The Travel Ban: Where does it stand now?

Written By Maria C. Zumpano

 

On October 10, 2017, the United States Supreme Court vacated the Fourth Circuit Court of Appeals’ judgment in Trump v. International Refugee Assistance Project and remanded it to them to dismiss as moot. So, where does the travel ban stand now?

Background

On January 27, 2017, President Donald J. Trump issued Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” commonly known as the “Travel Ban.” After the Ninth Circuit blocked that Executive Order on March 6, 2017, President Trump issued Executive Order 13780, replacing the first travel ban.

The new travel ban placed a 90-day freeze on travel to the United States from six “Muslim-majority” countries and placed a 120-day suspension for admission of refugees into the United States, effective March 16, 2017. On May 25, 2017, the Fourth Circuit upheld the Maryland District Court’s decision to block the ban.

On June 1, 2017, the Department of Justice filed separate petitions with the Supreme Court of the United States to review the Fourth Circuit’s decision and to seek stay of both the Fourth Circuit’s and Ninth Circuit’s injunctions.

On June 14, 2017, to clarify confusion on when the 90-day freeze and 120-day suspension would expire, President Trump issued a memorandum declaring “the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision[,]” thus extending the freeze and suspension to September 24, 2017.

On June 26, 2017, the Supreme Court granted certiorari and granted the stay applications in part. The Supreme Court combined the Fourth Circuit and Ninth Circuit cases for oral argument, which was scheduled to take place October 10, 2017.

Update

On September 24, 2017, President Trump issued a proclamation that continued to restrict travel to the United States. President Trump stated that he “must act to protect the security and interests of the United States” and he was committed to the “ongoing efforts to engage those countries willing to cooperate, improve information-sharing and identity-management protocols and procedures, and address both terrorism-related and public-safety risks.” President Trump commended the countries that “have made strides to improve their protocols and procedures” but noted that some countries still had inadequacies that posed significant challenges. As a result, Sudan was removed from the travel ban, but Chad, North Korea, and Venezuela were added.

Consequently, the Supreme Court cancelled the arguments scheduled for October 10, 2017, because President Trump had, in essence, created another travel ban upon the expiration of the 90-day freeze.

What does the Supreme Court’s October 10 ruling mean?

The only decision provided by the Supreme Court is its grant in part of the stay requested by the Department of Justice. By the time oral arguments were set, the provisions of the travel ban had already expired, and on September 24, 2017, a new travel ban was issued. As there was no longer a “live case or controversy,” the Supreme Court deemed the challenge to the travel ban as moot. The Supreme Court has not expressed a view on the merits one way or the other about the travel ban.

What does this mean going forward?

The Supreme Court’s order did not apply to the Ninth Circuit’s case, as the 120-day suspension of the refugee program is still in effect; however, that suspension will expire on October 24, 2017, at which time it appears that it will become moot as well.

Aside from lawsuits, there are alternatives in the works to consider what limits should be placed on new persons arriving from countries that are believed to be a threat to the United States’ security.

For example, Congress is considering the following bills:

• R. 495: Protection of Children Act of 2017;

• R. 391: Asylum Reform and Border Protection Act of 2017;

• R. 2431: Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act;

• R. 3711: Legal Workforce Act; and

• 1720: Reforming American Immigration for a Strong Economy (RAISE) Act.

Considering the foregoing, however, the new travel ban is likely to be challenged until the travel ban is finally heard by the Supreme Court and decided on the merits. It is expected that challenges to President Trump’s September 24 proclamation will soon be underway. We will have to wait and see how potential lawsuits and other alternatives will play out.

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Sources Cited

Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017).

Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017).

Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017).

Int’l Refugee Assistance Project v. Trump (Int’l Refugee I), 857 F.3d 554 (4th Cir. 2017).

Int’l Refugee Assistance Project v. Trump (Int’l Refugee II), 241 F. Supp. 3d 539 (D. Md. 2017).

Presidential Memorandum for the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence, WhiteHouse.gov, (June 14, 2017).

