Illinois District Court Judge Rules Against Conditioning Grants for Sanctuary Cities

Written By Alex Grzebyk

Background

Pursuant to 34 U.S.C. 10151, the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”) supports state and local law enforcement, by providing federal funds for “personnel, equipment, training, and other criminal justice needs.” The City of Chicago has been receiving these funds since 2005, using them for things such as police vehicles and support for not-for-profits operating in high-crime areas.

In 2016, the Department of Justice notified all Byrne JAG applicants about a new condition on granting funds: all Byrne JAG applicants had to “certify compliance with all applicable federal laws[.]” One of the federal statutes in question – 8 U.S.C. § 1373 – prohibits local law enforcement and local government from “restricting the sharing of information with the Immigration and Naturalization Service (“INS”) regarding the citizenship status of any individual.” Upon a request for clarification, the Office of Justice Programs determined that 8 U.S.C. § 1373 was an “applicable federal law under the Byrne/JAG authorizing legislation.”

In July of 2017, Attorney General Jefferson Sessions placed two new conditions on grants provided by the program, often referred to as the “notice and access conditions.” The first condition involved the requirement that law enforcement provide federal immigration and customs enforcement (“ICE”) agents with “advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations.” The second condition involved the requirement that local authorities provide ICE agents with “access to City detention facilities and [the] individuals detained therein.”

On August 8, 2017, the City filed a complaint against Attorney General Sessions, seeking both injunctive and declaratory relief. Even though the City admits that it “acquiesced to the compliance condition when accepting the 2016 Byrne JAG funds,” it is still asserting that all three conditions are unconstitutional and unlawful. In the complaint, the City argued, “These conditions are inconsistent with the Byrne JAG statute itself, with the limitations imposed by the Constitution’s Spending Clause and the Fourth Amendment, and with basic separation of powers principles. Compliance with the conditions would require Chicago to violate Illinois law. And it would undermine public safety and effective policing in the City and upend Chicago’s Welcoming City policy.”

Court Case

To warrant the entry of a preliminary injunction, there are four things the City has to establish: “that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in its favor, and that an injunction is in the public interest.”

The Court granted the City’s injunction as to the two conditions imposed by Attorney General Sessions in 2017. However, the Court denied the City’s motion as to the third condition regarding compliance with federal laws.

With regard to the notice and access conditions, the Court identified three issues. “Did Congress authorize the Attorney General to impose substantive conditions on the Byrne JAG grant? If so, did Congress have the power to authorize those conditions under the Spending Clause? And finally, does Section 1373 violate the Tenth Amendment?”

The Court opined that “[t]he contours of the Executive Branch’s authority are circumscribed by statute[.]” In that vein, the City focused its argument on the statutory language of Byrne JAG to argue that “Congress did not authorize the Attorney General to place substantive conditions on the Byrne JAG grant.” Attorney General Sessions responded, using 34 U.S.C. § 10102(a)(6) to assert that Congress had granted him express authority to “‘place special conditions on all grants’ and to ‘determine priority purposes for formula grants.’”

Ultimately, the Court sided with the City’s argument, stating that “[t]he notice and access conditions…exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires.” The Court refused to determine whether the notice and access conditions violated the Spending Clause, since Congress never authorized Attorney General Sessions to impose them.

Moving on to the compliance condition, Attorney General Sessions argued that 34 U.S.C. § 10153 “furnishes [him with the] authority to require a Byrne JAG applicant’s compliance with federal law, including Section 1373.” In relevant part, that statute reads that “the applicant will comply with all provisions of this part and all other applicable Federal laws.” In response, the City argued that the word “applicable” therein should be read narrowly, only referring “to compliance with the narrow body of law governing federal grant-making.”

The Court opined that Congress intended for the grant to be included within the “applicable laws” referenced under Section 1373, refusing to apply the City’s argument that the word “applicable” should “have a narrowing effect.” Thus, any entity receiving funds is expected to certify compliance with federal law. Since the City failed to argue that it was unconstitutional under the Spending Clause, the Court did not address the issue. Instead, it turned to a Tenth Amendment analysis, finding that the condition was proper under the Tenth Amendment.

