Lawsuit Seeks to Ensure that 2020 Census Counts Hard-To-Count Populations
Jenner & Block has filed a lawsuit seeking to ensure that the US government alter its “deficient” plans for the 2020 census so that hard-to-count populations are counted.
The firm represents the Center for Popular Democracy Action, a New York-based non-profit that works to “expand the voice and power of workers, communities of color and immigrants on issues of economic and racial justice,” and the city of Newburgh, located in the Southern District of New York. Newburgh is home to large Hispanic American, African American and undocumented populations, making it a hard-to-count community for the 2020 Census.
The complaint describes the risk of a constitutionally and statutorily deficient census, which is used to allocate public funding, for seat apportionment in the US House of Representatives and to create state legislative districts. Specifically, according to the complaint, the government’s Final Operational Plan “drastically and arbitrarily reduces the necessary resources for key activities,” the complaint reads. It asks that the court hold unlawful five Census Bureau actions, including plans to hire an unreasonably small number of enumerators and a drastic reduction in the number of field offices.
“These decisions are not supported by reason. They will inevitably cause a massive and differential undercount of communities of color,” the complaint reads.
Among other things, the lawsuit seeks an injunction that would require the government to implement a plan to ensure that hard-to-count populations will be enumerated in the census.
The team that filed the complaint included Partners Jeremy M. Creelan and Susan J. Kohlmann, Special Counsel Seth H. Agata , Associates Jacob D. Alderdice and David J. Clark and Law Clerk Keturah James.
Seventh Circuit Affirms Ruling for Planned Parenthood of Wisconsin in Access Restriction Dispute
A firm team representing Planned Parenthood of Wisconsin achieved an important victory in the Seventh Circuit when the court unanimously affirmed a district court ruling that declined to permit Wisconsin’s Legislature to intervene as a party in the firm’s ongoing challenge to certain abortion access restrictions in that state.
Wisconsin’s Attorney General Joshua Kaul, a Democrat, is defending the statutes and regulations and has denied that the statutes and regulation are unconstitutional. However, during the December 2018 lame-duck session, the Wisconsin Legislature passed a statute purporting to give it the power to intervene in state and federal court in any lawsuit challenging the constitutionality of a Wisconsin statute. Arguing that Mr. Kaul was unlikely to defend the statutes as vigorously as he could, and arguing that the state statute gave it the right to intervene, the Legislature moved to intervene as a party under Federal Rule of Civil Procedure 24 as of right or, alternatively, with the court’s permission.
The district court denied the Legislature’s request to intervene, holding that the Legislature had not shown that it had a unique interest in the lawsuit beyond its interest in defending the law, which was already being adequately protected by the attorney general’s defense of the statute. The district court also held that permitting the Legislature to intervene as a duplicative party to also defend the law would complicate the litigation. The court did invite the Legislature to participate as an amicus.
The Legislature took an interlocutory appeal of the district court’s ruling. The team representing Planned Parenthood of Wisconsin, pro bono, included Partners Alison I. Stein and Susan J. Kohlmann, with Associates Jessica Martinez, Danielle Muniz and Nicole Taykhman.
The team drafted a compelling brief that dealt with complicated issues of first impression concerning the interplay of Wisconsin’s state statute, Rule 24, and the Seventh Circuit’s interpretation of that rule. Associate Andrew C. Noll argued the appeal. Paralegals Esmeralda Bako and Mary Patstonprovided invaluable assistance.
On November 7, 2019, the Seventh Circuit affirmed the district court in all respects, adopting the team’s arguments that the circuit’s existing precedent applied to the question of whether a second state entity could intervene in an ongoing lawsuit where the attorney general was already participating. The circuit held that the Legislature had not shown it could intervene as of right or that the district court abused its discretion in denying intervention.
The case, Planned Parenthood of Wisconsin v. Kaul, now returns to the district court, where litigation remains ongoing.