Trump v. Int’l Refugee Assistance Project (Trump I), 137 S. Ct. 2080 (2017).

Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 24, 2017).

Trump v. Int’l Refugee Assistance Project (Trump II), No. 16-1436, 583 U.S. __ (Oct. 10, 2017) (Vacating judgment in Trump I and remanding to the Fourth Circuit to dismiss as moot).

Trump v. Int’l Refugee Assistance Project (Trump III), No. 16-1436, 582 U.S. __ (Sept. 25, 2017) (Directing the parties to file briefs addressing the September 24, 2017 Proclamation and cancelling arguments, pending further order of the Court).

Amy Howe, Justices end 4th Circuit travel-ban challenge, SCOTUSblog (Oct. 10, 2017).

Andy J. Semotiuk, America Braces For Trump’s New Expanded Immigration Travel Ban, Forbes (Sept. 24, 2017).

Madness Comes Early for NCAA Division I Men’s Basketball

Written By Christina Graziadei

 

The National Collegiate Athletic Association (NCAA) men’s basketball world got an early dose of madness this year. On Tuesday, September 26, 2017, the FBI made ten arrests, including four NCAA Division I men’s basketball coaches.

  • Chuck Person – associate coach at Auburn University
  • Lamont Evans – associate head coach at Oklahoma State University
  • Emanuel “Book” Richardson – assistant coach at University of Arizona
  • Anthony “Tony” Bland – associate coach at University of Southern California

These four coaches were arrested in connection with two related fraud and corruption schemes, and they have been charged with wire fraud, bribery, travel act, and conspiracy offenses. These charges prime each coach with up to eighty years imprisonment. In addition to these individuals’ criminal charges, the schemes open each coach’s respective university up to serious potential NCAA consequences, including fines, penalties, and the loss of eligibility to compete in NCAA events.

Background

The FBI and the United States Attorney’s Office for the Southern District of New York have been investigating the criminal influence of money on student-athletes and coaches in NCAA men’s basketball for two years. During this investigation, two related schemes were uncovered: the “Coach Bribery Scheme” and the “Company-1” scheme.

The “Coach Bribery Scheme” involves advisors of athletes, who allegedly bribed assistant and associate head basketball coaches. Sometimes, with the facilitation of the coaches, the bribes were paid directly to the student-athlete. As part of the scheme, the coaches agreed to convince student-athletes to retain the services of the bribe-payors once the athletes began their professional careers in the National Basketball Association (NBA).

The “Company-1 Scheme” involved advisors of athletes working with high-level “Company-1” employees, who allegedly bribed current and prospective student-athletes and their families, in exchange for a commitment by the athletes to attend a specific university sponsored by “Company-1.” There was also a further promise to sign agreements to be represented by the bribe-payors once the student-athletes began their professional careers in the NBA.

Allegations Against Coaches

Specifically, it is alleged that Person (Auburn University) solicited over $90,000 in bribe payments from a financial advisor and business manager for professional athletes, whom he did not know was providing information to law enforcement. Person facilitated several meetings between this advisor and players and/or their families, but he did not disclose to the players that he was being bribed to recommend the advisor. It is further alleged that Person gave over $18,000 of the bribe money that he received to the families of two student-athletes that he encouraged to retain the advisor.

Similarly, Evans (Oklahoma State University) solicited at least $22,000 from the same advisor/informant, in addition to another advisor, in exchange for his agreement to steer some of his players at two NCAA Division I universities toward retaining the advisors when their professional careers began.

The complaint further alleges that Richardson (University of Arizona), received about $20,000 in bribes from the same advisor/informant, as wells as two undercover law enforcement agents posing as the advisor’s financial backers, for his promise to convince his players to retain the services of certain advisors. It is also believed that Richardson provided some bribery money to at least one high school basketball player in exchange for his commitment to attend and play for his university.

