Lewis-McCoy et al v. Mayorkas, et al
Plaintiff: R. L'Heureux Lewis-McCoy, John Harland Giammatteo, Jamil Dakwar, S.T. and Paul VanDeCarr
Defendant: United States Department of Homeland Security, Chad Wolf, United States Customs and Border Protection, Mark Morgan, Alejandro Mayorkas and Troy Miller
Case Number: 1:2020cv01142
Filed: February 10, 2020
Court: US District Court for the Southern District of New York
Presiding Judge: Jesse M Furman
Nature of Suit: Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision
Cause of Action: 05 U.S.C. § 702 Administrative Procedure Act
Jury Demanded By: None
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Docket Report

This docket was last retrieved on September 28, 2021. A more recent docket listing may be available from PACER.

Date Filed Document Text
September 28, 2021 Filing 155 JOINT LETTER addressed to Judge Jesse M. Furman from all parties dated September 24, 2021 re: Request for Settlement Approval (refiled in accordance with ECF notice dated September 28, 2021). Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr. (Attachments: #1 Exhibit A - Proposed Stipulation and Settlement of Order and Dismissal, #2 Exhibit B - Declaration of Amanda Hughes).(Gemmell, Antony)
September 28, 2021 ***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - EVENT TYPE ERROR. Notice to Attorney Antony Philip Falconer Gemmell to RE-FILE Document #153 JOINT MOTION to Approve Settlement Agreement . Use the event type Letter found under the event list Other Documents. (ldi)
September 27, 2021 Opinion or Order Filing 154 STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL: NOW, THEREFORE, the parties stipulate and agree as follows: Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, this action is hereby dismissed with prejudice and without costs or fees other than as provided in paragraph 2 of this Stipulation and Order (the "Stipulation"), provided that the Court shall retain jurisdiction over any issues that might arise relating to the enforcement of this Stipulation. The government shall pay to plaintiffs the sum of one hundred and thirty-five thousand, four hundred dollars ($135,400.00) within ninety (90) days of the Court's approval of this stipulation. This payment shall constitute full and final satisfaction of any and all claims by plaintiffs arising from this litigation, including claims for attorney's fees, litigation costs, and/or any monetary and non-monetary sanctions, and is inclusive of any interest. Payment shall be made Page 3 of 3 by electronic funds transfer, and counsel for plaintiffs will provide the necessary information for the government to effectuate the transfer. This Stipulation does not constitute an admission of liability or fault on the part of the government and is entered into by both parties for the sole purpose of compromising disputed claims and avoiding the expenses and risks of further litigation. SO ORDERED. (Signed by Judge Jesse M. Furman on 9/27/21) (yv)
September 24, 2021 Filing 153 JOINT MOTION to Approve Settlement Agreement . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr. (Attachments: #1 Exhibit A - Proposed Stipulation and Order of Settlement and Dismissal, #2 Exhibit B - Declaration of Amanda Hughes).(Gemmell, Antony)
September 9, 2021 Opinion or Order Filing 152 ORDER OF DISMISSAL: The Court having been advised at ECF No. 153 in 20- CV-1127, ECF No. 151 in 20-CV-1142, that all claims asserted therein have been settled in principle, it is ORDERED that the above-entitled actions be and are hereby DISMISSED and discontinued without costs, and without prejudice to the right to reopen the action within sixty days of the date of this Order if the settlement is not consummated. To be clear, any application to reopen must be filed by the aforementioned deadline; any application to reopen filed thereafter may be denied solely on that basis. Further, requests to extend the deadline to reopen are unlikely to be granted. If the parties wish for the Court to retain jurisdiction for the purposes of enforcing any settlement agreement, they must submit the settlement agreement to the Court by the deadline to reopen to be so ordered by the Court. Per Paragraph 4(B) of the Courts Individual Rules and Practices for Civil Cases, unless the Court orders otherwise, the Court will not retain jurisdiction to enforce a settlement agreement unless it is made part of the public record. Any pending motions are moot. All conferences are canceled. The Clerk of Court is directed to docket this order in 20-CV-1127 and 20-CV-1142 and close both cases. SO ORDERED. (Signed by Judge Jesse M. Furman on 9/9/2021) (tg)
September 7, 2021 Filing 151 STATUS REPORT. Document filed by Alejandro Mayorkas, Troy Miller, United States Customs and Border Protection, United States Department of Homeland Security..(Bannon, Zachary)
