Claims and Bad Faith Law Blog

"THOSE WHO HAVE EARS TO HEAR, LET THEM HEAR."

In answer to two certified questions, the Supreme Court of Washington has unanimously given us enough material to fill books. This will be the second of two posted articles addressing these answers. The first article was posted here on Tuesday, December 3, 2019.

    In Peoples v. Utd. Serv's Auto. Ass'n, ___ Wash. 2d ___, ___ P.3d ___, No. 96931-1, 2019 WL 6336407 (Wash. Nov. 27, 2019), the Supreme Court of Washington was confronted with two questions. Both were certified by a U.S. District Court for answers under Washington State law.

    The two questions arose out of the claims of two of the plaintiffs in the District Court, one Krista Peoples and one Joel Stedman. Both of them were physically injured in a motor vehicle accident. Both claimed Personal Injury Protection or PIP benefits to pay for the bills of their medical providers. Both of them were denied PIP benefits.

    Besides this common core of facts, their claims presented the same broad question of whether the plaintiffs were injured in their business or property so that they could claim standing to sue under Washington State's Consumer Protection Act.

    That is where the questions posed by their separate claims diverged.  The first question, the one posed by the claims of Krista Peoples' class, were discussed here on Tuesday, December 3, 2019.

    Joel Stedman presented the second question.  He alleged that his insurance carrier, Progressive, impermissibly interjected a condition into the statutorily required availability of Personal Injury Protection (PIP) benefits.  This issue has reverberations beyond the boundaries of the State of Washington.

    In Washington State, as in most States, PIP benefits are required to be provided in policies like Stedman's.  The condition challenged in Stedman's action was Progressive's termination of required benefits whenever a claimant reached "Maximum Medical Improvement," or MMI, which it determined.  MMI is not a limitation authorized by the PIP Statute on the receipt or payment of PIP benefits.

    In Stedman's case, filed as a class action, Stedman alleged "that by terminating benefits on the basis of 'Maximum Medical Improvement,' Progressive routinely fails to pay all reasonable medical expenses for treating an insured’s injuries arising from a covered event, in violation of" Washington State Statutes.  Peoples, 2019 WL 6336407, at *1, ¶ 4.

    The Federal judge certified the question whether Progressive's reliance on MMI to terminate PIP benefits satisfied the Consumer Protection Act requirement of an injury to business or property, where an insured like Mr. Stedman was physically injured in a motor vehicle accident and whose PIP benefits were terminated.

    The Washington Supreme Court's short answer is "yes," such claims satisfy the requirement of an injury to business or property.  The Court's reasoning was applied both to the Joel Stedman class claims and to the Krista Peoples class claims discussed in this space on Tuesday, December 3, 2019:

[T]he plaintiffs here do not allege the defendants caused their personal injuries. Their CPA suits do not seek to vindicate their right to be free of bodily harm but, rather, their property interest in the benefits they bargained for in their insurance contracts. When parties enter an insurance contract, the insured obtains a legal right to benefits upon the happening of a particular event. [Citation omitted.]  An insurance contract also gives rise to a quasi-fiduciary relationship between the parties, which requires them to deal in good faith. [Citation omitted.]  An insured, therefore, has a legally protected property interest in benefits due under the contract and a related right to insurance dealings free from bad faith. Claims mishandling and wrongful denial of benefits invade this property interest, regardless of the type of event that triggers coverage.

Peoples, 2019 WL 6336407, at *4, ¶ 12.

    After placing its reasoning in a place where causation of the alleged Consumer Protection Act damages is not a part of the equation at hand, i.e., "regardless of the type of event that triggers coverage," the Court turned its attention to the question of recoverable damages for the alleged injury in fact.

    Stedman and his class sought "to recover excess premiums paid for the PIP coverage," together with "the costs of investigating the unfair acts, and/or the time lost complying with the insurer's unauthorized demands[.]"  Peoples, 2019 WL 6336407, at *2, ¶ 5.  The Washington Supreme Court unanimously spent very little time on the issue of damages recoverable by the Stedman class.

    To begin with, the Supreme Court declined to reach "the portion of the question that asks about excess premiums."  The Court devoted a footnote to Peoples' -- not Stedman's -- use of the phrase as "an alternative way of characterizing unpaid benefits."  Accordingly, in the Court's view, "it is unnecessary to address Peoples' alternative theory about 'excess premiums.'"  Peoples, 2019 WL 6336407, at *4, n.2.  What was good for the Peoples was good for Stedman, too, as the Court declined to address the issue of recovery of any "excess premiums" for unpaid PIP coverage.

    With respect to Stedman's remaining alleged damages, "the costs of investigating the unfair acts" and "the time lost complying with the insurer's unauthorized demands," the Supreme Court answered succinctly that "when a CPA claim is predicated on an insurer’s mishandling of a PIP claim, ordinary CPA principles govern whether investigation costs or time lost are injuries to business or property."   Peoples, 2019 WL 6336407, at *4, ¶ 14.  In answering the questions certified by the Federal court, the Washington State Supreme Court felt no compulsion to hold further whether the actual damages alleged by the Stedman class would if proven be recoverable under the Consumer Protection Act, but it did offer guidance from Washington State case law.

    The Court pointed to its own precedents to note that "we have we have continued to recognize that expenses incurred to investigate a deceptive act or practice are cognizable injuries and damages under the CPA."  Peoples, 2019 WL 6336407, at *4, ¶ 14.

    The Court then turned to precedent from the Washington lower courts concerning the allegation of lost time as a recoverable item of damage under the CPA.  "The Court of Appeals has also held that taking time away from business to respond to unfair practices may satisfy the injury requirement." Peoples, 2019 WL 6336407, at *4, ¶ 14.

    The Court was satisfied that this was all the guidance that litigants would need in cases like the present one:  "The principles articulated in these cases apply when a CPA claim is predicated on an insurer’s mishandling of a PIP claim." Peoples, 2019 WL 6336407, at *4, ¶ 14.

    To summarize what was summarized before, the key issue in the Peoples case was standing to sue.  The key to resolving the standing issue, in turn, was that the alleged 'injury to business or property' in both the Peoples' claims and the Stedman claims was "the deprivation of contracted-for insurance benefits." That was their injury. That conferred their standing to sue.

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THE McGAHN DECISION: WHAT THE JUDGE ACTUALLY RULED.

    Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. See The Federalist No. 51 (James Madison); The Federalist No. 69 (Alexander Hamilton); 1 Alexis de Tocqueville, Democracy in America 115–18 (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of Chicago Press 2000) (1835). This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States.

COMMITTEE ON THE JUDICIARY, UNITED STATES HOUSE OF REPRESENTATIVES, Plaintiff, v. DONALD F. MCGAHN II, Defendant, ___ F. Supp. 3d ___, 2019 WL 6312011, at *44 (DCDC Nov. 25, 2019).

    To make the point as plain as possible, it is clear to this Court for the reasons explained above that, with respect to senior-level presidential aides, absolute immunity from compelled congressional process simply does not exist. Indeed, absolute testimonial immunity for senior-level White House aides appears to be a fiction that has been fastidiously maintained over time through the force of sheer repetition in OLC opinions, and through accommodations that have permitted its proponents to avoid having the proposition tested in the crucible of litigation.

McGahn, 2019 WL 6312011, at *45.

    Thus, for the myriad reasons laid out above as well as those that are articulated plainly in the prior precedents of the Supreme Court, the D.C. Circuit, and the U.S. District Court for the District of Columbia, this Court holds that individuals who have been subpoenaed for testimony by an authorized committee of Congress must appear for testimony in response to that subpoena—i.e., they cannot ignore or defy congressional compulsory process, by order of the President or otherwise. Notably, however, in the context of that appearance, such individuals are free to assert any legally applicable privilege in response to the questions asked of them, where appropriate.

McGahn, 2019 WL 6312011, at *45.

So, this is the law.  It has been the law.  It continues to be the law.

Until this case reaches the Supreme Court.  But until then, and at least for now, this continues to be the law.

And this is what the judge actually ruled.  Check out the newspaper accounts and see what the reporters got right.  See, e.g., David G. Savage, In Major Win for Congress, Judge Rules Trump Aides Must Testify, LOS ANGELES TIMES ONLINE (posted Nov. 25, 2019); Spencer S. Hsu and Ann E. Marimow, Former White House Counsel Donald McGahn Must Comply With House Subpoena, Judge Rules, WASHINGTON POST ONLINE (posted Nov. 26, 2019).

HAVE A JOYFUL AND HAPPY THANKSGIVING!  In the midst of it all, there is a lot to give thanks for!

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When Judges Say "Afraid of Being Fired" For Their Rulings.

When people involved in lawsuits, including large corporations and individuals and children, cannot depend on getting a fair shake because the judge is afraid of ruling in their favor, that is the essence of bad faith.

There are reports right now that this is exactly what is happening in the current administration's immigration courts.

More than Sad. 

Bad Faith.

See Some Immigration Judges Say They Rule a Certain Way to Avoid Firing, by Mark Pattison, posted on CatholicPhilly.com on Monday, September 30, 2019.

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REPORTS OF THE DEATH OF CALIFORNIA EMISSIONS STANDARDS ARE PREMATURE.

Newspaper reporters write that the people currently in charge of the federal government are also in charge of California, at least when it comes to automobile pollution. Newspaper headlines blare that the current regime is going to "scrap" or "revoke" (New York Times, which may charge for online access) or "pull" or "end" (Associated Press) California's regulations related to car emissions.

This did not seem right. So I checked it out. I originally began with the concept that perhaps granting waivers from federal pollution standards might be discretionary with the EPA Administrator.

That could have explained these stories and these headlines. Discretion must ordinarily be exercised in good faith so it seemed that this issue may be a good fit with this blog which is about bad faith and good faith. What I found in 45 minutes of research was enlightening. And reassuring.

The Federal Clean Air Act is a statute. Statutes can be changed only by Congress.

So that puts the idea to rest right away of any federal government agencies trying to "scrap" and "pull" any State's laws or regulations. To my knowledge, Congress has not acted to change the Clean Air Act to bar California or any other State from writing regulations that require more protections on automobile emission levels than those who currently occupy the federal government would require.

The Administrator of the Federal Environmental Agency cannot act on her or his own to "scrap" or "pull" California laws or regulations. The EPA Administrator is statutorily authorized to prescribe regulations and standards for automobile emissions. 42 USCA § 7521(a)(2). But the statute allows for differences in regulations and standards. For example, even a motor vehicle manufacturer -- not just a State -- can certify that changes to vehicles will not result in failure to comply with standards promulgated by the EPA Administrator. 42 USCA § 7541(a)(2).

More important, the Administrator "shall" grant a waiver of the federal standards "if the State determines" that the State standards will be "at least as protective of public health and welfare as applicable federal standards." 42 USCA § 7543(b)(1) (emphasis added).

This is mandatory language. It directs the EPA Administrator when and where to grant waivers under the Clean Air Act. It leaves it to the States to determine whether State standards comply and, once that determination is made by the State then the federal official -- the EPA Administrator -- has no discretion but to grant the waiver. The Administrator shall grant a waiver of the federal standards if the State determines that the State standards comply with the Clean Air Act. If the EPA Administrator has no discretion to deny waivers, then the EPA Administrator has no discretion to rescind waivers that have already been given.

Case closed as they say.

Yet there's more. Other States that adopt emissions standards that follow California emissions standards for which a waiver has been granted are automatically qualified for waiver status under the Clean Air Act. 42 USCA § 7507.

Moreover, any person can file a civil action against the Administrator "where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary," 42 USCA § 7604(a)(2) (emphasis added), so that it seems clear that not only does the EPA Administrator not have any discretion to decline -- or rescind -- any waivers but anyone in America can sue if the Administrator fails to grant or uphold waivers for State standards that are at least as stringent as the Clean Air Act would require.

To rephrase a quote from Mark Twain, the reports of the death of California's emission standards are premature.

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THE SHAME OF THE UNBALANCED BUDGET.

Trump Administration Will Divert Disaster Relief Funds to U.S.-Mexico Border Enforcement, Prompting Outcry From Democrats, WASHINGTON POST online Tuesday, August 27, 2019.

This is what comes of not putting limitations on your budget vote.

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Download 08.29.19.

 

KATE BAILEY, YOU JUST LEARNED A HARSH LESSON: CLIENT CONTROL.

In hindsight, you should have seen it coming.

They left it to Kate Bailey, Trial Attorney in the Civil Division of the current justice department, to represent to the Court in Washington, D.C. that the current federal government had backed down. She represented to the judge in the citizenship case pending in the District that the federal government had abandoned its position in the litigation. From now on, she wrote, the federal government would not seek to add a citizenship question to the 2020 Census.

Kate Bailey wrote that down. In a letter to the lawyers in the case. And she represented that to the judge in the case.

And that was the current federal government's new position, that they would no longer defend contest that litigation with its previous position that they wanted to add a citizenship question to the 2020 census. That was their new position.

Until it wasn't.

See Noah Bierman and David G. Savage, Citizen Question May Be Back On 2020 Census As Trump Administration Reverses Course Again, Los Angeles Times online Wednesday, July 3, 2019 (the Los Angeles Times may charge for online access).

By tweet, the department of justice pulled the rug out from under Kate Bailey. They shredded her reputation with the Court. They took away her credibility as a lawyer.

They changed their new position, which became their old position, and in their new-new position they told the judge at a telephone hearing the day before the Fourth of July that they 'might' change their position back to their original position. They were "looking into it," they told the judge.

Then they asked for more time until Monday to think it over.

The judge said "no." One word in response to that request: "No."

He set a hearing for today at 2:00 P.M. for the current federal government to make its mind up and, one way or the other, litigate the case or withdraw its defense of the case. Either present a plan to litigate or stipulate that the citizenship question is withdrawn and will not be printed on the 2020 Census forms.

Do you think Kate Bailey will be in attendance at today's hearing?

Don't hold your breath if you don't like the color blue, as the saying goes.

Ms. Bailey, you don't have to work for these people who humiliate you. You can enter private practice. At least then you could file a motion for leave to withdraw. The judge may not let you out of the case, but at least then you would have a chance.

Not like now, when they won't give you a chance. Instead they will pull the rug out from underneath your credibility whenever it suits their purpose. If you did not know beforehand that these are the kind of people you chose to work for, you know now.

Talk about bad faith.

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Download IBF 07.05.19.

Postscript on Saturday, July 6, 2019:

I checked out the case on PACER (Public Access to [Federal] Court Electronic Records) yesterday.  The case is Kravitz v. U.S. Department of Commerce, (D. Md. Case No. 8:18-cv-01041).  Kate Bailey, Esquire is not a counsel of record in that case.  So why was it left to her to make an announcement that the current federal government was no longer defending the case?  The justice department filed a new pleading yesterday with a "Plan A" and a "Plan B."  The government's Plan A was convoluted and it is best if you try to read it for yourself.  The case information for PACER is provided above.  The government's Plan B is that it agreed with the plaintiffs' proposed order for discovery deadlines in the case if the judge was going to proceed.  The judge is going to proceed.  The judge  entered the scheduling order proposed by the plaintiffs  -- and joined as noted by the government -- to set discovery deadlines in the case.