With regard to the notice and access conditions, the Court asserted that there was “no reason to think that the legal issues present in this case are restricted to Chicago.” The Department of Justice has the option to file an appeal to the 7th U.S. Circuit of Appeals with regard to this holding.

Societal Context

This case is just one spoke in the wheel of immigration policy and reform. In essence, the City of Chicago is taking a stance in the heated debate between the Trump Administration and the many sanctuary cities.

The term “sanctuary city” is used to describe cities or counties where local law enforcement agencies limit, in some fashion, their cooperation with federal immigration agencies. Generally, the purpose of these limits is to provide protection from deportation for illegal immigrants.

For example, Devin O’Malley, Media Affairs Coordinator for the Department of Justice, has stated, “By protecting criminals from immigration enforcement, cities and states with ‘so-called’ sanctuary policies make their communities less safe and undermine the rule of law.”

In contrast, the City of Chicago stated in their complaint that establishing themselves as a sanctuary city “promotes public safety by ensuring that no city resident or visitor, regardless of immigration status, is afraid to cooperate with law enforcement, report criminal activity to the police, testify as a witness in court, or seek help as a victim of crime[.]”

This is why the Byrne JAG grant has come into play. The Trump Administration has argued that the conditions imposed on the Byrne JAG grant “seek to protect communities and law enforcement[,]” thereby rebuking sanctuary cities. However, the district court’s ruling can be viewed as a stance against the Trump Administration’s attempts at undermining sanctuary cities. In the granting of the injunction, the court signaled to other sanctuary cities that its Chicago-based ruling should apply nationwide.

Nevertheless, the injunction is temporary, only blocking the Trump Administration from requiring notice and access to federal ICE agents for a short while. We have yet to see what immigration reform will come next from Congress and the Trump Administration. It is likely that this case will be appealed to the Circuit Court.

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Sources Cited

City of Chicago v. Sessions, No. 17-c-5729 (N.D. Ill. Sept. 15, 2017).

U.S. Const. art. I, § 8, cl. 1.

8 U.S.C. § 1373 (2012).

34 U.S.C. § 10151 (2012).

Edward Byrne Memorial Justice Assistance Grant Program, (last visited Sept. 25, 2017).

Matt Zapotosky, Judge Rules Justice Department Can’t Keep Grant Money From Uncooperative Sanctuary Cities, Wash. Post (Sept. 15, 2017).

Memorandum from Michael E. Horowitz, Inspector General, to Karol V. Mason, Assistant Att’y Gen. for the Office of Just. Programs (May 31, 2016).

Office of Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, (October 6, 2016).

September 2017: Kristen E. Smith (’05)

On top of a small hill, just outside of the city center, lies Syracuse’s famous Irish neighborhood, Tipperary Hill. This is where Kristen Smith was born, raised, and eventually decided to return to start her own family. Yet, despite the familiar setting, Kristen’s career has taken her on adventures far and wide.

Kristen started out at Cornell University, studying Industrial and Labor Relations. She said her studies provided her with a “good mix of the social sciences, like psychology, history, and economics.” She loved the substantive material, and pondered pursuing it further in law school for a brief moment, until graduation when she decided to enter the workforce.

Her first adventures were in professional recruiting – first in Chicago, Illinois, and then in Framingham, Massachusetts. “I was focused on recruiting technology professionals,” she said. “I loved the work, and I was fortunate to work for exciting companies, Bose Corporation being one of them. There, I hired the engineers who made their products.”

Recruiting was a career that Kristen embraced, but after six years, she was ready for her next adventure. “I wanted more of an intellectual challenge, and I was in the process of moving back to Syracuse to be closer to family. So, I decided to go to Syracuse [for law school].”

When Kristen began her 1L courseload, she wanted to keep an open mind. “I took classes in undergrad that showed me what the labor and employment law practice sort of looks like, so I already knew I was interested,” she said. “For that reason, it was important to me to make sure I tried and looked at everything else in law school. I didn’t want to box myself in without exploring my options.”

Kristen interned for Bond, Schoeneck & King, PLLC in downtown Syracuse during both of her summers in law school. She rotated through all of the departments,  again keeping an open mind, before landing in the labor and employment law practice.

