland Security Chad Wolf issued his decision to prohibit the enrollment or re-enrollment of New York residents in U.S. Customs and Border Protections Trusted Traveler Programs or who otherwise intend to enroll or re-enroll in Global Entry." The Court finds Plaintiffs have satisfied the elements of Federal Rule Civil Procedure Rule 23(a) and Rule 23(b)(2), including establishing numerosity, commonality, typicality, adequacy, and Rule 23(b)(2) status. To the extent ascertainability is required for

04/24/2020
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Rule 23(b)(2) class actions, the Court also finds the class is ascertainable. 2. The Plaintiffs' request that the New York Civil Liberties Union Foundation (the "NYCLU") be appointed Class Counsel is GRANTED. The Court finds the NYCLU satisfies the requirements of Federal Rule of Civil Procedure 23(g)(1)(A). 3. The Plaintiffs' request that the named Plaintiffs be appointed Class representatives is GRANTED. The Court finds that named Plaintiffs R. L'Heureux Lewis-McCoy, S.T., by and through her next friend, Amanda Hughes, Paul VanDeCarr, Jamil Dakwar, and John Harland Giammatteo will fairly and adequately represent the interests of the Class. The Clerk of Court is directed to terminate ECF No. 34. IT IS SO ORDERED. Motions terminated: 34 MOTION to Certify Class . filed by Jamil Dakwar, Paul VanDeCarr, S.T., John Harland Giammatteo, R. L'Heureux Lewis-McCoy. (Signed by Judge Jesse M. Furman on 4/17/20) (yv) Modified on 4/22/2020 (yv). (Entered: 04/17/2020)
39 MEMO ENDORSEMENT on re: (23 in 1:20-cv-01127-JMF) Letter, filed by Mark A. Morgan, United States Customs and Border Protection, Chad F. Wolf, United States Department of Homeland Security, (25 in 1:20-cv-01142-JMF) Letter, filed by United States Customs and Border Protection, Mark Morgan, Chad Wolf, United States Department of Homeland Security. ENDORSEMENT: For now, the Court's order requiring production of a privilege log by May 1, 2020, remains in effect. (To that end, Defendants should presumably be taking steps to prepare a log.) That said, the Court will reserve decision on Defendants' request to be relieved of the obligation pending Plaintiffs' review of the Administrative Record to be produced today. No later than April 27, 2020, Plaintiffs shall file a joint letter addressing whether a privilege log should be required in light of their preliminary review of the Administrative Record. Defendants may file a supplemental letter addressing the issue in light of the Administrative Record by the same date. The Clerk of Court is directed to docket this endorsed letter in both 20-CV-1127 and 20-CV-1142. SO ORDERED. (Signed by Judge Jesse M. Furman on 4/24/2020) (ks) (Entered: 04/24/2020)
40 LETTER MOTION for Extension of Time addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/24/2020. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 04/24/2020)
41 ORDER granting in part and denying in part 40 Letter Motion for Extension of Time. Defendants shall produce the Administrative

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Record today, as previously ordered, except that they are granted an extension until Monday, April 27, 2020, at 10 a.m. to produce the one record still under consideration in the event that it is deemed to be part of the Administrative Record. All other dates and deadlines, including the Monday, April 27, 2020 deadline for letters about the privilege log, remain in effect. (HEREBY ORDERED by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 04/24/2020)

LETTER MOTION for Leave to File Redacted Administrative

42

Record addressed to Judge Jesse M. Furman from Zachary Bannon

dated 4/24/2020. Document filed by Mark Morgan, United States

Customs and Border Protection, United States Department of

Homeland Security, Chad Wolf. (Attachments: # 1

Declaration of Robert E. Perez).(Bannon, Zachary) (Entered: 04/24/2020)

43 NOTICE of Administrative Record re: 42 LETTER MOTION for Leave to File Redacted Administrative Record addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/24/2020.. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. (Attachments: # 1 Administrative Record (Public)).(Bannon, Zachary) (Entered: 04/24/2020)

44 ***SELECTED PARTIES***NOTICE of Administrative Record

re: 42 LETTER MOTION for Leave to File Redacted Administrative Record addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/24/2020.. Document filed by Mark Morgan, United States Department of Homeland Security, United States Customs and Border Protection, Chad Wolf, Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr. (Attachments: # 1 Administrative Record (Under

Seal))Motion or Order to File Under Seal: 42 Zachary) (Entered: 04/24/2020)

.(Bannon,

45 LETTER addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/24/2020 re: Final Administrative Record. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 04/24/2020)

04/27/2020 46
04/27/2020 47
04/27/2020 48
04/29/2020 49

MEMO ENDORSEMENT on re: (36 in 1:20-cv-01127-JMF) LETTER MOTION for Leave to File Redacted Administrative Record addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/24/2020. filed by Mark A. Morgan, United States Customs and Border Protection, Chad F. Wolf, United States Department of Homeland Security, (42 in 1:20-cv-01142-JMF) LETTER MOTION for Leave to File Redacted Administrative Record addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/24/2020. filed by United States Customs and Border Protection, Mark Morgan, Chad Wolf, United States Department of Homeland Security, Set Deadlines/Hearing as to (36 in 1:20-cv01127-JMF) LETTER MOTION for Leave to File Redacted Administrative Record addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/24/2020., (42 in 1:20-cv-01142-JMF) LETTER MOTION for Leave to File Redacted Administrative Record addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/24/2020. ENDORSEMENT : Plaintiffs shall file any opposition no later than April 29, 2020, at noon. SO ORDERED. (Responses due by 4/29/2020) (Signed by Judge Jesse M. Furman on 4/27/20) (yv) (Entered: 04/27/2020)
SUPPLEMENTAL LETTER addressed to Judge Jesse M. Furman from Antony P.F. Gemmell dated April 27, 2020 re: production of a privilege log identifying materials withheld from the Administrative Record. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 04/27/2020)
LETTER addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/27/2020 re: Opposition to Production of Privilege Log. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 04/27/2020)
MEMORANDUM OPINION AND ORDER re: (36 in 1:20-cv01127-JMF) LETTER MOTION for Leave to File Redacted Administrative Record addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/24/2020. filed by Mark A. Morgan, United States Customs and Border Protection, Chad F. Wolf, United States Department of Homeland Security, (42 in 1:20-cv01142-JMF) LETTER MOTION for Leave to File Redacted Administrative Record addressed to Judge Jesse M. Furman from Zachary Bannon dated 4/24/2020. filed by United States Customs and Border Protection, Mark Morgan, Chad Wolf, United States Department of Homeland Security. The Court adheres to its order mandating that, no later than May 1, 2020, Defendants produce a

04/29/2020 50
04/29/2020 51

"log listing any documents withheld, in whole or in part, from the Administrative Record on the basis of privilege." ECF No. 22, at 2. Significantly, the Court does not, at this time, order "the production of any documents over which the Government asserts privilege"; it merely orders a privilege log. In re Nielsen, slip. op. at 5. To the extent that Plaintiffs challenge any of Defendants' assertions in the log, the Court will, of course, "provide the Government with an opportunity to be heard" and ensure "an orderly resolution of any" disputes. Id.; see In re United States, 583 U.S.-, 2017 WL 6505860, at *2 (Dec. 20, 2017) (No. 17-801) ("[T]he District Court may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue."). To that end, if Plaintiffs dispute any of Defendants' privilege assertions, counsel shall meet and confer in good faith in an attempt to resolve the dispute and, absent a resolution, to agree upon procedures to raise the dispute with the Court. SO ORDERED. (Signed by Judge Jesse M. Furman on 4/29/20) (yv) (Entered: 04/29/2020)
LETTER addressed to Judge Jesse M. Furman from Plaintiffs dated April 29, 2020 re: Defendants' request to file under seal. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 04/29/2020)
MEMO ENDORSEMENT on re: (44 in 1:20-cv-01127-JMF) Letter leave to file a redacted Administrative Record filed by State of New York, (50 in 1:20-cv-01142-JMF) Letter leave to file a redacted Administrative Record, filed by Jamil Dakwar, Paul VanDeCarr, S.T., John Harland Giammatteo, R. L'Heureux LewisMcCoy. ENDORSEMENT: Having reviewed the parties' submissions, the Court GRANTS Defendants' letter-motion for leave to file a redacted Administrative Record as to the email addresses, telephone numbers, and other contact information of the Customs and Border Protection ("CBP") employees at issue, but DENIES the letter-motion as to the names of those employees. Under Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006), the Court must balance the presumption in favor of public access to judicial documents such as the Administrative Record against "countervailing factors" such as the CBP employees' privacy interests here. That balance justifies redaction of the employees' contact information, given the risks highlighted by Defendants, and Plaintiffs do not argue otherwise. The risks created by public disclosure of the contact information do not apply, however, to the employees' names, at least not to the same

04/29/2020 05/01/2020 05/01/2020 05/06/2020 05/11/2020

degree. Thus, the balance weighs in favor of not redacting the names. The cases cited by Defendants in which the redaction of employees' names was found appropriate predate Lugosch and, unlike this case, involved the disclosure of sensitive materials, not materials of the nature at issue here. See Kelly v. City of New York, No. 01-CV-8906 (AGS) (DF), 2003 WL 548400, at *5-6 (S.D.N.Y. Feb. 24, 2003) (redacting the names of individuals in light of "potentially sensitive records" containing "personal information" and "allegations that have not been fully investigated, substantiated, or proven"); In re Savitt/Adler Litig., No. 95-CV1842 (RSP) (DRH), 1997 WL 797511, at *3 (N.D.N.Y. Dec. 23, 1997) (redacting the names of individuals in light of the disclosure of personnel and employment records "traditionally considered private"). No later than May 1, 2020, Defendants shall refile the Administrative Record consistent with the foregoing. The Clerk of Court is directed to docket this Order in both cases. SO ORDERED. (Signed by Judge Jesse M. Furman on 4/29/20) (yv) (Entered: 04/29/2020)

52 MEMORANDUM OF LAW in Opposition re: 32 MOTION to Dismiss Plaintiffs' Constitutional Claims. . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux LewisMcCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 04/29/2020)

NOTICE of Administrative Record. Document filed by Mark

53

Morgan, United States Customs and Border Protection, United

States Department of Homeland Security, Chad Wolf.

(Attachments: # 1 Administrative Record).(Bannon, Zachary) (Entered: 05/01/2020)

LETTER addressed to Judge Jesse M. Furman from Zachary

54

Bannon dated 5/1/2020 re: Production of Privilege Log. Document

filed by Mark Morgan, United States Customs and Border

Protection, United States Department of Homeland Security, Chad

Wolf..(Bannon, Zachary) (Entered: 05/01/2020)

55 REPLY MEMORANDUM OF LAW in Support re: 32 MOTION to Dismiss Plaintiffs' Constitutional Claims. . Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 05/06/2020)

56 LETTER MOTION to Compel Defendants to Complete the Administrative Record addressed to Judge Jesse M. Furman from

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Plaintiffs dated May 11, 2020. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr. (Attachments: # 1 Exhibit 1 - Defendants' Privilege Log).(Gemmell, Antony) (Entered: 05/11/2020)

ORDER: On May 11, 2020, Plaintiffs in these cases moved to

57

compel Defendants to complete the Administrative Record by

producing documents withheld or redacted based upon assertions

of privilege. See 20-CV-1127, ECF No. 50; 20-CV-1142, ECF No.

56. Defendants' response is due by May 18, 2020. See 20-CV-

1127, ECF No. 22; 20-CV-1142, ECF No. 23. By the same date,

Defendants shall submit the documents at issue for the Court's in

camera review by filing them under seal on ECF (selecting the ex

parte viewing level), in accordance with Section 6 of the S.D.N.Y.

