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Selected Cases

Privacy

Wilner v. NSA, 592 F.3d 60 (2d Cir. 2009)

Prevailed on appeal, with the Court affirming the district court’s ruling that an agency may provide a Glomar response—neither confirming nor denying the existence of records—to FOIA requests for information and communications gathered under the Terrorist Surveillance Program, whose existence had been publicly revealed.

Arar v. Ashcroft, 585 F.3d 559 (2nd Cir. 2009) (en banc)

Prevailed on rehearing, with the Court affirming the district court’s dismissal of the alien plaintiff’s Torture Victim Protection Act claim alleging improper detention, extraordinary rendition, and torture by the United States but did not claim the federal officials were clothed with the authority of Syrian law or that their conduct was fairly attributable to Syria.  Noting the presence of “intractable special factors,” the Court declined to recognize a Bivens action in the extraordinary rendition context.

Allard K. Lowenstein Int’l Human Rights Project v. Dep’t of Homeland Sec., 603 F. Supp. 2d 354 (2009), aff’d 626 F.3d 678 (2d Cir. Conn. 2010)

Prevailed in FOIA lawsuit seeking disclosure of certain materials concerning “Operation Front Line,” an initiative focused on security for the 2005 Presidential inauguration.  After an in camera review, the Court agreed that certain material constitutes law enforcement techniques and procedures, and was therefore properly redacted under exemption (7)(E).

Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, (No. 09-11441 E.D. Mich. March 30, 2010), aff’d, 648 F.3d 365 (6th Cir. 2011)

The proper FOIA disclosure of a right-wing extremist intelligence assessment prompted the plaintiff pro-life nonprofit organization to bring a lawsuit loosely claiming that DHS unlawfully targeted right-wing groups for harassment and surveillance.  We prevailed on a motion to dismiss where the complaint contained irrelevant allegations, failed to plausibly allege that DHS violated the First or Fifth Amendment, and identified no policy or action that would have a chilling effect on participation in protected speech.

Employment

Sosa v. Napolitano, 318 Fed. Appx. 68 (3d Cir. 2009)

Affirmance of district court’s grant of summary judgment in favor of DHS, where Federal Air Marshall trainee brought a Title VII action but failed to establish a prima facie case of discrimination.  The Court found no error in the district court’s exclusion of unsworn testimonial evidence, nor its conclusion that there was no genuine issue as to whether her race or gender was a factor in her termination because the people who harassed her played no role in her termination.

Brown v. Napolitano, 380 Fed. Appx. 832 (11th Cir. 2010)

Per curiam affirmance of district court’s grant of summary judgment in favor of DHS where federal employee brought a Title VII retaliation claim but failed to provide sufficient evidence to establish that decision maker who fired him harbored any retaliatory animus toward him.  The panel also rejected the employee’s whistleblower defense, concluding that notes in an internal memo do not constitute a “disclosure” under 5 U.S.C. § 2302(b)(8).

Hinds v. Napolitano, 2009 U.S. App. LEXIS 28981

Prevailed in TSA Screening Supervisor’s appeal of the district court’s dismissal of her employment claims on summary judgment.  The Court held that, when taken in context, her supervisor calling her “mom” and “secretary” did not reflect a discriminatory animus.  The Court further held that her claims of disparate treatment based on different, non-military prior work experience did not state an actionable claim.  The Court similarly upheld the dismissal of her harassment, retaliation, and Equal Pay Act claims.

AFGE Local 556 ex rel. Blanco v. TSA, No. 15-7275 (2015)

Obtained reinstatement of Master Behavior Detection Officer where dismissal was improper in light of medical evidence.  [of counsel]

Immigration

Karpeeva v. Dep’t of Homeland Sec., No. 09-cv-21278 (S.D. Fla. Aug. 12, 2009), aff’d 432 Fed. Appx. 919 (11th Cir. 2011)

Prevailed on motion to dismiss where alien petitioners sought review of the revocation of their approved I-140 petitions for preference visas.  The Court held that 8 U.S.C. § 1252(a)(2)(B) precluded judicial review of visa revocation decisions made pursuant to 8 U.S.C. § 1155.  Because § 1155 leaves the Secretary with broad discretion to revoke visas, the Court also rejected the petitioners’ Bivens claim, ruling that the Fifth Amendment does not protect their interest in not having their I-140 authorizations revoked.

Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239

Prevailed in plaintiffs’ appeal of judgment dismissing their APA claims concerning DHS’s promulgation of an Interim Final Rule governing F-1 visas.  The rule extends the optional practical training (OPT) period to 29 months for successful F-1 petitioners in the science, technology, engineering, or mathematics fields.  Thus, they may remain in the United States for up to six years from the date their qualifying employment begins.  In practice, it obviates the need for many F-1 visa holders to exit the country while their H1B visa petition is pending.  The Court held that the plaintiff employers and professional associations alleged injury (heightened competition in the job market) did not fall within the zone of interests protected by 8 U.S.C. § 1101(a)(15)(F)(i).

Betz v. Chertoff, 578 F.3d 929 (8th Cir. 2009)

Prevailed on appeal of a favorable judgment where the plaintiff employee alleged age discrimination and constructive discharge in violation of 29 U.S.C.S. § 633a.  The Court held that the retaliation claims failed because the plaintiff failed to contact an EEO counselor within 45 days as required by 29 C.F.R. § 1614.105(a)(1).  The Court further agreed that her discrimination claims fail because her increased workload was not intolerable, and was consistent with her salary.  Finally, the Court found no error in the conclusion that younger employees who received promotions were not similarly situated because they worked for different supervisors, such that her supervisor had nothing to do with their promotions.

Business

Global Direct Sales, Inc. v. IEHI, Inc. No. 08-2468 (D. Md. 2013)

Won complete defense judgment on First Amendment and Commutations Decency Act immunity grounds on behalf of blog owners facing putative $4M business tort and defamation action brought by a mortgage financing company and an Indian tribe.