Case 04
EPIC v. Mullin
Executive summary
The Complaint challenges an alleged unwritten Protester Surveillance Policy and Trusted Traveler continuous-vetting consequences for legal observers. Public materials identify concrete FOIA/discovery targets, including a Minneapolis “intel collection non-arrests” instrument and Mobile Fortify / ATS technical paths. Website disappearance of Directive 026-11 is not proven formal rescission. Cleland’s chronology is strongest; Ivey and Walker’s reinstatements raise mootness management issues without eliminating expungement and pattern theories.
- Court
- S.D. California
- Case
- 3:26-cv-04232
- Focus
- APA / Privacy Act / First Amendment / Agency Systems
- Analyzed
- August 2026
- Filed
- July 2026
- Status
- Early federal government litigation · pre-dispositive motion
I. Introduction and Scope
This memorandum evaluates Electronic Privacy Information Center v. Mullin, No. 3:26-cv-04232-AJB-MSB (S.D. Cal.), from a plaintiff-side litigation perspective. It reviews the Complaint filed July 24, 2026 (ECF 1); publicly available docket information; agency privacy and policy publications; archived government web pages; Inspector General reports; congressional materials; related civil filings and declarations; press reporting that quotes or describes primary documents; and counsel case pages that publish pleadings. It then identifies factual and legal vulnerabilities and supplies a concrete plan to strengthen Plaintiffs’ claims before the Government’s first dispositive motion.
Materials reviewed
The information in this memorandum is current as of August 6, 2026. The Complaint was reviewed in full. Public docket mirrors (PacerMonitor and CourtListener) presently show ECFs 1 through 16: the Complaint, summons, EPIC corporate and financial-interest disclosures, and six Democracy Forward pro hac vice grants entered July 27, 2026. No proof of service, answer, Rule 12 motion, scheduling order, or TRO or preliminary-injunction briefing appears on those public mirrors. Outside the docket, this memorandum relies on primary agency documents where located (including the Mobile Fortify Privacy Threshold Analysis, Trusted Traveler Program Handbook, and Global Entry privacy materials); archived copies of Directive 026-11; Privacy and Civil Liberties Oversight Board materials; DHS Office of Inspector General reports addressing Trusted Traveler revocations; sworn declarations filed in related cases; and the May 12, 2025 ICE memorandum litigated in Greater Boston Latino Network v. Mullin. Secondary press accounts are used only where they identify document titles, dates, or quotations that can be pursued as FOIA or discovery targets. Authority validation limits Commercial citators (Lexis and Westlaw) were not used. A complete negative-treatment pass through an approved live citator was not completed. Case citations in this memorandum are therefore investigative and briefing leads.
II. Governing Law and Procedural Posture
The case
Plaintiffs Electronic Privacy Information Center, Nicole Cleland, Jacquelyn Ivey, and Anna Walker sue Secretary Markwayne Mullin, the Department of Homeland Security, and component leadership. The Complaint alleges that DHS adopted and is implementing an unwritten “Protester Surveillance Policy” under which agents collect and maintain personally identifying information about legal observers and protesters; retain or route that information in DHS systems, including the Automated Targeting System (ATS); and use continuous-vetting processes to revoke Trusted Traveler benefits such as Global Entry and TSA PreCheck. Adversarial Investigation of the Case Record and Recommendations to Strengthen Plaintiffs’ Claims
The Complaint asserts eight counts. Counts I and II seek APA review predicated on Privacy Act §§ 552a(e)(7) and (e)(1). Count III challenges the alleged rescission or abandonment of DHS Directive 026-11 and the 2016 Mobile Application Privacy Policy. Counts IV and V challenge the failure to issue or revise a System of Records Notice. Count VI challenges adoption of the alleged Protester Surveillance Policy. Count VII seeks mandamus. Count VIII asserts First Amendment retaliation on behalf of the individual plaintiffs. The caption styles “Customs and Border Patrol.” The agency is Customs and Border Protection. The error is likely harmless unless Defendants weaponize it in answering.
The individual plaintiffs, as pleaded
Nicole Cleland alleges that on January 10, 2026, while legally observing Border Patrol activity in Minneapolis, agents addressed her by name, claimed to use facial recognition, recorded her with a body-worn camera, and warned her about impeding. On January 13, 2026, her Global Entry and PreCheck status was revoked. Jacquelyn Ivey alleges a November 18, 2025 observation encounter in South Carolina during which agents surrounded her vehicle, photographed her face and license plate, and demanded identification. Her Global Entry status was revoked approximately ten days later, though reinstated after Ombudsman contact. Anna Walker alleges an April 1, 2026 encounter in San Diego during which HSI agents photographed her face and plate. Her Global Entry status was revoked around April 6, 2026, though reinstated around April 10, 2026, after press inquiry. Threshold defenses the Government is likely to press Before any merits fight, the Government will attack final agency action; programmatic APA framing under Norton v. Southern Utah Wilderness Alliance; Privacy Act exclusivity; the law-enforcement proviso in § 552a(e)(7); Trusted Traveler causation; EPIC’s organizational standing; mootness as to reinstated individual plaintiffs; and the breadth of any nationwide injunction after Trump v. CASA, Inc. The investigation summarized below was organized to test, and where possible repair, each of those pressure points with public evidence.
