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Case TitleAmerican Civil Liberties Union v. United States Customs and Border Protection et al
DistrictSouthern District of New York
CityFoley Square
Case Number1:2019cv11311
Date Filed2019-12-11
Date ClosedOpen
JudgeJudge Jed S. Rakoff
PlaintiffAmerican Civil Liberties Union
Case DescriptionThe ACLU submitted FOIA requests to U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement for records concerning the use of cell site stimulators by agents. The ACLU also requested expedited processing and a fee waiver. The agencies acknowledged receipt of the requests. Both agencies responded by telling the ACLU that they had no records. The ACLU filed an administrative appeal of both no records decisions. However, after hearing nothing further from either agency, the ACLU filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Public Interest Fee Waiver, Litigation - Attorney's fees

DefendantUnited States Customs and Border Protection
DefendantUnited States Immigration and Customs Enforcement
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Opinion/Order [38]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2019-12-111COMPLAINT against Customs and Border Protection, Immigration and Customs Enforcement. Document filed by American Civil Liberties Union. (Attachments: # 1 Exhibit A: Request, # 2 Exhibit B: ICE correspondence, # 3 Exhibit C: CBP correspondence)(Wessler, Nathan) (Entered: 12/11/2019)
2019-12-112CIVIL COVER SHEET filed. (Wessler, Nathan) (Entered: 12/11/2019)
2019-12-113RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by American Civil Liberties Union.(Wessler, Nathan) (Entered: 12/11/2019)
2019-12-114FILING ERROR - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Customs and Border Protection, re: 1 Complaint,. Document filed by American Civil Liberties Union. (Wessler, Nathan) Modified on 12/12/2019 (jgo). (Entered: 12/11/2019)
2019-12-115FILING ERROR - SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Immigration and Customs Enforcement, re: 1 Complaint,. Document filed by American Civil Liberties Union. (Wessler, Nathan) Modified on 12/12/2019 (jgo). (Entered: 12/11/2019)
2019-12-12Civil Case Opening Fee Paid electronically via Pay.gov: for 1 Complaint,. Filing fee $ 400.00. Pay.gov receipt number ANYSDC-18258254, paid on 12/11/2019. (gp) (Entered: 12/12/2019)
2019-12-12***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Nathan Freed Wessler. The party information for the following party/parties has been modified: United States Customs and Border Protection; United States Immigration and Customs Enforcement. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error;. (jgo) (Entered: 12/12/2019)
2019-12-12CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Jed S. Rakoff. Please download and review the Individual Practices of the assigned District Judge, located at https://nysd.uscourts.gov/judges/district-judges . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at https://nysd.uscourts.gov/rules/ecf-related-instructions . (jgo) (Entered: 12/12/2019)
2019-12-12Magistrate Judge Barbara C. Moses 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 . (jgo) (Entered: 12/12/2019)
2019-12-12Case Designated ECF. (jgo) (Entered: 12/12/2019)
2019-12-12***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Nathan Freed Wessler to RE-FILE Document No. 5 Request for Issuance of Summons, 4 Request for Issuance of Summons,. The filing is deficient for the following reason(s): party name on 'as to' docket entry text does not exactly match pleading caption; party name on the PDF 'To' section is not a party of record. Party of record must be listed followed by 'care of c/o' or 'via' party name not of record;. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (jgo) (Entered: 12/12/2019)
2019-12-126REQUEST FOR ISSUANCE OF SUMMONS as to United States Customs and Border Protection, re: 1 Complaint,. Document filed by American Civil Liberties Union. (Wessler, Nathan) (Entered: 12/12/2019)