Judge Rejects Motions to Dismiss, Orders Discovery in Class Action for Veterans with PTSD
On November 7, a Jenner & Block team secured a significant pro bono victory on behalf of thousands of Navy and Marine Corps veterans when a federal judge rejected the Secretary of the Navy’s request to dismiss a nationwide class action against the Navy Discharge Review Board (NDRB) and the US Department of Defense for issuing less-than-honorable discharges to veterans suffering from undiagnosed PTSD.
In addition to denying the government’s motion, Senior Judge Charles S. Haight, Jr. of the District of Connecticut ordered the case to proceed discovery and directed the Navy to reconsider the requests to upgrade to Honorable the discharge characterizations of firm client Tyson Manker and of John Doe, a member of the organizational plaintiff National Veterans Council for Legal Redress (NVCLR).
“Today’s ruling, in time for Veterans Day, reaffirms the rule of law and brings us one step closer to getting justice for every veteran who was unfairly dismissed from the military with post-traumatic stress disorder, traumatic brain injury, and military sexual trauma, and denied their honorable discharge,” said Manker in a press release announcing the judge’s order to proceed.
In March 2018, Manker, a veteran of the 2003 invasion of Iraq, and NVCLR filed a federal class action lawsuit on behalf of former Marines and sailors suffering from PTSD, who were unfairly dismissed from the military and denied their honorable discharge. The lawsuit seeks to ensure the fair treatment of veterans who have or would be subjected to unfair procedures during the review process in front of the NDRB.
On November 16, 2018, a judge certified the class action against the NDRB and US Department of Defense. The government went on to advance multiple arguments that, as the Court summarized, “seem to relate exclusively to the individual circumstances of Tyson Manker and John Doe.” But Judge Haight rejected these contentions, emphasizing that in fact thousands of veterans would likely be affected by the litigation: “Manker and Doe play important roles in this opera, but there are other soloists, a chorus, and a full orchestra—a fair analogy, given that the Court has certified a class of Navy and Marine Corps veterans…”
“As many as one-third of the more than two million men and women who have served since September 11, 2001, suffer from PTSD or other mental health conditions in relation to their service. Many of these veterans obtain less-than-Honorable discharges, often for minor infractions related to their mental health,” said Garry Monk, executive director of NVCLR. “Veterans with ‘bad paper’ are often cut off from the very benefits that would allow them to successfully transition back to civilian life, and instead suffer a lifetime of stigma, barriers to employment, and ineligibility for crucial state and federal benefits.”
“When veterans seek to correct these unjust discharges, the Navy denies the vast majority of their applications, contrary to statute and to Department of Defense policies designed to provide relief to veterans with service-related PTSD and other conditions,” said Samantha Peltz, a law student intern in the Yale Veterans Legal Services Clinic. “Despite its claims of improved compliance with Defense policies, over the past two years, the Navy has granted less than 20% of discharge upgrades for applicants with mental health claims. The court’s decision today is another step towards justice for veterans who served their country and came home only to face daunting hurdles in seeking care for the wounds of war.”
Acting as co-counsel with Yale Law School’s Legal Services Organization Veterans Clinic, Jenner & Block represents veterans who say they were denied the Honorable upgrade because they had undiagnosed mental health issues, such as PTSD. Associates Jessica A. Martinez and Jeremy H. Ershow have led the firm team since the complaint was filed in early 2018. Associate Nicole Taykhman also made the oral argument in federal court on the motion. They are overseen by Partners Susan J. Kohlmann and Jeremy M. Creelan.
Firm Team Achieves 11th Circuit Victory in Pro Bono Voting Rights Case
On August 22, a Jenner & Block team won a significant victory when the 11th Circuit Court of Appeals unanimously affirmed a lower court’s decision entering judgment against the American Civil Rights Union (ACRU), in its lawsuit against the Broward County Supervisor of Elections, Dr. Brenda Snipes. The appellate court rejected ACRU’s arguments as contrary to the statutory text of the National Voter Registration Act (NVRA) and discerned “no clear error in the district court’s factual findings.”
In ACRU v. Snipes, ACRU alleged that Snipes failed to make reasonable efforts to conduct voter list maintenance programs, violating Section 8 of the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act (HAVA). The ACRU also claimed that Snipes failed to respond sufficiently to written requests for data regarding the offices implementation of programs and activities for ensuring the accuracy of official lists of eligible voters for Broward County, further violating Section 8 of NVRA.
