Civil Rights, Voting Rights, and Public Interest Law Docket
I. Constitutional Rights
A. Mencias v. Dailey
IPR represents Erlin Mencias in a case brought in federal court under 42 U.S.C. § 1983 against a police detective who seized Mr. Mencias's work van and tools in an effort to identify a suspect who had been a passenger in Mr. Mencias's van. The detective continued to hold the van and tools to try to coerce cooperation from Mr. Mencias for over a year after the van was searched and the items of evidentiary value removed. We argue that a seizure reasonable at its inception because based on probable cause may become unreasonable as a result of its duration or for other reasons and that the detective violated Mr. Mencias's rights under the Fourth Amendment by continuing the seizure after probable cause had dissipated. We also allege that the detective violated the Fifth Amendment's due process clause by failing to provide Mr. Mencias with information regarding the process for seeking return of his property and by telling Mr. Mencias that his van and tools could be returned only if Mr. Mencias provided information to the police as to the identity and whereabouts of the suspect.
Shortly after we filed suit, the defendant released Mr. Mencias's van and tools, but some items were missing or damaged. We are seeking compensation for the damages suffered by Mr. Mencias as a result of the unconstitutional seizure of his property. The case is currently in discovery, and we anticipate moving for summary judgment after discovery closes.
B. Royer v. United States
Randall Todd Royer is serving a ten-year sentence stemming from his conviction, pursuant to a plea agreement, for aiding and abetting the use of a firearm in relation to a conspiracy to commit a crime of violence, in violation of 18 U.S.C. § 924(c). In June 2015, the Supreme Court held, in Johnson v. United States, that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. Subsequently, in Welch v. United States, the Supreme Court held that Johnson announced a new rule of constitutional law with retroactive effect on collateral review. IPR agreed to represent Mr. Royer to seek application of the rule announced in Johnson to his conviction under § 924(c), because § 924(c) uses language very similar to the unconstitutionally vague language of § 924(e)(2)(B)(ii).
IPR filed a motion in the U.S. Court of Appeals for the Fourth Circuit seeking an order authorizing the federal district court to entertain a successive motion for habeas relief under 28 U.S.C. § 2255. On June 3, 2016, the Fourth Circuit granted authorization, and Mr. Royer's motion to vacate his sentence was filed in the U.S. District Court for the Eastern District of Virginia the same day. We argue that the court should vacate Mr. Royer's conviction and sentence under 18 U.S.C. § 924(c) as having been imposed in violation of the Constitution because § 924(c)(3)(B), which defines "crime of violence" for § 924(c)(1), is unconstitutionally vague in light of the new constitutional rule announced in Johnson and made retroactive in Welch. Accordingly, we have asked to court to set aside Mr. Royer's § 924(c) conviction and release him from prison. The government's response is due in July, and oral argument on the motion will be set for late summer or early fall.
C. Delaware Riverkeeper Network v. FERC
IPR represents the Delaware Riverkeeper Network in a due process challenge to FERC's funding mechanism. We argue that because FERC receives much of its funding from the companies whose natural gas pipelines it regulates, FERC is biased in favor of the companies when it adjudicates pipeline applications. After we filed our complaint in federal district court, FERC and the United States and industry intervenors filed motions to dismiss. We have filed an opposition, and the motions are currently pending.
D. Heffernan v. City of Paterson
IPR represented the National Association of Government Employees (NAGE) as amicus in this Supreme Court case addressing whether the First Amendment's prohibition of retaliation by the government against a public employee for engaging in constitutionally protected political activity extends to retaliation based on a factual mistake about the employee's behavior. We argued that barring First Amendment retaliation claims where the government was mistaken about the employee's political speech would discourage employees from engaging in protected activities and would promote inefficiency in government service. In April 2016, the Supreme Court reversed the decision below and held that public employees are protected from retaliation based on an employer's mistaken belief that the employee had engaged in protected speech.
