9Feb

New Benefit Program Attempts to Bridge Digital Divide

Categories: Current Issues Blog

By Rachel L. Golden

To mitigate the spread of COVID-19, millions of students have been forced to move from in-person to distance learning. The success of distance learning hinges on a student’s ability to access the virtual classroom.[1] For two girls in East Salinas, California, distance learning meant having to sit in a Taco Bell parking lot to complete their homework.[2] In August 2020, a photo of these two young girls sitting in the Taco Bell parking lot went viral on Twitter because the parking lot provided something that their home environment could not: access to the internet.[3]

For many Americans, access to online services is not a given.[4] A 2018 Federal Communications Commission (“FCC”) study found that “there are more than 14 million people without any internet access and 25 million without faster and more reliable broadband access.”[5] The COVID-19 pandemic has further illuminated this digital divide.[6] The digital divide “refers to the growing gap between the underprivileged members of society . . . who do not have access to computers or the internet” and the more affluent Americans who do have access to computers and the internet.[7] This divide stems from not only not having access to the internet, but also lacking access to a device that can connect to the internet.[8]

The digital divide does not exclusively affect school-aged children, but the consequences of the digital divide are clear when examining these children.[9] Even prior to the current public health crisis, a 2018 Pew Research Center analysis showed that due to a lack of broadband internet access, poor school-aged children were less likely to finish their homework than more affluent students with access to the internet.[10] This problem has been exacerbated during the COVID-19 pandemic when the primary mode of teaching, at all levels, has switched to virtual learning.[11] Moreover, to complete remote work, students may be forced “to go outside and ignore quarantine or shelter-in-place guidelines” to find internet access—actions contrary to the original health and safety purposes of distance learning.[12]

However, COVID-19’s illumination of the digital divide has “produced new political will to reduce inequality in the global digital economy.”[13] Congress, in the most recent COVID-19 response and relief package, acknowledges the need for broadband funding and access.[14] The Consolidated Appropriations Act of 2021[15] (“Act”) establishes an Emergency Broadband Connectivity Fund (“Fund”) of 3.2 billion dollars.[16] The Act directs the FCC to use the Fund “to establish an Emergency Broadband Benefit Program, under which eligible households may receive a discount off the cost of broadband service and certain connected devices . . . relating to the COVID-19 pandemic.”[17]

Broadband providers’ participation in the Emergency Broadband Benefit Program (“Benefit Program”) is entirely voluntary.[18] However, if the provider chooses to participate, it must be designated as an eligible telecommunications carrier or be approved by the FCC.[19] Once approved to participate in the Benefit Program, the broadband provider will give monthly discounts “off the standard rate for an Internet service offering and associated equipment” to eligible households of up to $50 per month.[20] The broadband providers are then entitled to reimbursement from the Benefit Program for the discounts they have provided.[21] Moreover, the Benefit Program not only enables discounted internet services, but also encourages broadband providers to supply eligible households with a connected device, such as a laptop, desktop computer, or tablet.[22] The Benefit Program, however, is not without its limitations. For example, an eligible household that seeks a connected device is only eligible to receive one supported device.[23]

The Act directs the FCC to provide a public comment period and public reply comment period, each of twenty days, before the rules of the Benefit Program are established.[24] The FCC seeks comment on a variety of provisions.[25] Examples include seeking comment on “the eligibility and election process for participating providers” and what the definition of household is in reference to the Act’s requirement that the discounts and connected devices be provided to “eligible households.”[26] The public comment twenty-day window closed on Jan. 25, 2021, but the public reply comments window closes on Feb.16, 2021, so the scope of the rules of the Benefit Program are yet to be determined.[27]

The true aim behind the Benefit Program is to provide broadband internet access to low income households at affordable rates—especially those households with school-aged children.[28] Whether or not the Benefit Program will be effective in fulfilling this goal remains to be seen. However, it is clear that the Benefit Program is “an important Band-Aid that [will help] Americans [stay] connected,” even if solving the nation’s digital divide requires stitches.[29] Ultimately, the hope is that with increased access to internet services and connected devices, Taco Bell parking lots will remain parking lots and not double as schools.

[1] Strengths and Weaknesses of Online Learning, Univ. Ill. Springfield, https://www.uis.edu/ion/resources/tutorials/online-education-overview/strengths-and-weaknesses/ (last visited Feb. 9, 2021).

[2] Lizzy Francis, Viral Photo Shows Kids with No Internet Using Taco Bell Wifi To Do Homework, Yahoo! News (Sept. 2, 2020), https://news.yahoo.com/viral-photo-shows-kids-no-171809219.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAG4dqe2tNs1lEJ4bvk99l0BosLqbgsIR5cnnqVYqWpXkh0dQy4YyB0GXkfPVoaWaSQUcKWHskKFOLhweLRqI1lj6_8sOHiIRvdtwAZjvKDYtmVdPKXr7YohJudkZUlOXPra-UbYSQeSCq9cfo1xuiry5ZcyLyV2OY1h2OVqUvwoX.

[3] Id.

[4] See Emmanuel Martinez, How Many Americans Lack High-Speed Internet?, The Markup (Mar. 26, 2020), https://themarkup.org/ask-the-markup/2020/03/26/how-many-americans-lack-high-speed-internet#:~:text=There%20are%20more%20than%2014,census%20blocks%20and%20not%20households.

[5] Id.

[6] Id.

[7] Digital Divide, Stan. Univ. https://cs.stanford.edu/people/eroberts/cs181/projects/digital-divide/start.html (last visited Feb. 9, 2021).

[8] Id.

[9] See Martinez, supra note 4.

[10] Id.

[11] See id.

[12] Id.

[13]Closing Digital Divide in the Covid Era: Four Big Data Strategies, Digit. Divide Inst. https://digitaldivide.org/ (last visited Feb. 9, 2021).

[14] See Kelcee Griffis, COVID Bill Includes Broadcaster Loans, Broadband Funds, L.360 (Dec. 21, 2020) https://www.law360.com/articles/1339770/covid-bill-includes-broadcaster-loans-broadband-funds.

[15] Consolidated Appropriations Act, 2021, Pub. L. No. 116-260. (2020), available at https://www.congress.gov/bill/116th-congress/house-bill/133/text (Consolidated Appropriations Act) (enrolled bill).

[16] FCC Seeks Public Input on New $3.2 Billion Emergency Broadband Benefit Program, Fed. Commc’ns Comm’n (Jan. 4, 2021), https://docs.fcc.gov/public/attachments/DA-21-6A1.pdf.

[17] Id.

[18] Id. The discount on Tribal lands may be up to $75 per month, as opposed to $50 per month. Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Creating (Finally) an Emergency Broadband Benefit, Benton Inst. for Broadband & Soc’y (Jan. 5, 2021) https://www.benton.org/blog/creating-finally-emergency-broadband-benefit#:~:text=In%20the%20Consolidated%20Appropriations%20Act,the%20Emergency%20Broadband%20Benefit%20Program.&text=Broadband%20providers%20will%20be%20reimbursed,household%20is%20on%20Tribal%20land.

[29] Griffis, supra note 14.

Post image: Two girls in East Salinas, California, rely on wifi from a Taco Bell restaurant to complete homework in a viral photo from August 2020. Via Luis Alejo on Twitter.

Tags: Administrative Law Congress COVID-19 Education law Internet

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15Oct

TikTok, Inc. v. Trump: Can TikTok’s U.S. Operations Last?

Categories: Current Issues Blog

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Composite image created using an original photograph by Gage Skidmore of President Donald Trump, via flickr.com.

By Christopher R. Taylor

On August 6th, President Trump issued Executive Order 13,942 (“TikTok Prohibition Order”) prohibiting transactions with ByteDance Ltd. (“ByteDance”), TikTok’s parent company, because of the company’s data collection practices regarding U.S. users and its close relationship with the Peoples Republic of China (“PRC”).[1] Eight days later President Trump issued a subsequent order (“Disinvestment Order”) calling for ByteDance to disinvest from Musical.ly, an application that was acquired by ByteDance and later merged with TikTok’s application.[2] TikTok is now engulfed in a legal battle against the Trump administration fighting both of these orders and was recently partially granted a preliminary injunction from the TikTok Prohibition Order.[3] However, the question remains—how successful will TikTok be in stopping the orders and what effect does this have on future cross-border transactions?

The foundation for President Trump’s TikTok orders was laid over a year earlier with Executive Order 13,873.[4] This order declared a national emergency under the International Emergency Economic Power Act (“IEEPA”) because of the “unusual and extraordinary threat” of “foreign adversaries . . . exploiting vulnerabilities in information and communication technology services.”[5] This national emergency was renewed for another year on May 13th, 2020.[6] Shortly after this renewal, the Trump administration issued both TikTok orders.

The TikTok Prohibition Order delegated to the Secretary of the Department of Commerce the task of defining specific prohibited transactions with ByteDance within 45 days of the execution of the order.[7] Following the president’s directive, the Secretary issued five phased prohibitions on transactions with TikTok, all with the stated purpose of limiting TikTok’s spread of U.S. users’ sensitive personal information to the PRC.[8] The Department of Commence implemented these prohibitions based primarily on two threats: (1) TikTok would share U.S. users’ personal data with the PRC to further efforts of espionage on the U.S. government, U.S. corporations, and U.S. persons and (2) TikTok would use censorship on the application to shape U.S. users’ perspective of the PRC.[9]

While the Trump administration was at work attempting to remove or substantially change TikTok’s U.S. presence, TikTok did not stand by idly. Instead, TikTok and ByteDance initiated an action challenging the Trump administration’s authority under the Administrative Procedure Act (“APA”) and the U.S. Constitution.[10] After filing the action in the U.S. District Court for the District of Columbia, TikTok moved for a preliminary injunction.[11] On September 29th, the court partially granted the preliminary injunction.[12]

Among the various arguments presented for the preliminary injunction, TikTok’s strongest argument was that the Trump administration’s actions violated APA § 706(2)(C) by exceeding its statutory authority under the IEEPA.[13] The IEEPA prohibits the President from “directly or indirectly” regulating “personal communication, which does not involve a transfer of anything of value” or the importation or exportation of “information or information materials.”[14] The IEEPA does not define “information materials,” however, it does provide examples, which include photographs, films, artworks, and news wire feeds.[15]

TikTok argued both of these exceptions applied, making the Trump administration’s prohibitions unlawful.[16] First, TikTok argued that the information exchanged by its global users includes art, films, photographs, and news.[17] Therefore, the information exchanged on TikTok fits within the definition of information materials.[18] Second, TikTok argued most of the communications exchanged on the application are among friends, and thus do not involve anything of value.[19]

The government countered by arguing that neither exception applied, contending for a narrower interpretation of the IEEPA exceptions.[20] First, the government argued the information materials exception did not apply because the TikTok prohibitions only regulate “business-to-business economic transactions,” and does not regulate the exchange of “information materials” by TikTok users themselves.[21] In the alternative, the government asserted Congress did not intend to create such a broad exception that would allow foreign adversaries to control data services.[22] Second, the government argued that some communications on TikTok are of value to users and, even if all communications are not of value to all users, they are of value to TikTok itself.[23] The government asserted that the use of the application alone provides value to TikTok making the exchanged communications fall outside of the IEEPA exception.[24]

In partially granting TikTok’s preliminary injunction, the court found both exceptions applied to TikTok.[25] First, the court held the content on TikTok’s application constitutes “information materials.”[26] Although the government only regulates economic transactions, the prohibitions still indirectly regulate the exchange of “information materials.”[27] Thus, the Trump administration’s actions directly fit within the IEEPA exception barring indirect regulation of information materials.[28]

Turning to the second exception on value, the court recognized some information on TikTok was of value.[29] However, it found the majority of the information provided no value to users.[30] Furthermore, the government’s argument regarding the value of communications to TikTok was at odds with Congressional intent.[31] The court found if Congress meant to look at the value provided to the company, as opposed to the value provided to users, the exception would be read out of existence.[32]

After finding that both exceptions applied, the court found irreparable harm to TikTok and equity supported partially granting the preliminary injunction.[33] However, the court refused to grant an injunction blocking the whole TikTok Prohibition Order because only one of the prohibitions was an imminent threat to TikTok.[34] The injunction only blocked the prohibition on TikTok downloads and updates from online application stores and marketplaces, leaving the remaining four prohibitions unaffected.[35]

While it appears TikTok has won the first round of this legal dispute, this fight is likely far from over. In response to the grant of the partial preliminary injunction, the Department of Commerce explained it is prepared to “vigorously defend the . . . [Executive order] and the Secretary’s implementation efforts from legal challenges.”[36] Based on this strong reaction, the dispute seems fertile for further quarrels regarding the merits of both executive orders.