Kristen returned for her 3L year ready to finish up her studies and to lead Syracuse Law Review as the Editor-in-Chief of Volume 55. With all the work that goes into a successful volume, Kristen said she made sure the year was not just one of academic growth for the members, but also one of enjoyment.

To do this, Kristen and some friends decided to take a longstanding flag football tradition – Law Review versus the Journal of International Law and Commerce – and kick it “up a notch” with a name change.

“Every year in the fall, sometime around October, we would have a flag football game where Law Review played JILC,” she said. “It was always just for fun, no fundraiser involved, but we’d make a day out of it. My 3L year, we renamed it the ‘Supra-Bowl’.  We made team shirts for each side featuring the game’s new name.”

Kristen said those memories, as well as the lessons that she learned through editing, were a huge part of her formation and foundation as an attorney.

“As the Editor-in-Chief, I was the last pair of eyes on every article, every page,” she said. “For that reason, I really learned how incredibly important it is to never become lazy…to stay completed focused. So, when you translate that into what I do now, you realize it wasn’t about the substance of the article at the time. It’s about those skills that relate to your attention to detail and your time management.”

Editor-in-Chief was an exciting and fulfilling job, and Kristen said she would “do it all again in a second.” However, her 3L adventures did not end there.

Kristen, and her husband Dan, found out during her final semester of law school that they were expecting their first child. Before she knew it, Kristen was six months pregnant taking the New York Bar Exam and preparing for her first year as an associate at Bond.

“I had my first child one month after I started work,” she said. “Throughout my entire career, I’ve been able to take advantage of flexible working arrangements. I now have four kids, and Bond has always been supportive.”

Today, Kristen has risen up the ranks to become a member (partner) at Bond in the Labor and Employment Department. She has been named a Rising Star by Super Lawyers for the last two years, serves on Bond’s Women’s Initiative Committee, and has recently been presenting and publishing on the topic of the New York Paid Family Leave Benefits Law.

A large majority of Kristen’s caseload deals with defense of employers before the New York State Division of Human Rights, before the Equal Employment Opportunity Commission, and in federal court. She works with a wide range of clients, in terms of both industry and size. Specifically, Kristen noted how exciting it can be to work on a sophisticated legal issue for large corporation one day, and then help a small, family-owned business or not-for-profit the next.  While all the work is interesting, she said sometimes the smaller the client, the more fulfilling the work can be.

“There is a different emotional dynamic when you are defending a small family-owned business or non-profit, ” she said. “Some of the cases I remember the most are those where the organization was very small, and just trying to do the right thing, when a legal claim from a disgruntled employee tossed its financial security and stability into question.  I really enjoy guiding these business owners through the process and coming to a resolution that allows them to continue pursuing their life’s work.”

So, what advice does Kristen have for current students?

“It is very important to quickly recognize the difference between being a law student and being a lawyer,” she said. “In law school, you are in this closed universe with specific questions to answer and that’s that. In the practice of law, it’s different because it’s a completely open universe. You can’t think narrowly about an issue. You need to look at many different angles in order to come up with the best solution for a client….Just saying “no, that’s not allowed” to a client isn’t an answer. You have to anticipate how your advice will impact a client’s life or business, and you have to help them work through it.”


This story was written by Legal Pulse Editor Samantha Pallini and is the third installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.” Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.

Ezekiel Elliott: Postponing the Inevitable?

Written By Michael Varrige

 

Background

In mid-August, the NFL suspended Dallas Cowboys Running Back Ezekiel Elliott for an alleged July 2016 domestic assault. Despite Elliott’s continued denial of the allegations made by the alleged former girlfriend, Elliott and the NFL have been engaged in a legal battle since his appeal to the NFL arbitrator. The appeal to the arbitrator, which was the first step in appealing his suspension under the NFL Collective Bargaining Agreement (“CBA”), was denied. Elliott then filed suit in the United States District Court for the Eastern District of Texas, asking for a preliminary injunction and alleging a fundamentally unfair suspension appeal hearing. The court granted his preliminary injunction, the NFL appealed, and now the parties await a ruling from the Fifth Circuit.

Discussion

Elliott was a rookie sensation during the 2016 NFL season, bringing an energy to “America’s Team” that had previously been lacking. The Cowboys finished 13-3, won the NFC East, and advanced to the playoffs, eventually losing in the divisional round to the Green Bay Packers.