After finding that the ACRU’s notice letter to Snipes was the only correspondence sent and did not disclose potential NVRA violation or probationary time to remedy it, the US District Court for the Southern District of Florida dismissed the allegation, sua sponte.
In July 2017, a five-day bench trial proceeded solely on the ACRU’s contention that Snipes failed to make “reasonable effort” to remove ineligible voters by reasons of death or change in address. The court found every piece of evidence offered by ACRU unconvincing, concluding that the organization’s accusations were thoroughly unfounded and held that Broward County’s voter list maintenance program was fully compliant with federal law.
On March 30, 2018, Judge Beth Bloom ruled in favor of Dr. Snipes and SEIU. In doing so, the judge wrote that Dr. Snipes “implemented a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of death or change of address.” The judge also held that the ACRU failed to prove a violation of Section 8 of the NVRA. “The court recognizes that the NVRA has a nationwide application, and for that reason, it declines to apply a subjective approach that would vary widely from jurisdiction to jurisdiction,” she wrote. Partner Kali Bracey and Associate Tassity Johnson, joined by former partner Carrie Apfel and former associate Marina Jenkins successfully tried the case.
In March 2019, Partner Jessica Ring Amunson argued the appeal in the 11th Circuit. The appellate court affirmed the district court in full. On appeal, the ACRU argued that the NVRA’s mandate to remove voters ineligible due to relocation or death extended to other categories of potential ineligibility, that the HAVA also broadened the NVRA’s list maintenance obligations, and that National Change of Address procedure outlined in the NVRA for removing relocated voters from the rolls did not create “safe harbor” of reasonable list maintenance. The appellate court found that all three arguments were completely contrary to the language and purpose of the NVRA and HAVA. Moreover, after “thorough review[ ]” of the record, the court “discern[ed] no clear error in the district court’s factual findings.”
In addition to Ms. Amunson, the firm team on appeal included Partner Kali Bracey and Associates Tassity Johnson and Manuel C. Possolo. Paralegal Cheryl Olson and Docketing Assistant Tyler Edwards also assisted at the trial and appellate levels.
Precious Jacobs and Garrett Fitzsimmons Named “Pro Bono Superstars” by The Chicago Alliance Against Sexual Exploitation
Jenner & Block Partner Precious S. Jacobs and Associate Garrett Fitzsimmons will be honored as 2019 “Pro Bono Superstars” by The Chicago Alliance Against Sexual Exploitation (CAASE). The award recognizes and celebrates all CAASE pro bono partnerships and the exceptional representation CAASE pro bono lawyers have provided to survivors of sexual exploitation and harm. Ms. Jacobs and Mr. Fitzsimmons are being recognized for their work in successfully resolving a dispute on behalf of a woman who was brought to the United States under false pretenses, exploited and sexually assaulted.
CAASE will present the honorees with the “Pro Bono Superstars” award at a ceremony at the CAASE office on Thursday, September 5.
Jenner & Block Associates Secure Five-Figure Settlement in Civil Rights Case
Three associates based in the firm’s Los Angeles office led a team that obtained a five-figure settlement for a wheelchair-bound prisoner in a civil rights claim against a prison physician.
Associates Wesley M. Griffith, Alexander M. Smith and Effiong K. Dampha led the team, which included support from Partner Kirsten Hicks Spira.
Our pro bono client filed a Section 1983 lawsuit against a physician at the California Medical Facility, a state prison, for not providing him adequate pain medication following second-degree burns to his face, neck, arm and chest. Despite our client’s repeated statements to the defendant that he was in severe pain, and the conclusion of four other doctors who examined him that day that he was in pain, the defendant did not administer medication or inquire if the client was in pain, in violation of prison policy.
The case settled a week before it was scheduled to go to trial in the Eastern District of California. Although one in ten lawsuits filed in federal court is a Section 1983 claim, these are frequently dismissed early and are known to be difficult cases to advance so close to trial.