The current TikTok dispute and the Trump administration’s willingness to use the IEEPA will likely also have broader implications for cross-border transactions, especially those involving the Peoples Republic of China or personal data. Since its enactment in 1979, presidential use of the IEEPA has become more frequent and broader in scope.[37] Thus, it is likely presidential use of the IEEPA will continue to grow no matter the President. Furthermore, the Trump administration’s strong stance toward the PRC has exacerbated tensions and led to an uptick in investigations into cross-border deals with Chinese companies.[38] Therefore, in-depth looks at deals with Chinese companies will likely continue to be the norm, at least for the remainder of the Trump presidency. In an effort to avoid disputes similar to TikToks, business dealmakers should obtain clearance from the Committee on Foreign Investment in the United States before the completion of any cross-border transaction, especially those involving the PRC or personal data.[39]

[1] Exec. Order No. 13,942, 85 Fed. Reg. 48,637 (Aug. 6, 2020).

[2] Order on the Acquisition of Musical.ly by ByteDance Ltd, 2020 Daily Comp. Pres. Doc. 608 (Aug. 14, 2020).

[3] TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250, at *11, *26 (D.D.C. Sept. 27, 2020).

[4] Exec. Order No. 13,873, 84 Fed. Reg. 22,689 (May 15, 2019).

[5] Id.

[6] Notice on Continuation of the National Emergency with Respect to Securing the Information and Communications Technology and Services Supply Chain, 2020 Daily Comp. Pres. Doc. 361 (May 13, 2020).

[7] Exec. Order 13,942, at 48,638.

[8] See Identification of Prohibited Transactions to Implement Executive Order 13942 and Address the Threat Posed by TikTok and the National Emergency with Respect to the Information and Communications Technology and Services Supply Chain, 85 Fed. Reg. 60,061 (Sept. 24, 2020) (prohibiting new downloads and updates from the app-store; servers supporting TikTok in the U.S.; content delivery services used by TikTok; internet transit or peering agreements; and the use of TikTok code, services or functions). The Secretary set up a phrased implementation of this order, making the app store ban effective September 20th, 2020, and the remaining four prohibitions effective November 12th, 2020. Id.

[9] Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for a Preliminary Injunction at Ex. 1, TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250 (D.D.C. Sept. 27, 2020).

[10] Complaint at 30–42, TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250 (D.D.C. Sept. 27, 2020). The specific counts in the complaint include allegations of (1) violations of APA § 706(2)(A) and § 706(2)(E), (2) violations of the First Amendment’s Right to Free Speech, (3) violations of the Due Process Clause of Fifth Amendment, (4) ultra vires action under IEEPA because there is no national emergency, (5) ultra vires action because actions restrict personal communications and information violating IEEPA, (6) violation of Non-Delegation Doctrine of IEEPA, and (7) violation of Fifth Amendment Taking Clause. Id.

[11] TikTok, Inc. v. Trump, No. 1:20-cv-02658, 2020 U.S. Dist. LEXIS 177250, at *11–12 (D.D.C. Sept. 27, 2020).

[12] Id. at *26.

[13] See id. at *21.

[14] 50 U.S.C. § 1702(b)(1), (3).

[15] Id. § 1702(b)(3).

[16] TikTok, 2020 U.S. Dist. LEXIS 177250, at *14.

[17] Id. at *15–16.

[18] Id. at *15.

[19] See id. at *20.

[20] See id. at *16, *17–18, *20.

[21] Id. at *16.

[22] Id. at *17–18.

[23] Id. at *20. The government’s argument was that value is provided to TikTok simply by users’ presence on the application. Id.

[24] Id.

[25] See id. at *20–21 (“Plaintiffs have demonstrated that they are likely to succeed on their claim that the prohibitions constitute indirect regulation of ‘personal communication[s]’ or the exchange of ‘information or information materials.'”).

[26] Id. at *16

[27] Id. at *16–17.

[28] See id. at *17.

[29] See id. at *20.

[30] Id.

[31] Id.

[32] Id.

[33] Id. at *21–25.

[34] Id. at *26.

[35] Id. at *25–26.

[36] Commerce Department Statement on U.S. District Court Ruling on TikTok Preliminary Injunction, U.S. Dept. of Commerce (Sept. 27, 2020), https://www.commerce.gov/news/press-releases/2020/09/commerce-department-statement-us-district-court-ruling-tiktok.

[37] Christopher A. Casey et al., Cong. Rsch. Serv., R45618, The International Emergency Economic Powers Act: Origins, Evolution, and Use 17 (2020).

[38] See Julia Horowitz, Under Trump, the US Government Gives Many Foreign Deals a Closer Look, CNN (Mar. 16, 2018, 12:11 AM), https://money.cnn.com/2018/03/16/news/economy/trump-cfius-china-technology/index.html; Jeanne Whalen, TikTok was Just the Beginning: Trump Administration is Stepping Up Scrutiny of Past Chinese Tech Investments, Wash. Post. (Sept. 29, 2020, 3:12 PM), https://www.washingtonpost.com/technology/2020/09/29/cfius-review-past-chinese-investment/.

[39] See Adam O. Emmerich et al., Cross-Border M&A–2019 Checklist for Successful Acquisitions in the United States, Harv. L. Sch. F. on Corp. Governance (Jan. 30, 2019), https://corpgov.law.harvard.edu/2019/01/30/cross-border-ma-2019-checklist-for-successful-acquisitions-in-the-united-states/.

Tags: Administrative Law Donald Trump social media Social Networking TikTok

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25Feb

Lessons from Juliana on Climate Change Litigation

Categories: Current Issues Blog

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By Andie Anderson

In December of 2019, Time Magazine made a teenage girl the Person of the Year.[1] As a fifteen-year-old, Greta Thunberg began skipping school and standing outside of the Swedish Parliament with homemade signs calling for urgent action on climate change.[2] Within just eighteen months, Greta’s activism would gain international attention and she would go on to eventually address the world in the 2019 United Nations Climate Action Summit.[3]

Punctuated by moments of highly emotional charges, Greta’s speech ignited a global surge in support of greenhouse gas regulation. Greta would go on to meet with the Pope, spar with the President of the United States, and inspire a global strike against climate change.[4] Young people around the world followed her example and began taking action within their own communities. In 2019, a group of twenty-one American high school students filed suit against the federal government, asking for immediate action on climate change and greenhouse gas regulation.[5]

The students’ suit presents an important question under American law. In the face of an executive branch who refuses to acknowledge the reality of climate change, what role can the courts play to advance regulation of greenhouse gases and mitigate temperature increase?

The Supreme Court has previously allowed suits against the federal government over greenhouse gases and climate change. In Massachusetts v. EPA, a group of states, local governments, and environmental actors brought suit against the Environmental Protection Agency (EPA), alleging it acted arbitrarily in denying a petition for rulemaking.[6] In October of 1999, fifteen organizations filed a rulemaking petition to the EPA, asking it to regulate greenhouse gases.[7] Fifteen months later, the EPA requested public comment on the petition for rulemaking.[8] Two years after the comment period, and despite the EPA issuing a report that human generated greenhouse gases caused global temperate increases, the EPA denied the rulemaking petition.[9] In its denial, the EPA explained that regulating carbon dioxide and other greenhouse gases was unwise considering the charged political nature of the decision.[10] The petitioners brought suit against the EPA, arguing it failed to give a statutorily required reasoned basis for its decision to decline rulemaking.[11]

The EPA challenged the standing of the individual plaintiffs to bring suit.[12] The EPA argued that under the modern Constitutional standing rule, a plaintiff must show that they suffered “a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.”[13] Under the doctrine of Constitutional standing, the harm must be individualized.[14] Individuals who are merely vindicating the public’s general interest in the proper administration of the law do not have standing to sue.[15]

The EPA argued that, because the harm of global warming and its failure to act “inflicted widespread harm” and not individual harm, the plaintiffs could not have standing.[16] The Supreme Court disagreed. The Supreme Court pointed out that the Administrative Procedures Act (APA) authorized lawsuits against agencies without the need to meet the “normal standards for redressability and immediacy.”[17] Instead, Congress authorized statutory standing to those that bring a “challenge the rejection of its rulemaking petition as arbitrary and capricious.”[18] The Supreme Court held that because the APA authorized a lawsuit for the EPA’s failure give a reasoned basis for its refusal to promulgate a rule on carbon dioxide, the plaintiffs had standing to sue.[19]

The result of the Massachusetts decision was a remand to the EPA for further proceedings.[20] If the agency wanted to decline the petition for rulemaking, it would need to provide a reasoned basis as required by the APA. However, by the time the Supreme Court issued its decision, Obama won the presidency and took office. Compared to the previous administration’s hostility towards climate change,[21] this new administration was willing to embrace scientific evidence of human activity in temperature increase and regulate relevant gases.[22] On remand, the Obama-era EPA began procedures to promulgate a rule regulating carbon dioxide emissions.[23]

When President Trump took office in 2017, the United States again re-entrenched itself in climate change denial.[24] The Sabin Center for Climate Change Law tracks Trump administration actions on climate change in a Climate Deregulation Tracker.[25] To date, the current administration has taken over 130 actions de-regulating greenhouse gases.[26]