Before all of the hype surrounding the rookie, however, Elliott was accused of assaulting his alleged former girlfriend in Columbus, Ohio, just a few months before the season started. While prosecutors declined to prosecute the case because of conflicting evidence, that did not stop the NFL from pursuing a year-long investigation, culminating in a six-game suspension penalty.
The NFL’s Personal Conduct Policy provides that Roger Goodell, as NFL Commissioner, may suspend players without a criminal charge, arrest, or conviction, but may only do so “when credible evidence establishes that the player engaged in conduct prohibited by the policy.” Upon a review of the record, an interview with Elliott, and the investigation report, Goodell decided to suspend Elliott for six games.

Arbitration

Pursuant to the CBA, an agreement to which both the NFL and the NFL Players Association (“NFLPA”) are parties, Elliott appealed this suspension to the arbitrator, who had to decide whether Goodell’s decision was arbitrary and capricious.

Within Elliott’s appeal to the arbitrator were requests to have his accuser available for cross-examination, to have the NFL investigator’s notes made available to him, and to have the NFL investigator testify at the hearing. Only the third request was granted, and with credibility of the parties and evidence playing a central role in the dispute, Elliott and the NFLPA questioned the arbitrator’s denials. In addition, the hearing revealed that the NFL investigator, like the Ohio prosecutor, recommended no sanctions against Elliott, due to credibility issues and conflicting evidence. Arbitration ended on August 31, 2017, and the NFLPA brought suit in the Eastern District of Texas the following day.

U.S. District Court for the Eastern District of Texas

Under Rule 65 of the Federal Rules of Civil Procedure, “[e]very order granting an injunction and every restraining order must: (a) state the reasons why it issued; (b) state its terms specifically; and describe in reasonable detail . . . the act or acts restrained or required.” Furthermore, “a plaintiff seeking a temporary restraining order must show: (1) a substantial likelihood of success on the merits; (2) a substantial threat that plaintiff will suffer irreparable harm if the injunction is not granted; (3) the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) the injunction will not disserve the public interest.”

Elliott appealed to the District Court for a preliminary injunction to allow him to keep playing until his lawsuit against the League was completed and a final decision was returned. In his argument, Elliott asserted that he had a substantial likelihood of success on the merits because of the denial of access to the NFL investigator’s notes, the lack of opportunity to cross-examine his accuser, and the inability to question Goodell about his decision-making process, amongst other things. Traditionally, these types of decisions are left to the discretion of the arbitrator; therefore, if a court is asked to review these decisions, the question is “whether the arbitration proceedings were fundamentally unfair.” Here, the Court found such unfairness and misconduct that it stated, “The circumstances of this case are unmatched by any case this Court has seen.”

As to the second element, the Court held that Elliott would be irreparably damaged by the suspension, on the basis that six games is a significant part of the NFL’s sixteen-game season. Such a suspension, according to the Court, would deny Elliott the chance to achieve statistical honors, due to the limited window that professional athletes have the opportunity to play.

For the third element, the NFL argued that it would suffer procedural harm if Elliott’s injunction were to be granted because “the NFLPA and NFL have an agreed-upon internal procedure that will be eviscerated by an injunction in this case.” The Court did not find this argument persuasive, as they held that this did not shift the balance of hardships, nor did it impact the public interest factors required in a preliminary injunction ruling.

Consequently, the District Court granted the preliminary injunction, and Elliott played in Week 2 of the NFL season (when, in the alternate, his suspension would have gone into effect). The District Court also denied the NFL’s motion for an emergency stay of the injunction.

U.S. Court of Appeals for the Fifth Circuit

The NFL has since appealed the case to the Fifth Circuit Court of Appeals, asking for an emergency stay of the preliminary injunction. The stay would allow the suspension to go into effect during either Week 3 or Week 4 of the NFL season.

In its appeal, the NFL asserts three main arguments: (1) the NFLPA did not allow for the arbitration to finish before it filed suit; (2) the CBA’s requirements for an appeal hearing were satisfied by the NFL’s process; and (3) the lawsuit is a misuse of the court system and could allow every player the NFL suspends to file suit before their arbitration has ended.

