Case: Lewis-McCoy v. Wolf

1:20-cv-01142 | U.S. District Court for the Southern District of New York

Filed Date: Feb. 10, 2020

Case Ongoing

Clearinghouse coding complete

Case Summary

This class-action lawsuit concerns the Trump administration’s decision to block New York residents from participating in the Global Entry program, allegedly in retaliation for the state’s Green Light Law, which allows undocumented immigrants to obtain New York driver’s licenses and limits federal immigration officials’ access to records held by New York’s Department of Motor Vehicles (DMV). Since February 2012, U.S. Customs and Border Protection (CBP) has operated a nationwide Global Entry prog…

This class-action lawsuit concerns the Trump administration’s decision to block New York residents from participating in the Global Entry program, allegedly in retaliation for the state’s Green Light Law, which allows undocumented immigrants to obtain New York driver’s licenses and limits federal immigration officials’ access to records held by New York’s Department of Motor Vehicles (DMV).

Since February 2012, U.S. Customs and Border Protection (CBP) has operated a nationwide Global Entry program. This program, one of several Trusted Traveler Programs (TPPs) directed by Congress, allows pre-approved, low-risk travelers to receive expedited clearance through certain airports when they arrive to the United States. Enrollment is open to U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and nonimmigrant aliens from a number of foreign countries. Before participating in the program, applicants must submit to a background check, interview with CBP, and pay a fee. Membership must be renewed every five years.

In 2019, New York passed the Driver’s License Privacy and Protection Act, commonly known as the Green Light Law. This law did two things: first, it authorized New York to issue driver’s licenses regardless of citizenship status, allowing undocumented immigrants to legally drive in the state. Second, it prohibited federal immigration authorities from accessing DMV records without a judicial warrant, preventing the Trump administration from using these records for its aggressive immigration enforcement campaign.

Shortly after New York’s Green Light Law went into effect, the Department of Homeland Security (DHS) announced that New York residents would no longer be eligible to enroll or re-enroll in the Global Entry program on February 5, 2020. This change was necessary, DHS said, because the agency had lost access to information about such applicants maintained by the DMV. DHS did not explain what information it needed from the DMV, why it would be relevant, or why this eligibility change should apply to the 3.5 million New York residents who had no records with the DMV in the first place.

On February 10, 2020, a group of New York residents now ineligible for Global Entry filed this class-action lawsuit against both the Department of Homeland Security (DHS) and Customs and Border Protection (CBP) in the U.S. District Court for the Southern District of New York. Represented by the New York Civil Liberties Union (NYCLU), the plaintiffs alleged that DHS’ eligibility change violated the Administrative Procedure Act (APA). Specifically, the complaint suggested that the change was “arbitrary, capricious, [and] an abuse of discretion,” because curtailing CBP’s access to DMV records would have little to no effect on the agency’s ability to assess applicants for Global Entry. Instead, the plaintiffs claimed that the defendants made the change to punish New York for passing its Green Light Law and allowing undocumented immigrants to obtain driver’s licenses. The complaint also alleged that the defendants violated the principle of equal sovereignty guaranteed by the Tenth Amendment, because the eligibility change targeted New York residents for differential treatment, as well as the doctrine of coercion prohibited by the Tenth Amendment, because the true aim of the change was to coerce New York into repealing its Green Light Law. The plaintiffs asked the court to declare that the eligibility change violated the Administrative Procedure Act and the Tenth Amendment, stop the defendants from implementing the change, and award attorney’s fees and costs to the plaintiffs. The plaintiffs later amended the complaint to include two additional named plaintiffs.

The case was assigned to Judge Jesse M. Furman and related to New York v. Wolf, 20-cv-1127, a nearly identical case filed the same day by the state of New York in the Southern District of New York. In addition to the claims for relief brought in the class-action lawsuit, New York argued that the eligibility change violated the Fifth Amendment’s Due Process Clause because the decision discriminated against New York residents and was not rationally related to any legitimate government interest. The cases were informally consolidated and coordinated for purposes of scheduling and case management.

