Pro Bono Innovators 2024 Honoree Arnold & Porter

In our 2024 Pro Bono Innovators, Bloomberg Law honors Arnold & Porter for its success obtaining compensation from the US government for migrant families separated by the Department of Homeland Security at the southern border. The firm is also honored for securing a 2023 US Supreme Court victory in Health and Hospital Corporation of Marion County v. Talevski, upholding the right of 87 million Medicaid recipients to seek redress when denied proper care, among other matters.

Your firm’s key matters include obtaining compensation for migrant families separated at the border by the US government through the Federal Tort Claims Act. You also secured a US Supreme Court victory on the right of recipients of federal benefit programs to seek redress when denied care. How did your firm strategize on how to approach these matters?

C.M., et al. v. United States: Upon reading press reports of the family separations taking place at the southwestern border, an Arnold & Porter associate conducted legal research and, after discussing it with a firm partner, concluded that the families had cognizable damages claims for intentional infliction of emotional distress, under the Federal Tort Claims Act. Attorneys at the firm reached out to organizations that focused on civil rights and immigrant rights and set up a co-counsel team.

The Arnold & Porter team conducted extensive research to determine how to avoid the FTCA’s extensive immunity exceptions, interviewed over 30 separated families to get a first-hand account of the facts, and filed the first administrative claims against the government. Our administrative claims served as models for other lawyers filing claims. We then filed the first-of-its-kind lawsuit in federal court.

Our federal court lawsuit, C.M. et al. v United Statesset the stage for defeating the government’s motion to dismiss in our case, as well as in the other federal court lawsuits that were filed after ours. The C.M. case developed a factual record from thousands of pages of documents and dozens of depositions of top government officials that demonstrated that the government separated children from their parents to intentionally cause them emotional distress, setting the playbook for other cases and laying the groundwork for settlement.

Throughout the process, we worked extensively with nonprofit organizations, law firms, and law school clinics to seek justice for these families. We also developed an in-depth media strategy to highlight our clients’ horrific experiences.

Health and Hospital Corporation of Marion County v. Talevski: Our firm’s approach to the Talevski case was rooted in a deep understanding of the legal and human stakes involved. First, we identified a critical issue: the potential erosion of individuals’ rights to sue under [42 U.S. Code] §1983 when states that participate in federal benefit programs like Medicaid fail to protect them. This was a case that could have far-reaching consequences for millions of vulnerable Americans, so we crafted a strategy aimed at both winning the case and protecting the broader rights under the Spending Clause programs.

We began by conducting extensive legal research to frame a clear and compelling argument, focusing on the statutory language of the Federal Nursing Home Reform Act. Our strategy emphasized a rigorous textual interpretation, arguing that FNHRA created enforceable rights under §1983. We leveraged decades of appellate and Supreme Court experience to fine-tune our arguments to appeal to a broad range of justices, knowing that building bipartisan support would be crucial.

We also built a broad coalition of support, rallying support from advocacy groups, legal scholars, and health care organizations. The submission of 25 amicus briefs, including from groups like the AARP and National Health Law Program, reflected the importance of this issue to civil rights and health care advocates.

In addition to our legal strategy, we developed a thoughtful media approach to ensure that coverage of the case supported our legal arguments without creating unnecessary distractions. This multifaceted strategy ultimately led to a 7-2 victory at the Supreme Court, safeguarding the rights of millions of Americans.

What were the most innovative aspects of two of your client matters in your view? And who took the lead on driving innovation with the work?

C.M., et al. v. United States: The Federal Tort Claims Act (FTCA) allows individuals to seek damages for torts committed by federal officials. Our attorneys designed a novel strategy and legal argument for separated families to seek damages by showing that government officials committed intentional infliction of emotional distress and, therefore, were liable under the FTCA.

Rather than focusing solely on our clients, we launched an innovative nationwide campaign to recruit hundreds of attorneys to file claims for other separated families. We held trainings for law firm and nonprofit attorneys regarding the legal analysis and how to prepare FTCA administrative claims and worked with nonprofits to match separated families with attorneys.

In total, over 900 administrative claims were filed. After exhausting administrative remedies, we filed a novel FTCA complaint in federal court, paving the way for litigations across the country. We survived a motion to dismiss — the first such motion decided in a family separation case — arguing the FTCA exceptions did not apply and set the stage for discovery used in more than 30 litigations.

We were the first case to survive summary judgment. We met with countless attorneys to provide strategic advice on their cases. Based on our efforts, hundreds of families who did not have access to counsel have received compensation.

Health and Hospital Corporation of Marion County v. Talevski: While reviewing district court decisions, then-Senior Associate (now Counsel) Andrew Tutt found the decision denying Susie Talevski the right to hold a nursing home liable for the horrific abuses her father suffered while residing in a state-run facility.

It was immediately understood that the decision could have major implications, and we offered to represent Ms. Talevski. This case was a needle-in-a-haystack and had three components that lent itself to be a compelling case: First, the matter had a plaintiff going through a situation which showed the tragic outcome for families with no recourse except under §1983.

While suffering from dementia, Ms. Talevski’s father, Gorgi, was restrained with powerful psychotropic medications and improperly transferred multiple times to hospitals hours away from family. After exhausting all other avenues, there was no other choice except to seek justice under §1983, which was denied.