With respect to Bland (University of Southern California), it is alleged that he paid or arranged the payment of at least $13,000 in bribes, in exchange for his agreement to steer some of his student-athletes to retain certain business managers once they began their professional career. It is further alleged that Bland paid or facilitated the payment of $9,000 to the families of two student-athletes in return for setting up a meeting between the family member of the player and certain business managers to convince the player to retain their services.

What Comes Next

According to the criminal complaints filed by the U.S. Attorney for the Southern District of New York, the four coaches were charged under six sections of Title 18 of the United States Code, namely, section 371 (Conspiracy to Commit Offense or to Defraud the United States), section 666 (Theft or Bribery Concerning Programs Receiving Federal Funds), section 1343 (Fraud by Wire, Radio, or Television), section 1346 (Definition of “Scheme or Article to Defraud”), section 1349 (Attempt and Conspiracy), and section 2 (Principals).

In more recent news, the government has brought these sorts of charges and allegations against politicians who abuse their position for personal gain. However, 18 U.S.C. § 666, the federal program bribery statute, effectively turns persons working at private universities into public employees. Consequently, it is a crime for officials of any organization or agency that receives benefits in excess of $10,000 under a Federal program to accept anything of value “intending to be influenced or rewarded in connection with any business, transaction or series of transactions” of the organization employing them. Additionally, under the honest services fraud statute (18 U.S.C. § 1346), schemes to defraud include those which deprive “another of the intangible right of honest services.” It is alleged that these coaches violated this statute by profiting off of NCAA violations at the expense of their respective universities.

This complex investigation has the potential to become even more involved, with more schools being watched, and the FBI setting up a special telephone number to receive tips on other violations. While the start of the season right around the corner and future of some programs uncertain, one thing is for sure: NCAA Division I men’s basketball is in for a little extra madness this year.

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Sources Cited

Complaint, United States v. Evans, Richardson, and Bland, Sep. 25, 2017.

Complaint, United States v. Person and Michel, Sep. 25, 2017.

Peter J. Henning, Taking a New Strategy to Court in N.C.A.A. Case, N.Y. Times, Oct. 4, 2017.

Press Release, U.S. Att’y Office S.D.N.Y., U.S. Attorney Announces the Arrest of 10 Individuals Including Four Division I Coaches, For College Basketball Fraud and Corruption Schemes (Sep. 26, 2017).

Photo courtesy of NCAA.

 

 

Syngenta Settles U.S. Corn Litigation

Written By Erika Hooker

 

On Tuesday, September 26, 2017, Syngenta agreed to settle one of the largest legal battles in the company’s 17-year history.

Background

Syngenta is a Swiss-based agribusiness, with customers across the globe. In 2010, Syngenta began selling “a strain of insect-resistant GMO corn called Agrisure Viptera” in the United States, as well Agrisure Duracade, another string of GMO corn.

In the United States, the process of commercialization for seeds with GMO traits requires several approvals from different federal agencies, where representations about the new GMO trait must be made. In its petition for deregulation, Syngenta stated that the two new GMO traits would not affect the U.S. corn export markets. It also stated in its petition that applications for approval with export market countries were underway and that Syngenta would educate its growers in order to keep the seed away from markets where it was not yet approved.

In 2010 and 2013, the traits were deregulated in the United States, and the varieties containing the genes were commercialized for the growing seasons. During the 2012 and 2013 growing seasons in the U.S., Syngenta sold even more Viptera than the first year and did not require growers to implement any practices to reduce cross-pollination and contamination. Through cross-pollination, the GMO traits in Viptera contaminated corn grown by farmers who had not purchased Syngenta’s seeds. Additionally, both Viptera and Duracade corn was commingled at grain elevators and storage facilities.

Syngenta originally applied for import approval from China in 2010, but it was not granted approval until December of 2014, three years after the commercialization of Viptera. Consequently, in November of 2013, China began rejecting all corn from the U.S. containing the GMO trait, saying it was contaminated. Due to cross pollination and contamination, banned corn included even that from farmers who had not purchased Syngenta seed.

