The Foundation’s Pro Bono High Impact Litigation Project, national in scope, brings together law firms, social justice organizations, and volunteer attorneys to undertake by a joint effort significant litigation to protect the civil liberties and enhance the economic, health and social conditions of the poor and vulnerable.
This Project has been part of the Foundation’s work since 2010. Under its auspices the Foundation has coordinated very successfully the initiation of high impact social justice litigation. See the table below for summaries and updates of the cases litigated through the Pro Bono High Impact Litigation Project.
Community Advocates for Just and Moral Governance (MoGo), located in San Diego, CA, and the law firm Sheppard Mullin, through coordination of the Barbara McDowell Foundation’s High Impact Litigation Project, have joined to address the discriminatory impact of the VI-SPDAT (Vulnerability Index – Service Prioritization Decision Assistance Tool) by exploring litigation to enjoin its use and requiring training and/or certification for individuals administering the tool.
The VI-SPDAT (Vulnerability Index – Service Prioritization Decision Assistance Tool) is a survey administered both to individuals and families to determine risk and prioritization when providing assistance to homeless and at-risk of homelessness persons. At one point it was utilized in at least 40 states. The score an individual or family receives on the VI-SPDAT is vitally important as it not only determines prioritization of aid and services, but it also preliminarily determines the kind of aid someone can receive. Numerous studies since the creation of the VI-SPDAT have found that the tool produce significant disparities on the account of race and disability.
This case has the potential to hold government entities accountable for lax oversight of service providers who benefit from state and federal taxpayer funds. Additionally, this case will lay the legal groundwork for invalidating the use of the VI-SPDAT in other jurisdictions across the nation. The causes of action fall under the ADA, Unruh Civil Rights Act, Equal Protection, and the Rehabilitation Act. The case is in preliminary stages and has yet to be filed.
The plaintiffs sought partial reconsideration of the Court’s grant of summary judgment to defendants on plaintiffs' claim that defendants' procedures for providing pre-deprivation notice prior to seizing state tax refunds to collect unpaid transit fines are constitutionally inadequate.
Plaintiffs argued that the Court erred in two respects: (1) by overlooking or misconstruing Supreme Court and Second Circuit precedent that – in plaintiffs' view – requires a government agency to conduct additional research if it knows that some of the mailing addresses it relies on to provide pre-deprivation notice are incorrect and (2) by characterizing the additional measures proposed by plaintiffs as "labor intensive" without an adequate evidentiary record. The Court denied reconsideration and adhered to its prior ruling.
The Defendants argued that the notice provided is constitutionally sufficient because (1) the original notice of violation (the transit ticket) is personally delivered to each respondent; (2) it would be a "clear undue burden for the Transit Authority to try to track down the new addresses of hundreds of thousands of individuals to collect small sums from each"; (3) if the Transit Authority did undertake that research, it "would have no way of ensuring that the new address it obtained from public records would be a more accurate address than the address provided by the respondent at the time he or she received the notice of violation; and (4) when a tax refund is seized, a post-seizure notice is mailed by the Tax Department not the Transit Authority to the address given by the individual receiving the ticket on his or her tax return, after which that individual has a meaningful opportunity to vacate the judgment and contest the underlying transit ticket.
The Court agreed with those arguments and reaffirmed its prior decision finding that the personal delivery of the NOV to each individual when a proceeding is initiated; the mailing of three follow-up notices, sent to the address initially furnished by the individual; the enormous volume of transit tickets that the Transit Authority must attempt to enforce; the small percentage of referrals to the State agency that actually result in the garnishment of a tax refund; the relatively low stakes involved in any one tax refund seizure; and the existence of a reasonably robust ex post mechanism for vacating a traffic ticket and reclaiming the seized funds post-garnishment all demonstrate that consistent with Supreme Court precedent that due process is flexible and calls for such procedural protections as the particular situation demands. Accordingly, the Court found that the "particular situation" presented by this case does not demand that defendants search the Department of Motor Vehicles database or perform LexisNexis research in an effort to find better addresses for all respondents whose mailed notices are returned as undeliverable.
Significantly, the Court found that while an anticipated New York State tax refund can be a significant deprivation of property, the relatively modest "private interests" at stake do not demand the same level of procedural protection as the prospect of losing a home or a livelihood.
The law firm of Eversheds Sutherland (US) LLP and Capital Area Immigrants’ Rights (CAIR) Coalition, through the coordination of the Barbara McDowell Foundation's High Impact Litigation Project, secured relief for three children asylum-seekers who received faulty removal orders under the Remain in Mexico/Migrant Protection Protocols (MPP) program. Days after Eversheds Sutherland and CAIR Coalition filed their opening brief in the children’s Fifth Circuit Court of Appeals case, the Government agreed to settlement. The Board of Immigration Appeals subsequently granted the parties’ motions to reopen and terminate the cases, which vacated the children’s prior removal orders and allow the children to proceed with their own asylum claims, along with those of their father. This result is more favorable than relief the children could have obtained from prevailing in their Fifth Circuit case, which primarily involved due process challenges to the children’s removal orders, on the basis that the immigration judge on the border who adjudicated their mother’s asylum case did not give the children an adequate hearing on their own asylum claims.
ArchCity Defenders located in St. Louis and the international law firm DLA Piper, at the initiation of the Barbara McDowell Foundation through its Pro Bono High Impact Litigation Project, have joined together to continue prosecuting a class action case, Cody, et al. v. City of St. Louis, on behalf of thousands of people who have been held in the Medium Security Institution in St. Louis (a jail more commonly called the "Workhouse") over the past eight years. Through it’s participation in the Barbara McDowell Foundation’s High Impact Litigation Project DLA Piper is providing its support to the case on a pro bono basis The lawsuit seeks damages from St. Louis City for the alleged inhumane conditions experienced by the detainees as well as injunctive relief for the court to require that the jail either be brought up to constitutional standards or closed in order to prevent individuals from being subjected to its abusive conditions. Frequently reported alleged conditions include extreme temperatures, rodent and insect infestation, mold, overflowing sewage, and more.
