Monthly Archives: March 2020

Wicy Wang, CLS ’21

The story of the proposed $26 billion merger between T-Mobile and Sprint began last year, when the Federal Communications Commission and the U.S. Justice Department approved the deal contingent, in part, on the divestiture of certain assets.[1] However, there remained concerns about the merger, which would combine the third- and fourth-largest wireless carriers in the U.S. into an expansive corporation servicing approximately 100 million customers.[2] In June 2019, ten attorney generals, including the New York State Attorney General, filed suit in the Southern District of New York to enjoin the merger from taking place under Section 7 of the Clayton Act; they argued that the increased market concentration would result in “diminished competition, higher prices, and reduced quality and innovation.”[3]

On February 11, the S.D.N.Y. dismissed the case, allowing the merger between Sprint and T-Mobile to move forward.[4] The court did not agree that “the New T-Mobile would pursue anticompetitive behavior that . . . will yield higher prices or lower quality for wireless telecommunications services.”[5] One important factor the court noted was that T-Mobile and Sprint have agreed to keep prices steady for three years following the merger; as part of its antitrust analysis, the court was also skeptical that, absent the merger, Sprint’s financial situation would have allowed it to remain competitive in the telecommunications industry.[6]

From an antitrust perspective, the court primarily looked at two ways in which such a merger would be anticompetitive.[7] Firstly, the court dismissed the possibility that the merger would enable “coordinating effects,” where rival firms work together to set high prices that harm consumers. The court gave particular credence to the argument that in the telecommunications industry, firms compete on other dimensions than price such as capacity advantages.[8] Secondly, the court also discounted “unilateral effects” resulting from a general lack of competition, citing AT&T and Verizon as other active competitors in the telecommunications space.[9]

The merger still has its fair share of skeptics. FCC Jessica Rosenworcel argued last year that the promise by T-Mobile not to raise prices is rendered meaningless by the existence of loopholes and surcharges, and that such a promise might not be enforced by the FCC anyway.[10] Furthermore, the telecommunications industry is notorious for its lack of competition at the local level, because of how closely service is tied to geographic coverage; in the New York City metropolitan area, for instance, “the combined company’s share of subscribers would exceed 50%.”[11] And unsurprisingly, the merger is taking place against a backdrop of general industry consolidation;[12] in 2018, AT&T completed its $85.4 billion merger with Time Warner.

What might explain the court’s decision to dismiss this case is a history of generally conservative judicial approaches to antitrust cases, which are traditionally left to federal agency review. In its decision, the court also expressed a fundamental ambivalence towards deciding antitrust cases, noting that the presentation of expert witnesses on both sides was not only unhelpful but counterproductive, and that “conflicting engineering, economic, and scholarly business models . . . essentially cancel each other out as helpful evidence.”[13] Later on in the opinion, the court argues that without discounting economic models, “more traditional judicial methods” are a better approach.[14] By relying on “traditional judicial methods,” however, the court does turn away from data-driven analyses by experts, relying instead on statements from executives in making its decision.[15]

For now, the New York Attorney General has declined to appeal the case.[16] The merger is moving forward, pending approval from the California Public Utility Commission,[17] although it is unclear at the moment how the state public utility commission’s decision would affect the merger.[18] Regardless of whether the merger eventually takes place, this particular case provides an interesting case of state attorney generals asserting their interest under federal antitrust law.

[1] Makena Kelly, T-Mobile and Sprint Merger Approved By Justice Department, The Verge (July 26, 2019) https://www.theverge.com/2019/7/26/6646158/t-mobile-sprint-merger-justice-department-approves-26-billion-fcc.

[2] Edmund Lee, T-Mobile and Sprint Are Cleared to Merge as the Big Get Bigger, The New York Times (Feb. 11, 2020) https://www.nytimes.com/2020/02/11/business/media/t-mobile-sprint-merger.html.

