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Intervention in Title IX proceedings and unlawful disclosures under the Privacy Act

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the necessary burden that must be met to intervene in litigation on the side of the government, and the showing required to establish traceability for Article III standing, under the Privacy Act, when government officials make improper disclosures to third parties.

Under Rule 24(a)(2) of the Federal Rules of Civil Procedure, a person or group seeking to intervene in a lawsuit must establish that none of the existing parties “adequately represent” its interests. The U.S. Court of Appeals for the 1st Circuit and several other circuits have developed a two-tier system for reviewing such motions. Under this system, intervention on the side of a private party requires showing only that the existing parties will inadequately represent the intervenor’s position; however, when intervening on the side of the government, a presumption that the government will adequately represent the intervenor’s position must be overcome. Some circuits apply similar, yet weaker, versions of this presumption, and some circuits have rejected it altogether.

In Foundation for Individual Rights in Education v. Victim Rights Law Center, three advocacy groups devoted to promoting free speech and due process on college campuses sought intervention on the side of the government – in a case that the advocacy groups believe presents historically significant changes to administrative proceedings under Title IX. The rule at issue, which took effect on Aug. 14, 2020, departed from the Department of Education’s prior definition of the term “sexual harassment” and set out new procedural protections for those accused of sexual misconduct. The changes sparked court challenges almost immediately.

The advocacy groups seek to intervene as defendants with a direct interest in defending the final rule. The groups consistently advocate for narrowly defining “sexual harassment” to safeguard free expression and due process rights on college campuses, with a specific interest in securing the greatest possible protection for those rights. That interest, they argue, sets them apart from the Department of Education, which must balance multiple interests. The groups argue that many of the rule’s protections for college students are constitutionally required. The department, in contrast, maintains that the definition of “sexual harassment” and new procedural protections are consistent with the Constitution but not required by it. Thus, the advocacy groups seek to intervene to ensure that their constitutional defenses and interests are represented. They ask the justices for their review to establish exactly what showing of inadequacy a proposed intervenor must make to intervene on the same side as a government litigant.

The FBI manages the National Instant Criminal Background Check System to facilitate background checks for firearm purchases. In response to a background check request, the FBI may not disclose details of a buyer’s record; rather, it may only issue dealers one of three directives: “proceed,” “denied” or “delayed.” In Turaani v. Wray, a man argues that federal officials made improper disclosures to a seller in violation of the Privacy Act – which prohibits unlawful disclosures by government officials to those with no need to know.

In 2017, Khalid Turaani attempted to purchase a firearm. But before Turaani could complete the purchase, an FBI agent called the business and informed the seller that Turaani was the subject of a federal investigation, which resulted in the seller’s denial of Turaani’s purchase. Turaani sued in district court, alleging infringement of his Second Amendment rights. The court dismissed the claims but noted that the FBI agent had violated the Privacy Act (28 C.F.R. 25.8(g)(2)). Later, in 2018, Turaani again attempted to buy a firearm. This time, an FBI agent approached the seller and informed him that “we don’t like the company he keeps,” in reference to Turaani. Again, Turaani was blocked from purchasing a firearm and he brought a new lawsuit for violation of the Privacy Act.

However, the district court held and the U.S. Court of Appeals for the 6th Circuit affirmed that Turaani did not meet the standard “traceability” requirements to establish Article III standing because his injury was not caused by the FBI, but rather by the independent actions of a third party – the firearm seller. Turaani argues that this ruling effectively grants the government a “free pass” to disseminate confidential information to third parties without any consequences, despite protections established by Congress in the Privacy Act. He asks for the court’s review to enforce the Privacy Act’s protection against improper disclosures and declare that a foreseeable action of third parties in response to an improper government disclosure is enough to establish traceability for standing purposes.

These and other petitions of the week are below:

Central Payment Co., LLC v. Custom Hair Designs by Sandy, LLC
Issue: Whether a class may be certified under Rule 23 of the Federal Rules of Civil Procedure when the class claims turn on materially different contractual rights and obligations between the defendant and each class member.

Turaani v. Wray
Issue: Whether the standing analysis for Privacy Act improper disclosure claims requires determining if the plaintiff sufficiently alleged an “adverse effect” to satisfy traceability, as recognized by previous decisions of the Supreme Court, as opposed to requiring allegations of a “command” or “compulsion,” and if so, whether a plaintiff can demonstrate that adverse effect by alleging that the government’s improper disclosures produced a determinative or coercive effect on a third party who refuses to do business with the plaintiff.

Outdoor Amusement Business Association, Inc. v. Department of Homeland Security
Issue: Whether Congress, consistent with the nondelegation doctrine and clear-statement rule, impliedly authorized the Secretary of Labor individually to promulgate legislative rules for the admission of H-2B workers and adjudicate H-2B labor certifications.

Foundation for Individual Rights in Education v. Victim Rights Law Center
Issue: Whether a movant who seeks to intervene as of right, under FRCP 24(a)(2), on the same side as a governmental litigant must overcome a presumption of adequate representation.

Axon Enterprise, Inc. v. Federal Trade Commission
Issues: (1) Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to “affirm, enforce, modify, or set aside” the Commission’s cease-and desist orders; and (2) whether, on the merits, the structure of the Federal Trade Commission, including the dual-layer for-cause removal protections afforded its administrative law judges, is consistent with the Constitution.

Recommended Citation: Mitchell Jagodinski, Intervention in Title IX proceedings and unlawful disclosures under the Privacy Act, SCOTUSblog (Jul. 30, 2021, 6:47 PM),