In an opinion today, Judge Furman ruled that, under the Due Process Clause, it is the Government that must bear the burden, in immigration proceedings, to justify the continued detention of people subject to deportation.

He found that, in weighing the Government’s interests of ensuring an appearance by the person subject to deportation against that person’s liberty interests, “the greater risk of error” should fall to the Government, and that “[s]everal other considerations” reinforced the point:
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This week, Judge Furman ordered U.S. Secretary of Commerce Wilbur Ross Jr. to sit for a deposition in a case challenging the constitutionality of adding a question about citizenship status to the 2020 U.S. census questionnaire.  The question had not appeared on the census questionnaire since 1950; according to the complaint, the question was purposefully added to decrease the response rate among immigrant communities, leading to fewer public services and less Congressional representation in those areas.

Judge Furman had previously found that the plaintiffs had “made a strong preliminary or prima facie showing that they will find material beyond the Administrative Record indicative of bad faith” and allowed discovery into the decision to add the citizenship question back to the census.  Judge Furman found that the deposition of Secretary Ross himself was required because of Secretary Ross’s high degree of personal involvement in the decision and the extent to which his credibility and intent was thus at issue
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In an opinion yesterday, Judge Furman weighed in on  — and certified for interlocutory appeal — an issue that has divided judges in the Southern District:  whether the requirement that FLSA settlements be approved by the DOL or the Court can be avoided by a settlement accomplished via a Rule 68 offer of judgment.  Because Rule 68 is phrased in mandatory terms (when an offer is accepted, the “clerk must then enter judgment”), some courts have held that there is no room for judicial or DOL approval.

Judge Furman disagreed:
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In a 102-page ruling Friday, Judge Furman granted in part, and denied in part, a motion to dismiss certain of the claims being pursued in the GM ignition switch MDL.

Perhaps most significantly, Judge Furman rejected the plaintiffs’ claims that were based on the theory that all GM customers – including those who bought GM cars without any defect — were injured because they “thought they were buying cars made by “a ‘brand that had a reputation for producing safe and reliable cars,’” but were really buying cars from a cost-cutting company whose misconduct “result[ed] in lower resale values across the board” for the plaintiffs.

Judge Furman noted that the theory was concededly unprecedented, and emphasized that a major new legal claim should be created by the legislature, not the courts:
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