2019-12-127REQUEST FOR ISSUANCE OF SUMMONS as to United States Immigration and Customs Enforcement, re: 1 Complaint,. Document filed by American Civil Liberties Union. (Wessler, Nathan) (Entered: 12/12/2019)
2019-12-138ELECTRONIC SUMMONS ISSUED as to United States Customs and Border Protection. (dnh) (Entered: 12/13/2019)
2019-12-139ELECTRONIC SUMMONS ISSUED as to United States Immigration and Customs Enforcement. (dnh) (Entered: 12/13/2019)
2019-12-1610NOTICE OF APPEARANCE by Christopher T Dunn on behalf of American Civil Liberties Union. (Dunn, Christopher) (Entered: 12/16/2019)
2019-12-1611NOTICE OF APPEARANCE by Robert Andrew Hodgson on behalf of American Civil Liberties Union. (Hodgson, Robert) (Entered: 12/16/2019)
2019-12-2112NOTICE OF APPEARANCE by Casey Kyung-Se Lee on behalf of United States Customs and Border Protection, United States Immigration and Customs Enforcement. (Lee, Casey) (Entered: 12/21/2019)
2019-12-2313SUMMONS RETURNED EXECUTED (FOIA CASE). United States Customs and Border Protection served on 12/16/2019, answer due 1/15/2020. Service was made by Mail. Document filed by American Civil Liberties Union. (Wessler, Nathan) (Entered: 12/23/2019)
2019-12-2314SUMMONS RETURNED EXECUTED (FOIA CASE). United States Immigration and Customs Enforcement served on 12/16/2019, answer due 1/15/2020. Service was made by Mail. Document filed by American Civil Liberties Union. (Wessler, Nathan) (Entered: 12/23/2019)
2019-12-3015NOTICE OF APPEARANCE by Brett Max Kaufman on behalf of American Civil Liberties Union. (Kaufman, Brett) (Entered: 12/30/2019)
2020-01-0816NOTICE OF COURT CONFERENCE: Initial Conference set for 2/3/2020 at 11:00 AM in Courtroom 14B, 500 Pearl Street, New York, NY 10007 before Judge Jed S. Rakoff, as further set forth in this order. (Signed by Judge Jed S. Rakoff on 1/8/2020) (jwh) (Main Document 16 replaced on 1/8/2020) (jwh). (Entered: 01/08/2020)
2020-01-2117ANSWER to 1 Complaint,. Document filed by United States Customs and Border Protection, United States Immigration and Customs Enforcement.(Lee, Casey) (Entered: 01/21/2020)
2020-02-03Minute Entry for proceedings held before Judge Jed S. Rakoff: Interim Pretrial Conference held on 2/3/2020, Oral Argument to be held on 2/3/2020 re: 16 Order for Initial Pretrial Conference, Defts I.C.E. and C.B.P. reports due March 3, 2020. (Kotowski, Linda) (Entered: 02/03/2020)
2020-02-1818PROPOSED ORDER FOR SUBSTITUTION OF ATTORNEY. Document filed by United States Customs and Border Protection, United States Immigration and Customs Enforcement..(Tarczynska, Dominika) (Entered: 02/18/2020)
2020-02-18Minute Entry for proceedings held before Judge Jed S. Rakoff: ( Oral Argument set for 5/26/2020 at 02:00 PM before Judge Jed S. Rakoff.). (Kotowski, Linda) (Entered: 02/19/2020)
2020-02-18Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 2/18/2020, Case Stay Lifted, ( Motions due by 4/23/2020., Replies due by 5/14/2020., Responses due by 5/7/2020). A finsl pretrial conference will be heard on May 26, 2020 at 2:00pm (Kotowski, Linda) (Entered: 02/21/2020)
2020-02-2719TRANSCRIPT of Proceedings re: CONFERENCE held on 2/3/2020 before Judge Jed S. Rakoff. Court Reporter/Transcriber: Kristen Carannante, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/19/2020. Redacted Transcript Deadline set for 3/30/2020. Release of Transcript Restriction set for 5/27/2020..(McGuirk, Kelly) (Entered: 02/27/2020)
2020-04-1320NOTICE OF APPEARANCE by Alexia Ramirez on behalf of American Civil Liberties Union..(Ramirez, Alexia) (Entered: 04/13/2020)
2020-04-15Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 4/15/2020. Counsel for both sides are present. (tro) (Entered: 04/16/2020)
2020-04-16MEMORANDUM TO THE DOCKET CLERK: The Final PTC in ACLU v. CBP, et al. (19-cv-11311) has been moved from 5/26 to 7/15/2020 at 4:00 pm.(kgo) (Entered: 04/16/2020)