In this climate era, twenty-one students filed a lawsuit against the President, his cabinet, and the EPA, asking for action on climate change.[27] The high schoolers charged the federal government with intentionally encouraging the consumption of fossil fuels and the production of greenhouse gases, despite knowing of the risks of global warming.[28] The appellate court described the scientific record submitted by plaintiffs as “extensive” and leaving “little basis for denying that climate change is occurring at an increasingly rapid pace” as a result of human activity.[29] The teenagers claimed that the federal government’s contribution to climate change violated their due process rights, the right to equal protection under the law, rights under the Ninth Amendment, and the public trust doctrine.[30] The high schoolers sought for declaratory and injunctive relief, asking the court to order to government to implement a plan phasing out all fossil fuel emissions and drawing down excess atmospheric greenhouse gases.[31]

The Ninth Circuit reluctantly concluded that injunctive relief was beyond its constitutional power to grant because the plaintiffs lacked standing to sue.[32] Unlike the plaintiffs in Massachusetts, the students in Juliana did not bring a challenge under the APA. Thus, in order to obtain injunctive relief, the students needed to meet the more rigorous standards of injury and redressability under Constitutional standing.[33] The court found that plaintiffs met the injury requirement of standing by pleading personal and particularized injuries.[34] One plaintiff had to leave her home in the Navajo reservation because of water scarcity, another had to leave her home because of persistent coastal flooding.[35] However, plaintiffs’ claim failed as to court redressability.[36] For the sake of standing analysis, the court assumed that there was a substantive right to “a climate system capable of sustaining life.”[37] Because enjoining the government would prevent it “from exercising [its] discretionary authority granted by congress,” court intervention would pose a substantial interreference with the co-equal political branches of the government.[38] In the end, affirmative action to address climate change presented a political question, and was not within the authority of the judicial branch to resolve.[39]

Massachusetts and Juliana teach a valuable lesson on the role of courts in in the climate change fight. Massachusetts is proof that courts may be a vehicle to propel federal action. However, even if a healthy climate is a substantive right, the method for achieving it is a political question. Thus, as Juliana teaches, any successful lawsuit must not rest on the violation of a substantive right, but procedural one. In the future, activists should watch federal agencies closely, stay involved in the development and repeal of regulation, and bring suit under the provisions of the APA.

[1] Charlotte Alter, Suyin Haynes, & Justin Worland, Time 2019 Person of the Year: Greta Thunberg, Time, https://time.com/person-of-the-year-2019-greta-thunberg/.

[2] Id.

[3] Id.

[4] Id.

[5] Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).

[6] Id. 549 U.S. 497 (2007).

[7] Id. at 510.

[8] Id. at 511.

[9] Id. (citing 68 Fed. Reg. 52922 (Sept. 8, 2003)).

[10] 68 Fed. Reg. at 52929–31. Note, the EPA also argued that, despite its previous stance on the interpretation of the Clean Air Act, the act did not actually included carbon dioxide and other greenhouse gases. Massachusetts, 549 U.S. at 511. The court ultimately found against EPA on this matter, and held that the statute did authorize to EPA to regulate greenhouse gases. Id. at 528.

[11] Id.at 514.

[12] Id. at 517.

[13] Id.

[14] Id. at 516.

[15] Id. at 516–17.

[16] Id. at 517.

[17] Id. at 517–18 (citing U.S.C. § 7607(b)).

[18] Id. at 520 (citing U.S.C. § 7607(b)(1)).

[19] Id. at 518.

[20] Id. at 535.

[21] Andrew Grice, Bush to G8: ‘Goodbye from the Worlds Biggest Polluter’, Independent (July 10, 2008), https://www.independent.co.uk/news/world/politics/bush-to-g8-goodbye-from-the-worlds-biggest-polluter-863911.html.

[22] The Record, Climate, The White House, President Barack Obama (last visited Feb.18, 2020), https://obamawhitehouse.archives.gov/the-record/climate.

[23] 74 Fed. Reg. 66496 (Dec. 15, 2009).

[24] See, e.g., Helier Cheung, What Does Trump Actually Believe About Climate Change?, BBC News (Jan. 23, 2020), https://www.bbc.com/news/world-us-canada-51213003.

[25] Climate Deregulation Tracker, Columbia Law School (last updated Jan. 16, 2020), https://climate.law.columbia.edu/climate-deregulation-tracker.

[26] Id.

[27] Juliana, 947 F.3d at 1165.

[28] Id. at 1166–67.

[29] Id. at 1166.

[30] Id. at 1165.

[31] Id.

[32] Id.

[33] Id. at 1168.

[34] Id.

[35] Id.

[36] Id. at 1169.

[37] Id.

[38] Id. at 1170–72.

[39] Id. at 1173.

Tags: Administrative Law APA Climate Change Environmental Law EPA

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14Feb

Now Checking Emotional Support Animals: DOT Regulation Redefines Service Animals

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By Corinne Spencer

After recent news stories covering the emotional support peacock stopped by airport security and the attack by an emotional support dog that left a Delta passenger with 28 stitches, the Department of Transportation (DOT) is giving airlines the regulatory means to crack down on any and all pets boarding planes unchecked under the label “emotional support” animals (ESAs).

The Americans with Disabilities Act (ADA) protects owners and their animals from discrimination in public places by requiring most restaurants, hotels, and public services to accommodate the presence of service animals.[1] For purposes of the ADA, service animals are narrowly defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[2] It does not cover ESAs which can be “certified” by various entities without any formalized training required in order to gain designation entitled to some other protections.[3]

The Air Craft Access Act (ACAA) extends similar rules to air transportation allowing passengers with service animals to fly with their animal in the cabin.[4] However, the ACAA currently provides a broader definition of service animal than the ADA by including more species of animals and includes ESAs.[5] This overbroad coverage without distinction between types of aid created a loophole many people take advantage of to designate their pets as ESAs and bring them onto planes under ACAA protection, even if they were not the anticipated beneficiary.

The ACAA guidelines for service animals and ESAs on planes diverge from the general rules for pets on planes which place limitations on size, species, and breed of pet allowed in the cabins.[6] General airline pet policies require most pets to be held in a cargo space on planes, which is pressurized for their safety and often considered more comfortable for pets because they are not cramped in small spaces with human travelers.[7] These policies are intended to promote safety, ease of mobility, and accessibility for others in the plane cabin. However, many pet owners view it as an inconvenience to travel separately. Under the ACAA, service animals are exempt from the policies affecting pet travel and are instead allowed to travel with their owners in the airplane cabin.[8] The protections provided to service animals under the ACAA were created under the expectation that service animals are highly and specially trained and thus would not raise some of the same concerns as normal pets, such as attacking passengers or defecating in the aisle. However, since ESAs receive the same ACAA protection to travel in plane cabins without the same level of training and behavioral obedience required of and demonstrated by service animals, this category of pets has caused major disturbance in terminals and in the air.[9]

Many pet owners began registering their average pets through the National Service Animal Registry or similar registries as ESAs and received certification without meeting any requirements or qualifications.[10] This registry’s site explains that any animal can be an emotional support animal, and they “do not need any specific training because their very presence mitigates the symptoms associated with a person’s psychological/emotional disability.”[11] This certification gets pets access to most flights in cabin under a pseudo-service animal identity. However, when these untrained pets defecate in public spaces, attack bystanders, or cause a scene in the way trained service animals would never do, their legitimacy is questioned.[12] Unfortunately, this has impacted the reputation of service animals as well, making some businesses unwilling to accommodate both types of animals, and sometimes explicitly discriminating against legitimate disabled individuals with service animals.[13]

Through the FAA Reauthorization Act of 2018, Congress specifically asked the DOT to implement new definitions and minimum standards for “service animals” in an effort to clear up the currently broad ACAA. [14] The DOT has responded with a notice of proposed rulemaking (NPRM) to amend the ACAA guidelines to clarify what qualifies as a service animal and allowing airlines to more readily distinguish between true service animals, ESAs, and regular pets. This would ensure those intended to be protected by the ACAA are protected and also close the loophole that caused this problem to begin with. The DOT proposed regulation, titled, “Traveling by Air with Service Animals” redefines the category of protected animals and offers airlines the ability to set restrictions and ask more questions regarding ESAs.[15] The regulation hopes to respond to requests for clarity in policy, consistency between the ADA and ACAA as well as consistency across the airline industry.

First, the DOT seeks to redefine service animal similar to the ADA as “a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”[16] Additionally, it specifies Service Animal Handlers as qualified individuals with a disability or their safety assistant, to further limit the use of service animals to passengers with disabilities. [17] In turn, airlines could distinguish between service animals and ESAs, placing ESAs in the same category as pets.[18]

Second, the regulation sets a guideline for approved species. The DOT proposes that service animals be limited to dogs. While it considered miniature horses and capuchin monkeys as secondary options, both were rejected qualifying “service animal” status based on airplanes’ practical space limitations and close quarters, and comments highlighting the rarity at which these animals serve as service animals for traveling individuals.[19] It’s worth noting that this only means that airlines need not permit them unconditionally. Any airline may still accept these animals on board if they choose through make broader policies than the ACAA minimum requirements.[20] Additionally, the DOT decided against breed restrictions in favor of an exception for airlines to always refuse service if any animals pose a health or safety threat.[21] The DOT is still collecting comments on the need for any more limiting restrictions.

The NPRM proposes other general limitations to allow airlines to prioritize the safety of its passengers and staff. These include a tethering requirement so long as it does not interfere with the animal’s service, limitations protecting only one or two service animals per passenger with a disability, and a short list of reasons for which a passenger with a disability and her service animal can be refused service.[22]

The most burdensome impact of the new regulation is a requirement of government-issued forms to fly with a service animal and provide proof of the animal’s training and qualifications. [23] While this burden will fall on passengers traveling with service animals, it will likely be outweighed by the freedom and safety those passengers and their service animals will enjoy due to the NPRM’s far reaching restrictions on other animals. By reducing the number of unqualified animals flying freely, service animals will face fewer distractions and dangers, while also being able to reclaim their positive reputation that has been stained by ESAs trying to bend the rules.

[1] 42 U.S.C. § 12182(a) (2018).

[2] 28 CFR § 35.104 (2016).

[3] U.S. Dep’t of Justice, Frequently Asked Questions about Service Animals and the ADA 2 (2015), https://www.ada.gov/regs2010/service_animal_qa.pdf.

[4] 49 U.S.C. § 41705 (2018); 14 CFR § 382.117 (2009).

[5] See 14 CFR § 382.117(f) (requiring miniature horses, pigs and monkeys to be accepted unless specific factors find the airline unable to do so, however, listing snakes, spiders, ferrets, and reptiles as species that never need to be recognized as service animals).

[6] See Pets, American Airlines, https://www.aa.com/i18n/travel-info/special-assistance/pets.jsp (last visited Feb. 1, 2020); Pet Travel on Delta, Delta, https://www.delta.com/apac/en/pet-travel/overview (last visited Feb. 1, 2020).

[7] See Pet Travel Decisions: Questions About Flying Pets in Cargo, Pet Relocation (Dec. 2011), https://www.petrelocation.com/blog/post/pet-travel-decisions-questions-about-flying-pets-in-cargo; Airline Pet Travel in the Cargo Hold, PetTravel.com, https://www.pettravel.com/news_pet_travel_airline_cargo.cfm (last visited Fed. 3, 2020).

