DAVID R COHEN

In 1986, Congress enacted the Immigration Reform and Control Act ("IRCA").  Among other things IRCA: (1) required employers to attest to their employees’ immigration status; (2) made it illegal to knowingly hire or recruit illegal immigrants; and (3) granted amnesty to certain illegal immigrants.  Regarding the amnesty provisions, IRCA allowed immigrants who had been "continuously physically present" in the United States since November 6, 1986 to apply for an "adjustment of status" to legal resident.  IRCA added that an alien "shall not be considered to have failed to maintain continuous physical presence in the United States ... by virtue of brief, casual and innocent absences." 8 U.S.C. §1255a(3)(B).    The Immigration and Naturalization Service ("INS") subsequently adopted a regulation defining "brief, casual and innocent absences" to mean a departure of 30 days or less, authorized by the INS beforehand through use of an "advance parole" procedure. Unsurprisingly, most illegal aliens who had briefly left and then re-entered the country had not sought INS permission before doing so. In a class action known as Catholic Social Services, Inc. v. Meese, Judge Lawrence Karlton concluded the INS regulation was invalid.    In 2004, the parties entered into a class action settlement, with the class defined as "All persons who were otherwise prima facie eligible for legalization ... and whose applications were rejected for filing because an INS officer ... concluded that they had traveled outside the United States after November 6, 1986 without advance parole."  The settlement agreement set out a process for determining whether an individual was a member of the plaintiff class; if a class application was denied, INS was required to inform the applicant of the right to appeal to a Special Master.  The settlement also provided for payment of $3.5 million to plaintiffs for attorneys fees.    Although the Class Action Settlement Agreement appeared to end the litigation, in 2009 the plaintiffs moved to enforce the Agreement, asserting INS had failed to (among other things) notify applicants of their right to appeal an adverse class membership decision to the Special Master.  Negotiations with the Court led to a remedial settlement plan and an award of an additional $145,000 in attorney fees.  The remedial plan included INS notification to all denied applicants of their right to appeal to the Special Master.  Your reporter could not determine whether those denied applicants were still in the United States.

-  Datto v. Harrison, 2011 WL 5865962 (E.D. Pa. Nov. 22, 2011) (in a challenge to a settlement agreement in a case brought by a dismissed doctoral student against a university, where the Special Master oversaw discovery and settlement, holding the plaintiff’s depression did not diminish his capacity to understand the binding nature of the settlement contract).

-  In re Holocaust Victim Assets Litig., 2011 WL 5865962 (E.D. Pa. Nov. 22, 2011) (in a case brought by the son of a holocaust victim claiming his father’s life insurance policy was looted, adopting the Special Master’s report concluding a prior valuation of the son’s claim was correct).

- Catholic Soc. Servs., Inc. v. Napolitano, 2011 WL 5556585 (E.D. Cal. Nov. 15. 2011) (awarding the plaintiffs attorneys fees and costs in a class action addressing the Immigration and Naturalization Service’s improper decision to turn away certain applicants for legalization, where the Special Master reviewed applications of individuals who were denied class membership).

- Southersby Dev. Corp. v. Borough of Jefferson Hills, 2011 WL 5509433 (W.D. Pa. Nov. 10, 2011) (in a dispute between a real estate developer and a city, where the city required the developer to upgrade the city sewer system and then later demanded a $1500 fee per lot from the developer to tap into the upgraded sewer system, adopting the Special Master’s report recommending that the city’s claim that certain e-mails were privileged is “a proposition too extravagant to be maintained.”)

- Glover v. Udren, 2011 WL 5445232 (W.D. Pa. Nov. 9, 2011) (in a case brought by a homeowner claiming her mortgage lender did not properly service the loan, upholding the magistrate’s appointment of a Special Master to oversee discovery, after the parties inundated the magistrate’s chambers with discovery motions).

- Clifford v. United States, 2011 WL 5508980 (Fed. Ct. Cl. Nov. 8, 2011) (in a case alleging the United States attempted genocide by administering the polio vaccine to her and intended to torture her when the Social Security Administration intentionally denied her entitlements, referring the vaccine-related injury claims to the Office of Special Masters formed pursuant to the Vaccine Act).

- United States v. AT & T Inc., 2011 WL 5347178 (D.D.C. Nov. 6, 2011) (in an antitrust case involving the merger of A&T and T-Mobile, issuing the Special Master’s report recommending the court require Sprint to produce a huge volume of documents, even though Sprint is a non-party to the action and the request is burdensome, because the requested documents are critical to determining the effect of the merger on the rights of consumers to a competitive market).

- Sharp v. Town of Greece, 2011 WL 5330318 (W.D.N.Y. Nov. 4, 2011) (in a case alleging conspiracy and  cover-up after an off-duty police officer crashed into the plaintiff’s car while under the influence, appointing a Special Master to conduct in camera review of documents related to the police officer’s employment).

- Wells Fargo & Co. v. United States, 2011 WL 5417100 (D. Minn. Nov. 2, 2011) (in a tax case where the IRS challenged the legality of the foreign tax credits generated by an elaborate cross-border transaction, issuing the Special Master’s report recommending the taxpayor's motion for summary judgment be denied).

- Fiorentino v. Cabot Oil & Gas Corp., 2011 WL 5239068 (M.D. Pa. Nov. 1, 2011) (in a case brought by over 60 property owners alleging a hydraulic fracturing (“fracking”) operation contaminated their land and water, issuing the Special Master’s report recommending that plaintiffs seeking medical monitoring provide the defendant with all requested medical authorizations).

- United States v. Ionia Mgmt. S.A., 2011 WL 5304117 (D. Conn. Nov. 1, 2011) (in a criminal case against a shipping company convicted of violating the Act to Prevent Pollution from Ships, where the Special Master was appointed to oversee compliance with the terms of the company’s probation, issuing the Special Master’s report recommending no further penalties be imposed on the company because it made substantial progress in changing the culture of its personnel and in its environmental compliance).

David R. Cohen is a Contributor to and Co-Editor of "Appointing Special Masters and Other Judicial Adjuncts: A Handbook for Judges (Academy of Court Appointed Masters 2011)."   You can download a free copy of this Bench Book by clicking here.    This Bench Book is a terrific resource for Judges and Attorneys.  Special Masters can make your life easier by expediting resolution of multi-party discovery and privilege disputes, recommending rulings on motions of all sorts, facilitating settlement, and helping the parties and the Court address complex issues.  My job is to help Judges and parties manage, streamline, and settle their cases - better, faster, and cheaper.

David R. Cohen, Federal Special Master (Click here for Judicial References)