Electronic Case Filing Rules & Instructions, available at

https://nysd.uscourts.gov/rules/ecf-related-instructions. (Set

Deadlines/Hearing as to (50 in 1:20-cv-01127-JMF) LETTER

MOTION to Compel Defendants, (56 in 1:20-cv-01142-JMF)

LETTER MOTION to Compel Defendants: Responses due by

5/18/2020) (Signed by Judge Jesse M. Furman on 5/12/2020)

(jwh) (Entered: 05/12/2020)

58 LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Motion to Complete the Record addressed to Judge Jesse M. Furman from Zachary Bannon dated 5/12/2020. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 05/12/2020)

59 ORDER granting 58 Letter Motion for Extension of Time to File Response/Reply re 56 LETTER MOTION to Compel Defendants to Complete the Administrative Record addressed to Judge Jesse M. Furman from Plaintiffs dated May 11, 2020. Application GRANTED, and the proposed deadline is adopted. The Clerk of Court is directed to terminate 20-CV-1127, ECF No. 52, and 20CV-1142, ECF No. 58. SO ORDERED. ( Responses due by 5/22/2020.) (Signed by Judge Jesse M. Furman on 5/13/20) (yv) (Entered: 05/13/2020)

60 NOTICE of Administrative Record. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. (Attachments: # 1 Administrative Record).(Bannon, Zachary) (Entered: 05/22/2020)

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61 LETTER RESPONSE in Opposition to Motion addressed to Judge Jesse M. Furman from Zachary Bannon dated 5/22/2020 re: 56 LETTER MOTION to Compel Defendants to Complete the Administrative Record addressed to Judge Jesse M. Furman from Plaintiffs dated May 11, 2020. . Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. (Attachments: # 1 Updated Privilege Log, # 2 Dorey Declaration, # 3 Wagner Declaration, # 4 Allen Declaration, # 5 Cronen Declaration).(Bannon, Zachary) (Entered: 05/22/2020)

62 ***EX-PARTE***NOTICE of Ex Parte Privileged Documents. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. (Attachments: # 1 Privileged Documents I, # 2 Privileged Documents II, # 3 Privileged Documents III, # 4 Privileged Documents IV)Motion or Order to File Under

Seal: 57 .(Bannon, Zachary) (Entered: 05/22/2020)

63 ***EX-PARTE***NOTICE of Ex Parte Privileged Documents. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. (Attachments: # 1 Privileged Documents

V)Motion or Order to File Under Seal: 57 (Entered: 06/01/2020)

.(Bannon, Zachary)

64 LETTER MOTION for Extension of Time to File Motion for Summary Judgment addressed to Judge Jesse M. Furman from Zachary Bannon dated 6/1/2020. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 06/01/2020)

ORDER. The parties shall meet and confer and submit a joint

65

letter by June 3, 2020, stating their views on whether the briefing

schedule should be adjusted in light of the litigation over

Defendants' assertions of privilege - and if so, proposing a revised

schedule. SO ORDERED. (Signed by Judge Jesse M. Furman on

6/1/20) (yv) (Entered: 06/01/2020)

66 PROPOSED SCHEDULING ORDER. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 06/03/2020)

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67 ORDER granting 64 Letter Motion for Extension of Time: The proposed deadlines are adopted. The Clerk of Court is directed to terminate 20-CV-1127, ECF no. 58, and 20-CV-1142, ECF No. 64. (Signed by Judge Jesse M. Furman on 6/3/2020) (jwh) (Entered: 06/03/2020)

OPINION AND ORDER re: (56 in 1:20-cv-01142-JMF) LETTER

68

MOTION to Compel Defendants to Complete the Administrative

Record addressed to Judge Jesse M. Furman from Plaintiffs dated

May 11, 2020. filed by Jamil Dakwar, Paul VanDeCarr, S.T., John

Harland Giammatteo, R. L'Heureux Lewis-McCoy, (50 in 1:20-cv-

01127-JMF) LETTER MOTION to Compel Defendants to

Complete the Administrative Record addressed to Judge Jesse M.

Furman from Elena Goldstein dated May 11, 2020. filed by State

of New York. Plaintiffs' motion is GRANTED in part and

DENIED in part. In particular, no later than June 17, 2020,

Defendants shall disclose the following in full: AR page numbers

DHSGLL017 to DHSGLL020, DHSGLL052, DHSGLL054 to

DHSGLL060, and Document Nos. PRIV_001, PRIV_007,

PRIV_032, and PRIV_166. No later than the same date,

Defendants shall disclose Document Nos. PRIV_008, PRIV_022,

and PRIV_031, and AR page numbers DHSGLL025,

DHSGLL038 to DHSGLL039, and DHSGLL061 subject to the

redactions approved above. In all instances, Defendants may

redact email addresses, telephone numbers, and other contact

information, consistent with the Court's Order of April 29, 2020.

See ECF No. 45. In addition, by June 15, 2020, the parties shall

meet and confer and submit an agreed-upon proposed protective

order governing the documents to be disclosed pursuant to this

Opinion and Order. The Clerk of Court is directed to terminate 20-

CV-1127, ECF No. 50, and 20-CV-1142, ECF No. 56. SO

ORDERED. (Signed by Judge Jesse M. Furman on 6/10/20) (yv)

(Entered: 06/10/2020)

69 PROPOSED PROTECTIVE ORDER. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 06/15/2020)

PROTECTIVE ORDER...regarding procedures to be followed that

70

shall govern the handling of confidential material...SO

ORDERED. (Signed by Judge Jesse M. Furman on 6/16/20) (yv)

(Entered: 06/17/2020)

71 NOTICE of Administrative Record. Document filed by Mark Morgan, United States Customs and Border Protection, United

06/17/2020 06/19/2020 06/19/2020 06/19/2020 06/22/2020 06/22/2020

States Department of Homeland Security, Chad Wolf. (Attachments: # 1 Administrative Record (Public)).(Bannon, Zachary) (Entered: 06/17/2020)

72 ***SELECTED PARTIES***NOTICE of Administrative Record. Document filed by Mark Morgan, United States Department of Homeland Security, United States Customs and Border Protection, Chad Wolf, Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr. (Attachments: # 1 Administrative Record (Sealed))Motion or Order to File Under

Seal: 70 .(Bannon, Zachary) (Entered: 06/17/2020)

73 MOTION for Summary Judgment on Plaintiffs' APA claims. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 06/19/2020)

74 MEMORANDUM OF LAW in Support re: 73 MOTION for Summary Judgment on Plaintiffs' APA claims. . Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. (Attachments: # 1 Acosta Declaration, # 2 Glabe Declaration, # 3 Perez Declaration).(Bannon, Zachary) (Entered: 06/19/2020)

75 ***SELECTED PARTIES*** MEMORANDUM OF LAW in Support re: 73 MOTION for Summary Judgment on Plaintiffs' APA claims. . Document filed by Mark Morgan, United States Department of Homeland Security, United States Customs and Border Protection, Chad Wolf. Motion or Order to File Under

Seal: 70 .(Bannon, Zachary) (Entered: 06/19/2020)

76 LETTER MOTION for Discovery Plaintiffs' joint letter motion to exclude extra-record evidence or, in the alternative, to permit limited discovery addressed to Judge Jesse M. Furman from Antony P.F. Gemmell dated June 22, 2020. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux LewisMcCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 06/22/2020)

ORDER, Defendants shall submit any response to Plaintiff's letter-

77

motion by June 24, 2020, at noon. (No reply may be filed absent

leave of Court.) Upon review of Defendants' letter, the Court will

issue an order if it believes that further action is required or

appropriate at this time; in the absence of any such order, Plaintiffs

should address these issues in their opposition to the motion for

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06/29/2020

summary judgment. SO ORDERED. Set Deadlines/Hearing as to (70 in 1:20-cv-01127-JMF) LETTER MOTION for Discovery Plaintiffs' joint letter motion to exclude extra-record evidence or, in the alternative, to permit limited discovery addressed to Judge Jesse M. Furman from Matthew Colangelo dated June 22, 2020., (76 in 1:20-cv-01142-JMF) LETTER MOTION for Discovery Plaintiffs' joint letter motion to exclude extra-record evidence or, in the alternative, to permit limited discovery addressed to Judge Jesse M. Furman from Antony P.F. Gemmell dated June 22, 2020. :( Responses due by 6/24/2020) (Signed by Judge Jesse M. Furman on 6/22/20) (yv) (Entered: 06/22/2020)

78 LETTER RESPONSE in Opposition to Motion addressed to Judge Jesse M. Furman from Zachary Bannon dated 6/24/2020 re: 76 LETTER MOTION for Discovery Plaintiffs' joint letter motion to exclude extra-record evidence or, in the alternative, to permit limited discovery addressed to Judge Jesse M. Furman from Antony P.F. Gemmell dated June 22, 2020. . Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 06/24/2020)

79 LETTER MOTION to Seal Dkt. No. 72-1 addressed to Judge Jesse M. Furman from Zachary Bannon dated 6/29/2020. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 06/29/2020)

ORDER granting 79 Letter Motion to Seal. Application

80

GRANTED. The Clerk of Court is directed to place Docket Entry

66-1 in New York v. Chad F. Wolf, et al., No. 20 Civ. 1127

(JMF), and Docket Entry 72-1 in Lewis-McCoy v. Chad Wolf, et

al., 20 Civ. 1142 (JMF), under seal - with viewing privileges

restricted to the Court only. Plaintiffs shall delete any copies of the

relevant unredacted materials. Defendants shall promptly file

redacted versions on ECF. The Clerk of Court is directed to

terminate Docket Entry 73 in 20 Civ. 1127 (JMF), and Docket

Entry 79 in 20 Civ. 1142 (JMF). SO ORDERED. (Signed by

Judge Jesse M. Furman on 6/29/20) (yv) (Entered: 06/29/2020)

81 ***SELECTED PARTIES***NOTICE of Administrative Record. Document filed by Mark Morgan, United States Department of Homeland Security, United States Customs and Border Protection, Chad Wolf, Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr. (Attachments:

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# 1 Corrected Administrative Record (Sealed))Motion or Order to

File Under Seal: 70 06/29/2020)

.(Bannon, Zachary) (Entered:

82 LETTER MOTION for Leave to File Excess Pages and to Forgo Rule 56.1 Statement addressed to Judge Jesse M. Furman from Plaintiffs dated July 8, 2020. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 07/08/2020)

83 ORDER granting 82 Letter Motion for Leave to File Excess Pages: Application GRANTED. The Clerk of Court is directed to terminate ECF No. 76. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/8/2020) (jwh) (Entered: 07/08/2020)

84 CROSS MOTION for Partial Summary Judgment . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 07/10/2020)

85 JOINT MEMORANDUM OF LAW in Support re: 84 CROSS MOTION for Partial Summary Judgment . and in Opposition to Defendants' Motion for Partial Summary Judgment. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 07/10/2020)

ORDER: Earlier today, the Department of Homeland Security

86

announced that it "will lift its ban on the Trusted Traveler Program

(TTP) for New York residents." July 23, 2020 Press Release,

available at https://www.dhs.gov/news/2020/07/23/new-york-

amends-dangerous-green-lightlaw-cooperate-federal-law-

enforcement-dmv. No later than July 28, 2020, counsel shall

confer and advise the Court what effect that announcement has on

these cases, including whether or when they should be dismissed

as moot. SO ORDERED. (Signed by Judge Jesse M. Furman on

7/23/2020) (ks) (Entered: 07/23/2020)

LETTER addressed to Judge Jesse M. Furman from Zachary

87

Bannon dated 7/23/2020 re: Correction of Record. Document filed

by Mark Morgan, United States Customs and Border Protection,

United States Department of Homeland Security, Chad

Wolf..(Bannon, Zachary) (Entered: 07/23/2020)

LETTER addressed to Judge Jesse M. Furman from Zachary

88

Bannon dated 7/28/2020 re: Dkt. No. 86. Document filed by Mark

07/28/2020 89
07/29/2020 90

Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 07/28/2020)
LETTER addressed to Judge Jesse M. Furman from Plaintiffs dated July 28, 2020 re: Dkt. No. 86. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 07/28/2020)
MEMORANDUM OPINION AND ORDER re: (73 in 1:20-cv01142-JMF) MOTION for Summary Judgment on Plaintiffs' APA claims. filed by United States Customs and Border Protection, Mark Morgan, Chad Wolf, United States Department of Homeland Security, (67 in 1:20-cv-01127-JMF) MOTION for Summary Judgment on Plaintiffs' APA claims. filed by Mark A. Morgan, United States Customs and Border Protection, Chad F. Wolf, United States Department of Homeland Security, (32 in 1:20-cv01142-JMF) MOTION to Dismiss Plaintiffs' Constitutional Claims. filed by United States Customs and Border Protection, Mark Morgan, Chad Wolf, United States Department of Homeland Security, (29 in 1:20-cv-01127-JMF) MOTION to Dismiss Plaintiffs' Constitutional Claims. filed by Mark A. Morgan, United States Customs and Border Protection, Chad F. Wolf, United States Department of Homeland Security. No later than August 12, 2020, Defendants shall file a comprehensive and detailed report that: 1.Lists any and all inaccurate or misleading statements or representations in the record; 2.Explains, with respect to each such statement, why it is inaccurate or misleading; 3.Identifies, with respect to each such statement, who made the statement and/or was responsible for the content of the statement; 4.Summarizes, with respect to each such statement, what due diligence, if any, counsel for Defendants conducted before filing the document(s) containing the statement to determine whether the statement was accurate; 5.Identifies when and how counsel for Defendants learned about the inaccurate and misleading statements, including but not limited to who at DHS contacted counsel about the statements on July 17, 2020; and 6. Describes who, when, and how DHS discovered that the record in these cases contained inaccurate and misleading statements. To the extent that any declaration was filed in these cases with inaccurate or misleading statements, Defendants shall, by the same date, file a new declaration from the same declarant describing, with particularity, (1) how the prior declaration came to include such statement or statements; (2) what steps the declarant took, prior to signing the declaration, to confirm the accuracy of the statement or statements; and (3) when and how the declarant learned that the

