Civil Rights/General Public Interest Law Projects
1. Hairston v. Boarman
IPR represents Kevin Hairston, an African-American who has worked for the Government Printing Office (GPO) for decades but has repeatedly been denied promotions on the basis of race. Mr. Hairston joined GPO in 1987, and, after scoring 3rd out of 134 on GPO’s Offset Press Assistant Training Program examination, he was invited to participate in GPO’s Press Training Program Apprenticeship. After completing the program, Mr. Hairston became an Offset Pressperson.
In August 2006, Mr. Hairston applied for a promotion to the position of Second Offset Pressperson. GPO sent him notification that he was qualified, and internal documents obtained during the investigation reveal that the selecting and approving officials chose him for the position. Yet, without explanation, a Production Manager ordered that the selection be canceled, and the position was closed without it being offered to anyone. The position was later re-posted after management claimed that no qualified applicants had applied for the opening the first time. A white man was hired for the position. Mr. Hairston filed a complaint with the Equal Employment Office (EEO) at GPO, and he was retaliated against by his supervisors for doing so.
In September 2008, IPR filed suit on Mr. Hairston’s behalf. GPO responded with a motion to dismiss, claiming that Mr. Hairston failed to exhaust his administrative remedies prior to initiating the federal lawsuit. IPR opposed this motion, and, in the fall of 2009, the district court denied the motion as to the discrimination claim and granted the motion as to the retaliation claim. In the meantime, Mr. Hairston suffered additional retaliation at GPO, and he filed additional EEO complaints after he was denied overtime and training opportunities. IPR amended his federal complaint to include the denial of training claim in the spring of 2010, and the parties engaged in discovery throughout the summer and fall of 2010.
In spring of 2011, GPO filed a motion for summary judgment, arguing that the agency had a non-discriminatory reason for canceling Mr. Hairston’s promotion. IPR opposed the motion, arguing that the evidence indicates that GPO’s reason was false and pretext for discrimination. Summary judgment briefing was completed in early July 2011, and the parties await a decision.
2. Eley v. Vance-Cooks
IPR represented Melvin Eley, an African-American who had worked for the Government Printing Office (GPO) for decades but had repeatedly been denied promotions on the basis of race and retaliation. After Mr. Eley was denied a promotion in 2001, he filed an EEO complaint, and IPR represented him. GPO settled that matter favorably to Mr. Eley in 2003, but GPO continued to deny Mr. Eley promotions for which he was qualified.
Since the 2003 settlement, Mr. Eley has been denied at least four promotions, one of which was canceled without explanation. Most recently, in 2008, Mr. Eley applied for the Operations Director position, a Senior Level Service (SLS) position in the Information Technology and Systems Department. Mr. Eley was deemed qualified, but a white man was hired instead. At the time, there were no African-American men among the approximately 30 SLS positions at GPO.
IPR filed a Title VII complaint on Mr. Eley’s behalf in district court in November 2009. The parties conducted discovery throughout the summer and fall of 2010. In spring 2011, GPO filed a motion for summary judgment, arguing that the agency had a non-discriminatory reason for denying Mr. Eley the promotion. IPR opposed the motion, arguing that the evidence indicated that GPO’s reason was baseless and pretext for discrimination. In March 2012, the district court held a summary judgment hearing and denied summary judgment in a lengthy ruling from the bench, relying in significant part on arguments advanced in our brief. After the decision, the parties participated in mediation, and IPR obtained a favorable settlement for Mr. Eley.
3. Warner v. Boarman
IPR represents Kimberly Warner, an African-American woman employed by GPO. Ms. Warner heads the Digital Print Center (DPC), a department within GPO that prints and binds documents using digital printing equipment. When Ms. Warner was first promoted to head the DPC, she was being paid far less than the male employees she succeeded. Ms. Warner filed a sex-discrimination claim, and IPR represented her in proceedings before the Equal Employment Opportunity Commission. The claim settled favorably to Ms. Warner.
Since her settlement, however, Ms. Warner and the DPC have been retaliated and discriminated against. Ms. Warner has been denied numerous promotions though she was on the “best qualified” list each time. The DPC is chronically understaffed and, according to a complaint filed in GPO’s Equal Opportunity Employment Office (EEO) filed by a group of DPC employees, the staff is grossly underpaid. Ms. Warner’s performance evaluations were downgraded in 2007 and 2008, and her responsibilities have been reduced. Unlike her peers, Ms. Warner has been denied the opportunity to cross-train and denied an office space. She is routinely excluded from the decision-making process for issues that will affect the DPC.