Consequently, farmers sued Syngenta, stating through their lawyers that “Syngenta negligently commercialized the seeds before obtaining import approval from China, then a major buyer of U.S. corn.”

Discussion

This major settlement, approximated to pay out close to $1.5 billion, came amid a trial in Minnesota state court in which “around 22,000 farmers were seeking $400 million.” It was also on the heels of a $218 million-dollar award to farmers in Kansas from a federal jury trial, in addition to numerous other pending lawsuits where farmers were suing Syngenta.

The affected farmers claimed that the loss of the Chinese market caused corn prices to decrease significantly in the U.S., creating significant economic harm to them. Additionally, the farmers involved in the lawsuit argued that (a) Syngenta misrepresented how it would control Viptera from contaminating other crops, (b) Syngenta commercialized Viptera, knowing China would not approve the GMO traits until sometime after the trait had entered export markets, and (c) Syngenta actively misled both farmers and grain storage companies about the importance of the Chinese market and the imminence of its approval. The farmers also claimed that Syngenta knew China was a large and growing export market for U.S. corn.

Syngenta responded by pointing to biotechnology industry lists from the years 2007 and 2009 – the years just prior to the deregulation of the GMO traits – which did not list China as a key import country for corn. Additionally, Syngenta argued that two droughts in the years leading up to the release of Viptera had increased corn prices, while a good year the same time Viptera was released set off a surplus season, dropping prices.

Ultimately, a settlement was reached. According to Syngenta spokesman Paul Minehart, the $1.5 billion dollar sum is a settlement with more than 100,000 farmers, and resolves all U.S. farmers’ litigation.

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Sources Cited

Geoff Colvin, Inside China’s $43 Billion Bid for Food Security, Fortune Finance (April 21, 2017).

In re Syngenta Litig., No. 27-CV-15-3785, 2016 Minn. Dist. LEXIS 6 (Minn. Dist. Ct. April 7, 2016).

Jef Feeley and Margaret Cronin Fisk, Syngenta Agrees to Pay More than $1.4 Billion in Corn Accord, Bloomberg Markets (Sept. 26, 2017).

Todd Neeley, Syngenta’s Viptera Corn: Trial Dates Set in 7 of 22 Class-Action Lawsuits-DTN, Ag Fax (July 10, 2017).

Photo courtesy of Farm Journal.

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).

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.

Received or Not? That is the question.

Written by Grace Ha Eun Hwang

 

Abstract: The Third Circuit Court of Appeals held that in order for goods to be considered “received” under section 503(b)(9) of the Bankruptcy Code, goods must be delivered into the physical possession of the debtor or its agents within 20 days before the debtor files for bankruptcy.

***

On July 10, 2017, the Third Circuit clarified what would happen if a creditor sold goods to a debtor soon before the debtor files a Chapter 11 bankruptcy.

Traditionally, under 11 U.S.C. § 503(b)(9), creditors may recover the value of the good that they sold to the debtor if the good was received by the debtor within 20 days before the bankruptcy petition was filed. But what exactly does “received” mean? In re World Imports answered this question.

In In re World Imports, appellants Haining Wanshen Sofa Company (“Haining”) and Fujian Zhangzhou Foreign Trade Company (“Fujian”) were Chinese companies that sold and shipped furniture to World Imports, a furniture retailer in the United States. Goods were typically shipped from China to the United States “free on board.”

Both the Creditors (Haining and Fujian) and Debtor (World Imports) agreed to the following facts:

Haining’s shipment of goods to World Imports left China on May 26, 2013

Fujian’s three separate shipments of goods to World Imports left China on May 17, May 31, and June 7 of 2013

World Imports took physical possession of Haining’s shipment in the United States on June 21, 2013

World Imports accepted all three of Fujian’s shipments in the United States within 20 days of July 3, 2013, the day on which World Imports filed its Chapter 11 petition

After gaining wind of World Import’s bankruptcy filing, both Haining and Fujian filed Motions for Allowance and Payment of Administrative Expense Claims (“the Motion”) pursuant to 11 U.S.C. § 503(b)(9). Under this administrative claim, if successful, creditors are able to reclaim payments in full value of the goods received by the debtor.