August 12, 2021 Opinion or Order Filing 150 MEMO ENDORSEMENT granting #149 Motion to Withdraw as Attorney. ENDORSEMENT: Application GRANTED. The Clerk of Court is directed to update the docket and to terminate ECF No. 149. SO ORDERED (Attorney Jordan Laris Cohen terminated.) (Signed by Judge Jesse M. Furman on 8/12/2021) (rro)
August 12, 2021 Filing 149 MOTION for Jordan Laris Cohen to Withdraw as Attorney . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Cohen, Jordan)
August 6, 2021 Opinion or Order Filing 148 MEMO ENDORSEMENT: on re: (150 in 1:20-cv-01127-JMF) Letter filed by United States Customs and Border Protection, Alejandro Mayorkas, Troy Miller, United States Department of Homeland Security, (147 in 1:20-cv-01142-JMF) Status Report filed by United States Customs and Border Protection, Alejandro Mayorkas, Troy Miller, United States Department of Homeland Security. ENDORSEMENT: Application GRANTED. The parties shall file a joint letter updating the Court on the status of settlement discussions no later than September 7, 2021. The Clerk of Court is directed to docket this in both of the above-captioned cases. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/06/2021) (ama)
August 5, 2021 Filing 147 STATUS REPORT. Document filed by Alejandro Mayorkas, Troy Miller, United States Customs and Border Protection, United States Department of Homeland Security..(Bannon, Zachary)
July 22, 2021 Filing 146 LETTER addressed to Judge Jesse M. Furman from Zachary Bannon dated 7/22/2021 re: The Government's Report. Document filed by Alejandro Mayorkas, Troy Miller, United States Customs and Border Protection, United States Department of Homeland Security. (Attachments: #1 The Government's Report and Declarations, #2 Privilege Log, #3 Supplemental Acosta Declaration).(Bannon, Zachary)
July 16, 2021 Filing 145 INTERNET CITATION NOTE: Material from decision with Internet citation re: #144 Memorandum & Opinion. (sjo)
July 8, 2021 Opinion or Order Filing 144 OPINION AND ORDER re: (116 in 1:20-cv-01142-JMF) LETTER MOTION to Seal Portions of the Privilege Log addressed to Judge Jesse M. Furman from Zachary Bannon dated 9/21/2020. filed by United States Customs and Border Protection, Mark Morgan, Chad Wolf, United States Department of Homeland Security, (129 in 1:20-cv-01142-JMF) LETTER MOTION to Seal Portions of the Acosta Declaration addressed to Judge Jesse M. Furman from Zachary Bannon dated 12/2/2020. filed by United States Customs and Border Protection, Mark Morgan, Chad Wolf, United States Department of Homeland Security, (111 in 1:20-cv-01127-JMF) LETTER MOTION to Seal Portions of the Government's Report addressed to Judge Jesse M. Furman from Zachary Bannon dated 9/4/2020. filed by Mark A. Morgan, United States Customs and Border Protection, Chad F. Wolf, United States Department of Homeland Security, (131 in 1:20-cv-01127-JMF) LETTER MOTION to Seal Portions of the Acosta Declaration addressed to Judge Jesse M. Furman from Zachary Bannon dated 12/2/2020. filed by Mark A. Morgan, United States Customs and Border Protection, Chad F. Wolf, United States Department of Homeland Security, (118 in 1:20-cv-01127-JMF) LETTER MOTION to Seal Portions of the Privilege Log addressed to Judge Jesse M. Furman from Zachary Bannon dated 9/21/2020. filed by Mark A. Morgan, United States Customs and Border Protection, Chad F. Wolf, United States Department of Homeland Security, (109 in 1:20-cv-01142-JMF) LETTER MOTION to Seal Portions of the Government's Report addressed to Judge Jesse M. Furman from Zachary Bannon dated 9/4/2020. filed by United States Customs and Border Protection, Mark Morgan, Chad Wolf, United States Department of Homeland Security. Having reviewed the documents at issue in their entirety, the Court agrees with Defendants on the propriety of most, but not all, of their redactions. The chart attached as Exhibit A specifies the portions of the documents that must be unredacted. No later than two weeks from the date of this Opinion and Order, Defendants shall file the Report, the Acosta Declaration, the Perez Declaration, the Privilege Log, and the Supplemental Acosta Declaration with revised redactions consistent with this Opinion and Order. Additionally, in light of that deadline, the parties' deadline to file a letter updating the Court on the status of settlement negotiations is ADJOURNED until two weeks after the date on which Defendants file more narrowly redacted copies of the relevant documents. The parties shall confer and in that letter address what, if any, additional steps are required in this litigation. Finally, having reviewed Defendants' submissions with care, the Court declines to impose, on its own initiative, sanctions pursuant to its inherent authority. Although Defendants legal defense of the TTP Decision was flawed from its inception, based on the present record the Court concludes - for many of the same reasons it concluded above that the crime-fraud exception does not apply - that