Ms. Warner filed four complaints with GPO’s EEO Office. After that process provided Ms. Warner no relief, IPR filed a Title VII complaint in federal district court in August 2010. The complaint alleges that GPO continues to discriminate against her on the basis of sex and retaliate against her for filing complaints. After completing discovery, GPO filed a motion for summary judgment, and IPR opposed that motion. Summary judgment briefing was completed in June 2012, and the parties are awaiting a decision.
4. Batson v. BB&T
IPR represents DuEwa Batson, a former employee of a BB&T bank branch in Easton, Maryland. Ms. Batson worked as a bank teller, and she was often assigned to work on Saturdays. In November 2008, Ms. Batson converted to the Hebrew Israelite religion, which strictly observes the Sabbath from Friday evening through Saturday evening. In accordance with her religious practice, Ms. Batson refrains from all work on Saturdays and spends much of the day worshipping at her temple.
After her conversion, Ms. Batson explained to her bank manager and the regional human resources (HR) representative that she would no longer be able to work on Saturdays. They agreed to accommodate Ms. Batson’s religious practices. However, in April 2009, the bank’s manager was replaced. The new manager and the same regional HR representative informed Ms. Batson that the bank would no longer accommodate her religious observances. Ms. Batson refused to work on Saturdays, and she was fired.
Ms. Batson filed a complaint with the Equal Employment Opportunity Commission, which issued a determination in her favor, but did not prosecute her case. In June 2011, IPR filed a Title VII complaint in federal district court on Ms. Batson’s behalf, alleging that the bank discriminated against her on the basis of religion and in failing to accommodate her religious observances. Following a period of intense discovery, BB&T filed a motion for summary judgment, and IPR opposed. Summary judgment briefing was completed in March 2012, and the parties await a decision.
B. Open Government
1. McBurney v. Young
IPR represents Mark McBurney, a citizen of Rhode Island, Roger Hurlbert, a citizen of California, and Bonnie Stewart, a citizen of West Virginia. Each filed requests for public records under the Virginia Freedom of Information Act (VFOIA), but each request was denied because VFOIA only grants the right to access Virginia public records to citizens of Virginia. Mr. McBurney, who had been a citizen of Virginia for 13 years, sought records from the Virginia Department of Child Support and Enforcement regarding child support for his son. Mr. Hurlbert, who runs a business that collects and provides real estate information, sought records from the Henrico County Tax Assessors Office. Ms. Stewart, a professor of journalism at West Virginia University, sought information from Virginia public universities as part of a journalism course she teaches.
Mr. McBurney contacted IPR for assistance, knowing that IPR had previously handled a similar case, Lee v. Minner, against the state of Delaware, which IPR won in the U.S. Court of Appeals for the Third Circuit. Mr. Hurlbert contacted IPR soon after, and, in January 2009, IPR filed a complaint in district court in Virginia against the Virginia Attorney General, the Virginia Department of Child Support and Enforcement, and the Henrico County Tax Assessors Office on behalf of Mr. McBurney and Mr. Hurlbert. In February 2009, Professor Stewart contacted IPR regarding her own experience with the discriminatory provision of Virginia’s FOIA, and the complaint was amended to add Professor Stewart’s claim.
The complaint alleges that the citizens-only provision of Virginia’s FOIA violates the Privileges and Immunities Clause of Article IV and the Dormant Commerce Clause of the U.S. Constitution. After a hearing, the district court granted the defendants’ motion to dismiss, finding that the Attorney General, the only defendant sued by Professor Stewart, was not a proper party and that Mr. McBurney and Mr. Hurlbert lacked standing to bring their claims and opining that the plaintiffs would have lost on the merits anyway.
IPR appealed the decision to the U.S. Court of Appeals for the Fourth Circuit, and, in July 2010, after oral argument, the Fourth Circuit affirmed the district court’s decision to dismiss the Attorney General and Professor Stewart; reversed the decision as to Mr. McBurney’s and Mr. Hurlbert’s standing; and remanded Mr. McBurney’s and Mr. Hurlbert’s claims to the district court. On remand, the district court found that Mr. McBurney and Mr. Hurlbert have standing to challenge VFOIA’s citizens-only provision, but that the law did not violate the constitution. IPR appealed the merits decision to the Fourth Circuit. In February 2012, after oral argument, the Fourth Circuit held that the citizens-only provision did not violate the Privileges & Immunities Clause or the dormant Commerce Clause.
