Veterans Obtain Class Certification over Discharge Policy
On November 16, the firm won a pro bono victory on behalf of thousands of veterans when a judge certified a nationwide class-action lawsuit against the Navy Discharge Review Board (NDRB) and the US Department of Defense. The lawsuit challenges the NDRB’s process for granting upgrades when a veteran has been given a “less-than-honorable,” or “bad paper,” discharge. Acting as co-counsel with Yale Law School’s Legal Services Organization Veterans Clinic, the firm represents veterans who say they were denied the upgrade because they had undiagnosed mental health issues, such as PTSD.
The newly certified class in Manker v. Spencer will consist of thousands of Marines or sailors who have or would be subjected to unfair procedures in front of the NDRB. The veterans seek a change in their review process.
Since 2001, more than 2 million Americans have served in either Iraq or Afghanistan, and nearly a third of them suffer from PTSD and related mental health conditions, according to a press release issued by Yale about the judge’s decision. In 2014, the Defense Department ordered the US armed services to consider PTSD as a mitigating factor in the misconduct that causes bad paper discharges. But in 2017, the Navy review board granted upgrades to only 16 percent of applications—far fewer than the approximately 51 percent of upgrades given by Army and Air Force review boards, according to the press release.
Veterans who suffer from mental health conditions were not only denied upgrades to their discharges, but that denial “affected their eligibility for benefits like the GI Bill program, and, ironically, PTSD treatment from the Department of Veterans Affairs,” wrote Judge Haight of the Connecticut district court.
The team included Partners Jeremy M. Creelan and Susan J. Kohlmann and Associates Jeremy H. Ershow and Jessica A. Martinez. In 2015, the New York Law Journal named Mr. Creelan among the “Lawyers Who Lead by Example,” in part because of his work on this case.
In Celebrating Its 225th Year Anniversary, University of North Carolina Notes Alum and Partner Andrew Vail’s Contribution
The university is sharing profiles of some of the many “Tar Heels who have left their heelprint on the campus, their communities, the state, the nation and the world.” On November 14, the university featured a profile of 1929 graduate Henry Owl, a member of the Eastern band of Cherokee Indians who was the first person of color to be admitted to –– and graduate from –– the university. At UNC, Mr. Owls’ master’s thesis was titled “The Eastern Band of Cherokee Indians: Before and After the Removal.” In 1930, Mr. Owl was denied the right on the grounds that Indians were illiterate; he presented his thesis to the county voting registrar. But he was denied a second time on the grounds that Cherokees were wards of the government and not US citizens, in opposition to a 1924 law. Owl later testified before Congress, which then passed a law guaranteeing the Eastern Band of Cherokee Indians citizenship and the right to vote.
The profile of Mr. Owl notes that Jenner & Block Partner Andrew W. Vail, a 1999 UNC graduate who concentrated in American Indian history, established the Henry Owl Scholarship Fund for Undergraduate Students. The scholarship provides need-based funds to one or more undergraduate majors in the American studies department, with a preference for students in American Indian and indigenous studies.
“My major concentration was in Native American history, so I felt an immediate connection to Owl’s background,” Mr. Vail said in a 2014 interview with the university. “The distinction of being the first person of color to get a degree from Carolina is extremely significant and something that should be recognized. Also, Owl’s lifelong dedication to education –– to building a better life for himself, his family and community and those around him –– it all struck a chord in me.”
Settlement Ensures that Medicaid Participants Get Access to Hepatitis Treatment
Jenner & Block represented the Legal Council for Health Justice in its successful effort to end Illinois' policy of rationing Medicaid participants’ coverage of life-saving drugs to cure hepatitis C (HCV).
The deadliest infectious disease in the United States, HCV affects an estimated 3.5 million Americans, including 68,400 Illinoisans. Previously, individuals enrolled in Medicaid were required to have severe liver damage before receiving coverage for treatment that would cure them of HCV. Additionally, some Medicaid participants were required to provide proof of sobriety for six months.
In October 2018, Jenner & Block joined the Legal Council for Health Justice and the Center for Health Law and Policy Innovation at Harvard Law School in sending a formal demand letter to Illinois officials on behalf of Medicaid participants.