[3] Redacted Third Amended Complaint, New York v. Deutsche Telekom AG, No. 1:19-cv-5434 (S.D.N.Y. Sept. 18, 2019).

[4] New York v. Deutsche Telekom AG, 2020 WL 635499 (S.D.N.Y. 2020).

[5] Id. at 4.

[6] Id.

[7] Id. at 39.

[8] Id. at 41.

[9] Id. at 43.

[10] Jessica Rosenworcel, The T-Mobile and Sprint Merger Will Only Hurt Consumers, The Atlantic (Oct. 16, 2019) https://www.theatlantic.com/ideas/archive/2019/10/t-mobile-and-sprints-merger-will-hurt-consumers/599245.

[11] Redacted Third Amended Complaint, New York v. Deutsche Telekom AG, No. 1:19-cv-5434 (S.D.N.Y. Sept. 18, 2019).

[12] Edmund Lee, T-Mobile and Sprint Are Cleared to Merge as the Big Get Bigger, The New York Times, (Feb. 11, 2020) https://www.nytimes.com/2020/02/11/business/media/t-mobile-sprint-merger.html.

[13] New York v. Deutsche Telekom AG, 2020 WL 635499 at 2 (S.D.N.Y. 2020).

[14] Id. at 44.

[15] Id.

[16] Jennifer Ablan and Ortenca Aliaj, New York Decides Against T-Mobile-Sprint Merger Appeal, Financial Times (Feb. 16, 2020) https://www.ft.com/content/66fba848-50ed-11ea-90ad-25e377c0ee1f.

[17] Jon Reid and Victoria Graham, Sprint, T-Mobile Still Need OK From California Utility Regulator, Bloomberg Law (Feb. 11, 2020) https://news.bloomberglaw.com/tech-and-telecom-law/sprint-t-mobile-still-need-ok-from-california-utility-regulator.

[18] Sarah Krouse, California Regulators a Potential Obstacle to T-Mobile, Sprint Merger (Jan. 26, 2020), https://www.wsj.com/articles/california-regulators-a-potential-obstacle-to-t-mobile-sprint-merger-11580063967.

Zhihao (Amy) Zhang, CLS ’21

The Second Circuit recently grappled with the scope of a landlord’s duty to intervene in tenant-on-tenant racial harassment under the Fair Housing Act (“FHA”), and the decision may have significant consequences for the future of landlord-tenant litigation.

In Francis v. Kings Park Manor, Inc., the plaintiff, after moving into an apartment complex owned by the defendants, soon became the victim of “a brazen and relentless campaign of racial harassment, abuse, and threats.”[1] While the plaintiff sought help from the police several times and reported the incidents to his landlord, the landlord failed to respond to his complaints, let alone taking any substantive steps to resolve the conflict or evict the harasser from the property. The harasser eventually pled guilty to harassment charges, and the plaintiff subsequently filed this suit against his landlord.

One of the grounds on which the harassed tenant sued his landlord is alleged violation of section 3604 (b) of the FHA[2] and section 3617 of the Act.[3] The plaintiff argued that in failing to remedy a racially hostile housing environment, the landlord’s behavior amounted to intentional discrimination prohibited by the FHA. While the district court dismissed the plaintiff’s FHA claims, the Second Circuit took a different position and reinstated the claims. Noting that the defendants were “actually aware” of the discriminatory behavior and had a history of “[intervening] against other tenants regarding non‐race‐related violations of their leases or of the law,” the Second Circuit concluded that the landlord’s conduct evinced intentional discrimination that is cognizable under the FHA.[4]

In reinstating the plaintiff’s claims, the Second Circuit joined the Seventh Circuit in deeming landlords liable when they fail to intervene in situations concerning tenant-on-tenant harassment on the basis of a protected class.[5] This ruling can lead to a significant increase in litigation attempting to hold landlords accountable even when they themselves are not the primary perpetrators of discrimination. Tenants under the jurisdiction of other circuit courts may cite to this opinion and urge their courts to follow suit.

