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Case Name Lewis-McCoy v. Wolf IM-NY-0078
Docket / Court 1:20-cv-01142 ( S.D.N.Y. )
Additional Docket(s) 1:20-cv-01127-JMF  [ 20-1127 ]  Southern District of NY (U.S.)
State/Territory New York
Case Type(s) Immigration and/or the Border
Attorney Organization ACLU Chapters (any)
New York Civil Liberties Union (NYCLU)
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 ... read more >
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 attorney’s 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.

As of August 3, 2020, these cases are still pending. Final briefing on the mootness argument is due no later than August 21. The defendants must submit their report on any further misstatements by August 12.

Cody Wiles - 08/04/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process: Substantive Due Process
Federalism (including 10th Amendment)
General
Disparate Treatment
Transportation
Immigration/Border
Admission - procedure
Sanctuary city/state
Undocumented immigrants - state and local regulation
Plaintiff Type
Private Plaintiff
State Plaintiff
Causes of Action 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)
Ex Parte Young (Federal) or Bivens
Defendant(s) Department of Homeland Security
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.
Indexed Lawyer Organizations ACLU Chapters (any)
New York Civil Liberties Union (NYCLU)
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Withdrawal of policy
Source of Relief None yet
Filed 02/10/2020
Case Ongoing Yes
Additional Resources
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Docket(s)
1:20-cv-01142-JMF (S.D.N.Y.)
IM-NY-0078-9000.pdf | Detail
Date: 07/23/2020
Source: PACER [Public Access to Court Electronic Records]
1:20-cv-01142 (S.D.N.Y.)
IM-NY-0078-9001.pdf | Detail
Date: 08/10/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint [ECF# 1]
IM-NY-0078-0001.pdf | Detail
Date: 02/10/2020
Source: PACER [Public Access to Court Electronic Records]
Class Action Complaint [ECF# 1]
IM-NY-0078-0007.pdf | Detail
Date: 02/10/2020
Source: PACER [Public Access to Court Electronic Records]
First Amended Class Action Complaint [ECF# 24]
IM-NY-0078-0002.pdf | Detail
Date: 04/01/2020
Source: PACER [Public Access to Court Electronic Records]
Stipulated Order Certifying Class [ECF# 38] (S.D.N.Y.)
IM-NY-0078-0003.pdf | Detail
Date: 04/17/2020
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [ECF# 68] (2020 WL 3073294) (S.D.N.Y.)
IM-NY-0078-0004.pdf | WESTLAW | Detail
Date: 06/10/2020
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 86] (S.D.N.Y.)
IM-NY-0078-0005.pdf | Detail
Date: 07/23/2020
Source: PACER [Public Access to Court Electronic Records]
[Letter Addressed to Judge Jesse M. Furman from Defendant] [ECF# 87]
IM-NY-0078-0006.pdf | Detail
Date: 07/23/2020
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Furman, Jesse Matthew (S.D.N.Y.) show/hide docs
IM-NY-0078-0003 | IM-NY-0078-0004 | IM-NY-0078-0005 | IM-NY-0078-9000 | IM-NY-0078-9001
Plaintiff's Lawyers Biklen, Molly Knopp (New York) show/hide docs
IM-NY-0078-0001 | IM-NY-0078-0002 | IM-NY-0078-0007 | IM-NY-0078-9000
Cohen, Jordan Laris (New York) show/hide docs
IM-NY-0078-0001 | IM-NY-0078-0002 | IM-NY-0078-0007 | IM-NY-0078-9000
Colangelo, Matthew (New York) show/hide docs
IM-NY-0078-9001
Dunn, Christopher (New York) show/hide docs
IM-NY-0078-0001 | IM-NY-0078-0002 | IM-NY-0078-0007 | IM-NY-0078-9000
Fang, Linda (New York) show/hide docs
IM-NY-0078-9001
Gemmell, Antony Philip Falconer (New York) show/hide docs
IM-NY-0078-0001 | IM-NY-0078-0002 | IM-NY-0078-0007 | IM-NY-0078-9000
Goldstein, Elena Stacy (New York) show/hide docs
IM-NY-0078-9001
Nogueira, Daniela (New York) show/hide docs
IM-NY-0078-9001
Perry, Jessica (New York) show/hide docs
IM-NY-0078-0001 | IM-NY-0078-0002 | IM-NY-0078-0007 | IM-NY-0078-9000
Defendant's Lawyers Bannon, Zachary (New York) show/hide docs
IM-NY-0078-0006 | IM-NY-0078-9000 | IM-NY-0078-9001
Connolly, Christopher Kendrick (New York) show/hide docs
IM-NY-0078-0006 | IM-NY-0078-9000 | IM-NY-0078-9001
Kim, Elizabeth J (New York) show/hide docs
IM-NY-0078-0006 | IM-NY-0078-9000 | IM-NY-0078-9001
Oestericher, Jeffrey Stuart (New York) show/hide docs
IM-NY-0078-9001
Strauss, Audrey (New York) show/hide docs
IM-NY-0078-0006
Other Lawyers Watkins, Devin (District of Columbia) show/hide docs
IM-NY-0078-9001

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