Welcome to “The Brief,” a monthly roundup of Democracy Forward’s latest work to use the law to fight for good government on behalf of all Americans. Read on below for news of our victories, newest filings, latest case updates, and resources to learn more.
Last month, as the country saw increasing challenges to democracy and social progress, our team did not tire in its determination and mission to meet this moment.
We continued to represent the nation’s leading child health experts in court, supporting public health measures to control the spread of COVID-19 in schools across the country. And judges in Iowa and Tennessee have relied on our briefs to uphold universal mask policies. In fact, a judge in Williamson County, TN, cited our brief to discredit the state’s anti-science expert, setting a positive precedent for future cases in the state. And as workers across the country are taking to the picket lines to fight for their rights, we’re in the courts opposing attempts to undermine federal protections for workers laid off during the pandemic.
In the federal agencies, we elevated the voices and perspectives of those most affected by governmental action. This work matters: following advocacy by Democracy Forward and partner organizations, Attorney General Garland announced that the Department of Justice will review a Trump-era memo that wrongfully concluded those on early release from prison because of the pandemic would have to return to prison once the pandemic ends. In the health care context, HHS announced its intent to fully rescind the Trump-era “sunset rule,” which would have dismantled the health care system through retracting more than 18,000 regulations. The agency cited the suit we filed challenging the rule on behalf of Santa Clara County and a coalition of tribes, healthcare professionals, and health and food safety organizations.
Our team is not deterred by the challenges the country faces. We are honored to fight for the promise of democracy on behalf of all Americans —and are more energized and determined than ever. Read on for more about our work and be sure to follow updates on Twitter or Instagram.
In the Courts
Opposing Attempts to Weaken Protections For Workers Laid Off
- In March 2020 amid the early months of the pandemic, U.S. Well Services laid off many of its employees without providing them any notice. Workers brought suit due to the lack of notice provided, but a district court dismissed their case, accepting the company’s flawed legal position that no notice was needed during the pandemic.
Why Does it Matter?
- Congress enacted the WARN Act to require workers to receive 60-days advance notice when they are facing mass layoffs. This is an essential protection for workers, families & communities that enables state and local governments to help laid-off employees find new jobs, and gives workers time to retrain, apply for new jobs, and adjust their financial circumstances before losing income.
- The WARN Act does contain some exceptions to this required notice, including a “natural disaster” exception. But for this to apply, employers must demonstrate that a mass layoff was a direct result of a natural disaster. U.S. Well Services’ layoffs were not; they were caused by the economic downturn resulting from the pandemic.
- It’s not just this case. Under the guise of the pandemic, several companies have attempted to avoid their responsibilities to employees, undermining laws that protect workers facing layoffs.
What Are We Doing?
- We filed a brief opposing attempts to weaken worker protections, urging the Fifth Circuit to reverse the lower court’s incorrect interpretation of the WARN Act — a reading that undermines Congress’s intent to protect workers.
- Our brief was filed on behalf of leading unions, including the Communications Workers of America (CWA), the Service Employees International Union (SEIU), the American Federation of Teachers (AFT), and the American Federation of State, and the County and Municipal Employees (AFSCME).
Exposing Coal Industry Trade Association and Compelling Compliance with the Law
- Under the Trump administration, an outside advisory group stacked with coal industry representatives and operating a parallel private industry association advocated for policies to increase coal extraction. The National Coal Council functioned as an opaque channel for official policy advice between the coal industry and the Department of Energy.
Why Does it Matter?
- The National Coal Council was created pursuant to the Federal Advisory Committee Act (FACA), a transparency law passed by Congress to control the advisory committee process. However, between 2017 and 2020, the Council undertook much of its work out of the public eye, contrary to both the letter and spirit of FACA, and to the detriment of people harmed by the extraction, processing, or combustion of coal.
- Rather than allow public access to the Council’s work, the Council relied on other entities, ostensibly outside FACA’s reach, to fulfill its mission. The first was a private trade association, the National Coal Council, Inc., funded by coal industry interests, and the second were the Council’s subcommittees.
What Are We Doing?
- On behalf of the Western Organization of Resource Council, a conservation organization with membership directly affected by the domestic coal industry, we filed suit in October 2020 to compel the Council to comply with the law. Despite the prior administration’s efforts to have this suit dismissed, a judge agreed that our arguments were plausible and the litigation could proceed.
- In October, we pushed ahead with our suit, arguing that the court should open the Council’s work to the public by ruling in favor of WORC.
Beyond the Court
We’re not just in court – we’re in the federal agencies. Representing immigrant legal service providers seeking to improve the asylum process at the border
- The Departments of Homeland Security and Justice have proposed a regulation to revamp the processing of asylum seekers through expedited removal. Expedited removal removes migrants from the U.S. summarily, unless they show that they have a credible fear of return, making them potentially eligible for asylum.
- The credible fear interview is the primary chance that asylum seekers in expedited removal have to provide facts showing that they may be eligible for asylum.
- However, the credible fear screening process and the limited opportunities to review its results are administered in fundamentally unfair ways. For example, asylum applicants frequently cannot consult with counsel, have to proceed over a poor telephone connection, are speaking through an interpreter in a language they do not speak fluently, and are rushed by the interviewer to answer quickly and often incompletely. These factors are particularly unfair because to be successful asylum applicants must completely and accurately describe the violent events that caused them to flee their homes.
What Are We Doing?
- On behalf of RAICES and along with the Florence Immigrant & Refugee Rights Project, Las Americas Immigrant Advocacy Center, and Proyecto Dilley, Democracy Forward submitted a comment recommending important changes DHS and DOJ should make to the credible fear screening process as part of the proposed rulemaking.
- The comment recommends a number of ways to improve the credible fear interview process, including increasing access to counsel prior to the interview and the review hearing, conducting interviews in person, ensuring a trauma-informed approach to evaluating asylum applicants, and ensuring application of the low screening standard required by Congress, among other improvements. Learn more here.
To learn more about our regulatory work on behalf of clients, click here.
In Case You Missed it
- Read our latest brief on behalf of the American Academy of Pediatrics and state doctors to support universal mask policies in schools, bringing our total number of briefs in these public health cases to 12.
- Read our comment to the Federal Housing Finance Agency supporting its proposed rule creating a minority census tract housing subgoal for 2022-2024.
- Read this piece in the Inquest by our litigators, Jessica Morton & Samara Spence, for more on our work to urge the DOJ to rescind the legally flawed Trump-era memo concluding those on home confinement must return to prison after the pandemic ends. We co-authored the letter with FAMM, the Justice Action Network, the Leadership Conference on Civil and Human Rights, the National Association of Criminal Defense Lawyers, and the Tzedek Association.
For more about our work check out the news.
- Read our most recent blog on how we’ve worked with a range of organizations to educate OMB on enhancing equity in government.
- Listen to the Reality Check radio show where Democracy Forward President and CEO Skye Perryman spoke with Charles Ellison about our work fighting against abuses of power that get in the way of social progress. You can read more about Skye’s first four months at Democracy Forward here.
- Check out this article in the Tennessean detailing a Williamson County, TN case where a judge relied on a brief we filed on behalf of the American Academy of Pediatricians to uphold universal mask policies in schools.