There is, however, some concern with the actual impact of the Second Circuit’s decision and the legal uncertainty it may create. First, since the court determines that landlord liability in the racial discrimination context can be predicated on a finding of past interventions by the landlord in non-race-related disputes, this may create perverse incentives for landlords to stop addressing all disputes going forward, thus diminishing the quality of housing services. Furthermore, as Judge Livingston points out in her dissent, the court provides no “parameters of the necessary intervention.”[6] The question remains as to what responses landlords must produce to tenants’ complaints in order to avoid a finding of intentional discriminatory practice. In the face of mounting threats of litigation, they may well pass along the burden to those seeking protection under the FHA through more onerous housing costs, further rendering housing inaccessible to those who need it the most.[7]

[1] 944 F.3d 370, 373 (2d Cir. 2019).

[2] Section 3604(b) of the FHA makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b).

[3] “It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the Act].” 42 U.S.C. § 3617.

[4] Francis, 944 F.3d at 379.

[5] Joseph William Singer, Landlord may be liable for fair housing violation if no response to one tenant’s racial harassment of another, Property Law Developments (Dec. 7, 2019), https://scholar.harvard.edu/jsinger/blog/landlord-may-be-liable-fair-housing-violation-if-no-response-one-tenants-racial.

[6] Id. at 395 (Livingston, J., dissenting).

[7] Id. (cautioning that “this decision . . . is but another stumble along the path to ever more litigation that increases housing costs for those who rent, renders affordable housing more scarce, and risks the loss of housing for some of the most vulnerable among us”).

Susannah Price, CLS ’21

On January 30, 2020, the Ninth Circuit issued a decision that may usher intense scrutiny of universities’ past and present practices for addressing sexual misconduct on their campuses.

In Karasek v. Regents of the University of California,[1] three former students who were sexually assaulted while undergraduates at the University of California, Berkeley (Berkeley), sued their alma mater, asserting two theories of liability under Title IX of the Education Amendments Act of 1972 (Title IX).[2]  First, they alleged that Berkeley failed to adequately investigate and respond to their individual reports of sexual assault. Second, they alleged that Berkeley cultivated “a general policy of deliberate indifference to sexual misconduct” against female students that created a “sexually hostile environment” and increased the risk that they would be sexually assaulted.[3] This latter theory of deliberate indifference is known as a “pre-assault claim” due to its reliance on events that occur before the assault in question.[4] The Ninth Circuit affirmed the district court’s judgment in favor of Berkeley with respect to the plaintiffs’ individual assaults, but vacated its dismissal of the pre-assault claim and remanded for further proceedings.[5]

In holding that pre-assault deliberate indifference is a cognizable theory of Title IX liability, the Court explained that a school need not have had actual knowledge of a specific assault for liability to attach when that school’s official policy violates Title IX.[6] Thus, rather than zeroing in on a school’s response to a particular report of sexual assault, pre-assault claims allege that a school’s policies and practices, in general, contribute to the occurrence of sexual misconduct by failing to adequately prevent it.[7] According to the Court, a pre-assault claim should not be dismissed if the plaintiff plausibly alleges that: “(1) a school maintained a policy of deliberate indifference to reports of sexual misconduct, (2) which created a heightened risk of sexual harassment (3) in a context subject to the school’s control, and (4) the plaintiff was harassed as a result.”[8] The Court did not provide further guidance as to what conditions would satisfy this standard, but rather left it to the district court to determine on remand.[9]

Despite the Court’s reassurances that universities are not required to “purge” their campuses of all sexual misconduct or “guarantee[] the good behavior of [their] students,” Karasek has serious implications for universities in the Ninth Circuit. Some predict that this decision will cause previously adjudicated Title IX complaints to face more exacting inspection.[10] For example, since Karasek establishes a framework that focuses on policies prior to the occurrence of sexual assault, plaintiffs bringing pre-assault claims will likely seek to introduce the details of past complaints as relevant to proving their own cases.[11] Attorneys representing educational institutions worry that this, in turn, may raise privacy concerns and increase the scope and cost of discovery.[12]