The cases began with a slew of discovery disputes. On April 1, 2020, Judge Furman ordered the defendants to produce the administrative record related to the Global Entry eligibility change, as well as a privilege log listing any documents withheld from that record on the basis of privilege. The defendants provided a redacted version of the administrative record but objected to providing a privilege log, arguing that privileged communications were not part of the official record, and thus not required under the APA. On April 29, Judge Furman issued an opinion rejecting this argument and ordering the defendants to provide a privilege log by the original deadline. 2020 WL 2049187. The plaintiffs later moved to compel the production of documents and redacted sections omitted from the administrative record on the basis of privilege. After reviewing these omissions himself, Judge Furman granted the motion to compel in part, and denied it in part, accepting the defendant’s claim of privilege over some of the omitted materials. 2020 WL 3073294.

On April 15, the defendants moved to dismiss the plaintiffs’ constitutional claims in both cases. The defendants argued that the eligibility change did not impinge on New York’s equal sovereignty in violation of the Tenth Amendment because it was a policy decision related to international travel—a subject usually handled by the federal government, not a “sensitive area[] of state and local policymaking.” The eligibility change should also survive a Tenth Amendment challenge, the defendants argued, because it was “sufficiently related to the problem that it targets”—namely, the data restrictions imposed by New York’s Green Light Law. To support this argument, the defendants insisted that targeting New York residents was justified because it was the only state that restricted CBP’s access to DMV records, a false statement that they would later retract. Finally, the defendants argued that the eligibility change did not violate the Tenth Amendment’s coercion doctrine because there was no financial inducement connected to Spending Clause legislation, and neither the increased airport wait times nor the economic impact that might result from the change were unduly coercive. In short, New York was still free to implement it Green Light Law or repeal it of its own volition. With regard to the plaintiff’s Fifth Amendment claim, the defendants argued that the eligibility change would easily pass the permissive rational basis review required under the Due Process Clause.

In their reply, the plaintiffs disputed the defendant’s argument that the equal sovereignty principle would not apply when the policy at issue was normally handled by the federal government. In any case, the complaint did not allege that the eligibility ban impinged on New York’s sovereignty because it impacted international travel, but because it was enacted to retaliate against New York’s Green Light Law, public safety legislation that was clearly under the purview of the state government. Moreover, banning all New York residents from using Global Entry did not sufficiently target the supposed problem of New York’s records restriction; the ban was both overinclusive, because it applied to residents without DMV records, and underinclusive, because it did not apply to residents who had DMV records but lived abroad. With respect to the coercion claim, the plaintiffs insisted that they did not need to plead a Spending Clause violation or a financial inducement. The eligibility change was unconstitutionally coercive, they said, because it was enacted to force New York to repeal its Green Light Law. As for the Fifth Amendment claim, the plaintiffs insisted that the eligibility change would fail rational basis review because a desire to punish New York was not a legitimate government end.

On April 17, Judge Furman certified the class and approved NYCLU as class counsel. The class was defined as follows:

    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 Protections Trusted Traveler Programs or who otherwise intend to enroll or re-enroll in Global Entry.
On June 19, with their motion to dismiss the constitutional claims still pending before the court, the defendants filed a motion for partial summary judgment on the APA claims raised by the plaintiffs in both cases. First, the defendants insisted that the eligibility change was not reviewable under the APA because the administration of the Trusted Traveler Programs (TPPs) was committed to CPB’s discretion by the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). Second, even if the eligibility change was subject to judicial review under the APA, the defendants argued that it would be upheld, because it reflected a “reasoned conclusion that as a result of the Green Light Law, CBP no longer had access to information necessary to vet TTP applicants from New York.” Finally, the defendants argued that eligibility change was not subject to the notice-and-comment requirement under the APA because it was either a general statement of policy or an interpretive rule. On July 10, the plaintiffs filed their own cross-motion for summary judgment, reiterating their argument that the eligibility change was arbitrary and capricious because it lacked a “rational connection between the facts found and the choice made” and relied on a pretextual justification to punish New York for passing a law that the Trump administration did not like.