this is not a case in which "a party use[d] the judicial forum for improper purposes or abuse[d] the judicial process." Carousel Foods of Am., Inc. v. Abrams & Co., 423 F. Supp. 2d 119, 124 (S.D.N.Y. 2006). To be sure, Defendants should have undertaken more thorough inquiries into the nature of DMV information shared with CBP and any restrictions thereon when formulating their initial legal defense of the TTP Decision. Indeed, it should go without saying but, in this case, apparently cannot that such inquiries should have been undertaken before adopting the TTP Decision in the first place. Significantly, however, when Defendants, prompted by Plaintiffs' summary judgment papers, did undertake such inquiries and uncovered information that "undermined a central argument in [their] briefs and declarations to date," October 2020 Decision, 2020 WL 6047817, at *4 (cleaned up), they swiftly informed the Court, withdrew their motions, reversed the TTP Decision, and conceded this litigation. Given the totality of these circumstances, including the thorough accounting that Defendants undertook in response to the Court's July 29, 2020 Order, the Court concludes that it is inappropriate to impose sanctions on its own initiative. Needless to say, that should not be taken to mean that the Court condones Defendants' conduct, either in promulgating the TTP Decision or in initially undertaking to defend it. This case was far from the Government's finest hour. At nearly every turn, Defendants failed to live up to the standards to which those who take oaths to serve the public should adhere. At the outset of the litigation, the Court ordered Defendants to supplement the Administrative Record, then "a mere sixty-four pages long," observing that it was "difficult to imagine that a decision as important as the one challenged here - to exclude every resident of the country's fourth largest state from enrolling or re-enrolling in a program mandated by the Intelligence Reform and Terrorism Prevention Act of 2004, 8 U.S.C. 1365b(k)(3)(A) would be made based upon a factual record that sparse. New York v. Wolf, Nos. 20-CV-1127 (JMF) et al., 2020 WL 2049187, at *2 (S.D.N.Y. Apr. 29, 2020) (cleaned up). And yet the corrected Administrative Record was only twelve pages longer, ECF No. 75-1 - perhaps an early indication of what the Court would later conclude: that the TTP Decision had not been "the product of reasoned decisionmaking," as required by the APA. State Farm, 463 U.S. at 52. And as the Court previously discussed in finding the TTP Decision arbitrary and capricious, the Administrative Record revealed that senior DHS leaders were aggressively looking for services they could "immediately pull back from [New York] as a result" of the Green Light Law's enactment and that the reason ultimately given for the TTP Decision - namely, that the "Green Light [L]aw would prevent CBP from receiving information relating to criminal convictions involving motor vehicles" - appears to have been raised internally for the first time only one day before the Decision was announced. October 2020 Decision, 2020 WL 6047817, at *2-3 (cleaned up). Given this approach to agency decision-making, it is unsurprising that it was not until months into this litigation that Defendants came to learn that "statements and representations" they had made were "inaccurate in some instances and g[a]ve the wrong impression in others," that "these revelations undermine[d] a central argument in [D]efendants' briefs and declarations to date," and that they "undermined the rationale for DHS's original decision and for Defendants' defense of that decision." July 2020 Decision, 2020 U.S. Dist. LEXIS 134512, at *3-4 (cleaned up). The Clerk of Court is directed to terminate ECF Nos. 111, 118, and 131 in 20-CV-1127, and ECF Nos. 109, 116, and 129 in 20-CV-1142. SO ORDERED. (Signed by Judge Jesse M. Furman on 7/8/21) (yv)
June 16, 2021 Opinion or Order Filing 143 MEMO ENDORSEMENT on re: (142 in 1:20-cv-01142-JMF) Status Report filed by United States Customs and Border Protection, Alejandro Mayorkas, Troy Miller, United States Department of Homeland Security, (147 in 1:20-cv-01127-JMF) Status Report filed by United States Customs and Border Protection, Alejandro Mayorkas, Troy Miller, United States Department of Homeland Security. ENDORSEMENT: The parties shall file another status letter no later than July 14, 2021. SO ORDERED. (Signed by Judge Jesse M. Furman on 6/16/21) (yv)
June 14, 2021 Filing 142 STATUS REPORT. Document filed by Alejandro Mayorkas, Troy Miller, United States Customs and Border Protection, United States Department of Homeland Security..(Bannon, Zachary)
May 14, 2021 Minute Entry for proceedings held before Judge Jesse M. Furman: Status Conference held via teleconference on 5/14/2021. Daniela Nogueira present for Plaintiff State of New York. Antony Gemmell present for Lewis-McCoy Plaintiffs. Zachary Bannon present for Defendants. Court reporter present. (ab)