E. Spokeo, Inc. v. Robins
IPR represented fifteen information privacy law scholars as amicus in a Supreme Court case addressing whether an individual has standing to maintain an action in federal court under the Fair Credit Reporting Act (FCRA) against a search engine that gathered and disseminated information about the individual that was incorrect. We argued that the FCRA's consumer transparency requirements and remedial provisions represent a carefully crafted bargain that would unravel if consumers could not hold consumer reporting agencies liable for errors;FCRA violations are injuries in fact;and Congress created a remedy in FCRA that recognizes the injury worked by improper disclosure and handling of information in new technological contexts. In May 2016, the Supreme Court vacated the decision below and remanded the case for further consideration of the injury-in-fact requirement for Article III standing.
F. Beef Products, Inc. v. American Broadcasting Companies, Inc.
IPR agreed to represent the Consumer Federation of America (CFA) after it was subpoenaed to provide documents and third-party deposition testimony in a lawsuit arising out of an ABC News report about one of the plaintiff's products. We defended the deposition of CFA and successfully invoked associational privilege under the First Amendment to prevent disclosure of information relating to the internal, deliberative processes of the organization.
G. Koby v. ARS National Service, Inc.
IPR represents the National Association of Consumer Advocates (NACA) as amicus in this case. Plaintiffs brought a class action alleging that collection agency ARS National Services violated the Fair Debt Collection Practices Act. A settlement between the parties was approved by a magistrate judge over the objections of absent class members. An objecting class member appealed to the Ninth Circuit, arguing that the settlement was substantively unfair and that the notice provided to the class was deficient. We filed an amicus brief for NACA in support of the objector, arguing that the settlement's approval below was unconstitutional because only an Article III judge, and not a magistrate judge, has the constitutional and statutory authority to enter final judgment. The appeal was argued in January 2016. In February 2016, the Court noted that our amicus brief had drawn into question the constitutionality of 28 U.S.C. § 636(c), and certified that fact to the Attorney General. In response, the United States intervened and filed a brief. A decision is pending.
H. Schoenefeld v. New York
A New York statute requires that non-resident members of the New York bar have an office in New York to practice law in the state. Ekaterina Schoenefeld, a member of the New York bar and a resident of New Jersey, challenged the law in district court, arguing that it discriminates in favor of state residents in violation of Article IV's Privileges and Immunities Clause. Ms. Schoenefeld prevailed in the district court, which held that the non-resident office requirement was unconstitutional. New York appealed to the Second Circuit.
In the Second Circuit, IPR filed an amicus brief supporting Ms. Schoenefeld on behalf of twenty-two members of the New York bar who are not residents of New York and whose legal practices suffer because of the office requirement. IPR argued that the statute places significant additional burdens on out-of-state attorneys that cannot be justified by any legitimate New York interest. Because those burdens are only placed on non-residents, IPR argued that that the office requirement violates the Privileges and Immunities Clause.
In April 2014, the Second Circuit issued an opinion reasoning that resolving the constitutional issue depends on a question of state law interpretation, namely what minimum requirements are necessary to satisfy New York's statutory mandate that non-resident attorneys maintain an in-state office. The Second Circuit noted that, under the New York intermediate state courts' interpretations of the office requirement, the mandate appears to discriminate against non-resident attorneys, and therefore implicates the Privileges and Immunities Clause.
Rather than deciding the case based on interpretations by intermediate state courts, the Second Circuit certified the state law question to the New York Court of Appeals—the state's highest court—which had not yet addressed the issue. The Court of Appeals accepted the certified question in May 2014. IPR again represented the amici in front of the Court of Appeals, arguing that the plain meaning of the New York statute was that it required attorneys to maintain a physical office in the state of New York. In March 2015, the Court of Appeals issued an Order agreeing with the amici's interpretation of the statute, and sending the case back to the Second Circuit for final disposition. Oral argument in the Second Circuit was held June 2015. In April 2016, the Second Circuit, in a 2-1 decision, reversed the district court's decision, holding that the New York law does not violate the Privileges and Immunities Clause because it was enacted not for a protectionist purpose to favor New York resident attorneys but, rather, to provide a means of resolving a service concern while allowing nonresidents to practice in the state's courts.
I. Government Worker FBI Investigation
IPR represented a federal government employee who was approached by the FBI and asked to provide information regarding her travel to foreign countries many years prior to the worker's employment with the federal government. The FBI agent insinuated in conversations with the employee that the employee's job with the federal government might be in jeopardy if the employee declined to speak with the FBI. After researching the employee's rights and responsibilities, IPR determined that the employee is under no obligation to speak to the FBI. After IPR began its representation, the FBI abandoned its efforts to interview our client.
