Update on “FOIA” Litigation Filed Against the United States Customs and Border Protection Service (“CBP”).
Represented by Drinker Biddle and Jerry Hartman, the American Immigration Council (“AIC”) filed suit against CBP in the United States District Court for the District of Columbia in June 2016, to compel compliance with a Freedom of Information Act (“FOIA”) request AIC had served in late 2015 to obtain records relating to complaints of misconduct lodged against Border Patrol officers since January 2012. In a report published in 2014, entitled “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse,” AIC had documented that 809 complaints alleging misconduct had been filed against CBP personnel during the three-year period running from 2009 through 2011, and that an astonishing 97% of the cases in which CBP issued a formal decision resulted in disposition of “No Action Taken” against the officer in question. The FOIA request AIC served in 2015 was designed to obtain records relating to more recently filed complaints to assess whether CBP was making progress in reducing the incidence of complaints against CBP personnel and of processing such charges in a fashion that promotes accountability.
With much perseverance by pro bono counsel, CBP produced—on a rolling basis—thousands of pages of documents relating to complaints that noncitizens filed against CBP agents and officers, along with previously undisclosed copies of CBP’s manual for processing, investigating and resolving complaints. Sufficient data had been produced by August 2017, that the Council was able to issue a special report, entitled “Still No Action Taken; Complaints Against Border Patrol Agents Continue to Go Unresolved.” That report documents the seriousness of the complaint allegations, the majority of which involved physical abuse, but which also included sexual abuse, theft of property, and verbal abuse. A shocking 95.9% of the cases in which an outcome was reported by CBP resulted in “no action taken.” The FOIA and the Council’s special report have received widespread coverage, including citations in the media, reports by policy and research institutions, law review articles, and blogs—all of which has brought much-needed transparency to the ongoing inadequacies of CBP’s system for investigating complaints against its officers and disciplining them when warranted.
The FOIA production is concluded. The parties now are engaged in negotiations over attorney’s fees.
Samantha R., et al v. North Carolina, et al, pending in State Court in North Carolina, is systemic litigation designed to address the failure of the State of North Carolina to provide appropriate behavioral health services to citizens with intellectual and/or developmental disabilities (I/DD). The case is being handled by Drinker Biddle, Jerry Hartman, and Disability Rights North Carolina. The lawsuit challenges the systemic flaws in the design, funding, implementation, and administration of the North Carolina’s health and human services system. There are thousands of people with I/DD in North Carolina who are institutionalized unnecessarily and thousands more at risk for institutionalization.
Discovery was conducted over the course of nearly two years, and revealed that the State does not have a comprehensive or effective plan for addressing unnecessary institutionalization, and has failed to provide adequate alternatives to institutionalization. The parties have filed cross motions for summary judgment, and a hearing has been set for October 30, 2019.
Dan Aiken, a partner at Drinker Biddle, under the auspices of the Foundation represents a Pennsylvania-based mother of two children, who seeks to terminate all parental rights of the children’s father, who was also the mother’s adopted father. Our client suffered more than 15 years of rape by her adopted father, beginning when she was four. Our client’s two children are the product of that abuse. Pennsylvania law has been interpreted, so far, to prevent our client from terminating her abuser’s parental rights unless she is seeking to do so in aid of giving up her children for adoption, or in aid of finding a new partner to adopt her children as a co-parent. We contend that these unnecessarily restrictive requirements violate our client’s rights under the United States and Pennsylvania Constitutions. So far, the trial court has found that, although termination of parental rights would otherwise be appropriate under the facts of our case, the law prohibited such an order given that there is no anticipated adoption. We have filed a Notice of Appeal and intend to continue litigating this issue. (September 2018)