May 14, 2021 Opinion or Order Filing 141 ORDER: As discussed, and for the reasons stated, on the record at the conference conducted remotely be telephone earlier today, the parties shall file a joint letter updating the Court on the status of settlement discussions no later than June 14, 2021. SO ORDERED. (Signed by Judge Jesse M. Furman on 5/14/2021) (ama)
May 7, 2021 Opinion or Order Filing 140 ORDER: The conference currently scheduled for May 14, 2021 at 3:00 p.m. is RESCHEDULED to May 14, 2021 at 9:15 a.m. The dial-in information remains the same as in the Court's Order of May 3, 2021. 20-CV-1127, ECF No. 142; 20-CV-1142, ECF No. 137. SO ORDERED. (Telephone Conference set for 5/14/2021 at 09:15 AM before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 5/7/2021) (rjm)
May 5, 2021 Opinion or Order Filing 139 STIPULATION AND ORDER: Therefore, IT IS HEREBY ORDERED that: The Clerk of the Court is respectfully directed to amend the dockets in these actions to reflect that Alejandro Mayorkas, in his official capacity as Secretary of Homeland Security, has been substituted in place of Peter Gaynor. The Clerk of the Court is respectfully directed to amend the dockets in these actions to reflect that Troy Miller, in his official capacity as Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, has been substituted in place of Mark Morgan. The Clerk of the Court is respectfully directed to amend the caption in State of New York v. Wolf, No. 20 Civ. 1127 (JMF) (S.D.N.Y.), as follows: and further set forth in this Order. The Clerk of the Court is respectfully directed to amend the caption in Lewis-McCoy v. Wolf, No. 20 Civ. 1142 (JMF) (S.D.N.Y.), as follows: as follows: and further set forth in this Order. SO ORDERED. (Signed by Judge Jesse M. Furman on 5/5/2021) (rro)
May 4, 2021 Filing 138 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)
May 3, 2021 Opinion or Order Filing 137 ORDER, The Court will hold a telephone conference on May 14, 2021 at 3:00 p.m., to discuss the impact, if any, of these developments on the litigation. Counsel shall confer in advance of the conference and be prepared to address at the conference (1) whether the positions of either side with respect to the pending motions or the broader issues to which the motions relate have changed and (2) whether the Court can do anything to facilitate a resolution of the parties' remaining disputes without the need for further litigation. At least twenty-four hours before the conference, counsel shall send a joint email to the Court with the names and telephone numbers of those who will have speaking roles at the conference, and the Court will provide call-in information to those counsel. All others counsel who will not have speaking roles and members of the public may listen to the conference by calling the Court's dedicated conference call line at (888) 363-4749 and using access code 542-1540 followed by the pound (#) key. The parties are reminded to follow the procedures for teleconferences described in the Court's Emergency Individual Rules and Practices in Light of COVID-19, which are available at https://nysd.uscourts.gov/hon-jesse-mfurman. Additionally, no later than May 6, 2021, the parties shall file a stipulation and proposed order substituting the proper Defendants pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. SO ORDERED. ( Telephone Conference set for 5/14/2021 at 03:00 PM before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 5/3/21) (yv)
January 19, 2021 Opinion or Order Filing 136 MEMORANDUM OPINION AND ORDER re: (129 in 1:20-cv-01127-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 Lewis-McCoy. 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)
December 17, 2020 Filing 135 INTERNET CITATION NOTE: Material from decision with Internet citation re: #122 Memorandum & Opinion. (sjo)
December 14, 2020 Filing 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)
December 7, 2020 Filing 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)
December 3, 2020 Filing 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)
December 2, 2020 Filing 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)
December 2, 2020 Filing 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)
December 2, 2020 Filing 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)
November 24, 2020 Filing 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)
November 13, 2020 Filing 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)
October 26, 2020 Opinion or Order Filing 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)
October 26, 2020 Filing 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)
October 21, 2020 Opinion or Order Filing 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)
October 20, 2020 Filing 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 Lewis-McCoy, S.T., Paul VanDeCarr..(Cohen, Jordan)