[8] For example, airlines with size or weight restrictions on in-cabin pets cannot impose those limits on service animals. See, e.g., Delta, supra note 6 (“If your pet doesn’t fit in a carrier in the seat in front of you, you can ship your pet with our special shipping service Delta Cargo. Remember, special exceptions apply for passengers traveling with service animals”).

[9] See Paulina Firozi, An ‘Emotional-Support Dog’ Attacked Him on a Flight. He’s Suing Delta and the Owner, Wash. Post (May 29, 2019, 4:09 PM), https://www.washingtonpost.com/transportation/2019/05/29/an-emotional-support-dog-attacked-him-flight-hes-suing-delta-owner/; Hugo Martín, Emotional Support Animals Snap, Bark, and Cause Disruption, Most Flight Attendants Say, LA Times (Sept. 15, 2018, 10:00 AM), https://www.latimes.com/business/la-fi-travel-briefcase1-emotional-support-animals-20180915-story.html.

[10] Dawn Gilbertson, American Airlines Flight Attendant Bitten by Emotional Support Dig, Requires Five Stitches, USA Today (July 23, 2019, 6:05 PM) (“Critics have complained passengers are able to get instant certification for an emotional support animal, also called a comfort animal, online, and that many aren’t properly trained.”)

[11] Nat’l Serv. Animal Registry, https://www.nsarco.com/esa-registration-and-your-legal-rights.html (last visited Jan. 24, 2020).

[12] See Firozi, supra note 9; Marina Pitofsky, Flight Delayed After Woman Brings ‘Emotional Support Squirrel’ on Plane, USA Today (Oct. 10, 2018, 7:11 AM). In 2018, a USA Today reporter noted the urge for DOT to regulate emotional support animals recognizing that https://www.usatoday.com/story/news/nation/2018/10/10/orlando-florida-flight-delayed-after-woman-brings-squirrel-plane/1587164002/.

[13] See, e.g., Katrina Tilbury, Fake Service Dogs, Real Problems, AP News (May 16, 2018), https://apnews.com/1a28f8e528424fdca2040ea8139e3014/Fake-service-dogs,-real-problems.

[14] See Traveling by Air with Service Animals, 84 Fed. Reg. 6448, 6451 (proposed Feb. 5, 2020) (to be codified at 14 C.F.R. Part 382); The FAA Reauthorization Act of 2018, Pub. L. No. 115-254, Sec. 437 (October 5, 2018).

[15] Traveling by Air with Service Animals, 85 Fed. Reg. at 6448.

[16] Id. at 6474.

[17] Id.

[18] Id. at 6458.

[19] Id. at 6453–54.

[20] Id. at 6458. (“[w]hile the Department proposes to allow airlines to treat emotional support animals as pets rather than service animals, airlines could choose to continue to recognize emotional support animals and transport them for free pursuant to an airline’s established policy.”)

[21] Id. at 6464–65.

[22] See id. at 6476.

[23] Id. at 6475.

Tags: Administrative Law Air Travel Americans with Disabilities Act Animals Emotional Support Animals Service Animals Transportation

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9Feb

The Vaping Epidemic: Massachusetts’ Vaping Ban and Its Effect on North Carolina Regulations

Categories: Current Issues Blog

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By Matt Deorocki

On September 24, 2019, Massachusetts Governor Charlie Baker brought the state into the national spotlight by declaring a state of emergency due to the public health risk emanating from the use of e-cigarettes and vaping products.[1] Nevertheless, instead of passing a regulation pursuant to M.G.L. c. 30A, § 2, which calls for proper notice, a hearing, an opportunity to comment, and a small business impact statement, Governor Baker proceeded pursuant to M.G.L. c. 17, § 2A which states:

upon declaration by the governor that an emergency exists which is detrimental to the public health, the commissioner may, with the approval of the governor and the public health council, during such period of emergency, take such action and incur such liabilities as he may deem necessary to assure the maintenance of the public health and the prevention of disease.[2]

In declaring the state of emergency, authorizing the Commissioner of Public Health to act, Governor Baker pointed to numerous health statistics representing concerns within both the Commonwealth and the nation as a whole, including the fact that “as of September 19, 2019, the CDC had confirmed 530 [vape related] cases across 38 states and U.S. territories, including seven fatalities in six different states.”[3] Additional concerns included that “from 2017 to 2018 vaping use among youths has increased 78% among high school students and 48% among middle school students” and that “Massachusetts youth usage mirrors national trends with 41% of all youth in 2017 reporting trying e-cigarettes and one in five reporting that the use e-cigarettes regularly.”[4]

Baker’s mounting concerns largely involved the combination of chemicals associated with vaping “e-liquid” including propylene glycol, and vegetable glycerin, as well as toxins and metals including “formaldehyde, glycerin, acrylonitrile propylene oxide, crotonaldehyde and acetaldehyde,” nickel, lead, and chromium.[5] Due to the diverse amount of symptoms associated with vaping-related illness such as lung injuries, coughing, abnormal chest x-rays, dropping levels of blood oxygen, lung disease, and seizures, Governor Baker took unprecedented action to reduce the public health risk.[6]

As a result of the September 24, 2019 Declaration of Emergency, the Massachusetts Commissioner of Public Health, Monica Bharel, issued the following order with the approval of both the Governor and the Public Health Council pursuant to M.G.L. c. 17, §2A: “The sale or display of all vaping products to consumers in retail establishments, online, and through any other means, including all non-flavored and flavored vaping products, including mint and menthol, including tetrahydrocannabinol (THC) any other cannabinoid, is prohibited in the Commonwealth.”[7]

According to M.G.L. c. 111 §31, violations could be punished on a per item or per transaction basis and the edict was to be enforced by both the Cannabis Control Commission and the Division of Agricultural Resources.[8] While the ban was ultimately lifted before the tolling of the four-month period of emergency ended, the impact of the executive order had a drastic impact in both Massachusetts and other states which saw increased pressure to institute their own vaping bans and regulations.[9]

Virtually overnight, Massachusetts’ ban became a national topic spurring nationwide conversation on whether Governor Baker and the Commissioner Bharel overstepped their bounds. Vape vendors nationwide articulated that the “epidemic is misguided” and that the “CDC needs to focus their efforts on black market THC cartridges, not regulated vape shops.”[10] Nevertheless, Governor Baker remained firm, articulating “the purpose of this public health emergency is to temporarily pause all sales of vaping products so that we can work with our medical experts to identify what is making people sick and how to better regulate these products to protect the health of our residents.”[11] As a result, the ban continued to receive stiff resistance, as displayed by Peggy Mack, a manager at Big Cloud Vape Shop in Springfield, Massachusetts, who expressed her frustration by stating, “[W]e have employees, we have rent to pay . . . It’s like nothing I’ve heard before.”[12]

Eventually, a legal challenge was brought by Vapor Technology Association, Ian Devine, and Devine Enterprise, Inc. (collectively, plaintiffs) which alleged that the emergency order “reflects executive over-reach, . . . violates state constitutional separation-of powers principles, and is arbitrary and capricious.”[13] In fact, plaintiffs were largely successful in articulating that the defendants violated Article 30 of the Declaration of Rights of the Massachusetts Constitution, which reads:

In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers or either of them: to the end it may be a government of laws and not of men.[14]

Judge Wilkins, the Suffolk County Superior Court judge presiding over the matter, stated in his decision that precedent indicates that: “We construe G.L. c. 17 § 2A, to have conferred on the Commissioner, in a declared emergency, powers, which neither he nor the department previously possessed. We do not construe it to have transferred the power to adopt emergency regulations from the department to the Commissioner.”[15]

Thus, the Commissioner lacked the power that she asserted, as such power resides in the Department of Public Health acting in accordance with G.L. c. 30A, § 2.[16] Accordingly, in order to comply with G.L. c. 30A, § 2a and avoid a constitutional violation, a public hearing was required.[17] In addition to a public hearing, G.L. c. 30A, § 2 mandates that notice be given to interested parties and that a small business impact statement containing the following be created: (1) an estimate of the number of small business subject to the proposed regulation; (2) projected reporting, recordkeeping and other administrative costs required for compliance with the proposed regulation; (3) the appropriateness of performance standards versus design standards; (4) an identification of regulations of the promulgating agency or of other agency or department of the commonwealth, which may duplicate or conflict with the proposed regulation; and (5) an analysis of whether the proposed regulation is likely to deter or encourage the formation of new businesses in the commonwealth.[18]

Justice Wilkins articulated that because the Commissioner’s order was devoid of these requirements, it would likely be deemed unconstitutional as well as arbitrary and capricious.[19] As a result, the Commissioner was preliminarily enjoined from implementing and enforcing the Order from and after October 28, 2019 until G.L. c. 30A, § 2 was compiled with.[20] In creating this preliminary injunction, Justice Wilkins likely focused on the 2,530 individuals employed in the vaping industry and the 221 retail vape shops within the state.[21]

While Governor Baker’s new emergency rule was ultimately upheld by Judge Wilkins,[22] and the suit was dropped by Vapor Technology Association on November 7, 2019, Massachusetts’ ban on vaping likely served as a warning for states like North Carolina, which has strong public support for a ban, but significant business concerns among vape shop owners.[23] While Massachusetts has taken numerous steps to create formal vaping regulations to protect consumers since the Governor declared a state of emergency, including a November 30, 2019 vaping control statute and the temporary prohibition of vaporizer products by “licensed Marijuana Establishments and Medical Marijuana Treatment Centers,” controversy remains.[24]

The lessons learned in Massachusetts, the state with the strictest response to the vaping epidemic, present lessons for North Carolina, a state embedded with a rich tobacco history and a strong vaping industry.[25] Although a poll conducted by the Center for Survey Research at East Carolina University indicated that fifty percent of registered voters in North Carolina supported a statewide ban on e-cigarette and vape products, the state never follow Massachusetts’ lead to ban vaping outright, perhaps reflective of the difficulties Massachusetts saw legally and the pinpointing of vitamin E as a main contributor to lung and seizure related symptoms.[26] Instead, of instituting a ban, North Carolina decided to pursue e-cigarette companies themselves, ultimately suing eight companies accused of selling to minors.[27]

Due to the criticism that Massachusetts saw both in an out of court, and the ultimate abandoning of the ban in December 2019,[28] it is unlikely that North Carolina will institute an outright ban on vaping products anytime in the near future. By waiting for Governor Baker’s state of emergency to play out, North Carolina was able was able to apprise itself of the pitfalls of a ban, without emerging onto the national spotlight. In addition, by waiting, North Carolina benefited from increased knowledge of the causes of the vape-related illnesses, minimizing the need for a ban. Finally, with federal law raising the age to purchase tobacco from 18 to 21 and the FDA planning to ban the sale of “fruity flavor[ed] vape cartridges, it is highly unlikely that an outright ban on vaping will be seen in North Carolina, although increased regulatory action could be expected.[29]

[1] Office of Governor Charlie Baker and Lt. Governor Karyn Polito, Massachusetts Governor’s Declaration of Emergency, (Sep. 24, 2019) available at https://www.mass.gov/files/documents/2019/09/24/Governors-Declaration-of-Emergency.pdf.

