Constitutional & Complex Litigation
In a number of carefully selected matters, we work with clients and co-counsel to design and prosecute constitutional and regulatory challenges and other complex litigation from the ground up–with a special focus on nationwide class actions and high-stakes litigation involving the federal government. We also consult on litigation strategy and are occasionally retained to argue critical, high-stakes motions that present unsettled legal issues.
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Class Action Against ICE Over Immigration Bonds
Cortez v. United States (U.S. District Court for the Eastern District of New York) – We represent a putative class of people nationwide who paid bonds to Immigration and Customs Enforcement (ICE) who haven’t been repaid, despite the bonded individual meeting all legal obligations. The lawsuit is based on ICE’s widespread breach of contract and aims to recover hundreds of millions of dollars owed to immigrant families. The lawsuit is the result of a two-year investigation by Envision Freedom Fund, supported by the Immigration Justice Clinic at Cardozo Law School. Gupta Wessler LLP and Motley Rice LLC are leading the case. Complaint | Associated Press | Bloomberg Law | Documented
Challenge to Baltimore’s Unconstitutional System for Tax-Sale Auctions
Edmondson Community Organization v. Mayor and City Council of Baltimore (U.S. District Court for the District of Maryland) – With Maryland Legal Aid, we filed this lawsuit to challenge the City of Baltimore’s unconstitutional system for conducting tax-sale auctions, which results in a massive, City-facilitated transfer of wealth from low-income and Black Baltimore residents to wealthy, out-of-state institutional tax-lien investors. This action seeks recompense for the plaintiffs—who have been deprived of the just compensation the Constitution requires—and an end to the system that accomplishes this unconstitutional wealth transfer away from some of the community’s most vulnerable residents. Amended Complaint | Baltimore Banner
Class Action Challenging Fees for Federal Court Records (PACER)
National Veterans Legal Services Program, et al. v. United States (U.S. District Court for the District of Columbia and U.S. Court of Appeals for the Federal Circuit) – We represent a nationwide class, led by the the National Veterans Legal Services Program, in a lawsuit challenging the lawfulness of PACER fees–the charges individuals must pay to access federal court records. Although the judiciary is authorized by Congress to charge fees “only to the extent necessary” to recoup costs, PACER fees have generated huge revenues—with important implications for freedom of information and access to justice. In January 2017, the court granted our motion to certify a nationwide class of PACER users. In 2020, the U.S. Court of Appeals for the Federal Circuit affirmed the district court’s decision concluding that the courts had charged fees in excess of statutory authority. Website | Coverage at National Law Journal; ABA Journal; Wall Street Journal; Techdirt; Ars Technica; Courthouse News; Bloomberg BNA.
After years of hard-fought litigation, the plaintiffs have secured a historic settlement under which the government must create a common fund of $125 million and reimburse the vast majority of PACER users in full— 100 cents on the dollar—for past PACER charges. Read coverage of the settlement in the Washington Post, Politico, Reuters, The National Law Journal, and Bloomberg. The district court’s final approval of the settlement is currently pending on appeal before the U.S. Court of Appeals for the Federal Circuit.
Recovering Illegal Tax-Preparer Fees from the IRS
Steele v. United States (U.S. District Court for the District of Columbia) – In 2010, the IRS introduced a novel regulatory scheme for those who prepare tax returns, and began charging preparers a $64.25 fee to obtain a preparer ID number. Although the D.C. Circuit held in 2014 that the IRS does not have the authority to regulate tax preparers, the IRS continues to charge these fees. In this case, we represent a nationwide class of tax-return preparers challenging the legality of these IRS fees. We represent the class along with co-counsel from Motley Rice. Amended Complaint | Class-Certification Motion | Class Certification Opinion | Motion for Reconsideration | Opinion Granting Motion for Reconsideration | Motion for Summary Judgment | Summary Judgment Opinion
Suit to Block Midnight “Censored Science” Rule
Environmental Defense Fund v. EPA (U.S. District Court for the District of Montana) – We sued on an emergency basis under the APA and successfully blocked the Trump Administration’s midnight “censored science” rule, which would have crippled EPA’s ability to use science to protect the public health, from going into effect. Complaint
Suit to Prevent Takeover of the Open Technology Fund
Open Technology Fund v. Pack (U.S. District Court for the District of Columbia and U.S. Court of Appeals for the D.C. Circuit) – On behalf of the Open Technology Fund and board members of Radio Free Europe, Radio Free Asia, and Middle East Broadcasting Networks, we filed a lawsuit challenging the U.S. Agency for Global Media’s attempted “Wednesday Night Massacre” of the leadership of agency-funded news and anti-censorship organizations. The firings sparked bipartisan outrage. Coverage in the New York Times, Reporters Committee, Fox News | Complaint | Motion for temporary restraining order | reply brief
Constitutional Challenge on Behalf of Administrative Law Judges
Association of Administrative Law Judges v. Federal Service Impasses Panel (U.S. District Court for the District of Columbia) – We represented the Association of Administrative Law Judges, a federal-sector labor union, in a constitutional challenge to the Federal Service Impasses Panel during the first Trump Administration. Although the panel’s members are officers of the United States appointed by the President, not one of the panel’s members had been confirmed by the Senate. Yet the panel wields substantial government power: It asserts jurisdiction over federal labor unions, issues final orders that are binding on those unions, and imposes long-term contract provisions on the unions against their will—including restrictions that go even further than those requested by employers. And unlike most federal agencies, its actions are unchecked—the merits of the panel’s actions generally are not subject to any further administrative or judicial review. Complaint | Motion for Preliminary Injunction | Reply | National Law Journal
Class Action on Behalf of Federal Bankruptcy Judges
Houser v. United States (U.S. Court of Federal Claims) – We served as sole counsel to a certified class of federal judges–one of the few such cases in U.S. history. We were retained by the National Conference of Bankruptcy Judges to devise and prosecute litigation against the United States on behalf of all current federal bankruptcy judges, as well as former judges and their surviving spouses, estates, and beneficiaries. As the American Lawyer observed: “it’s hard to imagine a higher compliment than being hired to represent federal judges.”
We argued that because the United States violated the U.S. Constitution’s Judicial Compensation Clause by failing to pay district judges their full compensation, and because the government calculated bankruptcy judges’ salaries based on those unlawfully low salaries, the government failed to pay bankruptcy judges their lawful compensation. Deepak Gupta and Jon Taylor, who served as counsel for the plaintiffs, were awarded the President’s Award by the National Conference of Bankruptcy Judges for work on the case.
We prevailed at summary judgment, settled with the government, obtained a final judgment entitling our clients to over $56 million in back pay, and administered a unique class claims process in cooperation with the U.S. Department of Justice. Summary Judgment Brief | Complaint
Leadership Battle Over the Consumer Financial Protection Bureau
Leandra English v. Donald Trump (U.S. District Court for the District of Columbia and U.S. Court of Appeals for the D.C. Circuit) – We represented Leandra English in this high-profile, fast-paced leadership battle over the directorship of the Consumer Financial Protection Bureau in the wake of Richard Cordray’s resignation in November 2017 and President Trump’s appointment of Mick Mulvaney to simultaneously head the CFPB and the White House Office of Management and Budget. New York Times | Washington Post | NPR
