Updates from the Appellate Advocacy Project

June 28, 2023

Decisions in appellate cases have the power to affect major areas of people’s lives, from employment to housing to safety. Given the potential impact, the PJC’s Appellate Advocacy Project stays alert for cases concerning racial equity and economic justice. This spring, 2022-2023 Murnaghan Fellow Hayley Hahn authored amicus briefs in cases on bias in the asylum application process, the practice of hiding predatory fees in mortgage contracts, and employment discrimination based on sexual orientation.

Rooting out bias in the asylum application process

On March 30, the PJC, the Refugee and Immigrant Center for Education and Legal Services (RAICES), Black Alliance for Just Immigration, Capital Area Immigrants’ Rights Coalition, and Dolores Street Community Services filed an amicus brief in Tegwi v. Garland, an asylum appeal pending before the U.S. Court of Appeals for the Fifth Circuit. It adapts a brief authored by 2019-2020 Murnaghan Fellow Dena Robinson in B.C. v. Barr. In support of the asylum seeker, the brief in Tegwi v. Garland describes the highly subjective nature of immigration judges determining an applicant’s credibility during the asylum process, including the reliance on vague terms like “demeanor,” “credibility,” and “candor.” Our brief details how demeanor is an unreliable gauge for assessing one’s credibility because it relies on Eurocentric and white standards about how one should speak and act when in court. For example, in Western cultures, maintaining eye contact is associated with honesty. Yet maintaining eye contact, especially with an authority figure, can be considered rude or threatening in Eastern cultures. The brief also describes research on how trauma changes the way the brain stores information and thus how asylum seekers may verbally retell a traumatic experience, which can make their narrative sound less credible to an immigration judge. The brief also underscores the role that implicit biases—including those related to an asylum seeker’s accent, race, gender, culture, and native language—can play in how judges make decisions in asylum proceedings.

Many thanks to our excellent co-counsel, Maria Osornio at RAICES, for her collaboration on this brief.

Combatting the practice of hiding predatory fees in mortgage contracts

On April 19, the PJC and the Housing Initiative Partnership, Inc. filed an amicus brief in Clair v. Federal National Mortgage Association, which is pending before the Maryland Appellate Court. The appeal challenges the imposition of junk fees by loan servicers, including servicers that the defendant, Fannie Mae, used to collect mortgage payments. Junk fees are hidden, unnecessary fees that loan servicers and processors charge consumers, including people who are applying for home loans. When people sign a contract for a mortgage or other services, it is often not clear what are legitimate charges and what are junk fees, costing them hundreds, and sometimes, thousands, of dollars. The fees are often hidden by inclusion in the amount financed, adding to the financial harm because borrowers pay interest on the junk fees for the life of the loan. Our brief highlights the disproportionate harms junk fees cause to people of color and low-income people of all races. Junk fees are one of the latest ways that the housing market has extracted wealth from communities, especially communities of color. Homeowners of all races who cannot afford to pay usurious fees face loss of their homes and eviction, which has ripple effects on families’ physical and mental health. Given the harm, the brief argues that the law must provide recourse for people to challenge these predatory fees in court. The brief shows that this is consistent with the approach of the federal government, state of Maryland, and other states to reduce or eliminate junk fees. Unless victims can hold marketplace giants like Fannie Mae accountable for junk fees charged by their mortgage servicers, such behavior will remain difficult to detect, punish, or deter, encouraging rampant consumer exploitation.

Many thanks to PJC paralegal Lea Aldana Dwyer and administrative coordinator Becky Reynolds for excellent assistance producing and mailing the brief.

Challenging employment discrimination based on sexual orientation

On May 5, the PJC and co-counsel John Grimm and Courtney Miller of HWG LLP, filed a brief with the Maryland Supreme Court on behalf of Maryland and national civil rights organizations in support of Petitioner John Doe in Doe v. Catholic Relief Services. This dispute centers on whether Catholic Relief Services’ (CRS) refusal to provide Mr. Doe, a married gay man who CRS employed as a data analyst, with health benefits for his spouse violated Maryland employment law. The brief begins by showing that the Maryland General Assembly has consistently prohibited various forms of discrimination against LGBTQ+ people. It then argues that the Maryland Fair Employment Practices Act (MFEPA)’s and the Maryland Equal Pay for Equal Work Act’s prohibitions on sex discrimination include sexual-orientation discrimination. This is bolstered by the U.S. Supreme Court’s decision in Bostock v. Clayton County, Georgia, which other states are also applying to their interpretation of their state anti-discrimination laws.

The following organizations signed onto the brief: the ACLU of Maryland, FreeState Justice, GLBTQ Legal Advocates and Defenders (GLAD), Lambda Legal Defense and Education Fund, Inc., Metropolitan Washington Employment Lawyers Association, National Center for Lesbian Rights, and National Employment Law Project. The Maryland amici also separately endorsed an amicus brief filed by the Maryland Attorney General that argues that MFEPA’s exemption for religious employers must be narrowly construed to apply only to ministerial employees if it is to remain constitutional under the Maryland Declaration of Rights. 2016-2017 Murnaghan Fellow Anthony May of Brown, Goldstein & Levy LLP served as counsel for Mr. Doe and argued Mr. Doe’s appeal before the Maryland Supreme Court on June 2.

Many thanks to our excellent co-counsel, John Grimm and Courtney Miller, for collaborating on the brief and leading the production and filing efforts.