[2] M.G.L. c. 17, §2A.

[3] Massachusetts Governor’s Declaration of Emergency, (Sep. 24, 2019).

[4] Id.; for additional data see Youth Vaping and Cessation Data, Mass.Gov, available at https://www.mass.gov/files/documents/2019/11/27/youth-vaping-and-cessation-data-11-26-2019.pdf (last visited Dec. 30, 2019).

[5] Massachusetts Governor’s Declaration of Emergency, (Sep. 24, 2019).

[6] Id.

[7] Massachusetts Department of Public Health, Order of the Commissioner of Public Health Pursuant to the Governor’s September 24, 2019 Declaration of a Public Health Emergency (Sep. 24, 2019), https://www.mass.gov/files/documents/2019/09/24/Order-of-the-Commissioner-of-Public-Health-Vaping-Products-9-24-19.pdf.

[8] M.G.L. c. 111 §31; Order of the Commissioner of Public Health Pursuant to the Governor’s September 24, 2019 Declaration of a Public Health Emergency, (Sep. 24, 2019).

[9] Office of Governor Charlie Baker and Lt. Governor Karyn Polito, Massachusetts Governor’s Termination of Public Health Emergency Declared Pursuant to G.L. c. 17 § 2A (Dec. 11, 2019), https://www.mass.gov/files/documents/2019/12/11/2019-12-11-Signed-Declaration-Ending-Public-Health-Emergency.pdf; Elizabeth Anne Brown, Poll: 50 Percent of NC Voters Support Ban on E-Cigs, Vape Products, Citizen-Times (Oct. 25, 2019), https://www.citizen-times.com/story/news/local/2019/10/25/poll-nc-voters-support-vape-ban-2-1-margin/4086030002/.

[10] Taheshah Moise, Triad Vape Shops Say Vaping Epidemic is Misguided, WFMY News (Oct. 9, 2019), https://www.wfmynews2.com/article/news/local/triad-vape-shops-say-vaping-epidemic-is-misguided/83-64605344-c759-48bc-aede-8e4feb1f3130.

[11] Governor Baker Declares Public Health Emergency, Announces Temporary Four-Month Ban on Sale of All Vape Products, Mass.Gov (Sep. 24, 2019), https://www.mass.gov/news/governor-charlie-baker-declares-public-health-emergency-announces-temporary-four-month-ban-on.

[12] Nicholas Bogel-Burroughs, Matt Richtel & Katie Thomas, Massachusetts Orders 4-Month Ban on Sale of All Vaping Products, N.Y. Times (Sep. 24, 2019), https://www.nytimes.com/2019/09/24/us/massachusetts-vaping-ban.html.

[13] Memorandum of Decision and Order on Plaintiff’s Motion for Preliminary Injunction at 1, Vapor Technology Association et al. v. Baker et al., Civ. No. 2019-3102-D, https://masslawyersweekly.com/files/2019/10/Vapor-Technology-Association-et-al-v-Baker-et-al.pdf (last visited Dec. 30, 2019).

[14] Id. at 11

[15] Id. at 13 (citing American Grain Prod. Processing Institute v. Dept. of Pub. Health, 392 Mass. 309, 322 (1984)).

[16] Id. at 13.

[17] Id. at 13; see M.G.L. c. 30a § 2.

[18] M.G.L. c. 30a § 2.

[19] Memorandum of Decision and Order on Plaintiff’s Motion for Preliminary Injunction at 16–22.

[20] Id. at 31.

[21] Id. at 2.

[22] Adrianne Appel, Vaping Ban Gets Second Shot From Massachusetts Governor, Bloomberg Law (Oct. 28, 2019), https://news.bloomberglaw.com/health-law-and-business/vaping-ban-gets-second-shot-from-massachusetts-governor.

[23] Brown, supra note 9; Angus Chen, Mass. Just Lifted Its Ban on Vaping Product Sales. Here’s What You Need to Know, WBUR (Dec. 10, 2019), https://www.wbur.org/commonhealth/2019/11/07/vaping-industry-drops-fed-lawsuit-against-mass-ban; Moise, supra note 10; Shira Schoenberg, Gov. Charlie Baker Files Vaping Ban Regulations with Secretary of State, MassLive.Com (Oct. 28, 2019), https://www.masslive.com/news/2019/10/gov-charlie-baker-files-vaping-ban-regulations-with-secretary-of-state.html;

[24] Massachusetts Governor’s Termination of Public Health Emergency Declared Pursuant to G.L. c. 17 § 2A, (Dec. 11, 2019).

[25] See Nathan Morabito, Vaping Industry Fighting Back Over ‘Hysteria’, WCNC (Oct. 7, 2019), https://www.wcnc.com/article/news/investigations/vape-industry-pushes-back-against-nationwide-panic/275-44d8cf4f-dbb0-4716-ae41-90e90f574752.

[26] Erika Edwards, Vaping Illness ‘Breakthrough’ points to Vitamin E Oil as a Cause, CDC Says, NBC (Nov. 8, 2019), https://www.nbcnews.com/health/vaping/vaping-illness-breakthrough-points-vitamin-e-oil-cause-cdc-says-n1078781; Outbreak of Lung Injury Associated With the Use of E-Cigarette, or Vaping, Products, CDC.Gov, https://www.cdc.gov/tobacco/basic_information/e-cigarettes/severe-lung-disease.html (last visited Dec. 30, 2019).

[27] Merrit Kennedy, North Carolina Says it is Suing 8 E-Cigarette Companies, NPR (Aug. 27, 2019), https://www.npr.org/2019/08/27/754717176/north-carolina-says-it-is-suing-8-e-cigarette-companies.

[28] Massachusetts Governor’s Termination of Public Health Emergency Declared Pursuant to G.L. c. 17 § 2A, (Dec. 11, 2019).

[29] See Jennifer Maloney & Thomas Burton, FDA to Ban All E-Cigarette Pod Flavors Except Tobacco and Menthol, Wall Street J. (Jan. 1, 2020, 2:33 PM), https://www.wsj.com/articles/fda-to-ban-all-e-cigarette-pod-flavors-except-tobacco-and-menthol-11577833093; Selling Tobacco Products in Retail Stores, FDA.gov, https://www.fda.gov/tobacco-products/retail-sales-tobacco-products/selling-tobacco-products-retail-stores (last visited Dec. 30, 2019).

Tags: Administrative Law regulations vaping

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26Nov

Requirement of Cross-Examination in University Title IX Investigations

Categories: Current Issues Blog

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By Marisa Mariencheck

On November 29, 2018, the Department of Education (“DOE”) published a notice of proposed rulemaking in the Federal Register (the “Proposed Regulations”).[1] If promulgated, the Proposed Regulations would be the first “Title IX regulations . . . to address sexual harassment as a form of sex discrimination” promulgated since Title IX’s implementing regulations were promulgated in 1975.[2] The DOE asserts that the Proposed Regulations will help ensure recipients understand their legal obligations, including what conduct is actionable as sexual harassment under Title IX, what conditions trigger a mandatory response by the recipient, and the specific requirements such a response must meet so that “recipients protect the rights of their students to access education free from sex discrimination.”[3] More specifically, the DOE proposes adding § 106.45(b)(3) which states that “the recipient must conduct an investigation of the allegations in a formal complaint,” and provides specific requirements and procedures applicable when investigating a formal complaint.[4] Under § 106.45(b)(3)(vii), institutions of higher education must provide a live hearing and “permit each party to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.”[5]

To support the requirement of cross-examination for due process procedures in the Title IX context, the DOE relies entirely on Doe v. Baum, a 2018 Sixth Circuit decision concluding that due process requires cross-examination if credibility is in dispute and material to the outcome of a university student disciplinary proceeding.[6] The Sixth Circuit emphasized the importance of cross-examination in not only allowing “the accused to identify inconsistencies in the other side’s story,” but also in giving “the fact-finder an opportunity to assess a witness’s demeanor and determine who can be trusted.”[7] Thus, where public universities must choose between competing narratives to resolve a case, the Sixth Circuit requires universities to “give the accused … or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”[8] Despite the DOE’s reliance on Doe v. Baum, several cases following that decision indicate that courts do not unequivocally follow Doe v. Baum’s holding, and generally limit its application to circumstances where the resolution of a material dispute turns on witness credibility.

However, courts have not consistently used Doe v. Baum to require universities to include cross-examination in Title IX proceedings. Courts citing Doe v. Baum unanimously refuse to “read Baum more broadly” than the Sixth Circuit wrote it and apply its holding to require private universities to allow for cross-examination in Title IX proceedings.[9] For example, in Doe v. Belmont Univ., the Middle District of Tennessee held that a private university did not breach its contract with a student where it failed to provide cross-examination.[10] Similarly, that court noted in a different case that neither a sexual misconduct policy nor implied contractual relationship between an accused student and a private school provides for the right to cross-examination in the Title IX setting.[11] In fact, the District of New Jersey directly rejected a student’s argument referencing Doe v. Baum and asserting that the Proposed Regulations, in their current form, would be promulgated as final regulations.[12]

When considering Doe v. Baum, courts generally note that cross-examination must only occur if a material dispute turns on credibility. In Doe v. Princeton, the court concluded that cross-examination was not required because even if Doe v. Baum bound the Third Circuit, the student failed to establish that the ultimate determination of the issue turned on someone’s credibility.[13] Where the issue concerns the credibility of parties in the investigation, a “lack of meaningful cross examination may contribute” to a violation of an accused student’s due process rights in the Title IX setting.[14] For this reason, the District of Colorado recently determined that the lack of a full hearing with cross-examination provided evidence supporting an accused student’s claim of due process violation by a public university.[15] Similarly, in Doe v. Northern Michigan University, the court emphasized that need for cross-examination only arises where “the finder of fact must choose between believing an accuser and an accused.”[16] There, the court denied a public university’s motion to dismiss a student’s due process claim where material facts turned on witness credibility and the student was not able to testify directly to the body ultimately responsible for his discharge.[17]

In determining whether Title IX due process requires cross-examination, courts examine the specific factual context of the individual case rather than enforce a constant cross-examination requirement.[18] In Doe v. University of Mississippi, the court explained thatto assess the possible impact of cross-examination, it is imperative to understand the factual context.[19] Faced with a student accused of sexual assault’s claim of due process violation, the court noted that Title IX due process only requires cross-examination where governmental action seriously injures an individual and the reasonableness of the action depends on fact-finding.[20] Accordingly, the court determined that the student’s due process rights were violated where the university deprived him of an opportunity to cross-examine, either directly or through written questions submitted to the hearing panel, witnesses whose accounts of the disputed events was the sole evidence used by the fact-finders.[21] Thus, courts consistently limit cross-examination requirements to situations where assessments of witness credibility directly determine the outcome of the case.

