State of New York v. Mayorkas

Background

Two related cases challenged 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 plaintiffs sought court declarations and an order requiring the government to stop enforcing the decision.

On July 23, 2020, the Department of Homeland Security announced that it was rescinding the decision effective immediately. The court then ordered the parties to address whether the cases had become moot, meaning that no live dispute remained for the court to resolve.

Shortly afterward, the defendants asked to withdraw their pending motions to dismiss and for summary judgment, as well as the briefs and declarations supporting those motions. The defendants also acknowledged that some statements and representations in their filings were inaccurate or created a misleading impression. They said these problems undermined a central argument in their briefs and declarations, the rationale for the original decision, and their defense of that decision.

Parties’ Positions

The defendants argued that the cases should now be dismissed as moot because the challenged decision had been rescinded. The plaintiffs disagreed, relying mainly on the exception to mootness for a party’s voluntary conduct when the challenged conduct could recur. They pointed to Acting Secretary Wolf’s public statement that the agency was still considering action against New York concerning its Green Light Law.

The plaintiffs also said they intended to seek attorney’s fees and costs. Depending on the resolution of mootness and fees, they expected to seek additional information or discovery about what the agency knew, and when it knew it, regarding the inaccurate or misleading statements.

Court’s Orders and Reasoning

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the defendants’ motions to dismiss and for summary judgment, along with their supporting briefs and declarations, were withdrawn.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 the documents would remain on the docket because they remained part of the record and could be examined further.

The court ordered formal briefing on mootness. The defendants had to file their opening memorandum by August 7, 2020; the plaintiffs’ opposition was due August 17, 2020; and any reply was due August 21, 2020. The court did not decide in this opinion whether the cases were moot.

The court further ordered that, if it later determined that the cases were not moot, the plaintiffs’ cross-motion for summary judgment would be treated as unopposed. The defendants also had to address whether the court could and should consider the disclosures in the defendants’ July 23 letter and their concession that the rescinded decision was not legally supportable.

The court allowed the parties to try to resolve the plaintiffs’ claims for attorney’s fees and costs and required a joint letter proposing a briefing schedule if they did not settle that issue.

Finally, the court ordered a limited inquiry into the inaccurate and misleading statements. By August 12, 2020, the defendants had to file a comprehensive report listing each such statement, explaining why it was inaccurate or misleading, identifying who made or was responsible for it, describing counsel’s pre-filing diligence, and explaining when and how the defendants learned of the problems. For inaccurate or misleading statements in declarations, the same declarants had to file new declarations addressing how the statements appeared, what verification occurred before signing, and when the declarants learned of the problems. The plaintiffs could respond by August 19, 2020.

Disposition

The court withdrew the defendants’ motions, ordered briefing on whether the cases should be dismissed as moot, and ordered the defendants’ detailed report and related declarations. It did not dismiss the cases, rule on the plaintiffs’ summary-judgment cross-motion, or decide the merits of the underlying challenge in this opinion. The classification is procedural because the opinion addressed withdrawal, mootness briefing, fees, and an ancillary inquiry rather than deciding the underlying legal claims.