Public Citizen Litigation Group

Public Citizen Litigation Group is a public interest law firm in the United States known for its Supreme Court and appellate practice. The group is the litigating arm of the non-profit consumer advocacy organization Public Citizen. Its attorneys work on cases involving health and safety regulation, consumer rights, separation of powers, access to the courts, class actions, open government, and the First Amendment. Despite the group's small size, its staff attorneys have argued more than 56 cases before the U.S. Supreme Court, including landmark cases on separation of powers, commercial speech, and consumer rights, and have gone on to prominent positions in the legal academy and the federal government.^[1]

Its efforts are pursued through such programs as the Alan Morrison Supreme Court Assistance Project, the Consumer Justice Project, and the Freedom of Information Act Clinic. Directors and former directors of the Litigation Group include Alan Morrison, David Vladeck, Brian Wolfman, and Allison Zieve.

Alan Morrison Supreme Court Assistance Project (SCAP)

Named after Litigation Group founder, Alan Morrison, SCAP was founded to try to rectify what the Litigation Group perceived to be an imbalance in the practice before the Supreme Court. Typically, business clients are well represented before the Court, often by experienced Supreme Court practitioners, backed by all of the resources large corporations can offer. Often, on the other side are small firm practitioners with little or no Supreme Court experience. SCAP seeks to fix this imbalance by lending the Litigation Group’s experience and expertise in Supreme Court practice to the underdog, through assistance with writing briefs and conducting moot courts.^[2]

In a recent influential study, Professor Richard Lazarus of Georgetown's Supreme Court Institute describes an "elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century." In stark contrast with this specialization among the corporate bar, there is comparatively little in-house Supreme Court expertise among non-profit public interest groups, legal aid organizations, public defenders, or plaintiffs' firms. "The principal exception is Public Citizen’s Supreme Court practice," writes Lazarus, "which has long provided high-quality assistance in the preparation of briefs and presentation of oral argument to public interest advocates with cases before the Court."^[3]

Consumer Justice Project

Started in 2005 by former staff attorney Deepak Gupta, the Consumer Justice Project litigates individual and class action cases that offer a chance to establish important precedents on behalf of consumers. Working with other non-profit organizations and private consumer attorneys, the Project’s role includes representation of consumers on appeal, amicus support, briefing on important motions, and co-counseling from the inception of cases. The Project's cases have included issues such as abusive debt collection practices, foreclosures, predatory lending, constitutional due process rights in the consumer context, unfair class-action settlements, mandatory binding arbitration, preemption, the interpretation of federal consumer protection statutes, and class-action principles. Gupta left the project to help start the new Consumer Financial Protection Bureau under Elizabeth Warren.

Freedom of Information Act Clinic and FOIA Litigation

Through its FOIA clinic, Public Citizen Litigation Group provides technical and legal assistance to individuals, public interest groups, and the media who seek access to information held by government agencies under the Freedom of Information Act (FOIA).^[4] From its founding, the Litigation Group has devoted a significant portion of its efforts to fighting government secrecy. It has litigated more FOIA cases than any other organization.^[5] The Litigation Group has secured from government files information about health risks, safety issues, and financial problems, on behalf of other divisions within Public Citizen, other public interest organizations, reporters, and academics. Among material of significant public interest obtained through its efforts are approximately 2,000 pages of Lt. Col. Oliver North's notebooks (National Security Archive v. National Archives and Records Administration),^[6] the report relied on by the Attorney General to exclude Kurt Waldheim from the United States (Mapother v. Department of Justice),^[7] and all but one paragraph of the government’s secret brief filed before the Supreme Court in the “Pentagon Papers” case (Sims v. Department of Justice).^[8] Litigation Group lawyers have also litigated issues surrounding preservation of and access to electronic records. In the case Armstrong v. Executive Office of the President, Litigation Group lawyers succeeded in establishing that electronic records generated by the White House and the rest of the Executive Branch are subject to federal open records laws. At the end of both the Reagan administration and the first Bush administration, the government had claimed that it was entitled to delete all of the electronic records created and stored by the White House during each president’s tenure. As a result of the litigation, in which the court agreed that FOIA required that executive branch e-mail be preserved, the government released more than 3,000 e-mail records from the White House and the National Security Council.^[9]