One of the CBA provisions states that arbitration is the “exclusive and final remedy,” which means that the NFLPA and the players cannot go to the courts until the arbitration has concluded. The NFLPA filed suit the day after the close of arbitration, and the preliminary hearing occurred on the same day that the decision was handed down. This argument was addressed by the District Court when it cited an exception to this rule recognized by both the Fifth Circuit and the Supreme Court, namely, that exhaustion is not required if the employer’s conduct amounts to a repudiation of the remedial procedures specified in the contract. The District Court used the denial of evidence to support the claim that the NFL and Commissioner Goodell’s conduct fell under this exception.

As to the second argument, the NFL argues that Elliott had all relevant evidence in the form of affidavits, testimony from the NFL investigator on the case, and the reports that Goodell used to make his decision. Consequently, the NFL argues that a player need only be represented by counsel, permitted the opportunity to provide relevant evidence, and provided a promptly-issued decision, all of which the NFL alleges occurred. This argument may fail, however, if the Fifth Circuit focuses on what some would call the procedural short falls of the arbitration hearing, perhaps most notably the denied request to cross-examine Elliott’s accuser and the denied request to have Goodell testify.

The third argument asserted is that, while the NFL itself may not suffer more irreparable harm than Elliott could personally, a victory for Elliot would encourage all suspended players to sue in their preferred locations and perhaps postpone their suspensions. This could be used in a strategic way to allow players to serve their suspensions at a more advantageous time during their seasons and, additionally, it could undermine the CBA’s process and the private settlement of labor disputes. The NFL further argues that the public has an interest in preventing domestic violence and allowing the Commissioner to attempt to deter this behavior.

The NFL requested that relief be granted by September 26th, but there is no mandate that that Fifth Circuit abide by the NFL’s request, and there is also no guarantee that the Fifth Circuit will rule in favor the NFL. It will be interesting for NFL fans and players, as well as labor and contract law enthusiasts, to see how this litigation is settled. Nevertheless, one thing is for sure: we have not heard the last from Ezekiel Elliott, the NFLPA, the NFL, or the courts on this issue.

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Sources Cited

Judge Denies NFL’s Emergency Stay Request in Ezekiel Elliott Case, ESPN, (Sept. 18, 2017).

Michael McCann, Ezekiel Elliott’s Legal Saga is Just Getting Started, Sports Illustrated, (Sept. 6, 2017).

NFL Players Ass’n v. NFL, 2017 U.S. Dist. LEXIS 146027 (E.D. Tex. 2017).

Schuyler Dixon, Judge Blocks Ezekiel Elliott’s 6-Game Suspension Over Domestic Violence Case, Chicago Tribune (Sept. 8, 2017).

Schulyer Dixon, NFL Trying to Speed Appeal over Blocked Ezekiel Elliott Suspension, The Denver Post, (Sept. 14, 2017).

Will Brinson, The NFL Wants an Ezekiel Elliott Ruling by Sept. 26 and has a Good Argument, CBS SPORTS (Sept. 15, 2017).

Rescinding DACA: What that means and what comes next

Written By Katie M. Becker

“A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” Arizona v. United States, 132 S.Ct. 2492, 2499 (2012).

 

Background

On Tuesday, September 5, 2017, Attorney General Jefferson Sessions publically announced the rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. In his public remarks, Attorney General Sessions described the DACA program as “an unconstitutional exercise of authority by the Executive Branch.” He analogized the fate of DACA with that of its extension program, Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”), which was nationally enjoined in the Fifth Circuit’s 2015 decision, Texas v. U.S., 809 F.3d 134. The nationwide injunction was effectively affirmed in 2016 by the Supreme Court of the United States in a one-sentence decision, after a 4-4 split vote.

In addition, President Donald J. Trump also issued a statement stressing his administration’s views that DACA is inherently unconstitutional. He noted that “officials from [ten] state[s] are suing over the program,” pressuring the Administration “to make a decision regarding [the program’s] legality.” President Trump remarked that he had been assured by the “Attorney General of the United States, the Attorneys General of many states, and virtually all other top legal experts” that “the program is unlawful and unconstitutional and cannot be successfully defended in court.” His remarks were largely informed by the outcome of the 2016 Supreme Court decision.