Two California appellate court decisions use Doe v. Baum to explicitly require cross-examination in public university Title IX proceedings; however, both of these decisions involved cases where the resolution of material disputes turned on witness credibility. The first case overturned a trial court’s finding that the University of Southern California (“USC”) satisfied due process in investigating a student for sexual assault.[22] The California Court of Appeals emphasized that an adjudicator’s assessment of credibility requires an accused student to have the opportunity indirectly to question the complainant.[23] Therefore, USC violated a student’s due process rights where the Title IX agent who served as both investigator and adjudicator failed to interview three central witnesses in a case where material disputes and conflicting testimony existed.[24] Next, in Doe v. Allee, the California Court of Appeals agreed with Doe v. Baum’sholding extending the right of cross-examination to the questioning of witnesses other than the complainant where their credibility is critical to the fact-finder’s decision.[25] The court explicitly concluded that in the Title IX setting, where a student faces severe disciplinary sanctions, and the credibility of witnesses (including the accusing student) is central to the allegation’s adjudication, universities must provide a cross-examination mechanism.[26] Despite the court’s determination that the case before it required cross-examination, the court emphasized that cross-examination need not always be used.[27] However, where credibility is central to a university’s determination, a student accused of sexual misconduct has a right to cross-examine his accuser, directly or indirectly, so the fact finder can assess the accuser’s credibility.[28]

Moreover, where courts do follow Doe v. Baum’s holding, they do not specifically require a direct, live cross-examination. In Doe v. Allee, the court explained that “mechanisms” can readily be fashioned to “provid[e] accused students with the opportunity to hear the evidence being presented against them without subjecting alleged victims to direct cross-examination by the accused.”[29] The court explained that to satisfy due process, the accused may cross-examine critical witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (e.g., videoconference) before a neutral adjudicator with the power to find facts).[30] Similarly, Doe v. University of Southern California elucidated that a public university may submit questions for the adjudicator to ask the accuser and interview critical witnesses in person or by video.[31]

Other district courts also proffer indirect ways in which university proceedings can satisfy Title IX cross-examination requirements. For example, in Doe v. University of Mississippi, the court indicated that the use of written questions submitted to a third party satisfied the right to cross-examination,[32] and in Doe v. Northern Michigan University, the court concluded that “some form of witness questioning” must occur in front of the decision to allow it to “choose between competing narratives” in making its findings.[33] The Southern District of Ohio emphasized in June 2019 that “nothing in Baum” mandates that universities “employ specific written procedures” for witness cross-examination at disciplinary hearings.[34] It is “neither practical nor desirable” for a university to be a court of law.[35] Accordingly, courts do not construe Doe v. Baum’s holding as requiring live, trial-like cross-examination procedures.

In conclusion, courts interpreting Doe v. Baum generally conclude that the determination of the need for cross-examination requires an analysis of the specific factual situation, and courts impose a cross-examination requirement only in cases where the credibly of the parties or critical witnesses is at issue, and where a material dispute of the case turns on witness credibility. Importantly, courts do not require a live, direct cross-examination of witnesses or the accuser, as required in the DOE’s Proposed Regulation.

[1] See Title IX, 83 Fed. Reg. 61,462 (proposed Nov. 29, 2018) (to be codified at 34 C.F.R. pt. 106).

[2] Id. at 61,463.

[3] Id. at 61,462.

[4] Id. at 61,475.

[5] Id.

[6] Doe v. Baum, 903 F.3d 575, 584 (6th Cir. 2018) (determining in part that a male student stated a due process claim against a public university because the university failed to allow for cross-examination)

[7] Id. at 581

[8] Id. at 578.

[9] Doe v. Belmont Univ., 334 F. Supp. 3d 877, 894 (M.D. Tenn. 2018)

[10] 334 F. Supp. 3d 877, 894 (M.D. Tenn. 2018)

[11] Z.J. v. Vanderbilt Univ., 355 F. Supp. 3d 646 (M.D. Tenn. 2018)

[12] Doe v. Princeton Univ., Civil Action No. 18-16539 (MAS) (LHG), 2019 U.S. Dist. LEXIS 4449, *17 (D.N.J. Jan. 9, 2019).

[13] Id. at *20.

[14] Norris v. Univ. of Colo., 362 F. Supp. 3d 1001, 1020 (D. Colo. 2019)

[15] Id.

[16] 2:18-CV-196, 2019 WL 2269721, at *6 (W.D. Mich. May 28, 2019)

[17] Id.

[18] See Doe v. Univ. of Miss.,361 F. Supp. 3d 597, 611 (S.D. Miss. 2019)

[19] Id.

[20] Id. at 613.

[21] Id. at 611.

[22] Doe v. Univ. of S. Cal., 29 Cal. App. 5th 1212, 1235 (2018).

[23] Id. at 1237.

[24] Id.

[25] 30 Cal. App. 5th 1036, 1066 (2019).

[26] Id. at 1072.

[27] Id. at 1067.

[28] Id. at 1072.

[29] Id. at 1066

[30] Id.

[31] 29 Cal. App. 5th at 1237.

[32] 361 F. Supp. 3d at 611.

[33] No. 2:18-CV-196, 2019 U.S. Dist. LEXIS 88717 (W.D. Mich. May 28, 2019)

[34] Junhe Qiu v. Univ. of Cincinnati, 1:18-cv-634, 2019 WL 2396664, *10 (S.D. Ohio June 6, 2019)

[35] Doe v. Univ. of Miss., 361 F. Supp. 3d at 609

Tags: Administrative Law cross-examination Sixth Amendment Title IX

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22Nov

What’s Next for the Dreamers? SCOTUS Hears DACA Arguments

Categories: Current Issues Blog

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By Olivia Rojas

On November 5, 2018, the United States Department of Justice filed a petition for writ of certiorari before judgment from the Supreme Court of the United States asking the court to review three cases from different circuits relating to the Deferred Action for Childhood Arrivals program (“DACA”).[1] These cases, DHS v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal (collectively “Consolidated Cases”), directly addressed the validity of the Trump Administration’s attempt to halt DACA, and in June of 2019, the Court granted certiorari.[2]

On November 12, 2019, the Court heard oral arguments regarding the future of DACA. In reviewing the Consolidated Cases, the Court is asked to analyze two questions (1) whether the “phasing out” of the DACA program is eligible for judicial review in the first place and (2) whether the termination of the DACA program is legal.[3]

In June of 2012, former Secretary of Homeland Security Janet Napolitano submitted plans for an administrative program which would allow a select group of undocumented individuals who were born outside of the United States but immigrated as juveniles, to apply for deferred action.[4] These individuals have since been referred to as Dreamers.[5] Deferred action refers to the ability of a federal immigration judge or an agent with the United States Citizenship and Immigration Service to postpone the deportation of an individual as an act of discretion.[6] While deferred action does not adjudicate an individual as a “lawful” citizen, it awards that individual the status of “lawfully present” during the deferral period.[7] Under Napolitano’s plan, individuals were able to apply for a deferral with the potential for work authorization and the option to renew if a request was granted.[8] Unable to gain enough support for the program in Congress, then-President Barack Obama adopted the DACA plan by executive memorandum.[9] Since its establishment, nearly 800,000 people have deferred their pending deportations.[10]

Under the initial plan for DACA, people could apply for deferred action if: (1) they came to the United States before their 16th birthday; (2) they were 31 years old or younger; (3) they uninterruptedly resided in the United States since June 15, 2007; and (4) they were currently in school, graduated school, had a certificate of completion from a high school, had a General Educational Development (“GED”) Certificate, or were an honorably discharged veteran of the United States Coast Guard or Armed Forces.[11] Persons convicted of a felony, a “significant misdemeanor,” or three or more other misdemeanors were ineligible.[12] Additionally, if an applicant had “lawful status” on June 15, 2012, they were also ineligible.[13]

Following the inauguration of President Trump, then-Attorney General Jeff Sessions wrote a letter to the Department of Homeland Security, expressing his concern over the broad reach of the program. Essentially, Sessions argued that the program lacked the necessary statutory authority, had no end date, and lacked support from Congress. Sessions argued it was an “unconstitutional exercise of authority.”[14] Subsequently, then-Homeland Security Secretary Kjersten Nielsen issued a memorandum which sought to rescind DACA and set forth a method for “phasing out” the program in its entirety.[15] The Administration planned to stop accepting new applications and began to only process renewals for those DACA recipients whose status expired before March 5, 2018.[16]

The Arguments

Can the Court even review this matter?

In a brief submitted to the Court, the government contested that its termination of DACA is not judicially reviewable.[17] While lower courts ruled that the termination was “arbitrary and capricious,” the Administration argued that the Court could not review this standard if the termination was a form of permissible discretion under the Administrative Procedure Act.[18] The Administrative Procedure Act identifies the processes in which federal agencies may develop and enforce regulations.[19] As such, the government argued that it possesses the discretion to terminate DACA.

The challengers in the Consolidated Cases argue, however, that this issue is a perfect example of what the Court can review, and one that has been reviewed in the past.[20] Further, the challengers maintain that even if their first argument failed, the Court has the power to review the matter because the Administration argued its reasoning for termination was the illegality of DACA as a whole.[21]

In oral argument, the Administration again argued that its termination of DACA was not reviewable because it was a discretionary decision, even though it also argued the DACA program was illegal. Justice Ruth Bader Ginsburg questioned this argument: if the Administration reasoned that it terminated DACA because the program was illegal, it would not be a matter of discretion, but a legal one, and therefore clearly within the purview of the Court.[22] Justices Samuel Alito and Neil Gorsuch were less skeptical of this argument: where was the line between reviewable and non-reviewable decisions?[23]

Is the termination of DACA legal?

Relying on the Fifth Circuit’s decision to strike the Deferred Action for Parents of Americans (“DAPA”) and an expanded DACA program, the Administration, in its brief, reasoned that the implementation of DACA in the first place was “highly questionable” [24] and “an ongoing violation of federal immigration law.”[25] The challengers, on the other hand, argued that if terminating DACA was of incredible importance, the Administration would not have waited seven months before attempting to terminate the program.[26] Further, they argued that anticipation of potential litigation is not sufficient enough to justify the termination of DACA and doing so would undermine nearly every agency decision to date.[27] Finally, the challengers highlighted the public policy implications for terminating the program, including the displacement of hundreds of thousands of people who are actively working and studying in the United States.[28]

In oral argument, the parties conceded to the fact that the Administration had the authority to terminate DACA.[29] As a result, the Court was asked to review the method in which the Administration terminated DACA, rather than if it could terminate DACA.[30] The argument appeared to break down along traditional conservative-liberal lines, although commentators noted that many justices appeared “torn” and it was unclear how the case would ultimately be decided.[31]

The holding in these Consolidated Cases is expected to be released in June 2020.[32] While the future of DACA remains unclear until then, various district court injunctions prevent the complete cessation of the DACA program prior to a decision.[33] While the Administration does not foreshadow a mass deportation should DACA be eliminated,[34] the loss of the program would immediately strip recipients and potential applicants of their rights to work, attend school, and even drive.[35]

[1]Amy Howe, Argument Preview: Justices to Review Dispute over Termination of DACA, SCOTUSBlog (Nov. 5, 2019, 5:02 PM), https://www.scotusblog.com/2019/11/argument-preview-justices-to-review-dispute-over-termination-of-daca/.

[2] Id.

