IPR Civil Rights Report for Fall 2015

During Fall 2015, the Civil Rights Section of IPR filed four lawsuits in federal district court; continued to litigate five other cases and successfully resolved two of them; filed three amicus briefs; represented a public interest organization in third-party discovery and a worker’s center in a claw back matter; successfully resolved a client’s wage payment claim without litigation; and researched several potential voting rights matters.

We filed suit under both Title IX and common law theories on behalf of a student whose university failed to respond appropriately to the stalking and harassment she suffered at the hands of another student. We sued the Department of Veterans’ Affairs under the Administrative Procedure Act on behalf of a group of veterans seeking records that they need to apply for veteran’s benefits. We also brought a case under the Family and Medical Leave Act on behalf of a worker who took leave to care for her comatose husband and was terminated one week after beginning her leave. Finally, we filed a Section 1983 action against the DC police for seizing our client’s van and tools and continuing to hold his property for over a year even though the police had completed their search for evidence. After filing our lawsuit, we were able to secure the return of the van and tools, and the litigation continues in an effort to recover damages.

The Civil Rights section successfully resolved two cases that were in active litigation throughout the semester – one a wage theft case on behalf of an employee of a government subcontractor and the other a pregnancy discrimination case on behalf of an individual who was denied lactation breaks because she was a gestational surrogate. In the latter case, we obtained a published decision denying the defendant’s motion to dismiss and establishing that legal protections for lactating women apply regardless of surrogacy status. We continued to litigate two cases under the Freedom of Information Act, and we filed a claim in Bankruptcy Court in an effort to collect a judgment that we previously obtained for a client in a wage theft case.

The Civil Rights section of IPR also engaged in an active amicus practice. We filed two amicus briefs in the U.S. Supreme Court, one on behalf of a group of information privacy law scholars and the other on behalf of public employee union. In the Eleventh Circuit, we filed an amicus brief on behalf of two public interest groups in a case challenging the dilution of Black voting strength in Sumter County, Georgia.

Finally, IPR defended the third-party deposition of a national consumer rights organization and successfully invoked associational privilege under the First Amendment, and we represented a worker’s center in connection with an attempt by the government to claw back documents previously released to the organization. We successfully demanded money owed our client by a former employer who failed to pay wages on time, and we investigated several potential voting rights cases involving a variety of issues, including minority vote dilution under the Voting Rights Act, felon disenfranchisement, fair apportionment under the Equal Protection clause, and state compliance with the requirements of the National Voter Registration Act.

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CAPS Product Identification Guide

2015-ICLI-00027 – Color Release

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D.C. Circuit Rejects Tobacco Companies’ Challenge to Report Describing Problems with Menthol Cigarettes

On January 15th, the U.S. Court of Appeals for the D.C. Circuit overturned a district court grant of summary judgment for plaintiff tobacco companies Lorillard Tobacco and R.J. Reynolds in favor of the FDA and anti-tobacco co-defendants. This amounted to a win for IPR’s client, the American Thoracic Society (ATS). On behalf of ATS and jointly with the Campaign for Tobacco Free Kids, IPR had submitted an amicus brief in support of FDA.

The dispute centered on a report by the twelve-member Tobacco Products Scientific Advisory Committee (TPSAC)—commissioned by the FDA—concerning the safety of menthol cigarettes. The report showed similar rates of lung cancer and other diseases in menthol smokers compared to other cigarette smokers, and discussed the disproportionately high use of menthol cigarettes in young people and African Americans. The overarching recommendation of the report was hardly forceful; TPSAC merely stated that “[r]emoval of menthol cigarettes from the marketplace would benefit public health in the United States.”

Nonetheless, the tobacco companies brought suit alleging that three members of TPSAC had been unlawfully appointed in violation of conflict-of-interest statutes and regulations, essentially biasing the menthol report and leading to stricter regulation of menthol cigarettes by FDA. FDA countered with standing and merits arguments, asserting the members were not conflicted out and the menthol report was lawful.

In a July 2014 ruling, the district court agreed with the tobacco companies, and ordered TPSAC membership to be reconstituted and enjoined FDA use of the menthol report. The FDA promptly appealed to the D.C. Circuit.

In the amicus brief, IPR’s staff attorney Justin Gundlach and student attorney Nathalie Prescott laid out the policy implications of the district court’s decision. In particular, the brief discussed FDA’s extensive background dealing with conflict-of-interest laws, the judiciary’s historical deference to agency conflict determinations, and the potentially wide-reaching ramifications of highly qualified experts becoming discouraged from serving on advisory committees.