The lawsuit brings six claims against the City. Two claims relate to conditions at the Workhouse, stemming from Fourteenth Amendment protection against cruel and unusual treatment of pretrial detainees (about 98% of those incarcerated at the Workhouse) and the Eighth Amendment protection against cruel and unusual punishment of post-conviction inmates (the remaining 2% of the population). Two claims relate to inhumane conditions based on excessive temperatures to which many of the detainees were exposed. The final two claims concern First Amendment protections against retaliation, as well as a claim based on the City’s failure to supervise and train its employees.
The case is in extensive discovery and the case has been set for class certification briefing beginning in July 2021 and for jury trial in February 2022.
The law firm of Eversheds Sutherland (US) LLP and Capital Area Immigrants’ Rights Coalition, through the coordination of the Barbara McDowell Foundation's High Impact Litigation Project, have joined to seek relief for three children asylum-seekers who have received faulty removal orders under the Remain in Mexico/Migrant Protection Protocols (MPP) program. The appeal primarily involves due process challenges to the children’s removal orders, on the basis that the immigration judge on the border who adjudicated their mother’s asylum case did not give the children an adequate hearing on their own asylum claims. The appeal seeks new removal proceedings for the children on the basis that they are now unaccompanied immigrant children who are entitled to additional protections under the Trafficking Victims Protection Reauthorization Act (TVPRA).
Appeals such as these are critical to remedy the procedural shortcomings of MPP hearings and the government’s treatment of unaccompanied immigrant children previously in MPP proceedings. This appeal seeks to create precedent that will help other children processed under MPP
A class action lawsuit challenging New York City’s segregated school system for students with disabilities on Staten Island was filed on January 26, 2021. The lawsuit alleges that Staten Island’s separate school district for children with disabilities, known as District 75, denies these students an equal education, forcing them into segregated schools and classrooms without adequate resources and with no meaningful opportunity to be integrated into their community schools.
The Plaintiffs, three Staten Island students with disabilities and the advocacy group Disability Rights New York, are not asking for monetary damages rather they seek reforms that will compel the New York City Department of Education to provide the resources necessary so that every Staten Island District 75 student has the opportunity to attend their neighborhood schools if they choose. Many Staten Island District 75 students attend schools located outside their communities and spend two hours or more commuting to school every day.
The Plaintiffs’ complaint alleges that Staten Island District 75 students have unequal access or no access at all to school facilities, such as playgrounds, cafeterias, libraries, electives like music and art classes, and extracurricular activities like clubs and sports teams. Very few District 75 students, the suit states, graduate with a regular diploma. The lawsuit aims to secure for students with disabilities and their parents an inclusive education in Staten Island community schools rather than segregation of students with disabilities in a separate school system.
The case on behalf of Disability Rights New York (DRNY) and the three individual Plaintiffs will be litigated by the Bazelon Center for Mental Health Law, Disability Rights Advocates (DRA), Disability Rights New York, the Law Office of Gerald Hartman under the auspices of the Barbara McDowell and Gerald S. Hartman Foundation Inc., and the law firm Faegre Drinker Biddle & Reath LLP.
A copy of the press release describing the lawsuit can be found here.
Children’s Rights, the law firm of Ropes & Gray, and Disability Rights Iowa succeeded after trial in a case, C.P.X. v. Garcia (formerly known as C.P.X. v. Foxhoven and G.R. v. Foxhoven), that was filed in November 2017 on behalf of boys confined to Iowa’s Boys State Training School who have significant mental illnesses. The case was initiated under the auspices of the Barbara McDowell Foundation's High Impact Project. The trial court has now awarded fees on January 7, 2021, in the amount of $4,540,762.90 and expenses in the amount of $390,363.05. The State of Iowa has appealed the fee award. A copy of the trial court’s decision on fees appears here.
A class action lawsuit challenging New York City’s segregated school system for students with disabilities on Staten Island was filed on January 26, 2021. The lawsuit alleges that Staten Island’s separate school district for children with disabilities, known as District 75, denies these students an equal education, forcing them into segregated schools and classrooms without adequate resources and with no meaningful opportunity to be integrated into their community schools.
The Defendants, New York City and the New York City Department of Education (“DOE”) moved to dismiss the case on August 7, 2021, claiming that Plaintiffs’ Complaint relates only to alleged deficiencies in special education services for the Named Plaintiffs, thereby requiring exhaustion of their claims through the Individuals With Disabilities Education Act’s (“IDEA”) administrative “due process” procedures.
Plaintiffs opposed the motion claiming that their claims center on the unjustified segregation of a putative class of Staten Island District 75 students with disabilities due to Defendants’ failure to provide appropriate and legally required services and supports in the DOE’s community schools. Plaintiffs argued that exhaustion is excused as futile here because the IDEA’s administrative process cannot provide the systemic relief Plaintiffs seek on behalf of the putative class and that their other statutory claims are premised on the “integration mandate” in the Americans With Disabilities Act, Section 504 of the Rehabilitation Act, and the New York City Human Rights Law and not the provision of a free appropriate public education (“FAPE”) contained in the IDEA.
The Plaintiffs point to the Supreme Court’s decision in Fry v. Napoleon Community Schools which held that exhaustion of the IDEA’s administrative remedies is unnecessary for claims not centered on the IDEA’s “core guarantee” of FAPE. The Plaintiffs assert that they areseeking the adoption and implementation of legally required “practices, policies, and procedures [that will] ensure that all students in the Plaintiff Class have the opportunity to be educated in the most integrated setting appropriate to their needs.”
The Court has not yet decided the motion to dismiss.
A class action was filed in New York City challenging the Transit Authority’s (“TAB”) unlawful seizures of New Yorkers’ state tax refunds to collect on default judgments without providing legally-required notice or a fair opportunity to contest the judgments. After the Court certified the class, the parties filed cross-motions for summary judgment. The Court on October 1, 2021, (1) denied plaintiffs’ motion and granted defendants’ motion with regard to the adequacy of the notice provided prior to the seizure of state tax refunds, (2) granted plaintiffs’ motion and denied defendants’ motion with regard to TAB’s failure to disclose its standards concerning the legally valid excuses to vacate a default judgment, (3) granted defendants’ motion and denied plaintiffs’ motion with regard to the substance of TAB’s standards concerning legally valid excuses to vacate a default judgment, and (4) denied both parties’ motions with regard to the issue of whether TAB has an unconstitutional policy or procedure of refusing to provide copies of notices of violations to those seeking to challenge a default judgment or has failed adequately to train its personnel or providing such copies.
