State of New York v. Mayorkas

Background

The State of New York and R. L’HEUREUX LEWIS-MCCOY and others sought declarations and court orders invalidating Acting Secretary of Homeland Security Chad Wolf’s February 5, 2020 decision to exclude New York residents from Trusted Traveler Programs, including Global Entry. The Department of Homeland Security announced on July 23, 2020 that it was rescinding that decision effective immediately.

After the court asked the parties to address the effect of the rescission, the defendants filed a letter seeking to correct the record and withdraw their pending motions to dismiss and for summary judgment, together with the briefs and declarations supporting those motions. The defendants acknowledged that some statements about New York’s Green Light Law and the Department’s ability to assess applicants were inaccurate or gave the wrong impression. They also acknowledged that the disclosures undermined a central argument in their briefs and declarations and the rationale for the original decision and its defense.

The defendants later argued that the cases were moot. The plaintiffs disagreed, citing the exception for voluntary cessation—the principle that a defendant’s decision to stop challenged conduct does not automatically end a case—and noting Acting Secretary Wolf’s public statement that the agency was still considering action against New York. The plaintiffs also identified potential claims for attorney’s fees and costs and indicated that they might seek additional discovery or explanations about what the defendants knew and when.

Court’s Orders

Judge Jesse M. Furman ordered that the defendants’ motions to dismiss and for summary judgment, along with their supporting briefs and declarations, were withdrawn. The court stated that those materials would remain on the docket as part of the record and because they might be subject to further inquiry.

The court ordered formal briefing on whether the cases should be dismissed as moot. The defendants were required to file their mootness memorandum by August 7, 2020; the plaintiffs’ opposition was due August 17, 2020; and any reply was due August 21, 2020. If the court later determined that the cases were not moot, the plaintiffs’ cross-motion for summary judgment would be treated as unopposed, subject to further submissions concerning the defendants’ disclosures and concession that the rescinded decision was not legally supportable.

The court also directed the parties to confer about attorney’s fees and costs and, if they did not settle that issue, to submit a proposed briefing schedule. The court deferred most inquiry into the defendants’ inaccurate or misleading statements but found that a limited inquiry was appropriate immediately. It ordered the defendants to file, by August 12, 2020, a comprehensive and detailed report identifying every inaccurate or misleading statement or representation in the record, explaining why each was inaccurate or misleading, identifying the responsible persons, describing counsel’s pre-filing diligence, and explaining when and how the statements were discovered. The court also required replacement declarations addressing inaccurate or misleading statements in prior declarations and allowed the plaintiffs to respond by August 19, 2020.

Disposition and Significance

The opinion withdrew the defendants’ motions, set briefing schedules, and ordered a limited record-related inquiry. It did not dismiss the cases, decide whether they were moot, rule on the plaintiffs’ summary-judgment motion, or decide the merits of the challenge to the Trusted Traveler decision. The Clerk was directed to terminate specified docket entries as withdrawn and other specified entries as moot.