October 13, 2020 Opinion or Order Filing 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.
October 9, 2020 Filing 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)
October 8, 2020 Opinion or Order Filing 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)
October 8, 2020 Filing 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)
September 28, 2020 Filing 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)
September 21, 2020 Filing 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)
September 21, 2020 Filing 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)
September 21, 2020 Filing 115 MEMORANDUM OF LAW in Support 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 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)
September 14, 2020 Opinion or Order Filing 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)
September 11, 2020 Filing 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)
September 10, 2020 Filing 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)
September 4, 2020 Filing 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)
September 4, 2020 Filing 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)
September 4, 2020 Filing 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)
August 31, 2020 Filing 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)
August 31, 2020 Filing 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)
August 31, 2020 Opinion or Order Filing 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)
August 31, 2020 Set/Reset Deadlines: Responses due by 9/24/2020. Replies due by 10/1/2020. (yv)
August 28, 2020 Filing 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)
August 27, 2020 Opinion or Order Filing 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)
August 12, 2020 Opinion or Order Filing 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)
August 12, 2020 Filing 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)
August 11, 2020 Opinion or Order Filing 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)
August 11, 2020 Filing 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)
August 10, 2020 Opinion or Order Filing 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)
August 10, 2020 Filing 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)
August 10, 2020 Filing 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)
August 10, 2020 Opinion or Order Filing 96 MEMO ENDORSEMENT on re: (95 in 1:20-cv-01142-JMF) 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)
August 10, 2020 Filing 95 JOINT LETTER addressed to Judge Jesse M. Furman from all 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)
August 7, 2020 Opinion or Order Filing 94 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 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)
August 7, 2020 Filing 93 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)
August 7, 2020 Filing 92 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)
July 29, 2020 Opinion or Order Filing 91 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-CV-1127 (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)
July 29, 2020 Opinion or Order Filing 90 MEMORANDUM OPINION AND ORDER re: (73 in 1:20-cv-01142-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-cv-01142-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 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-CV- 1127 (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)
July 28, 2020 Filing 89 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)
July 28, 2020 Filing 88 LETTER addressed to Judge Jesse M. Furman from Zachary Bannon dated 7/28/2020 re: Dkt. No. 86. Document filed by Mark Morgan, United States Customs and Border Protection, United States Department of Homeland Security, Chad Wolf..(Bannon, Zachary)
July 23, 2020 Filing 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)
July 23, 2020 Opinion or Order Filing 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)
July 10, 2020 Filing 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)
July 10, 2020 Filing 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)
July 8, 2020 Opinion or Order Filing 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)
July 8, 2020 Filing 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)
June 29, 2020 Filing 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)
June 29, 2020 Opinion or Order Filing 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)
June 29, 2020 Filing 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)
June 24, 2020 Filing 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)
June 22, 2020 Opinion or Order Filing 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)
June 22, 2020 Filing 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)
June 19, 2020 Filing 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)
June 19, 2020 Filing 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)