SO THIS IS HOW YOU CELEBRATE THE FOURTH OF JULY.

See Ledyard King, Sarah Elbeshbishi, and Jason Lalljee, What to Expect at the Washington DC 4th of July: Army Tanks, A Burning Flag and Baby Trump, USA TODAY online July 2, 2019 (USA Today may charge for online access).

   Photo - Getty Images.

God Bless Us All!  Happy Fourth of July!  Please Read The Disclaimer. ©2019 Dennis J. Wall.  All Rights Reserved.

LESSONS ON SECRET SETTLEMENT NEGOTIATIONS FROM A PRO SE CASE.

A pro se Fair Labor Standards Act case may have some lessons for keeping settlement offers secret in insurance bad faith cases.

In Chenault v. Randstad USA Mfg. & Logistics,[1] Mr. Chenault, representing himself without a lawyer, filed a "Motion to Facilitate Settlement."  He attached "the settlement offer" or, alternatively, "the settlement letter" that he got from the defendants, using the judge's descriptions of the letter.

The defendants asked the judge to seal the letter and so keep the public from viewing the letter in the Court file. 

The reason that the judge gave for sealing the "settlement letter" in this case reveals a lot about how the law treats the secrecy of settlement negotiations.  She ruled:

Because “[t]here exists a strong public interest in favor of secrecy of matters discussed by parties during settlement negotiations,” the Court will Order the Clerk of the Court to place the settlement letter under seal in order to preserve the record. Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 980 (6th Cir. 2003). The Court will not consider the settlement letter for any purpose.[2]

Substitute an insurance company accused of bad faith in the place of the defendants in this case, and the lessons of secret settlement negotiations is clear:  Settlement negotiations of the case at bar are a secret.  Period.

The author is currently at work on 2019 Supplements to both volumes of his Book, Litigation and Prevention of Insurer Bad Faith (Third Edition, Thomson Reuters West), including sections on secrecy and settlements. 

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[1] Chenault v. Randstad USA Mfg. & Logistics, No. 5:18-CV-276-KKC, 2018 WL 3964811 (E.D. Ky. August 17, 2018).

[2] Chenault v. Randstad USA Mfg. & Logistics, No. 5:18-CV-276-KKC, 2018 WL 3964811, at *2 (E.D. Ky. August 17, 2018) (emphasis added).

 

JPMORGAN, NIGERIA'S MONEY, LONDON LAWSUIT. BAD FAITH? NOT APRIL FOOL'S!

A British case raises an intriguing question for American insurance bad faith litigation.

Under British law, a bank has a duty to act in the best interests of its customers.  The Nigerian government is suing JPMorgan Chase on the ground that the bank allegedly obeyed the instructions of corrupt former officials to transfer some $900 Million to them from a Nigerian government bank account maintained at JPMorgan Chase in London.  The Nigerian government is of the opinion that this was against the best interests of the bank's customers, the people of Nigeria.

JPMorgan Chase is defending this complicated case on many grounds.  One of its defenses raises the intriguing question that may have some resonance in American insurance bad faith lawsuits:  JPMorgan Chase is defending on the basis that its contract setting up the Nigerian government account provided that JPMorgan Chase could act against the best interests of the bank's customers, the people of Nigeria.

Does this mean that an insurance carrier in the United States could insert a provision in its insurance policy that, effectively, it could act in bad faith and deal unfairly with its insureds?

Well, returning to the lawsuit in the U.K. for a moment, the British judge so far is allowing the Nigerian government's lawsuit to proceed against JPMorgan Chase.  Its contract provision has not prevented that, at least so far.  See Emily Flitter, Nigeria Sues JPMorgan to Recoup $900 Billion, New York Times, Monday, April 1, 2019, p. B1 (no online version found; when posted online the New York Times may charge for online access to this article).

As for the question of an American insurance carrier inserting a provision in its insurance policy to disavow any duty of good faith and fair dealing, there is some authority on that.  We will take a look in future articles posted here.

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GENERICS FORCIBLY REPLACING BRAND PRESCRIPTIONS, LIKE IT OR NOT.

Another agency of the current Federal Government is taking actions to dismantle consumer protections with a new Administrative State.  This time it is the Centers for Medicare and Medicaid Services (CMS), located in the Department of Health and Human Services (HHS).  They propose to substitute generic drugs for brand drugs when consumers fill their doctors' prescriptions.  Their proposal was only posted on January 24, 2019 and, in a relatively short period for Comments, the deadline for leaving a Comment including in opposition to these new-Federal Government proposals, is Tuesday, February 19, 2019.

Here are the complete Comments I left on https://www.regulations.gov on Sunday, February 17, 2019 in opposition to these particular proposals.

February 17, 2019

To:       The Centers for Medicare and Medicaid Services (CMS),

          Department of Health and Human Services (HHS).

          https://www.regulations.gov

 

Re:    Proposed Changes to ACA Benefits and Payments Parameters for 2020.

          CMS-9926-P

To CMS, HHS:

These Comments are regarding your proposed addition to Regulations in 45 CFR, new proposed §§ 147.106(e)(5) and 148.122(g)(5), and wherever else the same proposed changes discussed in these Comments may be found in your proposals.  Your proposed new regulations §§ 147.106(e)(5) and 148.122(g)(5) are published in 84 F.R. at pp. 313-314.

You advise in 84 F.R. at p. 234 that your proposed new § 147.106(e)(5), for example, would allow issuers of drug plans in all three markets -- individual, small group, and large group -- to allow changes to a formulary.  (Although you do not define the term in your proposals, I understand from general usage by CMS/HHS that "formulary" in this context means a list of prescription drugs covered by a plan, a/k/a a drug list.)

The new additions you propose to existing law would be to allow issuers of plans covering prescription drugs to remove the equivalent of brand drugs from the formulary, i.e., from the plan of prescription drugs that are covered by the issuer.  See, e.g., 84 F.R. at 234.

There are at least three obstacles to implementing these proposed new regulations as law.  The three I would like to address in these Comments are (1) that the proposed new regulations are not a reasonable approach to the availability of prescription drugs to consumers who pay for prescription drug plans, or formularies; (2) that the proposed new regulations are a windfall to the issuers of plans covering prescription drugs, at the expense of consumer choice, and (3) that the term, "generic equivalent," is new and undefined, without so much as a reference I can find to the Federal Food and Drug Administration's process of testing and approving generic drugs for use by consumers.

First, the proposed new regulations are not a reasonable approach to the availability of prescription drugs to consumers who pay for prescription drug plans, or formularies.  The goal of adding generic medical equivalents to prescription drug plans, or drug lists, could reasonably be accomplished without mentioning the removal of brand drugs from the formulary at all.

The real effect of proposed new regulations like §§ 147.106(e)(5) and 148.122(g)(5) is not to permit the addition of generic equivalent drugs to an issuer's list of covered drugs, but rather to permit the issuer to remove brand drugs from the issuer's list.

That in itself is an unreasonable change to the law and, moreover, it is not authorized by the enabling Congressional legislation in the first place.  The clear purpose of the enabling statute was to foster consumer choice, not to limit consumer options, especially when it comes to prescription drugs.

That ties in to the second objection addressed in these Comments.  The proposed new regulations, such as for example §§ 147.106(e)(5) and 148.122(g)(5), are an undeserved windfall for the makers of generic drugs, and at the expense of consumer choice.  Lists of covered drugs are of course lists contained in plans for coverage of drugs.  These plans are paid for by consumers in whole or in part including by the payment of deductibles and co-pays, and often paid for as well by a share of the premiums charged for coverage under these plans.  Consumers have paid for the right to have their physicians and medicalcare providers prescribe drugs and to fill these prescriptions with brand drugs at the option or choice of the consumer, and not by the choice either of the pharmaceutical manufacturer or the issuer.  For this reason as well, the proposed new regulations, including §§ 147.106(e)(5) and 148.122(g)(5), should not and cannot be adopted.

The third and final objection to proposed new regulations §§ 147.106(e)(5) and 148.122(g)(5) which will be addressed in these Comments is the undefined use of the phrase, "generic equivalent."  This phrase is found in the proposed new authority to be conferred upon issuers to "add a generic equivalent to a formulary[.]"  See, e.g., proposed new regulation § 147.106(e)(5), 84 F.R. at p. 314, and proposed new regulation § 148.122(g)(5), also in 84 F.R. at p. 314.

The phrase used in this new proposed regulation is not limited to "medically equivalent."  (Emphasis added.)  Nor is it limited by reference, so far as I can find, to FDA-generic-approved medicines.  Without such limitations, the proposed new authority to replace brand drugs on drug lists with "a generic equivalent" is overly broad and so it is meaningless.  It would, for example, allow issuers and generic drug manufacturers to buy their way onto drug lists to add drugs that their own proprietary  'research' and support has 'determined' to be "a generic equivalent," without limitation to generic medicines already approved by the FDA.   For this reason as well, the proposed new regulations, including §§ 147.106(e)(5) and 148.122(g)(5), provide no limiting guidelines and so are void and of no effect.  They cannot validly be promulgated.

For each and all of these reasons, whether taken separately or together, the proposed new regulations, including §§ 147.106(e)(5) and 148.122(g)(5), cannot validly be promulgated as administrative regulations and, moreover, they are void and of no effect as new law.

Sincerely,

Dennis J. Wall

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LAST IN THE SERIES: "USE RESTRICTION" AND SUMMARIZING THE SERIES.

This is the last of our continuing series of articles taking a look at the presumption of public access to Court files.  In recent articles we have been looking at the examples of secrecy on display, as it were, in recent Multi-District Litigation lawsuits (MDLs) involving General Motors and Volkswagen.  In this final article, we will bring the series to a close with our look at the Volkswagen "pollution defeat device" MDL.  Our special focus will be trained on the secrecy involved in this huge lawsuit, secrecy that is built into multi-district litigation and similar huge lawsuits.  To a great extent secrecy is a major reason such lawsuits exist in the first place.

 

"Use Restriction":  In other cases, standard blanket secrecy orders purport to prohibit disclosure to others, who may be identified, by category but never by name, or maybe not at all.  The use restriction in the VW order was written to go one step further.  It is a "Restriction on Disclosure in Actions Outside U.S." and in particular to "legal counsel[.]"^[1]

By way of contrast, in many other cases, a stipulated protective order will specifically say who will never be given concealed material.  When material is designated as not subject to public disclosure in a given case, the agreed order may be written so as to single out in particular lawyers representing other plaintiffs in other cases against the same or similar defendants.

Here, in the stipulated protective order in the VW MDL, we get to see the flip side of that coin.  In the VW MDL order, the approach was taken to list every kind of person who can see the otherwise publicly undisclosed information.  That list in the stipulated secrecy order in the VW MDL simply does not include lawyers involved in the representation of other clients in other cases.  Parenthetically, it also does not include requests for public information under the Freedom of Information Act, or "FOIA."^[2]

These more or less unique provisions may reflect the international marketing of Volkswagens.  Describing the set of people who can see the concealed information is infinitely simpler than trying to describe all the different proceedings and the people involved in them all over the world who cannot see the information.  Denying access under the Freedom of Information Act, if valid, will prevent or at least slow down the availability of that information for other proceedings of any type across the planet.

Sealing the materials a judge uses to make a ruling.  The VW order clearly provides that any "Protected Material" under the agreed order that "is used in any court proceeding ... shall not lose its protected status through such use."^[3]  Once again, as we have already seen in earlier sections, in particular in section 2:20 regarding insurance companies, many courts treat materials used by a judge to make her ruling as presumptively open to the public by the very fact that the judge based her ruling on it, so that the public should see it too.

The Crucial Feature of agreed Umbrella Secrecy Orders:  Agreed blanket secrecy orders prevent disclosure of the evidence without the requirement that a judge determines whether there is good cause for the nondisclosure.  The VW order shares this feature with standard Umbrella Orders, unlike it must be said, the GM order which does require proof of good cause for the "Confidential" or "Highly Confidential" marking.^[4]  

The VW order is the same as the GM order, however, with respect to what the lawyers mark as "Confidential" or "Highly Confidential."  What the lawyers mark with those designations will be "Confidential" or "Highly Confidential," even after the particular case is over.  The lawyers only need to do their marking "in good faith" of all the evidence they "reasonably believe to be" either Confidential or Highly Confidential.

What the lawyers may choose to mark "Confidential" in the VW MDL seems anchored on things "that qualify for protection under Federal Rule of Civil Procedure 26(c)."  So far, so good, but the permissions to the lawyers and parties to designate things "Confidential" and so withhold them from the public do not end there.

The VW stipulated secrecy order changes the Rules by adding that nothing in this agreed order precludes any party from "seeking additional protections not currently contemplated by this Order to be applied to any particular document or category of documents," which of course includes Confidential Information.^[5]

Exactly what are the "additional protections"?  The order does not say, and it does not offer a clue.  What the "additional protections" to keep evidence Confidential may be, remains to be determined by the lawyers and their clients in that case.

Both the GM stipulated secrecy order in New York and the VW agreed secrecy order in California provide that if the lawyers were wrong in concealing evidence from the public as Confidential or Highly Confidential, that is no problem once again -- even if a Court declares that the evidence in question should be opened to the public, it will still be protected so long as the lawyers marked the evidence with the words, "Confidential" or "Highly Confidential."^[6]

An old standby:  "Non-public information."   Similar words and phrases are used throughout the secrecy documents in many cases and in a lot of situations.  The VW MDL secrecy order refers, for example, to concealing information simply because someone claims that it is "non-public information"^[7] as in the Wells Fargo settlements of cross-selling accusations that we encountered in section 2:21.  These agreed secrecy orders are not alone in using the term.  That same term, "non-public information," is also used and is also not defined, in the Nondisclosure Agreements apparently introduced to employees in the White House since on or about January 20, 2017.^[8]

Summary of the effects of stipulated umbrella protective orders on litigation of catastrophe claims and of insurance coverage claims for natural and man-made disasters.  State court actions may provide more transparent lawsuits than federal courts.  The United States Constitution provides the presumption followed by many federal courts to allow the public access to court files, yet federal procedures not only authorize but encourage concealed evidence and secret settlements.

            Some of the procedures followed in federal courts that encourage concealed evidence and secret settlements include judicial approval of secret class action settlements, and multi-district litigations or MDLs.  Judicial certification of classes for the purpose of settlement, and MDLs by their very nature, are designed and constructed to encourage settlements.  Both class action settlements and MDLs are by their nature large cases which put tremendous pressures on individual plaintiffs by a few very large, usually corporate defendants.