IV. Evidentiary Discipline
A public statement is not proof of operational use. A system’s capability is not proof that the system was used against a plaintiff. Temporal proximity is not proof of causation. Website removal is not necessarily rescission. Denial of a “protester database” does not negate collection, retention, indexing, tagging, retrieval, dissemination, or use through another system. Related-case allegations are not established facts in this case. On the present public record, the Minneapolis form and memorandum remain operation-specific specimens, not proven national directives. Mobile Fortify’s documented capabilities do not prove that Cleland, Ivey, or Walker was scanned with that application. Wells’s narrow denial remains reconcilable with photo retention in general systems. The full text and face date of the mid-February Trusted Traveler “encounters” memorandum were not located after public-source search and remain a priority FOIA and discovery target. Adversarial Investigation of the Case Record and Recommendations to Strengthen Plaintiffs’ Claims
V. Material Evidence and Open Gaps
The “intel collection non-arrests” instrument
The Complaint alleges that a DHS memorandum instructed agents to “capture all images, license plates, identifications, and general information on hotels, agitators, protestors, etc., so we can capture it all in one consolidated form.” Public reporting and related-case pleadings identify the associated Minneapolis HSI temporary-duty instrument title as “intel collection non-arrests.” That title converts an amorphous quotation into a searchable FOIA and discovery target. It should be pursued as a discrete instrument supporting Count VI and the Privacy Act theories, while remaining geographically honest unless parallel regional forms are located. Trusted Traveler causation for each plaintiff Cleland presents the strongest individual retaliation chronology: legal observation on January 10, 2026; Trusted Traveler revocation on January 13, 2026; continued revocation as of filing. Her sworn declaration in Tincher adds that the revocation notice did not always disclose reasons and that the only plausible listed boilerplate reason was a customs, immigration, or agriculture violation despite no arrest. That anomaly is usable now. The missing middle of the chain—ATS or Global Entry System comments, recommending office, and reason codes—still requires Privacy Act access and discovery. Ivey and Walker present different profiles. Both allege observation, collection, and Trusted Traveler revocation, followed by reinstatement after Ombudsman or press contact. Reinstatement reduces some irreparable-harm narratives and raises mootness risk, but does not eliminate claims for expungement, chill, declaratory relief, or pattern evidence—particularly while Cleland remains revoked and while records may persist. Separately, press accounts describe a mid-February CBP memorandum under which headquarters may recommend Trusted Traveler revocation of U.S. citizens after certain law-enforcement “encounters,” including encounters supporting other agencies’ operations. The full memorandum was not located in public sources. If its face date is February 2026, chronology alone defeats any claim that it caused Cleland’s January revocation. It remains highly relevant as pattern, prospective, and continuous-vetting evidence once authenticated. Directive 026-11 and the Mobile Application Privacy Policy Directive 026-11 addressed DHS collection of information relating to First Amendment activities. Its public PDF has returned HTTP 404 on dhs.gov since approximately February 19, 2025. No signed formal rescission instrument was located. Privacy and Civil Liberties Oversight Board materials note that DHS did not clarify whether the Directive still binds components. A DHS public statement that website removals “do not represent a change in policy” sits in direct tension with any theory that treats website disappearance as rescission. Count III should be amended or briefed as unexplained withdrawal, constructive abandonment, or failure to explain the change—not as proven formal rescission. The 2016 Mobile Application Privacy Policy PDF remains downloadable, while its publication page carries an “Archived Content” banner. The Mobile Fortify Privacy Threshold Analysis continues to cite the mobile-policy framework (including a document-number typographical variant). That mismatch between archive labeling and continued technical citation is useful for governance and arbitrary-and-capricious theories. Technical systems and continuous vetting The strongest verified technical connection presently available is the Mobile Fortify path described in the Privacy Threshold Analysis: field photograph to TVS and ATS, with multi-year ATS retention. Separately, Trusted Traveler continuous-vetting materials and OIG historical reports show that field-derived derogatory information can, as a matter of program design, affect Trusted Traveler status. Those materials establish institutional possibility and identify expected records. They do not, standing alone, prove that any named plaintiff’s observer encounter entered that pipeline. Adversarial Investigation of the Case Record and Recommendations to Strengthen Plaintiffs’ Claims
Related litigation admissions Government declarations in Hilton are among the highest-value public admissions presently available. Barbero’s collection admission, Wells’s narrow denial and “domestic terrorist” suggestion admission, and pleadings describing Reuters and Klippenstein reporting supply discovery roadmaps and impeachment material. They should be used as related-case evidence and leads, not treated as adjudicated facts in this action.