While the precise outcome remains to be determined, this ruling gives new hope to victims of sexual assault on college campuses.[13] Karasek is expected to incentivize Berkeley and other universities across the Ninth Circuit to ensure prompt and effective responses to future allegations, provide preventative training opportunities for students, and assess the overall climate of their campuses with respect to sexual misconduct.[14]

[1] Karasek v. Regents of the Univ. of Cal., 2020 U.S. App. LEXIS 2933, *1 (9th Cir. Jan. 30, 2020).

[2] Id. at *4.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at *38-39.

[7] Id.

[8] Id. at *39-40.

[9] Id. at *45.

[10] Susan D. Friedfel and Jason A. Ross, University’s Handling of Students’ Pre-Assault Complaints of Sexual Misconduct Open to Title IX Claim, Nat’l L. Rev. (Feb. 14, 2020), https://www.natlawreview.com/article/university-s-handling-students-pre-assault-complaints-sexual-misconduct-open-to.

[11] Id.

[12] Id.

[13] See Press Release, The Zalkin Law Firm, The Zalkin Law Firm Secures Landmark Ruling in Title IX Sexual Assault Lawsuit Against University of California Berkeley (Feb. 3, 2020), https://www.pr.com/press-release/804817.

[14] See id. See also Paige Hoster Good, Across Campus: Title IX ‘Pre-Assault’ Claims May Increase Liability for Universities, McAfee & Taft (Feb. 24, 2020), https://www.jdsupra.com/legalnews/across-campus-title-ix-pre-assault-97179/.

Noah Bunnell, CLS ’21

Amid a flurry of increasingly aggressive immigration actions by the Trump administration, a number of lawsuits challenging the new DHS “public charge” rule, governing the admissibility of immigrants into the United States, continue to wend their way through the courts.

On January 27, 2020, the Supreme Court granted a stay pending appeal of a preliminary injunction issued by a federal district court in New York, lifting the nationwide injunction — except in Illinois, where a statewide injunction remained in place — and allowing the “public charge” rule to go into effect.^[1] But on February 21, 2020, by way of another 5-4 vote, the Court granted an additional stay with respect to the State of Illinois,^[2] giving leave to U.S. Citizenship and Immigration Services (USCIS) to begin implementing the final rule in all 50 states on February 24, 2020.^[3]

What’s at stake here, most immediately, is immigrants’ eligibility for permanent legal status. Under the Immigration and Nationality Act, an individual seeking permanent resident status is inadmissible if he, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”^[4] The new rule — which defines “public charge” as an “alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)”^[5] — amounts to a significant expansion of DHS’s previous interpretation of the statute.

For the past 20 years, the federal government defined “public charge” as someone who had become or was likely to become “primarily dependent on the government for subsistence.”^[6] The guidance issued in 1999 “specified that the federal government would not consider use of Medicaid, CHIP, or other supportive programs in public charge determinations, with the exception of use of Medicaid for long-term institutional care.”^[7] DHS’s redefinition now permits USCIS to deny residency to anyone it deems likely to receive any of a wide range of cash or non-cash benefits.^[8]

In their challenge to the rule, three states, New York City, and a number of immigrant rights groups have argued, among other things, that the administration’s interpretation of the rule is in excess of its statutory jurisdiction and arbitrary and capricious under § 706(2) of the Administrative Procedure Act.^[9] It remains to be seen whether the Court will end up facing any of these issues on the merits, but the 5-4 grants of stay in Department of Homeland Security v. New York and Wolf v. Cook County, Illinois surfaced broader doctrinal issues that continue to agitate some members of the Court.