After reviewing the briefs and hearing oral argument, D.C. Circuit vacated the district court’s summary judgment decision on ripeness grounds. According to the appellate court, FDA has yet to issue a final rule on menthol cigarettes, making the tobacco companies’ claims of injury “insufficiently imminent.” Even more, FDA does not have to make a rule based on the menthol report – it only has to consider the report, along with the public comments allowed under the Administrative Procedure Act. Because FDA may well choose not to issue any rule at all, the suit is not ripe.

Because the D.C. Circuit dismissed on the basis of ripeness, it did not review the merits of the case, which were the focus of IPR’s amicus brief arguments.

Former IPR student Nathalie Prescott drafted this post.

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FERC “Demand Response” Rule Upheld

On January 25, in a 6-2 decision authored by Justice Kagan, the Supreme Court issued its opinion in the case Federal Energy Regulatory Commission (“FERC”) v. Electric Power Supply Association. The Court reversed the judgment of the Court of Appeals for the District of Columbia and upheld FERC’s Demand Response Rule (FERC Order 745). IPR had previously submitted an amicus brief to the Supreme Court in support of FERC’s Order.

Under the Order, qualified electricity customers (“demand response providers”) can receive compensation for curtailing their electricity usage.  The curtailment is bid into the wholesale electricity market, just like electricity generation itself, in order to help balance supply and demand, lower wholesale electricity prices, and reduce transmission congestion during times of peak usage.

The Court was presented with two issues, and answered both in the affirmative: (1) does the Federal Power Act permit FERC to regulate demand response transactions without impinging on the States’ exclusive authority to regulate retail sales of electricity, and, (2) if so, was FERC’s requirement that there be equal compensation for demand response providers and electricity generators in such transactions reasonable?

As previously posted on this blog, IPR’s amicus brief received mention from Justice Breyer during oral argument in October when the Justice looked for clarification on a technical aspect of the Order, the “net benefits test.”  The amicus brief, written by former IPR Teaching Fellow Justin Gundlach and economist Dr. Charles Cicchetti, served to explain the economic principles and logic underlying FERC’s decision to compensate demand response providers and electricity generators equally at the wholesale market’s clearing price.

The Court espoused many of the same points offered in IPR’s amicus brief.  Most notably, the Court explained that FERC provided a detailed explanation for its decision and responded at length to a proposal that demand response providers should be compensated below the wholesale market’s clearing price because these providers will also be reducing their electricity bills.  In accepting FERC’s decision to reject this proposal, the Court noted that it was appropriate for FERC to set a compensation level that focused on the economic value that curtailed electricity usage brings to the wholesale electricity market, instead of the costs and benefits incurred by demand response providers themselves.  And the Court acknowledged that curtailment and generation provide an equal economic value because both allow market operators to balance supply and demand, and because the “net benefits test” ensures that electricity costs, not just the market-clearing price, go down.

This post was drafted by IPR student Aaron Flyer.

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IPR Successfully Opposes Petitions for Closed Captioning Waivers

The Institute for Public Representation scored another victory for deaf and hard of hearing individuals on November 17 when the Federal Communications Commission required a programmer to provide closed captions.

The Consumer and Governmental Affairs Bureau’s order (http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db1117/DA-15-1324A1.pdf) found that Victory Temple Church in Beaumont, Texas had sufficient financial resources to pay for closed captions for its programming. Victory Temple had filed a petition with the FCC seeking a waiver of the closed captioning requirements, arguing that captioning would be economically burdensome.

Under the Communications Act and FCC rules, all programming broadcast on television must be captioned. The rules allow for exemptions to the captioning requirements, however, in various situations or if a programmer claims that captioning would be economically burdensome.

IPR’s client Telecommunications for the Deaf and Hard of Hearing, Inc. opposed the economically burdensome petition filed by Victory Temple. In February, IPR student Caleb Gilmartin and a staff attorney drafted the opposition to Victory Temple on behalf of TDI (http://apps.fcc.gov/ecfs/document/view?id=60001029479).  The National Association of the Deaf (NAD), Cerebral Palsy and Deaf Organization (CPADO), and Deaf Seniors of American (DSA) supported TDI by signing on to the opposition.

In the order issued on November 17, the FCC largely agreed with IPR’s opposition, and determined that because Victory Temple’s profits exceeded its estimated captioning costs, captioning would not be economically burdensome. As a result, Victory Temple will have to begin captioning its programming by February 16, 2016.