On November 7, 2018, the Illinois Department of Health and Family Services announced it would change its policy. Now, a recognized HCV cure – direct acting antivirals, or DAAs – is accessible to thousands of Illinoisans, many of whom were previously denied treatment until they reached end-stage disease.
Associates D. Matthew Feldhaus, Alexander J. Bandza and Lindsey A. Lusk represented the council, with supervision from Partner Michael T. Brody.
Jenner & Block Partners with Lawyers’ Committee for Better Housing, Secures Housing Settlement for Pro Bono Client
Earlier this year, the Lawyers’ Committee for Better Housing (LCBH) contacted Jenner & Block about a complex bankruptcy case. LCBH represented a Chicago renter whose apartment building, unbeknownst to her, had been sold in foreclosure. After she was threatened with eviction, LCBH began drafting a complaint against TD REO, the California-based company that purchased the building. The complaint asserted multiple violations of the Keep Chicago Renting Ordinance, which provides protections and statutory damages for tenants renting foreclosed properties. But as they prepared the complaint, LCBH discovered that TD REO had filed bankruptcy in California, preventing LCBH from filing its lawsuit in Chicago.
With complexities mounting, LCBH contacted Jenner & Block to combine pro bono efforts. Led by Partner Todd C. Toral and Associate John D. VanDeventer, with assistance from Partners Landon S. Raiford, Christopher Tompkins, and Associate Michelle Peleg, the team worked across practice groups and offices on the case. And after tense negotiations with opposing counsel, the team was able to effectively increase TD REO’s initial settlement offer, settling the multi-state bankruptcy matter.
California’s Fifth District Court of Appeal Rules in Favor of Pro bono Client, Removing Improperly Imposed Restraining Order
Jenner & Block represented a pro bono client in removing an improperly imposed restraining order against her. Our client, M. C., had presented evidence to a judge in Tulare County Superior Court that her ex-husband had a history of inflicting serious, and in some cases life-threatening, physical abuse on her. The trial court nevertheless granted mutual restraining orders against both M.C. and her ex-husband, based on an April 2017 incident in which M.C. went to her ex-husband’s home to pick up their two minor children. The encounter became violent; M.C.’s ex-husband grabbed her by the neck and tried to drag her around the house, until she bit him and broke free. As she fled the house, she threw a lamp that she had picked up inside at an unoccupied car in the driveway. Finding that both parties “acted primarily as aggressor,” judge imposed mutual restraining orders against both parties. Despite finding that acts of abuse had occurred, the trial court also maintained a joint custody order of the parties’ two children.
But on September 26, 2018, the Fifth District Court of Appeal lifted the restraining order against M.C. and reversed the joint custody order. In the opinion authored by Justice Jennifer R. S. Detjen, the Court of Appeal noted that M.C. violated no order in going to her ex-husband’s home and that there was no finding that she placed him in fear or otherwise harassed him. The Court of Appeal further found that her conduct was a direct response to abuse at the hands of her ex-husband and occurred because she was fleeing the location where that abuse occurred. Additionally, the Court of Appeal held that the trial court had failed to apply the presumption against granting an abuser joint custody of the children as required by law.
The team representing M.C. included Partner Kirsten Hicks Spira and Associates AnnaMarie A. Van Hoesen, who argued the case in front of the appellate court, and Elizabeth H. Capel. Our firm was co-counsel with Anya Emerson, Jennafer Dorfman Wagner, Cory D. Hernandez and Erin C. Smith of the Family Violence Appellate Project and Jeneé Barnes of Central California Legal Services.
Team's Client Receives Permanent Resident Status
In 2015, former associate Emily Deininger, former partner Jared Manes, and Partners David C. Lachman and Michael W. Ross obtained a grant of asylum for Marcos, a seventeen-year-old Honduran boy who had fled to the United States because he was being persistently abused by his grandmother and the other family members with whom he had been living. Marcos’s case was referred to Jenner by Kids in Need of Defense (“KIND”), a not-for-profit organization that identifies pro bono attorneys for unaccompanied alien children, in October 2014.