Along with the January 27 grant of stay, Justice Gorsuch^[10] filed a concurring opinion, joined by Justice Thomas, in which he decried the “increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”^[11]

Relying on a 2017 law review article by Samuel Bray,^[12] Gorsuch argued that nationwide injunctions are constitutionally suspect,^[13] expressing hope that the Court “might at an appropriate juncture take up some of the underlying equitable and constitutional questions” raised by their use.^[14] Echoing Bray, Gorsuch also contended that as a matter of judicial policy such injunctions are “patently unworkable, sowing chaos for litigants, the government, courts, and all those affected.”^[15] Specifically, Gorsuch argued, they facilitate forum shopping,^[16] increase the risk of conflicting injunctions,^[17] prevent legal questions from percolating up through multiple circuits,^[18] and “tend to force judges into making rushed, high-stakes, low-information decisions.”^[19]

The other side of the argument, left largely untouched by Gorsuch’s concurring opinion, counsels that universal injunctions play an important role in “preventing widespread harm.”^[20] Forcing plaintiffs to wait for a lawsuit to reach the Supreme Court before an injunction can be issued ignores the fundamental reality that injunctions are issued to prevent “irreparable harm.” And in the immigration context in particular, nationwide injunctions may be the only means of affording complete relief to plaintiffs.^[21] The alternative — permitting federal courts only to grant injunctions of limited geographical scope — would potentially create massive administrability problems, rendering agency rules enforceable in one place and unenforceable in another.^[22]

Sounding a very different note to Gorsuch in her dissent from the Court’s February 21 grant of stay, Justice Sotomayor took aim at the government’s increasing willingness to seek — and the Court’s increasing willingness to grant — stays pending appeal that overrule lower court injunctions.^[23] The Court has historically recognized that such stays represent “extraordinary relief,” and should only be offered where a party can demonstrate a likelihood of irreparable harm.^[24] Recently, however, as Sotomayor’s dissenting opinion emphasized, the government has made an “unprecedented number of requests for emergency or extraordinary relief from the Justices.”^[25]

Indeed, over the first two and a half years of the Trump administration, the DOJ filed over 20 applications for stays at the Supreme Court, compared to eight total applications during the prior 16 years under Bush and Obama.^[26] And, as Sotomayor argued, the Court has recently granted these requests in a number of high-profile immigration cases, despite being forced “to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.”^[27]

To hear and grant an application for stay, in Sotomayor’s view — particularly here, with the Seventh Circuit scheduled to hear oral argument on February 26, 2020 — frustrates the ability of lower courts to fully consider these questions and asks the Court to review them prematurely. An injunction preserving “a 20-year status quo” immigration policy in one state, on the other hand, hardly rises to the level of irreparable harm.^[28]

Whether the Justices will have occasion to consider these issues squarely anytime soon remains uncertain, but as federal courts continue to issue nationwide injunctions and as the DOJ continues to seek emergency stays, the Court may not be able to refrain from addressing these questions for long.

^[1] Department of Homeland Security v. New York, 140 S.Ct. 599 (mem.) (2020).

^[2] Wolf v. Cook County, Illinois, No. 19A905, 2020 WL 858799 (mem.) (Feb. 21, 2020).

^[3] Press Release, U.S. Citizenship and Immigration Services, USCIS Announces Public Charge Rule Implementation Following Supreme Court Stay of Nationwide Injunctions (Jan. 30, 2020), https://www.uscis.gov/news/news-releases/uscis-announces-public-charge-rule-implementation-following-supreme-court-stay-nationwide-injunctions.

^[4] Immigration and Nationality Act § 212(a)(4), 8 U.S.C. § 1182(a)(4)(A) (2012). In making that determination, the statute requires the consular officer or Attorney General to consider the applicant’s age, health, family status, assets, resources, financial status, education, and skills. §1182(a)(4)(B). The statute does not define “public charge.”

^[5] Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292, 41295 (Aug. 14, 2019) (codified at 28 C.F.R. Pts. 103, 212, 213, 214, 245, 248).

^[6] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (Mar. 26, 1999).

^[7] Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/#endnote_link_417492-5.