The decision against Victory Temple is the seventh order from the FCC this year finding that it would not be economically burdensome for particular programmers to provide closed captions.  IPR opposed all seven of these petitions on behalf of TDI.

In October, IPR opposed four additional waiver petitions on TDI’s behalf, which are now pending before the Commission.  IPR students Lindsay Buchanan and Cory Dodds, along with staff attorney Drew Simshaw, drafted the oppositions.  Joining TDI by signing onto the oppositions with support were the National Association of the Deaf (NAD), Cerebral Palsy and Deaf Organization (CPADO), Association of Late Deafened Adults (ALDA), Deaf Seniors of America (DSA), American Association of the Deaf-Blind (AADB), and California Coalition of Agencies Serving the Deaf and Hard of Hearing (CCASDHH).

In addition to opposing closed captioning waiver petitions, students this semester assisted TDI in meetings with FCC commissioners’ staffs addressing how to make user interfaces for closed captioning services more accessible to deaf and hard of hearing consumers.  The Commission addressed many of TDI’s concerns in an order released this month (http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db1120/FCC-15-156A1.pdf).

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Tushnet FOIA

2015-ICLI-00027 Docs produced by ICE 9.30.2015

2015-ICLI-00027 Docs produced by ICE 12.3.2015

 

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IPR files amicus brief in Tenth Circuit in challenge to Bureau of Land Management’s novel wild horse removal policy

On November 27, the Institute for Public Representation filed an amicus brief on behalf of four natural resources and administrative law professors in the case American Wild Horse Preservation Campaign v. Jewell, et al., currently on appeal in the Tenth Circuit.  The brief supports the Petitioners’ challenge to the Bureau of Land Management’s (BLM) unlawful removal of over 1,200 wild horses on federally protected habitat.

When removing wild horses from public and private land, BLM must comply with the procedures in the Wild Free-Roaming Horses and Burros Act (WHA). In 2014, a private cattle-grazing association requested that BLM remove wild horses on both the public and private Checkerboard lands. In responding to that request, BLM decided to remove wild horses from both public and private lands pursuant only to “private land” removal procedures (required by Section 4 of the WHA), circumventing “public land” procedures (required by Section 3 of the WHA).

IPR’s brief argues that under the plain language of the WHA, Congress unambiguously directed BLM to follow Section 3’s rigorous procedures before removing wild horses on “public lands.” Therefore, the agency’s 2014 decision to remove wild horses on the Checkerboard under Section 4—the “private land” removal process—alone, violates numerous principles of statutory interpretation. Alternatively, because the agency presented its novel interpretation that Section 4 authorizes wild horse removal on public lands in just one sentence of its 2014 “Decision Record,” without giving opportunity for notice-and-comment on its new reading, BLM’s position does not deserve deference from the courts under the Chevron doctrine.

If the Tenth Circuit approves BLM’s interpretation of the WHA, BLM will have carte blanche authority to systematically bypass the strict procedures for removal of wild horses on “public lands.” The amicus brief clarifies that Section 3 of the WHA should not be subordinate to discretionary actions taken to protect private landowners, and that BLM’s novel interpretation of the WHA is nowhere near the exercise of policymaking authority required by Mead to receive Chevron deference.

Georgetown Law students Stephanie Littlehale (L’16) and Taylor Denson (L’16) helped research and draft the brief, along with graduate teaching fellow/staff attorney Danny Lutz.

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IPR, on behalf of children’s groups, files complaints at FTC urging further investigation into Google’s YouTube Kids app and junk food companies

Today, the Institute for Public Representation made two filings at the Federal Trade Commission (FTC) on behalf of its clients the Center for Digital Democracy and the Campaign for a Commercial-Free Childhood. One asks the FTC to investigate over a dozen major food and beverage companies that allow their unhealthy products to be advertised on YouTube Kids app contrary to their self-regulatory pledges. The other supplements a Request for Investigation filed on behalf of the same groups in April 2015 seeking investigation of Google’s deceptive and unfair practices in its YouTube Kids app. IPR students Samantha Rosa and Nick Garcia worked on these filings.