07/29/2020 91
08/07/2020 92
08/07/2020 93
08/07/2020 94

statement or statements were inaccurate or misleading. The Court otherwise leaves it to Defendants to decide in the first instance whether their report should take the form of, or be supported by, a sworn declaration. But either way, the person or persons responsible for the content of the report should be prepared to testify about how it was compiled in the event that the Court determines that is appropriate. Finally, no later than August 19, 2020, Plaintiffs may file a letter in response to Defendants' report, indicating whether they have reason to believe that Defendants made inaccurate or misleading statements beyond those identified in the report. The Clerk of Court is directed to terminate (1) ECF Nos. 29 and 67 in 20-CV-1127 (JMF) and ECF Nos. 32 and 73 in 20-CV-1142 (JMF) as withdrawn; and (2) ECF No. 70 in 20-CV1127 (JMF) and ECF No. 76 in 20-CV-1142 (JMF) as moot. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/29/20) (yv) (Entered: 07/29/2020)
MEMORANDUM OPINION AND ORDER: For the reasons set forth within, the Clerk of Court is directed to terminate(1) ECF Nos. 29 and 67 in 20-CV-1127 (JMF) and ECF Nos. 32 and 73 in 20-CV-1142 (JMF) as withdrawn; and (2) ECF No. 70 in 20-CV1127 (JMF) and ECF No. 76 in 20-CV-1142 (JMF) as moot. (See ORDER.) (Signed by Judge Jesse M. Furman on 7/29/2020) (ab) (Entered: 07/29/2020)
CONSENT LETTER MOTION for Extension of Time addressed to Judge Jesse M. Furman from Zachary Bannon dated 8/7/2020. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 08/07/2020)
LETTER addressed to Judge Jesse M. Furman from Zachary Bannon dated 8/7/2020 re: Concessions. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 08/07/2020)
MEMO ENDORSEMENT on (94 in 1:20-cv-01127-JMF) and (92 in 1:20-cv-01142-JMF) CONSENT LETTER MOTION for Extension of Time: Application DENIED. Defendants' letter is a concession that, contrary to the position they took a mere ten days ago, see ECF No. 90, these cases are not moot. Given that, there is no reason to extend today's deadline for filing a motion to dismiss on mootness grounds. Put simply, in light of Defendants' belated concession, there is no motion to file. As for the August 10, 2020 deadline regarding attorney's fees, it is merely a deadline to

08/10/2020 08/10/2020
08/10/2020 08/10/2020 08/10/2020

propose a briefing schedule; submitting a proposed briefing schedule is not burdensome and does not preclude continuing settlement discussions. Accordingly, Defendants' requests are denied. That said, the Court will defer acting on Plaintiffs' unopposed cross-motion for summary judgment until at least August 12, 2020, to permit the parties' goodfaith settlement negotiations to continue. Additionally, August 12, 2020, remains the deadline for Defendants to file a comprehensive report of the inaccurate and misleading statements reflected on the record of these matters (and related declarations). The Clerk of Court is directed to terminate 20-CV-1127, ECF No. 94, and 20-CV-1142, ECF No. 92. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/7/2020) (ab) (Entered: 08/07/2020)

JOINT LETTER addressed to Judge Jesse M. Furman from all

95

parties dated August 10, 2020 re: Proposed Briefing Schedule for

Attorney's Fees Motion. Document filed by Jamil Dakwar, John

Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul

VanDeCarr..(Gemmell, Antony) (Entered: 08/10/2020)

MEMO ENDORSEMENT on re: (95 in 1:20-cv-01142-JMF)

96

Letter, filed by Jamil Dakwar, Paul VanDeCarr, S.T., John

Harland Giammatteo, R. L'Heureux Lewis-McCoy, (97 in 1:20-cv-

01127-JMF) Letter filed by State of New York.

ENDORSEMENT: The proposed briefing schedule is ADOPTED.

SO ORDERED. (Motions due by 8/31/2020., Responses due by

9/10/2020, Replies due by 9/17/2020.) (Signed by Judge Jesse M.

Furman on 8/10/2020) (kv) (Entered: 08/10/2020)

97 NOTICE OF APPEARANCE by Jeffrey Stuart Oestericher on behalf of Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Oestericher, Jeffrey) (Entered: 08/10/2020)

98 LETTER MOTION for Extension of Time to provide report required by ECF No. 90 addressed to Judge Jesse M. Furman from Associate United States Attorney John M. McEnany dated 08/10/2020. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Oestericher, Jeffrey) (Entered: 08/10/2020)

99 ORDER with respect to 98 Letter Motion for Extension of Time to provide report required by ECF No. 90. Plaintiffs shall file any response to this request by noon tomorrow. (HEREBY ORDERED

by Judge Jesse M. Furman)(Text Only Order) (Furman, Jesse) (Entered: 08/10/2020)

08/11/2020 100

JOINT LETTER addressed to Judge Jesse M. Furman from Plaintiffs dated August 11, 2020 re: Defendants' Extension Request. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 08/11/2020)

08/11/2020 101

ORDER granting 98 Letter Motion for Extension of Time. To ensure that the Government's report is comprehensive and accurate, the deadline is hereby extended to September 4, 2020. In view of the fact that the review is being conducted by a member of the U.S. Attorney's Office's executive team, the report should also address what steps, if any, the U.S. Attorney's Office (and the Department of Justice generally) is taking, or will take, to ensure that the problems identified in the review do not recur. The Clerk of Court is directed to terminate 20-CV-1127, ECF No. 100, and 20-CV-1142, ECF No. 98. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/11/20) (yv) (Entered: 08/11/2020)

08/12/2020

102 LETTER MOTION for Extension of Time of the Court's deferral of action on Plaintiffs' unopposed cross-motion for summary judgment addressed to Judge Jesse M. Furman from Counsel for All Parties dated August 12, 2020. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Kim, Elizabeth) (Entered: 08/12/2020)

08/12/2020 103

ORDER granting 102 Letter Motion for Extension of Time. Application GRANTED. The parties are warned, however, that further extensions are unlikely to be granted. The Clerk of Court is directed to terminate 20-CV-1127, ECF No. 104 and 20-CV-1142, ECF No. 102. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/12/20) (yv) (Entered: 08/12/2020)

08/27/2020 104

ORDER: Accordingly, the parties are hereby ORDERED to file a status letter no later than August 31, 2020, advising the Court of the current status of the parties' good-faith negotiations toward settlement of Plaintiffs' claims for attorney's fees and costs. The parties should also address whether there is any reason to continue deferring action on Plaintiffs' unopposed motion for partial summary judgment. And as set forth herein. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/27/2020) (ama) (Entered: 08/27/2020)

08/28/2020 105

LETTER MOTION for Extension of Time for Fees Motion Briefing addressed to Judge Jesse M. Furman from Plaintiffs dated August 28, 2020. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 08/28/2020)

08/31/2020

106 ORDER granting 105 Letter Motion for Extension of Time. Application GRANTED. The proposed briefing schedule is adopted. In addition, any response by Plaintiffs to Defendants' report on inaccuracies shall be filed no later than September 11, 2020. The Clerk of Court is directed to terminate 20-CV-1127, ECF No. 107 and 20-CV-1142, ECF No. 105. SO ORDERED. (Motions due by 9/14/2020.). (Signed by Judge Jesse M. Furman on 8/31/20) (yv) (Entered: 08/31/2020)

08/31/2020

Set/Reset Deadlines: Responses due by 9/24/2020. Replies due by 10/1/2020. (yv) (Entered: 08/31/2020)

08/31/2020 107

STATUS REPORT. Joint Status Report Concerning Settlement Negotiations Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 08/31/2020)

08/31/2020 108

LETTER addressed to Judge Jesse M. Furman from Zachary Bannon dated 8/31/2020 re: Plaintiffs' Motion for Summary Judgment. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 08/31/2020)

09/04/2020 109

LETTER MOTION to Seal Portions of the Government's Report addressed to Judge Jesse M. Furman from Zachary Bannon dated 9/4/2020. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 09/04/2020)

09/04/2020

110 ***EX-PARTE*** LETTER addressed to Judge Jesse M. Furman from John McEnany dated 9/4/2020 re: the Government's Report. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. (Attachments: # 1 Acosta Declaration (Ex Parte), # 2 Perez Declaration (Ex Parte))Motion or Order to File

Under Seal: 109 .(Bannon, Zachary) (Entered: 09/04/2020)

09/04/2020 111

LETTER addressed to Judge Jesse M. Furman from John McEnany dated 9/4/2020 re: the Government's Report. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad

Wolf. (Attachments: # 1 Acosta Declaration (Public), # 2

Perez Declaration (Public)).(Bannon, Zachary) (Entered: 09/04/2020)

09/10/2020 112

LETTER RESPONSE in Opposition to Motion addressed to Judge Jesse M. Furman from Antony Gemmell dated September 10,

2020 re: 109 LETTER MOTION to Seal Portions of the Government's Report addressed to Judge Jesse M. Furman from Zachary Bannon dated 9/4/2020. . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 09/10/2020)

09/11/2020 113

LETTER addressed to Judge Jesse M. Furman from Jordan Laris Cohen dated September 11, 2020 re: In Response to Court's July 29, 2020 Order. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Cohen, Jordan) (Entered: 09/11/2020)

09/14/2020 114

ORDER: For the reasons set forth within, no later than September 21, 2020, Defendants shall identify with specificity the grounds upon which they assert privilege for each proposed redaction in their report and declarations. Defendants shall also address whether, insofar as the Court did not order them to submit allegedly privileged documents in connection with the report, disclosure of the unredacted documents to the Court constitutes waiver of any or all of the privileges asserted. Plaintiffs shall file a response no later than September 28, 2020. If the Court orders any portions of the report unredacted, the Court will give Plaintiffs an opportunity to supplement their response filed on September 11, 2020. See ECF No. 115. Finally, upon reflection, the Court concludes that any fee application by Plaintiffs should be deferred until resolution of the foregoing matters and whether any further inquiry is warranted. Accordingly, the deadlines for filing a fees motion are ADJOURNED sine die. (Signed by Judge Jesse M. Furman on 9/14/2020) (ab) (Entered: 09/14/2020)

09/21/2020

115 MEMORANDUM OF LAW in Support re: 109 LETTER MOTION to Seal Portions of the Government's Report addressed

09/21/2020 09/21/2020 09/28/2020
10/08/2020 10/08/2020

to Judge Jesse M. Furman from Zachary Bannon dated 9/4/2020. . Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. (Attachments: # 1 Ferrera Declaration, # 2 Dorey Declaration, # 3 Privilege Log (Redacted)).(Bannon, Zachary) (Entered: 09/21/2020)
116 LETTER MOTION to Seal Portions of the Privilege Log addressed to Judge Jesse M. Furman from Zachary Bannon dated 9/21/2020. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 09/21/2020)
117 ***EX-PARTE***NOTICE of Privilege Log. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. Motion or Order to File Under Seal: 116 .(Bannon, Zachary) (Entered: 09/21/2020)
118 JOINT MEMORANDUM OF LAW in Opposition re: 116 LETTER MOTION to Seal Portions of the Privilege Log addressed to Judge Jesse M. Furman from Zachary Bannon
dated 9/21/2020., 109 LETTER MOTION to Seal Portions of the Government's Report addressed to Judge Jesse M. Furman from Zachary Bannon dated 9/4/2020. . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 09/28/2020)
119 LETTER addressed to Judge Jesse M. Furman from Zachary Bannon dated October 8, 2020 re: Restoration of TTP Applications and Memberships. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 10/08/2020)
120 ORDER re: 119 Letter filed by United States Customs and Border Protection, Mark Morgan, Chad Wolf, United States Department of Homeland Security: Because Defendants do not suggest otherwise, the Court assumes that, notwithstanding these developments, there are other "lingering operational effects" of the TTP Decision that mean these cases are still not moot. ECF No. 92
, at 2. No later than tomorrow, October 9, 2020, at 3 p.m., Plaintiffs shall file a letter indicating whether they agree or

whether they believe that these cases are, in fact, now moot. (Either way, Defendants' submissions regarding their misrepresentations - and the parties' submissions regarding whether or to what extent those submissions should be maintained sealed - will remain under advisement.) (HEREBY ORDERED by Judge Jesse M. Furman) (Text Only Order) (Furman, Jesse) (Entered: 10/08/2020)

10/09/2020

121 LETTER addressed to Judge Jesse M. Furman from Antony Gemmell dated October 9, 2020 re: Plaintiffs' letter regarding mootness. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 10/09/2020)

10/13/2020 122

OPINION AND ORDER re: (78 in 1:20-cv-01127-JMF) CROSS MOTION for Partial Summary Judgment . filed by State of New York, (84 in 1:20-cv-01142-JMF) CROSS MOTION for Partial Summary Judgment . filed by Jamil Dakwar, Paul VanDeCarr, S.T., John Harland Giammatteo, R. L'Heureux Lewis-McCoy. By making a decision that may well have been pretextual, and was certainly arbitrary and capricious, Defendants undermined the "core constitutional and democratic values" underlying the APA. New York, 351 F. Supp. 3d at 518. Making matters worse, when forced by Plaintiffs to defend their decision in court, Defendants initially did so by repeating their misleading, if not false, representations, in some instances under oath. To their credit, Defendants eventually admitted that their decision had been legally indefensible. But it is hard to imagine that they would have done so but for the "thorough, probing, [and] in-depth review" that they faced by virtue of Plaintiffs' lawsuits. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). The result is a vivid reminder of the "important" role that courts play "in ensuring that agencies have engaged in reasoned decision making." Judulang v. Holder, 565 U.S. 42, 53 (2011). For the reasons stated above, Plaintiffs' unopposed motion for summary judgment is GRANTED, the TTP Decision (to the extent that it is still in effect or having an effect) is formally VACATED, and the matter is remanded to DHS. Within one week of this Opinion and Order, the parties shall confer and submit a joint letter addressing whether there is a need or basis for additional remedies and, if there is disagreement, proposing a procedure to resolve it. If the parties agree that there is no need or basis for other remedies, Plaintiffs shall submit a proposed judgment consistent with this Opinion and Order (on ECF and, simultaneously, by email in Microsoft Word format) by the same date. The Clerk of Court is

directed to terminate 20-CV-1127, ECF No. 78 and 20-CV-1142, ECF No. 84. SO ORDERED. (Signed by Judge Jesse M. Furman on 10/13/2020) (ks) Transmission to Orders and Judgments Clerk for processing. (Entered: 10/13/2020)