II. Discrimination And Workplace Fairness
A. Gonzales v. Marriott Int'l, et al.
IPR represented Mary Gonzales, a gestational surrogate who was denied lactation breaks by her employer because of her employer's belief that, as a surrogate, Ms. Gonzales was not entitled to the protections of state or federal anti-discrimination laws that protect women with pregnancy-related conditions. IPR filed a complaint on Ms. Gonzales's behalf in federal district court in California, alleging that her employer's denial of her request for lactation breaks equal to those provided to other nursing mothers violated California's Fair Employment and Housing Act and the federal Pregnancy Discrimination Act. The defendant filed a motion to dismiss Ms. Gonzales's claims. After briefing and oral argument, the district court issued a decision denying the motion to dismiss and holding that legal protections for lactating women apply regardless of surrogacy status. 142 F. Supp. 3d 961 (C.D. Cal. 2015). In early 2016, the case was resolved to the parties' mutual satisfaction.
B. Quintana v. City of Alexandria
IPR represents Monica Quintana in a case arising under the Family and Medical Leave Act (FMLA). Ms. Quintana was jointly employed by the City of Alexandria and Randstad, a staffing agency. Ms. Quintana informed her supervisors that she needed to miss work for a family medical emergency, and she was granted permission to go. Upon her return, her employers refused to reinstate her to her prior or an equivalent position.
In November 2015, we sued both the City and Randstad in federal district court for the Eastern District of Virginia under a joint employment theory of liability. The district court granted the City's motion to dismiss, holding that it was only a secondary employer and had not taken any action that would expose it to liability under the FMLA. In May 2016, Randstad made an Offer of Judgment under Rule 68 for $30,000 plus attorney's fees and costs, which Ms. Quintana accepted. Final judgment was entered against Randstad and in favor of the City. We appealed only as to the dismissal of the City. The U.S. Court of Appeals for the Fourth Circuit has set a briefing schedule, and we expect to argue the appeal in the Fall of 2016.
C. Prasad v. George Washington University
IPR represents Ricca Prasad in a federal lawsuit against George Washington University (GW), asserting claims under Title IX and common law tort and contract theories. We allege that during her time as a student at GW, Ms. Prasad was subjected to ongoing and severe harassment from a fellow student, and GW failed to take adequate steps to address the harassment.
In June 2015, we assisted Ms. Prasad in filing a complaint under Title IX with the U.S. Department of Education Office of Civil Rights. In October 2015, we filed a lawsuit in federal district court under Title IX and five common law theories. GW moved to dismiss the common law claims, and the court stayed further proceedings pending a ruling on the motion. In June 2016, the Court ruled that Ms. Prasad's lawsuit could proceed on the Title IX claim and four of the five common law claims. The case is currently in discovery.
D. Crockett v. Hybano
William Crockett drove non-emergency medical transport vans from 2009 through 2012 for Gadosolo Transportation, a subcontractor of Medical Transportation Management, Inc. (MTM). During the time Mr. Crockett was employed, he was woefully underpaid for his work –averaging just over $4 per hour despite the fact that, as an employee working under a DC government contract, he was entitled to the living wage of $12.50 per hour. During the final months of his employment, Mr. Crockett was paid only sporadically, or not at all.
In November 2014, IPR filed a complaint in DC Superior Court against Gadosolo Transportation, MTM, and Fekadu Hybano—the owner and sole proprietor of Gadosolo Transportation—alleging violations of the Living Wage Act of 2006, the DC Minimum Wage Act, the DC Wage Payment and Collection Law, and DC Municipal Regulation Title 7, § 909.
The parties engaged in extensive discovery and motions practice for most of 2015. In November 2015, the parties resolved the case on mutually satisfactory terms. In January 2016, the parties stipulated to the dismissal of all claims against MTM, and Mr. Crockett moved for entry of final judgment against Hybano and Gadosolo for the amount the Court had ordered them to pay Mr. Crockett as a sanction for failure to cooperate in discovery. The Court entered judgment in March 2016, and we began collection efforts, culminating in the filing of a writ of attachment and a motion for judgment of condemnation, which remain pending.