The Request to Investigate Members of the CFBAI

 Eighteen of the largest food and beverage companies (such as Burger King, Coca-Cola, Mars, and Nestle) are members of the self-regulatory Consumer Food and Beverage Advertising Initiative (CFBAI). These companies have pledged not to advertise products to children under age 12 unless they meet certain nutritional standards. The YouTube Kids app is intended for children age 5 and under. Nonetheless, we found hundreds of videos marketing products on the YouTube Kids app that did not meet these standards. In addition to television commercials, we found longer videos endorsing the products and entire channels devoted to brands of cookies or other snacks. The following screenshots are examples of the types of ads we found on YouTube Kids.

pic 2 pic 3Example of a TV Commercial uploaded to YouTube Kids (Reese’s)

pic 1

 

 

 

Example of a Brand Channel on YouTube Kids (Hershey’s)

 

 

 

Example of a product endorsement on YouTube Kids (Nutella, Oreo, Reese’s)

 

 

 

 

 

Our clients sent letters to the companies urging they work with Google to remove the ads for their junk food from YouTube Kids.

Supplement to April 2015 Request to Investigate Google

We originally filed a Request for Investigation of YouTube Kids in April 2015 alleging that YouTube Kids mixed commercial and other content in ways that were deceptive and unfair to children. We also argued the app was deceptively marketed to parents in that much of YouTube Kids’ content violated its strict ad policies. Since our Request, Google has updated several aspects of its app, including the app store description, the ad policies, and it has added a Parental Guide.

The supplement argues that Google’s changes do not address our concerns. Google continues to allow extensive advertising, including of food and beverage products, on YouTube Kids (see examples above). These ads can be deceptive to children primarily because it has long been known that children have great difficulty distinguishing between content and advertisements on television and do not understand the purpose of commercials is to promote the sale of a product. These advertisements are likely making their way to YouTube Kids, in part, because of the growing presence of multichannel networks, digital “influencers,” product placement companies, and major advertising and “unboxing” video companies on YouTube and YouTube Kids. Thus, we argue the FTC should expand its investigation of Google to include its relationships with those companies, which have likely contributed to the expansion of commercial offerings on YouTube Kids.

Google’s changes to its ad policy and the addition of its Parental Guide similarly do not address our concerns. Google’s ad policy, which disallows advertisements of food and beverage products on YouTube Kids, now applies only to the 15- and 30-second “pre-roll” ads that run before a video, and not to videos uploaded by users, which themselves can be ads (as shown above). This change fails to take into account the more common form of advertising taking place on YouTube Kids via long-form commercials, product placements, and endorsements, which remain largely deceptive to children.

Further, Google continues to deceive parents into thinking it is a safe environment for their kids. YouTube Kids’ description in the app store claims that it is designed for curious little minds to discover and learn and that its policies are family-friendly. Google also claims that it disallows food and beverage advertisements and that it has a mechanism to remove from YouTube Kids videos containing product placements, which Google itself appears to deem inappropriate for children. However, as the supplement showed, children can readily access an endless number of advertisements. Google’s claims to the contrary thereby deceive parents into thinking this app is safe for children.

Press coverage of the complaints:

New York Times

Wired

PCWorld

TechCrunch

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IPR Submits Amicus Brief in D.C. Circuit Challenging FERC’s Decision to License the Cove Point LNG Export Facility

On November 20th, the Institute for Public Representation filed an amicus brief in the D.C. Circuit on behalf of seven environmental organizations in EarthReports, Inc. (DBA Patuxent Riverkeepers), Sierra Club, and Chesapeake Climate Action Network v. FERC, Dominion Cove Point LNG, LP, and American Petroleum Institute, Nos. 15-1127 & 15-1205. The brief supported the plaintiffs’ challenge to FERC’s decision to authorize liquid natural gas (LNG) exports from Dominion Energy’s Cove Point facility (Cove Point).

Cove Point, located in Calvert County, Maryland, was originally built as a storage and import facility for LNG. In 2013, Dominion filed an application with FERC for authorization to construct and operate an LNG export terminal at Cove Point, thus changing the project’s original purpose. FERC authorized the construction in 2014, after preparing only an Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI) for the project. Plaintiffs challenged FERC ‘s decision to approve the conversion of Cove Point to an export facility without conducting a full analysis of the project’s environmental impacts, in violation of its National Environmental Policy Act (NEPA) obligations.

The amicus brief IPR wrote focused on the indirect environmental impacts of the Cove Point project that FERC’s EA failed to address. Specifically, our amicus brief argues that FERC’s EA was insufficient because it failed to consider the environmental impacts of natural gas development induced by the export facility, despite significant evidence of the connection between the project and the gas reserves in the Marcellus and Utica shale plays. The impacts from this increased development include damage to wildlife habitats, possible ground and surface water pollution, and degradation of air quality. The brief also argues that FERC failed to perform a valid cumulative impacts analysis when it unreasonably limited the geographic scope of the project’s impacts and inaccurately characterized the regulatory context in which cumulative impacts are expected to occur. Additionally, our brief argues that FERC failed to consider the intensity of the project’s impacts within the unique geographic context of the Chesapeake Bay and its watershed, as required by 40 CFR § 1508.27(b)(3).

