Forgetting the Crime: Death Penalty and Memory

Written by Cynthia Moore

On November 6, 2017, the Supreme Court decided Dunn v. Madison and held that, despite the inability to remember his crime, Vernon Madison was eligible to be executed by the State of Alabama.

Background

More than 30 years ago, Vernon Madison snuck up behind Julius Schulte, a police officer, and shot him twice at close range, killing him. Madison has been awaiting execution since 1985, when a jury convicted him of capital murder. In prison, Madison had a series of strokes, which caused him to suffer from vascular dementia, blindness, slurred speech, incontinence, and an inability to walk on his own. The strokes also caused him to forget the crime he was convicted of.

Procedural History

In 2016, nearing his execution date, Madison petitioned the trial court to suspend his death sentence, arguing that he had become incompetent for execution. The trial court denied his petition, citing two major Supreme Court cases, Ford v. Wainwright and Panetti v. Quarterman. Ford prohibited execution of the insane, and Panetti required prisoners to have a comprehension of the meaning and purpose of the punishment in order to be eligible for execution.

After hearing testimony from two psychologists who examined Madison’s competence, the trial court held that Madison was not entitled to relief because he failed to show that he “suffers from a mental illness which deprives [him] of the mental capacity to rationally understand that he is being executed as a punishment for that crime.” Additionally, the court held that he understood three important facts: (1) he would be executed for the murder he committed; (2) the State sought retribution for this crime; and (3) he would die when executed.

Madison subsequently petitioned the District Court for the Southern District of Alabama for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996, arguing that his mental condition barred him from execution. This Act entitles state prisoners to relief if they can show that the “state court’s decision was ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement’” —a demanding standard.

The District Court denied his petition, reaffirming the state court’s holding. However, the Eleventh Circuit granted a certificate of appealability and reversed the District Court’s ruling. Alabama appealed and the Supreme Court unanimously reversed the Eleventh’s Circuit’s ruling, holding that Madison could be executed by the State of Alabama because he recognized that he would be executed as punishment for the murder he was convicted for. The Court also held that “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.”

Constitutional Protections

The Eighth Amendment secures the right to be free from cruel and unusual punishment, which courts have interpreted to prohibit states from carrying out the death sentence on individuals who are not able to “rationally understand” why he/she is being punished (a standard applied by the Supreme Court in Panetti v. Quarterman). In Panetti, the Court held that a prisoner must have a rational understanding of the punishment, because without this understanding, it would undermine the purpose of executions. Nonetheless, the Supreme Court refused to set down a broad rule governing all competency determinations.

Concurrences

Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Sonia Sotomayor all concurred with the majority opinion in Madison, noting that this case stands for a “substantial question not yet addressed by the Court.” They noted that the limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 prevented consideration of whether the death penalty may be imposed on a person who has no memory of the offense.

Justice Breyer wrote a separate concurrence, stating that this case represents the problems with the administration of the death penalty. He argued that rather than focusing on specific circumstances of aging prisoners, it would be better to call into question the constitutionality of the death penalty itself. This is not the first time that Justice Breyer has questioned the constitutionality of the death penalty. He is known for urging reconsideration of the death penalty, opining in 2016 that it is “unreliable, arbitrary and shot through with racism.”

The Death Penalty in the United States

While 16 states do not have the death penalty, as of 2015, there were still 2,881 individuals sentenced to death in 2015. Moreover, there were 26 executions and 82 removals from death sentences by means other than execution in 2015. The Department of Justice has noted, however, that death sentences seem to be on a downward trend, as this is the 15th consecutive year in which the number of inmates sentenced to death decreased.

Aging on Death Row

As of 2013, almost one third of the oldest offenders (age 65 or older) were serving sentences of life imprisonment or were awaiting the death penalty. Aging in prison will likely become a more prominent issue, as the population aged 65-84 in the U.S. will grow from 11.3% in 2010 to an estimated 16.4% in 2050. The percentage of individuals aged 85 and over is estimated to grow from 1.8% in 2010 to 4.5% in 2050.

Alzheimer’s disease, a degenerative brain disease, is common among older adults. It is the most common cause of dementia, which is characterized by decline in memory and other cognitive skills. The projected number of adults age 65 and older with Alzheimer’s disease is estimated to almost triple from 4.7% in 2010 to 13.8% in 2050.

Given these trends, it is likely that this issue will be heard by the Supreme Court again very soon.