The settlement judge overseeing the case thanked the team repeatedly for its dedication to pro bono, which is a core value of the firm, and its willingness to commit extensive resources to the matter.
Firm Secures DC Circuit Decision Overturning Convictions on 6th Amendment Grounds
A Jenner & Block team of Partner Lindsay C. Harrison and Associate James T. Dawson succeeded in persuading the D.C. Circuit to overturn the convictions of pro bono client Pheerayuth Burden and his export business, Wing-On LLC. Mr. Burden was charged with exporting gun parts without a license in violation of the Arms Export Control Act (AECA). At trial, the testimony of a key prosecutorial witness was admitted through videotaped deposition; he was unavailable for questioning becausethe US government had deported him prior to the trial. The firm argued that the admission of the deposition constituted a violation of the 6th Amendment, which guarantees the right of the defendants to confront the witnesses against them at trial. On August 20, the US Court of Appeals for the DC Circuit agreed, ruling that “the district court erred in admitting the deposition testimony” and vacating all charges. The firm also won a second issue related to the jury instructions for a willful violation of the AECA, which criminalizes willful violations of the International Traffic in Arms Regulations (ITAR).
Jenner & Block Associates Secure Favorable, Rare Outcomes for Two Pro Bono Clients
Through Jenner & Block’s work serving on the Criminal Justice Act panel in the United States District Court for the Southern District New York, a team of associates secured favorable, rare outcomes in two pro bono matters. The first involved a client who was charged with serious violations stemming from a series of armed robberies. While his involvement in these offenses was minor; however, one of his charges carried a seven-year mandatory minimum sentence due to the use of a gun during the robberies. Led by Associates Edelí Rivera and Jessica A. Martinez, with supervision from Partner Katya Jestin, the team negotiated an agreement with the government that allowed the client to plead to a lesser charge. And even though he still faced 41 to 51 months’ imprisonment under the lesser charge to which he pled, the client was sentenced to only 16 months in jail, 14 of which he had already served. After the proceedings concluded, Edelí’s effective oral advocacy earned high praise from presiding Judge Andrew L. Carter, Jr.
The second pro bono matter involved a client being investigated for embezzlement from a labor union. For almost two years, Associate Ali M. Arain led the case, supervised by Partner Anthony S. Barkow and assisted by Associates Lori B. Day and Jacob Lincoln Tracer and law clerk Andrew D. Whinery. The team persuaded the US Attorney’s Office for the Southern District of New York to give our client a rare deferred prosecution agreement, providing that if our client pays back the money at issue, he would not be prosecuted and will have no criminal record. The client repeatedly thanked Ali and the team, stating that they had “saved his life,” “gave him his humanity” and “treated him with dignity and respect.”
Working with Non-Profit Partner to Secure a Favorable Settlement for Trafficking Survivor
Our client is a native of Mexico and the mother of three children. Nearly seven years ago, she left her abusive partner and began looking for work to support herself and her family. She was introduced to a man whom a relative thought could help her secure immigration papers to work for him in the United States. She would work as a nanny and maid for the man and his family in the United States. Excited for the opportunity, our client agreed.
But after she came to the United States, the man confiscated her passport, depressed her wages, increased her hours and began verbally abusing and sexually harassing her. One day when the man and our client were alone in the home, he raped her. He then threatened her and demanded her silence.
After the assault, our client fled to another state. Distraught, she conducted research on organizations that could help her. She was eventually referred to the Chicago Alliance Against Sexual Exploitation (CAASE), which then contacted Jenner & Block. The firm partnered with CAASE and quickly conducted research and began investigating our client’s case. The team drafted a complaint asserting claims for breach of contract, violations of the Trafficking Victims Protection Reauthorization Act and violations of the Illinois Gender Violence Act. After sending a draft of the complaint to the man, our team quickly moved to settlement negotiations. The team successfully negotiated a favorable out-of-court settlement that provided our client with the restitution she deserved and peace by avoiding years of litigation.
The firm team included Partner Precious Jacobs and Associate Garrett Fitzsimmons. CAASE honored them as 2019 “Pro Bono Superstars” for their efforts on the matter.