2020-04-16Set/Reset Hearings: Final Pretrial Conference set for 7/15/2020 at 04:00 PM before Judge Jed S. Rakoff. (kgo) (Entered: 04/16/2020)
2020-05-2221MOTION for Summary Judgment . Document filed by American Civil Liberties Union. Responses due by 6/12/2020.(Ramirez, Alexia) (Entered: 05/22/2020)
2020-05-2222MEMORANDUM OF LAW in Support re: 21 MOTION for Summary Judgment . . Document filed by American Civil Liberties Union..(Ramirez, Alexia) (Entered: 05/22/2020)
2020-05-2223DECLARATION of Alexia Ramirez in Support re: 21 MOTION for Summary Judgment .. Document filed by American Civil Liberties Union. (Attachments: # 1 Exhibit A - DHS Policy on Cell Site Simulators, # 2 Exhibit B - House Oversight Committee Report, # 3 Exhibit C - Detroit News Article, # 4 Exhibit D - Plaintiff's Freedom of Information Act Request, # 5 Exhibit E - CBP Final Response Letter (May 24, 2017), # 6 Exhibit F - Plaintiff's Appeal of CBP Final Response (June 19, 2017), # 7 Exhibit G - CBP Letter Responding to Appeal (July 13, 2017), # 8 Exhibit H - ICE Final Response Letter (Sept. 20, 2017), # 9 Exhibit I - Plaintiff's Email to ICE (Sept. 20, 2017), # 10 Exhibit J - ICE Response to Email (Oct. 18, 2017), # 11 Exhibit K - Univision Article, # 12 Exhibit L - Conference Transcript (Feb. 3, 2020), # 13 Exhibit M - CBP Final Response Letter (Mar. 26, 2020), # 14 Exhibit N - ICE Initial Production Letter (Mar. 4, 2020), # 15 Exhibit O - ICE Supplemental Production Letter (Apr. 28, 2020), # 16 Exhibit P - ICE Second Supplemental Production Letter (May 20, 2020), # 17 Exhibit Q - ICE Third Supplemental Production Letter (May 21, 2020), # 18 Exhibit R - DHS Letter to Senator Wyden (Dec. 4, 2017), # 19 Exhibit S - DHS Letter to Senator Franken (Nov. 2017)).(Ramirez, Alexia) (Entered: 05/22/2020)
2020-06-1224MOTION for Summary Judgment . Document filed by United States Customs and Border Protection, United States Immigration and Customs Enforcement..(Simon, Jennifer) (Entered: 06/12/2020)
2020-06-1225MEMORANDUM OF LAW in Support re: 24 MOTION for Summary Judgment . and in Opposition to Plaintiff's Motion for Summary Judgment 21 . Document filed by United States Customs and Border Protection, United States Immigration and Customs Enforcement..(Simon, Jennifer) (Entered: 06/12/2020)
2020-06-1226DECLARATION of Patrick A. Howard in Support re: 24 MOTION for Summary Judgment .. Document filed by United States Customs and Border Protection, United States Immigration and Customs Enforcement..(Simon, Jennifer) (Entered: 06/12/2020)
2020-06-1227DECLARATION of Steven J. Griffin in Support re: 24 MOTION for Summary Judgment .. Document filed by United States Customs and Border Protection, United States Immigration and Customs Enforcement..(Simon, Jennifer) (Entered: 06/12/2020)
2020-06-1228DECLARATION of Erick Funn in Support re: 24 MOTION for Summary Judgment .. Document filed by United States Customs and Border Protection, United States Immigration and Customs Enforcement..(Simon, Jennifer) (Entered: 06/12/2020)
2020-06-1229DECLARATION of James V.M.L. Holzer in Support re: 24 MOTION for Summary Judgment .. Document filed by United States Customs and Border Protection, United States Immigration and Customs Enforcement..(Simon, Jennifer) (Entered: 06/12/2020)
2020-06-2630SUPPLEMENTAL MOTION for Summary Judgment . Document filed by American Civil Liberties Union..(Ramirez, Alexia) (Entered: 06/26/2020)
2020-06-2631REPLY MEMORANDUM OF LAW in Support re: 30 SUPPLEMENTAL MOTION for Summary Judgment ., 21 MOTION for Summary Judgment . and Opposition re: 24 Defendants' Cross-Motion for Summary Judgment . Document filed by American Civil Liberties Union..(Ramirez, Alexia) (Entered: 06/26/2020)