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Sources Cited

Dunn v. Madison, No. 17-193, 2017 U.S. LEXIS 6630 (2017).

Panetti v. Quarterman, 551 U.S. 930 (2007).

Ford v. Wainwright, 477 U.S. 399 (1986).

Madison v. Comm’r, Ala. Dep’t of Corr., 851 F.3d 1173 (11th Cir. 2017).

Ex Parte Madison, 718 So. 2d 104 (Ala. 1998).

Alzheimer’s Ass’n, 2016 Alzheimer’s Disease Facts and Figures, 5, 23 (2016).

Ann Carson & William J. Sabol, U.S. Dep’t of Just., Aging of the State Prison Population, 1993–2013, at 1, 5 (May 2016).

Sandra L. Colby & Jennifer M. Ortman, U.S. Dep’t of Com., The Baby Boom Cohort in the United States: 2012 to 2060, at 9 (May 2014).

Tracy Snell, U.S. Dep’t of Just., Capital Punishment, 2014–2015, at 1 (May 2017).

Alisa Johnson, SCOTUS Allows Execution of Prisoner with No Memory of Crime, Bloomberg BNA (Nov. 6, 2017).

Adam Liptak, Once Again, Justice Breyer Presses Case Against Death Penalty, N.Y. Times (Dec. 12, 2016).

Adam Liptak, Justices Allow Execution of Inmate Who Cannot Recall His Crime, N.Y. Times (Nov. 6, 2016).

Is Alcohol the New Tobacco?

Written By Jordan J. O’Connor

On October 25, 2017, New York City’s Metropolitan Transportation Authority (MTA) decided to ban all alcohol advertisements on its public transportation, set to take effect January 1, 2018. While this may only be a regional change, New York City’s MTA is the country’s largest transportation authority, and many people are wondering whether this will spark country-wide changes, similar to the ban on tobacco advertisements in the early 1990s.

How are these bans implemented?

Alcohol bans by transit authority have been enforced through three levels of policymaking: (1) contract requirement, (2) agency policy, and (3) government policy. Contract requirements are stated in the contract between the MTA and the advertiser. Agency policies are formally adopted by the administering body of the MTA, i.e., the board of directors. Finally, government policies are codified by the government body that has dominance over the MTA. This decision to ban alcohol advertisement on New York City’s public transportation came from the board of directors of the MTA.

New York City is, by no means, a trailblazer in this arena. Consequently, advocacy groups and opponents alike have been looking to other cities to make their best estimation as to how successful this ban will or will not be.

For example, stemming from a gubernatorial executive order, Maryland sought to prohibit alcohol advertisements on public transportation state-wide. Similarly, big cities such as Los Angeles, Boston, and Philadelphia imposed bans on alcohol advertising.

Though the aforementioned bans remain intact, two different large cities have overturned their bans. Washington D.C. overturned its ban on alcohol advertising in 2015, citing economic necessity as the reasoning. Chicago Transit Authority did the same; however, it chose to keep some restrictions in place, such as continuing to prohibit alcohol advertisements on buses and preventing alcohol advertisements from exceeding 9.99% of total advertising on the Chicago transit system at any one time.

So, is New York City’s ban a good thing?

Advocates of the ban have long compared it to tobacco ads, claiming that the advertisements are encouraging underage drinking. Alcohol ads, like the previous tobacco ads, portray typical users as attractive, young, and healthy people who like to have fun. Advocates have also argued that the ads target minority and lower-income communities, as was previously done by the tobacco companies.

In addition, one of the groups that was pushing for the ban, “Building Alcohol Ad-Free Transit,” found ad placements that it felt had the potential for sending harmful messaging to children who use the MTA as their means of transportation to school. Specifically, the group’s website displays examples, such as one where a poster for the kid-friendly movie “The Lorax” appears next to an ad for Michelob Ultra.

In contrast, opponents of the ban state that the real party affected by the ban is the alcohol industry. “Science and research show that there is no benefit to banning this type of advertising,” Jay Hibbard, vice president of government relations for the Distilled Spirits Council, said in an interview with the New York Times. “This is not advertising on school buses….This is advertising on a public transportation system.”

Opponents also argue that, statistically, New York’s underage drinking has declined by over 20 percent in the last ten years, and binge-drinking has reached an all-time low. Opponents use these and other facts to assert that it is the parents, and not the advertisements, that have the greatest influence on underage drinking.

So, will the New York City MTA ban on alcohol advertising stand the test of time, or will it crumble? Only time will tell.

