2022 Grantees Submit Third Quarter Case Reports
In accordance with the McDowell Foundation’s requirements for grant reporting, the five 2022 grantees submitted their third quarter case updates of the grant year. Their case updates appear below.
In addition to reporting on their progress, each grantee submitted third quarter timesheets for their case work. The average dollar value in attorney time spent by each grantee on their respective case for the third quarter was $38,926.52. For the three quarters of the grant cycle combined, the average dollar value in attorney time was $155,336.09.
Asylum Seeker Advocacy Project (ASAP)
In the ongoing CASA v. Mayorkas litigation, the Asylum Seeker Advocacy Project (ASAP) has continued to seek to hold the government accountable and to ensure that the now vacated asylum work authorization rules cease harming asylum seekers. Although the Trump Administration’s asylum work authorization rules were ordered vacated on February 7, 2022, over four months later the government continues to implement the rules in significant ways. Despite that, the government nevertheless sought to dismiss ASAP’s case as moot and dissolve the preliminary injunction.
On June 13, 2022, the CASA court heard arguments on mootness. ASAP attorneys presented arguments on why CASA should not be dismissed. The judge ultimately declined to dismiss the case and agreed with attorneys from ASAP that there seem to be live issues to resolve given the ongoing application of the Trump asylum work authorization rules. As a result, the Court chose to keep the preliminary injunction in place for members of ASAP and CASA. In a further victory, the Court ordered a briefing schedule to address further relief requested by Plaintiffs and strongly encouraged the government to accede to Plaintiffs’ demands voluntarily. ASAP is now engaged in ongoing negotiations with the government, while also briefing a new motion for summary judgment, which will request additional injunctive relief. ASAP is also preparing an opposition to the government’s forthcoming motion to dismiss. ASAP will continue to litigate this case and seek to preserve the injunction, which has allowed over 150,000 asylum seekers to gain work authorization.
Children’s Legal Center
On February 11, 2022, the class action of JTM et al vs. Mayorkas et al was filed in the Northern District of Illinois, Case No. 1:2022-cv-0774. Defendants were served with the lawsuit. On March 7, 2022, an attorney for the United States Department of Justice filed their appearance in the case.
The matter was set for a status hearing on April 28, 2022, at 9:00am before the Honorable John Z. Lee. Counsel for the parties met as required by Federal Rule of Civil Procedure 26(f) to discuss the preparation of a proposed case schedule. We are currently preparing the draft of that report.
On April 25, 2022, DHS (Department of Homeland Security) filed a Motion to Dismiss alleging that the claims against the ICE (Immigration and Customs Enforcement) are barred by a six-year Statute of Limitations, that Plaintiffs failed to demonstrate that the seizure is unreasonable, that Plaintiffs lack standing, and that Plaintiffs failed to assert a viable Bivens claim. On April 27, 2022, the Court struck the April 25, 2022, hearing date and entered a briefing schedule. Plaintiffs must now respond to DHS’s Motion to Dismiss by May 20, 2022. DHS’ reply brief is due June 3, 2022.
We decided that the best path was to file an Amended Complaint addressing the allegations in DHS’s Motion to Dismiss and negotiated a deadline with DHS of June 6, 2022. On June 6, 2022, we filed an Amended Complaint addressing the items in DHS’s Motion to Dismiss, including the three “test families” in which we requested ICE return the confiscated documents and in which two of the three families received no response from ICE, as well as the arbitrary and capricious application of the policy.
DHS’s deadline to provide a responsive pleading to our Amended Complaint is due on August 10, 2022.
National Center for Lesbian Rights (NCLR)
On August 30, 2021, United States District Court for the Western District of Washington dismissed the complaint filed by Brian Tingley, a licensed therapist who brought a constitutional challenge to Washington’s 2019 law protecting minors from efforts by state-licensed therapists to change their sexual orientation or gender identity. Earlier, the court had granted NCLR’s motion for leave to intervene in the case on behalf of Equal Rights Washington, the state’s largest LGBTQ civil rights group, to defend the Washington law against Tingley’s challenge alongside attorneys from the State of Washington Attorney General’s office. The district court ruled that Tingley’s claims for violation of his free speech, due process, and religious liberty rights must be dismissed based on earlier decisions of the Ninth Circuit Court of Appeals upholding California’s law protecting minors from conversion therapy. Tingley then appealed to the Ninth Circuit, asking the court to overrule its earlier decisions upholding conversion therapy laws.