            We have discussed numerous examples in the immediately preceding sections of this Chapter of how the judicial system, and particularly the federal judicial system, encourages and approves concealed evidence and secret settlements, including the GM ignition defect MDL and the VW defeat-device MDL.

            The intention behind the recent previous sections of this Chapter has been to illustrate the difference between concealing evidence and making the evidence publicly available for the public to see.  In order to achieve this result uniformly throughout federal courts and state courts alike, it is now clear that changes are necessary.  First and foremost, the behavior of judges needs changing.  No new rules are needed.  What is needed instead is to enforce the rules that exist, particularly the requirement that protective orders and sealing orders depend on a showing of good cause from the party or parties requesting the secrecy.

 

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[1] This is § 7.5, at page 11 in Pretrial Order No. 12:  Stipulated Protective Order, Doc. No. 1255, filed on February 25, 2016 in In re:  Volkswagen "Clean Diesel" case.

[2] The distribution list' simply does not include lawyers involved in the representation of other clients in other cases:  §§ 7.2 and 7.3, on pp. 9-11, in id., titled, respectively, "Restrictions on Use of Confidential Information" and "Restrictions on Use of Highly Confidential Information."

            The concealed information cannot be obtained with FOIA requests:  § 12.4, p. 16, in id.

 

[3] § 13.4.2, at p. 18, in id.

 

[4]See  GM Order No. 10, filed 09.10.14, ¶ 4, at p. 6.

 

[5] VW Pretrial Order No. 12:  Stipulated Protective Order, § 2.9, filed on February 25, 2016,  pp. 3-4.

 

[6] Designating evidence as "Confidential" or "Highly Confidential," which the lawyer "reasonably believes," in "good faith":  It is enough to quote one of the two secrecy orders, because in substance they are identical.  To quote the VW secrecy order, VW Pretrial Order No. 12:  Stipulated Protective Order, §§ 2.3, 2.6, 2.9, 2.18, and ¶ 5, at pp. 3-4, and 5-8, filed on February 25, 2016:

If counsel for the Producing Party agrees or if the Court orders that Discovery Material initially redacted shall not be subject to redaction or shall receive alternative treatment, and the Discovery Material is subsequently produced in unredacted form, then that unredacted Discovery Material shall continue to receive the protections and treatment afforded to documents bearing the confidentiality designation assigned to it by the Producing Party.

The quotation is from  id., § 11.1, p. 14, in a paragraph titled, "11. REDACTIONS ALLOWED."  (Underlining in original.)  The corresponding GM secrecy order's provision is in ¶ 3(d) at page 5, GM Order No. 10, filed 09.10.14.  Although the wording is slightly different when the two provisions are compared side-by-side, the substance is virtually identical.  Clearly whoever wrote the VW order filed in February 2016 in a Court in California read the GM order that was filed in a Court in New York a year-and-a-half earlier in September 2014, and changed the words in order "to protect the innocent," you might say..

 

[7] VW Pretrial Order No. 12:  Stipulated Protective Order, § 12.7, at p. 13, filed on February 25, 2016.

 

[8] Cf. Ruth Marcus, "Trump Had Senior Staff Sign Nondisclosure Agreements.  They're Supposed to Last Beyond His Presidency" (Washington Post Online, posted March 18, 2018) (quoting from a reported draft nondisclosure agreement implemented by the current Administration at the White House, as to "'confidential' information, defined as 'all nonpublic information ....'" (emphasis added).)  The author was clear that she was in possession of only a draft nondisclosure agreement, and so she was not quoting any other version of the document, if any.

 

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THE VW MDL: ANOTHER STIPULATED PROTECTIVE ORDER.

This is the second of three articles that will end our continuing series taking a look at the recent Multi-District Litigation lawsuits (MDLs) involving General Motors and Volkswagen.  In this installment and in the next article, which will be the concluding article in this series, we will bring the series to a close by taking a look at the Volkswagen "pollution defeat device" MDL.  Our special focus will be trained on the secrecy involved in this huge lawsuit, secrecy that is built into multi-district litigation and similar huge lawsuits.  To a great extent secrecy is a major reason such lawsuits exist in the first place.

 

THE VW MDL:  ANOTHER STIPULATED PROTECTIVE ORDER.

Compared to the time it took for the lawyers to propose and the Judge to sign the stipulated secrecy order in the GM MDL, which was filed within 3 months after the lawsuit was filed, the stipulated secrecy order in the VW MDL was proposed and signed by the Judge within 3 days after the finalized Complaint was filed.  The finalized Complaint was filed on a Monday.  The stipulated secrecy order was signed and filed the Thursday after that.^[1]

In contrast to the umbrella secrecy order in the GM MDL, there is no mention in the VW order that the U.S. Constitution raises a presumption that the public shall have access to court files.  But comparing the two orders shows that they clearly share the same motivation in avoiding expense at the time the orders were entered.  In both cases, they could see the storm coming unless they mutually agreed to avoid it.^[2]  The VW blanket secrecy order also borrows many of the same words found in previous agreements for Umbrella Orders.

Shifting the burden of proof to the party requesting disclosure and away from the party trying to keep the evidence a secret.  Like the standard blanket protective orders that we have seen previously, the VW secrecy order shifts the burden of proving that evidence should be disclosed completely to the party seeking disclosure of information, and away from the party trying to conceal it.  In further departures from the Manual for Complex Litigation, Fourth, and in particular from the model Confidentiality Order published in it by the Federal Judicial Center for the benefit of judges and lawyers, the things that must be proven are also changed significantly.  While the model Confidentiality Order does not use the words, "good cause," it does provide instead that any application to the Court for additional materials to be kept confidential besides those marked by the lawyers, "shall only be granted for reasons shown and for extraordinary grounds."^[3]  A side-by-side comparison reveals that the GM order does not follow the model Confidentiality Order.^[4]  However, the order in the GM MDL mentions a seeming requirement of "good cause" to keep the evidence concealed.^[5]  The VW order does not follow the Federal Judicial Center's model Confidentiality Order, either, nor does the VW order even mention the words, "good cause."

The party challenging the designation of certain evidence in the VW case as Confidential or Highly Confidential had to ask the Court "for an order withdrawing the designation."  But the agreement itself gives little or no incentive to most parties who might challenge the designation.

There are two main uses of evidence in any case before trial:  at hearings and in depositions where witnesses give testimony.  The VW MDL agreement covers both uses with respect to "Protected Material" (evidence marked "Confidential" or "Highly Confidential" by the lawyers, in sum and in substance).

With respect to Protected Material evidence that might be used at a hearing before trial, the parties agreed to give each other notice of their intent to use that evidence at the upcoming hearing and that the use of that evidence at the hearing would be regulated by their agreement or by Order of the Court.^[6]  Basically, as long as a party agreed to jump these hurdles it could use the Protected Material evidence at a hearing in the VW MDL before trial.  Parenthetically, the secrecy agreement did not apply to use of this evidence at trial, but the lawyers and their clients reserved the right to make more agreements.

The lawyers also included the express possibility that, to continue to protect the evidence at hearings that they had previously designated as Protected, they might have to agree to ban the public from the court hearings; they agreed that they might even have to ask the Court "to close the courtroom."^[7]

With respect to the use of Protected Material evidence during the testimony of witnesses before trial, including during depositions, the parties in the VW MDL agreed that the Protected Material could be shown to a witness who either signed a Nondisclosure Agreement that the lawyers wrote, or who refused to sign an NDA but who would not be allowed to "retain" copies of the evidence.  (Most witnesses are not given copies of the evidence to keep after their depositions are over anyway.)

Deposition transcripts involving testimony about Protected Material evidence are effectively sealed in the VW MDL.  They "may not be disclosed to anyone" as to the Protected Material " except as permitted under this secrecy agreement-order.^[8]

Since the agreement that resulted in the secrecy order basically allows all parties to use the evidence in that case in any event, the chances that any of them will become a "challenging party" are very small.   This once again shows clearly the intent behind the concealment:  Other people involved in other lawsuits besides this one must not be shown the same evidence that the limited number of people involved in this lawsuit can see.

Here are the makings of another man-made disaster.  The question is not really about whether the parties and their lawyers involved in the case can see the evidence.  The question is about keeping evidence concealed and settlements secret with respect to everyone else, including the public.

As a result, agreed secrecy orders like the one used in the VW MDL cloak concealment with a presumption of confidentiality.  Everything marked confidential will remain confidential unless and until anyone asking for disclosure including the judge all follow the steps outlined in this agreed order.

In addition, the facts to be proven are unstated as to what would be enough to draw the curtain of concealment away from evidence that lawyers have marked Confidential or Highly Confidential.  Although the facts to be proven in order to convince the Court to withdraw the designation are not stated in the stipulation, one set of facts is not mentioned at all.  As in many if not all such stipulated secrecy orders, there is no requirement to show "good cause," as would be required by the Rules of Civil Procedure that would apply in any other case.

TOMORROW:  THE "Use Restriction."

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[1] By "finalized" Complaint, I mean the Complaint which was the last one filed, so far.  It happens to be called a CCCA Complaint, which the plaintiffs' lead attorneys wrote to identify the plaintiffs' Consolidated Consumer Class Action Complaint.

            It took only from Monday when the finalized Complaint was filed until the next Thursday before the stipulated umbrella secrecy order was signed and filed: Plaintiffs' Notice of Motion, Motion, and Memorandum in Support of Final Approval of the 2.0-Liter TDI Consumer and Reseller Dealer Class Action Complaint, at 6-7, Doc. No. 1784, filed August 26, 2016, in In re:  Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation (N.D. Cal. Case No. MDL 2672 CRB (JSC)); Pretrial Order No. 12:  Stipulated Protective Order, Doc. No. 1255, filed February 25, 2016 in id.

 

[2] See Plaintiffs' Notice at 7, Doc. No. 1784, filed August 26, 2016  in In re:  Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation (N.D. Cal. Case No. MDL 2672 CRB (JSC)).

 

[3] Section 40.27, ¶ (d), at page 752 in Manual for Complex Litigation, Fourth.  The Manual contains a lengthy discussion in Section 11.432 of "Limited Disclosure/Protective Orders," at pp. 64-69.

 

[4] Compare Order No. 10, titled in brackets,  "[Protecting Confidentiality and Privileged Materials]," Doc. No. 294, filed September 10, 2014, in In re:  General Motors LLC Ignition Switch Litigation (S.D.N.Y. Case Nos. 14-MD-2543 and 14-MC-2543) with Section 40.27, titled "Confidentiality Order," page 752 in Manual for Complex Litigation, Fourth. 

 

[5] ¶ 4, "Challenges to Confidentiality Designations," at page 6, in Order No. 10, Doc. No. 294, filed September 10, 2014, in In re:  General Motors LLC Ignition Switch Litigation (S.D.N.Y. Case Nos. 14-MD-2543 and 14-MC-2543).

 

[6] See § 13.4.1, at p. 17 in Pretrial Order No. 12:  Stipulated Protective Order, Doc. No. 1255, filed on February 25, 2016 in In re:  Volkswagen "Clean Diesel" case.

 

[7] See § 13.4.2, at page 18 in Pretrial Order No. 12:  Stipulated Protective Order, Doc. No. 1255, filed on February 25, 2016 in In re:  Volkswagen "Clean Diesel" case.

 

[8] See § 7.2.8, at page 10 in Pretrial Order No. 12:  Stipulated Protective Order, Doc. No. 1255, filed on February 25, 2016 in In re:  Volkswagen "Clean Diesel" case.

 

TOMORROW THIS SERIES CONCLUDES WITH:  THE "Use Restriction."

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THE VOLKSWAGEN "DEFEAT DEVICES" ENORMOUS MDL CLAIMS.

This is the beginning of a triolgy of articles that will end our continuing series taking a look at the recent Multi-District Litigation lawsuits (MDLs) involving General Motors and Volkswagen.  In this installment and in the next two articles after this one, we will bring the series to a close by taking a look at the Volkswagen "pollution defeat device" MDL.  Our special focus will be trained on the secrecy involved in this huge lawsuit, secrecy that is built into multi-district litigation and similar huge lawsuits.  To a great extent secrecy is a major reason such lawsuits exist in the first place.

The VW defeat device MDL comes from a family of similar claims.  At the time the VW defeat device MDL was put together, there were other large lawsuits aggregating or combining many claims of many people against other car manufacturers besides Volkswagen.  These include:

• Defeat device claims against Fiat Chrysler which mimicked VW's defeat devices, alternatively labeled as "illegal engine-control software" claims alleged by the United States concerning Fiat Chrysler Automobiles;
• Claims for inflated mileage against Hyundai and Kia;
• A class-action lawsuit against General Motors over alleged programming designed to cheat diesel emissions tests for pollution on some lines of pickup trucks; and
• Demands from the Federal Trade Commission in the first months of 2017 for the "policies, practices and procedures" used by a finance company regarding "technologies to track the location of borrowers' vehicles in case they need to repossess them," including "installing devices that enable them to remotely disable a car's ignition after a borrower misses a payment."^[1]

It is worth mentioning here that in a multidistrict litigation lawsuit against Hyundai and Kia, consisting apparently of plaintiffs who did not settle their claims with Hyundai and Kia the first time around, there are some 566 entries for pleadings and orders on the docket, and that many of the materials filed in the case concern sealing the evidence.  I reviewed all 566 entries and although I may have missed one or more, it appeared that the trial judge granted every motion to seal that was ever filed in that case.^[2]  

    

TOMORROW:  THE VW MDL: ANOTHER STIPULATED PROTECTIVE ORDER.

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[1] Fiat Chrysler Defeat Device claims:  The United States and the State of California sued Fiat Chrysler over defeat devices that basically mimicked VW's defeat devices.  The suits were settled in January 2019 with the Federal Government and the State of California for a combined total of some $330 Million in lieu of civil penalties alone (figures mine), on top of an additional maximum estimate of $185 Million in recall costs.  See Neal E. Boudette, How Fiat Chrysler Overtook the Pack, New York Times, p. B3, January 15, 2019; Neal E. Boudette, Fiat Chrysler's Penalties Reflect Limits of Diesel, New York Times, p. B5, January 11, 2019.

"Illegal engine-control software" claims alleged by the United States against Fiat Chrysler Automobiles:  See Neal E. Boudette, "Business Day Section / U.S. Sues Fiat Chrysler, Accusing It of Using Software to Pass Emissions Tests" (New York Times Online, May 23, 2017), available at https://nyti.ms/2qSYYuH.

 

Hyundai, Kia inflated mileage claims:  After settling regulators' claims for $100 million, Hyundai Motor America and its related corporation Kia Motors America settled for an additional $400 million most of a lawsuit that was brought based on allegations of inflated fuel economy claims for their cars.  See, e.g., Jerry Hirsch, "Hyundai, Kia Reach $400-Million Settlement Over Inflated MPG Claims" (Los Angeles Times Online, December 23, 2013), available at http://articles.latimes.com/print/2013/dec/23/autos/la-fi-hy-hyundai-kia-settle-mpg-lawsuit-20131223.  It was reported four days after the lawsuit settlement was announced, or on December 27, 2013, that the president and CEO of Hyundai Motors America was stepping down and would be replaced when his contract ended on December 31, 2013.  Ronald D. White, "Hyundai Motor America Chief John Krafcik to Step Down" (Los Angeles Times Online, December 27, 2013), available at  http://articles.latimes.com/print/2013/dec/27/business/la-fi-hyundai-chief-resigning-20131228.