[3] Deferred Action Basics, Nat’l Immigr. F. (Apr. 15, 2016), https://immigrationforum.org/article/deferred-action-basics/; Amy Howe, Symposium: Justices to Review Dispute Over Termination of DACA, SCOTUSBlog (Sept. 10, 2019, 3:06 PM), https://www.scotusblog.com/2019/09/symposium-justices-to-review-dispute-over-termination-of-daca/

[4] Deferred Action for Childhood Arrivals (DACA), Homeland Security, https://www.dhs.gov/deferred-action-childhood-arrivals-daca (last updated Sept. 23, 2019).

[5] What is DACA and Who Are the DREAMers, Anti-Defamation League, https://www.adl.org/education/resources/tools-and-strategies/table-talk/what-is-daca-and-who-are-the-dreamers (last updated Oct. 17, 2019).

[6]Deferred Action Basics, supra note 3.

[7] Id.

[8] Id.

[9] Deferred Action for Childhood Arrivals (DACA), supra note 4.

[10] Caitlin Dickerson, What Is DACA? And How Did It End Up in the Supreme Court?, N.Y. Times (Nov. 12, 2019), https://www.nytimes.com/2019/11/12/us/daca-supreme-court.html.

[11] What Are the Eligibility Requirements for DACA?, CitizenPath, https://citizenpath.com/faq/daca-eligibility-requirements/.

[12] Id.

[13] Lori Robertson, The Facts on DACA, FactCheck (Jan. 22, 2018), https://www.factcheck.org/2018/01/the-facts-on-daca/.

[14] Id.

[15] Deferred Action for Childhood Arrivals (DACA), supra note 4.

[16] Dara Lind, March 5 Is Supposed to Be the DACA “deadline.” Here’s What That Means for Immigrants, Vox, https://www.vox.com/policy-and-politics/2018/2/16/17015818/daca-deadline-trump-dreamers-march-5 (last updated Mar. 5, 2018, 10:31 AM).

[17] Lomi Kriel, Trump’s Decision to End DACA Faces Supreme Court Scrutiny, Houston Chron. (Nov. 11, 2019), https://www.houstonchronicle.com/news/houston-texas/houston/article/Trump-s-decision-to-end-DACA-faces-Supreme-14827072.php.

[18] Howe, supra note 3; 5 U.S.C § 551 (2012).

[19] 5 U.S.C. § 551.

[20] Howe, supra note 3.

[21] Id.

[22] Amy Howe, Argument Analysis: Justices Torn, Hard to Read in Challenge to Decision to End DACA, SCOTUSBlog (Nov. 12, 2019, 2:07 PM), https://www.scotusblog.com/2019/11/argument-analysis-justices-torn-hard-to-read-in-challenge-to-decision-to-end-daca/.

[23] Id.

[24] Howe, supra note 3.

[25] Id.

[26] Howe, supra note 1.

[27] Id.

[28] Id.

[29] Howe, supra note 22.

[30] Id.

[31] Id.

[32] Supreme Court Grants Cert in Three DACA Cases, Nat’l Immigr. L. Ctr. (June 28, 2019), https://www.nilc.org/issues/daca/alert-supreme-court-grants-cert-in-three-daca-cases/.

[33] Lind, supra note 16.

[34] Hector Barreto, Here’s Why Trump is Right to End DACA, CNBC (Sept. 6, 2017), https://www.cnbc.com/2017/09/06/on-daca-trump-did-the-right-thing-commentary.html.

[35] Yanet Limon-Amado, Losing DACA Would, on Top of Everything Else, Double My College Tuition, Wash. Post (Nov. 12, 2019), https://www.washingtonpost.com/outlook/2019/11/12/losing-daca-would-top-everything-else-double-my-college-tuition/.

Tags: Administrative Law APA DACA Immigration Supreme Court

« The Golden Parachute – With Some Strings Attached: WeWork ex-CEO Faces Lawsuits After Shareholder Value Drops $30 Billion

Requirement of Cross-Examination in University Title IX Investigations »

17Sep

Trump Wins Again on the “Shadow Docket”

Categories: Current Issues Blog

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By Elliott Riches

On September 11, the Trump Administration received a major victory in the Supreme Court.[1] No, the Court hadn’t granted certiorari or heard oral argument; this win came in what the legal community refers to as the “shadow docket.”[2] Most law students or legal practitioners will likely be familiar with the Supreme Court’s primary method for deciding cases: petition for certiorari, certiorari granted, oral argument, months of waiting, and finally a written opinion.[3] The Court has operated this way for years. The Trump Administration, though, has found a new, quicker way to resolve issues in its favor. It uses extraordinary measures such as a petition for certiorari before judgment or application for a stay pending appeal before the case even makes its way through the appellate process.[4]

The Supreme Court Rules do provide for this sort of relief. Supreme Court Rule 11 provides that litigants may seek relief in the Supreme Court before a lower court has issued its ruling.[5] The Court also allows for the issuance of a stay pending appeal.[6] But the Court’s own rules specify that “[e]xcept in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.”[7] In order to receive this sort of stay, the applicant must carry an “especially heavy” burden.[8] To meet this burden, it “must demonstrate (1) ‘a reasonable probability’ that [the] Court will grant certiorari, (2) ‘a fair prospect’ that the Court will then reverse the decision below, and (3) ‘a likelihood that irreparable harm [will] result from the denial of a stay.’”[9] The Trump Administration has filed at least twenty applications for a stay before judgment, not to mention other forms of extraordinary relief including petitions for certiorari before judgment and applications for writs of mandamus.[10] In contrast, Presidents Barack Obama & George W. Bush sought this sort of extraordinary relief a combined total of only eight times.[11]

That takes us to the administration’s most recent victory. On July 16, 2019, the United States, through the Departments of Justice and Homeland Security, promulgated a rule that would deny asylum to all Central Americans who passed through Mexico unless they first were denied asylum in either Mexico or another country.[12] The day they issued the rule, several organizations that represent immigrants seeking asylum sued the administration seeking both a temporary restraining order and a nationwide preliminary injunction.[13] The district court granted the preliminary injunction finding that the rule was “likely inconsistent with the existing asylum laws,” might violate the Administrative Procedure Act’s (APA) notice-and-comment rules, and was likely invalid as arbitrary and capricious.[14] In response, the administration appealed the ruling to the Ninth Circuit Court of Appeals and also sought a stay in that court pending the disposition of the appeal.[15] The Ninth Circuit instead narrowed the scope of the injunction to only apply within that Circuit, but allowed the District Court to examine additional factors to expand the injunction, which the District Court subsequently did.[16] Unsatisfied with the result in both the District Court and the Court of Appeals, the government sought a stay pending appeal in the Supreme Court.[17]

The Supreme Court chose to grant the stay without any explanation, simply writing, “The application for stay presented to Justice Kagan and by her referred to the Court is granted.”[18] The Court did not elaborate on its reasoning but instead merely issued procedural rules regarding the stay.[19] Two justices noted their dissent from the ruling; Justice Sotomayor was joined by Justice Ginsburg in her written dissent.[20] Among other reasons, Justice Sotomayor noted the frequency with which the Trump Administration had sought this sort of extraordinary relief in the Supreme Court.[21] She writes, “The Government has treated this exceptional mechanism as a new normal.”[22] Justice Sotomayor went on to comment that, in contrast to historical precedent, the Trump Administration now seeks extraordinary relief “reflexively.”[23] She urged her fellow Justices to exercise “restraint” in allowing the administration to take “shortcuts,” a plea that apparently fell on mostly deaf ears.[24]

The Court would have been wise to heed Justice Sotomayor’s plea and deny extraordinary relief. This is not an issue of whether the policy is right or wrong; it is an issue of process. For years, extraordinary relief has only been asked for, let only granted, in truly extraordinary circumstances. The current administration’s consistent asking for relief weakens the institutional legitimacy of the Supreme Court. As Justice Gorsuch wrote, “This Court often speaks most wisely when it speaks last.”[25] By granting this sort of relief the Court is not allowing the appellate process to play out. Instead, it is choosing to circumvent the Courts of Appeal and make decisions about a case well before they have the kind of developed record and analysis traditionally seen in Supreme Court cases.

One potential argument those who support the administration’s drastic measures may make is that extraordinary relief is necessary against the trend of nationwide injunctions.[26] Justice Thomas discussed the issue of nationwide injunctions in the travel ban case writing that “they appear inconsistent with longstanding limits on equitable relief” and that if the trend continues, the Court “must address their legality.”[27] However, Thomas was not joined by any other justices in his lengthy concurrence on this issue. Therefore, until the Court does address the issue of nationwide injunctions, neither the Court nor litigants should attempt to prevent these injunctions using the shadow docket.

This is obviously not the first time, nor will it likely be the last time, that the Trump Administration seeks extraordinary relief in the Supreme Court. While the process for obtaining an opinion from the Supreme Court can sometimes take months or even years, extraordinary relief can be obtained in very short order.[28] Extraordinary relief is therefore a much more efficient solution for the Trump Administration’s desire to implement its administrative agenda, as opposed to waiting for the traditional Court process to unfold. Given the frequency with which the Trump Administration has filed for extraordinary relief, it is only an issue of when, not if, they next request it. Meanwhile, courtwatchers and the American people are left to wonder: how many more times will the Court give the administration what it wants?

[1] Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781 (U.S. Sept. 11, 2019) (mem.), https://www.supremecourt.gov/opinions/18pdf/19a230_k53l.pdf (granting request for a stay pending appeal of injunction of immigration rule).

[2] See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015).

[3] See Sup. Ct. R. 12, 16, 24, 28, 41.

[4] See, e.g., Application for a Stay Pending Appeal, E. Bay Sanctuary Covenant, 2019 WL 4292781 (U.S. Sept. 11, 2019) (No. 19A230), https://www.supremecourt.gov/DocketPDF/19/19A230/113613/20190826132549423_East%20Bay%20II%20Stay%20FINAL.pdf.

[5] 28 U.S.C. § 2101(e) (2012); Sup. Ct. R. 11.

[6] Sup. Ct. R. 23.

[7] Id.

[8] Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1320 (1994) (Rehnquist, J., in chambers).

[9] Maryland v. King, 567 U.S. 1301, 1302 (2012) (Roberts, C.J., in chambers) (quoting Conkridght v. Frommert, 566 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers)).

[10] Ian Millhiser, Justice Sotomayor Warns the Supreme Court is Doing “Extraordinary” Favors for Trump, Vox (Sept. 12, 2019, 11:20 AM), https://www.vox.com/2019/9/12/20862320/sotomayor-supreme-court-favors-trump; Steve Vladeck (@steve_vladeck), Twitter (July 12, 2019, 4:11 PM), https://twitter.com/steve_vladeck/status/1149773351784726528.

[11]Id.

[12] Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,835, 33,840 (Jul. 16, 2019) (to be codified at 8 C.F.R. pts. 208, 1003, 1208).

[13] E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 935 (N.D. Cal. 2019).

[14] Id. at 930.

[15] Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781, at *2 (U.S. 2019) (mem.).