2020-06-2632DECLARATION of Nathan Freed Wessler in Support re: 30 SUPPLEMENTAL MOTION for Summary Judgment ., 21 MOTION for Summary Judgment .. Document filed by American Civil Liberties Union. (Attachments: # 1 Exhibit A - Letter to Sen. Franken, # 2 Exhibit B - Stingray Tracking Devices: Who's Got Them?, # 3 Exhibit C - ICE Cell Site Simulator Policy, # 4 Exhibit D - 2012 FOIA Response Christopher Soghoian, # 5 Exhibit E - Wilmington Police Department Invoice, # 6 Exhibit F - City of Durham Purchase Order, # 7 Exhibit G - Harris Corp. Kingfish Brochure, # 8 Exhibit H - Harris Corp. AmberJack Brochure, # 9 Exhibit I - Harris Corp. Kingfish Product Information and Pricing Sheet, # 10 Exhibit J - DOJ Cell Site Simulator Policy, # 11 Exhibit K - DOJ Electronic Surveillance Manual Excerpt, # 12 Exhibit L - Oakland Police Department Cell Site Simulator Policy, # 13 Exhibit M - Erie County Sheriff's Cellular Tracking Procedures, # 14 Exhibit N - Tallahassee Police Department Cell Site Simulator Usage Log, # 15 Exhibit O - NYPD Over the Air Intercepts Log, # 16 Exhibit P - Jonathan Mayer Congressional Testimony, # 17 Exhibit Q - DHS Cellular Threats Presentation, # 18 Exhibit R - DOJ Letter to Sen. Wyden).(Ramirez, Alexia) (Entered: 06/26/2020)
2020-07-0633REPLY MEMORANDUM OF LAW in Support re: 24 MOTION for Summary Judgment . . Document filed by United States Customs and Border Protection, United States Immigration and Customs Enforcement..(Simon, Jennifer) (Entered: 07/06/2020)
2020-07-0634DECLARATION of James V.M.L. Holzer [Supplemental] in Support re: 24 MOTION for Summary Judgment .. Document filed by United States Customs and Border Protection, United States Immigration and Customs Enforcement..(Simon, Jennifer) (Entered: 07/06/2020)
2020-07-08NOTICE: Telephonic argument will be heard July 15 at 4:00pm. Toll free dial in USA : 888-363-4735. International caller paid 215-446-3657, access code 1086415..(Kotowski, Linda) (Entered: 07/08/2020)
2020-07-10Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 7/10/2020. (Kotowski, Linda) (Entered: 07/10/2020)
2020-07-1035DECLARATION of Nathan Freed Wessler in Support re: 30 SUPPLEMENTAL MOTION for Summary Judgment ., 21 MOTION for Summary Judgment .. Document filed by American Civil Liberties Union. (Attachments: # 1 Exhibit T - CSS Canvassing Warrant Go-By, # 2 Exhibit U - CSS Locating Warrant Go-By, # 3 Exhibit V - 2017 ED Mich warrant, # 4 Exhibit W - 2019 EDNY warrant, # 5 Exhibit X - 2015 D Vt warrant, # 6 Exhibit Y - 2015 ND Ill warrant, # 7 Exhibit Z - 2018 WDNY warrant, # 8 Exhibit AA - Undredacted page of Wyden Letter, # 9 Exhibit BB - Unredacted page of Franken Communication).(Wessler, Nathan) (Entered: 07/10/2020)
2020-07-1336PROPOSED STIPULATION AND ORDER. Document filed by American Civil Liberties Union..(Ramirez, Alexia) (Entered: 07/13/2020)
2020-07-1337STIPULATION REGARDING CERTAIN ICE RECORDS: In order to avoid unnecessary expenditure of litigation resources, the parties agree and stipulate as follows: a. Plaintiff agrees not to challenge ICE's redactions to the final or draft versions of the PTA or the draft PIA in this action, and as further set forth in this stipulation. (Signed by Judge Jed S. Rakoff on 7/13/2020) (jwh) (Entered: 07/13/2020)
2020-07-15Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 7/15/2020. (Kotowski, Linda) (Entered: 07/15/2020)
2020-07-1738ORDER: While the Court believes it is the Government's burden to justify the applicability of any exemption under the Freedom of Information Act ("FOIA"), and while the affidavits submitted by the Government may arguably be insufficient to carry this burden, the Court has now reviewed the two remaining disputed documents in the above-captioned matter in camera. The Court finds that the redacted information therein meets the requirements of FOIA Exemption 7(E). However, the Court will file unredacted versions of the two documents under seal so that they are available for any potential appellate proceedings. (Signed by Judge Jed S. Rakoff on 7/17/2020) (jwh) (Entered: 07/17/2020)
2020-07-2039SEALED DOCUMENT placed in vault.(mhe) (Entered: 07/20/2020)
2020-07-28Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 7/28/2020. (Kotowski, Linda) (Entered: 07/28/2020)
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