A copy of the Court’s decision appears here. The plaintiffs have filed a motion for reconsideration on whether Defendants’ efforts to provide notice to parties concerning the impending seizure of their tax refunds are constitutionally sufficient, given that Defendants admit to regularly sending notices to “bad addresses.” The parties are now engaging in settlement discussions.
In September 2021, Eversheds Sutherland (US) LLP and Capital Area Immigrants’ Rights Coalition, through the coordination of the Barbara McDowell Foundation's High Impact Litigation Project, filed petitions for review in the Fifth Circuit Court of Appeals for three children asylum-seekers who received faulty removal orders under the Remain in Mexico/Migrant Protection Protocols (MPP) program. The cases, which are currently in the briefing stage, are critical to remedy the procedural shortcomings of MPP hearings and the government’s treatment of unaccompanied immigrant children previously in MPP proceedings. These appeals seek to create precedent that will help other children processed under MPP, which is set to be reimplemented soon.
Samantha R., et al v. North Carolina, et al, pending in State Court in North Carolina, is systemic litigation designed to address the failure of the State of North Carolina to provide appropriate behavioral health services to citizens with intellectual and/or developmental disabilities (I/DD).
After the Court granted Plaintiffs’ motion for summary judgment, a copy of which appears here, North Carolina submitted to Plaintiffs on October 13, 2021, a draft of an Olmstead Plan to fulfill its obligation to integrate persons with I/DD into community-based settings in compliance with the North Carolina Persons With Disabilities Protection Act. The Plaintiffs on October 26, 2021, submitted to the Court its comments on the draft plan noting its inadequacies.
Together, lawyers from DLA Piper Global Law Firm (DLA) and ArchCity Defenders (ACD) have continued their work on Cody, et al. v. City of St. Louis and the following has been accomplished. Written discovery was completed and tens of thousands of documents were reviewed after DLA joined in December 2020. Discovery then closed on June 1, 2021. Eleven depositions were conducted with the City’s correctional officers, jail maintenance manager, department of corrections leadership, and the City health inspector. Plaintiffs also deposed the City’s “expert” witnesses, and defended the deposition of Plaintiffs’ expert environmental safety engineer, James Balsamo.
On June 17, 2021 a story broke in the news that the St. Louis City Mayor had emptied the Workhouse. In response, the Court sua sponte issued an order to show cause as to why Plaintiffs’ injunctive and declaratory relief claims are not moot. However, weeks later, the City moved approximately 100 detainees back into the Workhouse, citing uprisings at the City’s other jail (which happened due to the City’s failure to maintain and install working locks on jail cells, among other things).
At the same time, the City moved for Partial Summary Judgment challenging Plaintiffs’ standing to seek injunctive and declaratory relief. DLA and ACD briefed this opposition, as well as Plaintiffs’ simultaneous Motion for Class Certification as to damages only. The Court ultimately granted the partial summary judgment motion and dismissed Plaintiffs’ injunctive and declaratory relief claims without prejudice, allowing Plaintiffs to seek leave to name new additional plaintiffs for the injunctive and declaratory class relief, which Plaintiffs will file on November 2, 2021.
The parties have also filed Daubert motions to exclude one another’s’ expert witnesses, with briefing to conclude this fall. Plaintiffs expect the City to also file a Motion for Summary Judgment on the merits of their claims for damages on the November 8, 2021 deadline. Presently, the case is set for trial beginning on February 14, 2022.
Plaisance v. DeJoie was filed in February 2021, challenging the Louisiana Workforce Commission’s failure to determine eligibility for unemployment benefits, hear appeals, and issue vital unemployment assistance during COVID-19. The State arbitrarily terminates benefits without adequate notice, leaving claimants with no financial support during an appeal process that can last well over a year. Many of these claimants are entitled to benefits, yet they go without assistance because of the State’s systemic due process violations. The National Center for Economic Justice (“NCLEJ”) subsequently joined the litigation representing the plaintiffs.
The goal of the litigation is to transform Louisiana’s Unemployment Insurance process so that claimants—primarily low income people of color—receive clear notice, timely benefits, and a prompt hearing prior to the termination of benefits. During the proposed class period, 1.3 million people filed claims. The insufficient notices potentially impact all of them. A smaller subset of class members, 14,000 people, were denied access to an appellate process between June 2020 and June 2021. For example, one of the name plaintiffs applied for benefits in April 2020—the day after her workplace closed in response to the pandemic—and did not receive any benefits until July 2021, more than one year later. At no point has she received proper notice regarding her benefits or the delays, nor was she given the opportunity to appeal her deprivation of benefits.
The State has chosen to defend the litigation aggressively. The State filed a motion to dismiss, which NCLEJ successfully opposed, after which NCLEJ amended the complaint. In response to the amended complaint, the State filed a motion for judgment on the pleadings, which remains pending. The Court—after refusing to enter a scheduling order for more than 6 months—has ordered a tight time schedule for class discovery and briefing. NCLEJ is nearing the end of class discovery, including paper discovery and 30(b)(6) depositions. NCLEJ will be moving forward with class certification briefing in January 2022. Merits discovery will follow.
The Barbara McDowell Foundation’s High Impact Litigation Project was responsible for securing pro bono co-counsel for the case from Winston & Strawn. Pro bono assistance is essential as NCLEJ moves into more intensive motion practice and discovery. Winston & Strawn will help manage e-discovery, additional depositions, discovery-related motion practice, and secure any expert witnesses needed. As a small and lean organization with extremely limited resources, NCLEJ is incredibly grateful to have this support and to the Barbara McDowell Foundation for making it happen.
Samantha R., et al v. North Carolina, et al, pending in State Court in North Carolina, is systemic litigation designed to address the failure of the State of North Carolina to provide appropriate behavioral health services to citizens with intellectual and/or developmental disabilities (I/DD). The case is being handled by Drinker Biddle, Jerry Hartman, and Disability Rights North Carolina. The lawsuit challenges North Carolina’s failure to have a comprehensive or an effective plan for addressing unnecessary institutionalization and provide adequate alternatives to institutionalization.
Subsequent to over two years of discovery, the Court ruled in January 2020 on cross-motions for summary judgment holding that the defendant, the State of North Carolina, failed to abide by the Supreme Court’s Olmstead decision by not integrating into the community disabled individuals with I/DD residing in State institutions. The Court’s Order states that it will ordering the State to draft an Olmstead plan to comply with this integration mandate. The case will now proceed to the remedy phase unless the State appeals.
