In an opinion today, Judge Furman granted a motion for sanctions against the Department of Justice for failing to review and produce hundreds of relevant documents in the litigation over when a citizenship question could be included in the 2020 Census (see our previous coverage here).  The case centered on whether the inclusion of the citizenship question was a proper exercise of executive authority. The withheld documents provided evidence that the question was included to assist in political redistricting efforts, and that the stated justification (that the question was added to help enforce the Voting Rights Act) was pretextual.

While Judge Furman agreed that the conduct was sanctionable, he noted that the most appropriate remedy – judgment in favor of the plaintiffs – had already occurred:
Continue Reading Judge Furman Sanctions DOJ in Census Citizenship Question Case

In an opinion today, Judge Furman certified for interlocutory appeal a question about calculating economic losses in the GM ignition switch litigation (covered here).  One reason for doing so, he ruled, was that in the context of an MDL, where there are powerful pressures to settle, these sorts of questions would never otherwise be the subject of a final judgment that would be heard in an ordinary appeal:
Continue Reading Judge Furman: Interlocutory Appeals More Appropriate In MDL Context, Where Cases Are More Commonly Settled, Precluding Ordinary Appellate Review

In an opinion Tuesday, Judge Furman ruled that the complaint in an “international saga” of fraud in the art world must be filed publicly and without redactions, even though it contained sensitive information about transactions facilitated by the international auction house Sotheby’s.

Plaintiffs hired an art dealer to assist in purchasing a world-class art collection, and the dealer allegedly defrauded them of approximately $1 billion by purchasing the artworks himself and re-selling them to plaintiffs at inflated prices.  Plaintiffs claim that Sotheyby’s aided and abetted the fraud.  Sotheby’s sought to keep certain portions of the complaint under seal, but Judge Furman held that confidentiality concerns were insufficient because the information at issue went to the very heart of the case:
Continue Reading Judge Furman: Sensitive Pricing Information Can’t Be Sealed Where It Goes to the “Heart of the Litigation”

The Supreme Court today, in an opinion by Chief Justice Roberts, largely affirmed Judge Furman’s conclusion (see here) that the Commerce Department’s decision to add a citizenship question to the 2020 census was based on a rationale —  to help enforce the Voting Rights Act — that was pretextual, and agreed that the matter must be remanded back to the agency to reconsider:
Continue Reading Supreme Court Agrees With Judge Furman that Census Citizenship Question Was Added Based on “Contrived” Rationale

In two opinions yesterday (here and here), Judges Furman and Carter concluded that Due Process requires timely, individual bond hearings, with the Government bearing the burden to show a risk of flight, for those awaiting removal hearings.

In the case before Judge Furman, the detainee has been held for 21 months with no hearing.  In a previous opinion (covered here), Judge Furman concluded that, given the “liberty interests” at stake, it was appropriate for the Government to bear the burden of proof.

While the Board of Immigration Appeals has a policy of putting the burden on the detainee, Judge Carter’s decision yesterday agreed with Judge Furman that the policy was inconsistent with Due Process:
Continue Reading Judges Furman and Carter Grant Habeas Petitions Requiring Individualized Bond Hearings for Detaining Awaiting Removal Hearings

In a 277-page decision today, Judge Furman vacated the Commerce Department’s decision to add a citizenship question to the 2020 census, finding that the decision was a violation of the Administrative Procedure Act.  (Our prior posts on the case are here.)

Judge Furman found that Commerce Secretary Wilbur Ross justified the new question based on a rationale – that doing so would enhance enforcement of the Voting Rights Act (VRA) – that was clearly a pretext.  Judge Furman stated he was unable to determine “what Secretary Ross’s real reasons for adding the citizenship question were,” but found the evidence overwhelming that “the VRA was a post hoc rationale for a decision that Secretary had already made”:
Continue Reading Judge Furman Strikes Citizenship Question from Census, Finds The Government’s Stated Rationale to Have Been a Pretext

On Friday, the Supreme Court, as expected, granted certiorari in the challenge pending before Judge Furman over the addition of a citizenship question to the census.  The question presented concerns whether it is appropriate to order discovery outside the administrative record (such as the deposition Judge Furman had earlier ordered of Commerce Secretary Wilbur