10/20/2020

123 JOINT LETTER addressed to Judge Jesse M. Furman from All Parties dated 10/20/20 re: Further Remedies. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux LewisMcCoy, S.T., Paul VanDeCarr..(Cohen, Jordan) (Entered: 10/20/2020)

10/21/2020 124

MEMO ENDORSEMENT on re: (123 in 1:20-cv-01142-JMF) Letter further remedies filed by Jamil Dakwar, Paul VanDeCarr, S.T., John Harland Giammatteo, R. L'Heureux Lewis-McCoy, (125 in 1:20-cv-01127-JMF) Letter filed by State of New York. ENDORSEMENT: If the parties can agree on a stipulation that would provide Plaintiffs with the assurances they seek pending a final ruling (which, in the Court's view, should be feasible given Defendants' statements above and in the D.C. litigation), the Court is prepared to adopt Defendants' less aggressive briefing schedule. In the meantime, however, Plaintiffs' proposal is adopted. Accordingly, Plaintiffs shall file their motion for injunctive relief or other remedies by October 27, 2020; Defendants shall file any opposition by November 3, 2020 (even though the Court is closed on that date for Election Day); and Plaintiffs shall file any reply by November 6, 2020. If the parties reach agreement on a stipulation, they should include a modified briefing schedule in the stipulation and submit it to the Court to be so ordered. So Ordered, ( Motions due by 10/27/2020., Responses due by 11/3/2020, Replies due by 11/6/2020.) (Signed by Judge Jesse M. Furman on 10/21/20) (yv) (Entered: 10/21/2020)

10/26/2020

125 PROPOSED STIPULATION AND ORDER. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 10/26/2020)

10/26/2020 126

STIPULATION AND ORDER, IT IS STIPULATED AND AGREED, by and between the parties, as follows: 1. CBP will not re-institute a ban on Trusted Traveler Program enrollment for New York residents before this Court has had an opportunity to consider plaintiffs' request for injunctive relief. 2. The parties' briefing schedule on plaintiffs' anticipated application shall be amended as follows, upon the Court's entry of this stipulation: By November 13, 2020, plaintiffs will file their motion for additional relief. By December 7, 2020, defendants will file an opposition to

plaintiffs' motion. By December 14, 2020, plaintiffs will file any reply in support of their motion. 3. This stipulation contains the entire agreement between the parties, and any statements, representations, promises, agreements, or negotiations, oral or otherwise, between the parties that are not included herein are of no force or effect. So Ordered. ( Motions due by 11/13/2020., Responses due by 12/7/2020, Replies due by 12/14/2020.) (Signed by Judge Jesse M. Furman on 10/26/20) (yv) (Entered: 10/26/2020)

11/13/2020 127

JOINT MOTION for Permanent Injunction . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux LewisMcCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 11/13/2020)

11/24/2020

128 LETTER addressed to Judge Jesse M. Furman from Zachary Bannon dated 11/24/2020 Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 11/24/2020)

12/02/2020

129 LETTER MOTION to Seal Portions of the Acosta Declaration addressed to Judge Jesse M. Furman from Zachary Bannon dated 12/2/2020. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 12/02/2020)

12/02/2020

130 DECLARATION of Pete R. Acosta . Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 12/02/2020)

12/02/2020

131 ***EX-PARTE***DECLARATION of Pete R. Acosta . Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf. Motion or Order to File Under Seal: 129 .(Bannon, Zachary) (Entered: 12/02/2020)

12/03/2020

132 LETTER RESPONSE in Opposition to Motion addressed to Judge Jesse M. Furman from Antony Gemmell dated December 3, 2020 re: 129 LETTER MOTION to Seal Portions of the Acosta Declaration addressed to Judge Jesse M. Furman from Zachary Bannon dated 12/2/2020. . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 12/03/2020)

12/07/2020

133 MEMORANDUM OF LAW in Opposition re: 127 JOINT MOTION for Permanent Injunction . . Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary) (Entered: 12/07/2020)

12/14/2020

134 JOINT REPLY MEMORANDUM OF LAW in Support re: 127

JOINT MOTION for Permanent Injunction . . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 12/14/2020)

12/17/2020

135 INTERNET CITATION NOTE: Material from decision with

Internet citation re: 122 (Entered: 12/17/2020)

Memorandum & Opinion. (sjo)

01/19/2021 136

MEMORANDUM OPINION AND ORDER re: (129 in 1:20-cv01127-JMF) JOINT MOTION for Permanent Injunction . filed by State of New York, (127 in 1:20-cv-01142-JMF) JOINT MOTION for Permanent Injunction . filed by Jamil Dakwar, Paul VanDeCarr, S.T., John Harland Giammatteo, R. L'Heureux LewisMcCoy. Plaintiffs' injuries have been, or will be, fully remedied by the TTP Decision's rescission and vacatur, see Defs.' Mem. 3 & n.5, and Plaintiffs fail to demonstrate that a departure from the APA's standard remedy of vacatur and remand is warranted. The Clerk of Court is directed to terminate 20-CV-1127, ECF No. 129 and 20-CV-1142, ECF No. 127.5 SO ORDERED. (Signed by Judge Jesse M. Furman on 1/19/21) (yv) (Entered: 01/19/2021)

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 Case 1:20-cv-01142-JMF Document 1 Filed 02/10/20 Page 1 of 22

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

R. L’HEUREUX LEWIS-MCCOY, JAMIL DAKWAR, and JOHN HARLAND GIAMMATTEO, on behalf of themselves and all similarly situated individuals,
Plaintiffs,
v.
CHAD WOLF, in his official capacity as Acting Secretary of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; MARK MORGAN, in his official capacity as Acting Commissioner of United States Customs and Border Protection; and UNITED STATES CUSTOMS AND BORDER PROTECTION,
Defendants.

Case No. 1:20-cv-1142
CLASS ACTION COMPLAINT

INTRODUCTION 1. This class-action lawsuit challenges the most recent effort by the Trump Administration to target immigrants and the states that seek to protect them. From the very day of his inauguration, President Trump has imposed a wide range of punitive, discriminatory, and irrational measures on immigrant communities in the United States, as well as on refugees and asylum-seekers fleeing violence and persecution abroad. New York, which is home to millions of immigrants, has been a particular target for President Trump. 2. In last week’s State of the Union address, President Trump singled out New York for criticism because of efforts taken in the State to protect immigrant communities. One day later, President Trump’s Acting Secretary of Homeland Security, Chad Wolf, announced a