You can read more about the case in a recent press release from Disability Rights: Press Release Samantha R., et al v. North Carolina, et al.pdf
Children’s Rights, the law firm of Ropes & Gray, and Disability Rights Iowa succeeded after trial in a case, C.P.X. v. Garcia (formerly known as C.P.X. v. Foxhoven and G.R. v. Foxhoven), that was filed in November 2017 on behalf of boys confined to Iowa’s Boys State Training School who have significant mental illnesses. The case was initiated under the auspices of the Foundation's High Impact Project.
The lawsuit asserted that the State, in order to control these boys, age 12 to 19, relied upon potentially harmful psychotropic medications administered without appropriate oversight or consent, solitary confinement, and full-body mechanical restraints, instead of providing proper mental health treatment. Plaintiffs claimed violations of their right to substantive due process, as guaranteed by the Fourteenth Amendment to the United States Constitution; their right to be free from cruel and unusual punishment, as guaranteed by the Eighth Amendment to the U.S. Constitution; and their rights under the Americans with Disabilities Act and the Rehabilitation Act.
The trial court in a 116 page decision found that the School violated the boys’ constitutional rights in the manner in which it punished and tortured students. It ordered that the school submit a plan to remedy these constitutional deficiencies in its mental health treatment programs, provide effective psychotherapy and treatment plans, cease the use of solitary confinement/isolation except where the student’s behavior poses a risk of physical harm to any person, not use physical restraints, the so-called “wrap,” and arrange for staff training. The Court further ordered the appointment of a monitor to oversee the school’s performance to ensure that the school meets its rehabilitative and treatment goals. The Court’s decision appears here.
A federal judge certified a class action charging the NYC Transit Authority, an arm of the Metropolitan Transportation Authority (MTA), with systemic due process violations in a case being coordinated by the Barbara McDowell Foundation through its Pro Bono High Impact Litigation Project. The civil rights complaint challenges the Transit Authority’s unlawful seizures of New Yorkers’ state tax refunds to collect on default judgments—some going back 20 years or more—without providing legally-required notice or a fair opportunity to contest the judgments.
Scroll down to the 2019 section below to view the original case summary under the heading, “Challenge to the Seizing Without Due Process By New York City of State Tax Refunds for Transit Violations”.
For more information find here the press release with the full case update. Additional partners in the litigation included New Economy Project, National Center for Law and Economic Justice, and Faegre Drinker.
As part of its High Impact Litigation Project, the Barbara McDowell Foundation, in conjunction with the law firm Drinker Biddle, the National Center for Law and Economic Justice, and New Economy Project, filed a federal class action lawsuit charging the NYC Transit Authority, an arm of the Metropolitan Transportation Authority, with systemic due process violations. The civil rights action challenges the Transit Authority for seizing people’s state tax refunds to collect on alleged default judgments for NYCTA violations, some going back 20 years or more, without legally-required notice or opportunity to review documentation that would support the Transit Authority’s actions.
Filed jointly in the Southern District of New York, the lawsuit claims that the NYCTA has failed to provide even minimal documentation concerning alleged violations – including basic information concerning the original infraction or copies of any relevant notice. The Transit Authority’s failure to provide such information makes it all but impossible for those whose refunds were confiscated to effectively contest the default judgments against them.
The Public Interest Law Center and Drinker Biddle under the auspices of the Foundation's High Impact Project have filed complaints with the Philadelphia Human Rights Commission against landlords refusing to accept Section 8 Housing Vouchers from potential tenants who have low incomes.
In Philadelphia, Section 8 Housing Vouchers are administered through the Housing Choice Voucher program. More than 20,000 families are served by the program and the majority of them are minorities. Philadelphia’s Fair Practices Ordinance prohibits landlords from discriminating against tenants based on their source of income, including the use of Housing Choice Vouchers. The defendants in these cases have violated the Fair Practices Ordinance because they refused to accept tenants using Housing Choice Vouchers. The complaints are the first of their kind filed in Philadelphia.
The Philadelphia Inquirer featured a story about the case that can be found here.
The Bazelon Center for Mental Health Law, Disability Rights New York, Disability Rights Advocates, and Drinker Biddle under the auspices of the Foundation's High Impact Project are investigating a school system that fails to integrate school children into normal school classes and programs.
Drinker Biddle & Reath LLP, along with Disability Rights Advocates and the Washington Lawyers’ Committee, in coordination with the Barbara McDowell Foundation’s High Impact Pro Bono Litigation Project, secured a groundbreaking settlement that will have a profound, positive impact on those with disabilities in the nation’s capital and beyond.
The agreement settles a 2014 lawsuit filed on behalf of the United Spinal Association, DC Center for Independent Living, and two District residents with disabilities that alleged numerous critical deficiencies in the District’s emergency preparedness plan which, if left unaddressed, would have resulted in people with disabilities being left behind in large-scale disasters. These problems included not putting accessible evacuation options in place and not planning for emergency communications with persons with hearing and vision disabilities. This case was part of the Drinker Biddle Barbara McDowell High Impact Pro Bono Initiative.
As a result of this historic settlement, the District has agreed to a comprehensive three-year plan that includes: (1) creating a Disability Community Advisory Group that will provide disability-specific recommendations for emergency plans and trainings, (2) ensuring that emergency-related public communications are disseminated in accessible formats, (3) considering physical accessibility a priority when opening emergency shelters, (4) creating a Post-Emergency Canvassing Operation plan, (5) ensuring that transportation resources are sufficient to meet the potential demand for accessible transportation during emergencies, and (6) creating and implementing a work plan to improve procedures for evacuating people with disabilities from high-rise buildings.
Update on “FOIA” Litigation Filed Against the United States Customs and Border Protection Service (“CBP”).
The American Immigration Council (“the Council”) represented by Drinker Biddle and Jerry Hartman, in coordination with the Barbara McDowell Foundation's High Impact Project, brought suit in the United States District Court for the District of Columbia on June 6, 2016, to force the United States Customs and Border Protection (“CBP”) to turn over information to it about complaints against agency personnel nine months after seeking the records through a Freedom of Information Act (“FOIA”) request.