E. Pineda v. Neighbors' Consejo, Inc.
Katherine Pineda worked for Neighbors' Consejo, Inc., for 19 weeks but was paid for only two weeks of work. IPR agreed to represent Ms. Pineda to recover her unpaid wages and liquidated damages. When Neighbors' Consejo refused to resolve the matter out of court, we filed suit on Ms. Pineda's behalf in DC Superior Court against Neighbors' Consejo and three of its managing agents, asserting claims under the DC Wage Payment and Collection Law, and the DC Minimum Wage Act, and for breach of contract and promissory estoppel.
All four defendants defaulted by failing to answer the complaint, thereby waiving their opportunity to contest issues of liability. The defendants appeared in the action to preserve their ability to contest the amount of unpaid wages and damages owed to Ms. Pineda, and each defendant ultimately stipulated to the amount owed. In June 2015, the Court entered judgment against the defendants for the full amount of Ms. Pineda's unpaid wages, an additional three times that amount in statutory liquidated damages, plus attorneys' fees and costs.
IPR initiated collection efforts by recording a lien on the real property owned by Neighbors' Consejo, and IPR served post-judgment discovery to identify other assets that might be used to satisfy the judgment. In July 2015, Neighbors' Consejo filed for bankruptcy. We filed a claim in the bankruptcy proceedings on Ms. Pineda's behalf. With the approval of the Bankruptcy Court, property owned by Neighbors' Consejo was sold in March 2016, and Ms. Pineda's judgment was satisfied in full from the proceeds of the sale.
F. Savage v. FedEx Corp.
IPR represents Kenneth Savage on appeal to the Sixth Circuit, challenging the Western District of Tennessee's grant of summary judgment to Defendant FedEx Corp. on Mr. Savage's claims of discrimination and retaliation under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Mr. Savage was terminated from his job at FedEx approximately one month after returning from military duty in the US Navy and lodging complaints that FedEx had failed to correctly fund service members' retirement accounts. We argue that the district court failed to apply the correct standard for summary judgment when it decided disputed issues of material fact in favor of FedEx instead of leaving such issues for resolution by the jury. We filed our opening brief in June 2016, and we expect the case to be argued in the Fall of 2016.
G. Student v. University
IPR represents a graduate student in her claims against a public university under Title IX. During her time at the university, the student was subjected to persistent sexual harassment by other students and faculty, sexual assault by a faculty member, and retaliation for complaining of the harassment. The university also failed to provide the student with accommodations to which she was entitled as a student with a disability. In May 2016, we filed an administrative complaint with the Department of Education Office for Civil Rights, and we are engaged in efforts to resolve the matter without litigation.
H. Worker v. Former Employer
IPR represented a client who was not paid on time following her discharge from employment. IPR investigated the client's claims, researched potential causes of action and administrative remedies, and calculated the amount of damages owed. Before initiating formal proceedings, IPR sent a letter to the client's former employer demanding that it pay the client liquidated damages under the DC Wage Payment Act for its delay in issuing our client her final paycheck. In October 2015, the former employer paid the amount demanded, the client was satisfied, and litigation was avoided.
III. Open Government
A. Tushnet v. U.S. Immigration and Customs Enforcement
IPR represents Georgetown Law Professor Rebecca Tushnet in a Freedom of Information Act (FOIA) case against U.S. Immigration and Customs Enforcement (ICE). After an ICE official was reported to have stated at a press conference that critical use of a trademark—such as the profane debasing of a mascot—constitutes trademark infringement that would allow ICE to seize the merchandise as counterfeit, Professor Tushnet sought to determine whether ICE's official policies are based on a misunderstanding of intellectual property law. When ICE refused to cooperate with Professor Tushnet's informal requests for information, IPR drafted and submitted a FOIA request on her behalf in March 2015.
ICE responded in March 2015 by denying Professor Tushnet's request for a public interest fee waiver. We prepared an administrative appeal of the denial of the fee waiver request. In June 2015,ICE's Office of the Principal Legal Advisor determined that the fee waiver request should be granted.