In conjunction with the Gupta Firm, IPR filed a petition for a writ of certiorari in the U.S. Supreme Court in June 2012, arguing that the Fourth Circuit’s decision conflicts with the Third Circuit’s decision in Lee v. Minner. We expect that the Supreme Court will rule on whether to grant certiorari in late September or early October.
2. 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 of 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 informally review 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. That motion will be fully briefed by fall 2012. In the meantime, the government has begun releasing documents put in issue by this 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.
3. Benavides v. Bureau of Prisons
Eduardo Benavides, a federal prisoner, filed a Freedom of Information Act (FOIA) request with the Bureau of Prisons (BOP) seeking digital audio recordings made by BOP of conversations between him and his attorney. After BOP denied his request, Mr. Benavides filed a pro se complaint in federal district court. BOP moved for summary judgment, claiming that the recordings are exempt from disclosure under FOIA Exemption 7(C) because they are law enforcement records and because Mr. Benavides’s attorney has a personal privacy interest in the recordings. IPR agreed to represent Mr. Benavides.
In May 2010, IPR filed an opposition to BOP’s motion for summary judgment and a cross-motion for summary judgment. IPR primarily argued that an attorney has no personal privacy interest in attorney-client conversations during which only the client’s case was discussed. IPR also argued that the recordings were not law enforcement records. The district court held that the government had not shown the recordings were not law enforcement records and did not reach the attorney privacy issue. However, the district court declined to grant IPR’s cross-motion for summary judgment and invited BOP to produce more evidence that the records constituted law enforcement records and to file a second motion for summary judgment. In June 2011, the parties completed briefing their second cross-motions for summary judgment, which involved additional declarations on both sides and new summary judgment briefs.
In two additional decisions issued in spring 2012, the court largely ruled in Mr. Benavides’ favor, giving BOP the choice of either releasing the records or producing transcripts of the relevant audio recordings. BOP ultimately released the audio recordings sought by Mr. Benavides, and the case was dismissed on its merits. IPR has moved for an award of attorney’s fees, and the parties are trying to settle the fee dispute before submitting it to the court for resolution.
4. Southern Migrant Legal Services v. Range
Southern Migrant Legal Services (SMLS) is a legal services organization that provides free legal services to indigent migrant agricultural workers in six southern states. To assist in its advocacy, SMLS frequently files state and federal freedom of information requests seeking documents about the employers of migrant workers. The migrant worker visa program (the H2-A program) is a heavily regulated joint federal-state program.
In 2007, the Mississippi legislature amended its labor laws and classified H-2A documents as confidential, permitting the documents to be withheld under the Mississippi Public Records Act. SMLS has requested H-2A records under the Public Records Act from the Mississippi Department of Employment Security (MDES) several times, and MDES denied each request, citing the new law.
In July 2010, IPR filed a complaint in federal district court in Mississippi on behalf of SMLS. The § 1983 complaint alleged that MDES’s withholding of H-2A records violates federal law because a federal regulation requires states to release H-2A documents. MDES filed a motion to dismiss, arguing that SMLS lacked a right of action to challenge the Mississippi Public Records Act. IPR amended its complaint to add a preemption claim under the Supremacy Clause, and MDES filed a second motion to dismiss. IPR then filed a motion for summary judgment on the merits, arguing that the Mississippi statute making H-2A records confidential is preempted by federal law requiring the disclosure of H-2A records. Summary judgment briefing was completed in February 2011, and the parties await decisions on all the motions.
5. Nicholls v. OPM
Federal law prohibits men who fail to register with the Selective Service from working for the federal government unless they can show that their failure to register was not knowing and willful. The Office of Personnel Management (OPM) makes the knowing and willful determination.
In April 2011, suspicious that OPM bases its determinations on factors other than whether the failures to register were knowing and willful, IPR staff attorney Leah Nicholls filed a FOIA request with OPM. She sought documents reflecting the numbers of men not hired or fired for their failure to register as well as documents related to appeals concerning the termination or failure to hire men who failed to register. Over the telephone, OPM indicated to Ms. Nicholls that it lacked documents responsive to her request, but she never received a written response.
In September 2011, IPR filed a complaint on Ms. Nicholls’ behalf against OPM in federal district court, alleging that OPM never responded to her request. After failed settlement discussions, the parties filed cross-motions for summary judgment. OPM argued that it lacked responsive documents. IPR contended that OPM had failed to do a sufficiently thorough search for documents reflecting the numbers of men terminated or not hired and that OPM read the request for knowing and willful appeals too narrowly.