^[8] The rule “defines public benefits to include federal, state, or local cash benefit programs for income maintenance and certain health, nutrition, and housing programs that were previously excluded from public charge determinations, including non-emergency Medicaid for non-pregnant adults, the Supplemental Nutrition Assistance Program (SNAP), and several housing programs.” Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/#endnote_link_417492-5.

^[9] Complaint at 112–114, Make the Road New York v. Cuccinelli, 2019 WL 5484638 (S.D.N.Y. 2019) (19 Civ. 7993 (GBD)).

^[10] Notably, Justice Gorsuch’s doctrinal opposition to the modern administrative state stands in some tension with his hostility to the nationwide injunction — the former position tending to empower federal judges and the latter tending to restrain them. For Gorsuch’s views on the administrative state, see, e.g., Kisor v. Wilkie, 139 S.Ct. 2400, 2446 n.114 (2019) (Gorsuch, J., concurring in judgment) (“To be sure, under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), we sometimes defer to an agency’s construction of a statute. But there are serious questions, too, about whether that doctrine comports with the APA and the Constitution.” (emphasis in original)).

^[11] Department of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020). For more on the distinction between “nationwide” and “universal” injunctions, see Amanda Frost, In Defense of Nationwide Injunctions, 93 NYU L. Rev. 1065, 1071 (2018) (“[N]o one denies that district courts have the power to enjoin a defendant’s conduct anywhere in the nation (indeed, the world) as it relates to the plaintiff; rather, the dispute is about who can be included in the scope of the injunction, not where the injunction applies or is enforced. For that reason, some scholars refer to injunctions that bar the defendant from taking action against nonparties as ‘universal injunctions,’ ‘global injunctions,’ or ‘defendant-oriented injunctions.’”) (citations omitted)).

^[12] Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017). For a response to Bray, see Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. 49 (2017).

^[13] Department of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of stay) (When a district court orders “the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III.”).

^[14] Id. at 601.

^[15] Id. at 600.

^[16] Id. at 601 (“Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.”).

^[17] Id. at 600.

^[18] Id. (“The traditional system of lower courts issuing interlocutory relief limited to the parties at hand . . . encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decisionmaking process.”).

^[19] Id.

^[20] Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. 49, 50 (2017) (“Indeed, the Supreme Court has recently suggested that sometimes ‘the equitable balance’ in a case will favor extending injunctive relief to ‘parties similarly situated to’ the plaintiffs” (citing Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam)).

^[21] Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1090–94 (2018).

^[22] Id. at 1098–1101.

^[23] Wolf v. Cook County, Illinois, No. 19A905, 2020 WL 858799 (Feb. 21, 2020) (Sotomayor, J., dissenting from grant of stay); see also Barr v. East Bay Sanctuary Covenant, 140 S.Ct. 3, 4 (2019) (Sotomayor, J., dissenting from grant of stay) (“Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively.”).

^[24] Williams v. Zbaraz, 442 U.S. 1309, 1316 (1979) (Stevens, J., in chambers).

^[25] Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 124 (2018). Vladeck argues that the uptick in grants of stay can be attributed less to a rise in nationwide injunctions than to a shift in the Court’s conception of irreparable harm. “[A] majority of the Justices now appear to believe that the government suffers an irreparable injury militating in favor of emergency relief whenever a statute or policy is enjoined by a lower court, regardless of the actual impact of the lower court’s ruling — or the harm the statute or policy would cause if allowed to go into effect.” Id. at 126.

^[26] Id. at 125.

^[27] Wolf, 2020 WL 858799, at *3.

^[28] Id.

Taylor Larson, CLS ’21

The Third Circuit ruled last month that the Immigration and Nationality Act (INA) does not bar district courts from hearing non-removal claims from detained immigrants, priming a Supreme Court showdown of judicial reviewability against INA limitations on courts.