Both creditors claimed that they were entitled to relief under § 503(b)(9) because the goods were sold in the ordinary course of business to the debtor and were received by the debtor within 20 days before the debtor filed for bankruptcy. The Bankruptcy Court hearing the original motion disagreed. The Bankruptcy Court denied the Appellants’ motions after concluding that the goods were “constructively received” when they were shipped from China. The Bankruptcy Court relied on the definition of “received” under the Contracts for the International Sale of Goods (CISG) which allowed receipt by delivery to a common carrier.  The District Court affirmed the Bankruptcy Court’s ruling and the Appellants appealed to the Third Circuit.

The Third Circuit reversed the lower courts’ rulings. The Third Circuit looked to the ordinary meaning and the statutory context and found that the term “received” required physical possession.

When looking at the ordinary meaning of the term, the Court found that the Black’s Law Dictionary and the Oxford English Dictionary both interpreted the term “received” to require some type of physical possession. The Court also found that the UCC defined “receipt” of goods as taking some sort of physical possession of them. The Court then concluded that Congress could not have meant to deviate from all these well-known definitions when it adopted 11 U.S.C. § 503(b)(9).

Next, the Court looked to the statutory context surrounding 11 U.S.C. § 503(b)(9). The Court noted that because § 503(b)(9) was enacted to provide exemptions to the rules provided in § 546(c), the interpretation of the term “received” must be consistent between the two sections. The Court then looked to the ruling in In re Marin Motor Oil, 740 F.2d 220 (3d Cir. 1984) which interpreted § 546(c). In re Marin Motor Oil held that the term “received” meant the same as defined in the UCC, namely that taking physical possession is required for goods to be considered “received.” Since § 503(b)(9) has an interrelationship with § 546(c), the Third Circuit concluded that it would be greatly deviating from well-established authority if it did not also follow the UCC’s definition. The Court was also quick to note that even if the risk transfers upon shipment of goods, common carriers are not agents and thus goods are not received even when risk is transferred.

Because World Imports received their goods through a common carrier outside of the 20-day period but actually physically received possession of the goods within the 20-day period before filing for bankruptcy, both Haining and Fujian qualified for relief.

This ruling not only clarified the meaning of the term “received” but also illustrated the weighty consequences of choosing the method of acceptance for shipped goods.

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Source Cited

Haining Wansheng Sofa Co., Ltd. V. World Imports Ltd. (In re World Imports, Ltd. Et al.), No. 16-1357, 2017 WL 2925429 (3d Cir. Mar. 8, 2017).

District Court: EPIC Cannot Compel President Trump’s Tax Returns

Written By Sam Cohen

Abstract

On August 18, 2017, District Judge James E. Boasberg, of the U.S. District Court for the District of Columbia, dismissed Electronic Privacy Information Center’s (“EPIC”) complaint, which requested that President Donald J. Trump disclose his tax returns.

Background

On February 16, 2017, EPIC requested all of Donald J. Trump’s individual income tax returns dating back to 2010, in addition to filing a Freedom of Information Act (“FOIA”) request that he disclose any financial relationships with the Russian government or Russian businesses. The requests were denied because they failed to comply with the published rules and were deemed incomplete requests that the IRS could not process.

After the denial, EPIC filed another request, this time claiming a right to the documents under § 6103(k)(3) of the IRS code. This request was also denied, and the following lawsuit was filed in response.

Discussion

FOIA requests have two requirements: (1) that a request reasonably describes the records sought, and (2) that a request follows the agency’s published rules of stating the time, place, fees (if any), and procedures to be followed. The published rules of the IRS on FOIA procedures can be found in Treasury Regulation § 601.702.