June 19, 2020 Filing 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)
June 17, 2020 Filing 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)
June 17, 2020 Filing 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)
June 17, 2020 Opinion or Order Filing 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)
June 15, 2020 Filing 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)
June 10, 2020 Opinion or Order Filing 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)
June 3, 2020 Opinion or Order Filing 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)
June 3, 2020 Filing 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)
June 1, 2020 Opinion or Order Filing 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)
June 1, 2020 Filing 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)
June 1, 2020 Filing 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)
May 22, 2020 Filing 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)
May 22, 2020 Filing 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)
May 22, 2020 Filing 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)
May 13, 2020 Opinion or Order Filing 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)
May 12, 2020 Filing 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)
May 12, 2020 Opinion or Order Filing 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)
May 11, 2020 Filing 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)
May 6, 2020 Filing 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)
May 1, 2020 Filing 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)
May 1, 2020 Filing 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)
April 29, 2020 Filing 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)
April 29, 2020 Opinion or Order Filing 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)
April 29, 2020 Filing 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)
April 29, 2020 Opinion or Order Filing 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)
April 27, 2020 Filing 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)
April 27, 2020 Filing 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)
April 27, 2020 Opinion or Order Filing 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)
April 24, 2020 Filing 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)
April 24, 2020 Filing 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)
April 24, 2020 Filing 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)
April 24, 2020 Filing 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)
April 24, 2020 Opinion or Order Filing 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)
April 24, 2020 Filing 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)
April 24, 2020 Opinion or Order Filing 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)
April 17, 2020 Opinion or Order Filing 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).
April 15, 2020 Filing 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)
April 15, 2020 Filing 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)
April 15, 2020 Filing 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)
April 15, 2020 Filing 34 MOTION to Certify Class . Document filed by Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy, S.T., Paul VanDeCarr..(Gemmell, Antony)
April 15, 2020 Filing 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)
April 15, 2020 Filing 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)
April 14, 2020 Filing 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)
April 14, 2020 Opinion or Order Filing 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)
April 14, 2020 Filing 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)
April 14, 2020 Opinion or Order Filing 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)
April 14, 2020 Filing 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)
April 14, 2020 Filing 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)
April 8, 2020 Filing 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)
April 1, 2020 Filing 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)
April 1, 2020 Opinion or Order Filing 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)
March 23, 2020 Opinion or Order Filing 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)
March 19, 2020 Filing 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)
March 19, 2020 Filing 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)
March 19, 2020 Filing 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)
March 19, 2020 Filing 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)
February 25, 2020 Filing 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)
February 24, 2020 Opinion or Order Filing 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)
February 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 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)