The appeal is now fully briefed. The Ninth Circuit held oral argument on May 17, 2022. The questions from the panel largely focused on whether a three-judge panel of the court must follow prior Ninth Circuit decisions upholding a substantially identical California law. The judges’ questions suggested that all members of the panel agreed that Tingley faces a difficult burden to persuade the Court that the Supreme Court’s subsequent decision in NIFLA v. Becerra relieves the panel of the obligation to follow circuit precedent. The Ninth Circuit will likely issue its opinion in the appeal within the next few months. If the State of Washington and Equal Rights Washington prevail in the appeal, Tingley likely will either seek rehearing en banc before a larger panel of the Ninth Circuit or petition the Supreme Court of the United States to review the case.
National Center for Youth Law
The D.S. v. DCYF team has reached a settlement with the Defendants in this case, which has received preliminary approval from the Court. After the Plaintiffs filed a motion for a preliminary injunction and the Court indicated the motion would be granted, the parties agreed to the relief to be contained in the preliminary injunction in June 2021. This preliminary injunction required the defendants to submit a plan detailing how they would cease using hotels and offices for youth housing, limited the circumstances in which youth can be housed in offices overnight, and required the Defendants to increase their efforts to find appropriate placements for youth in exceptional placements. The case was certified as a class action in September of 2021. The parties continued to work with a mediator towards an agreeable settlement throughout the remainder of 2021 and into 2022, while simultaneously engaging in active discovery efforts.
After months of intensive work and meeting repeatedly with the mediator, the parties reached a Settlement Agreement in June 2022. The Agreement requires the creation of three new programs for foster youth in Washington: an Emerging Adulthood Housing Program for older youth who want to live independently, a Professional Therapeutic Foster Parenting Program, and a Statewide Hub Home Model Program. The Agreement also requires the Defendants to undertake a number of practice improvements, including revising licensing standards for group homes, establishing a Kinship Engagement Program, developing referral and transition protocols for youth exiting juvenile justice into the foster care system, and improvements to family group planning processes. Finally, the Agreement requires the Defendants to contract with a Stakeholder Facilitator who will collect input from youth, families, and other interested parties that will inform the settlement’s implementation and evaluate system improvements.
Following a joint motion by the parties, the Court granted preliminary approval to the Settlement Agreement on June 24, 2022. Notice of the Settlement Agreement has been sent to class members, and they may submit objections or comments until August 12, 2022. On September 7, 2022, the Court will hold a fairness hearing to determine if the Settlement Agreement should receive final approval. In the same hearing, the Court will consider the Plaintiffs’ submission regarding attorney’s fees.
New Economy Project
During the third quarter, our work on the appeal of the decision in Esgro Capital Management LLC v. Sharae Banks focused on drafting our reply brief, which we filed on May 12, 2022, and preparing for our June 7 oral argument before the New York Appellate Term, First Department. Unfortunately, on June 17, 2022, the Appellate Term affirmed the trial court’s denial of Ms. Banks’s motion to vacate the default judgment against her for lack of personal jurisdiction. In a cursory, three-sentence decision, the Appellate Term followed the flawed reasoning of a 2007 Appellate Division case, which found that the defendant had waived her personal jurisdiction objection to a default judgment simply by waiting more than one year after learning of the judgment before moving to vacate it. The Appellate Term ignored key facts, including that the debt buyer plaintiff had obtained the default judgment fraudulently, through sewer service; that Ms. Banks has multiple meritorious defenses supported by the debt buyer’s own documents; and that she had not previously known that she had the right to challenge the default judgment in court.
The Appellate Term’s decision flies in the face of New York Court of Appeals jurisprudence establishing that waiver requires a fact-specific inquiry and a finding that one has intentionally abandoned a known right. Disturbingly, the decision also completely ignores the myriad structural obstacles—including fraudulent conduct by debt buyers—that low-income New Yorkers face to asserting their legal rights, and effectively punishes them for being poor or lacking representation. New Economy Project, along with co-counsel The Legal Aid Society and new pro bono counsel Quinn Emanuel Urquhart & Sullivan, LLP, will be seeking leave to appeal the Appellate Term’s decision to the Appellate Division.