In order for a FOIA application to be considered complete, the subject of the request must give consent. Without consent, the application is incomplete. In EPIC’s case, the requests were filed without the consent of President Trump; therefore, the IRS had no choice but to close the request file without granting the application. The court confirmed that such IRS regulations are reasonable and should be upheld.

EPIC’s second FOIA request was premised on § 6103 of the IRS code, which allows the IRS to disclose records, in limited circumstances, without the consent of the subject. The specific subsection upon which EPIC based its claim was § 6013(k)(3), which can be used to disclose tax returns to correct misstatements of fact. The misstatements alleged by EPIC were tweets by President Trump. Two particular tweets provided such a basis:

“For the record, I have ZERO investments in Russia.” July 26, 2016 at 5:50 p.m. EST.

“Russia has never tried to use leverage over me. I HAVE NOTHING TO DO WITH RUSSIA – NO DEALS, NO LOANS, NO NOTHING!” Jan. 11, 2017 at 6:31 a.m. EST.

For the purposes of the motion to dismiss, the Court had to accept that these tweets were misstatements that could sufficiently trigger § 6013(k)(3), as the Government’s argument against the assertion was a single sentence without citation.

The Court subsequently found that the exceptions under § 6013(k)(3) may not be get around the consent requirement of the IRS regulations; however, for the sake of argument, the Court accepted that consent was not needed. Instead, the Court found that this exception could not be used at all. This is because, before the IRS has to disclose any information under this exception, a party must obtain the approval of the Joint Committee on Taxation. EPIC did not do so. Further, the Court noted that this provision had never successfully been used to compel the disclosure of IRS records, since the Joint Committee on Taxation has never exercised this authority with regard to any other parties.

Beyond this argument, EPIC also alleged two violations of the Administrative Procedure Act. Both were rejected by the Court. Because, the Court decided that there was no way for the judicial system to grant the relief sought by EPIC, the complaint was dismissed.

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Sources Cited

Elec. Privacy Info. Ctr. v. IRS, 2017 U.S. Dist. LEXIS 131911 (D.C. Cir. 2017).

Shayna Posses, Trump or Congress Must OK Tax Return Release, Judge Says, Law360 (Aug. 18, 2017).

 

Case Study: Roy Cockrum, et al. v. Donald J. Trump for President, Inc. and Roger Stone

Written By Nicole Macris

 

BACKGROUND

During the 2016 Presidential Election, an unidentified hacker broke into the Democratic National Convention’s database and stole more than one 100 accounts of donors, staffers, and supporters alike. WikiLeaks later received that information, making it public via its website on July 25, 2016. The hack left of individuals vulnerable and exposed. Three of the affected individuals–Roy Cockrum, Scott Comer, and Eric Schoenberg–have now brought suit to recover for their invasion of privacy.

DISCUSSION

The plaintiffs–two donors and one former DNC staffer– allege that the WikiLeaks disclosures have chilled participation in vital parts of the democratic process, campaign financing, and advocacy. Private identifying information–including social security numbers, dates of birth, addresses, and phone numbers–were made public, and they allege that this now subjects them to a potential lifetime of identity theft and subsequent credit complications.

Moreover, Cockrum’s donations to specific candidates running for public office, state Democratic parties, and the DNC were publicized, which, the Complaint alleges, resulted in a chilling effect with respect to future political contributions. Comer’s emails, discussing his conflicts with colleagues, health issues, and details of his sexual orientation, were also published. The dissemination of their private information and emails, the plaintiffs further allege, resulted in intimidation and fear of using normal technological means of communication for advocacy and financial purposes.

Consequently, on July 12, 2017, the plaintiffs filed suit in the U.S. District Court for the District of Columbia. The allegations set forth in the Complaint assert that the defendants violated the plaintiffs’ privacy rights by disseminating private information about them, in a conspiracy with Russian agents, by way of WikiLeaks, DCLeaks, and Guccifer 2.0, all in violation of 42 U.S.C. § 1985(3). Named as defendants are Donald J. Trump for President, Inc. and Roger Stone, an advisor to the 2016 Trump Campaign.