Fighting Ineffective or Unlawful Agency Action

The Litigation Group brings many cases under the Administrative Procedure Act to challenge agency regulations or other actions that it deems arbitrary and capricious or unlawful. For example, in 2004, the Litigation Group along with Citizens for Reliable and Safe Highways (CRASH), and Parents Against Tired Truckers (PATT) successfully challenged the final rule governing the hours of service of commercial truck drivers, issued by the Federal Motor Carrier Safety Administration. The advocacy groups claimed that the rule expanded the hours that truckers may legally drive, failed to mandate the use of electronic onboard recording devices to put an end to the pervasive violations of legal limits, and would likely to lead to many avoidable deaths and injuries on the nation’s highways.^[10]

In 2002, when the National Highway Traffic Safety Administration issued a rule to implement a law that required a device in new vehicles to warn drivers when a tire was significantly underinflated, but the rule allowed use of devices that would not warn when two or more tires were underinflated, the Litigation Group successfully sued to force NHSTA to issue a rule that complied with this important safety measure (Public Citizen v. Mineta).^[11]

In 2001, after 9 years of delay, the Occupational Safety and Health Administration (OSHA) had not issued a rule to regulate use of the highly toxic chemical hexavalent chromium, the Litigation Group successfully brought suit to force OSHA to issue a rule (Public Citizen v. OSHA).^[12]

Internet Free Speech

Since 1999, under the direction of staff attorney Paul Levy, the Litigation Group has defended First Amendment rights online, protecting the rights of ordinary citizens against powerful forces that seek to curtail or suppress the exchange of ideas and criticism that the Internet allows. The project's focus is on representing individual citizens and consumers, although they have also written amicus briefs and assisted other lawyers with their briefs. Cases have involved the right to speak and read anonymously on internet message boards; the use of brand names in web site domain names, metatags and keyword advertising; the right to maintain interactive discussions; and file-sharing. Recently they have also defended the rights of small online merchants targeted by large corporations that claim selling less expensive second-hand or competing products infringes the company's intellectual property rights.^[13][14]

Supreme Court Practice

Since the Litigation Group was founded in 1972, its lawyers have argued 56 cases before the United States Supreme Court—including four cases during the Court’s 2005-2006 term and four in the 2007-2008 term.^[15] The Litigation Group’s cases include:^[16]

• Richlin Security Service Co. v. Chertoff (2008), in which the Court held that a prevailing party be awarded attorney fees for paralegal services at the market rate for such services.

• Riegel v. Medtronic (2008), in which the Court held that the express preemption provision of the Medical Device Amendments to the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360k(a), preempts state-law claims seeking damages for injuries caused by medical devices that received premarket approval from the Food and Drug Administration.

• Jones v. Flowers (2006), in which the Court ruled in favor of an Arkansas man whose house was sold by the state after mailed notice of the impending forfeiture was returned undelivered.

• Garcetti v. Ceballos (2006), in which the Court held that the speech of a governmental employee made pursuant to his position as a public employee, rather than as a private citizen, is not protected by the First Amendment.

• Cheney v. United States District Court (2004), in which the Court ruled that the D.C. Court of Appeals acted prematurely in refusing to block certain records of Vice-President Cheney's National Energy Policy Development Group based on Cheney's claims that such records were not subject to public disclosure under the Federal Advisory Committee Act.

• Medtronic, Inc. v. Lohr (1996), in which the Court rejected the medical device industry’s broad claims to immunity from product liability suits and held that the Food, Drug, and Cosmetic Act does not preempt such suits.