Following Attorney General Sessions’ and President Trump’s statements, the Acting Secretary of the Department of Homeland Security (“DHS”), Elaine Duke, issued a memo to the Department formally rescinding the June 15, 2012 Obama Administration memo that established DACA.

Deferred Action for Childhood Arrivals (DACA)

On June 15, 2012, under the Obama Administration, DHS Secretary Janet Napolitano issued a memo directing the agency to defer the initiation of removal proceedings against individuals who satisfied five criteria: (1) the individual came to the United States under the age of sixteen; (2) the individual continuously resided in the United States for at least five years prior to June 15, 2012; (3) the individual was currently enrolled in school, graduated from high school, obtained a GED certificate, or received an honorable discharge from the Armed Forces or U.S. Coast Guard; (4) the individual had not been convicted of a felony, a significant misdemeanor, or multiple misdemeanor offenses, and did not pose a threat to national security; and (5) the individual was, at the time of filing, no older than 30-years-old. Individuals who satisfied all five criteria, and passed a background check, were deemed eligible for deferred action.

Deferred action is an exercise of prosecutorial discretion, where DHS impliedly confers temporary lawful status upon eligible applicants while the agency foregoes initiating removal proceedings against them. The exercise of prosecutorial discretion is a hallmark of the American immigration system. This ability is limited to federal agency officials, and statutory restrictions protect the exercise from judicial review. Generally, this excludes the jurisdiction of courts to review an agency’s exercise of prosecutorial discretion.

Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)

On November 20, 2014, under the Obama Administration, DHS Secretary Jeh Johnson issued a memo announcing the expansion of the DACA program. The memo modified DACA to increase the scope of the program’s existing protected class. It also extended deferred action eligibility to a new class: the parents of children who were United States citizens or lawful permanent residents. The expansion “supplement[ed] and amend[ed]” the Napolitano memo. Like DACA, it was framed around the agency’s exercise of prosecutorial discretion.

Johnson’s memo expanded the scope of the existing DACA class in three ways: (1) it removed the 30-year-old applicant age cap; (2) it extended the renewal process to cover three years, as opposed to two years; and (3) it pushed back the arrived-in-the-United-States date from June 15, 2007, to January 1, 2010.

Significantly, DAPA also expanded deferred action eligibility to the parents of children who were United States citizens or lawful permanent residents. Individuals eligible for membership in the new class were required to satisfy six criteria: (1) the individual had to have a child who was a U.S. citizen or lawful permanent resident, as of November 20, 2014; (2) the individuals had to reside in the United States prior to January 1, 2010; (3) the individual had to be physically present in the United States, as of November 20, 2014; (4) the individual could not have lawful status; (5) the individual could not otherwise be considered a DHS enforcement priority; and (6) the individual’s application could not present any factors that would make deferred action inappropriate.

DAPA Litigation

District Court for the Southern District of Texas (2015)

In 2015, Texas, and 26 other states and state officials, filed suit in the U.S. District Court for the Southern District of Texas, against the United States and the DHS, to nationally enjoin the implementation of DAPA. The court was confronted with three issues: (1) whether Plaintiffs had sufficient standing to maintain a suit in federal court; (2) whether the DHS had the power to initiate the DAPA program; and (3) whether the program itself was constitutional.

In its pleadings, Plaintiffs argued that DAPA violated the “Take Care” Clause of the Constitution, as well as the Administrative Procedure Act (“APA”). The Government argued that acts of prosecutorial discretion were not subject to the APA and that DAPA’s criteria were “merely general guidance,” entitled to exemption from APA rulemaking procedures.

The court rejected the Government’s argument and found that judicial review was available under the APA, categorizing DHS’ actions, not as a failure to initiate removal proceedings (which would be precluded from judicial review), but as the conveyance of temporary legal status on the individuals to whom it granted deferred action. Ultimately, the court found that DAPA was subject to APA rulemaking procedures, and Plaintiffs “clearly prove[d] a likelihood of success on the merits” of their claim for the purposes of granting a temporary injunction

United States Court of Appeals for the Fifth Circuit (2015)

In 2015, the Government appealed, moving for a stay of the lower court’s decision. The Fifth Circuit affirmed the judgment. Significantly, the Fifth Circuit rejected the Government’s argument that the District Court’s injunction was limited only to Texas and the 26 other states that made up the Plaintiffs’ class, confirming the nationwide injunction on the program.