[16] Id.; E. Bay Sanctuary Covenant v. Barr, No. 19-cv-04073-JST, 2019 WL 4265078, at *1 (N.D. Cal. 2019).

[17] Application for Stay Pending Appeal, supra note 4.

[18] E. Bay Sanctuary Covenant, 2019 WL 4292781, at *1 (U.S. 2019) (No. 19A230).

[19] Id.

[20] Id.

[21] Id. at *3 (Sotomayor, J., dissenting).

[22] Id.

[23] Id.

[24] Id.

[25] Maslenjak v. U.S., 137 S. Ct. 1918, 1932 (2017) (Gorsuch, J., concurring).

[26] Trump v. Hawaii, 138 S. Ct. 2392, 2424–25 (2018) (Thomas, J., concurring) (“Injunctions that prohibit the Executive Branch from applying a law or policy against anyone—often called ‘universal’ or ‘nationwide’ injunctions—have become increasingly common.”)

[27] Id. at 2425.

[28] In the East Bay case, the application for stay was filed on August 26, 2019. See Application for Stay Pending Appeal, supra note 4. As mentioned above, the Court issued the stay on September 11, 2019.

Tags: Administrative Law APA Immigration shadow docket stays Supreme Court

« The Fight over a Four-Letter Word

“Take the Marijuana Out of It; It’s Not Marijuana:” Law Enforcement, Farmers, Smokable Hemp, and Probable Cause in North Carolina »

5Oct

Weekly Roundup – 10/1-10/5

Categories: 4th Cir. Blog Weekly Roundup

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By: Nick McCauslin & Tristan Meagher

Sierra Club v. United States Army Corps of Engineers

In this civil case, the Sierra Club asked the Court to set aside the Army Corps of Engineers’ (“Corps”) verification which allowed for construction of the Mountain Valley Pipeline through West Virginia using the “dry cut” method for the construction of river crossings which would take four to six weeks to complete. West Virginia regulates the construction of river crossings, requiring them to be completed within 72 hours. The Fourth Circuit vacated the Corps’ verification, finding that the Corps did not have the authority to require the use of the “dry cut” method in lieu of West Virginia’s restriction. A more thorough analysis as to why the Corps lacked the authority is expected in a future opinion.

United States v. Gibbs

In this criminal case, Erik Gibbs sought an en banc rehearing of his case after a divided panel of the Court affirmed his twenty-four-month sentence violating the terms of his supervised release. The Court denied the petition. In voting to deny the petition and vacate the panel’s order, Judge Wynn noted that since Gibbs was now released from prison, his case is moot. The court elected to deny the petition prior to the filing of concurring, separate, and dissenting opinions, even though this practice is atypical, in order to avoid unnecessary delay or prejudice to the defendant.

Tags: Administrative Law Criminal Law Environmental Law Fourth Circuit

« Judges of the Fourth Circuit – Hon. J. Dickson Phillips, Jr.

Fourth Circuit Clarifies Rules for Designations of ACCA Predicate Convictions »

21Sep

Weekly Roundup: 9/17-9/23

Categories: 4th Cir. Blog Weekly Roundup

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By: Thomas Cain & Noah Hock

Equal Employment Opportunity Commission v. Baltimore County

In this case, the Equal Employment Opportunity Commission (“EEOC”) sought back pay for employees based on Baltimore County’s discriminatory practice involving improper contribution rates to the county’s age-based employee benefit plan. The district court found the county liable under the Age Discrimination in Employment Act (“ADEA”) and granted the EEOC partial summary judgment, but it denied a motion for back pay because the EEOC’s undue delay in investigating substantially increased the county’s back pay liability. The Fourth Circuit vacated the district court decision, ruling that an award of back pay is mandatory under the ADEA after a finding of liability. Thus, the case was remanded for a determination of back pay amounts to which affected employees are entitled.

Tags: Administrative Law Civil Litigation Discrimination Employment Law Equal Employment Opportunity Commission Fourth Circuit

« Judges of the Fourth Circuit – Hon. Kenneth Keller “K.K.” Hall

Fourth Circuit Rules on Mandatory Age-Discrimination Remedies »

4Nov

Weekly Roundup 10/30-11/3

Categories: Weekly Roundup

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By: Adam McCoy & Shawn Namet

U.S. v. Palin
In this criminal case, the defendants argued the government did not sufficiently prove the materiality requirement of health care fraud to convict for submitting to the insurance company medically unnecessary and more expensive tests to increase profits. Materiality requires showing the misrepresentation effected the insurance company’s decision to pay the claim. The Fourth Circuit affirmed the conviction and found there was sufficient evidence of materiality because insurers would not have paid for the more expensive tests submitted by the defendants if they had known the tests were not medically necessarily.

U.S. v. Ali
In this civil case, Melina Ali appealed the district court’s order holding her in contempt after she failed to produce certain documents in response to an administrative summons issued by the IRS, arguing that the Government failed to establish her possession or control of additional responsive documents. The Fourth Circuit affirmed the district court’s judgment, finding sufficient evidence in the record to establish that Ali’s production was presumptively incomplete, and that the burden shifted to Ali to demonstrate her good faith efforts to produce responsive documents.

Tags: Administrative Law Criminal Law Fraud Health Care IRS

« Establishment Clause: Government Maintained Latin Cross Unconstitutional

Fourth Circuit Affirms Dismissal of Zoning Case Brought on Constitutional Grounds »

5Apr

Fourth Circuit Reverses the Denial of Asylum to Honduras Citizen

Categories: 4th Cir. Blog Archive

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By Kelsey Hyde

On March 14, 2017, the Fourth Circuit amended their March 13, 2017 published opinion in the case of Cantillano Cruz v. Sessions III where the Court granted a petition for review of a final order from the Board of Immigration Appeals (BIA). In its decision, the Court reversed the administrative court’s denial of asylum to Luz Marina Cantillano Cruz (Cantillano Cruz), and remanded the case to BIA for further proceedings. In reversing the agency’s determination, the Court found that the BIA erroneously concluded that Cantillano Cruz failed to meet the statutory nexus requirement for asylum relief.

Factual Background Leading to Asylum Claims

Cantillano Cruz, a citizen of Honduras, began living with the late Johnny Martinez (Martinez) in 2003. Although the couple never married, they were considered married by the surrounding community and also had two children together. In 2007, Martinez obtained employment working for Danny Avila (Avila) as a personal bodyguard. Avila claimed to be a “fisherman” and Martinez regularly accompanied him on “fishing trips” for approximately five years. However, Martinez eventually discovered that Avila worked closely with organized crime groups of Honduras and Colombia, trafficking drugs and firearms. In 2012, Martinez disclosed to Cantillano Cruz his plan to quit based on Avila’s criminal conduct. A week later, Martinez left for a “fishing trip” with Avila and never returned.

Cantillano Cruz and family members searched for Martinez, unsuccessfully, and were threatened by Avila to cease looking and asking questions, or they would “suffer the same fate” as Martinez. Avila then continued these threats by calling Cantillano Cruz, loitering outside her home, firing weapons near her home, threatening the lives of her children, and even killing her dogs.

In 2014, as a result of these threats by Avila, Cantillano Cruz fled Honduras with her young children, entered the United States without authorization, and requested asylum relief. The Department of Homeland Security (DHS) charged her as an alien present in the United States without permission, under 8 U.S.C. § 1182(a)(6)(A)(i). Cantillano Cruz conceded this, but filed for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

Determinations of Immigration Judge & Board of Immigration Appeals

The Immigration Judge (IJ) found that although Cantillano Cruz was a member of a particular social group, the nuclear family of Johnny Martinez, she failed to show past or future persecution on account of membership in this group. Instead, the IJ concluded the major reason Avila targeted Cantillano Cruz was to deter her from contacting the police, a reasoning which could have occurred regardless of their familial relationship, and consequently denied her application for asylum and withholding of removal. The IJ also rejected her request for protection under CAT, finding that the threats against her had never escalated to violence and that Avila only threatened to commit violence if Cantillano Cruz contacted the police, which she had expressed no intention of doing. In Cantillano Cruz’s appeal to the BIA, the BIA adopted the conclusions made by the IJ, supplemented with its own reasoning, and dismissed her appeal. On appeal to the Fourth Circuit, Cantillano Cruz claimed that the BIA and IJ both erred in their conclusion that she was not persecuted based on her membership in Martinez’s nuclear family.

Issues & Standards of Review On Appeal

An applicant seeking asylum must establish her inability, or unwillingness, to return to her home country based on persecution or well-founded fear of persecution on account of some protected ground, such as nationality or membership in a particular social group. 8 U.S.C. § 1101(a)(42)(A). Persecution occurs “on account of” one’s membership in an immediate family when that relationship is at least one central reason for the feared prosecution. Crespin-Valladares v. Holder, 632 F.3d 117, 127 (4^th Cir. 2011). The Fourth Circuit does not limit this “statutory nexus requirement” to situations where one’s membership is the sole reason for their persecution, but instead recognizes that many central reasons can motivate such actions. Oliva v. Lynch, 807 F.3d 53, 59 (4^th Cir. 2015).

On appeal, the Fourth Circuit considered both of the lower rulings, on account of the fact that the BIA adopted yet supplemented the IJ’s conclusions. The court reviewed de novo the question of whether the BIA and IJ applied the correct legal standard in determining whether Cantillano Cruz met the statutory nexus requirement. Then, the court reviewed the BIA and IJ’s determinations of factual questions, those regarding Avila’s motivations for the persecution, by considering whether these conclusions were supported by substantial evidence. Finally, the Fourth Circuit reviewed the IJ’s factual findings as conclusive unless another reasonable adjudicator would be compelled to reach a different conclusion.

Fourth Circuit Grants Petition & Reverses Administrative Court’s Findings

The Court held that the IJ and BIA applied an improper, excessively narrow standard when interpreting the statutory nexus requirement. Ultimately, the IJ and BIA improperly focused on one central reason for Avila’s threats, to deter Cantillano Cruz from contacting the police, but failed to recognize the other central and intertwined reason for the threats, her existence in the nuclear family of Martinez. The court noted that the IJ and BIA essentially seemed to require that Cantillano Cruz prove the threats were solely based on her status as Martinez’s wife, which was an improper condition to mandate.

Additionally, the court emphasized that the evidence clearly showed Cantillano Cruz knew about Avila’s criminal conduct as a result of her status as a member of Martinez’s nuclear family. Thus, the court reviewed the record and found that it was sufficient to compel the conclusion that Cantillano Cruz satisfied the statutory nexus requirement, as the evidence clearly demonstrated that she was persecuted as a result of her familial relationship with Martinez and the knowledge she obtained about Avila as a result of this relationship. Accordingly, the BIA and IJ’s conclusions were found to be contrary to law and an abuse of discretion, necessitating their reversal.

Because of this conclusion, the Court did not address whether Cantillano Cruz satisfied the requirements of CAT relief by showing the likelihood of torture if returned to Honduras. However, the Court held that, if asylum relief was still declined, the BIA ought to reconsider the CAT claim consistent with the conclusions of this opinion.

Tags: Administrative Law asylum Board of Immigration Appeals Immigration

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