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Sources Cited

Luis Ferré-Sadurní, M.T.A. Will Ban Alcohol Advertising on Buses and Subways, N.Y. Times (Oct. 25, 2017).

Danielle Furfaro, MTA will ban all alcohol advertisements from stations, N.Y. Post (Oct. 25, 2017).

Lyndsey Layton, New FDA rules will greatly restrict tobacco advertising and sales, Wash. Post (Mar. 19, 2010).

Paul Dugan, Metro board clears way for alcohol advertising in transit system, Wash. Post (Nov. 19, 2015).

E.J. Schultz, As alcohol ads sprawl elsewhere, New York buses and trains go dry, AdAge (Oct. 26, 2017).

Alcohol Justice, These Bus Ads Don’t Stop For Children: Alcohol Advertising on Public Transit (Oct. 2013).

Nixon signs legislation banning cigarette ads on TV and radio, History: This Day In History.

Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012).

Family Smoking Prevention and Tobacco Control Act, H.R. 1256, 111th Cong. (2009).

Is There Something Arbitrary about the NFL’s Arbitration Process?

Written By Tessa J. Kajdi

Background

Philadelphia Eagles lineman, Lane Johnson (“Johnson”), served a four-game suspension in 2014 for violating the National Football League’s (“NFL”) Policy on Performance-Enhancing Substances. Subsequently, during the 2016 season, Johnson was issued a 10-game ban by the NFL, which was upheld by the appointed arbitrator. This 2016 arbitration proceeding is the source of conflict between Johnson, the NFL, and the NFL Players Association (“NFLPA”). On January 6, 2017, Johnson sued both the NFL and the NFLPA in the U.S. District Court for the Northern District of Ohio. Upon a motion of the NFLPA, Johnson’s suit was moved to the U.S. District Court for the Southern District of New York in July of 2017. He subsequently filed a memorandum of law in support of his motion to vacate the arbitration award with the Southern District of New York on October 26, 2017.

In his filings, Johnson alleges that the NFLPA “disregarded the policy’s express arbitrator provisions,” and that the NFL as well as the arbitrator failed to disclose a conflict of interest between the arbitrator’s law firm and the league. Johnson alleges this failure to follow policy was a breach of duties under the Collective Bargaining Agreement (“CBA”) of the NFL and a breach of fair representation by the NFLPA. As to the NFL’s alleged breach, Johnson claims that the league failed “to allow an independent toxicologist to review Johnson’s alleged positive ‘B’ sample,” and, among other things, failed “to provide all relevant documents related to the dispute to Johnson’s attorneys for review.”

However, according to the NFLPA, Johnson “waived his objections” to the arbitrator “when consenting to him as the arbitrator.” The union contends that Johnson’s complaint should be dismissed for two additional reasons. One, Johnson knew of the arbitrator’s affiliation with a law firm that previously worked with the NFL. Two, Johnson has not proven that the arbitrator himself “worked on any of the matters the firm has handled for the NFL.”

NFL’s Policy on Performance-Enhancing Substances

The collectively-bargained NFL Policy on Performance-Enhancing Substances sets out clear provisions for “procedures in response to positive tests or other evaluation[s].” Additionally, it discusses “discipline for violations of law and other documented evidence-based violations” and shows a step-by-step process for related disciplinary actions.

Conflicting Precedents

Recently, in the NFL, there have been two methods for players challenging arbitration rulings they find unfair. The first method, evidenced by players like Tom Brady and Ezekiel Elliott, is to sue the NFL to challenge the arbitration process with the NFLPA’s support. The second and rarer method, evidenced by Mike Pennel and Lane Johnson, is to sue both the NFL and NFLPA.

In May 2015, Tom Brady was given a four-game suspension by the NFL for violating league policy. Brady and the NFLPA appealed the suspension, and the NFL agreed to have Commissioner Roger Goodell oversee the appeal. After Goodell upheld the suspension, the NFLPA and Brady sued the NFL in federal court, alleging that Goodell’s oversight was biased and violated Brady’s right for a fair arbitration hearing. The district court overturned Brady’s suspension in September 2015. However, this ruling was overturned by the Court of Appeals, which stated that Goodell was acting within his power under the CBA and, therefore, Brady was not deprived of his right to due process. Brady and the NFLPA did not appeal the decision to the Supreme Court.