A class-action lawsuit against General Motors over alleged programming designed to cheat diesel emissions tests:  See Neal E. Boudette, "G.M. Accused in Lawsuit of Deceit on Diesel Truck Emissions" (New York Times Online, May 25, 2017).

Demands from the Federal Trade Commission in the first months of 2017 for the "policies, practices and procedures" used by a finance company:  See Michael Corkery and Jessica Silver-Greenberg, "DealBook / Federal Agency Begins Inquiry Into Auto Lenders' Use of GPS Tracking" (New York Times Online, February 19, 2017), available at https://nyti.ms/2lwZFaA.

 

[2] See Jerry Hirsch, "Hyundai, Kia Sued Again Over Inflated Mileage Claims" (Los Angeles Times Online, November 8, 2012), available at http://articles.latimes.com/print/2012/nov/08/business/la-fi-mo-autos-hyundai-fuel-economy-lawsuit-20121108.

Since an appellate court decision on January 23, 2018, that MDL continues still.  The appellate court reversed the trial judge's approval of settlement in that case and sent it back for further proceedings.  In re Hyundai and Kia Fuel Economy Litigation, 881 F.3d 679 (9th Cir. 2018), rehearing en banc granted (vacated as precedent in the Ninth Circuit pending rehearing en banc), 897 F.3d 1003 (9th Cir. 2018). 

 

TOMORROW:  THE VW MDL: ANOTHER STIPULATED PROTECTIVE ORDER.

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NEW COMMENTS DEADLINE ON SEX DISCRIMINATION IN EDUCATION! PLUS SUMMARY.

The Federal Government just extended its deadline for comments on its proposed Sex Harassment in Education regulations until January 30, 2019!  Take this as a good sign and leave your comments now at www.regulations.gov.  If the people speak, then even the current Administrative State has to listen by law.  Speak up, leave your comments on Sex Harassment in Education now!

We have been looking at comments since January 25, 2019 through articles posted from time to time since then down through today, January 28, 2019 on Claims and Issues Blog and on Claims and Bad Faith Law Blog.  To summarize them all for ease of reference, we have reviewed comments that:

1. The Department of Education does not have authority to change the statutes Congress voted into law which is what the Department proposes to do with these changes,
2. The proposed new standard of liability which would be imposed on a claimant in order to make a case for sex discrimination in education is so hard to meet that it is inconsistent with the Congressional prohibition in the first place,
3. Not only the Department of Education, but all Federal agencies need to have every tool in their toolkits that they have now in order to enforce the Congressional prohibition on sex discrimination, including in the rare case as it happens, of seeking damages from sexual harassers in education,
4. Keeping the law in place that concerns "religious organizations with contrary religious tenets" having to say how prohibiting sex discrimination is inconsistent with their "religious tenets," instead of letting them keep quiet about this including for example letting them keep quiet during the entire time that they are recruiting students and also not even requiring them to speak before they extend admissions offers, presumably until they get sued if they ever do, and
5. Last but certainly not least, a host of issues with the Department's newly invented Formal Grievance Procedures.

Parenthetically, what is with these people that they have to invent their own justice systems and not use the Courts?  President George W. Bush set up tribunals in Guantanamo from scratch, rather than try the inmates in Federal Courts in public.   Now the Department of Education wants to set up its own tribunals rather than have sexual harassment in education tried in the Courts.  Why don't they want the public to know what they are up to in these cases?  Oh, wait ....

So, make them make it public!  Take advantage of the extra time this extended deadline gives, and leave your comments on Docket ID ED-2018-OCR-0064 at www.regulations.gov.

If you don't do this, who will?

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SEX HARASSMENT TRIALS IN EDUCATION ... WHY NOT IN FEDERAL COURTS?

The following article is a combination of comments I left on www.regulations.gov earlier today.  Leave your own comments too!  The Docket ID is on this article, immediately below, and GOOD NEWS!  The Federal Government has just extended the deadline for comments to January 30, 2019!   Take this as a good sign and leave your comments now!

 

January 28, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  Your stated authority for them is "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.  These particular comments address the Formal Grievance Procedure you have introduced in your new 34 C.F.R. § 106.45, published in 83 F.R. at 61497-99.  There are a number of problems with this new Formal Grievance Procedure.

Your new Section 106.45(a) provides that "[a] recipient's treatment of the respondent may also constitute discrimination on the basis of sex under Title IX."  83 F.R. at 61497.  However I am not aware of any Court that has ever declared that to be the correct interpretation of Title IX.  To the extent that you introduce this idea in your proposed new regulation, it is contrary to the expressed purpose of Title IX.  Section 1681 is the beginning section of Title 20, United States Code, otherwise known as Title IX.  Section 1681 sets the standard for discrimination in education on the basis of sex.  Subsection (a) could not be more clear:  "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"  This language clearly does not include your proposed education tribunals conducting your new Formal Grievance Procedures.  It is therefore contrary to the statute passed by Congress and, although the law can be changed by vote in Congress, this proposed rewrite of the law cannot be lawfully enacted by a mere administrative agency such as the Department of Education.  Your proposal in this regard is void and cannot be enacted.

You propose a new regulation that "credibility determinations may not be based on a person's status as a complainant, respondent, or witness" in 106.45(b)(1)(ii), published in 83 F.R. at 61497.  Credibility determinations, as you call them, are made all the time in Court by judges and juries based on the bias of the person presenting the evidence.  You did not provide any evidence to support this change.  This change is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It cannot lawfully be enacted and should be withdrawn.

Your proposed new 106.45(b)(iii) requires that certain personnel at academic institutions be given training in "how to conduct an investigation and grievance process, including hearings," among other things.  Yet you do not prescribe what the training will entail nor who is supposed to provide it.  For example, you do not state whether providers of this training will be required to have experience in presenting evidence or conducting hearings in other administrative proceedings.  This proposal too is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It too cannot lawfully be enacted and should be withdrawn.

You propose a new regulatory requirement that academic institutions conducting a Formal Grievance Procedure must give the alleged sex perpetrator "sufficient time to prepare a response before any initial interview."  § 106.45(b)(2)(B), published in 83 F.R. at 61498 (emphasis added).  This is wrong (and unauthorized) policy-making and bad administrative procedure on your part.  As highlighted by the italicized language, your concern is not with the fundamental fairness of any required hearing, but instead you are fixated on the initial interview.  No person accused of misconduct in any other setting is given advance notice that they are going to be investigated for their alleged misconduct.  The alleged perpetrator may elect to be silent or to assert Constitutional rights of one kind or another, or anything in between, but no person accused of misconduct has ever been given rights to prepare for the initial interview of the investigation against her or him.  Your proposal to the contrary in this regard is not supported by any evidence in any case.  This proposal too is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It cannot lawfully be enacted and should be withdrawn.

You propose that your new Formal Grievance Procedures must "provide for a live hearing" for institutions of higher education.  § 106.45(b)(3)(vii), published in 83 F.R. at 61498.  Your proposal does not clarify to institutions of higher education what if any procedures they must provide in the course of their providing for the "live hearing" that your regulation would now require.  Your regulatory guidance is absent in this regard, including to advise institutions of higher education whether any part or proceeding of this "live hearing" is to be kept secret, or whether "live" includes the keeping of a record of the proceedings, or whether these administrative proceedings that would now require a "live hearing" import the Federal Rules of Evidence or any other rules of evidence, to mention only a few examples among many.  This proposal is unauthorized, and it is contrary to law, and should not be enacted.  It should be withdrawn.

You propose that your new Formal Grievance Procedures must "provide for a live hearing" for institutions of higher education.  § 106.45(b)(3)(vii), published in 83 F.R. at 61498.  Your proposal does not clarify to institutions of higher education what if any essential procedures they must follow in the course of their providing for the new "live hearing."  Your regulatory guidance is absent in this regard, including to advise institutions of higher education whether any part or proceeding of this "live hearing" is to be kept secret, or whether "live" includes the keeping of a record of the proceedings, or whether these administrative proceedings that would now require a "live hearing" import the Federal Rules of Evidence or any other rules of evidence, to mention only a few examples among many.  This proposal is unauthorized, and it is contrary to law, and should not be enacted. 

Your proposals regarding new treatment of "evidence of the complainant's sexual behavior or predisposition," also published in § 107.45(b)(3)(vii), are unfounded, unsupported by evidence, and contrary to law.  In particular, "sexual predisposition" is not a valid category of evidence in any judicial or administrative proceedings at this time.  You do not present any evidence to support your rewrite of this category of evidence.  This is bad public policy because the law has always focused on whether an act has taken place and not on whether the person who allegedly committed the act was predisposed to commit it.  This particular proposal also suffers from inequality itself for you did not also make it apply to evidence of the alleged sex perpetrator's "sexual predisposition" to sexually harass other people.  Your proposals in this regard are again contrary to the Administrative Procedure Act, are again substantively contrary to law, are contrary to law applied to facts, are unauthorized, and void.  They should not be enacted.

A judge does not have to explain the basis of her or his rulings on evidence, yet once again also in your new § 106.45(b)(3)(vii), you would require "[t]he decision-maker" at your live Formal Grievance Procedures hearing to "explain to the party's advisor asking cross-examination questions any decision to exclude questions as not relevant."   Your proposal in this regard is contrary to substantive law.  Further, you provide no evidence in support of your proposed change, which is in violation of the Administrative Procedures Act.  The change you propose in this regard is void and should not be enacted.

Your proposed change in the standard of evidence applicable to Title IX proceedings misses the mark completely.  The standard of evidence you propose should apply to Title IX proceedings to determine only whether a person is being excluded from participation in or being denied the benefits of or being subjected to discrimination under any education program or activity receiving Federal financial assistance, "on the basis of sex[.]"  20 U.S.C.A. § 1681(a).  You are not authorized to propose a shifting standard of evidence for determining Title IX claims based on whether the recipient uses the preponderance of the evidence standard, or not, "for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction."  That is however what you propose to do in your new 34 C.F.R. § 106.45(b)(4), 83 F.R. at 61499.  University "code violations" are simply not your concern.  Your concern is strictly with Title IX claims.  Your proposals in question are not authorized and contrary to law.  They should not be enacted.

Similarly, your proposed § 106.45(b)(4)(ii)(C) & (D), 83 F.R. at 61499, would require the academic institution to make a written determination including findings of fact, and conclusions "regarding the application of the recipient's code of conduct to the facts[.]"  (Emphasis added.)  To say again, whether the recipient's code of conduct applies is not your concern.  To say it another way, you are not authorized to impose requirements on a recipient based on its own code of conduct.  Your authority is strictly restricted to the application of Title IX to the facts.  You recognized this yourself in your new 34 C.F.R. § 106.45(a) when you stated at the outset that you were addressing sexual harassment that "may constitute discrimination on the basis of sex under Title IX."  Your proposals that follow including in § 106.45(b)(4)(ii)(C) & (D), 83 F.R. at 61499, are again contrary to the Administrative Procedure Act, are again substantively contrary to law, are contrary to law applied to facts, are unauthorized, are void, and should not be enacted. 

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

The Federal Government has just extended the comments deadline through January 30, 2019!  I urge you to leave your own comments on www.regulations.gov.  The Docket Number that the Government wants us to use is at the top of this post.  These comments will be made available today both to the readers of Claims and Issues Blog and to the readers of Claims and Bad Faith Law Blog.

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PUTTING "RELIGIOUS OBJECTIONS" TO SEXUAL HARASSMENT OUT IN THE OPEN.

I left the following comments on www.regulations.gov earlier today concerning the proposal of the Department of Education to enable sexual harassment in education without fear of the Department asking for damages to enforce the law.  You can leave your own comments at any time between now and the end of the deadline on Monday, January 28, 2019.  If you speak up and leave a comment, then by law even the current Federal administrative state is required to hear you.  I urge you to make your voice heard!

January 27, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

 

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.  This comment addresses in particular your proposal to delete existing subsection (b) from 34 C.F.R. § 106.12, published in 83 F.R. at 61496.

Although I have not found any reference to it in your proposed changes, the statute which authorizes religious organization exemptions is 20 U.S.C.A. § 1681(a)(3):

(3) Educational institutions of religious organizations with contrary religious tenets

this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization;...

Although the statute does not speak to how the Department or any other Federal agency is to know in advance whether "the application of this subsection would not be consistent with the religious tenets" of any "educational institution which is controlled by a religious organization," the existing regulations do speak to that issue.  Advance knowledge of an organization's "religious tenets" claim can be determinative of whether Federal enforcers of Title IX's mandate will file or proceed with a Title IX enforcement action.

The regulation you want to eliminate is the regulation which provides that advance knowledge.  It is 34 C.F.R. § 106.12(b).  Subsection (b) provides in full as follows at the present time:

(b) Exemption. An educational institution which wishes to claim the exemption set forth in paragraph (a) of this section, shall do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization.

In contrast to the obviously desirable result of preventing unwarranted Title IX enforcement actions to be filed by a Federal agency, thus reducing the respondents' costs and time necessary to defend enforcement actions which might otherwise be unnecessary, you recite that the current regulation is "confusing or burdensome[.]"  83 F.R. at 61482.  This assertion is absurd, in the face of the obviously desirable results that are likely if not certain to follow from the current regulation.  No law should be made including regulatory law which leads to an absurd result.  For this reason alone, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Further, you do not support your proposed changes with evidence either that the current regulation "impose[s] confusing or burdensome requirements" or that your proposed elimination of the current regulation would eliminate those unevidenced "confusing or burdensome requirements[.]"  For that reason, i.e., your failure to comply with the Administrative Procedures Act in this regard, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Moreover, it does not seem on the face of it that a letter to the Assistant Secretary would ever justifiably be characterized as either "confusing" or "burdensome."  That outcome is inconceivable and, in any case, is not supported by facts.  For this reason alone, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Finally, you are mistaken in your seeming belief that the current regulation specifies when an organization needs to make a written statement of the organization's "religious tenets."  The existing regulation does not speak to when.  It speaks to how.  The claim must be "in writing."  For example, the claim cannot be made verbally.  The claim must be made in writing.

The written claim must also identify "a specific tenet of the religious organization."  For example, a written claim based on nothing more than a claim to religious liberty without identifying a specific tenet of the religious organization, would not seem to be nearly enough to assert the "religious tenets" claim.

Nothing about these current requirements of the existing regulation appear to be "confusing" as understood by reasonable persons.  Nothing about them reasonably appears to be "burdensome," either.