VI. Related APA Template — Greater Boston Latino Network
Co-counsel Hagens Berman also represents plaintiffs in Greater Boston Latino Network v. Mullin, No. 1:26-cv-10472-JEK (D. Mass.), against overlapping institutional defendants. That case challenges a May 12, 2025 ICE memorandum by then-Acting Director Todd Lyons titled “Utilizing Form I-205, Warrant of Removal.” The memorandum acknowledges a sharp departure from historical practice, relies on an unexplained DHS Office of the General Counsel legal determination, and authorizes home entry and arrest on administrative Form I-205s. Plaintiffs’ partial summary-judgment memorandum presses Bennett v. Spear finality, APA vacatur, notice-and-comment theories, organizational diversion standing, and a stay under 5 U.S.C. § 705, and cites Trump v. CASA, Inc. The Government has represented that the policy is “paused” without a binding stipulation. The Lyons memorandum is a Fourth Amendment residential-entry instrument. It is not evidence of protester surveillance, Mobile Fortify use, ATS tagging, or Trusted Traveler revocation. Its value here is architectural: plead and prove discrete instruments with face dates, authors, distribution lists, and implementation proof; treat informal “paused” or “archived” labels as non-rescission; draft EPIC diversion declarations with concrete metrics; and narrow the prayer with CASA in view.
VII. Adversarial Repair Priorities
Strongest likely dismissal argument The Government’s strongest early attack is that Count VI’s “Protester Surveillance Policy” is an impermissible programmatic challenge under Norton and Lujan, compounded by Count III’s overstatement of “rescission” and by Privacy Act exclusivity arguments against APA vacatur. The best available repair is to reframe the case around discrete, identifiable instruments and as-applied injuries: the “intel collection non-arrests” form; the mid-February Trusted Traveler memorandum once obtained; Mobile Fortify’s documented retention path; the three plaintiffs’ Trusted Traveler adjudications; and Directive 026-11’s unexplained withdrawal. Pair APA theories with Privacy Act remedial tracks, including the Garris expungement analysis after citator completion. Causation and standing repairs For Cleland, lead with the anomalous “violation” boilerplate and demand Global Entry System comments. Do not tether her revocation to a later Trusted Traveler memorandum. For Ivey and Walker, plead continuing record injury, chill, and voluntary-cessation limits on mootness. For EPIC, quantify diversion with staff-hour declarations, FOIA logs, and member injury rather than mission overlap alone.
Remedy
Nationwide deletion of all protester-associated information is the prayer most vulnerable after Trump v. CASA, Inc. and after denial of overbroad temporary relief in related observer litigation. Prefer party-specific reinstatement and expungement, APA vacatur of identified instruments, and staged relief tied to proven systems and records. Adversarial Investigation of the Case Record and Recommendations to Strengthen Plaintiffs’ Claims
VIII. Immediate Counsel Actions
- Serve Privacy Act access requests for Cleland’s, Ivey’s, and Walker’s Global Entry System and Trusted Traveler files, including comments, recommending office, and reason codes.
- FOIA the “intel collection non-arrests” form and Minneapolis HSI temporary-duty memorandum; the mid-February CBP Trusted Traveler “encounters” memorandum; the Directive 026-11 removal or status decision file; and any responsive congressional oversight correspondence.
- Hash-preserve original Ivey and Walker videos; obtain and review related-case Government exhibits referenced in Hilton; complete live PACER authentication and service confirmation under Rule 4(i).
- Draft EPIC diversion and member declarations; prepare Count III and Count VI amendments around discrete instruments; narrow the prayer for CASA compliance.
- Coordinate, as ethically appropriate, with Hagens Berman counsel in Greater Boston Latino Network on shared-defendant and Office of the General Counsel discovery patterns, without conflating the Lyons I-205 memorandum with the Trusted Traveler memorandum. Five records most likely to change the outcome
- Plaintiff-specific Global Entry System and Trusted Traveler adjudication files.
- The face-dated mid-February CBP Trusted Traveler “encounters” memorandum.
- The “intel collection non-arrests” template and any multi-region counterparts.
- The Directive 026-11 removal, affirmation, or supersession decision ticket.
- Walker reinstatement correspondence identifying the reviewing office and rationale.
IX. Conclusion
The public record does not presently contain a single smoking-gun nationwide protester database. It does contain form titles, sworn notice anomalies, primary technical documentation, related-case Government admissions, and a discrete-memo APA pleading model that can materially improve this case if counsel uses them to narrow theories, harden causation, and repair Count III and Count VI before the Government’s first motion. The most important missing documents remain the Trusted Traveler “encounters” memorandum and the plaintiffs’ own Global Entry System files. Those should be pursued immediately.
Source documents