Ms. Deininger and Mr. Manes filed an affirmative asylum application on Marcos’s behalf in April 2015, contending that he had been abused, and had a reasonable fear of future abuse, because he was a member of a “particular social group” of children living in Honduras without the benefit of parental protection, , and that the Honduran government has been systematically unable or unwilling to protect such children from child abuse. Marcos had never met his father, and his mother had moved to the United States when he was only two years old. Marcos is also Garifuna, an indigenous ethnic group, which exposed him to widespread racism and caused him to be ostracized at school.
After submitting Marcos’s asylum application, Ms. Deininger and Mr. Lachman worked to prepare supplemental briefing and demonstrated through three expert reports that Marcos had physical scars consistent with long-term abuse, that he was suffering psychological symptoms of severe emotional and physical abuse, and that the government of Honduras was unable and unwilling to protect children who are without parental protection. Ms. Deininger and Mr. Lachman then represented Marcos at his successful asylum interview with the Newark Asylum Office.
In 2017, Ms.Deininger , Mr. Manes and Associate Melissa T. Fedornak then filed a green card application on Marcos’s behalf. In July 2018, Marcos received legal permanent resident status, making him eligible to naturalize as a US citizen in 2022. Marcos is now living happily with his mother in the Bronx, where he is attending high school and enjoying spending his free time playing soccer with friends.
The American Lawyer Names the Firm its “Pro Bono Champion”
The American Lawyer named the firm its “Pro Bono Champion,” a new award as part of the publication’s newly revamped set of recognitions. The award is “meant to honor the exceptional work that goes on across the entire legal services delivery spectrum and the increasing interconnectedness among members of that community,” according to The American Lawyer. This recognition is in addition to the firm’s number one US pro bono ranking, which The American Lawyer announced in June. Award recipients receive formal recognition at a gala in New York on December 5.
Jenner & Block Secures DC Circuit Victory in Pro Bono Parole Case
On September 4, a Jenner & Block team led by Associate Zachary C. Schauf prevailed in the DC Circuit on behalf of an inmate, Edward Ford, who challenged the US Parole Commission’s unlawful practice of delaying parole hearings for certain inmates convicted of offenses under both the US Code and DC Code. Expressly splitting with the Seventh Circuit, the DC Circuit ordered the commission to hold a new hearing to redress the unlawful delay. Thanks to this ruling, Mr. Ford now has a real chance of obtaining parole during his lifetime.
In 1980, Mr. Ford committed three murders in three months—one in Virginia (yielding a conviction in federal court), one in the District of Columbia (yielding a conviction in DC court), and one in Maryland (yielding a conviction in Maryland court). Because the District of Columbia does not operate its own prisons, DC Code offenders serve their time in federal custody and the US Parole Commission oversees their parole hearings. But DC Code sentences—and inmates’ right to seek parole from them—remain governed by DC law. Under DC law, Mr. Ford became eligible for parole from his DC Code sentence in 2000 and should have received a DC Code parole hearing at that time.
But for inmates like Mr. Ford, who are serving both DC Code and US Code sentences, the commission has promulgated a regulation that delays DC Code parole hearings until the inmates are deemed suitable for parole from their federal sentences. For Mr. Ford, that did not occur until 2005 and, as a result, Mr. Ford’s parole hearing occurred five years later than it should have.
That delay has consequences. The applicable DC Code parole law measures an inmate’s suitability for parole based on a numerical “grid score.” Every time an inmate has a parole hearing, he has the chance to lower his grid score by one—but only one—point by showing rehabilitation. So the earlier and more frequently these hearings are, the better an inmate’s chances are of parole. Delaying these hearings, by contrast, means an inmate’s score is permanently higher.
When the commission denied Mr. Ford’s most recent request for parole in 2012, Ford brought suit in the US District Court for the District of Columbia. The district court granted summary judgment to the government. Mr. Ford appealed and the DC Circuit appointed Jenner & Block as amicus curiae to present arguments in Mr. Ford’s favor. Mr. Schauf presented oral argument on April 26, 2018, before Chief Judge Garland and Judges Griffith and Srinivasan.