In E.O.H.C. v. DHS Secretary,[1] a detained Guatemalan father and daughter who traveled through Tijuana, Mexico to seek asylum in the United States challenged the government’s attempt to send them to Tijuana pending the appeal of their removal orders. Detainees usually remain in the U.S. throughout their removal proceedings,[2] but the government argued the recently enacted Migrant Protection Protocols (MPP, or “Remain in Mexico” policy) allows it to send the two from holding in a Pennsylvania detention center to Tijuana before the Board of Immigration Appeals decides their removal appeal.[3] The father and daughter argued in district court that, among other claims, sending them to Tijuana would endanger a minor (the daughter) in violation of the Flores settlement.[4]

The district court ruled it had no subject-matter jurisdiction to hear their claims.[5] It held § 1252(b)(9) of the INA blocks districts courts from hearing claims “arising from any action taken or proceeding brought to remove [aliens.]”[6] Appellants must bring their claims through all levels of immigration administrative rulings, and only then can appeal to a circuit Court of Appeals; federal district courts rarely have any role in the process.[7]

The Third Circuit Court of Appeals disagreed.[8] It found the INA only bars district courts from claims on final removal orders, not those unrelated to final removal. The circuit used a “now or never” principle to distinguish removal claims from non-removal ones. Any claim asking for relief that cannot be granted at the time of a final removal decision—relief that can only come when a plaintiff seeks it (now) or never at all—amounts to a now-or-never claim.[9] Such claims are not final removal claims, and therefore the INA does not block district courts from reviewing them.[10]

The Third Circuit found most of the appellants’ claims constituted now-or-never claims.[11] It held, for example, a court of appeals ruling that applying MPP to the appellants violated the Flores settlement, as it decides on their removal order, would provide no remedy: “[The appellants] allege that Tijuana is dangerous, so retuning them poses a grave danger. By the time there is a final order of removal to Guatemala . . . it will be too late to review or remedy their return to Mexico[.]”[12]

The ruling begs a Supreme Court decision to settle how far the INA limits judicial review. The Third Circuit relied on three-Justice pluralities in Supreme Court decisions, admitting the Court has left open what constitutes a removal action under § 1252(b)(9)[13] and inviting it to clarify. The Court has shown a recent willingness to address judicial review in immigration, such as deciding to hear Thuraissigiam v. DHS[14] this month, showing a return to 1252(b)(9) is more likely to happen now than never.

The Third Circuit sought to limit bans on judicial review of immigration agency decisions, and if the Supreme Court rules in a similar spirit, it could open the door to other challenges against the INA blocks on judicial review.

[1] E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec., No. 19-2927, 2020 U.S. App. LEXIS 4628 (3d Cir. Feb. 13, 2020).

[2] Id. at 3.

[3] Id. at 4.

[4] Id. at 7.

[5] Id. at 10.

[6] 8 U.S.C. 1252(b)(9).

[7] No. 19-2927, 2020 U.S. App. LEXIS 4628, at 1.

[8] Id. at 40.

[9] Id. at 10.

[10] Id. at 13.

[11] Id. at 19-20.

[12] Id. at 19.

[13] No. 19-2927, 2020 U.S. App. LEXIS 4628, at 13-14, “[T]he Supreme Court has left open whether detention pending an asylum ruling counts as an ‘action taken . . . to remove an alien from the United States.’ See Jennings v. Rodriguez, 138 S. Ct. 830, 840 (2018) (plurality opinion). In any event, the removal proceedings are ‘proceedings brought to remove’ appellants from the United States to Guatemala.”; id. at 16, “The Justices largely reprised these positions in Nielsen v. Preap, 139 S. Ct. 954 (2019) . . . A three-Justice plurality repeated the Jennings plurality’s view that § 1252(b)(9) does not bar challenges to detention rather than removal.”

[14] Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 427 (2019) (cert. granted). The case involves an asylum seeker suing to appeal his deportation order, gained through an allegedly flawed credible fear interview, in a federal court, against an INA ban on judicial review.