Case 1:20-cv-01142-JMF Document 1 Filed 02/10/20 Page 2 of 22
blanket ban on New York residents’ eligibility to enroll or re-enroll in various programs that enable vetted and approved travelers entering the United States to expedite the border clearance process. The best known of these programs is Global Entry, a program for which millions of people have been approved, including hundreds of thousands of New Yorkers.
3. The Trump Administration claims this abrupt and unprecedented ban on New Yorkers’ participation in the Global Entry program is necessitated by security concerns raised by New York’s recently enacted Green Light Law. That law, which authorizes the issuance of driver’s licenses regardless of citizenship or immigration status, limits federal immigration officials’ access to state Department of Motor Vehicles records. But the Administration’s claim is specious. In fact, that access would provide no relevant information not otherwise available about many if not most New York residents applying for Global Entry, and any information DMV alone may possess would have little or no bearing on their eligibility for the program.
4. In truth, the Trump Administration’s closing of Global Entry and the other expedited-traveler programs to New Yorkers is little more than an attempt to coerce New York into participating in federal immigration enforcement by forcing State officials into disclosing sensitive data about driver’s license applicants. To accomplish this, the administration has unlawfully banned millions of otherwise-eligible New Yorkers from even applying for Global Entry and the other programs. The ban immediately affects about 80,000 New York residents whose applications were pending when the ban went into effect and another 175,000 whose memberships will expire this year but will be barred from attempting to re-enroll.
5. The Trump Administration’s abrupt and summary termination of Global Entry for New York residents is simply another punitive and irrational measure directed at immigrant communities and is one that undermines public safety. It violates the Administrative Procedure
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Act and the United States Constitution, and the plaintiffs respectfully seek a declaration that the termination is unlawful, an order enjoining it, and attorney’s fees.
PARTIES Named Plaintiffs
6. Plaintiff R. L’Heureux Lewis-McCoy is a resident of New York, New York whose application to Global Entry was pending when the defendants barred all New York residents from the program.
7. Plaintiff Jamil Dakwar is a resident of New York, New York whose application to Global Entry was pending when the defendants barred all New York residents from the program.
8. Plaintiff John Harland Giammatteo is a resident of New York, New York who wishes to enroll in Global Entry but cannot because the defendants have barred all New York residents from the program. Defendants
9. Defendant Chad Wolf is the Acting Secretary of the United States Department of Homeland Security. He is sued in his official capacity.
10. Defendant United States Department of Homeland Security (“DHS”) is a cabinet agency within the executive branch of the United States Government, and is an agency within the meaning of 5 U.S.C. § 552(f). DHS is the parent agency of United States Customs and Border Protection and United States Immigration and Customs Enforcement (“ICE”).
11. Defendant Mark Morgan is the Acting Commissioner of United States Customs and Border Protection. He is sued in his official capacity.
12. Defendant United States Customs and Border Protection (“CBP”) is a component agency of DHS, and is an agency within the meaning of 5 U.S.C. § 552(f). It is the law-
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enforcement agency primarily tasked with border protection. CBP administers various programs, including Global Entry, that provide expedited entry into the United States for program members.
FACTS The Trump Administration’s Retaliation Against Jurisdictions that Do Not Enforce Its Anti-Immigrant Agenda 13. Since the beginning of his presidency, President Trump has pursued a cruel antiimmigrant agenda that has sought to vilify and scapegoat immigrants. President Trump has repeatedly made derogatory comments about immigrants, calling undocumented immigrants “animals,” saying, “You wouldn’t believe how bad these people are. These aren’t people, these are animals . . . .”1 He further referred to undocumented immigrants as an “infestation” and compared immigrants and refugees to a “snake” that will “bite[]” those who help it.2 14. Just days after the inauguration, the Trump Administration openly targeted states and municipalities that limit their cooperation with immigration authorities in an effort to protect immigrant communities. On January 25, 2017, President Trump issued Executive Order 13768, which unlawfully threatened to deny federal grant funding to all so-called “sanctuary jurisdictions.” The White House confirmed the order’s clear purpose: “We’re going to strip federal grant money from the sanctuary cities and states that harbor illegal immigrants.”
1 Julie Hirschfield Davis, Trump Calls Some Unauthorized Immigrants ‘Animals’ in Rant, N.Y. Times (May 16, 2018), https://www.nytimes.com/2018/05/16/us/politics/trump-undocumented-immigrantsanimals.html. 2 Donald J. Trump (@realDonaldTrump), Twitter (June 19, 2018, 9:52 am), https://twitter.com /realdonaldtrump/status/1009071403918864385; Dan Merica, Trump reads ‘The Snake,’ repurposed as anti-immigrant poem, at CPAC, CNN (Feb. 25, 2018), at https://www.cnn.com/2018/02/23/politics/trump-the-snake-song/index.html.
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15. In January 2018, President Trump claimed so-called “sanctuary cities” were “the best friends of gangs and cartels.” In March 2018, the Trump Administration sued the State of California to enjoin three state laws that protect immigrants and limit the information that state officials may share with federal immigration enforcement authorities. In April 2018, Trump made derogatory comments about sanctuary cities in California, saying “many Sanctuary areas want OUT of this ridiculous, crime infested & breeding concept.”3
16. Similarly, on April 12, 2019, President Trump confirmed reports that his administration was planning to send undocumented immigrants to “Sanctuary Cities,” tweeting: “Due to the fact that Democrats are unwilling to change our very dangerous immigration laws, we are indeed, as reported, giving strong considerations to placing Illegal Immigrants in Sanctuary Cities only.”4
17. Defendant Wolf has echoed the President’s views. In December 2019 he stated, “[S]anctuary policies do not protect communities, they endanger them,” and referred to such policies as “devastating.” On January 15, 2020, he tweeted, “There has been a complete breakdown of law & order in New York City. NYC proudly passed sanctuary city laws & bragged about it for months. But now they, & more importantly, the citizens of NYC are facing the deadly consequences of the sanctuary policies.”5
18. President Trump has taken particular aim at New York and its support of immigrant communities. At the State of the Union on February 4, 2020, President Trump cited
3 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 18, 2018, 5:59 am), https://twitter.com /realdonaldtrump/status/986544648477868032?lang=en. 4 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 12, 2019, 12:38 pm), https://twitter.com /realdonaldtrump/status/1116742280919044096?lang=en. 5 Acting Secretary Chad Wolf (@DHS_Wolf), Twitter (Jan. 15, 2020, 7:14 pm), https://twitter.com /dhs_wolf/status/1217600924744585216?lang=en.
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New York specifically and repeated his false claims about sanctuary cities being havens for crime. New York’s Driver’s License Access and Protection Act
19. In stark contrast to the Trump Administration, New York officials have sought to protect immigrant communities from hyper-aggressive and unwarranted enforcement measures, both as a matter of respect and to promote public safety.
20. In June 2019, New York State enacted the Driver’s License Privacy and Protection Act, commonly referred to as the “Green Light Law.” That law, which went into effect on December 14, 2019, authorizes the issuance of standard driver’s licenses regardless of citizenship status.
21. Concerned about the Trump Administration’s attacks on immigrants and its pattern of seeking to coerce states into engaging in federal immigration enforcement, New York State chose to include in its Green Light Law restrictions on access to databases that are maintained by its Department of Motor Vehicles (“DMV”) and that contain certain information about those applying for driver’s licenses. Specifically, absent a judicial warrant, the Green Light Law bars access to DMV-maintained records by “any agency that primarily enforces immigration law,” including CBP and ICE. The Global Entry Program
22. The federal government operates several programs designed to expedite border crossings for vetted and approved travelers. Referred to generally as “Trusted Traveler Programs,” the best known of these programs is Global Entry.
23. Global Entry allows expedited border clearance for pre-approved, low-risk travelers arriving to the United States. Upon arrival in the United States at many airports, a
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program member may proceed to a Global Entry kiosk, present their machine-readable passport or U.S. permanent resident card, place their fingerprints on the scanner for fingerprint verification, and complete a customs declaration. The Global Entry kiosk issues the traveler a transaction receipt and directs the traveler to baggage claim and the exit.
24. The federal government has approved millions of people to participate in Global Entry, including qualifying U.S. citizens, lawful permanent residents, and citizens of 11 other countries with whom CBP has made certain arrangements.6 Membership in Global Entry includes the TSA PreCheck benefit, which expedites traveler screening through domestic airport security checkpoints.
25. DHS established Global Entry and the other Trusted Traveler Programs pursuant to a statute directing the Secretary of DHS to “establish an international registered traveler program” in order to “expedite the screening and processing of international travelers, including United States Citizens and residents, who enter and exit the United States.”
26. In requiring DHS to create the program, Congress found that expediting “the travel of previously screened and known travelers across the borders of the United States should be a high priority” and that the “process of expediting known travelers across the borders of the United States can permit inspectors to better focus on identifying terrorists attempting to enter the United States.”
27. To that end, Congress provided that DHS “shall ensure that the international registered traveler program includes as many participants as practicable by (i) establishing a reasonable cost of enrollment; (ii) making program enrollment convenient and easily accessible; and (iii) providing applicants with clear and consistent eligibility guidelines.”
6 Those countries are Argentina, Columbia, Germany, India, Mexico, Panama, Singapore, South Korea, Switzerland, and Taiwan.
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28. In June 2008, CBP began operating a pilot Global Entry program, which was successful. According to the agency’s analysis of the pilot program, “The increased volume of traffic to the kiosks by proven low-risk travelers allows CBP officers more time and resources to address higher risk security concerns” and thereby improve overall security.
29. CBP issued a notice of proposed rulemaking to establish Global Entry as permanent program on November 19, 2009 and published a final rule on February 6, 2012. Global Entry has since been available across the country.
30. Consistent with the congressional mandate to maximize participation in the program, the eligibility criteria for applying for the program are broad. Specifically, the program is open to any U.S. citizen, U.S. national, U.S. lawful permanent resident, and “‘nonimmigrant aliens’ from countries that have entered into arrangements with CBP concerning international trusted traveler programs.” Additionally, any applicant under the age of 18 must have the consent of a parent or legal guardian. All applicants must have a valid “machine-readable passport, a valid machine readable U.S. Lawful Permanent Resident Card (Form I-155), or other appropriate travel document as determined by CBP.”
31. Global Entry’s criteria do not require applicants to have a driver’s license, a driving record, or even residence in the United States.
32. Under these criteria, upon information and belief, millions of New York residents are eligible to apply for Global Entry.
33. When applying for Global Entry, applicants must provide extensive personal information, including name, date of birth, city of birth, country of birth, state of birth, e-mail address, phone number, gender, eye color, height, and prior names used. The applicant must also
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provide information indicating proof of citizenship and proof that the applicant may enter the country, like a passport or lawful permanent resident card.
34. A non-refundable fee of $100 is required with each completed application to submit the application.
35. Once they have submitted their applications, applicants undergo a multi-prong screening process. As part of that process, CBP routes the applications to a vetting center where their biographic information contained in the applications is queried against 21 different data systems, including:
a. UPAX, a consolidated database that includes information to help identify “potential terrorists, transnational criminals, and other persons who pose a higher risk of violating U.S. law”;
b. TECS, data repository that supports “law enforcement ‘lookouts,’ border screening, and reporting for CBP’s primary and secondary inspection processes”;
c. IDENT, which stores and processes biometric data “to establish and verify identities,” including biometric information from INTERPOL;
d. The FBI’s National Crime Information Center’s Interstate Identification Index, an automated database that integrates criminal history records from federal, state, local, tribal, and certain foreign criminal justice agencies; and
e. TSDB, a consolidated database maintained by FBI’s Terrorist Screening Center that “provides information about those known or reasonably suspected of being involved in terrorist activity.”
36. CBP also claims that prior to the Green Light Law, it accessed information from New York’s DMV records as part of the Global Entry vetting process related to aspects of an individual’s criminal history. It is unclear, however, that New York’s DMV data related to possible criminal offenses is not available elsewhere. Moreover, upon information and belief, the only information that is potentially uniquely in DMV records relates to an individual’s New
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York driving record — if they even have one — including convictions for driving while under the influence of drugs or alcohol.
37. After the vetting process, if CBP conditionally approves the application, the applicant is notified to schedule an interview at an approved Global Entry Enrollment Center or certain international airports upon arrival in the United States.
38. On the date of the scheduled interview, the applicant is required to bring their application documents and one other form of identification, like a government-issued identification card. At the interview, CBP conducts a personal interview, obtains biometric information (including a set of fingerprints and a digital photograph), and addresses any additional eligibility questions.
39. Once an application is approved, the new member receives a Global Entry card. Membership in the Global Entry program lasts for a period of 5 years so long as the application is not suspended or terminated by CBP.
40. Global Entry program members may renew their enrollment beginning one year prior to the expiration of the five-year membership. If the member submits a renewal application before their prior Global Entry membership expires, that applicant is allowed to use their Global Entry card for up to six months after the membership application date regardless of whether the card expires, in case the renewal does not get processed prior to expiration.
41. A participant in Global Entry “may be suspended or removed from the program” for reasons including that they no longer meet the program eligibility criteria, or that CBP “determines that such action is otherwise necessary.” The regulations further provide that “[i]f an applicant is denied participation in Global Entry, CBP will notify the applicant of the denial,
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and the reasons for the denial. CBP will also provide instructions regarding how to proceed if the applicant wishes to seek additional information as to the reason for the denial.”
42. The background-check requirements that CBP imposes on Global Entry applicants who are foreign nationals living outside the U.S. vary by country. For example, applicants who are resident in Taiwan must “obtain a Police Criminal Record Certificate from their local Taiwan Police Department,” but there is no such requirement on applicants living in Panama.
43. Upon information and belief, CBP has approved Global Entry applications from non-residents — including both U.S. and non-U.S. citizens — residing in jurisdictions that do not share with the defendants the particular information that they now purport CBP requires to determine the Global Entry eligibility of New York residents.
DHS Bans All New York Residents from Global Entry and Other TTPs. 44. In his State of the Union address on February 4, 2020, President Trump singled
out New York for criticism because of efforts in the state to protect immigrants. The following day defendant Wolf announced on Fox News’s Tucker Carlson Tonight that he had sent a letter to New York officials immediately suspending enrollment and re-enrollment in Global Entry and other Trusted Traveler Programs (“TTPs”) for all New York State residents.
45. Defendant Wolf’s February 5 letter announced an unprecedented change to the eligibility requirements for Global Entry and other TTPs: “New York residents will no longer be eligible to enroll or re-enroll in CBP’s Trusted Traveler Programs,” including Global Entry (the “New York Ban”).
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46. In announcing the New York Ban, defendant Wolf claimed banning New York’s nearly 20 million residents from applying for Global Entry was necessitated by the provision of the New York’s Green Light Law that bars immigration officials from accessing the state’s DMV records. In support of this sweeping action, however, the letter offers only one rationale: “The [Green Light Law] prevents DHS from accessing relevant information that only New York DMV maintains, including some aspects of an individual’s criminal history.” The letter does not identify the specific information it refers to and offers little explanation as to how losing access to that information affects the Global Entry vetting process.
47. Notably, this rationale does not apply to over 3.5 million New York residents for whom DMV maintains no records but who may otherwise be eligible to apply for Global Entry.
48. Most of defendant Wolf’s letter makes clear that DHS’s termination of Global Entry for New York residents is simply an attempt to force New York officials to cooperate in federal immigration enforcement by making DMV records available to ICE. While spending precious little time explaining any actual impact on Global Entry, defendant Wolf’s letter devotes substantial space to claiming that losing access to DMV records has impaired law-enforcement activities by ICE.
49. On February 6, 2020, CBP issued a press release entitled “New York Residents No Longer Eligible to Apply for or Renew Trusted Traveler Programs.” The release states:
Effective immediately, . . . . New York residents will no longer be eligible to apply for or renew membership in CBP Trusted Traveler Programs and CBP will cancel all pending Trusted Traveler Program applications submitted by residents of New York. Refunds will be processed automatically. 50. At the time of the filing of this complaint, notifications on CBP’s website, including on the webpage for Global Entry, confirm that New York residents are ineligible for Global Entry:
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51. New York State residents who attempt to enroll in the Global Entry program online now receive an error message and cannot complete their applications:
52. Similarly, a fact sheet provided by the Government to an applicant turned away from his interview at JFK International Airport on February 9 states clearly that CBP has cancelled all applications for residents of New York: “Conditionally approved TTP applicants
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pending an enrollment interview and TTP applications pending risk assessment will be cancelled and issued a fee reimbursement.”
53. Upon information and belief, the New York Ban affects approximately 255,000 New York State residents. Over 80,000 residents — like named plaintiffs Lewis-McCoy and Dakwar — had pending applications for enrollment or reenrollment in Global Entry and other TTPs when the New York Ban went into effect. And by the end of 2020, approximately 175,000 New Yorkers who have been vetted and approved will be removed from TTPs, including Global Entry, because they now are barred from re-enrolling. Beyond those whose current enrollment or pending applications are immediately affected, the New York Ban bars millions of other New York residents — like named plaintiff Giammatteo — who might want to apply for the first time from doing so.
54. Upon information and belief, the curtailing of CBP access to New York’s DMV records has little if any effect on the agency’s ability to assess applicants for Global Entry.
55. As an initial matter, DMV possesses no records regarding millions of New York residents eligible to apply for Global Entry. Many New York residents do not drive and have never applied for a driver’s license.
56. As for those New York residents about whom DMV may possess records, upon information and belief many if not most of those records will contain no information that CBP itself would consider relevant to approval for Global Entry that it does not otherwise access through its other vetting processes.
57. Even for those New York residents whose DMV records contain information CBP might consider relevant to approval for Global Entry, that information is of extremely limited
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consequence given that the only information that DMV alone may possess potentially involves certain driving-related offenses.
58. Finally, before the passage of the Green Light Law, CBP may not have consistently accessed DMV records as part of its Global Entry vetting process. The plaintiffs are unaware of any reports or evidence establishing that CBP was using DMV records in this way.
59. Not only does the New York Ban bar millions of New York residents about whom DMV records contain little or no relevant information, it leaves the program open to persons about whom those records may contain considerable relevant information. Specifically, any person who moves out of New York — for instance to adjoining New Jersey, Connecticut, or Pennsylvania — becomes eligible to apply for Global Entry. A fact sheet provided to an applicant turned away from his interview at JFK International Airport on February 9 states, “If there has been a change in residence (outside i.e., [sic] if an applicant moves from the State of New York to a different state) applicants may reapply with their new information.”
60. Under the New York Ban, a U.S. citizen currently residing in New York could become eligible to apply by moving abroad and establishing residence in any foreign in country in the world, regardless of CBP’s ability to obtain intelligence regarding persons residing in the country. Similarly, under the ban, citizens of Argentina or Germany or India are eligible to apply for Global Entry if they reside in their home country, but would lose that eligibility if they moved to New York.
61. Neither DHS nor CBP has ever before singled out residents of just one state to ban them from Global Entry or any other Trusted Traveler Program.
62. Upon information and belief, CBP has not notified individual applicants of their application statuses as a result of the New York Ban.
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63. As of the time of filing of this complaint, DHS has adopted a new force-of-law eligibility requirement — non-residence in New York — that governs the Global Entry program, without having followed the required notice-and-comment rulemaking process. Indeed, New York officials were surprised by the sudden announcement and did not have the opportunity to engage with DHS over its alleged concerns.
64. Addressing the New York Ban, Ken Cuccinelli, the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security, warned other states about passing laws similar to New York: “I know that the state of Washington is looking at a law like New York’s ‘Green Light Law.’” He further threatened, “They should know that their citizens are going to lose the convenience of entering these Trusted Traveler Programs, just as New York’s did.”
65. Mr. Cuccinelli has also threatened New Yorkers’ future participation in the Transportation Security Administration PreCheck program, saying “PreCheck is not currently on the list (of affected programs), but that is all I'll say about that. It doesn't mean it can’t be in the future.”
The Named Plaintiffs’ Attempts to Enroll in Global Entry R. L’Heureux Lewis-McCoy
66. Plaintiff R. L’Heureux Lewis-McCoy is a U.S. citizen who resides in New York, New York. He is an Associate Professor of Sociology of Education at the New York University Steinhardt School of Culture, Education, and Human Development.
67. Mr. Lewis-McCoy wishes to enroll in the Global Entry program to make international travel with his family and young children more convenient. Mr. Lewis-McCoy also
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hopes to teach a study abroad course, so Global Entry would help make his work-related travel smoother.
68. Mr. Lewis-McCoy has a valid, machine-readable U.S. passport and is eligible to apply for Global Entry.
69. Mr. Lewis-McCoy submitted a complete application for Global Entry online on October 21, 2019, and paid the required $100 application fee. His application was vetted and, upon information and belief, during the vetting process (and before the implementation of the Green Light Law), CBP had access the New York DMV information it claims it needs. Mr. Lewis-McCoy received his “conditional approval” to schedule an interview.
70. On November 5, 2019, Mr. Lewis-McCoy completed his in-person interview for his application for Global Entry at an approved enrollment center located on NYU’s campus. During the interview, Mr. Lewis-McCoy answered the agent’s routine questions like his name, date of birth, and the countries where he had travelled recently. The agent scanned a copy of his passport and his New York state driver’s license. She also took his picture and scanned his hand. Before the interview ended, the agent gave Mr. Lewis-McCoy her contact information and said that if he wanted to enroll his family in the program, as well, he could contact her and she would help enroll them.
71. After he learned New York residents would no longer be able to enroll in the Global Entry Program, Mr. Lewis-McCoy signed into his TTP portal account. His pending application no longer appears on his TTP dashboard and, upon information and belief, his application has been cancelled.
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Jamil Dakwar 72. Plaintiff Jamil Dakwar is a U.S. citizen who resides in New York, New York. He is the Director of the American Civil Liberties Union’s Human Rights Program, and an adjunct professor at Hunter College, Bard College, and John Jay College of Criminal Justice. 73. Mr. Dakwar is a frequent international traveler and wishes to enroll in the Global Entry to enjoy the convenience of expedited border processing when he returns to the United States. 74. Mr. Dakwar has a valid, machine-readable U.S. passport and meets is eligible to apply for Global Entry. 75. Mr. Dakwar submitted his Global Entry application online on January 9, 2020, and paid the required $100 application fee. 76. Upon information and belief, Mr. Dakwar’s application has been cancelled.
John Harland Giammatteo 77. Plaintiff John Harland Giammatteo is a U.S. citizen who lives in New York, New York. He is an immigration attorney in New York City. 78. Mr. Giammatteo is a frequent international traveler who wishes to enroll in Global Entry to benefit from expedited processing times at the airport. In addition, he believes that Global Entry membership would result in more predictable travel times, which would allow him to save time and plan his work and personal schedules more efficiently. 79. Mr. Giammatteo has a valid, machine-readable U.S. passport and is eligible to apply for Global Entry. 80. Mr. Giammatteo is now barred from applying for Global Entry.
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CLASS ALLEGATIONS 81. This case is brought as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of all New York State residents whose applications to enroll or re-enroll in Global Entry were pending at the time of the New York Ban or who otherwise intend to enroll or re-enroll in Global Entry. 82. The proposed class is sufficiently numerous that joinder of all members is impracticable. According to federal officials, approximately 80,000 New York State residents had applications to enroll in Global Entry and other TTPs pending when the defendants barred all the state’s residents from the programs, and approximately 175,000 others will be barred from applying to re-enroll in 2020 as their memberships expire. In addition, there are potentially tens or hundreds of thousands of other New York residents who may wish to apply for Global Entry. 83. Common questions of law and fact affect the class members, including without limitation:
a. Whether DMV information that CBP purports to require in determining New Yorkers’ eligibility for Global Entry is otherwise available to the Defendants;
b. Whether the defendants’ proffered reasons for barring New York residents from applying to enroll or re-enroll in Global Entry are pretextual;
c. Whether the defendants’ proffered reasons for barring New York residents from applying to enroll or re-enroll in Global Entry are otherwise arbitrary and capricious;
d. Whether the defendants exceeded their statutory or regulatory authority by barring New York residents from applying to enroll or re-enroll in Global Entry;
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e. Whether the defendants properly observed legal procedure in barring New York residents from applying to enroll or re-enroll in Global Entry; and
f. Whether the violated the equal sovereignty of the states and Tenth Amendment to the Constitution by barring New York residents from applying to enroll or reenroll in Global Entry.
84. The named plaintiffs’ claims are typical of those of the class with respect to the legality of the agency action at issue.
85. The named plaintiffs will fairly and adequately protect the interests of the class. They have suffered injury from the agency action at issue and are ready, willing, and able to serve as class representatives.
86. Proposed class counsel has extensive experience litigating similar matters on a class-wide basis.
87. The New York Ban applies generally to the entire class, so that final injunctive relief and corresponding declaratory relief is appropriate respecting the class.
JURISDICTION AND VENUE 88. The Court has subject-matter jurisdiction over the plaintiffs’ claims under the U.S. Constitution and federal law pursuant to 5 U.S.C. § 702 and 28 U.S.C. §§ 1331. 89. The declaratory and injunctive relief the plaintiffs seek is authorized pursuant to 28 U.S.C. §§ 2201 and 2202.
FIRST CLAIM FOR RELIEF Violations of the Administrative Procedure Act 90. The defendants’ actions as alleged in the Complaint are “arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
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91. The defendants’ actions as alleged in the Complaint are “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B).
92. The defendants’ actions as alleged in the Complaint are “in excess of statutory jurisdiction, authority, [and] limitations, [and] short of statutory right.” 5 U.S.C. § 706(2)(C).
93. The defendants’ actions as alleged in the Complaint are “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
SECOND CLAIM FOR RELIEF Violation of the Tenth Amendment to the United States Constitution 94. The defendants’ actions as alleged in the Complaint violate the Tenth Amendment to the United States Constitution.
RELIEF REQUESTED Wherefore, the plaintiffs respectfully requests that the Court:
a. Assume jurisdiction over this matter; b. Declare that the defendants’ actions violate the Administrative Procedure
Act; c. Declare that the defendants’ actions violate the Tenth Amendment to the
United States Constitution; d. Enjoin the defendants to rescind the bar on New York residents’ applying
to enroll or re-enroll in Global Entry; e. Award the plaintiffs reasonable attorney’s fees and costs; and f. Grant any other relief the Court deems just and proper.
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Dated:

