headshot of Scott Michelman

Title/Position

Legal Co-Director

Scott has litigated a broad range of civil rights and civil liberties issues, including access to the courts, discrimination and selective enforcement, freedom of speech and press, habeas corpus, immigrants’ rights, judicial secrecy, political protest, post-September 11 abuse of executive power, privacy rights, religious freedom, reproductive freedom, the rights of medical marijuana patients, sentencing law, and unreasonable search and seizure. He has additionally litigated cases about class action law, consumers’ rights, and workers’ rights.

Scott is also Shikes Fellow on Civil Liberties and Civil Rights and Lecturer on Law at Harvard Law School, where he teaches Civil Rights Litigation. He has previously taught as clinical or adjunct faculty at American University Washington College of Law, Santa Clara Law School, Seton Hall Law School, and the University of California at Santa Cruz.

Scott has argued before the United States Supreme Court, six federal courts of appeals, the Supreme Judicial Court of Massachusetts, and numerous other federal and state courts around the country. Among his notable cases (as lead counsel unless otherwise noted) are:

  • Black Lives Matter-DC v. Bowser, a pending challenge to the D.C. government’s failure to implement a D.C. law requirement that the police department collect comprehensive data on police stops-and-frisks
  • Horse v. District of Columbia, a pending challenge to mass arrests, excessive uses of force, and unlawful conditions of confinement imposed by D.C. police against demonstrators, journalists, and legal observers on Inauguration Day 2017
  • Guffey v. Duff, in which a federal district court preliminarily enjoined, on First Amendment grounds, rules prohibiting administrative employees of the federal judiciary from expressing opinions publicly about partisan candidates for office, joining political parties, attending partisan political events, or contributing money to candidates
  • Garza v. Hargan (co-counsel), in which a federal district court certified a class action of pregnant unaccompanied immigrant minors in the federal government’s custody and preliminarily enjoined the Trump administration’s ban on abortion access for these minors
  • Pyle v. Woods, a federal appeal about a Fourth Amendment claim against a police officer for accessing individuals’ prescription drug information via a state prescription-drug database without a warrant
  • Ortiz-Diaz v. U.S. Dep’t of Housing & Urban Development (wrote successful petition for rehearing), a federal appellate decision in which the court, on rehearing, held that an employee’s claim that he had been denied a lateral transfer because of discrimination based on national origin could proceed under federal employment discrimination law; the opinion on rehearing superseded a prior opinion holding the opposite
  • Tyson Foods, Inc. v. Bouaphakeo (counsel of record; co-authored merits brief), a Supreme Court case that affirmed that pork-processing plant workers claiming wage-and-hour violations could proceed as a class, and held that neither existence of individual differences among class members as to the amount of wages owed nor the plaintiffs’ use of statistical measures of proof defeated class certification
  • Roach v. T.L. Cannon Corp., a federal appellate case that reversed the denial of class certification for restaurant workers claiming wage-and-hour violations, and holding that the need for individualized damages determinations does not defeat class certification
  • Palmer v. Kleargear.com, in which a federal district court awarded $306,750 in compensatory and punitive damages to two consumers against an online retailer who used an unlawful “non-disparagement clause” in the fine print of its online terms of service to try to silence consumers’ speech and force consumers to pay $3500 for publishing a negative review, then took steps to ruin consumers’ credit when they refused to pay the fine that the company demanded; the case helped inspire the federal Consumer Review Freedom Act, signed into law in 2016, banning non-disparagement clauses in certain contracts
  • Company Doe v. Public Citizen, a federal appellate case that reversed a district court’s orders permitting litigation over a government product-safety database to proceed entirely in secret and that held, in matters of first impression, that the public has a First Amendment right to access judicial opinions granting judgment as a matter of law and to access court docket sheets, and that a company’s fear of reputational injury did not overcome the public’s First Amendment right of access to judicial proceedings
  • Dahlia v. Rodriguez (wrote successful petition for rehearing), a federal appellate case holding on rehearing that the First Amendment protected a police officer from employment retaliation for reporting fellow officers’ misconduct; overruling prior precedent that such speech was categorically unprotected; and holding that an employee’s placement on administrative leave can give rise to a retaliation claim
  • Ryan v. Valencia Gonzales, a Supreme Court case about two capital habeas corpus cases in which courts had stayed proceedings because of petitioners’ lack of mental competence; the Court vacated the stays but preserved federal courts’ discretion to stay proceedings in certain circumstances because of petitioners’ lack of mental competence
  • Casias v. Wal-Mart Stores, Inc., a federal appeal concerning the wrongful discharge of a Wal-Mart employee for using medical marijuana in accordance with state law and his doctor’s recommendation to treat pain associated with cancer and brain tumor
  • United States v. McCarthy, one of the first cases in the nation effectively putting a U.S. Sentencing Guideline on trial, resulting in a federal district court decision holding, based on a two-day evidentiary hearing and in a matter of first impression, that the U.S. Sentencing Guidance for the drug ecstasy was flawed
  • Commonwealth v. Cruz, a Massachusetts Supreme Judicial Court case holding, in matter of first impression, that the odor of burnt marijuana no longer provides reasonable suspicion of criminal activity after Massachusetts decriminalized possession of one ounce or less of marijuana
  • Makky v. Chertoff, a federal appellate case concerning the employment discrimination claim on behalf of an Egyptian-American Muslim TSA security engineer who endured derogatory comments about his religion and national origin at work and then was suspended from his job on the day the United States invaded Iraq

In connection with his practice, Scott has been quoted by national radio, television, and print media outlets, including NPR, CNN, Fox News, Al Jazeera, Democracy Now, the New York Times, Washington Post, Los Angeles Times, USA Today, U.S. News and World Report, The Independent (U.K.), The New Yorker, Associated Press, Reuters, Politico, Buzzfeed, and National Law Journal, and his commentary and opinion have appeared in SCOTUSblog, Slate and the Huffington Post. His legal scholarship includes The Branch Best Qualified To Abolish Immunity, 93 Notre Dame L. Rev. 1999 (2018); Doing Kimbrough Justice: Implementing Policy Disagreements With the Federal Sentencing Guidelines, 45 Suffolk L. Rev. 1083 (2012) (with Jay Rorty); and Who Can Sue Over Government Surveillance? 57 UCLA L. Rev. 71 (2009), reprinted in 26 Saltzman & Wolvovitz, Civil Rights Litigation & Attorney Fees Annual Handbook 79 (2010).

Before joining the ACLU-DC in 2016, Scott was an attorney with Public Citizen Litigation Group and before that the ACLU Criminal Law Reform Project. Scott graduated magna cum laude from Harvard Law School, where he was an editor of the Harvard Law Review, and he went on to clerk for the Honorable Betty B. Fletcher of the United States Court of Appeals for the Ninth Circuit.

A member of the British royal family once broke his thumb playing football under Scott’s supervision.

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