February 12, 2020 CASE ACCEPTED AS RELATED. Create association to 1:20-cv-01127-JMF. Notice of Assignment to follow. (wb)
February 12, 2020 NOTICE OF CASE REASSIGNMENT to Judge Jesse M. Furman. Judge Unassigned is no longer assigned to the case..(wb)
February 11, 2020 Filing 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)
February 11, 2020 Filing 14 NOTICE OF APPEARANCE by Christopher T Dunn on behalf of Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Dunn, Christopher)
February 11, 2020 Filing 13 NOTICE OF APPEARANCE by Molly Knopp Biklen on behalf of Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Biklen, Molly)
February 11, 2020 Filing 12 ELECTRONIC SUMMONS ISSUED as to United States Department of Homeland Security..(jgo)
February 11, 2020 Filing 11 ELECTRONIC SUMMONS ISSUED as to United States Customs and Border Protection..(jgo)
February 11, 2020 Filing 10 ELECTRONIC SUMMONS ISSUED as to Mark Morgan..(jgo)
February 11, 2020 Filing 9 ELECTRONIC SUMMONS ISSUED as to Chad Wolf..(jgo)
February 11, 2020 Filing 8 NOTICE OF APPEARANCE by Jessica Perry on behalf of Jamil Dakwar, John Harland Giammatteo, R. L'Heureux Lewis-McCoy..(Perry, Jessica)
February 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 reason/reasons: party text was omitted;. (jgo)
February 11, 2020 CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Unassigned. .(jgo)
February 11, 2020 Case Designated ECF. (jgo)
February 11, 2020 CASE REFERRED TO Judge Jesse M. Furman as possibly related to 20-cv-1127. (jgo)
February 10, 2020 Filing 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)
February 10, 2020 Filing 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)
February 10, 2020 Filing 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)
February 10, 2020 Filing 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)
February 10, 2020 Filing 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)
February 10, 2020 Filing 2 CIVIL COVER SHEET filed..(Gemmell, Antony)
February 10, 2020 Filing 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)

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Search for this case: Lewis-McCoy et al v. Mayorkas, et al
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Defendant: United States Department of Homeland Security
Represented By: Zachary Bannon
Represented By: Christopher Kendrick Connolly
Represented By: Elizabeth J. Kim
Represented By: Jeffrey Stuart Oestericher
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Defendant: Chad Wolf
Represented By: Zachary Bannon
Represented By: Christopher Kendrick Connolly
Represented By: Elizabeth J. Kim
Represented By: Jeffrey Stuart Oestericher
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Defendant: United States Customs and Border Protection
Represented By: Zachary Bannon
Represented By: Christopher Kendrick Connolly
Represented By: Elizabeth J. Kim
Represented By: Jeffrey Stuart Oestericher
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Defendant: Mark Morgan
Represented By: Zachary Bannon
Represented By: Christopher Kendrick Connolly
Represented By: Elizabeth J. Kim
Represented By: Jeffrey Stuart Oestericher
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Defendant: Alejandro Mayorkas
Represented By: Zachary Bannon
Represented By: Christopher Kendrick Connolly
Represented By: Elizabeth J. Kim
Represented By: Jeffrey Stuart Oestericher
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Defendant: Troy Miller
Represented By: Zachary Bannon
Represented By: Christopher Kendrick Connolly
Represented By: Elizabeth J. Kim
Represented By: Jeffrey Stuart Oestericher
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Plaintiff: R. L'Heureux Lewis-McCoy
Represented By: Antony Philip Falconer Gemmell
Represented By: Molly Knopp Biklen
Represented By: Christopher T Dunn
Represented By: Jessica Perry
Represented By: Christopher Thomas Dunn
Represented By: Jordan Laris Cohen
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Plaintiff: John Harland Giammatteo
Represented By: Antony Philip Falconer Gemmell
Represented By: Molly Knopp Biklen
Represented By: Christopher T Dunn
Represented By: Jessica Perry
Represented By: Christopher Thomas Dunn
Represented By: Jordan Laris Cohen
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Plaintiff: Jamil Dakwar
Represented By: Antony Philip Falconer Gemmell
Represented By: Molly Knopp Biklen
Represented By: Christopher T Dunn
Represented By: Jessica Perry
Represented By: Christopher Thomas Dunn
Represented By: Jordan Laris Cohen
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Plaintiff: S.T.
Represented By: Antony Philip Falconer Gemmell
Represented By: Jordan Laris Cohen
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Plaintiff: Paul VanDeCarr
Represented By: Antony Philip Falconer Gemmell
Represented By: Jordan Laris Cohen
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