On July 23, 2020, while still considering the defendant’s motion to dismiss and both parties’ motions for summary judgment, Judge Furman asked the parties to respond to a DHS press release stating that the agency would be reversing the eligibility change at issue in these cases and allowing New York residents to participate in Global Entry. Specifically, Judge Furman asked the parties to advise the court on what effect the announcement would have on these cases, and whether or not they should be dismissed as moot.

On that same day, the defendants submitted a letter to Judge Furman correcting several misstatements they made in briefs and declarations before the court. The letter admitted that New York was one of several states that do not transmit certain DMV records to CBP, but it was the only state barred from participating in the Global Entry program. The defendants acknowledged that these corrections severely undermined their argument that the eligibility change was not arbitrary and capricious because the record restrictions imposed by New York’s Green Light Law uniquely prevented CBP from assessing the risk of Global Entry applicants from that state. The defendants therefore asked to withdraw their motions to dismiss and for summary judgment, and confirmed that DHS had decided to restore New York residents’ access to Global Entry and other Trusted Traveler Programs. In a subsequent letter filed with the court on July 28, the defendants requested that these cases be dismissed as moot, a request that the plaintiffs opposed.

On July 29, Judge Furman released an order responding to the defendants’ corrective statement and mootness argument. First, Judge Furman accepted the withdrawal of the defendants’ motions to dismiss and for summary judgment, and ordered the parties to present formal briefs addressing whether or not the cases should be dismissed as moot. The parties were also ordered to confer in good faith to settle the plaintiffs’ request for attorneys' fees and costs. Finally, Judge Furman ordered the defendants to present a comprehensive report of any and all inaccurate statements in the record, including who made the misstatements, why they were inaccurate or misleading, what steps defendants’ counsel took to ensure their accuracy, and when and how they learned otherwise. Judge Furman also invited the plaintiffs to indicate other misstatements they believed the defendants had made.

On October 13, 2020, the court granted the plaintiffs' unopposed motion to dismiss and vacated the TTP decision, to the extent that it was still in effect, because the court found that the decision may well have been pretextual and was arbitrary and capricious. The court also pointed out that the defendants continued to subvert the APA by making misleading statements when forced to defend the decision in court.

On November 13, the plaintiffs filed a joint motion for a permanent injunction. The motion argued that (1) the court should issue an injunction to ensure that the Ban is not reinstated, and (2) in order to craft the proper injunction, this court should hold that the Ban violated the APA’s notice-and-comment requirements. The defendants filed their memo in opposition on December 7, 2020. In response to these motions, the court denied the plaintiffs' motion for injunctive relief on January 19, 2021. The court found that the plaintiffs failed to demonstrate that the ordinary relief of vacating the decision and remanding was insufficient to redress their injuries, and therefore they were not entitled to an injunction. Further, the court found that the plaintiffs' proposed injunction was overbroad and therefore inappropriate.

The case is ongoing.

Summary Authors

Cody Wiles (8/4/2020)

Rachel Kreager (4/7/2021)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/16825351/parties/lewis-mccoy-v-mayorkas/


Judge(s)

Furman, Jesse Matthew (New York)

Attorneys(s) for Plaintiff

Biklen, Molly Knopp (New York)

Cohen, Jordan Laris (New York)

Colangelo, Matthew (New York)

Dunn, Christopher (New York)

Fang, Linda (New York)

Gemmell, Antony Philip Falconer (New York)

Goldstein, Elena Stacy (New York)

Nogueira, Daniela (New York)

Perry, Jessica (New York)

Judge(s)

Furman, Jesse Matthew (New York)

Attorneys(s) for Plaintiff

Biklen, Molly Knopp (New York)

Cohen, Jordan Laris (New York)

Colangelo, Matthew (New York)

Dunn, Christopher (New York)

Fang, Linda (New York)

Gemmell, Antony Philip Falconer (New York)

Goldstein, Elena Stacy (New York)

Nogueira, Daniela (New York)

Perry, Jessica (New York)