The suit seeks an order forcing the prompt search and handover of information the Council requested regarding allegations of misconduct and the processing of complaints against CBP personnel, so that the Council can determine whether CBP has made progress in responding to complaints of abusive behavior by its agents.
In a previous FOIA request, the not-for-profit American Immigration Council obtained data from CBP containing information on 809 abuse complaints against CBP agents. That information was the basis of a 2014 report by the Council, called “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse.” That report found that in nine southwestern Border Patrol sectors, 40 percent of the complaints were for “physical abuse” and another 38 percent were for “excessive force.” Ninety-seven percent of the 809 cases examined were resolved by CBP as “no action,” according to the data produced by CBP in response to the prior FOIA request. The present suit is an effort to follow up on that report and to measure any progress made since January 2012.
As a result of the litigation, CBP produced documents demonstrating that it had not made any significant progress in addressing complaints of abuse filed against its agents. Based on the documents produced, the Council issued a second report in August 2017 entitled, “Still No Action Taken: Complaints Against Border Patrol Continue to Go Unanswered.”
In October 2019, the parties settled the case. Pursuant to the settlement, CBP will produce, within 45 days, an additional set of documents covering its response to complaints of abuse filed against its agents over the last three years. These documents will allow the Council to produce another report regarding CBP’s handling of complaints against it, with an eye towards determining whether the change in Administration has resulted in any change in the agency’s response to these complaints. As part of the settlement, CBP also will pay attorneys’ fees in the amount of $60,000.
Update on “FOIA” Litigation Filed Against the United States Customs and Border Protection Service (“CBP”).
Represented by Drinker Biddle and Jerry Hartman, the American Immigration Council (“AIC”) filed suit against CBP in the United States District Court for the District of Columbia in June 2016, to compel compliance with a Freedom of Information Act (“FOIA”) request AIC had served in late 2015 to obtain records relating to complaints of misconduct lodged against Border Patrol officers since January 2012. In a report published in 2014, entitled “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse,” AIC had documented that 809 complaints alleging misconduct had been filed against CBP personnel during the three-year period running from 2009 through 2011, and that an astonishing 97% of the cases in which CBP issued a formal decision resulted in disposition of “No Action Taken” against the officer in question. The FOIA request AIC served in 2015 was designed to obtain records relating to more recently filed complaints to assess whether CBP was making progress in reducing the incidence of complaints against CBP personnel and of processing such charges in a fashion that promotes accountability.
With much perseverance by pro bono counsel, CBP produced—on a rolling basis—thousands of pages of documents relating to complaints that noncitizens filed against CBP agents and officers, along with previously undisclosed copies of CBP’s manual for processing, investigating and resolving complaints. Sufficient data had been produced by August 2017, that the Council was able to issue a special report, entitled “Still No Action Taken; Complaints Against Border Patrol Agents Continue to Go Unresolved.” That report documents the seriousness of the complaint allegations, the majority of which involved physical abuse, but which also included sexual abuse, theft of property, and verbal abuse. A shocking 95.9% of the cases in which an outcome was reported by CBP resulted in “no action taken.” The FOIA and the Council’s special report have received widespread coverage, including citations in the media, reports by policy and research institutions, law review articles, and blogs—all of which has brought much-needed transparency to the ongoing inadequacies of CBP’s system for investigating complaints against its officers and disciplining them when warranted.
The FOIA production is concluded. The parties now are engaged in negotiations over attorney’s fees.
Samantha R., et al v. North Carolina, et al, pending in State Court in North Carolina, is systemic litigation designed to address the failure of the State of North Carolina to provide appropriate behavioral health services to citizens with intellectual and/or developmental disabilities (I/DD). The case is being handled by Drinker Biddle, Jerry Hartman, and Disability Rights North Carolina. The lawsuit challenges the systemic flaws in the design, funding, implementation, and administration of the North Carolina’s health and human services system. There are thousands of people with I/DD in North Carolina who are institutionalized unnecessarily and thousands more at risk for institutionalization.
Discovery was conducted over the course of nearly two years, and revealed that the State does not have a comprehensive or effective plan for addressing unnecessary institutionalization, and has failed to provide adequate alternatives to institutionalization. The parties have filed cross motions for summary judgment, and a hearing has been set for October 30, 2019.
Dan Aiken, a partner at Drinker Biddle, under the auspices of the Foundation represents a Pennsylvania-based mother of two children, who seeks to terminate all parental rights of the children’s father, who was also the mother’s adopted father. Our client suffered more than 15 years of rape by her adopted father, beginning when she was four. Our client’s two children are the product of that abuse. Pennsylvania law has been interpreted, so far, to prevent our client from terminating her abuser’s parental rights unless she is seeking to do so in aid of giving up her children for adoption, or in aid of finding a new partner to adopt her children as a co-parent. We contend that these unnecessarily restrictive requirements violate our client’s rights under the United States and Pennsylvania Constitutions. So far, the trial court has found that, although termination of parental rights would otherwise be appropriate under the facts of our case, the law prohibited such an order given that there is no anticipated adoption. We have filed a Notice of Appeal and intend to continue litigating this issue. (September 2018)
Child Shackling Case
Drinker Biddle was asked by the Legal Aid Justice Center (“LAJC”) of Charlottesville, Virginia to participate in a federal district court case in Virginia to overturn a sheriff department policy requiring the use of restraints whenever transporting people with a mental disorder unless the “physical condition would not warrant the use of restraints.” The plaintiff bringing the claim was a nine-year old boy who was handcuffed and shackled by sheriff deputies and chained to the inside of a van while being transported from a Community Services Facility to a local hospital seventy miles away. The child was being transported after suffering a mental health crisis. At the time of the placement of restraints the child was awakened from his sleep and did not appear to be a danger to anyone, including himself. The child, who had a history of emotional disorders, suffered severe trauma as a result of the placement of restraints.
The case raises important issues concerning children’s rights to be free from such restraints without regard to the child’s age, mental condition, and physical condition. There is wide-spread concern by social justice organizations to challenge such conduct with respect to children by law enforcement agencies. The case was to be brought under Section 1983 for violation of the child’s constitutional rights under the Fourth Amendment to be free from unlawful seizure accomplished through excessive force and the child’s rights under Title II of the Americans with Disabilities Act for discriminating and failing to accommodate an individual with a mental disability.