The district court substantially agreed with IPR and granted summary judgment to Ms. Nicholls in a May 2012 order. The court required OPM to search for responsive records possessed by one of it subdivisions and ordered OPM to produce non-exempt records related to appeals from knowing and willful determinations. IPR filed a motion for attorney fees and costs in May 2012, and IPR awaits the government’s response.
6. Nicholls Administrative Appeal
In December 2011, IPR staff attorney Leah Nicholls made an additional FOIA request from OPM. She sought records concerning the agency’s interpretation and implementation of the law prohibiting employment of men who failed to register with the Selective Service. By letter, OPM stated that it had located records responsive to Ms. Nicholls’ request, but that the search, review, and copying costs would be more than $6,000.
On Ms. Nicholls’ behalf, IPR administratively appealed the fees, arguing that Ms. Nicholls’ request was for non-commercial educational use and therefore qualified for a waiver of the search and review costs. Further, IPR argued that Ms. Nicholls was also entitled to the public interest fee waiver and was, therefore, exempt from having to pay the copying costs as well. In April 2012, OPM’s General Counsel determined that the request qualified for the educational waiver of search and review costs, thereby reducing the costs to approximately $250, and remanded the public interest fee waiver question. IPR is awaiting OPM action on remand.
C. Class Actions
1. Hayden v. Atochem North America
In 1992, residents of Bryan, Texas filed a class action against Atochem in federal district court in Houston, alleging that the chemical manufacturer’s local pesticide plant spewed arsenic and other carcinogens, causing widespread medical problems and property damage throughout the area. The case settled favorably to the plaintiffs in 2000. Today, approximately $1 million remains in unclaimed settlement funds, and the district court sought proposals for distributing the remaining funds. The defendant proposed that the funds be either given back to it or given to specific local charities having nothing to do with the subject matter of the class action.
In March 2010, IPR, on behalf of class member Ralph Klier, submitted a competing proposal, arguing that the law required the court to make an additional pro rata distribution of funds to the most seriously injured class members. Alternatively, IPR argued that the funds should be distributed to a charitable cause with a strong nexus to the issues in the class action, such as Texas A&M’s School of Rural Public Health, which researches the carcinogenic effects of pesticides on humans in Texas.
The court decided to use the funds to make cy pres awards to several local charities unconnected to the subject matter of the class action, such as the Children’s Museum of the Brazos Valley. IPR sought a stay of the distribution, which was granted, and appealed the award to the Fifth Circuit. The Fifth Circuit heard argument in June 2011. In September 2011, the Fifth Circuit issued a decision entirely favorable to Mr. Klier and the class of seriously injured class members. Klier v. Elf Atochem N. Am., 658 F.3d 468 (5th Cir. 2011). The court of appeals ruled that because the money practically could be (and, therefore, should be) distributed to the seriously injured class members themselves, a cy pres award was inappropriate.
The case is currently on remand before the district court in Houston, and IPR is working with the case claims administrator to see that the remaining funds are distributed as completely and promptly as possible to the seriously injured class members.
2. Briggs v. United States
This nationwide class action was brought by military personnel, veterans, and their families who had held credit cards issued by a part of the U.S. military. The government had collected debts on these credit cards from the plaintiff class after the statute of limitations had expired. The parties settled in December 2009, and the government agreed to repay each class member 100% of the debt it had illegally collected.
Through two extensive memoranda, IPR advised class counsel on the applicable legal principles and possible appropriate charitable recipients in the event a pro rata redistribution of remaining funds is not feasible after an extensive search for all class members. In the memo concerning potential charitable recipients, IPR’s research focused on locating reputable organizations that provide financial or debt relief assistance to veterans and their families.
After drafting the memoranda, IPR worked on maximizing the distribution to class members. The distribution process was long and productive and resulted in nearly all of the funds going to the class members themselves. After the distribution was completed, the remaining funds were distributed to a government-run charity that serves needs military members and their families.