The Complaint further alleges that the defendants are liable for the public disclosure of private facts, pursuant to D.C. law. In order to prevail on this claim, the plaintiffs must prove “(1) publicity, (2) absent waiver or privilege, (3) given to private facts, (4) in which the public has no legitimate concern (5) and which would be highly offensive to a reasonable person of ordinary sensibilities[.]”

Case law dictates that the dissemination of personal information, such as Social Security numbers and identification information, falls within the “highly offensive” category of private information that should not be made public without waiver. The crux, however, is determining whether disseminating the private information falls within one of the three exceptions, namely, whether it is (1) “crucial to the vitality of democracy,” (2) of public concern regarding current events, public affairs, or (3) information that could protect others or is already of public record. The plaintiffs claim that the information published fails to fall within one of the aforementioned exceptions.

Nevertheless, one crucial question remains: are the defendants culpable for disseminating the plaintiffs’ information and emails? This is where the conspiracy claim comes into play; for without a connection to the third parties, the defendants may not be liable for the published information. Thus, 42 U.S.C. § 1985(3) applies in order to establish the causation of the alleged injuries. The plaintiffs specifically rely on the harm caused by intimidation and injury resulting from supporting one candidate over another, as set forth in the statute:

. . . conspir[acy] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy . . . .

Despite all of this, the Complaint turns on the connection between the defendants and third parties for the purposes of holding the defendants culpable for the entirety of the lawsuit. Without a finding of the alleged conspiracy, the entire cause of action could fail. Thus, this action depends on plaintiffs establishing their burden of proof with regard to the defendants’ alleged conspired with Russian agents, Gufficer 2.0, DCLeaks, and WikiLeaks.

Several points set forth in the complaint either state or add to the assertion that there was a connection between Trump for President, Inc., Roger Stone, and the aforementioned third parties. While many of the factual allegations set forth in the Complaint have been extensively covered and discussed in the media, the Complaint works to bridge the gap and form the conspiracy relationship by way of logical assertions.

• Paragraphs 9–10, 178, 180: United States government reports conclude that Russia is the culprit of the DNC hacking, and the defendants, thereafter, reaped the benefits;

• Paragraph 11: Trump for President campaign officials had/have ties to Russia, and use these ties to use the information hacked by Russia to their benefit;

• Paragraph 13: The campaign officials entered into agreements with Russia;

• Paragraphs 142–155: Defendants called attention to the hacked, and subsequently published, emails and information, and did so prior to the actual publication by WikiLeaks; and

• Paragraph 182: Defendants (1) denied Russia’s involvement, (2) undermined accountability efforts, and (3) concealed Russian contacts in order to further conceal involvement in the alleged conspiracy.

While this case is in its infancy, it is possible that the discovery, motions, and potential trial may lead to political and constitutional issues overwhelmingly more controversial than the DNC hack or alleged injuries at issue here.

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Sources Cited

Andy Wright, DNC Hack Victims Sue Trump Campaign and Roger Stone, Just Security (July 12, 2017).

Budik v. Howard Univ. Hosp., 986 F. Supp.2d 1 (D.D.C. 2013).

Cockrum, et al. v. Donald J. Trump for President and Stone, Complaint, Case No. 1:17-cv-01370, Dkt. No. 1 (July 12, 2017).

Eric Lichtblau and Eric Schmitt, Hack of Democrats’ Accounts Was Wider Than Believed, Officials Say, N.Y. Times, (Aug. 10, 2016).

Foretich v. Lifetime Cable, 777 F. Supp. 47 (D.D.C. 1991).

Grunseth V. Marriot Corp., 872 F. Supp. 1069 (D.D.C. 1995).

Susan Hennessey and Helen Klein Murillo, Is It A Crime?: Russian Election Meddling and Accomplice Liability Under the Computer Fraud and Abuse Act, Lawfare (July 13, 2017).

Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. 1989).