After drafting the complaint and finding an expert to evaluate the nine-year old plaintiff, the plaintiff’s mother and doctor became concerned that the expert’s evaluation itself and the plaintiff’s necessary involvement in the litigation may result in further trauma to the child. Accordingly, authorization to bring the action on behalf of the child was withdrawn.
Drinker Biddle and LAJC continue to believe strongly that the Sherriff’s restraint policy is misguided and continues to cause harm to children with mental health disorders. Accordingly, Drinker Biddle and LAJC are monitoring the situation and looking for opportunities to attack the policy under the appropriate circumstances.
Update on “FOIA” Litigation Filed Against the United States Customs and Border Protection Service (“CBP”) in 2016
Represented by Drinker Biddle, the American Immigration Council (“AIC”) filed suit against the CBP in the United States District Court for the District of Columbia in June 2016, to compel compliance with a Freedom of Information Act (“FOIA”) request AIC had served in late 2015 to obtain records relating to complaints of misconduct lodged against Border Patrol officers since January 2012. In a report published in 2014, entitled “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse,” AIC had documented that 809 complaints alleging misconduct had been filed against CBP personnel during the three-year period running from 2009 through 2011, and that an astonishing 97% of the cases in which CBP issued a formal decision resulted in disposition of “No Action Taken” against the officer in question. The FOIA request AIC served in 2015 was designed to obtain records relating to more recently filed complaints to assess whether CBP was making progress in reducing the incidence of complaints against CBP personnel and of processing such charges in a fashion that promotes accountability. Before filing its lawsuit in June 2016, AIC had received no substantive response to the FOIA request. Since the suit was filed, CBP produced a 780-page spreadsheet that identifies certain data points concerning all complaints lodged against CBP personnel since January 2012. CBP is now in the process of producing the underlying documentation relating to a random sampling of more than 100 such complaints, the review of which is intended to allow AIC to determine whether the data provided in the spreadsheet accurately reports the facts as revealed in the underlying documentation, and is otherwise sufficient to meet AIC’s informational needs.
End of year 2017 update on “FOIA” Litigation Filed Against the United States Customs and Border Protection Service (“CBP”) in 2016.
Represented by Drinker Biddle and Jerry Hartman, the American Immigration Council (“AIC”) filed suit against the CBP in the United States District Court for the District of Columbia in June 2016, to compel compliance with a Freedom of Information Act (“FOIA”) request AIC had served in late 2015 to obtain records relating to complaints of misconduct lodged against Border Patrol officers since January 2012. AIC had previously published a report entitled “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse,” which documented that 809 complaints alleging misconduct had been filed against CBP personnel between 2009 and 2011, and that an astonishing 97% of the cases CBP took the time to resolve resulted in disposition of “No Action Taken” against the officer in question. The pending FOIA litigation relates to a follow-up FOIA request that AIC served in 2015 to obtain records relating to more recently filed complaints, in order to assess whether CBP was making progress in reducing the incidence of misconduct by CBP personnel and in processing complaints in a fashion that promotes accountability. Before filing its lawsuit in June 2016, AIC had received no substantive response to the FOIA request. After the lawsuit was filed, CBP produced a 780-page spreadsheet that identified all complaints lodged against CBP personnel since January 2012, and subsequently produced the underlying documentation relating to more than 100 distinct types of complaints of alleged misconduct, including physical abuse, sexual assault, failure to provide medical attention, and theft. Although now satisfied with CBP’s production of case-specific records responsive to its FOIA Request, AIC has pressed for production of additional records relating more generally to the procedures and policies CBP follows in processing those complaints. CBP has advised the Court and AIC that it expects to complete production of those documents by January 15, 2018.
Institutionalization and Segregation of Disabled Persons Under North Carolina’s Health Care System
Drinker Biddle and Disability Rights North Carolina have filed a lawsuit to address the failure of the State of North Carolina to provide appropriate behavioral health services to citizens with intellectual and/or developmental disabilities (I/DD). The case was filed on behalf of five plaintiffs with I/DD who are subject to improper segregation or are at risk of segregation. The lawsuit challenges the systemic flaws in the design, funding, implementation, and administration of the North Carolina’s health and human services system. There are thousands of people with I/DD in North Carolina who are institutionalized unnecessarily at great public expense. Moreover, the waiting list for community-based services and other deficits in community-based service system place thousands more at risk for institutionalization.
People with I/DD fare better in home and community-based settings and have a legal right not to be segregated or institutionalized unnecessarily. It is also significantly less expensive to provide support for people with I/DD to live at home than it is to keep them institutionalized. Nevertheless, North Carolina ranks 48th in the overall effect of state policies and practices on promoting independence for people with I/DD, according to a 2016 national report published by United Cerebral Palsy.
The complaint in the case was filed on May 24, 2017, in State court in North Carolina, alleging violations of the North Carolina Constitution and the State statute that bars discrimination and segregation based on disability.
In December of 2017, the North Carolina state Court upheld three out of four elements of the complaint, including all the provisions focused on the legal right of individuals to access home and community based services and avoid being subject to discrimination. Discovery and depositions in the case are ongoing.
Update on settlement in litigation brought by the New York Center for Law and Economic Justice and lawyers from Drinker Biddle on behalf of blind persons to receive Medicaid and food stamp information:
Rafferty v. Doar, is the federal class action that challenged New York State and New York City agencies long-standing, systemic failure to provide public assistance applicants and recipients who are blind or seriously visually impaired with information contained in written public benefit documents that is critical to maintaining their eligibility. A Consent Decree, followed lengthy and complex negotiations with the New York City Human Resources Administration (HRA), the New York State Office of Temporary and Disability Assistance (OTDA), and the New York State Department of Health (DOH). The federal court in the Southern District of New York approved the landmark settlement in October 2015. As part of the Consent Decree, quarterly reporting from the City and State agencies lists the numbers of individuals in the plaintiff class making alternate visual format requests and the types of formats they elect to access public benefit documents.
This reporting demonstrates the significant impact of the Rafferty settlement. Through May of 2017, OTDA has reported that: (1) 2,202 food stamp clients have requested and received eligibility documents converted into one of the four alternate visual formats; and (2) 377 clients have requested and received administrative fair hearing documents converted into one of the alternate visual formats. DOH has reported that 1,985 Medicaid clients have requested and received eligibility documents converted into one of the four alternate visual formats.