February 10, 2020 New York, New York

NEW YORK CIVIL LIBERTIES UNION FOUNDATION
By: /s/ Antony P.F. Gemmell Antony P.F. Gemmell Molly K. Biklen Jessica Perry Jordan Laris Cohen* Christopher T. Dunn 125 Broad Street, 19th Floor New York, New York 10004 212-607-3300 agemmell@nyclu.org jperry@nyclu.org jlariscohen@nyclu.org mbiklen@nyclu.org cdunn@nyclu.org
Counsel for Named Plaintiffs and the Putative Class

* Application for admission to the Southern District of New York forthcoming

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 Case 1:20-cv-01142-JMF Document 136 Filed 01/19/21 Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

STATE OF NEW YORK,

:

:

Plaintiff,

:

:

-v-

:

:

CHAD F. WOLF, in his official capacity as Acting

:

Secretary of Homeland Security, et al.,

:

:

Defendants.

:

:

---------------------------------------------------------------------- X

:

R. L’HEUREUX LEWIS-MCCOY et al., on behalf of :

themselves and all similarly situated individuals,

:

:

Plaintiffs,

:

:

-v-

:

:

CHAD F. WOLF, in his official capacity as Acting

:

Secretary of Homeland Security, et al.,

:

:

Defendants.

:

:

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20-CV-1127 (JMF)
20-CV-1142 (JMF) MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:

Plaintiffs in these two lawsuits challenged a decision of the U.S. Department of

Homeland Security (“DHS”), announced in a February 5, 2020 letter (the “TTP Decision”), see

ECF No. 75-1 (“AR”), at 1-3, to suspend the eligibility of all New York residents to enroll or re-

enroll in the Trusted Traveler Programs (“TTPs”) operated by U.S. Customs and Border

Protection (“CBP”).1 On October 13, 2020, the Court issued an Opinion and Order, familiarity

with which is assumed, granting Plaintiffs’ motion for summary judgment, vacating the TTP

1

Unless otherwise noted, all references to docket entries are to 20-CV-1127.

Case 1:20-cv-01142-JMF Document 136 Filed 01/19/21 Page 2 of 5

Decision and remanding the matter to DHS. See New York v. Wolf, Nos. 20-CV-1127 (JMF), 20CV-1142 (JMF), 2020 WL 6047817, at *6 (S.D.N.Y. Oct. 13, 2020) (ECF No. 124). In so doing, the Court held that the TTP Decision was (1) reviewable under the Administrative Procedure Act (the “APA”) and (2) “plainly arbitrary and capricious” because “Defendants’ own admissions establish[ed] that, at the very least, DHS ‘entirely failed to consider an important aspect of the problem’ and ‘offered an explanation for its decision that r[an] counter to the evidence before the agency.’” Id. (quoting Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) (second alteration in original). The Court ordered the parties to “confer and submit a joint letter addressing whether there is a need or basis for additional remedies.” Id.
In their letter, Plaintiffs indicated that “the Court should consider a permanent injunction that prohibits Defendants from reinstating any ban on enrollment based on a state or individual’s agreement to provide” information from certain Department of Motor Vehicle (“DMV”) records “unless the agency cures the defects in its earlier decision” and that “prohibits DHS from reinstituting a ban on TTP enrollment without following the notice-and-comment requirements of the APA.” ECF No. 125, at 1-2. On October 26, 2020, the parties entered into a stipulation whereby “CBP w[ould] not re-institute a ban on [TTP] enrollment for New York residents before this Court has had an opportunity to consider [P]laintiffs’ request for injunctive relief” and agreed to a formal briefing schedule. ECF No. 128, at 2-3.2 Now pending is Plaintiffs’ motion for injunctive relief that followed. ECF No. 129 (“Pls.’ Mem.”).

2

In related litigation in the U.S. District Court for the District of Columbia, Defendants

agreed not to “prohibit residents of New York from participating in Global Entry and other

[TTPs] on the basis of New York’s refusal, as described in the [TTP Decision], to provide

Defendants with access to New York State DMV records.” Am. Settlement Agreement, DiMaio

v. Wolf, No. 20-CV-445 (RJL), ECF No. 36-1, at 3 ¶ 2 (D.D.C. Dec. 11, 2020); see also DiMaio

2

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Substantially for the reasons stated in Defendants’ brief, ECF No. 135 (“Defs.’ Mem.”), Plaintiffs’ motion is denied. First, this is not a case in which injunctive relief is warranted. “By the [APA’s] plain terms . . . the ‘normal remedy’ in a successful APA challenge is to set aside — that is, vacate — the final agency action at issue.” New York v. U.S. Dep’t of Commerce, 351 F. Supp. 3d 502, 671 (S.D.N.Y.) (collecting cases), aff’d sub nom. Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019). Although courts may enjoin agency action in APA challenges when equitable principles justify that step, see id. at 672-73, “[a]n injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course,” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010). “If a less drastic remedy (such as partial or complete vacatur of [the agency’s] decision) [i]s sufficient to redress [Plaintiffs’] injury, no recourse to the additional and extraordinary relief of an injunction [i]s warranted.” Id. at 165-66.
Plaintiffs here fail to demonstrate that vacatur and remand is insufficient to redress their injuries. In Department of Commerce, this Court concluded, in its discretion, that a permanent injunction was warranted in an APA challenge because “granting an injunction would have two practical effects beyond mere vacatur of” the Secretary of Commerce’s memorandum adding a question on citizenship status to the Census questionnaire. 351 F. Supp. 3d at 676. First, an injunction would “prevent Secretary Ross from arriving at the same decision without curing the problems identified” by the Court. Id. (emphasis omitted). And “[s]econd, . . . an injunction w[ould] make it easier for [the] [p]laintiffs to seek immediate recourse from this Court in the event that [the] [d]efendants seek to do anything inconsistent with” the Court’s opinion, an ability that was “critical” given “the looming printing deadline” for the census questionnaire. Id.
v. Wolf, No. 20-CV-445 (RJL), ECF No. 37 (D.D.C. Dec. 15, 2020) (incorporating the parties’ settlement agreement).
3

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Here, by contrast, Defendants themselves rescinded the TTP Decision and conceded that new “revelations” had “undermine[d] a central argument” in Defendants’ filings before this Court — namely, “that CBP is not able to assure itself of an applicant’s low-risk status because New York fails to share relevant DMV information with CBP for TTP purposes.” ECF No. 89, at 2. That argument had “supplie[d] the rationale for the TTP Decision.” Id. (emphasis added). Thus, there is little to no risk of Defendants “simply re-issuing [the TTP Decision] under a new date.” Dep’t of Commerce, 351 F. Supp. 3d at 676. Nor is there a “looming . . . deadline” that necessitates giving Plaintiffs the ability “to seek immediate recourse from this Court in the event that Defendants seek to do anything inconsistent” with the Court’s Opinion. Id.3 Under these circumstances, Plaintiffs have not shown that “recourse to the additional and extraordinary relief of an injunction [i]s warranted.” Monsanto Co., 561 U.S. at 166.
Second, and in any event, the proposed injunction is overbroad. Plaintiffs request an injunction that would “prohibit Defendants from reinstating any ban on TTP enrollment based on a state or individual’s provision of DMV records, unless the agency cures the defects identified by the Court in its summary judgment opinion (i.e., the agency considers all important aspects of the problem and makes a decision consistent with the evidence before the agency)” and would “further enjoin Defendants from amending the TTP eligibility requirements without abiding by the APA’s notice-and-comment requirements.” Pl.’s Mem. 10. In effect, therefore, Plaintiffs — the State of New York and a class of New York residents — seek to convert the Court’s vacatur of a decision affecting only New York residents into a nationwide injunction on “any ban on

3

Plaintiffs effectively concede as much, arguing instead that the existence of some

exigency is not a necessary condition for the issuance of injunctive relief in an APA case. See

ECF No. 136 (“Pls.’ Reply), at 4-5. Although that may be true, the absence of “‘some

“exigency’ such as a ‘looming deadline,’” id. at 4, weighs heavily against departing from “the

‘normal remedy’ in a successful APA challenge,” Dep’t of Commerce, 351 F. Supp. 3d at 671.