• Mistretta v. United States (1989), in which the Court held that federal sentencing guidelines do not violate principles of separation of powers.

• Bowsher v. Synar (1986), in which the Court struck down the Gramm-Rudman-Hollings Act as an unconstitutional usurpation of executive power by Congress.

• Bernal v. Fainter (1984), in which the Court ruled that the Equal Protection Clause prohibited the state of Texas from barring noncitizens from applying for commission as a notary public.

• INS v. Chadha (1983), in which the Court held that a legislative veto violates the constitutional principle of separation of powers.

• Regan v. Taxation with Representation of Washington (1983), in which the Court rejected claims that the denial of tax-exempt status for a charitable organization based on its lobbying activity was unconstitutional.

• Duke Power Co. v. Carolina Environmental Study Group (1978), in which the Court overturned the Fourth Circuit's ruling that the Price Anderson Act violated equal protection by treating victims of nuclear accidents differently than the victims of other industrial accidents.

• Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), in which the Court held that the First Amendment applies to commercial speech.

• Goldfarb v. Virginia State Bar (1976), in which the Court held that minimum fee schedules promulgated by bar associations were unlawful under federal anti-trust laws.

References

1. "Cases Argued by Public Citizen Litigation Group Attorneys in the Supreme Court of the United States". Public Citizen. May 1, 2006. Retrieved 2009-12-16.
2. "The Alan Morrison Supreme Court Assistance Project". Public Citizen. Retrieved 2008-03-08.
3. Richard Lazarus, Advocacy Matters Before and Within the Supreme Court, The Georgetown Law Journal (2008), http://www.law.georgetown.edu/faculty/lazarus/docs/articles/Lazarus_Advocacy_Matters_Before.pdf
4. "Freedom of Information Clearinghouse". Public Citizen. Retrieved 2008-03-08.
5. "Data Expert Prevails in Lawsuit Against IRS Secrecy". Trac IRS. April 4, 2006. Retrieved 2008-03-08.
6. "Archive, historians ask judge to rethink dismissal, Presidential Records Act case still not solved; New Bush order adds 140 days to processing time; Judge recognized injury but thought it moot". National Security Archive. April 30, 2004. Retrieved 2008-03-08.
7. "OBTAINING ACCESS TO GOVERNMENT RECORDS SINCE 1972: Highlights of Advocacy Efforts Against Government Secrecy". Public Citizen. Retrieved 2008-03-08.
8. "Let the Information Flow". Nader.org. Retrieved 2008-03-08.
9. "Preservation of Email Required under Federal Records Act". K&L Gates. December 14, 2004. Retrieved 2008-03-08.
10. "CRASH and P.A.T.T. win Court Ruling -- new hours-of-service BLOCKED -- but remain in place until new FMCSA ruling". Truck Safety Coalition, www.trucksafety.org. July 16, 2004. Archived from the original on 2007-12-25. Retrieved 2008-03-08.
11. "NHTSA Finally Issues Long-Delayed Tire Pressure Rule". OMB Watch. September 21, 2004. Archived from the original on 2007-09-28. Retrieved 2008-03-08.
12. David Michaels; Celeste Monforton & Peter Lurie (February 2006). "Selected science: an industry campaign to undermine an OSHA hexavalent chromium standard". Environmental Health. BioMed Central. Retrieved 2008-03-08.
13. "Vivendi allows World of Warcraft guide sales to resume". USA Today. June 11, 2006. Retrieved 2008-03-08.
14. "Internet Free Speech". Public Citizen. Retrieved 2008-03-08.
15. "Litigation Group 2005-2006 Supreme Court Oral". Public Citizen. Retrieved 2008-03-08.
16. "Cases Argued by Public Citizen Litigation Group Attorneys in the Supreme Court of the United States". Public Citizen. May 1, 2006. Retrieved 2009-12-16.

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Public Citizen Litigation Group Website