ICE failed provide a substantive response to Professor Tushnet's FOIA request within the required time limits. On June 12, 2015, we filed a complaint in U.S. District Court seeking an injunction ordering ICE to make the requested records available without delay. After we filed suit, ICE made five rolling productions of responsive material, and the Court entered a briefing schedule for cross-motions for summary judgment. We have filed our motion for summary judgment alleging that ICE failed to conduct an adequate search for responsive records and improperly withheld information under FOIA Exemption 7(E). Summary judgment briefing will be completed in July 2016.
B. New Orleans Workers' Center for Racial Justice v. U.S. Immigration and Customs Enforcement
IPR is representing a community organization and eleven individuals seeking government records related to the Criminal Alien Removal Initiative (CARI). CARI is an immigration enforcement program under which U.S. Immigration and Customs Enforcement (ICE) coordinates with local police departments to plan and carry out raids in immigrant communities. The raids appear to be based on racial profiling. In an attempt to gather information about the program, our clients submitted a request under the Freedom of Information Act (FOIA). Despite granting our clients' request for expedited processing, ICE failed to produce any document for over sixteen months.
We filed suit in March 2015, seeking production of the requested records and a waiver of fees. Since we filed suit, ICE has produced some responsive records. The parties have filed cross-motions for summary judgment regarding the adequacy of ICE's search and the propriety of ICE's withholding of certain documents pursuant to several FOIA exemptions. The cross-motions remain pending.
C. Bowles v. Department of Veterans Affairs
In December 2015, IPR filed a complaint in federal district court on behalf of four veterans, alleging that the Department of Veterans Affairs (VA) had violated the Administrative Procedure Act and Privacy Act when it failed to process the plaintiffs' requests for their claims files in a timely manner. The plaintiffs sought access to these records in order to enable them to file for military disability benefits. We sought a declaration that the VA had unreasonably delayed responding to Plaintiffs' requests for access to their records and an order requiring the VA to produce the requested records. After we filed suit, the VA released the plaintiffs' claims files and moved to dismiss the case as moot. In February 2016, the parties stipulated to voluntary dismissal.
D. Public Interest Organization Claw Back Matter
IPR represented a public interest organization in resisting an attempt by a federal government agency to demand the return of records that the agency claimed had been inadvertently disclosed and which contained information that the agency claimed to be protected by the deliberative process privilege. The agency requested return of the records and a list of all disclosures the organization had made as to the information. On behalf of our client, IPR responded to the government's demand by explaining that our client has no legal obligation to return the records or refrain from using the information, and that any attempt to compel our client to produce a list of disclosures would violate our client's rights under the First Amendment. The agency confirmed that it does not intend to initiate legal action with respect to the disclosure, and the agency has ceased its efforts to recover the records.
E. Bloche v. Department of Defense
IPR represents two prominent bioethics experts, M. Gregg Bloche, M.D., a Georgetown law professor, and Jonathan Marks, a bioethics professor at Penn State, in a Freedom of Information Act (FOIA) case against various agencies of the Department of Defense and the Central Intelligence Agency. The plaintiffs seek information concerning the participation of government and civilian medical personnel in the design and implementation of torture techniques.
After filing FOIA requests with the relevant agencies in 2006 and 2007, and receiving no documents in response, IPR filed a FOIA lawsuit on behalf of the experts in November 2007. The Court ordered the government defendants to turn over relevant documents in several stages, and the releases concluded in spring 2010. The agencies are still withholding many documents, citing various FOIA exemptions.
In March 2011, the plaintiffs moved for summary judgment against a key defendant, the U.S. Air Force, arguing that the government's exemption claims are unlawful under FOIA. Because the Air Force appears to have played a key role in developing the policies that the plaintiffs are interested in, the plaintiffs are hopeful that this motion will serve as a bellwether for the litigation as a whole. The government filed an opposition to the motion and filed a cross motion for summary judgment. The plaintiffs filed an opposition to the government's motion and a reply on its motion. The motion is fully briefed and awaiting a decision. In the meantime, the government has begun to release some of the Air Force documents that it previously claimed were exempt and has agreed to review informally memoranda prepared by IPR detailing legal concerns about withholdings by defendant agencies other than the Air Force.