On September 4, 2018, the DC Circuit unanimously reversed in an opinion written by Judge Srinivasan. The court noted that, 25 years ago, the Seventh Circuit had approved the commission’s approach. But the court explained that it “must give effect to the terms of [the governing statute] as we understand them,” even if it required “reaching a different conclusion.” According to the court, the governing statutes “require the commission to hold an offender’s first DC parole hearing at his DC parole eligibility date.” And in “light of th[e] substantial benefits from holding DC parole hearings as soon as an offender is eligible for DC parole,” the court found it could not “write off the inconsistency between the commission’s regulation and [the statutes] as immaterial.”
The court reversed the grant of summary judgment in the commission’s favor and remanded with directions to enter summary judgment in Mr. Ford’s favor. The court ordered the commission to hold a new hearing for Mr. Ford, applying the proper standards.
Despite his grave crimes, Mr. Ford has worked tirelessly to rehabilitate himself, lowering his grid score at each hearing he has received. And while Mr. Ford is still facing a life sentence in Maryland, the DC Circuit’s decision has given Mr. Ford hope that he may obtain release from prison during his lifetime.
Partners Max Minzner and David W. DeBruin supervised the case, edited the briefs and served as moot court judges, along with Partner Jessica Ring Amunson, Associates Previn Warren, William K. Dreher and Benjamin M. Eidelson, and former associate Kendall Turner. Cheryl Olson provided paralegal assistance and Sheree Anyiam provided secretarial assistance.
Court Reverses Murder Conviction for Pro Bono Client
A team of Jenner & Block lawyers led by Partner Gabriel A. Fuentes obtained the appellate reversal of a Kane County murder conviction based on what the court said was inadmissible expert testimony from a well-known former FBI profiler and television commentator. The firm represented Shadwick King pro bonoin the appeal of his murder conviction in the death of his wife, Kate.
On August 21, the Illinois Appellate Court ruled that the State should not have been allowed to use the expert testimony of Mark Safarik, who has appeared on numerous television shows, including Forensic Files, to establish that Kate King had been killed in the first place – a key disputed issue at Mr. King’s 2015 trial.
Kate King was found dead on a set of railroad tracks near the couple’s Geneva, Illinois, home in July 2014. Investigators suspected Mr. King of being involved in her death, and the evidence against him at his March 2015 trial was heavily circumstantial. The forensic pathologist for the defense testified that Mrs. King likely had died of heart failure. The State’s medical examiner, after at first leaving the autopsy report blank for “manner of death” and telling the lead detective at the autopsy that Mrs. King’s cause of death would be listed as undetermined, testified at trial that she was manually strangled.
The Appellate Court ruled that the State “broke the tie” with the profiler, Mr. Safarik, who was not qualified to give medical testimony yet testified that her cause of death was manual strangulation. The court also held that the trial court erred in allowing Mr. Safarik to testify to his opinion that the crime scene was “staged” by someone who wanted to distance himself from the crime scene and Mrs. King to throw off law enforcement. Mr. Safarik’s “staging” testimony, the court ruled, strayed into impermissible “profiling” testimony that “indirectly, but pointedly” identified Mr. King as the killer, “because, under the circumstances, no one else fit that profile.” The Appellate Court remanded the case to the Kane County Circuit Court for retrial. Prosecutors have said they will ask the Illinois Supreme Court to review the decision.
Mr. Fuentes briefed and argued the case in this complex appeal, and with him on the brief were Partner Clifford W. Berlow and former associate Philip Kovoor.
Lawyers and Staff Honored at Annual Pro Bono Awards Celebration
On July 18, the firm hosted its annual Pro Bono Awards Celebration, honoring the firm's long-standing commitment to pro bono work and those who performed and supported pro bono service in exceptional ways. Partners David W. DeBruin and Sarah F. Weiss received the "Albert E. Jenner Pro Bono Award (AEJ Award)" – an award recognizing firm lawyers for their pro bono work. Paralegal Daniel Garcia and Legal Assistant Nora Peralta received the inaugural "Jenner & Block Award for Excellence in Pro Bono or Public Service" – an award recognizing professional staff who support the firm's pro bono and community service efforts.