The federal Fair Debt Collection Practices Act (FDCPA) prohibits debt collectors from engaging in various forms of deceptive and unfair debt collection practices (such as posing as people other than debt collectors and harassing debtors with midnight phone calls). In 2010, the federal district court in New York approved a nationwide FDCPA class action settlement against a debt collector that systematically phoned alleged debtors without providing various disclosures required by the FDCPA. The settlement provided no monetary relief to the class members, small charitable contributions to charities having nothing to do with the substance of the lawsuit, and a sizeable attorney’s fees for the plaintiffs’ lawyers. In the meantime, Chana Hecht brought a suit regarding the same conduct in a federal district court in Connecticut. That court threw out the suit on the ground that Ms. Hecht was a member of the class that had settled in New York and that her suit was precluded by the judgment approving the earlier nationwide settlement. IPR took on the briefing and argument of the case in the Second Circuit. IPR argued that giving the New York settlement preclusive effect would violate Ms. Hecht’s due process rights because she never was given notice and an opportunity to be heard in the New York case and because the plaintiffs in the New York case did not provide Ms. Hecht constitutionally adequate representation (as evidenced by the no-value settlement in the New York case).
In this case, opponents of a consumer class action settlement have appealed to the Eleventh Circuit. IPR filed an amicus brief in support of those opponents on behalf of the National Association of Consumer Advocates making several arguments, the most prominent of which is that the settlement’s approval below was unconstitutional because it was entered by a magistrate judge, not an Article III district judge. Magistrate judges may, under 28 U.S.C. § 636(c), enter final appealable judgments with the consent of the parties. We maintain that the use of the magistrate judge here was impermissible because the absent class members could not, and did not, consent.
D. Other Matters
1. Elgin v. U.S. Department of the Treasury
Michael Elgin, Aaron Lawson, Henry Tucker, and Christon Colby are all former valued employees of the federal government. Each was terminated solely because the Selective Service has no record that they registered. Each then sought a determination from the Office of Personnel Management (OPM) that his failure to register was not knowing and willful, a determination that would permit him to work for the federal government, but OPM denied each of their requests and their and their employers’ administrative appeals.
Mr. Elgin appealed his termination to the Merit Systems Protection Board (MSPB), arguing that his termination was unconstitutional, and the MSPB dismissed his appeal for lack of jurisdiction. Mr. Elgin, joined by Mr. Lawson, Mr. Tucker, and Mr. Colby, then filed a complaint in Massachusetts federal district court, arguing that the lifetime ban on federal employment for men who fail to register is a Bill of Attainder prohibited by the Constitution and that it violates their constitutional equal protection rights because the bar on employment only applies to men. The district court held that it had jurisdiction to consider the plaintiffs’ claims, but decided against them on the merits. Mr. Elgin, Mr. Lawson, Mr. Tucker, and Mr. Colby appealed, and a majority of the First Circuit panel held that it lacked jurisdiction over their constitutional claims because the Civil Service Reform Act’s scheme for addressing the grievances of federal employees impliedly precludes federal district court jurisdiction over employees’ constitutional claims.
In July 2011, on behalf of Mr. Elgin, Mr. Lawson, Mr. Tucker, and Mr. Colby, IPR filed a petition for certiorari in the U.S. Supreme Court. The Supreme Court granted certiorari and heard oral argument in February 2012. IPR argued that the Civil Service Reform Act did not impliedly preclude district court jurisdiction over federal employees’ constitutional claims for equitable relief, and the Solicitor General contended that the Act requires that the employee bring his or her claim in the MSPB.
In June 2012, the Supreme Court held, 6-3, that the Civil Service Reform Act requires federal employees to bring their equitable constitutional claims in the MSPB, even if the MSPB cannot grant the relief sought. In step with arguments made by the Solicitor General, the Court reasoned that the Federal Circuit could decide employees’ claims on appeal even if the MSPB could not. Justice Alito, joined by Justices Ginsburg and Kagan, dissented for the reasons outlined in IPR’s brief.
2. 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. The parties await oral argument and a decision from the Second Circuit.
3. Minneci v. Pollard
Some federal prisons are run, under contract with the government, by private prison corporations. In this case, our client (Richard Lee Pollard) was severely injured on account of deliberate mistreatment by guards employed by a private prison corporation under contract to run a federal prison in California. He sued the prison guards for damages under the Supreme Court’s Bivens doctrine, claiming that the guards had violated his right to be free from cruel and unusual punishment under the Eighth Amendment. The guards argued that although they acted under color of federal law because they were carrying out a government function, the Bivens doctrine does not apply to private actors so long as state law provides an adequate remedy. IPR acted as co-counsel for Mr. Pollard, helping to research the law, write the brief, and prepare for oral argument. In January 2012, the Supreme Court decided in favor of the prison guards, by a vote of 8-1, agreeing with the guards that because California tort law would provide a remedy for Mr. Pollard, a Bivens damages remedy would not be implied under the Eighth Amendment.