Judge Grants Motion to Suppress Evidence and Dismisses Case Against Pro Bono Client
A firm team successfully proved that Chicago police had no reason to arrest our pro bono client on charges of carrying a gun without a concealed carry permit. In granting the firm’s motion to suppress evidence, Judge Steven Watkins stated that the stop and arrest of the firm’s client were improper.
At issue was the gun that the client was carrying when police stopped him as he walked home in his Chicago neighborhood. The client legally purchased the gun, and he had a valid Firearm Owners Identification card, but he did not yet have a conceal carry permit. The arresting officers claimed that the client was looking into a window of a commercial business, and once stopped, one officer claimed he saw a “bulge” protruding from the client’s waistband, giving him probable cause to search.
However, the team developed a creative defense strategy for the evidentiary hearing in Cook County Criminal Court. The client was put on the stand wearing exactly the same hooded sweatshirt and winter jacket he was wearing the night of the search. The team put a replica gun in the client’s waistband, illustrating that the officer could not have seen any “bulge.” The client and the officers were also questioned about the client looking into the window. The judge found the stop, and therefore the arrest, to be improper.
The firm team included Partners Andrew F. Merrick and Sarah F. Weiss and Associate Miriam J. Wayne.
North Carolina’s “Bathroom Bill” Dispute Ends with Consent Decree Protecting Transgender Individuals
Jenner & Block served as pro bono co-counsel with Lambda Legal and the ACLU of North Carolina in a three-year battle to protect the rights of transgender individuals. On July 23, a federal judge approved a consent decree clarifying that transgender individuals cannot be prohibited from using state-run restrooms and facilities consistent with their gender identity.
The dispute dates back to 2016, when the North Carolina General Assembly passed House Bill 2, which required transgender people to use public facilities matching their birth sex. The firm filed a lawsuit against the state and the University of North Carolina, where several of the named plaintiffs worked or attended. The plaintiffs won a partial preliminary injunction blocking HB 2 on Title IX grounds. But in 2017, the General Assembly passed HB 142. Although HB 142 repealed HB 2, it also pre-empted any further “regulation “ of access to restrooms and other facilities by any state agency, local government, school board or other government entity.
The consent decree prohibits the executive branch defendants, including their successors, from interpreting HB 142 to prevent transgender individuals from lawfully using public facilities in accordance with their gender identity and permanently enjoins the executive branch from applying HB 142 to bar, prohibit, block, deter or impede any transgender individuals from using public facilities in accordance with their gender identity.
Associate Andrew C. Noll argued for the plaintiffs in favor of the consent decree at hearings earlier this year. In addition, the team included Partners Devi M. Rao and Emily Chapuis and Associates Caroline C. Cease and Zachary Blau. Partners Ian Heath Gershengorn and Adam G Unikowsky and Associate Lauren J. Hartz helped prepare Mr. Noll for oral argument. Senior Paralegal Cheryl Olson and Associate Manager of Docketing Services Tyler Edwards provided critical paralegal and docketing support.
News of the consent decree was reported widely, including in the New York Times and Law360.
NAACP Recognizes Firm Team with “Foot Soldier in the Sand Award”
During its annual convention in Detroit, the NAACP presented the firm with its “Foot Soldier in the Sand Award” for our pro bono work fighting for a fair 2020 Census.
In the case, the firm and the Rule of Law Clinic at Yale Law School are representing the NAACP, Prince George’s County, Maryland, the NAACP’s Prince George’s County branch and two county residents. Filed in the US District Court for the District of Maryland, NAACP v. Census Bureau aims to combat the threat that the 2020 Census will unconstitutionally undercount minority communities, leading to inequalities in political representation and federal funding.
Census results determine the number of congressional seats each state receives, the redrawing of legislative district lines and the enforcement of voting rights laws. The federal government also uses Census data to distribute federal funding. In the 2010 Census, Prince George’s County, which has a majority African American population, suffered a 2.3 percent net undercount—the largest net undercount of any county in Maryland and one of the largest of any county in the nation. The lawsuit seeks to compel the Bureau of the Census to prepare for and conduct a full and fair 2020 Census, as the Constitution requires.