Jenner & Block Team Defends Pro Bono Client from Murder Charge
"It [Our pro bono work] changes people's lives and in some cases it saves people's lives; people who need but would not have access to legal services if not for the lawyers at Jenner & Block…and many others in the firm who share that same commitment," said Pro Bono Committee Co-Chair Andrew J. Thomas.
The honorees were presented with their respective award by their nominating lawyer. They also gave remarks after receiving their honor.
Ms. Peralta: "I'm going to leave you with a new word to add to your vocabulary: volunesia. It's that moment when you forget that you are volunteering to change lives because doing so is changing yours."
Mr. Garcia: "There's a commitment to the work that we do and this kind of event really recognizes the firmwide efforts to advocate for people and pursue justice. I think it's remarkable."
Mr. DeBruin: "For me, the greatest return from pro bono cases has been working with individuals and finding that when you listen to them, when you respect them as people and when you fight for them, what a difference that makes to that person."
Ms Weiss: "One reason I do this work is that it is truly one of my greatest privileges as a lawyer to try to help the people and families who are most impacted by our criminal justice system."
Jenner & Block Partner Rick Richmond, co-founder and managing partner of the Los Angeles office, led a trial team that obtained an involuntary manslaughter verdict for a pro bono client against whom prosecutors sought a first-degree murder charge.
The firm represented Dietrich Canterberry, who faced the charge after an altercation outside a Hollywood nightclub resulted in a fatality in October 2016.
Following a three-week trial in Los Angeles, the judge overseeing the case instructed the jury to consider charges of second-degree murder, voluntary manslaughter, or involuntary manslaughter and not the first-degree murder charge initially sought. On June 26, the jury acquitted Mr. Canterberry of the two more serious charges. Sentencing is scheduled for later this year.
The trial team included Associates Nayiri K. Pilikyan, Alice S. Kim and Sarah L. Norman, and paralegal Chris Ward.
The case received significant media coverage. In December 2017, the Daily Journal profiled Mr. Richmond, noting that this was his first time defending criminal charges.
The publication also covered opening and closing arguments, reporting on Mr. Richmond’s statements to the jury that Mr. Canterberry was “a brave man who attempted to help a friend by jumping into a brawl” and who acted in self-defense when he collided with another man running directly at him. The Daily Journal also reported that a second defendant, now facing a separate murder trial for his role in the fight, then stomped on the head of the man, who later died.
A separate article about the verdict quoted Mr. Richmond on the differences between trying a criminal case and his primary practice handling large and complex commercial disputes.
“I have a new appreciation for lawyers and judges who devote their careers to criminal cases,” Mr. Richmond said. “Although we’ve handled trials with hundreds of millions of dollars in play, the stakes feel different when you are entrusted to hold someone’s fate in your hands.”
US Supreme Court to Hear Pro Bono Client’s Dispute over Social Security Benefits
The Court recently granted the firm’s petition for certiorari in Biestek v. Berryhill. The firm represents petitioner Michael Biestek, who applied for Social Security benefits because of a disabling, physical impairment. During a hearing before an administrative law judge, a vocational expert testified that jobs were available to Mr. Biestek despite his disability. But the vocational expert, citing the “confidentiality” of her files, would not produce the data and analyses underlying her conclusions. The administrative law judge refused to require the expert to produce this information and then denied Mr. Biestek the disability benefits. The Sixth Circuit affirmed the administrative law judge but noted that there is a divide between the Seventh Circuit and other circuits on the issue.
“This case presents the question whether the Social Security Administration may permissibly deny benefits based on only a vocational expert’s testimony that ‘other work’ exists, when the vocational expert refuses to disclose the data underlying that testimony. There is a well-established, and entrenched, conflict among the circuits on this question, and this case presents the ideal vehicle for this Court to resolve the issue,” according to the petition.
Partner Ishan K. Bhabha leads the team representing Mr. Biestek. Associates Lauren J. Hartz and Natacha Y. Lam are also on the team.
