August 16, 2017

Private: At the Justice Department, Going From Forward to Reverse

Dan Froomkin, The Department of Injustice


by Dan Froomkin

*This piece is part of the ACSblog symposium: The Department of Injustice

Over the summer, Donald Trump’s political combativeness and anti-regulatory zeal have increasingly made their way into legal filings by the Department of Justice that represent dramatic reversals from the Obama era.

The department’s starkest and most politically motivated reversal came in a case about how voters are purged from voting lists in Ohio, a crucial swing state.

Ohio’s practice of purging voters who miss three election cycles and fail to respond to a warning is one of the most aggressive in the nation, and the American Civil Liberties Union sued in April 2016 to prevent the state from purging potentially hundreds of thousands of registrations before the presidential election.

The Obama-era Justice Department filed an amicus brief urging the Sixth Circuit Court of Appeals to block the purge, which it did. The brief argued that the National Voter Registration Act of 1993 (NVRA) made it clear "that States may not trigger the process based solely on a voter’s failure to vote." That brief was, notably, signed by two career lawyers from the Civil Rights Division as well as political appointees.

But in July, with the case now going before the Supreme Court, the acting solicitor general filed a brief – with no career lawyers signing – that argued the exact opposite:

After this Court’s grant of review and the change in Administrations, the Department reconsidered the question. It has now concluded that the NVRA does not prohibit a State from using nonvoting as the basis for sending a Section 20507(d)(2) notice. That conclusion is supported by the NVRA’s text, context, and history.

Unbinding Arbitration

In another case, the Obama administration in late 2016 asked the Supreme Court to resolve, once and for all, if arbitration agreements can bar employees from suing their employers.

The petition on behalf of the National Labor Relations Board (NLRB) argued that the right workers have to engage in “concerted activities” in pursuit of their “mutual aid or protection" under the National Labor Relations Act trumps the Federal Arbitration Act, which enforces arbitration agreements. In the case at hand, employees were required to sign an agreement waiving their right to take court action – singularly or collectively -- about a dispute with their employer, agreeing instead to individual binding arbitration. Then four of them tried to sue their employer anyway.

In June, under new management, the Justice Department didn't just abandon the NLRB, it actually filed an amicus brief on behalf of the companies that were formerly its targets:

In Murphy Oil, this Office previously filed a petition for a writ of certiorari on behalf of the NLRB, defending the Board’s view that agreements of the sort at issue here are unenforceable. After the change in administration, the Office reconsidered the issue and has reached the opposite conclusion.

Josh Blackman, a professor at the South Texas College of Law, wrote in his blog that the candor with which the Trump administration Justice Department is acknowledging its reversals is likely an attempt to avoid the kind of rebukes Obama administration lawyers got several times from Supreme Court justices after switching positions from that of the Bush administration “upon further reflection.”

And Blackman argued that while a 1984 Supreme Court decision requires judges to defer to administrative agencies’ interpretations of ambiguous federal law, an abrupt turnaround based on who is president "should give the courts pause before applying the normal cannons of deference."

Kneecapping Former Allies

In another case, the Justice Department along with several states filed suit against American Express for trying impose a gag on merchants in their network, banning them from disclosing the fact that American Express charges more per transaction than Visa and Mastercard.

After an adverse ruling at the appellate court level – and a change in administration – DOJ is now not just dropping the case, but actually kneecapping its former co-petitioners, who are trying to appeal to the Supreme Court.

In an August 7 brief, Trump Justice Department lawyers said that while they still think the appellate decision was wrong, the Supreme Court shouldn’t consider overruling it "because the case does not satisfy the Court’s traditional certiorari standards."

Disability Dismissed

Some cases have simply been dropped, like a disability rights lawsuit filed by the Obama Justice Department in March 2016. The Department had sued the Richmond City Sheriff’s Office in Virginia for firing a deputy who had developed a heart condition, rather than reassigning her to a vacant position for which she was qualified.

The lawsuit alleged a violation of the Americans with Disabilities Act (ADA). Vanita Gupta, then the acting head of the Justice Department’s Civil Rights Division, said at the time: “The Justice Department will continue to vigorously enforce the ADA and ensure that when employees develop disabilities that interfere with their job, employers reassign them to a different vacant position that matches their qualifications."

A federal judge threw the case out in November, saying the ADA did not require "special preferences" for the disabled. Justice Department lawyers filed a notice of appeal on January 18, two days before Trump took office.

But on July 28, John M. Gore, the Trump-installed acting head of the Civil Rights Division, filed a motion "to dismiss the appeal with prejudice" – meaning the case wouldn't be refiled. There was no explanation provided.

Eve L. Hill, a former deputy assistant attorney general for civil rights who signed the original complaint, said the decision to drop the appeal was disturbing.

"I was very alarmed at this change and I’m still alarmed at this change," she said. "It’s possible that it’s not a reversal – it’s possible the complainant settled," she said. "But the Department of Justice doesn’t represent the complainant and still has the authority to go ahead in this legal issue."

A Change in Sexual Orientation

The Justice Department in late July filed an amicus brief in a Second Circuit case, arguing that Title VII of the 1964 Civil Rights Act, which bars discrimination in the workplace based on “race, color, religion, sex or national origin” does not protect employees from discrimination based on sexual orientation.

That wasn’t a reversal of Justice Department policy, per se. But it did mark a reversal from a 2015 ruling from the U.S. Equal Employment Opportunity Commission (EEOC) that workplace discrimination on the basis of sexual orientation was illegal.

The Trump administration brief said the EEOC was “not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade."

Sudden Settlement

It wasn’t exactly a reversal, but it was certainly an unusual, unexpected and now somewhat suspicious move: the sudden settlement in May by the acting U.S. attorney for Manhattan, just two days before trial was set to begin, in a case involving Russian businessman Denis Katsyv, the owner of Prevezon Holdings. Katsyv was accused of laundering some of the $230 million he obtained through Russian tax fraud in luxury New York apartments.

The settlement – a $5.9 million fine but no admission of wrongdoing – seemed highly anticlimactic, given that the scheme was first uncovered by Russian lawyer Sergei Magnitsky, whose 2012 death in Russian custody led to the passage of a law in his name allowing unprecedented sanctions aimed at the Russian officials responsible for human rights abuses.

Katsyv lawyer Faith Gay told Reuters that the settlement amounted to less money than it would have cost her client just to try the case.

The plot thickened several weeks later, when it emerged that one of Kastyv's other lawyers was Natalia Veselnitskaya, a Russian attorney who had held a secret meeting in June 2016 with Trump’s son, son-in-law and then-campaign manager, luring them with the promise of damaging Russian government information on Democratic presidential candidate Hillary Clinton.

Democrats on the House Judiciary Committee have asked the Justice Department to explain the move – and whether the sudden firing of former Manhattan U.S. attorney Preet Bharara was in any way related to his enthusiastic pursuit of the case.