Attorneys(s) for Defendant

Bannon, Zachary (New York)

Connolly, Christopher Kendrick (New York)

Kim, Elizabeth J (New York)

Oestericher, Jeffrey Stuart (New York)

Strauss, Audrey (New York)

Other Attorney(s)

Watkins, Devin (District of Columbia)

Documents in the Clearinghouse

Document

Docket [PACER]

Jan. 19, 2021 Docket
1

Class Action Complaint

Feb. 10, 2020 Complaint
1

Class Action Complaint

Feb. 10, 2020 Complaint
24

First Amended Class Action Complaint

April 1, 2020 Complaint
38

Stipulated Order Certifying Class

April 17, 2020 Order/Opinion
68

Opinion and Order

State of New York v. Wolf

2020 WL 3073294

June 10, 2020 Order/Opinion
86

Order

State of New York v. Wolf

July 23, 2020 Order/Opinion
87

[Letter Addressed to Judge Jesse M. Furman from Defendant]

New York v. Wolf

July 23, 2020 Pleading / Motion / Brief
122

Opinion and Order

State of New York v. Wolf

2020 WL 6047817

Oct. 13, 2020 Order/Opinion
136

Memorandum Opinion and Order

State of New York v. Wolf

2021 WL 185190

Jan. 19, 2021 Order/Opinion

Resources

Title Description External URL

Lewis-McCoy et al. v. Department of Homeland Security

New York Civil Liberties Union

The New York Civil Liberties Union challenged the Department of Homeland Security’s retaliatory decision to suspend enrollment and re-enrollment to the Global Entry program, affecting hundreds of tho… Feb. 10, 2020 https://www.nyclu.org/en/cases/lewis-mccoy-et-al-v-department-homeland-security

Docket

See docket on RECAP: https://www.courtlistener.com/docket/16825351/lewis-mccoy-v-mayorkas/

Last updated May 11, 2022, 8 p.m.

ECF Number Description Date Link
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 Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Gemmell, Antony) (Entered: 02/10/2020)

Feb. 10, 2020 RECAP
2

CIVIL COVER SHEET filed..(Gemmell, Antony) (Entered: 02/10/2020)

Feb. 10, 2020 PACER
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)

Feb. 10, 2020 PACER
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)

Feb. 10, 2020 PACER
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)

Feb. 10, 2020 PACER
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)

Feb. 10, 2020 PACER
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)

Feb. 10, 2020 PACER
8

NOTICE OF APPEARANCE by Jessica Perry on behalf of Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Perry, Jessica) (Entered: 02/11/2020)

Feb. 11, 2020 PACER

Case Opening Initial Assignment Notice

Feb. 11, 2020 PACER

Notice to Attorney Regarding Party Modification

Feb. 11, 2020 PACER

***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 reason/reasons: party text was omitted;. (jgo)

Feb. 11, 2020 PACER

CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Unassigned. .(jgo)

Feb. 11, 2020 PACER

Case Designated ECF. (jgo)

Feb. 11, 2020 PACER

CASE REFERRED TO Judge Jesse M. Furman as possibly related to 20-cv-1127. (jgo)

Feb. 11, 2020 PACER
9

ELECTRONIC SUMMONS ISSUED as to Chad Wolf..(jgo) (Entered: 02/11/2020)

Feb. 11, 2020 PACER
10

ELECTRONIC SUMMONS ISSUED as to Mark Morgan..(jgo) (Entered: 02/11/2020)

Feb. 11, 2020 PACER
11

ELECTRONIC SUMMONS ISSUED as to United States Customs and Border Protection..(jgo) (Entered: 02/11/2020)

Feb. 11, 2020 PACER
12

ELECTRONIC SUMMONS ISSUED as to United States Department of Homeland Security..(jgo) (Entered: 02/11/2020)

Feb. 11, 2020 PACER
13

NOTICE OF APPEARANCE by Molly Knopp Biklen on behalf of Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Biklen, Molly) (Entered: 02/11/2020)

Feb. 11, 2020 PACER
14

NOTICE OF APPEARANCE by Christopher T Dunn on behalf of Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Dunn, Christopher) (Entered: 02/11/2020)