The plaintiffs have also filed a motion against three other defendants: the Navy and two subunits of the Department of Defense that establish and implement military health policy. Again, the government filed an opposition and cross motion for summary judgment. The parties completed summary judgment briefing in fall 2012, and the court held a hearing on those motions in December 2012.The court permitted the government to update its explanations for withholding certain Defense subunit records, and IPR supplemented its summary judgment motion based on those updates. In the meantime, the government has begun releasing documents put in issue by IPR's summary judgment motion (particularly some documents held by the Navy). In addition, the U.S. Army has also released documents in response to an informal memorandum the plaintiffs sent to government counsel detailing concerns with the Army's insufficient explanations for its withholdings. More than three and a half years later, the court still has not ruled on the parties' summary judgment motions.
IV. Voting Rights
A. Wright v. Sumter County Board of Elections and Registration
IPR represented the Georgia State Conference of the NAACP and the Campaign Legal Center in an amicus curiae brief before the U.S. Court of Appeals for the Eleventh Circuit, arguing that the district court failed to utilize the proper tests for analyzing the plaintiff's claims under Section 2 of the Voting Rights Act. The Eleventh Circuit reversed the district court's grant of summary judgment to the county and remanded the case to the district court.
B. Figgs v. Quitman County
IPR represented civil rights attorney Ellis Turnage against a claim by Quitman County for attorneys' fees following the voluntary dismissal of a Voting Rights Act case against the county in which Mr. Turnage served as lead counsel for the plaintiffs. In the underlying case, the plaintiffs challenged the county's drawing of its supervisor districts as improperly diluting the voting strength of African Americans. In February 2016, the county filed a motion for attorneys' fees and costs, asserting that plaintiffs were liable for attorneys' fees because their claims were frivolous, and that Mr. Turnage was liable for attorneys' fees because he had engaged in unreasonable and vexatious litigation.
In June 2016, the U.S. District Court for the Northern District of Mississippi ruled for our client and denied the request for attorneys' fees but granted the smaller request for costs.
C. Davidson v. City of Cranston
IPR represented former directors of the U.S. Census Bureau for an amicus curiae brief before the U.S. Court of Appeals for the First Circuit, arguing that the Census Bureau's decision to count incarcerated persons at the place of incarceration does not answer the question of where those persons should be counted for representational purposes under the one person, one vote analysis. The First Circuit reversed the grant of summary judgment to the plaintiffs and held incarcerated persons may be counted at the place of incarceration for representational purposes.
D. Georgia State Conference of the NAACP v. Kemp
IPR, the Campaign Legal Center, and other co-counsel represented non-profit advocacy groups in a lawsuit challenging Georgia's use of an exact-match system for registering new voters as violating Section 2 of the Voting Rights Act, as well as the First and Fourteenth Amendments. The parties ultimately settled the case after Georgia agreed to no longer automatically cancel voter registration applicants who failed the exact match process, agreed to allow applicants failing the exact match process to be placed on the voter rolls as "pending" with no deadline to correct the mismatch, and other safeguards to prevent the disenfranchisement of eligible voters.
E. Thompson v. State of Alabama
IPR, the Campaign Legal Center, and other co-counsel represent several individual plaintiffs, and a putative class, in challenging Alabama's system of felon disenfranchisement under multiple theories, including as intentionally racially discriminatory under the Fourteenth and Fifteenth Amendments. The case remains pending before the U.S. District Court for the Middle District of Alabama.
F. One Wisconsin Institute v. Thomsen
IPR represents Common Cause in an amicus curiae brief before the Seventh Circuit Court of Appeals, arguing that the district court rendered the Twenty-Sixth Amendment obsolete by failing to consider the clear targeting of the youth vote by fourteen changes in Wisconsin election law enacted during a narrow window in the state's legislative and political history. The case remains pending.
G. Multiple Section 2 Investigations
IPR, working in partnership with the Campaign Legal Center, has investigated several towns and cities in evaluating potential targets for litigation for compliance with Section 2 of the Voting Rights Act. In particular, clinic students have investigated and analyzed five jurisdictions for potential Section 2 litigation, including through the use of state open public records requests, with one likely target emerging from the investigation, and are currently researching an additional jurisdiction's compliance with Section 2.