IPR Civil Rights/Public Interest Section Report Fall 2014

During Fall 2014, the Civil Rights/Public Interest section of IPR filed five lawsuits. In federal district court, we filed a retaliation and wage case on behalf of a worker misclassified as exempt from overtime, and terminated by his employer when he complained. Also in federal district court, we filed a FOIA case against the Executive Office of U.S. Attorneys for failing to produce records we requested regarding the use of summary affirmance motions by the US Attorney’s Office for DC. In DC Superior Court, we brought two different wage theft cases, both on behalf of workers employed by DC government contractors or grant recipients. In Prince George’s County, Maryland, we filed a case on behalf of an individual improperly assessed a deficiency under state consumer protection statutes. We have also agreed to represent an individual whose employer denied her the lactation breaks she was entitled to under state and federal law, and another worker whose employer denied her disability and pregnancy accommodations, discriminated against her on account of her national origin, and illegally assessed fees against her in connection with her resignation. We argued two appeals in federal court, one in the DC Circuit in a race discrimination case, and another in the Fifth Circuit in a preemption case. We filed an amicus brief in the DC Circuit in the appeal of a decision holding that the fee-shifting provision of the Individuals with Disabilities Education Act does not apply to prevailing parties represented by appointed counsel, and we filed an amicus brief in the New York Court of Appeals in a case challenging a New York law that discriminates against nonresident attorneys. We initiated work on two amicus briefs to be filed in the U.S. Supreme Court in Spring 2015.

In addition to litigation, our Fall 2014 students successfully represented a client in demanding wages owed by his former employer, and used documents obtained under FOIA to prepare a report exposing government misconduct. Students also analyzed a number of potential cases, including two consumer protection claims, a potential appeal in a sexual harassment case, and a potential race discrimination class action based on reverse red-lining in automobile financing. On behalf of a public interest organization, we analyzed a potential Administrative Procedure Act claim related to the recall of exploding airbags. Our students visited the Consumer Financial Protection Bureau (CFPB) to meet enforcement attorneys and brainstorm on consumer-protection issues, participated in a conference call with CFPB Director Richard Cordray, met with Judge Lohier from the Second Circuit, and participated in moot courts for our own appellate arguments, and those of other public interest groups.

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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 and Consumers Union File Comments with the Copyright Office in Support of Unlocking Exemption

Last week IPR helped Consumers Union file comments with the Copyright Office in support of an exemption from the Digital Millennium Copyright Act (DMCA) that would enable consumers to unlock their mobile phones and tablets without risking criminal penalties.

Currently, most wireless carriers lock phones and tablets to their network so that these devices can only be used on one network. In the absence of an exemption, consumers who unlock their own devices may be subject to criminal penalties under the DMCA.

Without a legal right to unlock their devices, consumers must rely on their current carriers to unlock their phones and tablets for them—something carriers often make very inconvenient, even impossible. The proposed exemption would allow consumers unlock their own devices, making it easier to switch carriers and maintain the useful life of  devices.

“Giving consumers the right to unlock their mobile devices would create innovation in the wireless carrier and device marketplaces,” according to the comments. “Imposing DMCA civil and criminal liability on consumers who seek to use their devices on different wireless networks leads to customer lock-in, arbitrary forced purchases of new devices, and the consignment of useful equipment to the scrapheap. Allowing unlocking rebalances the market back in favor of consumers, as they can more easily switch carriers and make choices based on value and service.”

The comments support an unlocking exemption for both mobile phones and tablets since consumers increasingly use them for essentially the same functions such as accessing the Internet or sending and receiving text messages and emails. An unlocking exemption covering both mobile phones and tablets would accurately reflect the growing functional equivalence of these devices in the minds of consumers.

Now that proponents have filed their comments in support of various DMCA exemptions, opponents of the proposed exemptions will have a chance to file comments in opposition by March 27th. Then, supporters of exemptions will have an opportunity to file reply comments by May 1st before the Copyright Office issues its final rule.

Georgetown Law Student Maggie Thomas helped draft this post.

DMCA Exemption for Unlocking Mobile Handsets

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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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Honoring Sarah Tran

Sarah Tran, a 2009 magna cum laude graduate of Georgetown and an IPR student, recently received the teacher-of-the-year award from the SMU Law graduating class of 2015.  The class had Sarah during their first semester at law school when she was diagnosed with a reoccurrence of the cancer she first developed while at IPR.  Sarah continued her lectures through Skype from her hospital bed, and weeks later, when she returned to the classroom, received a standing ovation.  Over the next year, Sarah continued teaching more classes, publishing articles, and making presentations at conferences, all while fighting cancer.  She even tried her hardest to finish grading exams in her final days.  Sarah was an extraordinary student her at Georgetown and in IPR and, no surprise, turned out to be an extraordinary professor.


This post was written by Professor Hope Babcock

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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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IPR Amicus Brief Garners SCOTUS Attention

An amicus brief drafted by the Institute for Public Representation received mention from Justice Breyer last month, during oral argument for the case Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association.