Feb. 11, 2020 PACER
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 Lewis-McCoy..(Gemmell, Antony) (Entered: 02/11/2020)

Feb. 11, 2020 PACER

Notice of Case Assignment/Reassignment

Feb. 12, 2020 PACER

NOTICE OF CASE REASSIGNMENT to Judge Jesse M. Furman. Judge Unassigned is no longer assigned to the case..(wb)

Feb. 12, 2020 PACER

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 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/AO-3.pdf. (wb)

Feb. 12, 2020 PACER

CASE ACCEPTED AS RELATED. Create association to 1:20-cv-01127-JMF. Notice of Assignment to follow. (wb)

Feb. 12, 2020 PACER
16

NOTICE OF INITIAL PRETRIAL CONFERENCE: It is hereby 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)

Feb. 24, 2020 PACER
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)

1 Exhibit 1

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Feb. 25, 2020 PACER
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)

March 19, 2020 PACER
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)

March 19, 2020 PACER
20

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

March 19, 2020 PACER
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)

1 Plaintiffs' Proposed Case Management Plan

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March 19, 2020 PACER
22

ORDER: Per the Court's Emergency Individual Rules and 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)

March 23, 2020 PACER
23

ORDER: Additionally, unless and until the Court orders 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, 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)

April 1, 2020 RECAP
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)

April 1, 2020 RECAP

Notice to Attorney Regarding Deficient Pleading

April 2, 2020 PACER
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)

April 8, 2020 PACER
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 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)

1 Exhibit 1

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2 Exhibit 2

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3 Exhibit 3

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4 Exhibit 4

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April 14, 2020 PACER

Order on Motion for Extension of Time

April 14, 2020 PACER
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)

April 14, 2020 PACER
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)

April 14, 2020 PACER
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 Lewis-McCoy, S.T., Paul VanDeCarr. (Attachments: # 1 Exhibit Exhibit 1).(Gemmell, Antony) (Entered: 04/14/2020)

1 Exhibit Exhibit 1

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April 14, 2020 PACER
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)

April 14, 2020 PACER
31

NOTICE OF APPEARANCE by Jordan Laris Cohen on behalf of Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Cohen, Jordan) (Entered: 04/14/2020)

April 14, 2020 PACER
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)

April 15, 2020 PACER
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)

April 15, 2020 PACER
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)

April 15, 2020 PACER
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)

April 15, 2020 PACER
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)

1 Exhibit Declaration of R. L'Heureux Lews-McCoy

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2 Exhibit Declaration of Amanda Hughes

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3 Exhibit Declaration of Paul VanDeCarr

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4 Exhibit Declaration of Jamil Dakwar

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5 Exhibit Declaration of John Harland Giammatteo

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April 15, 2020 PACER
37

PROPOSED STIPULATION AND ORDER. Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr. (Attachments: # 1 Text of Proposed Order).(Gemmell, Antony) (Entered: 04/15/2020)

1 Text of Proposed Order

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April 15, 2020 PACER
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 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 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 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)

April 17, 2020 PACER
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)

April 24, 2020 PACER

Order on Motion for Extension of Time

April 24, 2020 PACER
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)

April 24, 2020 PACER
41

ORDER granting in part and denying in part 40 Letter Motion for Extension of Time. Defendants shall produce the Administrative 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)

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

1 Declaration of Robert E. Perez

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April 24, 2020 RECAP
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)

1 Administrative Record (Public)

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April 24, 2020 PACER
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 .(Bannon, Zachary) (Entered: 04/24/2020)

1 Administrative Record (Under Seal)

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April 24, 2020 PACER
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)

April 24, 2020 PACER
46

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-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., (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)

April 27, 2020 RECAP
47

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)

April 27, 2020 RECAP
48

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)

April 27, 2020 RECAP
49

MEMORANDUM OPINION AND ORDER 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. The Court adheres to its order mandating that, no later than May 1, 2020, Defendants produce a "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)

April 29, 2020 RECAP
50

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)