Ezekiel Elliott was suspended by the NFL in August 2017 for violating the league’s domestic violence policy. Elliott appealed his suspension, and the NFL upheld it. Elliott and the NFLPA have since sued the NFL, asking for an injunction on Elliott’s suspension until the court has determined whether the NFL properly suspended Elliott. The NFL moved to dismiss the injunction request and decide the issue of whether the NFL has the power to suspend Elliott.

Mike Pennel was suspended for four games by the NFL in February 2016 for violating the NFL’s Policy on Performance-Enhancing Substances. He subsequently appealed the suspension. On November 30, 2016, Pennel sued the NFL and the NFLPA. He alleged that the NFL did not maintain a pool of three arbitrators to hear his appeal as required by the Policy on Performance-Enhancing Substances. At the time of the appeal, the NFL only had two arbitrators on the panel. The NFL added a third arbitrator after Pennel’s complaint. Subsequently, Pennel voluntarily dismissed his complaint against the NFL and the NFLPA.

Potential Impacts of Johnson’s Lawsuit

Although the NFLPA has been sued before by a player it represents, this method of challenging the arbitration process in the NFL is still uncommon. If Johnson is able to prevail on his claims against the NFL and the NFLPA, this may spark a trend in the way players challenge arbitration decisions in the future. Furthermore, Johnson’s lawsuit and its decision may affect future collective bargaining agreements between the NFL and NFLPA, in addition to influencing whether players trust the NFLPA to support them in dispute resolution.

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Sources Cited

Zachary Zagger, Union Defends NFL Arbitration In Drug Suspension Suit, Law 360, Oct. 26, 2017.

National Football League, Policy on Performance-Enhancing Substances (2016).

Marc Edelman, Lane Johnson’s New NFL Lawsuit Is Page Out Of A-Rod Playbook, Forbes, Jan. 7, 2017.

Michael McCann, Lane Johnson’s bold move to sue his own union is rare, but not unprecedented, Sports Illustrated, Jan. 11, 2017.

Ben Volin, Tom Brady officially files suit against the NFL, Boston Globe, July 29, 2015.

Zachary Zagger, NFL, Union Add Arbitrator In Drug Row, But Battles Remain, Law 360, Dec. 2, 2016.

Zachary Zagger, Packers Player Drops NFL Drug Suspension Dispute, Law 360, Dec. 19, 2016.

John Breech, Roger Goodell Will Hear Tom Brady’s Appeal; No Neutral Arbitrator, CBS Sports, May 15, 2015.

Photo courtesy of CBS Sports.

Presidential Tweeting Stirs Up Freedom of Information Act Controversy

Written By Hannah Redmond

Last week, a lawsuit was filed against the Central Intelligence Agency (CIA). The suit stems from a tweet made by President Donald J. Trump. On October 19, 2017, an investigative reporter for BuzzFeed, Jason Leopold, together with BuzzFeed, Inc., filed suit against the CIA. Their issue? The CIA failed to produce documents Leopold requested under the Freedom of Information Act (FOIA).

Background

On September 12, 2017, Plaintiffs submitted a FOIA request to the CIA generally seeking all documents, emails, Congressional correspondence, and records “mentioning or referring to CIA payments to Syrian rebels fighting Assad.” Plaintiffs received confirmation from the CIA that their request was received. However, Plaintiffs never received the information they requested.

Plaintiffs’ request was prompted by a tweet sent by President Trump on July 24, 2017. The tweet read, in full: “The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad[.]”

In July of 2017, it was widely reported that the Trump Administration ended a government program to fund “vetted Syrian rebels in the war against the regime of Bashar al-Assad.” This funding was the subject of much conversation and was generally known to the public. However, before President Trump’s tweet, it was never publically acknowledged by a government official. The program, which started under President Obama’s Administration, helped train, arm, and compensate “insurgents” to fight extremist forces such as the Assad regime. Ending the funding is akin to cutting off “non-extremist opposition to Assad in northern Syria.” Even before President Trump ended it, the covert program was not a massive operation, but a “narrow” one aimed at “apply[ing] just enough pressure to convince [Assad] to accept a political solution.”

Taking issue with the Washington Post’s representation of his involvement in ending the alleged funding, President Trump took to Twitter to accuse the newspaper of disseminating false information. Unlike some of President Trump’s other tweets, Leopold says the issue with this specific tweet is that President Trump seems to acknowledge both the existence of a United States program to make payments to Syrian rebels and his decision to end it. Plaintiffs argue that the tweet “constitutes official acknowledge[ment] that the United States had been making payments to Syrian rebels fighting Assad.” They assert this official acknowledgement waives any protection of information and documents relating to its funding, thereby requiring FOIA disclosure.