Firm Team Partners with McDonalds to Secure Asylum for Pro Bono Client
Partner Wade A. Thomson led a firm team that secured asylum for a pro bono client who was arrested, detained and tortured by members of the federal police force in Congo at the Direction Générale de Surveillance du Territoire (DGST) three times between May 2013 and June 2014. Our client held a leadership position in a teachers union that planned and coordinated nationwide teachers’ strikes in 2013. Our client refused government bribes to frustrate the strikes and instead published a newspaper article that was critical of the government and supportive of the strike. Because of these acts, our client was accused of being a member of an opposition political party and was brutally tortured and threatened with death by Congolese forces.
In 2015, in-house counsel at McDonalds Corporation reached out to Wade to take the case. In October 2017, the team appeared with our client at the Chicago Asylum Office and represented him in his asylum interview. On June 29, 2018, he was granted asylum. This victory comes through the collaborative efforts of the firm and McDonalds. Other members of the firm team included former associates Yasmine Kurukgy and Ashley Waddell Tingstad, Case Assistant Jocelyn C. Carreon-Crawford and Legal Secretary Brenda Carey.
Firm Ranks No. 1 in Pro Bono for Ninth Time in American Lawyer’s Annual Survey
Once again, The American Lawyer has recognized Jenner & Block as the No. 1 law firm in the United States for pro bono service. This marks the ninth time the firm has achieved the top spot in the annual survey of pro bono commitment among Big Law firms. The firm is also recognized among the top 10 law firms on this year’s international ranking.
The ranking, in The American Lawyer’s annual survey, is based on 2017 hours, which totaled more than 90,700. As The American Lawyer points out, the firm averaged 168 pro bono hours per lawyer. On the international front, Jenner & Block is ranked seventh.
Partner Andrew W. Vail, co-chair of the firm’s Pro Bono Committee, observes in the profile that the firm has an “extremely broad and deep” commitment to pro bono work and puts considerable effort into identifying pro bono work for litigators and transactional lawyers. In 2017, the firm increased its commitment to pro bono on asylum cases and also represented three people who were wrongfully convicted. All three of the convictions were vacated.
Jenner & Block was also named No. 1 in 2017, 2015, 2014, 2012, 2010, 2009, 2008 and 1999. The firm has placed among the leading 10 pro bono programs nationwide every year since the survey began in 1990.
US Supreme Court Cites Firm’s Amicus Brief in Immigration Ruling
In Pereira v. Sessions, the US Supreme Court rejected efforts by the Department of Justice to use procedural shortcuts to eliminate protections for people who have lived for decades in the United States. In its 8-1 ruling on June 21, 2018, the Court cited part of an amicus brief authored by a firm team on behalf of the National Immigrant Justice Center (NIJC).
Pereira concerns the case of petitioner Wescley Fonseca Pereira, a native of Brazil who faced removal after living in the United States since 2000. A critical form of relief available to Mr. Pereira, and other immigrants like him, is “cancellation of removal,” which allows immigration judges to decline to order the removal of a noncitizen who meets stringent requirements—meaning that he or she has lived in the country for at least 10 years, has no criminal record, has “good moral character,” and shows “exception and extremely unusual hardship” to a US citizen family member.
At issue was how to calculate the 10 years. The statute stops this 10-year clock when the government serves a “notice to appear,” which the statute defines as a written notice satisfying particular requirements—including that it must include the “time and place” at which removal proceedings will be held. Despite the statute’s text, however, the government claimed that—as a matter of administrative convenience—it could omit the “time and place” but still treat the notice as stopping the 10-year residency clock.
Several courts of appeals had deferred to the DOJ. But the Supreme Court rejected the DOJ’s approach and held that the clock stops only upon the service of a notice including the time and place of the remove hearing. In rejecting the DOJ’s argument that including the hearing’s time and place would be infeasible, the Court cited the firm’s amicus brief, which showed that the government had previously used a system that allowed automatic scheduling of hearings. Relying on the firm’s brief, Justice Sonia Sotomayor, writing for the Court, explained that “[g]iven today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not work together to schedule hearings before sending notices to appear.” As a result of the Court’s ruling, thousands of immigrants are now eligible to seek cancellation of removal.
The team writing the brief included Partner Lindsay C. Harrison and Associates Zachary C. Schauf and Jonathan A. Langlinais.