The case dealt with FERC Order 745, which allows for compensation of “demand response” resources—i.e., curtailed electricity use that can be dispatched to help balance electricity supply and demand. At issue in the case is whether FERC overstepped its jurisdictional bounds with the Order, and whether its issuance of the Order was arbitrary and capricious. The final version of Order 745 differed from the original draft: while the original instructed wholesale market administrators to pay for demand response at all hours, the final version said that administrators should only pay for demand response when doing so would yield a net benefit to the wholesale marketplace. This change responded to comments submitted during FERC’s public comment process, which expressed concern about overcompensation of demand response providers. The mechanism FERC designed to identify when demand response would yield a net benefit was dubbed the “Net Benefits Test.” IPR’s amicus brief, written by former IPR Teaching Fellow Justin Gundlach and economist Dr. Charles Cicchetti, explained the role of the Net Benefits Test in the final version of FERC’s Order.

During his argument, Paul Clement—counsel for the Electric Power Supply Association—referenced the Net Benefits Test. Justice Breyer interrupted, asking whether “Cicchetti . . . writes about that in the brief, doesn’t he?” After Clement agreed, Justice Breyer continued, “And so I think that’s the best brief to read on [the Net Benefits Test].” Clement responded, “Yes.” He may have then realized that agreeing that IPR’s Cicchetti amicus brief is the “best brief” may have conceded too much, in that the brief rejected Clement’s clients’ position that FERC’s use of the Net Benefits Test did not save it from being arbitrary and capricious. Clement added that an expert amicus countering the Cicchetti amicus “has the better of the argument,” but Justice Breyer was clear: he promised to closely read IPR’s Cicchetti brief.

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IPR Files Amicus Brief in Tenth Circuit to Defend the Endangered Species Act

On April 21, the Institute for Public Representation filed an amicus brief on behalf of forty-two Environmental Law Professors in the case People for Ethical Treatment of Property Owners (PETPO) v. U.S. Fish and Wildlife Service (FWS), supporting the defendant federal government’s Constitutional authority to protect the Utah prairie dog under the Endangered Species Act (ESA). The case is currently on appeal in the 10th Circuit, and concerns PETPO’s challenge to a rule that prescribed when and where individuals can “take” the Utah prairie dog, which is listed as a threatened species under the ESA. Bringing suit in the District of Utah, PETPO argued that because the Utah prairie dog resides only in Utah and has no commercial value, the United States has no authority under the U.S. Constitution to promulgate such a rule. This is not the first time that a group has challenged the ESA on constitutional grounds, but the District of Utah is the first court to find the challenge meritorious.

IPR’s brief contended that the Commerce Clause of the Constitution does indeed provide Congress with the authority to legislate to protect intrastate species like the Utah prairie dog. This is because the ESA protects species by regulating economic activities that substantially affect interstate commerce, which United States v. Lopez, 514 U.S. 549 (1995) established as a valid use of Commerce Clause authority. In addition, the brief relied on both the majority and Justice Scalia’s concurrence in Gonzales v. Raich, 545 U.S. 1 (2005) to argue that the Commerce Clause, working with the Necessary and Proper clause, gave Congress authority to protect intrastate species. Nearly 70 percent of all species listed under the ESA reside in only one state; if Congress could not protect these species the ESA’s scheme would crumble. Georgetown Law student Charissa Morningstar (L’15) researched and drafted the brief, under the supervision of graduate teaching fellow/staff attorney Danny Lutz.

IPR student Charissa Morningstar helped draft this post.

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IPR honored by client for working to limit the runaway expansion of digital billboards

The Institute for Public Representation was honored with an award on April 16th at a reception hosted by Scenic America to commemorate the 50th anniversary of both the Highway Beautification Act and Lady Bird Johnson’s Conference on National Beauty. IPR is representing Scenic America, a national nonprofit organization dedicated to preserving and enhancing the visual character of America’s communities, in Scenic America v. U.S. Department of Transportation. The case, currently on appeal before the D.C. Circuit, challenges a Federal Highway Administration (FHWA) ruling allowing for digital billboards with commercial advertising to blight American highways, despite federal prohibitions under the Highway Beautification Act on flashing, moving, or intermittent lighting on billboards. Georgetown Law students Rosalie Winn (L’15), Jason Yan (L’15), and Jonathan Aronchick (L’15) all researched and drafted the appellate briefing, under the supervision of graduate teaching fellow/staff attorney Danny Lutz.

IPR recently completed briefing on the case, filing a reply brief on March 20, 2015 in response to arguments raised by defendants FHWA and the Outdoor Advertising Association of America. Aronchick helped write the opening brief, and Winn and Yan wrote the reply. Both briefs made the case that FHWA ignored the requirements of the Highway Beautification Act and the Administrative Procedure Act when it capitulated to the demands of the outdoor advertising industry and opened the floodgates on permitting digital billboards.

The case offered a learning opportunity for the students involved to wade through complex and unsettled areas of law, including organizational standing and what distinguishes legislative rules from interpretive rules under the Administrative Procedure Act. The students also learned how to adapt to changes in the law during briefing, as an intervening Supreme Court decision, Perez v. Mortgage Bankers Association, struck down a D.C. Circuit decision that had previously played a role in the lawsuit.

This isn’t the first time IPR has been recognized for its work on digital billboards. In 2010, Scenic America honored former IPR student Cristina Stella (L’10) for drafting a petition to to FHWA for rulemaking.

For more about the lawsuit, visit Scenic America’s website at: http://tinyurl.com/pt9gvhf.

Georgetown Law Students Rosalie Winn and Jason Yan helped draft this post.

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