The Freedom of Information Act

Under FOIA, an agency has 20 days from the receipt of a request to determine whether or not to comply by producing the requested information. If an agency fails to comply with FOIA’s time limit provisions, the requesting party will be deemed to have exhausted their administrative remedies. They can subsequently commence an action in federal court. Because the CIA did not timely reply to Plaintiffs’ request, Plaintiffs were able to commence this present action.

Disclosure Exemptions Under FOIA

FOIA provides for several exemptions, wherein agencies are not required to release the requested information. Specifically, information that is confidential, privileged, classified to protect national security, or would invade another’s personal privacy, are among the nine codified exemptions. Here, Plaintiffs only asked for information that is not subject to an exemption. Per Plaintiffs’ interpretation, President Trump’s tweet constitutes a waiver of the exemption pertaining to matters of national security. Because President Trump publically referred to, and impliedly confirmed the existence of, a United States program aiding Syrian rebels to fight Assad, Plaintiffs argue that President Trump essentially declassified the relevant documents.

Application of FOIA to this Case

It is true that federal courts have held that “voluntary disclosure in one situation can preclude later claims that records are exempt from release to someone else.” In Nat. Res. Defense Council v. U.S. Dep’t of Defense, for instance, the court held that the Department of Defense must disclose two documents being withheld under a FOIA exemption. Because the two documents at issue were “provided to a non-government lobbying entity,” they were not exempt under FOIA. For their rationale, the court cited the oft repeated rule that voluntary disclosure waives later claims of exemption. That these documents were allegedly leaked was of no moment to the court’s decision.

Because cases like Nat. Res. Defense Council v. U.S. Dep’t of Defense tend to involve disclosure of specific information to one party, whilst denying the same information to another party, the present case may be distinguishable. The tweet in this case did not involve disclosure of any specific information to one party versus another. President Trump’s tweet may have officially acknowledged a covert government program, but the program was already widely known to exist, and the tweet offered no substantive information about the program. Furthermore, because it was a public statement, there was no selective disclosure; all the world gleaned the same information (or lack thereof) from the tweet.

Of course, this is not the first time the President has taken to Twitter to address matters of national security. However, if the CIA is compelled to disclose the requested information, the result could stir up quite the controversy.

On a related note, this is not Leopold’s first time challenging an agency’s failure to comply with his requests under FOIA. Leopold has been called a “FOIA terrorist” by media sources such as Poynter because of his reputation for compelling disclosures under FOIA. In fact, it was Leopold who sued for the release of thousands of Hillary Clinton’s emails.

Conclusion

At this point, it is unclear what the outcome of this suit will be. FOIA emphasizes making the “fullest responsible disclosure,” meaning that FOIA wants to provide parties with the information they seek whenever doing so is possible. That being said, it seems unlikely that Plaintiffs’ full request will be granted, as the requested documents are likely classified as matters of national security. When full disclosures cannot be made, FOIA requires partial disclosure of requested information—that which is not subject to one of the exemptions. With that important mandate, perhaps the court will decide the Plaintiffs are entitled to a partial victory. Only time will tell.

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Sources Cited

5 U.S.C §§ 552 (a)(3)(A), (a)(6)(A), (a)(6)(C)(i), and (b).

Complaint, Leopold et al. v. Central Intelligence Agency, (No. 1:17-cv-02176) (D.C. Oct. 19, 2017).

Chuck Stanley, BuzzFeed Says Trump Tweet Opens CIA’s Syria Docs to FOIA, LAW360 (Oct. 20, 2017, 4:35 PM).

Benjamin Mullin, BuzzFeed News hires ‘FOIA terrorist’ Jason Leopold from Vice News, Poynter (Jan. 3, 2017).

Faysal Itani, The End of American Support for Syria Rebels Was Inevitable, The Atlantic (Jul. 21, 2017).

Lieber v. Bd. of Trs. Of S. Ill. Univ., 680 N.E.2d 374, 379 (Ill. 1997) (citing Cooper v. Dep’t of Navy of U.S., 594 F.2d 484, 485­–46).

Cooper v. Dep’t of Navy of U.S., 594 F.2d 484, 485–46.

Nat. Res. Defense Council v. U.S. Dep’t of Defense, 442 F.Supp.2d 857, 866 (C.D. Cal. 2006).

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).