For all of these reasons, whether taken separately or together, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.  Copies of these comments are being published on Sunday, January 27, 2019 both on Claims and Issues Blog, and on Claims and Bad Faith Law Blog.

RESIST THE CURRENT ADMINISTRATIVE STATE. COMMENT AGAINST PROPOSALS THAT MAKE DISCRIMINATION EASIER.

They shouldn't be permitted to change laws when they don't have the votes in Congress or in the Courts.

 The current administrative state is trying to change the law without Congress and without the Courts.  A good example is any and all of the Department of Education's current proposals to dismantle the law against discrimination in education programs or activities that receive assistance from your Federal tax dollars.

The law is Title IX.  The proposals are published at 83 Federal Register pages 61462-61499.  Monday, January 28, 2019 is the deadline to leave your comment opposing them.

Many people are intimidated when they think about leaving a comment on a Federal agency proposal.  I was intimidated myself before I left my first comment.  The thought of it can stop you from doing it.  Don't let it.

By law, even the current occupiers of the Federal administrative agencies are required to consider everybody's comments before they impose their rules and regulations in final form.  If they don't, then the Courts will make them, at least so far.

So, for these particular proposals here is some information to show you how simple it is to leave your comments:

1. The place to leave your comments electronically is at regulations.gov.
2. Somewhere on your comments refer to these numbers: Docket ID ED-2018-OCR-0064 and, just to be on the safe side, also refer to RIN 1870-AA14.
3. That's it. If they ignore you after that, they intend to.

I will post some of my own comments here so that you can have something to go by.  But do not let my comments get in your way, either.  Remember that my comments, for good or ill as they say, will be comments that are made by a lawyer for that is what I am.  It is enough to say that you are against certain proposals because for example they make it easier to discriminate in education programs that are paid for with your money.  To again be on the safe side, this time take the advice of the Federal Government and mention the specific section or sections of the proposed regulations that your comments address.  But if you don't, you know what?  The Federal Government is the one making the proposals in the first place, not you.  If the Feds can't figure it out, they shouldn't be proposing changes to the law.

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.  A version of this article was published previously on Claims and Issues Blog.

CONCEALMENT EVEN AFTER DISCLOSURE IN THE GM "IGNITION DEFECT" MDL.

This is the fourth in a series of articles taking a look at the recent Multi-District Litigation lawsuits (MDLs) involving General Motors and Volkswagen.  In the last previous article and in this installment, we will continue to take a look first at the General Motors "ignition defect" MDL.  Our special focus will be on the secrecy involved in these huge MDLs, secrecy that is built into such lawsuits as an integral part of them.  To a great extent secrecy is a major reason such lawsuits exist in the first place.

 

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Concealment even after disclosure.   The lawyers in the catastrophic GM MDL case proposed and the judge agreed to another seemingly new provision in the GM MDL blanket secrecy order that would address the possibility of evidence mis-marked for concealment.  The lawyers and the judge provided that if Confidential or Highly Confidential information was disclosed without being designated for concealment, then the party producing it could thereafter "claim or designate" confidentiality, and the party receiving the information "must immediately return" it and all copies of it to the producing party and make no use of such information.  In other words, the judge would never actually have to see it and the lawyers would never have to submit it to the judge to look at.^[1] 

By its own terms the MDL Court's jurisdiction to enforce this Consent Order would never end.  The MDL Court would be the sole arbiter forever without end of whether parties and strangers to this litigation complied with this Order.^[2]

          To summarize, regardless of whether or not it had the purpose of concealing catastrophic defects that have allegedly killed people and injured others so badly that some of the people who allege injuries are now quadriplegics who lost the use of their arms and legs, and some others are paraplegics who lost the use of their lower bodies including both of their legs, the GM MDL case has had the effect of concealing the evidence of what allegedly caused those things.  This is not an unfortunate byproduct of stipulated umbrella secrecy orders like Order No. 10 on file in the GM MDL case.  It is the intended result of those consent orders.

 

NEXT:  THE VOLKSWAGEN "DEFEAT DEVICE" ENORMOUS MDL CLAIMS.

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[1] GM  Order:  In re General Motors LLC Ignition Switch Litigation, Order No. 10, Doc. No. 294, filed 09.10.14 (S.D.N.Y. MDL Number 14-MD-2543):

"Presumption of public access" and GM's "bulk production of millions of pages of documents":  unnumbered paragraph immediately following the title of this Order, "having consented thereto"; both unnumbered "WHEREAS" paragraphs;

"Sensitive information":  ¶ 2 at page 3;

"Lawyers determine in the first place": ¶ 3(c), "Marking," p. 4., pp. 3-4;

"Disappearing ink provision":  ¶ 3(d), "Redaction," at p. 5;

"Designating information as 'Confidential' or 'Highly Confidential' later on at any time" and "Disclosure shall not waive confidential status of such information":  ¶ 3(f), "Errors," p. 6;

            "Challenge one another's 'Confidential' and 'Highly Confidential' designations at any time" and "Good cause" expanded beyond what the law previously authorized:  ¶ 4 (emphasis added), "Challenges to Confidentiality Designations"; at p. 5;

"Use restriction":  ¶¶ 5, "Access to Confidential Information," 6, "Access to Highly Confidential Information," pp. 7-10, and 7(a), "Use of Confidential and Highly Confidential Information/ Restricted to This Proceeding and Related Litigation," p. 10; and

"Return and destroy provision":  ¶ 8 (emphasis added), "Return of Discovery Materials," p. 12.

It bears repeating that this Consent Order is titled, "Protecting Confidentiality and Privileged Materials."

 

[2] See In re General Motors LLC Ignition Switch Litigation, Order No. 10, Doc. No. 294, ¶ 14, "Protective Order Remains In [sic] Force," filed 09.10.14 (S.D.N.Y. MDL Number 14-MD-2543).

The Consent Order in this MDL originally provided that any party could disclose "a potential safety defect" to a government agency.  Id., ¶ 7(a), located in "Use of Confidential and Highly Confidential Information" paragraph, at page 10.    In another Consent Order some two years later, this provision was amended by consent of Defendants and Lead Counsel for plaintiffs once again, to add that GM would also be allowed to assist in "identifying, reporting or resolving any potential safety issue," without any stated limitation to assisting a government agency.  In re General Motors LLC Ignition Switch Litigation, Order No. 103, Doc. No. 2901, filed 05.27.16 (S.D.N.Y. MDL Number 14-MD-2543).  This addition on May 27, 2016 undoubtedly reflects the March 11, 2016 National Highway Traffic Safety Administration ("NHTSA") statement two months earlier that NHTSA's clearly preferred such exceptions to the use of blanket stipulated protective orders. NHTSA influenced more than the lawyers in the GM ignition switch defect litigation, however.  The federal Consumer Product Safety Commission virtually copied the preferences announced by NHTSA on March 11, 2016 when the CPSC released its own preferences for allowing disclosure to the CPSC in secrecy orders and in secrecy provisions in settlement agreements.  See Arthur Bryant, "U.S. Consumer Product Safety Commission Seeks to Limit Court Secrecy" (posted on The Legal Examiner blog on December 12, 2016).

Two additional 'protections' were added by the MDL Consent Order No. 10 in September 2014.  Not only would originally redacted evidence that was marked "Highly Confidential" and that became unredacted by the parties' consent or by Court order still be protected as Highly Confidential nonetheless under paragraph 3(d), "Redaction," on pages 4-5, if in particular any piece of disclosed evidence was "claimed" to be subject either to the attorney client privilege or to the protection that courts give to the work product of attorneys, then its disclosure in this MDL case would not forfeit the privilege or the protection in any other case, federal or state.  Id., ¶ 9(a), "No Waiver by Disclosure," pp. 12-13.

 

NEXT:  THE VOLKSWAGEN "DEFEAT DEVICE" ENORMOUS MDL CLAIMS.

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THE STAGGERING GENERAL MOTORS "IGNITION DEFECT" MDL CLAIMS.

This is the third in a series of articles taking a look at the recent Multi-District Litigation lawsuits (MDLs) involving General Motors and Volkswagen.  In the next two installments in this series, we will take a look first at the General Motors "ignition defect" MDL.  Our special focus will be the secrecy involved in these huge MDLs, secrecy that is built into such lawsuits as an integral part of them.  To a great extent secrecy is a major reason such lawsuits exist in the first place.

 

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There is a stipulated protective order, an umbrella secrecy order, in the GM ignition defect MDL.  To be sure, it does not bear either of those names in the Court file.  But it has all the marks of an agreed umbrella secrecy order.

One of the first things that GM did in the new MDL was request confidentiality.  Three months after the MDL case was opened and a judge was assigned to it, GM's lawyers and the lawyers representing people suing GM agreed that the evidence against GM in that litigation should be kept confidential.

The federal judge overseeing the GM MDL wrote that Lead Counsel for the people suing GM "consented" to the confidentiality order three months after the first pleading or exhibit was entered on the docket. 

The order in GM's ignition defect MDL began with a recitation in favor of the presumption of public access to court proceedings.  The court in that case acknowledged that it alone has the duty to authorize information in a court file to be sealed from public view.  Then the order changed direction in some old ways, often with new additions.

Lawyers determine "Confidential Information" in the first place.  Lead Counsel in Multi-District Litigation cases are clothed with the necessary authority to make decisions that bind the other lawyers and the parties.  So it was in the GM ignition defect MDL.  So it is with respect to all of the catastrophe claims in any MDL.

The blanket secrecy order in the GM MDL ruled, by agreement of Lead Counsel in the case, that the lawyers in the case would determine in the first place whether particular materials fall within the order's protection.  Once again, "Confidential Information" is expansively defined far beyond what the law has usually authorized.

Due to GM's announced intent to produce "millions of pages of documents" in bulk, the judge ordered among other things that evidence discovered by the parties shall be kept secret as "Confidential Information" or as "Highly Confidential Information."  In a departure from the standard umbrella secrecy orders discussed in previous articles in this series, and in a departure from the model Sample Confidentiality Order written by judges for lawyers in the Manual for Complex Litigation, Fourth edition, confidential information in the GM order broadly included "sensitive information."  Parenthetically, this agreement to conceal "sensitive information" would find an echo two years later in a nondisclosure agreement required by at least one Member of Congress from interns.^[1]

Returning to procedures used in standard umbrella secrecy orders, including those we have seen in previous sections, the GM secrecy order provided that the lawyers would use these markings for each document for which they had a "reasonable belief" that the documents were "Confidential" or "Highly Confidential."   Once again, this is similar to the "Confidential" and "Highly Confidential" provisions in umbrella secrecy orders we have seen in earlier sections in this Chapter leading up to this section.

Parenthetically, lawyers often argue for blanket secrecy orders concealing everything in advance because it is too time-consuming and expensive to argue that individual documents should be kept secret.^[2]  However, apparently they have the time to mark every document "Confidential" and that expense, in their eyes, is justifiable.

"Return and destroy provision."  With a return and destroy provision in a blanket secrecy order, any party receiving discovery would either return it to the disclosing party, or simply destroy the evidence.  This is an obvious reaction to the admonition in 2004 by the Federal Judicial Center in the Manual for Complex Litigation, Fourth, that under the provisions used at that time and earlier, "[r]estrictions on use in other litigation may not provide complete protection."^[3]

The GM order had a return and destroy provision, but the lawyers who wrote it did more than just copy from one of the orders we have seen earlier in past sections of this Chapter.  For the catastrophe claims in the GM case, the Consent Order further provided that any party terminating its involvement in the multi-district case -- and settlement is certainly one way for a party to "terminate" its involvement -- would be required either to destroy Confidential Information or Highly Confidential Information, or return it to the party from which it came.  And more.

The GM order added something new.  Any "person or entity having custody or control of recordings, notes, memoranda, summaries or other written materials, and all copies thereof, related to or containing discovery materials" of this kind, the GM order said, would be required to provide the producing party with an affidavit that they did their best to destroy the Information or return it to the producing party.   The new addition in the GM order was that the authors of the evidence not only wanted their information back but they wanted someone else's as well.  The order required not only the evidence in question to be returned or destroyed at the conclusion of the case, but also all notes anyone took about the evidence after they received it as well.

"Good cause" kept alive.  The GM agreed secrecy order provided that the party objecting to concealment could file a motion with the Court "for an order withdrawing the designation as to the specific designation on which the Parties could not agree."  If the objecting party filed a motion to disclose a document or part of a document, then the party that marked it Confidential or Highly Confidential "shall have the burden of proving that 'good cause' exists for the designation at issue and that the material is entitled to protection," but not under the law or the Rules.  The good-cause-burden would be to prove entitlement to concealment "as Confidential or Highly Confidential Information under applicable law," meaning that the parties' agreement had already expanded the law's capacity to conceal to previously unauthorized "other confidential, non-public information," including any person's notes about the information, whether made by a lawyer, a paralegal, a party, or anyone else.

The GM Agreed Secrecy Order's New and Revised "Confidential" and "Highly Confidential" provisions.  Then the Consent Order changed direction again.  If the lawyers were mistaken, no problem.  Under their Consent Order in this GM MDL, even if they did not designate information as "Confidential" or "Highly Confidential," they could still designate anything "Confidential" or "Highly Confidential" later on at any time, and they could also challenge one another's "Confidential" and "Highly Confidential" designations at any time. 

The "disappearing ink provision."   Further, if the lawyers were mistaken in blacking out information or if the Court ruled that those materials should not have been blacked out and redacted, in that event this Consent Order added a very unusual blessing to the parties and their lawyers.  If the evidence should not have been redacted, but was redacted and even though a judge ruled that it should not have been blacked out and ordered that it be disclosed instead, then the disclosed information shall still "bear the legend 'Highly Confidential' and shall continue to receive the protections and treatment" of Highly Confidential documents.  In other words, even if a document which the lawyers marked "Highly Confidential" was disclosed because a judge ordered it disclosed, this language appears to require that the marked document would still be "Highly Confidential" anyway.

It might be helpful to think of this as the "disappearing ink" protection.  Even after the information is disclosed, it will disappear.

This is not a matter of inadvertent production of privileged documents.  It is routine for confidentiality orders to provide that inadvertent or unintentional disclosure of confidential documents or information, or disclosure of them to a judge in chambers for her review, shall not generally be deemed a waiver of any claims of confidentiality.   The model Confidentiality Order proposed in the Manual for Complex Litigation, Fourth contains such a provision, for example.^[4]  Rules of Civil Procedure generally allow for the unintentionally disclosed information to be sequestered until a judge allows it to be disclosed once a party makes the claim of privilege and notifies the receiving party that the information was unintentionally disclosed.^[5]  That is not the situation addressed by the GM ignition defect MDL secrecy order "disappearing ink" provision, however.

I am confident in the belief that I have not seen all of the stipulated umbrella protective orders that lawyers have written and judges have ever signed, but I have seen many.  I have never seen any part of an agreement or an order to compare to the disappearing ink provision in the GM MDL litigation.