Supreme Court of the United States (2016)

In a per curiam opinion, the Supreme Court affirmed the ruling of the Fifth Circuit, with a 4-4 split vote. The opinion is a single sentence, and it serves as binding authority only within the Fifth Circuit.

DACA’s Future

Congressional Action

Congress has been unsuccessful, thus far, in offering comprehensive immigration reform. The Trump Administration continues to renew its stance on the issue, thereby forcing Congress’ hand and creating a somewhat impending political struggle that The Hill has already termed a “legislative arms race.”

Rep. Mike Coffman (R-Co.) initially introduced a “discharge petition” to force a vote on a bill which would have extended DACA permits and forced Republicans to immediately take up the issue. He later withdrew the petition after House Speaker Paul Ryan clarified the view on what would constitute “acceptable” DACA legislation.

In a show of bipartisanship, it is reported that Congressional leaders met on Wednesday, September 13, 2017, to discuss legislative options for DACA. Minority Leader Nancy Pelosi, House Speaker Ryan, Chairs of the Congressional Black, Hispanic and Asian Pacific Caucuses, the House Majority Leader and the Minority Whip were in attendance. Congress will have to overcome internal differences between their Congressional representatives in order to secure votes for a bipartisan piece of legislation.

Action in the Courts

The rescission of DACA spurred significant filings within District Courts across the country. In the Eastern District of New York, the democratic attorney generals of fifteen states and the District of Columbia jointly filed suit against the Trump Administration. The suit alleged that the Trump Administration had discriminatory motive in rescinding DACA, pointing to prejudicial statements made by the President during his presidential campaign.

A few days after that suit was filed, four more states jointly filed a separate suit. Spearheaded by California Attorney General Xavier Becerra, the suit challenged the rescission, calling it a violation of Due Process. The Department of Justice has responded to both suits, reasserting its prior arguments that DACA is unconstitutional.

A third suit was filed by former DHS Secretary Napolitano and the University of California school system.

With a fully staffed Supreme Court, and an issue ripe for review, the country will soon see if the Trump Administration’s rescission of DACA will stand, as well as whether the Fifth Circuit’s decision in U.S. v. Texas is an accurate predictor of the constitutionality of the program.

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Sources Cited

Memorandum from Janet Napolitano, Secretary of the Department of Homeland Security, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).

Memorandum from Jeh Johnson, Secretary of the Department of Homeland Security, to Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014).

Memorandum from John F. Kelly, Secretary of the Department of Homeland Security to Kevin K. McAlcenan, Acting Commissioner, U.S. Customs and Border Protection, et al., Rescission of November 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) (June 15, 2017).

Jefferson Sessions, Att’y General of the U.S., Att’y General Sessions Delivers Remarks on DACA (Sept. 5, 2017).

Donald Trump, President of the U.S., Statement from President Donald J. Trump (Sept. 5, 2017).

Memorandum from Elaine C. Duke, Acting Secretary of the Department of Homeland Security to James W. McCament, Acting Director, U.S. Citizenship and Immigration Services, et al., Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (Sept. 5, 2017).

Arizona v. United States, 132 S.Ct. 2492 (2012).

Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015).

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015).

Holman v. Obama, 2016 WL 845310 (D. Nev. 2016).

Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

U.S. v. Texas, 136 U.S. 2271 (2016).

Immigration and Nationality Act §242(g), codified at 8 U.S.C.A §1252(g) (2012).

Kurtis A. Kemper, Department of Homeland Security’s Program of Deferred Action for Childhood Arrivals (DACA), 17 A.L.R. Fed. 3d Art. 3 (2016).

Administrative Procedures Act §553, 5 U.S.C.A. §553 (2012).

Heather Caygle, House leaders to meet on future of Dreamers, Politico (Sept. 12, 2017, 8:41 PM).

Jordain Carney, Immigration arms race begins on Capitol Hill, The Hill (Sept. 12, 2017).

