State of New York v. Mayorkas

Background

Two related lawsuits challenged the Department of Homeland Security’s February 5, 2020 decision to suspend all New York residents’ eligibility to enroll or re-enroll in Customs and Border Protection’s Trusted Traveler Programs. The decision cited New York’s Driver’s License Access and Privacy Act, commonly called the Green Light Law, which limited federal access to certain Department of Motor Vehicles records.

After the Department of Homeland Security lifted the suspension in July 2020, it withdrew its pending motions to dismiss and for summary judgment and acknowledged that some statements in its briefs and declarations were inaccurate or misleading. Judge Furman ordered the defendants to prepare a detailed report and corrected declarations addressing those statements, who made them, the investigation into them, and the steps taken to prevent similar problems.

The defendants filed a redacted report, declarations from CBP officials, a privilege log, and a supplemental declaration. They submitted unredacted versions privately for the court’s review and sought to keep portions sealed under the attorney-client privilege, work-product doctrine, deliberative-process privilege, law-enforcement privilege, and privacy interests in the names of certain employees. The plaintiffs opposed the requests.

In an earlier ruling, the court had granted the plaintiffs’ unopposed motion for summary judgment on their Administrative Procedure Act claims, finding the Trusted Traveler decision arbitrary and capricious. The court vacated that decision and sent the matter back to the Department of Homeland Security for further proceedings. The court later denied the plaintiffs’ request for a permanent injunction.

Analysis

The court first rejected the plaintiffs’ general arguments for disclosure. It held that the defendants did not waive their privileges by submitting unredacted materials for private review. The court also found no implied waiver based on the defendants’ placing the information “at issue,” because the defendants had not relied on the protected communications to defend their decision; instead, they had withdrawn their defenses and effectively conceded the Administrative Procedure Act claims. The court further held that the plaintiffs had not shown probable cause of fraud or that the particular communications were intended to further a crime or fraud, so the crime-fraud exception did not apply.

The court then reviewed the specific redactions. It held that most attorney-client and work-product redactions were valid, but ordered disclosure of material that contained only underlying facts, was not confidential legal communication or attorney work product, had been publicly disclosed, or was not created in anticipation of litigation. For some work-product material, the court found that the plaintiffs’ need for information about how the government discovered and corrected its earlier statements overcame the protection because the information was highly relevant to possible fees or sanctions and was unavailable elsewhere.

The court held that a deliberative-process privilege applied to one passage but was overcome after balancing the government’s interest in confidential agency discussion against the plaintiffs’ need for information about the decision-making process. The court found that the defendants had waived law-enforcement privilege for one passage because substantially the same information had already been publicly filed, but it upheld the other law-enforcement redactions. It also rejected privacy-based redactions of employee names and names in the privilege log, while the opinion’s discussion recognized that contact information could be withheld.

Disposition

The court granted in part and denied in part the defendants’ motions to seal. It directed the defendants to file revised versions of the report, the Acosta Declaration, the Perez Declaration, the privilege log, and the supplemental Acosta Declaration within two weeks, consistent with the specific disclosures identified in Exhibit A. The court also postponed the parties’ deadline for a status letter about settlement negotiations until two weeks after those revised filings.

Judge Jesse M. Furman declined to impose sanctions on his own initiative. Although he criticized the defendants’ decision-making and litigation conduct, he concluded that the record did not show the kind of improper use or abuse of the judicial process that would warrant sanctions under the court’s inherent authority. The Clerk was directed to terminate the listed motions.