Except in the VW MDL litigation.  I will return to this subject later.

 

NEXT:  CONCEALMENT EVEN AFTER DISCLOSURE IN THE GM "IGNITION DEFECT" MDL.

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[1] The model Sample Confidentiality Order written by judges for lawyers in the Manual for Complex Litigation, Fourth edition:  § 40.27, "Confidentiality Order," ¶ (c), at page 752, in Manual for Complex Litigation, Fourth (2004).

            The nondisclosure agreement for interns used in at least one Congressional office in the Spring of 2018:  Rachel Wolfe, Exclusive:  Congress Requires Many Unpaid Interns to Sign Nondisclosure Agreements, Vox, posted on March 5, 2018).

 

[2] The matters that should be specifically set forth in "[a]pplications for umbrella orders, usually presented to the court by stipulation of the parties," are set out by the Federal Judicial Center in Section 11.432, "Limited Disclosure/Protective Orders," at pp. 65-66, in the Manual for Complex Litigation, Fourth.

 

[3] § 11.432, "Limited Disclosure/Protective Orders," p. 65 n.138 in Manual for Complex Litigation, Fourth.

 

[4] § 40.27, "Confidentiality Order," ¶ (b), at page 752, in Manual for Complex Litigation, Fourth (2004).

 

[5] See, e.g., Fed. R. Civ. P. 26(b)(5)(B); Fla. R. Civ. P. 1.285.

 

NEXT:  CONCEALMENT EVEN AFTER DISCLOSURE IN THE GM "IGNITION DEFECT" MDL.

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MORTGAGE FRAUD CONTINUES. OTHERWISE FEDERAL LAYOFFS CONTINUE TOO. SOMETIMES.

Photograph Courtesy of New York Public Library Collection.

The secretary of the treasury has forced a fraction of the Internal Revenue Service employees, who had been laid off, to return to work and process papers for the mortgage industry.

So as not to actually break the law in plain sight, the Federal Government is paying these people with so-called "user fees," i.e., donations paid by the mortgage industry to do the work.

This was arranged by the Mortgage Bankers Association.  The MBA worked with the treasury department by asking the current Federal Government to recall the Federal employees to process the papers which the MBA needed to process mortgage money, er, mortgage applications.

The head of the Mortgage Bankers Association and de facto treasury secretary honestly declared that "I'd like to take some credit.  Our direct request got rapid results."  Quoted in Lisa Rein and Jeff Stein, "Could You Make These Guys Essential?":  Mortgage Industry Gets Shutdown Relief After Appeal to Senior Treasury Officials, Washington Post Online, Friday, January 11, 2019.

This is no surprise.  The current occupier of the title of Secretary of the Treasury made much of his money from mortgages and foreclosures before entering the current Administration.

Reportedly, some observers of these arrangements question how it is legal to use Federal employees to benefit not the American public but one discrete group of private businesses.  Other observers despair that no-one who has standing to object, will object and therefore they see no remedy to the situation.

Well, let's take a look at that.

The situation as you might call it is bad faith.  A few people are forced to give up their labor, because through no fault of their own they are employed by the Federal Government during the current Administration, which calls them back to work in order to help a few businesses continue to make money (and prolong the shutdown because the shutdown will not feel so bad, obviously).   These IRS employees are being instructed to serve the interests of a few in the name of public service. 

This is happening while other people are told not to come back to work and in some cases they will not be paid.  Ever.

Is a mandatory injunction available?  Would their unions have standing to represent thousands of what we are told is the current laid off Federal workforce of 800,000 people?  (A figure that will soon grow even higher.)  The idea of a mandatory injunction might be that the rest of the hundreds of thousands of Federal workers who are not getting paid and who have also been told not to report for work, should also be brought back to work and paid.

If arrangements are made by the Federal Government that benefit some furloughed Federal workers but not others who are in the same boat, shouldn't the Federal Government lawfully be required to also arrange for these other people to be recalled back to work by the same Federal Government that told them not to come to work in the first place?  And arrange to pay them also?

That brings in another idea.  The Federal Government of all people is supposed to provide equal protection of the laws.  Equal protection clearly demands that people be treated equally.  Federal workers are people and as such, they too deserve to be treated equally.

Regardless of whether their work does or does not make money for private interests.

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POSTSCRIPT TO A CHILD'S DEATH IN THE CUSTODY OF THE UNITED STATES: ....

The Death of Another Child in the Custody of the United States.

The current caretakers of the Federal Government are setting records.  More children have died in the custody of the United States at the border on their watch in a month, than died in the custody of the United States in all the years before taken all together.  Ever.

Most recently, an eight-year-old boy in Federal custody at the border died on Christmas Day.  See Laura King, An 8-Year-Old Guatemalan Child Dies in U.S. Custody on Christmas Day After Being Treated For a Cold, Los Angeles Times Online December 25, 2018.

A seven-year-old girl died in Federal custody at the border a week ago.  See The U.S. Border is a Dangerous Place.  Not by Mistake, Claims and Bad Faith Law Blog December 18, 2018.  This is a postscript to that earlier death of a child in the custody of the United States.

See also the article posted on Claims and Issues Blog, ANOTHER CHILD DIES IN FEDERAL CUSTODY AT THE BORDER:  How Many Deaths Will It Take Till We Know That Too Many Children Have Died?, posing a few of the questions that Members of Congress, and reporters, and you and I should be asking now.  The ultimate questions posed in the article are these:

If they do not gain entry to these places, then the answer to the next question is pretty clear:   Is the death of children the latest anti-immigrant policy?

And if the answer to that question is "yes," then what in the name of Christmas are you going to do?

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THE U.S. BORDER IS A DANGEROUS PLACE. NOT BY MISTAKE.

Initial reports of a 7-year-old girl's death in Federal custody were that the Federal agents of the Customs and Border Protection (CBP), a part of the Department of Homeland Security or DHS, were told by the girl's father that she was fine.  He even filled out a Federal form that told the Federal agents the girl was healthy when she was taken into custody.

On the other hand, the initial reports of the little girl's death in Federal custody also were that her father told CBP that she "had nothing to eat or drink for days[.]"

These initial reports were from Washington, D.C. in the Washington Post.  They were "based on reports and interviews with consular officers as well as Homeland Security and Customs and Border Protection officials[.]"

In other words, the initial reports came from the Federal Government and from whatever was added by unknown, unnamed "consular officials" presumably familiar with Guatemala which is where this girl and her father came from.  See Nick Miroff, Hours Before Her Collapse in U.S. Custody, a Dying Migrant Child's Condition Went Unnoticed, Washington Post Online Friday, Dec. 14, 2018 at  10:38 PM.

These initial reports of information provided by the Federal Government raise a few questions.

How could the child have been healthy if she had nothing to eat or drink for days?

How could the girl's father have told the Federal agents and filled out their form in English when he did not speak English?  His "primary language" we are told is "a pre-Columbian Mayan tongue."  Hours Before Collapse in U.S. Custody, supra.  It is a pretty good bet that none of the people employed by the Federal Government at the border in the desert speak pre-Columbian Mayan.  So they must have communicated with the father, not in English or in Mayan, but in what may have been obvious was his second language, Spanish.

Next question:  The 7-year-old girl just crossed a desert with her father before CBP took them into custody.  Normal people would expect that she was or might have been dehydrated.  Even Little League Umpires make sure that the children playing baseball and softball stay hydrated during games in the spring and summer, whether or not the games are played in the desert.

The CBP itself is not unfamiliar with people crossing the desert.  The CBP agents that took the girl and her father into custody are in the desert themselves so they can be reasonably expected to be familiar with the idea that being in the desert can be dehydrating if a person is not careful.  Why did the CBP not notice that this little girl in the desert was dehydrated?

We are told that the CBP checked her out and found no signs.  Yet we know that she was dehydrated because that is why she died after all.  So why did the Federal Government not notice after they arrested her?

Next question:  Why were the agents of the Federal Government apparently not equipped for this dehydrated, apparently hungry and certainly tired 7-year-old, who was one among thousands of people turned away from more urban ports of entry by the current Federal Government and forced to seek asylum by crossing a desert?

If this is intentional cruelty, then among other things it isn't even efficient.

The people just keep coming.  Like this little girl and her father who were seeking asylum.

The current Federal Government apparently justifies this change in immigration policy at the border, as the CBP head told Congress three days after the child's death, to discourage people from crossing a desert to get into the United States who hope to avoid detection.  With a seven-year-old?  Not one of the reporters on this story seems to have asked that question, yet.

But to the contrary, all of the reporting about asylum seekers is in agreement on at least one thing:  Asylum seekers like this little girl and her father "were not seeking to evade capture but to turn themselves in."  Hours Before Collapse in U.S. Custody, supra (emphasis added).  The Federal Government's justification does not even seem real.  In any case, it is not suited to the situation faced by the thousands of people seeking asylum.

Next questions, both related to one another:  Why did it take a week for the Federal Government to admit that the girl had died despite a legal requirement to report deaths within 24 hours, and why did the head of the CBP not say a word about this girl's death when he already knew that she had died by the time he, the head, testified to Congress about immigration?

The current Federal Government's current CBP head "did not mention the girl's death, which was disclosed by CBP only after The Washington Post inquired about it Thursday evening."  Hours Before Collapse in U.S. Custody, supra (emphasis added).  That answers that question.

A seven-year-old girl died in Federal custody.  The current Federal Government has stepped up ... and blamed her father for her death.

More questions to come.  These are enough questions to ask for now.  But the questions will continue.

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

 

EVEN EINSTEIN WOULDN'T GET IN NOW.

TODAY is the deadline, Monday, December 10, 2018, for leaving Comments on the Department of Security's proposed re-write of rules surrounding "who is likely to become a public charge" because they are "likely to receive public benefits" and should, the DHS says, be excluded from living in the United States.  Because of that, this article will be published as widely as possible including  both on Claims and Issues Blog at https://claimsissues.typepad.com/ and Claims and Bad Faith Law Blog at https://insuranceclaimsbadfaith.typepad.com/. 

 

"USCIS [U.S. Citizenship and Immigration Services] Evidentiary Requirements" proposals are set out by the "parent" of USCIS, the Department of Homeland Security in new proposed rules changes.  One of these proposed changes, published at 83 FR at 51196, mandates "[e]vidence of the alien's most recent history of employment" in any consideration of "education and skills."  The proposed rule is 8 CFR § 212.22(b)(5)(ii)(A), in 83 FR at 51291.  This mandated evidence simply does not relate to a consideration of education and skills.  If it did, the DHS would have put on evidence in its rationale to support this, but the DHS did not support this mandate with any evidence linking these separate concepts.

             A good example -- evidence if you will -- of how education and skills simply do not depend on the four factors mechanically proposed on 83 FR at 51196 -- "the alien's most recent history of employment;" her or his "academic degree or certifications[;]" "occupational" skills or certificates, and "proficiency in English" -- was provided by the real-life experience of Albert Einstein.  He famously failed mathematics, not because he was dull, but to the contrary he was too intelligent for the teacher.  The DHS's rigid rules for considering the statutorily mandated evidence of "education and skills" do not allow for considering the actual circumstances of experience.

             In particular, Congress's word, "skills," would be transformed by the DHS proposed rules into "occupational skills."  (Emphasis added.)  The proposed rule is 8 CFR § 212.22(b)(5)(ii)(C), in 83 FR at 51291.

             The DHS's proposed rules refashioning Congress's words, here, refashioning both "education" and "skills," are unauthorized, contrary to Congressional intent, unsupported by any evidence, and to the contrary the available evidence militates against adoption of such proposed rules.

 

----------------------------------------------------------------------------------------------------This is reproduced from a Comment on the DHS proposed rules changes, titled IT ALL COMES BACK TO MONEY.  BUT THAT'S NOT WHAT CONGRESS SAID:  Comments to DHS Proposed Public Charge Rules 12.04.18.  The complete Comment is available here as a pdf:  Download IT ALL COMES BACK TO MONEY. BUT THAT'S NOT WHAT CONGRESS SAID. Comments to Proposed DHS Public Charge Rules. 12.04.18..

 

Leave your own Comments on the changes through the preferred submission Federal eRulemaking Portal:  www.regulations.gov.  The federal government has assigned the following numbers to these proposed rules changes to identify your Comments on these particular rules:  DHS Docket No. USCIS-2010-0012; RIN 1615-AA22.

 

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

THE IMMIGRANT'S TALE. A TRUE STORY.

The deadline is tomorrow, Monday, December 10, 2018 for leaving Comments on the Department of Security's proposed re-write of rules surrounding "who is likely to become a public charge" because they are "likely to receive public benefits" and should, the DHS says, be excluded from living in the United States.  Because the deadline of December 10 is so close, this article will be published as widely as possible including  both on Claims and Issues Blog at https://claimsissues.typepad.com/ and Claims and Bad Faith Law Blog at https://insuranceclaimsbadfaith.typepad.com/. 

 

          The unnatural effect of the changes proposed by the DHS to who is "likely at any time to become a public charge," including imposing new burdens of proof and re-defining "education and skills" to be taken into account in making the determination, would if they were in effect have required the exclusion of immigrant Mary Anne MacLeod.  She arrived in the United States from Scotland with the skills of a domestic and several hundred dollars in currency at present-day values.

           However, she was allowed to come into the United States and eventually married one Fred Trump with whom she had several children.  One of those children became President of the United States.

           In sum, the changes proposed by the DHS to who is "likely at any time to become a public charge," including imposing new burdens of proof and re-defining "education and skills" to be taken into account in making the determination, are unauthorized by Congress.  In addition, they are contrary to Congress's statutory intent.  Finally, they are not supported with evidence provided by the DHS, but to the contrary, the available evidence proves them to be invalid.

 They are in short the product of still another Federal administrative agency's regulatory overreach. 

---------------------------------------------------------------------------This is the Conclusion of a Comment on December 4, 2018 on the DHS proposed rules changes, titled IT ALL COMES BACK TO MONEY.  BUT THAT'S NOT WHAT CONGRESS SAID:  Comments to DHS Proposed Public Charge Rules 12.04.18.  The complete Comment is available here as a pdf:  Download IT ALL COMES BACK TO MONEY. BUT THAT'S NOT WHAT CONGRESS SAID. Comments to Proposed DHS Public Charge Rules. 12.04.18..

Leave your own Comments on the proposed changes through the preferred submission Federal eRulemaking Portal:  www.regulations.gov.  The federal government has assigned the following numbers to these proposed rules changes to identify your Comments on these particular rules:  DHS Docket No. USCIS-2010-0012; RIN 1615-AA22.

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

SNEAK ATTACKS AND REMEMBER PEARL HARBOR!

The deadline is this coming Monday, December 10, 2018 for leaving Comments on the Department of Security's proposed re-write of rules surrounding "who is likely to become a public charge" because they are "likely to receive public benefits" and should, the DHS says, be excluded from living in the United States.  Because the deadline of December 10 is approaching, this article will be published as widely as possible including  both on Claims and Issues Blog at https://claimsissues.typepad.com/ and Claims and Bad Faith Law Blog at https://insuranceclaimsbadfaith.typepad.com/. 