Plaintiffs and amici contend that FERC’s approval of the Cove Point project without consideration of these impacts amounts to arbitrary and capricious behavior, and that, therefore, the agency’s authorization of the project should be vacated and remanded to FERC for compliance with NEPA. Georgetown Law students Christine Hottinger (L’15) and Jordan Liew (L’16), together with clinical teaching fellows/staff attorneys Justin Gundlach and Sarah Fox, researched and drafted the brief.

IPR student Jordan Liew helped draft this post.

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Federal Court Refuses to Dismiss IPR-Litigated Discrimination Suit Brought by Gestational Surrogate Denied Lactation Breaks

A federal judge in California has refused to dismiss an IPR-litigated discrimination suit against the Los Angeles Airport Marriott in which a longtime employee and gestational surrogate seeks relief for being denied lactation breaks.

The first-of-its-kind ruling concludes that plaintiff Mary Gonzales, who was prevented from taking twice-daily breaks to express breast milk even as other recently pregnant employees were allowed such an accommodation, has successfully stated claims against the hotel under both federal and California law.

“This is big win not only for Mary, but for women throughout California and across the country,” said John Davisson, an IPR student attorney who is working on Gonzales’s case. “This decision makes it clear that gestational surrogates and non-traditional mothers enjoy the same legal protections against pregnancy discrimination as mothers who have infants at home. It’s not up to Marriott to pick and choose.”

Gonzales is a cashier and general accountant at Marriott with a passion for helping individuals and couples struggling with infertility to build their families. In April of 2014, she gave birth to a healthy child pursuant to a surrogacy agreement.

In June of that year, when her pregnancy disability leave ended, Gonzales returned to work at Marriott. Gonzales would express milk at work for about 30 minutes twice a day to provide milk to the child she delivered, to receive personal health benefits of lactation, and ultimately to donate to women who were unable to produce sufficient milk for their own children.

But just a few weeks after returning to her job, Gonzales’s manager gave her 30 days’ warning that she would no longer be allowed to take breaks to express milk. Unlike other recently pregnant employees at Marriott who were permitted paid lactation breaks, Gonzales was told she could only use her lunch period. Gonzales requested to meet with Marriott officials to discuss an accommodation, but Marriott denied that she had any right to the breaks and declined Ms. Gonzales’s offer to bring in a doctor’s note detailing her need for the breaks.

As a result, Gonzales was left with no option but to devote her brief lunch period to expressing milk, instead taking her lunch during her 10-minute morning break. Gonzales suffered clogged ducts, severe breast pain and soreness, blisters, and loss of sleep in order to express milk at night. She was also prevented from having lunch with her colleagues and excluded from midday company social events.

Gonzales, who is jointly represented by IPR and San Francisco Bay Area-based Campins Benham-Baker, LLP, filed suit in the United States District Court for the Central District of California in May alleging discrimination and failure to accommodate under federal and state laws.

Though Marriott attempted to have the suit dismissed, Judge Margaret M. Morrow denied its motion on all counts. Her ruling rejected Marriott’s argument that accommodations for pregnancy-related conditions were only required for mothers who were nursing infant children at home.

“Marriott’s dismissal of the ‘personal health benefits’ of lactation—which it compares to ‘exercising during the workday’—is unfounded,” she added.

Judge Morrow found that “a reasonable jury could conclude that Gonzales was subjected to the treatment she was because Marriott perceived she did not conform to stereotypical views of how women act as it relates to motherhood or child bearing.” With this decision, Judge Morrow rejected Marriott’s claim that its treatment of Ms. Gonzales did not constitute sex discrimination because the “stereotype of legitimate motherhood” is not an actionable sex-based stereotype.

“This case is about preventing employers from denying employees their rightful workplace protections on the basis of their reproductive choices,” said Connor Cory, another Georgetown University student attorney representing Gonzales. “The circumstances of a woman’s pregnancy should have no bearing on her right to be free from sex discrimination or her eligibility for a reasonable accommodation.”

The case is captioned Gonzales v. Marriott International, Inc. and has the case number CV 15-03301 MMM (PJWx). Gonzales’s complaint is available here, and Judge Morrow’s decision can be viewed here.

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