Yamiche Alcindor, Action to Protect Young Immigrants Already Stumbles in Congress, The New York Times (Sept. 12, 2017).

Sarah Binder, This is why Congress will have a hard time legalizing DACA, The Washington Post (Sep. 7, 2017).

Madeline Conway, 15 states and D.C. team up to challenge Trump on Dreamers, Politico (Sept. 6, 2017).

David Siders, California files suit against Trump on DACA, Politico (Sept. 11, 2017).

Michael D. Shear, Napolitano Sues Trump to Save DACA Program She Helped Create, The New York Times (Sept. 8, 2017).

Christina Marcos, Some GOP lawmakers are battling Trump and their party on DACA, The Hill (Sept. 1, 2017).

Harry Enten and Perry Bacon, Jr., Trump’s Hardline Immigration Stance Got Him To The White House, FiveThirtyEight (Sept. 12, 2017).

Mica Rosenberg, States file lawsuit challenging Trump decision on Dreamers, Reuters (Sept. 6, 2017).

Bill Nye Sues Disney Alleging Millions in Profits Distribution Withheld

Photo via Netflix USA
Written By Selin Demir

 

Background

Last Thursday, attorneys for Bill Nye filed a lawsuit in the Los Angeles Superior Court alleging Walt Disney Company (“Disney”) and its subsidiary, Buena Vista Television (“Buena Vista”), deprived Nye and other owners of “Bill Nye the Science Guy” of approximately $28 million in distribution profits.

Discussion

“Bill Nye the Science Guy,” starring Nye, originally aired for five seasons from 1992 to 1997. The show was successful, earning 19 Emmy Awards and a Television Critics Association award. Today, nearly 25 years after its first broadcast, the show airs in limited syndication and is sold to educators across the country as an academic aid with supporting lesson plans.

According to the lawsuit, in March of 1993, Buena Vista entered into an agreement with the owners of the show, including Nye himself, to market and distribute it. Under the agreement, the owners are collectively entitled to half of the net profit derived from the distribution of the show, with Nye being entitled to 33% of that half (or 16.5% of the total net profit).

In April of 2008, Buena Vista sent Nye a statement for the previous year, along with a payment of $585,123. Just three months later, however, Buena Vista sent Nye a letter retracting the April statement due to an “accounting error.” The letter also stated that Nye owed $496,111 back to Buena Vista and that he would not receive further royalty payments until it was done.

In the complaint, Nye alleges that his attempts to negotiate with Buena Vista and Disney over the statements lasted four years before he was “left with no choice but to hire a professional auditor to examine Buena Vista’s records.” When the hired auditor made attempts to conduct the audit, Nye alleges that Disney found ways to stall the investigation until May of 2016.

When the audit commenced, Nye alleges that Disney and Buena Vista both failed to produce essential documents, claimed to be “outside of the scope of the audit,” and was denied access to any information related to revenue that Disney or Buena Vista received for any exploitation of the show, among other things.

Despite this limited access, the auditor provided Nye with preliminary findings that identified underreported royalty payments owed to Nye that total approximately $9,350,565. Nye concluded that, because Disney is such a large company with a “well-staffed and well-trained accounting department,” it was aware of its wrongdoing and willfully deceived the owners of the show in an effort to deprive them of their earned share of profits from the series. The complaint further alleges that Disney continued its wrongdoing by withholding documents and other essential information to prevent the auditor from being able to fully assess the damage caused by Disney and Buena Vista.

Nye is seeking, among other remedies, a court order compelling Disney and Buena Vista to account for all of the money Nye is owed, plus a disgorgement of all profits that are in receipt of the alleged fraud, plus compensatory and punitive damages, and attorney’s fees.

While Disney has not made an official comment, a representative for Buena Vista sent a statement to The Hollywood Reporter stating: “This lawsuit is a publicity ploy and we look forward to vigorously defending it.”

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Sources Cited

Ashley Cullins, Bill Nye Says Disney Shorted Him Millions in New Fraud Lawsuit, The Hollywood Reporter (Aug. 24, 2017, 7:29 PM).

Complaint and Demand for Jury Trial, Nye v. Walt Disney Co., No. BC-673736 (Super. Ct. Cal. Aug. 24, 2017).

Feature photo courtesy of Netflix USA.