The federal government sought to dismiss the suit, but in January 2019, US District Court Judge Paul Grimm denied the Census Bureau’s motion to dismiss. The case is pending.
The team includes Partners Susan J. Kohlmann, Jeremy M. Creelan and Michael W. Ross; Associates Jacob D. Alderdice, Alex S. Trepp; Logan Gowdey, Amy Egerton-Wiley, Olivia Hoffman, Zachary Blau and Matthew J. Phillips; Law Clerks Alexa Kissinger and Andrew Whinery; and Project Assistant Esmeralda Bako.
Jenner & Block Honors Lawyers and Staff with 2019 Pro Bono Awards
On July 18, Jenner & Block hosted its annual Pro Bono Awards reception to honor lawyers and staff who uphold the firm’s dedication to pro bono work. This year’s Albert E. Jenner Award honorees are Partners Todd C. Toral and Keisha N. Stanford and Associates Alice S. Kim and Eric H. Lamm. Their team, led by Mr. Toral, obtained a significant victory for two civilian Department of Defense lawyers who fought to resign from representing the alleged mastermind behind the USS Cole bombing in 2000 after learning the US government serially invaded the attorney-client privilege by eavesdropping on their confidential communications with their client. The firm also recognized Senior Paralegal Cheryl L. Olson with the Excellence in Pro Bono or Public Service award. Ms. Olson’s dedication and commitment to the Appellate and Supreme Court Practice has led to major wins for the firm’s pro bono clients.
Chicago Tribune Features Pro Bono Client Aaron Holzmueller
Aaron, who has cerebral palsy, is a devoted student athlete, and the article traces his athletic career from childhood to college. Part of his story includes a pioneering legal battle against the Illinois High School Association (IHSA), a case the firm took on, pro bono. For years, the firm represented Aaron as he fought to compel the IHSA to institute a para-ambulatory division for the state track meet so that these athletes could have an opportunity to competein the season’s showcase event. In February 2018, a Seventh Circuit panel affirmed a lower court’s opinion in favor of the ISHA. Aaron has since graduated from high school and now competes in track and cross-country at Beloit College in Wisconsin. “I just wanted to try to get awareness out,” Aaron told the Chicago Tribune of his battle against the IHSA. “Even though I didn’t get the result I was hoping for, I wanted to let people know about runners like me. I definitely can see it changing one day.” The firm team included Partners Louis E. Fogel, Devi M. Rao, Clifford W. Berlow, and Shaun M. Van Horn; Associates Abraham M. Salander, Lina R. Powell, Ren-How H. Harn, David B. Diesenhouse and James Dawson; and paralegal Daniel Garcia.
Click here to read more about Aaron’s case in The Heart of the Matter and here for a video.
Click here to read the Tribune article, titled “Evanston’s Aaron Holzmueller Hasn’t Let Cerebral Palsy Keep Him from Competing as a College Runner. And He Has His Eyes on a Future Paralympic Games.”
Firm Ranks No. 1 in Pro Bono for 10th Year in The 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 10th time the firm has achieved the top spot in the annual survey of pro bono commitment among AmLaw 200 firms. The American Lawyer’s annual survey ranking is based on 2018 hours, which totaled more than 83,000. Our lawyers contributed, on average, nearly 170 hours of pro bono work during the year, and 100 percent of US-based lawyers performed more than 20 hours. In international pro bono work, the firm climbed four rankings to secure third place.
Partner Andrew W. Vail, co-chair of the firm’s Pro Bono Committee, comments in the profile that the firm doesn’t think of pro bono work in terms of politics, but instead in terms of serving those without access to legal representation. “Our commitment to pro bono has continued over decades in various administrations. We were one of the first law firms to join the fight against the detention of prisoners at Guantánamo Bay under previous administrations. We’ve been doing asylum work for many years and continue to do that today,” he says. The publication also highlights our work to secure justice for hundreds of former students of the now-defunct ITT Technical Institute.
Jenner & Block was also named No. 1 in 2018, 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.