In conjunction with the Foundation’s High Impact Project, Children’s Rights and Disability Rights Iowa filed in November 2017 G.R. v. Foxhoven on behalf of all children confined to Iowa’s Boys State Training School who have significant mental illnesses. Jerry Hartman, President of the Barbara McDowell Foundation, and the law firm of Ropes & Gray LLP are co-counsel. The lawsuit asserts that these boys, aged 12 to 19, do not receive the mental health treatment needed to fulfill the facility’s mission of providing “a program which focuses on appropriate developmental skills, treatment, placements and rehabilitation.” Instead of providing this necessary mental health treatment, the facility to control youths incarcerated there relies upon potentially harmful psychotropic medications administered without appropriate oversight or consent, solitary confinement, and full-body mechanical restraints. Plaintiffs claim violations of their right to substantive due process, as guaranteed by the Fourteenth Amendment to the U.S. Constitution; their right to be free from cruel and unusual punishment, as guaranteed by the Eighth Amendment to the U.S. Constitution; and their rights under the Americans with Disabilities Act and the Rehabilitation Act. They are seeking a court order to prevent policies and practices that violate these constitutional and federal statutory rights.
Update on “Debtor Prison” Litigation Filed in 2015
Efforts continued in 2016 to reform the City of Austin’s practice of jailing individuals for failing to pay fines for petty misdemeanors and traffic tickets and failing to appoint counsel to those subject to those penalties. The action brought in the United States District Court for the Western District of Texas by a team of lawyers from Drinker Biddle, Susman Godfrey, Texas Fair Defense Project and the University of Texas Civil Rights Clinic was amended and refiled as Harris v. City of Austin, following which a setback was suffered when the district court dismissed that action without prejudice on March 16, 2016. The district court’s ruling does not prevent a new filing on behalf of a different plaintiff, but since the court’s ruling the litigation team has been working with a broad coalition on local legislative reforms to end the process of jailing individuals for petty misdemeanors and traffic tickets and to appoint counsel for those individuals.
The American Immigration Council (“AIC”) represented by Drinker Biddle brought suit in the United States District Courts for the District of Columbia on June 6, 2016, to force the United States Customs and Border Protection Service (“CBP”) to turn over information to it about complaints against agency personnel nine months after seeking the records through a Freedom of Information Act (“FOIA”) request.
The suit seeks an order forcing the prompt research and handover of information AIC requested in October regarding allegations of misconduct and the processing of complaints against CBP personnel, so that CBP can follow up earlier reports that detailed allegations of force and abusive behavior that, for the most part, met with no action by CBP.
In a previous FOIA request, the not-for-profit American Immigration Council obtained data from CBP containing information on 809 abuse complaints against CBP agents. That information was the basis of a 2014 AIC report called “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse.” That report found that in nine Southwestern Border Patrol sectors, 40 percent of the complaints were for “physical abuse” and another 38 percent were for “excessive force.” Ninety-seven percent of the 809 cases examined were resolved by CBP as “no action,” according to the AIC’s report. The suit is an effort to follow up on that report and to measure any progress made since January 2012.
A settlement was reached in a case brought by a team of Drinker Biddle & Reath lawyers from the Washington and Philadelphia offices in partnership with a team of lawyers from the National Center for Law and Economic Justice to represent a class of blind and seriously visually impaired individuals. The class sued the New York City Human Resources Administration, the New York State Office of Temporary Disability Assistance, the New York State Department of Health, and the Commissioners of these agencies for being denied their right to receive Medicaid and Food Stamps benefits information in formats that are accessible to them. See Rafferty v. Doar, No. 13-cv-1410 (S.D.N.Y.).
Lawyers from Drinker Biddle along with lawyers from the Texas Fair Defense, the University of Texas Civil Rights Clinic, and the Susman Godfrey firm in Houston, Texas brought a class action against the City of Austin in a case styled Gonzales v. Salazarasserting that its practice of incarcerating individuals for failure to pay their debts for fines and fees for petty misdemeanors, such as traffic tickets, without legal representation was unconstitutional in violation of the Sixth and Fourteenth Amendments to the United States Constitutions which protected their rights to counsel, due process, and equal protection. This case is the largest case to date of similar cases brought throughout the United States attacking similar practices by other jurisdictions. These suits have attracted media attention, including suits in the New York Times that appear here. An additional article can be found here.
A team of Drinker Biddle & Reath lawyers from the Washington and Philadelphia offices in partnership with the DC Prisoners’ Project of the Washington Lawyers Committee for Civil Rights and Urban Affairs are investigating a possible lawsuit and other actions to be taken against state and federal government agencies relating to their treatment of residents of government and privately-run halfway houses. In particular, the team is investigating various constitutional violations including due process, equal protection, and cruel and unusual punishment, and will likely seek damages and injunctive relief in the eventual lawsuit.
District of Columbia Sued for Failure to Serve People with Disabilities During Disasters
A team of Drinker Biddle & Reath lawyers from the Washington office is partnering with a team of lawyers from the Disability Rights Advocates and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs to represent United Spinal Association and the DC Center for Independent Living, as well as three individuals. The class is suing the District of Columbia and Mayor Vincent Gray for the District’s poor emergency planning for persons with disabilities. United Spinal v. District of Columbia(U.S.D.C. for District of Columbia)
As alleged in the Complaint filed on September 9, 2014, the District of Columbia’s emergency planning violates the Americans with Disabilities Act, the Rehabilitation Act, and the D.C. Human Rights Act because of the District’s failure to publicize any information about accessible emergency shelters, failure to plan for emergency communications to persons who are deaf and blind, failure to put accessible evacuation options in place, and failure to plan for supply chain disruptions for medication and replacement durable medical equipment. The lawsuit seeks declaratory and injunctive relief requiring the District to develop and implement an emergency preparedness program that addresses the needs of persons with disabilities during emergencies.
The parties are engaged currently in settlement discussions and are working diligently toward resolving the issues raised by the class action complaint. The parties agreed to work with a mediator approved by the court, and conducted their first session with the mediator in February 2015. Since then, the parties have continued to meet to discuss the steps being taken by the District, the substance of the plans, and the involvement of people with disabilities in D.C. in the planning and implementation. The District reported that it has now completed its assessment of its emergency shelters for purposes of ensuring all are accessible to disabled persons and is working to implement changes that may be necessary. The District is also nearing completion of a draft of a new emergency preparedness plan designed to accommodate the needs of the District’s disabled citizens, and will be sharing the draft with plaintiffs’ counsel for their comments and input.