Second, the case involved the Federal Nursing Home Reform Act (FNHRA), a spending statute with unambiguous language that conferred individual rights with clarity and was selected to present the compelling textual argument that FNHRA was a “law” which secured “rights” as spelled out in §1983. The Supreme Court agreed, stating that “laws means ‘laws’,” and the Talevskis had the right to enforce their rights provided to them under FNHRA.

Finally, Mr. Tutt took the lead, along with a team of 15 others to identify the case, craft the appellate strategy, and execute the litigation up to argument at the Supreme Court. We assembled key bipartisan stakeholders across the advocacy community and ultimately, 25 amicus briefs were filed supporting the Talevskis, including from the National Health Law Program, AARP, American Cancer Society, Bazelon Center, academics, healthcare providers, and federal officials.

Tell us more about the impact of these two matters on the local, national, and/or global level.

C.M., et al. v. United States: As a result of our work, the government was forced to compensate families for one of the most cruel and outrageous policies in our nation’s history—a policy that led to very young children being forcibly ripped from their parents’ arms and sent across the country without knowing if they would see their parents again.

Hundreds of families who did not speak English, and who did not have access to legal representation, were able to file claims against the government for the trauma they suffered — trauma that experts warned would create lasting changes to children’s brains. Families received financial compensation, but, equally important, so many families who suffered unspeakable harm had an advocate to tell their stories and fight on their behalf.

In addition to the settlements that will provide the families with financial stability, and the ability to seek treatment for their emotional distress, our efforts also exposed some of the most damaging documents and emails concerning the government’s true intent in separating families. These documents will serve as part of the public record of the family separation policy and its devastating impact on children and their parents.

Health and Hospital Corporation of Marion County v. Talevski: Our work not only benefited our client, but also impacts tens of millions of Americans across the country who now are able to bring lawsuits to enforce their federal rights and check against government abuses. The Supreme Court decision safeguards the Medicaid program itself, ensuring enrollees have access to care, including children entitled to comprehensive health care coverage, those with chronic conditions, serious life-threatening diseases, and people with disabilities.

In the words of Susan Mizner, director of the ACLU’s Disability Rights Program: “This decision is a crucial victory for the civil rights of nursing home residents, people with disabilities, and everyone protected under Titles VI and IX of the Civil Rights Act. Numerous other civil rights organizations and activists agreed that the case presented a “major” “unexpected” victory for civil rights before the Supreme Court.

We did not merely win but emphatically won (by a vote of 7-2), a Supreme Court case many believed could not be won and reaffirmed a key protection for millions of the most vulnerable population. Hard evidence of the value we delivered to the case can be found in the wide margin of victory and the exceptional sweeping consequences of the decision for millions of stakeholders.

Why do you think your team ultimately achieved successful results in these two matters?

C.M., et al. v. United States: Attorneys across the firm committed their time and energy towards leading this novel litigation and advocacy effort seeking redress for separated families. Over 230 lawyers and staff spent over 27,000 hours on this effort, including in filing administrative claims and in immigration proceedings, matching families with attorneys, providing attorney trainings, reviewing claims and complaints for attorneys across the country, reviewing hundreds of thousands of documents from three federal departments and multiple government agencies, serving as coordinating counsel in global settlement efforts, litigating a first-of-its-kind lawsuit, and taking over 30 depositions of high-level government officials, border patrol officers and child welfare agency workers, preparing for the first trial on family separation, and engaging in a second round of settlement negotiations.

We worked with four immigration and civil rights organizations— the National Immigration Justice Center, the American Immigration Counsel, the civil rights law firm of Karys Rudofsky, and the National Immigration Litigation Alliance—as co-counsel in much of this effort, and partnered with another national organization, Texas Civil Rights Project, in connecting with families.

We organized and led multiple calls discussing litigation and settlement strategy for over 200 attorneys and coordinated with dozens of law firms and nonprofits nationwide. Our decision-making process was informed by extensive legal and factual research, and our ability to press forward with such large-scale efforts was the result of our lawyers’ capacity to build relationships with many lawyers and families.

Health and Hospital Corporation of Marion County v. Talevski: We developed a compelling appellate strategy that leveraged our legal expertise and utilized relationships we built with key stakeholders. Using a combination of exceptionally thorough research, decades of collective experience litigating in the courts of appeals and Supreme Court, and wide-ranging understanding of the relevant legal issues involved, we were able to design a litigation vehicle that maximized the likelihood of a favorable result that would protect the rights of millions of low-income Americans who rely on other Spending Clause programs, not just Medicaid, to enforce their federal rights.

We also crafted an effective news strategy that ensured that media coverage about the case would not hinder the litigation effort and would instead work to improve the case’s positioning before the Supreme Court. Following hundreds of hours of internal deliberations and engagement with some of the nation’s most experienced Supreme Court practitioners, we adopted an approach to the case that emphasized rigorous textual and contextual arguments that would broadly appeal to virtually all the justices on the Supreme Court.

Responses provided by Arnold & Porter Partner Diana Reiter, Product Liability and Mass Tort Litigation, and Lucy McMillan, chief pro bono counsel for C.M. et al v. United States.

Responses provided by Arnold & Porter Counsel Andrew Tutt, Appellate and Supreme Court, for the Talevski matter.