April 29, 2020 RECAP
51

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 Lewis-McCoy. 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 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-CV-1842 (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)

April 29, 2020 RECAP
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 Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 04/29/2020)

April 29, 2020 PACER
53

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: 05/01/2020)

1 Administrative Record

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May 1, 2020 RECAP
54

LETTER addressed to Judge Jesse M. Furman from Zachary 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)

May 1, 2020 RECAP
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)

May 6, 2020 PACER
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 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)

1 Exhibit 1 - Defendants' Privilege Log

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May 11, 2020 PACER
57

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

May 12, 2020 RECAP
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)

May 12, 2020 PACER
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 20-CV-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)

May 13, 2020 PACER
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)

1 Administrative Record

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May 22, 2020 PACER
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)

1 Updated Privilege Log

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2 Dorey Declaration

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3 Wagner Declaration

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4 Allen Declaration

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5 Cronen Declaration

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May 22, 2020 PACER
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)

May 22, 2020 PACER
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 .(Bannon, Zachary) (Entered: 06/01/2020)

June 1, 2020 PACER
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)

June 1, 2020 PACER
65

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

June 1, 2020 PACER
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)

June 3, 2020 PACER
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)

June 3, 2020 PACER
68

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

June 10, 2020 PACER
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)

June 15, 2020 PACER
70

PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material...SO ORDERED. (Signed by Judge Jesse M. Furman on 6/16/20) (yv) (Entered: 06/17/2020)

June 17, 2020 PACER
71

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

1 Administrative Record (Public)

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June 17, 2020 PACER
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)

June 17, 2020 PACER
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)

June 19, 2020 PACER
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)

1 Acosta Declaration

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2 Glabe Declaration

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3 Perez Declaration

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June 19, 2020 PACER
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)

June 19, 2020 PACER
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 Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony) (Entered: 06/22/2020)

June 22, 2020 PACER
77

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

June 22, 2020 PACER
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)

June 24, 2020 PACER
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)

June 29, 2020 PACER
80

ORDER granting 79 Letter Motion to Seal. Application 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)

June 29, 2020 RECAP
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: # 1 Corrected Administrative Record (Sealed))Motion or Order to File Under Seal: 70 .(Bannon, Zachary) (Entered: 06/29/2020)

1 Corrected Administrative Record (Sealed)

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June 29, 2020 PACER
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)

July 8, 2020 PACER
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)

July 8, 2020 PACER
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)

July 10, 2020 PACER
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)

July 10, 2020 PACER
86

ORDER: 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. (Signed by Judge Jesse M. Furman on 7/23/2020) (ks) (Entered: 07/23/2020)

July 23, 2020 PACER
87

LETTER addressed to Judge Jesse M. Furman from Zachary 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)

July 23, 2020 RECAP

State / Territory: New York

Case Type(s):

Immigration and/or the Border

Key Dates

Filing Date: Feb. 10, 2020

Case Ongoing: Yes

Plaintiffs

Plaintiff Description:

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 Protections Trusted Traveler Programs or who otherwise intend to enroll or re-enroll in Global Entry.

Plaintiff Type(s):

Private Plaintiff

State Plaintiff

Attorney Organizations:

ACLU Affiliates (any)

New York Civil Liberties Union (NYCLU)

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: Yes

Class Action Outcome: Granted

Defendants

Department of Homeland Security, Federal

Case Details

Causes of Action:

Ex Parte Young (Federal) or Bivens

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

Declaratory Judgment Act, 28 U.S.C. § 2201

Ex parte Young (federal or state officials)

Constitutional Clause(s):

Due Process: Substantive Due Process

Federalism (including 10th Amendment)

Availably Documents:

Trial Court Docket

Complaint (any)

Injunctive (or Injunctive-like) Relief

Any published opinion

Outcome

Prevailing Party: Plaintiff

Source of Relief:

Litigation

Issues

General:

Disparate Treatment

Transportation

Immigration/Border:

Admission - procedure

Sanctuary city/state

Undocumented immigrants - state and local regulation