Executive Order Restricts Agency Enforcement Actions. Court Will Address Scope of Bivens Suits. Court May Clarify Injury Requirements of ERISA Actions and more...

• Author: Steven J. Mintz
• Pages: 9-9

AMERICA N BAR ASSOCIATION WINTER 202 0 • VOL. 45 NO. 2 | 9

KEEPING WATCH EMERGING DEVELOPMENTS FOR LITIGATORS

++Executive Order Restricts Agency Enforcement Actions

++Court Will Address Scope of Bivens Suits

++Court May Clarify Injury Requirements of ERISA Actions

EXECUTIVE BRANCH

Agency Enforcement and

Adjudication

President Trump issue d an executive

order, “Promoting th e Rule of Law

Through Transparency and Fairness

in Civil Administrative Enforcement

and Adjudicati on,” which requires , in

part, that “[w]hen an agen cy takes an

administrative enforcement action,

engages in adj udication, or oth er-

wise makes a determi nation that has

legal conseq uences for a person , it

must establi sh a violation of law by

applying statutes or regulations,”

not agency guidance documents.

Executive agenci es “may apply only

standards of conduct that have been

publicly stated i n a manner that

would not cause u nfair surprise.” Th e

order also requ ires that agencies ,

before taking certain enforcement

actions, an d subject to limited excep -

tions, “must a fford . . . an opport unity

to be heard, in per son or in writing,

regarding the ag ency’s proposed

legal and fac tual determinations. The

agency must re spond in writing and

articulate the ba sis for its action.”

CONGRES S

Antitrust

The Senate passe d the bipartisan

Criminal Antitrust Anti-Retaliation

Act, which would in crease protec-

tions for whistle blowers who report

criminal antitrust violations. The

act provides that e mployees who

experience reta liation for providing

information to supervisors or federal

prosecutors relate d to violation s of

sections 1 or 3 of the S herman Act,

15 U.S.C . §§ 1, 3, may file a grievance

with the Depart ment of Labor that, if

successful, would require reinstate-

ment with back pay, interest , and spe-

cial damages . If the department does

not act on the com plaint, the em-

ployee can file a civil s uit that, if suc-

cessful, coul d require the employer to

pay attorney fees . The Senate passed

similar bills in 20 13, 2015, and 20 17,

but the House did n ot take them up.

U.S. SUP REME COURT/

JUDICIARY

Bivens Actions

In Bivens v. Six Unknown Fede ral

Narcotics Agents, 403 U.S. 38 8 (1971),

the Court reco gnized an implied dam-

ages remedy un der the Constitution

itself to compen sate persons injure d

by federal ocer s who violated the

Fourth Amendment prohibition

against unreasonable search and sei-

zure. The Cour t granted certiorari to

decide, as sta ted by the petition,

“[w]hether, when plaintis plausibly

allege that a rogu e federal law en-

forcement ocer violated clearly

established Fourth and Fifth

Amendment rights for which there is

no alternative lega l remedy, the fed-

eral courts can and should recognize

a damages clai m under Bivens[ .]”

Hernandez v. Mesa, N o. 17-1678.

Criminal Law/Habeas

Corpus

The Court gra nted certiorari to decide,

as stated by the Cour t itself,

“[w]hether and under what circum-

stances a timely R ule 59(e) motion

should be recha racterized as a second

or successive habe as petition under

Gonzalez v. Crosby, 545 U. S. 524

(2005).” Banister v. Davis, No. 1 8-6943.

ERISA

The Court gra nted certiorari to resolve

circuit splits on t wo questions: “May

an ERISA plan participant or benefi-

ciary seek in junctive relief against

fiduciary misconduct under 29 U.S.C.

§ 1132(a)(3) without demonstrating

individual fin ancial loss or the immi-

nent risk thereo f?” and “May an ERISA

plan participant or beneficiary seek

restoration of plan l osses caused by

AND MORE . . . BY ST EVEN J. MINTZ , LITIGATION NEWS ASSOCIATE EDITOR

fiduciary br each under 29 U.S.C .

§ 1132(a)(2) without demonst rating in-

dividual finan cial loss or the imminent

risk thereof? ” The Court also asked

the parties to ad dress whether the

petitioners have demonstrated Article

III standin g. Thole v. U.S. Bank, N .A.,

No. 17-1712.

Immigration

The Court granted c ertiorari to resolve

circuit splits on t wo related issues of

appellate proce dure: (1) whether a

federal cour t of appeals has jurisdic-

tion to review the denial of a “c riminal

alien[’s]” (see 8 U.S.C . § 1252(a)(2)(C))

request for eq uitable tolling of the

time to file a statutory m otion to re-

open under 8 U. S.C. § 1229a(c)(7),

Guerrero-Lasprilla v. Barr, No. 18-776

(consolidated with Ovalles v. Barr,

No. 18-101 5), and (2) whether “the

courts of app eals possess jurisdiction

to review factual fin dings underlying

denials of withho lding (and deferral)

of removal relief ” notwithstanding the

so-calle d “criminal bar” of 8 U.S.C .

§ 1252(a)(2)(C), which provides in par t

that “no court sh all have jurisdiction

to review any final order of re moval

against an alie n who is removable by

reason of having com mitted [a listed]

criminal oense.” Nasrallah v. Barr, No.

18-1432.

Arbitration

The Court gra nted certiorari to resolve

a circuit split on whet her, as stated

by the petition, “ the Convention on

the Recognition a nd Enforcement of

Foreign Arbitral Award s permits a

non-signatory to an arbitration agree-

ment to compel arb itration based on

the doctrine of e quitable estoppel.”

GE Energy Power C onversion France

SAS v. Outokumpu Sta inless USA LLC,

No. 18-1048.

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