4

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TTP enrollment based on” any state’s provision of DMV records. Id. But such a broad injunction is unnecessary and inappropriate. To the extent DHS’s “underlying rationale — Defendants’ false claim that DMV records are important to TTP vetting”— for the TTP Decision “could be deployed in any number of future iterations of the Ban whether or not those iterations target New York alone,” Pl.’s Reply 6, “any party aggrieved by a hypothetical future [TTP eligibility] decision will have ample opportunity to challenge it, and to seek appropriate preliminary relief, if and when such a decision is made,” Monsanto Co., 561 U.S. at 164.
In short, Plaintiffs’ injuries have been, or will be, fully remedied by the TTP Decision’s rescission and vacatur, see Defs.’ Mem. 3 & n.5, and Plaintiffs fail to demonstrate that a departure from the APA’s standard remedy of vacatur and remand is warranted.4
The Clerk of Court is directed to terminate 20-CV-1127, ECF No. 129 and 20-CV-1142, ECF No. 127.5

SO ORDERED.

Dated: January 19, 2021 New York, New York

__________________________________ JESSE M. FURMAN
United States District Judge

4

In light of that, it is unnecessary for the Court reach Plaintiffs’ alternative argument for

relief: that the TTP Decision violated the APA’s notice-and-comment provisions. Pls.’ Mem. 7-

10; Pls.’ Reply 7-10; see Immigration & Naturalization Serv. v. Bagamasbad, 429 U.S. 24, 25

(1976) (per curiam) (“As a general rule courts . . . are not required to make findings on issues the

decision of which is unnecessary to the results they reach.”); In re Surface Mining Regulation

Litig. 627 F.2d 1346, 1360 n.16 (D.C. Cir. 1980) (“We need not address this procedural

challenge because of our determination that the disputed interim regulation itself is without

support in the record and therefore arbitrary and capricious.”). Indeed, to do so would arguably

be inappropriate. See, e.g., United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89

(1947) (“[T]he federal courts established pursuant to Article III of the Constitution do not render

advisory opinions.”).

5

The Court continues to reserve decision on what additional steps, if any, to take with

respect to Defendants’ admitted misrepresentations and with respect to Defendants’ related

request for a protective order. See ECF Nos. 92, 96, 100-09, 111-20, 130-34.

5

 
 Case 1:20-cv-01142-JMF Document 122 Filed 10/13/20 Page 1 of 14

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------------- X

:

STATE OF NEW YORK,

:

:

Plaintiff,

:

:

-v-

:

:

CHAD F. WOLF, in his official capacity as Acting

:

Secretary of Homeland Security, et al.,

:

:

Defendants.

:

:

---------------------------------------------------------------------- X

:

R. L’HEUREUX LEWIS-MCCOY et al., on behalf of :

themselves and all similarly situated individuals,

:

:

Plaintiffs,

:

:

-v-

:

:

CHAD F. WOLF, in his official capacity as Acting

:

Secretary of Homeland Security, et al.,

:

:

Defendants.

:

:

---------------------------------------------------------------------- X

20-CV-1127 (JMF)
20-CV-1142 (JMF) OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

Plaintiffs in these two lawsuits challenge a decision of the U.S. Department of Homeland

Security (“DHS”) to suspend the eligibility of all New York residents to enroll or re-enroll in the

Trusted Traveler Programs (“TTPs”) operated by U.S. Customs and Border Protection (“CBP”).

DHS’s decision (the “TTP Decision”) was announced in a February 5, 2020 letter authored by

Defendant Chad Wolf, purportedly the Acting Secretary of Homeland Security. See ECF No.

Case 1:20-cv-01142-JMF Document 122 Filed 10/13/20 Page 2 of 14
75-1 (“AR”), at 1-3.1 Plaintiffs — the State of New York (“New York”) and a since-certified class of New Yorkers — sued a few days later, alleging that DHS’s decision violates the Fifth and Tenth Amendments of the United States Constitution, as well as provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. See ECF No. 1 (“New York Compl.”), ¶¶ 104-40; 20-CV-1142, ECF No. 24 (“Lewis-McCoy Compl.”), ¶¶ 112-16. Thereafter, Defendants filed a motion to dismiss Plaintiffs’ constitutional claims and a motion for summary judgment on Plaintiffs’ APA claims; Plaintiffs cross-moved for summary judgment on their APA claims. See ECF Nos. 29, 67, 78; 20-CV-1142, ECF Nos. 32, 73, 84.
On July 23, 2020 — the day before Defendants’ opposition to Plaintiffs’ cross-motion was due, see ECF No. 61 — DHS announced that it was “lift[ing] its ban on the Trusted Traveler Program (TTP) for New York residents,” effective immediately. New York Amends Dangerous Green Light Law to Cooperate with Federal Law Enforcement on DMV Records, U.S. DEP’T OF HOMELAND SEC. (July 23, 2020), https://www.dhs.gov/news/2020/07/23/new-york-amends-

1

Unless otherwise noted, all references to docket entries are to 20-CV-1127; citations to

the administrative record refer to the Bates-stamped page numbers beginning with the prefix

“DHSGLL.” The Court uses the word “purportedly” because there is some doubt whether Wolf

was then (and is now) lawfully exercising the authority of Acting Secretary of Homeland

Security. See, e.g., Nw. Immigrant Rights Project v. U.S. Citizenship & Immigration Servs., No.

19-3283 (RDM), 2020 WL 5995206, at *24 (D.D.C. Oct. 8, 2020) (holding that the appointment

of Wolf as Acting Secretary was legally ineffective); Immigrant Legal Res. Ctr. v. Wolf, — F.

Supp. 3d —, No. 20-CV-05883-JSW, 2020 WL 5798269, at *9 (N.D. Cal. Sept. 29, 2020)

(finding that the plaintiffs were “likely to succeed on the merits of their claim that Mr. Wolf was

not validly serving in office”); Casa de Md., Inc. v. Wolf, — F. Supp. 3d —, No. 8:20-CV-

02118-PX, 2020 WL 5500165, at *23 (D. Md. Sept. 11, 2020) (finding that the plaintiffs were

“likely to demonstrate” that “Wolf’s installation as Acting Secretary” was unlawful); U.S. GOV’T

ACCOUNTABILITY OFF., B-331650, DEPARTMENT OF HOMELAND SECURITY — LEGALITY OF

SERVICE OF ACTING SECRETARY OF HOMELAND SECURITY AND SERVICE OF SENIOR OFFICIAL

PERFORMING THE DUTIES OF DEPUTY SECRETARY OF HOMELAND SECURITY 11 (2020) (“GAO

Report”) (“Wolf . . . w[as] named to the[] . . . position[] of Acting Secretary . . . by reference to

an invalid order of succession.”). The Court need not and does not opine on that question here

and, thus, refers to him below as “Acting Secretary Wolf.”

2

Case 1:20-cv-01142-JMF Document 122 Filed 10/13/20 Page 3 of 14
dangerous-green-light-law-cooperate-federal-law-enforcement-dmv (“TTP Renewal Announcement”). Later that same day, Defendants wrote to the Court to acknowledge and “correct several statements in [D]efendants’ briefs and declarations, and to withdraw [D]efendants’ motion to dismiss and motion for summary judgment, along with the materials submitted in support of those motions.” ECF No. 89 (“Defs.’ July 23 Ltr.”), at 1 (citations omitted). Defendants have conceded, however, that the cases are not moot due to certain “lingering operational effects” of the TTP Decision, among other things. ECF No. 94, at 2. That leaves Plaintiffs’ cross-motion for summary judgment on their APA claims, which Defendants do not oppose. For the reasons that follow, Plaintiffs’ motion is granted.
BACKGROUND The following background facts, drawn from the admissible materials submitted by the parties and materials of which the Court may take judicial notice, are undisputed except where noted. See, e.g., Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). A. The TTPs and New York’s Green Light Law Federal law mandates that DHS “establish an international registered traveler program . . . to expedite the screening and processing of international travelers, including United States Citizens and residents, who enter and exit the United States.” 8 U.S.C. § 1365b(k)(3)(A). DHS is required to “ensure that the international registered traveler program includes as many participants as practicable by — (i) establishing a reasonable cost of enrollment; (ii) making program enrollment convenient and easily accessible; and (iii) providing applicants with clear and consistent eligibility guidelines.” Id. § 1365b(k)(3)(E). Consistent with these mandates, CBP operates a number of TTPs for international travelers, including Global Entry, NEXUS, Secure Electronic Network for Travelers Rapid Inspection (“SENTRI”),
3

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and Free and Secure Trade (“FAST”). See AR 50. These TTPs “allow pre-enrolled, low-risk participants to receive expedited border processing, enabling CBP to direct additional scrutiny to the unknown, potentially higher risk, travelers arriving at ports of entry.” Id. By January 2020, “[m]ore than 814,000 NY residents [we]re CBP TTP members and over 62,000 NY residents ha[d] a TTP application pending vetting.” Id. at 34.
On June 17, 2019, New York enacted the Driver’s License Access and Privacy Act, 2019 Sess. Laws of N.Y. ch. 37 (A. 3675-B), also known as the “Green Light Law.” To the extent relevant here, the Act had two effects. First, it authorized the New York State Department of Motor Vehicles (“DMV”) to issue driver’s licenses to New York State residents without regard to citizenship or immigration status. See N.Y. VEH. & TRAF. LAW § 502(8)(b). And second, it prohibited disclosing or making accessible records or information for driver’s license applicants and holders to federal immigration authorities absent a court order or judicial warrant from an Article III judge. See id. § 201. The law took effect on December 14, 2019. AR 1. B. The TTP Decision
Two days after the Green Light Law took effect, then-Acting Director of U.S. Immigration and Customs Enforcement (“ICE”) Matthew Albence emailed several DHS officials, including Defendant Mark Morgan, the Acting Commissioner of CBP: “Have we looked at how we can take a DHS-wide approach to deal with this issue? . . . [W]e need to try to take a consolidated approach to look at what services we can immediately pull back from NY as a result of this (. . . I know in other contexts [some have] mentioned things like no longer adjudicating applications, etc.). . . . I think we need to be aggressive, as this will likely spread to other localities if there is not a strong response from us.” Id. at 65. On December 23, 2019, Albence participated in a meeting with, among others, Morgan and Ken Cuccinelli, the Senior
4

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Official Performing the Duties of the Deputy Secretary for DHS, “to discuss the impact that the Green Light Law has on DHS and its components.” Id. at 67; see also id. at 69.2
On December 30, 2019, Acting Secretary Wolf sent a memorandum directing each DHS operational component head “to conduct an assessment of the impact of” laws passed by “[c]ertain state legislatures . . . restricting their respective [DMV] agencies from sharing information with [DHS].” AR 4. Later that same day, CBP responded with a memorandum assessing the Green Light Law’s impact on its operations. See id. at 6-8. The assessment stated that the law would impact CBP’s ability to “[v]alidate[e] NY driver’s licenses presented as part of the interview process for issuance of the TTP cards,” but provided no further details on what this impact would entail. Id. at 6. CBP followed up with another memorandum on January 8, 2020, see id. at 9-13, explaining that “CBP access to NY DMV records” via a third-party database known as NLETS “has been discontinued” as a result of the Green Light Law, id. at 9, and that “NLETS enables CBP to validate NY driver’s license identity during the interview process for issuance of the TTP cards,” id. at 10-11. On January 27, 2020, after receiving responses from each DHS component, the Senior Official Performing the Duties of the Under Secretary of the Office of Strategy, Policy, and Plans sent Acting Secretary Wolf a memorandum summarizing the Green Light Law’s operational impact. See id. at 31-41. The only TTP-related impact identified was, once again, that “[a]ccess to DMV information through [NLETS] helps CBP in confirming identity and making eligibility determinations for issuance of its TTP cards.” Id. at 34. The memorandum further acknowledged that, in addition to New York, several other

2

As with Wolf’s appointment as Acting Secretary, there is some reason to doubt the

legality of Cuccinelli’s appointment as Senior Official Performing the Duties of the Deputy

Secretary, see GAO Report 2, 10-11, but the Court need not and does not address the issue here.