At the end of a week of leaving Comments, and following weeks of reading and researching 183 pages of DHS statements about its proposed "Public Charge" rules changes to exclude immigrants, I have come away with many definite impressions.  One of them is that the proposed rules changes and what the DHS says about them are really a manual for customs agents.

The DHS says that they wanted to "clarify" and standardize immigration determinations of who should be excluded from the U.S. because a person is likely to become a public charge if she or he is admitted, but that is not what these proposed changes do.  They make it much more complicated for customs agents and officers at the border to do their job if they admit people into the United States but easier if they default to excluding them.

All because the DHS equates "likely to become a public charge" with "likely to receive public benefits."  The DHS has invented many formulas which would have confused Einstein, let alone be confusing to officers at the border.  Here are the 183 pages of what DHS says about its proposed "Public Charge" changes:  Download DHS Proposed Public Charge Rule.101018..

It turns out that a manual is exactly what is being provided to other Federal bureaucracies including the State Department back in January.  I found this out in November from reporting about a lawsuit filed by the City of Baltimore in Federal Court:

The lawsuit, filed in U.S. District Court for the District of Maryland, challenges a change to the State Department’s Foreign Affairs Manual that took effect in January. The shift tells State Department workers evaluating visa applications abroad to consider whether applicants, their families or their sponsors have used a public benefit in the United States or might in the future.

Erin Cox, Baltimore Sues Trump Administration Over Legal Immigrants' Access to Public Benefits, The Washington Post Online (November 28, 2018).

Rewriting manuals and statutes.  Changing rules and regulations.  What is happening may sometimes appear in the light but it is done in the dark.

Lawsuits.  Comments.  We should not go quietly into their darkness.

There is no such thing as a free lunch, as they say.

It is December 7th.  Remember Pearl Harbor!

Leave your Comments on the changes through the preferred submission Federal eRulemaking Portal:  www.regulations.gov.  The federal government has assigned the following numbers to these proposed rules changes to identify your Comments on these particular rules:  DHS Docket No. USCIS-2010-0012; RIN 1615-AA22.

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

PREDETERMINING PUBLIC CHARGE INADMISSIBILITY:

Comments to the DHS Proposed Rules Changes 12.05.18.

The deadline for leaving Comments is December 10, 2018.  Because the deadline of December 10 is approaching, my Comments of 12.05.18 will be published both on Claims and Issues Blog at https://claimsissues.typepad.com/ and Claims and Bad Faith Law Blog at https://insuranceclaimsbadfaith.typepad.com/.  As a result, this blog article may be longer than is usually the case here.

 The following are my full Comments of December 5, 2018 in response to the DHS Proposed Public Charge Rules:  PREDETERMINING PUBLIC CHARGE INADMISSIBILITY.  In the Comments below, I am providing the addresses for you to be able to send your own Comments, and the DHS Docket Number etc. that the federal government agency requires in order to process Comments on or before December 10, 2018. 

December 5, 2018

BY POSTING TO FEDERAL eRULEMAKING PORTAL

AND BY U.S. MAIL

  Federal eRulemaking Portal:  www.regulations.gov.

 BY U.S. MAIL:

Ms. Samantha Deshommes

Chief, Regulatory Coordination Division

Office of Policy and Strategy

U.S. Citizenship and Immigration Services

Department of Homeland Security

20 Massachusetts Avenue NW

Washington, DC  20529-2140

 

Re:       DHS Docket No. USCIS-2010-0012.  RIN 1615-AA22.

To the Department of Homeland Security:

            These Comments concern changes to Public Charge Rules proposed by the DHS.  The previously filed Comments, UNAUTHORIZED AND MISDIRECTED filed on 12.01.18, are expressly incorporated herein by reference.

            DHS's proposal for a radically altered so-called "Public Charge Inadmissibility Determination" is unauthorized, contrary to law and experience, and in particular but without limitation redefines the discretion of considering a discretionary affidavit of support to transform it into a mandatory demerit if there is no affidavit of support contrary to the will of Congress expressed in 8 USCA § 1182(a)(4)(B)(ii).

            Proposed rule change to new "Public Charge Inadmissibility Determination" regarding an "affidavit of support," 8 CFR § 212.22(b)(7), 83 FR at 51292, is unauthorized and contrary to law and experience.  The DHS testifies falsely when it says that "[t]he absence of a statutorily required affidavit of support" under "8 U.S.C. 1183a, conclusively establishes an alien's inadmissibility on public charge grounds."  83 FR at 51178.  And again the DHS testifies to "an absent or insufficient required affidavit of support" again citing Section 1183a.  83 FR at 51178 & n.406.

            Section 1183a never requires an affidavit of support.  Other statutes may require an affidavit of support, but Section 1183a does not.  More to the point, the "public charge" determination set forth in 8 USCA § 1182(a)(4)(A)&(B) does not require an affidavit of support.

            It is the "public charge inadmissibility" determination in those provisions of Section 1182(a)(4) that this portion of the DHS rationale directly addresses and which are directly addressed by the DHS proposed rule changes.  To say again, the "public charge" determination set forth in 8 USCA § 1182(a)(4)(A)&(B) makes consideration of an affidavit of public support in making that determination a matter of discretion, it does not make it mandatory.  In basic and simple terms, subparagraph (B)(ii) of Section 1182(a)(4) declares that the public charge inadmissibility determination "may also consider any affidavit of support under section 1183a of this title[.]"  [Emphasis added.]  In the law and in this statute, "may" conveys discretion, not a command.  As used in this statute, it gives permission, it does not authorize punishment.

            In this context, "may" has a settled meaning in experience and in the law which is, at best, ignored in the DHS proposed rules changes and which is, at worst, a re-definition of "discretionary" to mean "mandatory" because that is the DHS's desired result here.

            In the specific case of "Family-sponsored immigrants" under the statutory framework established by Congress, an alien can successfully produce evidence on any of the factors enumerated for consideration by Section 1182(a)(4)(C)(i)(I), (II), or (III) without any affidavit of support at all.

            Therefore the apparently contrary interpretation by the DHS of the statute is both unreasonable and unauthorized.

            Moreover, to the extent that the language of the proposed rule change in 8 CFR § 212.22(b)(7) does not clearly convey the DHS's interpretation, DHS clearly stated its orientation toward the statutory provisions which address affidavits of support.  As a result, the proposed rule change is not authorized and not a rational means to establish who is "likely to become a public charge" as required by Section 1182(a)(4).

            Thank you for your consideration.

Now go and please leave your own Comments.  Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

 

IT ALL COMES BACK TO MONEY. BUT THAT'S NOT WHAT CONGRESS SAID:

Comments to Proposed DHS Public Charge Rules. 12.04.18.

The deadline for leaving Comments is December 10, 2018.  Because the deadline of December 10 is approaching, my Comments of 12.04.18 will be published both on Claims and Issues Blog at https://claimsissues.typepad.com/ and Claims and Bad Faith Law Blog at https://insuranceclaimsbadfaith.typepad.com/.  As a result, this blog article may be longer than is usually the case here.

 The following are my full Comments of December 4, 2018 in response to the DHS Proposed Public Charge Rules:  IT ALL COMES BACK TO MONEY.  BUT THAT'S NOT WHAT CONGRESS SAID.  In the Comments below, I am providing the addresses for you to be able to send your own Comments, and the DHS Docket Number etc. that the federal government agency requires in order to process Comments on or  before December 10, 2018. 

 

December 4, 2018

BY POSTING TO FEDERAL eRULEMAKING PORTAL

AND BY U.S. MAIL

 

Federal eRulemaking Portal:  www.regulations.gov.

 

BY U.S. MAIL:

Ms. Samantha Deshommes

Chief, Regulatory Coordination Division

Office of Policy and Strategy

U.S. Citizenship and Immigration Services

Department of Homeland Security

20 Massachusetts Avenue NW

Washington, DC  20529-2140

 

Re:       DHS Docket No. USCIS-2010-0012.  RIN 1615-AA22.

 

To the Department of Homeland Security:

            These Comments concern changes to Public Charge Rules proposed by the DHS.  The previously filed Comments, UNAUTHORIZED AND MISDIRECTED filed on 12.01.18, are expressly incorporated herein by reference.

            DHS's proposal to redefine Congress' statutory standard, "likely to become a public charge," is unauthorized by Congress.  Instead of a permissible interpretation, the DHS proposed rules changes which set forth an impermissible re-write of the statute enacted by Congress.  The DHS's proposed rules changes are also invalid with regard to who is "likely to become a public charge" because DHS's proposed rules changes are not supported by evidence.  Further, they do not take account of catastrophic circumstances that can cause people to apply for admission to the United States.  For all these reasons, whether taken separately or together, the DHS's proposed rules are an invalid attempt to change the Congressional standard for excluding a person on the ground that she or he is "likely to become a public charge." 

            Likely to become a public charge does not mean what the DHS says it means.  The starting point for Courts and for administrative agencies interpreting a statute is the statute itself.  Here, the task of determining who is "likely to become a public charge" is principally set forth as one among many potential grounds for excluding people from the United States, in 8 USCA § 1182(a)(4)(A) & (B):

(4) Public charge

(A) In general

Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

(B) Factors to be taken into account

(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien's--

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status; and

(V) education and skills.

(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support under section 1183a of this title for purposes of exclusion under this paragraph.

            The DHS's proposed rules changes, including proposed 8 CFR § 212.21(c) at 83 FR 51290, attempt to re-write the determination required by Congress to say that "likely at any time to become a public charge" instead "means likely at any time in the future to receive one or more public benefits[.]"   The Congressional statute has been transformed from considering the totality of the circumstances of who is "likely to become a public charge" to the totality of the circumstances of who is "likely to receive public benefits."   The difference between the two is illustrated by the fact that the Congressional determination would take natural and man-made catastrophes into account; the re-written standard proposed by DHS would ignore disasters entirely even though catastrophes are a time when want is most keenly felt to paraphrase Charles Dickens.  Experience teaches -- the evidence shows beyond dispute -- that disasters frequently require people to turn to receiving public benefits, and yet the DHS would allow no discretion to consider the circumstances.

            Moreover, the DHS's proposed rules changes would place a burden of proof on applicants for admission which applicants currently do not face.  Evidence under existing law is not the same as the DHS's proposed changes.  It is irrational to impose a burden to prove a negative.  This would render the Congressional statute meaningless.  The proposed rules changes in this regard are therefore not a valid interpretation of the Congressional statute.

            For example, the DHS proposes by defining an "alien's household" such that an alien "would have to demonstrate that his or her own assets, resources and financial status and his or her parent's or legal guardian's assets, resources and financial status are sufficient to support the alien and the rest of the household."  83 FR at 51184, with the proposed rules change in 8 CFR § 212.21(d) at 83 FR 51290-51291.  It bears constant repetition apparently that under existing law whether a person is "likely to become a public charge" is determined by a consular officer or the Attorney General under the above-quoted statute.  "In determining whether an alien is inadmissible under this paragraph [8 USCA § 1182(a)(4)(A)] the consular officer or the Attorney General shall at a minimum consider" factors to be taken into account.  This is not a burden of proof on the applicant for admission but a requirement that the consular officer or the Attorney General -- or in this case the AG's designate,  the DHS -- must make a determination, that the FEDERAL GOVERNMENT'S representative must consider certain things including "at a minimum" those factors which Congress ordered to be taken into account.

             In law, the determination of whether a party has met its burden of proof, whether she or he has for example "demonstrated" certain things, is different from whether there is enough evidence to support the claim at bar.  In the case of a person applying for admission into the United States, Congress set the standard at whether there is enough evidence to support the application at issue.  DHS may not impose a burden that Congress itself chose not to impose.

            Another illustration of the DHS imposing burdens that Congress itself chose not to impose is in the DHS's proposed consideration of Congressionally mandated consideration of "education and skills."  The DHS proposals apparently conflate them with education and skills "if authorized for employment," to quote the DHS rationale for this proposal, 83 FR at 51189.  The proposed rule is 8 CFR § 212.22(b)(5), at 83 FR at 51291. 

            Labor certification is a separate and distinct ground for exclusion.  It is set out in 8 USCA § 1182(a)(5), not 1182(a)(4) which is the stated subject of DHS's proposals.  Subsection 1182(a)(5) governs both skilled and unskilled labor, which is a different consideration entirely.

            "USCIS Evidentiary Requirements" set out by the DHS at 83 FR at 51196 mandate "[e]vidence of the alien's most recent history of employment" in any consideration of "education and skills."  The proposed rule is 8 CFR § 212.22(b)(5)(ii)(A), in 83 FR at 51291.  This mandated evidence simply does not relate to a consideration of education and skills.  If it did, the DHS would have put on evidence in its rationale to support this, but the DHS did not support this mandate with any evidence linking these separate concepts.

             A good example -- evidence if you will -- of how education and skills simply do not depend on the four factors listed on 83 FR at 51196 -- "the alien's most recent history of employment;" her or his "academic degree or certifications[;]" "occupational" skills or certificates, and "proficiency in English" -- was provided by the real-life experience of Albert Einstein.  He famously failed mathematics, not because he was dull, but to the contrary he was too intelligent for the teacher.  The DHS's rigid rules for considering the statutorily mandated evidence of "education and skills" do not allow for considering the actual circumstances of experience.

            In particular, Congress's word, "skills," would be transformed by the DHS proposed rules into "occupational skills."  (Emphasis added.)  The proposed rule is 8 CFR § 212.22(b)(5)(ii)(C), in 83 FR at 51291.

            The DHS's proposed rules refashioning Congress's words, here, refashioning both "education" and "skills," are unauthorized, contrary to Congressional intent, unsupported by any evidence, and to the contrary the available evidence militates against adoption of such proposed rules.

Conclusion.

            The unnatural effect of the changes proposed by the DHS to who is "likely at any time to become a public charge," including imposing new burdens of proof and re-defining "education and skills" to be taken into account in making the determination, would if they were in effect have required the exclusion of immigrant Mary Anne MacLeod.  She arrived in the United States from Scotland with the skills of a domestic and several hundred dollars in currency at present-day values.

            However, she was allowed to come into the United States and eventually married one Fred Trump with whom she had several children.  One of those children became President of the United States.

            In sum, the changes proposed by the DHS to who is "likely at any time to become a public charge," including imposing new burdens of proof and re-defining "education and skills" to be taken into account in making the determination, are unauthorized by Congress.  In addition, they are contrary to Congress's statutory intent.  Finally, they are not supported with evidence provided by the DHS, but to the contrary, the available evidence proves them to be invalid.

            They are in short the product of still another Federal administrative agency's regulatory overreach. 

            Thank you for your consideration.