Update on the litigation at year-end 2017: The parties continue to mediate and are making great strides towards protecting the need of people with disabilities in D.C.
School Sexual Assault Case: Richards v. Williamson County Board of Education
On May 8, 2015, Barbara McDowell High Impact Litigation Project client Dallas Richards accepted a $100,000 offer of judgment in her sexual assault and bullying case brought against the Williamson County School System (Tennessee) in the U.S. District Court for the Middle District of Tennessee.
Ms. Richards had stopped attending a public high school in Williamson County, Tennessee, because school officials failed to take appropriate steps to protect her from sexual harassment and assault by a male student with a known history of violence and sexual misconduct. Ms. Richards endured several assaults before withdrawing from the high school, and was psychologically traumatized as a result. The suit was filed against the school district under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in schools that receive federal funds.
In 2013, while Ms. Richards was a senior at Independence High School, she was physically and sexually assaulted several times by Michael Alexander, a special education student with a history of violent behavior who was required to be supervised at all times by a faculty member or aide, pursuant to his Individualized Education Program. Prior to enrolling Mr. Alexander at the high school for the 2012-13 academic year, a law enforcement officer advised school officials that Mr. Alexander posed a safety risk to students. Mr. Alexander had been expelled from a previous private school for sexually harassing female students. Prior to that, while attending a middle school in the district, he had violently attacked both female and male students. The school board was aware of Mr. Alexander’s history before he sexually assaulted Ms. Richards.
The first assault took place in the school gym. Mr. Alexander grabbed Ms. Richards from behind and groped her breasts. Ms. Richards immediately reported the incident to a teacher and a coach who was supposed to be supervising Mr. Alexander. The school did not discipline Mr. Alexander or take any other remedial action.
The next series of attacks took place in the school’s athletic training room. Again, Mr. Alexander was left unsupervised. Ms. Richards was seated on a training table, when Mr. Alexander grabbed her and began to lick her leg and back. Ms. Richards yelled at Mr. Alexander to stop, and a male student in the room intervened, pushing Mr. Alexander off Ms. Richards. Mr. Alexander left the training room, but returned a bit later. He charged at Ms. Richards, grabbing her around the waist and legs. When she screamed, he wrapped his hands around her throat and began to choke her, then licked her face. This time it took two male students in the room to pull Mr. Alexander off Ms. Richards. Mr. Alexander then grabbed one of the male students by the hair and pulled him around, before exiting the room. Mr. Alexander returned to the training room a third time, and was even more violent. He grabbed Ms. Richards and tried to lick her buttocks. When she tried to free herself from his grip, he lifted her in the air, grabbing one of her breasts with one hand, and pushing his other hand in her vaginal and buttocks area. Ms. Richards screamed and he then dropped her on a training table. The school’s personal trainer overhead the screaming, entered the training room, and stopped Mr. Alexander’s attack.
Ms. Richards reported this series of attacks to several coaches. She also told her parents, who then met with the school’s principal, assistant principal, and special needs counselor. The parents expressed their concerns about the multiple attacks on their daughter and the school’s lack of supervision for Mr. Alexander. Mr. Alexander was suspended from school for five days. However, when he returned, he continued to walk the school’s halls unsupervised and verbally harassed Ms. Richards each time he saw her. Despite Ms. Richards and her parents’ complaints about this, the school took no action to protect Ms. Richards from the continuing harassment or to ensure that Mr. Alexander was supervised.
As a result of having to transfer to another high school in the midst of her senior year, Ms. Richards was also deprived of access to a number of educational benefits. She was unable to complete scholastic and extracurricular activities, including sports and serving as a buddy to special needs children. She was also unable graduate with a diploma in Criminal Studies, the discipline she had been pursuing, because it wasn’t offered at her new school.
The judgment covers almost all of Ms. Richards’ claimed damages. Ms. Richards was very happy with the result and relieved that her courage in taking this stand will inure to the benefit of both victims within the Williamson County school system as well as others across the country who have had to endure such personal assaults to their person and dignity.
Access By Blind Individuals To Food Stamps and Medicaid
A team of Drinker Biddle & Reath lawyers from the Washington and Philadelphia offices is partnering with a team of lawyers from the National Center for Law and Economic Justice to represent a class of blind and seriously visually impaired individuals. The class is suing the New York City Human Resources Administration, the New York State Office of Temporary Disability Assistance, the New York State Department of Health, and the Commissioners of these agencies for being denied their right to receive Medicaid and Food Stamps benefits information in formats that are accessible to them. See Rafferty v. Doar, No. 13-cv-1410 (S.D.N.Y.).
At present, the responsible agencies only provide Medicaid and Food Stamps materials in standard written formats, and have refused requests to provide these materials in formats such as braille, large print, or audio-recording that people with serious visual impairments can access without assistance. In doing so, these agencies have imposed significant hardships upon some of our most vulnerable citizens and have jeopardized their ability to receive federal benefits to which they are entitled and depend upon to survive. The team from Drinker and the NCLEJ is seeking declaratory and injunctive relief to compel these agencies to provide Medicaid and Food Stamps materials in formats accessible to those with serious visual impairments, as required by the Americans with Disabilities Act and myriad federal, state, and local laws and regulations.
On August 7, 2013, the US District Court for the Southern District of New York entered a stipulation and order, which certified a litigation class consisting of: “All New York City residents who: (1) have visual impairments that substantially limit the major life activity of seeing or otherwise have a visual disability as ‘disability’ is defined under the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973; (2) are current or future applicants for or recipients of Supplemental Nutrition Assistance Program (‘SNAP’) and/or Medical Assistance (‘Medicaid’) benefits; and (3) need written materials in alternative formats for effective communication regarding SNAP and Medicaid.”
The parties are engaged in extensive settlement negotiations and are working diligently toward resolving the issues raised by the class action complaint. The Court has referred the case to the magistrate judge to facilitate negotiations toward a settlement agreement that Plaintiffs hope will be achieved in the near future. These negotiations have already benefited several members of the class, and we are optimistic that a settlement can be reached with the City and State that will ensure all blind and visually impaired residents of New York City have access to information about Medicaid and Food Stamps in formats that are accessible to them.