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Last week, Proskauer prevailed at the U.S. Supreme Court on behalf of our client, Stuart Harrow, in an appeal that determined that the statutory deadlines for appealing administrative decisions are not automatically jurisdictional and do not prevent claims challenging a furlough from being heard in the Federal Circuit. Following a furlough in 2013, Department of Defense employee Stuart Harrow appealed to the Merits Systems Protection Board (MSPB), an independent agency established to adjudicate federal employment disputes, for a hardship exemption. He argued that he was prevented from finding other work due to a discontinuous six-day furlough and, as a result, should receive lost pay. After waiting several years for a decision, during which time the MSPB lost its quorum and temporarily stopped deciding cases, Mr. Harrow’s claim was eventually denied. Even then, it took some time for Mr. Harrow to learn of this decision, as it was sent to a DOD email address that had been deactivated.

The Thirteenth Amendment to the United States Constitution, adopted in 1865 at the conclusion of the Civil War, abolished slavery across the United States with one notable exception. According to the amendment, “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction” (emphasis added). In other words, slavery and involuntary servitude remain constitutionally acceptable forms of punishment for individuals who are convicted of crimes. This loophole has a disturbing history of being used to target Black Americans in the aftermath of the Civil War, with local authorities imprisoning thousands of formerly enslaved people on faulty charges and exploiting their labor. In upholding the legality of forced prison labor, the Virginia Supreme Court even went so far as to describe a prisoner who challenged the practice as a “slave of the State.” Ruffin v. Commonwealth (1871).

Proskauer and co-counsel Center for Reproductive Rights (“the Center”) submitted an amicus brief to the Supreme Court in United States v. Rahimi. The brief, filed on behalf of the Center in support of the United States, urged the Supreme Court to reverse the Fifth Circuit Court of Appeal’s decision finding 18 U.S.C. § 922(g)(8), a federal law prohibiting people subject to domestic violence restraining orders from possessing firearms, unconstitutional. Oral argument took place on November 7, 2023.

On December 7, 2023, a team of Proskauer attorneys joined the American Civil Liberties Union (“ACLU”), the ACLU of Delaware, and attorneys from Shaw Keller LLP in filing a complaint against the state of Delaware on behalf of the Prisoners Legal Advocacy Network (“PLAN”) to protect the Constitutional right to vote for incarcerated individuals.

Proskauer teams recently submitted amicus briefs in two critical voting rights cases, which are becoming increasingly important in the runup to the 2024 U.S. elections. On August 18, 2023, Proskauer submitted an amicus brief to the United States Supreme Court on behalf of 30 historians and legal scholars specializing in the history of the Southern U.S. with a focus on South Carolina, race relations and election laws. The brief was submitted in support of appellees in Alexander v. The South Carolina State Conference of the NAACP. Then, on September 25, 2023, Proskauer filed— on behalf of the American Civil Liberties Union, the ACLU Foundation of Florida, the Brennan Center for Justice, and the NAACP Legal Defense and Educational Fund— an amicus brief in the Third District Court of Appeal of Florida in support of the appellee in the case of State of Florida v. Miller.

On October 23, 2023, Proskauer attorneys submitted an amicus brief in connection with the U.S. Supreme Court case of Moore v. United States[1] on behalf of the American College of Tax Counsel—a nonprofit professional association of tax lawyers in private practice, law school teaching positions and government that is widely recognized for its excellence in, and substantive contributions to, the tax profession. Moore is widely viewed as a significant case, as it represents the first time in decades in which the Supreme Court will consider the constitutionality of a federal income tax statute. Furthermore, the Court’s decision has the potential to upend years of well-settled tax law and planning principles, introduce unprecedented uncertainty into the Code and spawn voluminous litigation.     

On April 4, 2023, Proskauer submitted an amicus brief in the California Supreme Court in In re NR, a case in which a child was removed from his father’s custody based on a finding of “substance abuse.” The lower court found that the father had a “substance abuse” problem — based solely on its subjective judgments about substance use, rather than applying any objective, evidence-based standard — and separated the father and child on that basis. This case highlights the danger of allowing courts to diagnose parents with “substance abuse” problems based on their own subjective and standardless opinions. Unfounded assumptions, judgments, and stigma against substance use and substance use disorders can cause significant harm, particularly when they are used as a basis to deprive parents of their fundamental rights and separate families.

Proskauer recently submitted an amicus brief on behalf of The Buckeye Institute, an independent research and educational institution, in connection with the U.S. Supreme Court case of In Re Grand Jury. On appeal from the U.S. Court of Appeals for the Ninth Circuit, this case represents the first time the Court has examined the scope of the attorney-client privilege since it decided United States v. Upjohn in 1981.