Now go and please leave your own Comments.  Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

 

PENALIZING THE DISABLED, monetizing PREJUDICE: Comments to the DHS Proposed "Public Charge" Rules Changes 12.03.18.

The following are my full Comments of December 3, 2018 in response to the DHS Proposed Public Charge Rules:  PENALIZING THE DISABLED, monetizing PREJUDICE.  In the Comments below, I am providing the addresses for you to be able to send your own Comments, and the DHS Docket Number etc. that the federal government agency requires in order to process Comments. 

 

December 3, 2018

BY POSTING TO FEDERAL eRULEMAKING PORTAL

AND BY U.S. MAIL

 

Federal eRulemaking Portal:  www.regulations.gov.

BY U.S. MAIL:

Ms. Samantha Deshommes

Chief, Regulatory Coordination Division

Office of Policy and Strategy

U.S. Citizenship and Immigration Services

Department of Homeland Security

20 Massachusetts Avenue NW

Washington, DC  20529-2140

Re:       DHS Docket No. USCIS-2010-0012.  RIN 1615-AA22.

To the Department of Homeland Security:

            These Comments concern changes to Public Charge Rules proposed by the DHS.  The previously filed Comments, UNAUTHORIZED AND MISDIRECTED filed on 12.01.18, are expressly incorporated herein by reference.

            DHS's proposal to so-called "monetize" the receipt of public benefits and in particular the receipt of SSI or Social Security Insurance benefits is an attempt to penalize the disabled and put a money value on prejudice. 

            The DHS rationalizes that the Department of Health and Human Services "in some respects" equated "dependence" with the receipt of public benefits.  Specifically, the DHS claims that HHS has put a money value on, or "monetized," indicators of a "lack [of] self-sufficiency and [so] be dependent on the public for support."  83 FR at 51164.  That is not true.

            The HHS did not say that.

            Further, the DHS changes in this regard depend themselves on a claim that "it is possible and likely probable" that putting a money value on receiving many kinds of public benefits will successfully predict a "public charge" that should be excluded from the United States.  The DHS claim fails not only because it is disingenuous, equating "possible" with "likely probable" and in the same sentence no less, but because it has no evidentiary support.  Certainly the DHS provided no evidentiary support for this assertion, as it was required to do.  Rather than providing evidence, the DHS stated that the Department of Health and Human Services is responsible for a claim that HHS has yet to make.    

            Further, in making this claim and in writing these proposals the DHS has neglected to provide any definition of what the new changes mean by making benefits "monetizable."  You and I may think that we know what "monetizable" probably means, but the DHS has not told us what the DHS has in mind with that term over all.  There is no evidence to support that standard, and the DHS is in addition not authorized to declare that an excludable "public charge" includes a person who has received undefined "monetizable" benefits as a general presumption of law.

            The proposed rule change is 8 CFR 212.21(b), 83 FR at 51289-51291.  But to say again there is no overall definition either in DHS's own rationale or in the rules changes proposed by the DHS of "monetizable," no guidance to or reflection of proper interpretation of this newly invented federal regulatory word.  The changes proposed by DHS fail for these reasons alone.

            The DHS proposes to exclude people who receive SSI benefits by "monetizing" them in particular.  "According to one analysis," says the DHS, "SSI expenditures totaled approximately $54.7 billion in fiscal year 2017, and represented one of the largest Federal expenditures for low-income people."  83 FR at 51166.  Carried to its logical conclusion, this would be a reason to remove everyone who receives or has received SSI regardless of where they were born.

            Once again the DHS does not tell the full story.  SSI benefits represented 1.4% of the Federal Budget in fiscal year 2012.  "Introduction to the Supplemental Security Income (SSI) Program" at 5 (Center on Budget and Policy Priorities, Revised Feb. 27, 2014).  There is no reason to believe that the complete data recited in the "one analysis" relied on by the DHS for 2017 would be any different.  SSI was 0.33% of Gross Domestic Product in the years 2011-2012 and "expected to decline to 0.23 percent of GDP in 2037."  Id.

            Finally and most important of all, 86% of SSI benefits are paid to the disabled.  Those were the numbers as of December 2012.  Id. at 4.  There is little reason to expect the numbers to be any different in December 2018.

            It is irrational and insupportable to exclude disabled people by claiming that disabled people are "likely to become a public charge."  One human illustration will suffice here.  The DHS proposals would have excluded Dr. Stephen Hawking, perhaps the greatest theoretical physicist of his generation, because he was in a wheelchair and spoke with the aid of a machine.

Conclusion

            Courts are reasonably unlikely to accept this proposed definition of "likely to become a public charge" because of "monetized" "public benefits" including but not limited to SSI.  Judges are unlikely to accept this for many reasons:  These definitions are not authorized, they are not supported either by evidence or experience, and they rely on putting words in other people's mouths that they did not say.

            Moreover, the reliance on SSI benefits in particular to exclude people from admission to the United States is an illustration of how unconscionable the DHS's announced conception of "monetizable public benefits means likely to become a public charge" really is:  It is nothing less than an attempt to penalize the disabled and to put a profit on prejudice.

            Thank you for your consideration.

 

Now go and please leave your own Comments.  Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

PUBLIC CHARGE NOT PUBLIC PARIAH. Comments to DHS Proposed "Public Charge" Rules Changes 12.02.18.

The following are my full Comments of December 2, 2018 in response to the DHS Proposed Public Charge Rules:  PUBLIC CHARGE NOT PUBLIC PARIAH.  In the Comments below, I am providing the addresses for you to be able to send your own Comments, and the DHS Docket Number etc. that the federal government agency requires in order to process Comments. 

December 2, 2018

BY POSTING TO FEDERAL eRULEMAKING PORTAL

AND BY U.S. MAIL

Federal eRulemaking Portal:  www.regulations.gov.

BY U.S. MAIL:

Ms. Samantha Deshommes

Chief, Regulatory Coordination Division

Office of Policy and Strategy

U.S. Citizenship and Immigration Services

Department of Homeland Security

20 Massachusetts Avenue NW

Washington, DC  20529-2140

Re:       DHS Docket No. USCIS-2010-0012.  RIN 1615-AA22.

To the Department of Homeland Security:

            These Comments concern changes to Public Charge Rules proposed by the DHS.  The Department's proposed addition of a "public charge" definition and of a "public benefits" definition are not authorized by Congress and are not the result of experience.

            Any interpretation of a statute, whether it is an administrative interpretation like that proposed by the DHS in 83 FR 51114-51296, or by a Court, begins of course with the language of the statute itself.  With regard to excluding aliens as "likely at any time to become a public charge" the starting point is paragraph A of subsection 1182(a)(4), which reads in full as follows:

(4) Public charge

(A) In general

Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

            As was pointed out in an earlier comment, which is expressly incorporated herein by reference, Congress chose not to give a definition of "public charge" in the statute.  Moreover, interpretation of any statute requires a look at the entire statute in which the provision to be interpreted is found.  These defects render the proposed rules changes invalid, unlawful, and unauthorized.   UNAUTHORIZED AND MISDIRECTED:  Comments to DHS Proposed Changes to Public Charge Rules 12.01.18, which to say again, is expressly incorporated herein by reference.

The DHS interpretation in its proposed rules changes is contrary to the intent of Congress, which left the determination of "likely to become a public charge" to be established by the evidence provided to a hearing officer and ultimately to a judge.  Congress clearly provided for a determination based on the characteristics of individuals as they actually present themselves, and not determined by detailed 'tests' contrived in advance.  Congress simply did not intend for admission into the United States to rest merely on the arithmetical results of arbitrary numbers put into a contrived formula.

That is why Congress did not give a definition of "public charge."  The DHS proposes, to the contrary, to define who is a "public charge" before any evidence can be introduced.  DHS's proposed definition of a "public charge" excludable from admission to the United States is "an alien who receives one or more public benefits[.]"  83 FR at 51157.   The DHS proposes to introduce a previously unknown definition of "public benefits," in turn, "to include a specific list of cash aid and noncash medical care, housing, and food benefit programs."  83 FR at 51158.  The "public benefit" proposed rule in particular is set out as proposed 8 CFR § 212.21(a) & (b), 83 FR at 51289-51291.

For nearly a century, Federal case law has required evidence that aliens are "likely to become public charges" before they can lawfully be excluded from entry into the United States on that ground.  The definitions of "public charge" and "public benefits" which the DHS proposes to introduce reflect the opposite of the clear intent of Congress.  Congress clearly required a case-by-case determination of "likely to become a public charge" within the meaning of Section 1182(a)(4)(A), quoted above, and the Federal Courts have added that this determination must be based on evidence not opinions.  The DHS proposals are not supported with so much as an attempt at evidence to support these definitions.  The DHS simply proposes these definitions because it wants to, apparently.  That is not good enough for them to become law.

Conclusion

The "public charge" and "public benefits" definitions written by DHS do not "clarify" the meaning and application of Section 1182(a)(4)(A) as the DHS says they do, they rewrite it.  This the DHS may not do.

Thank you for your consideration.

Now go and please leave your own Comments.  Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

HIDING WITH THE LIGHTS OFF: DHS'S PROPOSED "PUBLIC CHARGE" RULES.

You have probably heard that the Department of Homeland Security (DHS) has proposed a re-write of the laws governing who is a "public charge" and therefore an inadmissible alien who cannot be admitted to the United States.

            The proposed rules and the explanations offered by DHS are set out in 183 pages of single-spaced small print in 83 Federal Register 51114-511196 (Wed., Oct. 10, 2018).  The 183 pages of changes proposed by DHS are also accessible here:  Download DHS Proposed Public Charge Rule.101018.

          To put these proposed changes in context so as to understand them better, here is the current law as it exists right now.  These are the factors to be taken into account right now -- and which have been taken into account for a very long time -- for making a determination that an alien "is likely at any time to become a public charge" and so be ineligible for admission into the United States:

(B) Factors to be taken into account

(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien's--

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status; and

(V) education and skills.

(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support under section 1183a of this title for purposes of exclusion under this paragraph.

8 U.S.C.A. § 1182(a)(4)(B) (emphasis added in italics; boldfaced emphasis in title by Congress).  To say again, these are the factors to be taken into account right now, five of them mandatory and "at a minimum," and one, considering an affidavit of support, discretionary.

             It is also important to know that these factors have not been perceived as a problem by anyone for decades.

            Until now.

            DHS's stated purpose for all of its changes was "to provide clarity for the public and immigration officers[.]"  83 F.R. at 51134, second unnumbered paragraph under "V.  Discussion of Proposed Rule."  Parenthetically, although the DHS often referred to "proposed rule" in the singular, it proposed many changes that would affect several rules.

           The public and immigration officers are both unlikely to see the DHS's efforts as "clarity."

           For example, at one point the DHS proposes that absence of a statutorily required affidavit of support under a certain statute "conclusively establishes an alien's inadmissibility on public charge grounds."  83 F.R. at 51178.  An immediate problem is that the statute relied on by the DHS, 8 U.S.C.A. Section 1183a, does not require any affidavit of support.

           Rather, Section 1183a prescribes the things required to be in an affidavit of support when there is one.  That is very different, and heaven help the public and the immigration officers who search Section 1183a in vain for what is not there, namely, a statutory requirement for an affidavit of support. 

           After the DHS identifies this non-existent "conclusive presumption" in its heading number "1" under "Public Charge Inadmissibility Determinations," the DHS next says in effect "never mind," and announces secondly that "2" the determinations are based on the totality of the circumstances.

           Which is it?

           How is the public and how is an immigration officer to be expected to reconcile the DHS hierarchy of, first, a conclusive presumption based on a statutory requirement that doesn't exist and, second, in any case the totality of the circumstances?

           Good questions.  I think that in these proposed rules the DHS clearly expects too much from the public and expects too much from immigration officers processing immigrants standing in lines at the U.S. borders.

           A second example of how the DHS's proposed rules do not really shine a light on "clarity" but instead, if they do anything it is to turn out the lights, comes from its new proposed requirement that immigration officials are told to calculate the "Fifteen percent [15%] of Federal Poverty Guidelines (FPG) Standard for Monetizable Benefits[.]"

           Seriously.  See 83 F.R. at 51164-51165.

           The proposed new additions are in the proposed subsection (b) of Section 212.21, titled "Public benefit."  In that new subsection, the DHS first proposes a calculation of what it calls "monetizable" benefits, by which it means benefits that can be readily calculated into money, more or less.  These things include cash assistance, Supplemental Security Income (SSI), and so-called "General Assistance." 

            But -- remember that the DHS wants the public and immigration officers to clearly understand that a "public charge" is a person who gets any public benefits at all -- the DHS wants to tell immigration officers to also calculate benefits which the DHS thinks cannot be readily calculated into money, but which it wants immigration officers to try to do according to formulas it proposes for such things as food stamps, housing vouchers, and rental assistance.

           Not done yet!  The DHS also wants immigration officers to apply this formula:

(2)  Any of one or more of the following non-monetizable benefits if received for more than 12 months in the aggregate within a 36 month period (such that, for instance, receipt of two non-monetizable benefits in one month counts as two months)[.]

Proposed 8 CFR § 212.21(b)(2), published in 83 F.R. at 51290.

          What does that even mean?

          And how is an immigration officer at the border expected to figure that out?

          Last but not least is this third example of snatching "clarity" from the laws of immigration, which appears in the DHS's proposed Section 212.21(b)(3):

          (3)  The receipt of a combination of monetizable benefits under paragraph (b)(1) of this section where the cumulative value of such benefits is equal to or less than 15 percent of the Federal Poverty Guidelines for a household size of one within any period of 12 consecutive [sic; the missing word the DHS is still searching for is apparently the word "months"] based on the per-month FPG for the months during which the benefits are received, together with one or more non-monetizable benefits under paragraph (b)(2) of this section if such non-monetizable benefits are received for more than 9 months in the aggregate within a 36 month period (such that, for instance, receipt of two non-monetizable benefits in one month counts as two months)[.]"

I do not know if this passage passes for "clarity" in the language of a federal bureaucrat, but after over 40 years as a lawyer I can say without hesitation that no other person, no jury, and no judge would ever confuse this with "clarity."

          In the end, if the purpose of these changes proposed by the DHS is to cover up an intent to stop immigrants from entering the U.S., then perhaps that purpose has been achieved here, however foreign and unlawful that purpose may be.

          But the DHS's stated purpose in proposing these changes is to achieve "clarity."  In that, the DHS clearly and totally fails.

 

Leave your Comments on the changes through the preferred submission Federal eRulemaking Portal:  www.regulations.gov.  The federal government has assigned the following numbers to these proposed rules changes to identify your Comments on these particular rules:  DHS Docket No. USCIS-2010-0012; RIN 1615-AA22.

See also Claims and Issues Blog, at https://claimsissues.typepad.com/insurance_claims_and_issu/2018/11/hiding-with-the-lights-off-dhss-proposed-public-charge-rules-you-have-probably-heard-that-the-department-of-homeland-sec.html

 

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.