5

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states and territories “also restrict access of DMV information for immigration enforcement purposes.” Id. at 32.
On February 4, 2020, Pete Acosta, CBP’s Trusted Traveler Programs Director, sent an email stating that “[t]he NY Green Light law would prevent CBP from receiving information relating to criminal convictions involving motor vehicles.” Id. at 62. This is the first appearance of this concern in the administrative record. The next day, Acting Secretary Wolf announced the TTP Decision in a letter to two New York State officials, see id. at 1-3, explaining that, effective immediately, “New York residents will no longer be eligible to enroll or re-enroll in CBP’s Trusted Traveler Programs” because the Green Light Law “prevents DHS from accessing New York DMV records in order to determine whether a TTP applicant or re-applicant meets program eligibility requirements,” id. at 3. The Green Light Law, he wrote, “prevents DHS from accessing relevant information that only New York DMV maintains, including some aspects of an individual’s criminal history” and therefore “compromises CBP’s ability to confirm whether an individual applying for TTP membership meets program eligibility requirements.” Id. at 2. C. Procedural History
Within days of the TTP Decision’s announcement, Plaintiffs filed these lawsuits. On April 3, 2020, New York amended its Green Light Law to provide for the sharing of DMV information with federal immigration authorities “as necessary for an individual seeking acceptance into a trusted traveler program, or to facilitate vehicle imports and/or exports.” Act of April 3, 2020, 2020 N.Y. Sess. Laws ch. 58, pt. YYY (S. 7508-B). On April 15, 2020, Defendants moved to dismiss Plaintiffs’ constitutional claims. See ECF No. 29. In their brief opposing that motion, Plaintiffs requested that the Court take judicial notice of the amendment to the Green Light Law, arguing that, in light of the amendment, “the sole policy aim that
6

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Defendants purport to rely upon — access to DMV records for vetting applicants — no longer even arguably exists.” ECF No. 46, at 21 & n.12; see also id. at 2 n.1, 7 n.3. In their reply, filed on May 6, 2020, Defendants disagreed. The amendment, they argued, should not “alter the Court’s analysis” because “New York has not yet restored CBP’s access to the DMV records” so “the unimplemented amendment fails to remedy the informational gap created by the Green Light Law.” ECF No. 49, at 1 n.1. On June 17, 2020, Defendants produced the initial administrative record, ECF No. 66, and two days later moved for summary judgment on Plaintiffs’ APA claims. See ECF No. 67. In their brief, and in a sworn declaration submitted by CBP’s Deputy Commissioner, Defendants again argued that “New York’s Amendment to the Green Light Law during the course of this litigation does not change the result.” ECF No. 68 (“Defs.’ MSJ Mem.”), at 24; see also ECF No. 68-3 (“Perez Decl.”), ¶ 6. Defendants produced a corrected administrative record on June 29, 2020. AR. On July 10, 2020, Plaintiffs cross-moved for partial summary judgment on their APA claims. See ECF No. 78.
On July 23, 2020, in a rather surprising turn of events, DHS announced that it would “lift its ban on the [TTP] for New York residents,” citing as the basis for the policy reversal New York’s decision (three months earlier) to “amend[] the Green Light Law to expressly allow for information-sharing of NY DMV records ‘as necessary for an individual seeking acceptance into a trusted traveler program, or to facilitate vehicle imports and/or exports’” — i.e., the very same statutory amendment that Defendants had previously maintained was inadequate to affect the basis for the T7P Decision. TTP Renewal Announcement (quoting S. 7508-B). Later that same day, the Court ordered the parties to “confer and advise the Court what effect that announcement [had] on these cases, including whether or when they should be dismissed as moot.” ECF No. 88. Later that evening, Defendants wrote to the Court to explain that they had recently learned
7

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that several “statements and representations” made in the course of this litigation were “inaccurate in some instances and [gave] the wrong impression in others.” Defs.’ July 23 Ltr. 2. “These revelations,” they conceded, “undermine[d] a central argument in [D]efendants’ briefs and declarations to date: that CBP is not able to assure itself of an applicant’s low-risk status because New York fails to share relevant DMV information with CBP for TTP purposes.” Id. “Because this argument supplies the rationale for the TTP Decision,” Defendants continued, “and supports [D]efendants’ defense of the TTP Decision, [D]efendants have determined that the proper course of action is to withdraw their motion to dismiss and motion for summary judgment.” Id. (emphasis added).
On July 28, 2020, Defendants wrote to advise the Court of their view that “these actions are now moot and should be dismissed” because the rescission of the TTP ban for New York residents “afforded [P]laintiffs the full relief they seek.” ECF No. 90 (“Defs.’ July 28 Ltr.”), at 1. In doing so, Defendants reiterated their conclusions that “the rescinded TTP Decision is not legally supportable” and “that a central argument in [Defendants’] defense of [the TTP Decision] was premised on an erroneous foundation.” Id. at 2. Plaintiffs filed a letter contending that the cases were not moot, both “because DHS’s lifting of the Ban satisfies the voluntary cessation exception to the mootness doctrine,” ECF No. 91, at 1 (citing Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC) Inc., 528 U.S. 167, 189 (2000)), and because “Plaintiffs may be entitled to additional relief for Defendants’ imposition and maintenance of a ban that they have now conceded was without factual foundation,” id. at 2 (citing Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307-08 (2012)). In light of these dueling letters, the Court set a formal briefing schedule on “the question of whether these cases should be dismissed as moot,”
8

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noting that, “[i]n the event the Court determines the cases are not moot, Plaintiffs’ cross-motion for summary judgment shall be treated as unopposed.” ECF No. 92, at 4.
Defendants then reversed course yet again. In a letter filed on August 7, 2020, they conceded that — contrary to the position they had taken days earlier — “DHS’s rescission of the TTP Decision has not yet mooted these cases” because “the effects of the TTP Decision have” not “been ‘completely and irrevocably eradicated.’” ECF No. 94, at 1 (quoting Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 603 (2d Cir. 2016)). Defendants explained, for example, that “New York residents whose membership lapsed during the period in which the TTP Decision was in place were unable to submit a renewal application that would have entitled them to benefit from the [18-month] grace period,” and “[a]s such, [these] New York residents . . . will not have membership benefits until their new membership renewal applications have been finally adjudicated and approved.” Id. at 2. In a separate letter filed that same day, Defendants acknowledged that their “July 23, 2020 and July 28, 2020 letters reflect the formal position of DHS” and may be “considered by the Court as admissions by counsel” in connection with Plaintiffs’ summary judgment motion. ECF No. 95, at 2 (first citing Hoodho v. Holder, 558 F.3d 184, 191 (2d Cir. 2009); then citing Best v. District of Columbia, 291 U.S. 411, 415 (1934)).3

3

On October 8, 2020, Defendants wrote “to update the Court on [CBP’s] efforts to resolve

the residual effects of the rescinded policy at issue in thHVH lawsuits,” noting that some of the

lingering operational effects of the TTP Decision have been remedied. ECF No. 121, at 1. That

same day, the Court ordered Plaintiffs to respond, noting that “[b]ecause Defendants do not

suggest otherwise, the Court assumes that, notwithstanding these developments, there are other

‘lingering operational effects’ of the TTP Decision that mean these cases are still not moot.”

ECF No. 122 (quoting ECF No. 94, at 2). The next day, Plaintiffs filed a letter contending that

the case remained not moot, given that (1) “Defendants do not purport to have fully undone the

impact of their unlawful conduct” and (2) “recent statements by Defendants and their

representatives continuing . . . to defend their purported rationale for the TTP Ban give further

reason to think Defendants will reinstate the Ban,” suggesting the applicability of the voluntary

cessation doctrine. ECF No. 123, at 1. In light of the foregoing, the Court concludes this case is

not moot.

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LEGAL STANDARDS Summary judgment is appropriate where the admissible evidence and pleadings demonstrate “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (per curiam). In ruling on a motion for summary judgment, a court must view all evidence “in the light most favorable to the non-moving party,” Overton v. N.Y. State Div. of Mil. & Naval Affs., 373 F.3d 83, 89 (2d Cir. 2004), and must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). Rule 56(e) of the Federal Rules of Civil Procedure provides that if a party “fails to properly address another party’s assertion of fact . . . , the court may . . . grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it.” Fed. R. Civ. P. 56(e). Thus, “[e]ven when a motion for summary judgment is unopposed, the district court is not relieved of its duty to decide whether the movant is entitled to judgment as a matter of law.” Vt. Teddy Bear Co., 373 F.3d at 242. “In all cases in which summary judgment is granted, the district court must provide an explanation sufficient to allow appellate review,” although this does not require that the district court write an “elaborate essay[] using talismanic phrases.” Jackson v. Fed. Exp., 766 F.3d 189, 197-98 (2d Cir. 2014).
DISCUSSION The APA “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” Franklin v. Massachusetts, 505 U.S. 788, 796 (1992). Through these provisions, the APA “establishes a scheme of ‘reasoned
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decisionmaking.’” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983) (“State Farm”)). “Not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.” Id. Under the APA, therefore, courts must “hold unlawful and set aside” agency action that is “arbitrary” and “capricious.” 5 U.S.C. § 706(2). “Normally, an agency rule” or decision would qualify as “arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43. Agency action can also fail arbitrary-and-capricious review if the agency does not reveal the actual “‘basis’ of its action,” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2573 (2019) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-69 (1962)), fails to provide a “coherent explanation” of its decision, Clark County v. FAA, 522 F.3d 437, 443 (D.C. Cir. 2008) (Kavanaugh, J.), or fails to justify departures from past practice (by, for example, failing to persuasively distinguish contrary precedent), Mfrs. Ry. Co. v. Surface Transp. Bd., 676 F.3d 1094, 1096 (D.C. Cir. 2012) (Kavanaugh, J.). In short, arbitrary-andcapricious review implements the APA’s requirement “that an agency’s exercise of its statutory authority be reasonable and reasonably explained.” Id. (emphasis added).
Applying these standards here, the Court concludes that Plaintiffs are entitled to summary judgment on the ground that the TTP Decision was arbitrary and capricious. As an initial matter, the Decision is reviewable under the APA substantially for the reasons argued by Plaintiffs, see ECF No. 79 (“Pls.’ Mem.”), at 7-9, namely, because, in light of the governing statutes, “this is
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not a case in which there is no law to apply,” Dep’t of Commerce, 139 S. Ct. at 2569 (internal quotation marks omitted). And second, the Decision was plainly arbitrary and capricious. Putting aside evidence that the TTP Decision was pretextual, see Pls.’ Mem. 31-34, Defendants’ own admissions establish that, at the very least, DHS “entirely failed to consider an important aspect of the problem” and “offered an explanation for its decision that r[an] counter to the evidence before the agency.” State Farm, 463 U.S. at 43. The TTP Decision itself stated that New York residents would immediately be categorically ineligible for TTP applications or reapplications “[b]ecause the [Green Light Law] prevent[ed] DHS from accessing New York DMV records” containing “relevant information that only New York DMV maintains, including some aspects of an individual’s criminal history.” AR 2-3. According to DHS, the Green Light Law thereby “compromise[d] CBP’s ability to confirm whether an individual applying for TTP membership meets program eligibility requirements.” Id. at 2. As Defendants belatedly acknowledged, however, “several states, the District of Columbia, and a territory . . . do not currently provide access to driving history information, including driving-related criminal histories . . . [and] two territories do not participate in [NLETS] DMV-related queries, such that DMV records are not available to CBP (or other [NLETS] users). Nevertheless, CBP has continued to accept, vet, and, where appropriate, approve TTP applications from these states and territories.” Defs.’ July 23 Ltr. 2. As Defendants conceded, these facts contradict “the rationale for the TTP Decision,” i.e., “that CBP is not able to assure itself of an applicant’s low-risk status because New York fails to share relevant DMV information with CBP for TTP purposes.” Id. (emphasis added).
In short, Defendants themselves now acknowledge that the TTP Decision “was premised on an erroneous foundation” and “is not legally supportable.” Defs.’ July 28 Ltr. 2. For that
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reason alone, the TTP Decision cannot stand. See 5 U.S.C. § 706 (providing that, where the APA has been violated, “the reviewing court shall . . . hold unlawful and set aside agency action” found to violate its terms (emphases added)). Of course, the usual APA remedy — vacatur and remand, see, e.g., New York v. U.S. Dep’t of Commerce, 351 F. Supp. 3d 502, 6772 n.84 (S.D.N.Y. 2019), aff’d, 139 S. Ct. 2551 (2019) — is somewhat of an empty gesture here, as the TTP Decision has already been rescinded. But, as noted above, both sides agree that the case is not moot and, at a minimum, declaring the TTP Decision to be unlawful and formally vacating it ensure that it cannot be reinstated. Moreover, there are circumstances in which additional remedies are appropriate in APA cases. See id. at 672-73. Accordingly, as set forth below, the parties shall confer and submit a joint letter addressing whether there is a need or basis for other remedies and, if there is disagreement on the issue, proposing a procedure to resolve it.
CONCLUSION By making a decision that may well have been pretextual, and was certainly arbitrary and capricious, Defendants undermined the “core constitutional and democratic values” underlying the APA. New York, 351 F. Supp. 3d at 518. Making matters worse, when forced by Plaintiffs to defend their decision in court, Defendants initially did so by repeating their misleading, if not false, representations, in some instances under oath.4 To their credit, Defendants eventually admitted that their decision had been legally indefensible. But it is hard to imagine that they would have done so but for the “thorough, probing, [and] in-depth review” that they faced by virtue of Plaintiffs’ lawsuits. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,

4

The Court is currently considering what additional steps, if any, to take with respect to

Defendants’ admitted misrepresentations. See ECF Nos. 92, 96, 100-09, 111-20. The Court’s

jurisdiction to do so is unaffected by entry of judgment in Plaintiffs’ favor. See ECF No. 92, at 5

n.3 (citing cases).

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