Non-existing law was applied when deporting U.S. Citizen

This is a very interesting case regarding immigration and obtaining citizenship through a U.S. citizen parent.  Basically, this case used Article 314 of the Mexican Constitution when determining whether to deport individuals who claim American citizenship.

In Mexico, Saldana was born to an American male and a Mexican female. His birth certificate listed both parents.  DHS deported him and denied his citizenship application on the basis that he was born out-of-wedlock.

According to DHS, Article 314 provided that children born out of wedlock can only be legitimized if the couple marries subsequently. At oral argument, however, the government admitted that Article 314 did never existed.  DHS then cited Article 130 alleging it required marriage for legitimacy of children.

The Fifth Circuit Court of Appeals held in their opinion disagreed. Article 130 merely cited that marriage was a civil contract, rather than a religious one.  In addition, the court noted that this article said nothing about the legitimization of children.  The court explained,

In sum, under the laws of Tamaulipas, Mexico, where Saldana was born and resided as a child, he was acknowledged by his father when his father placed his name on the birth certificate before the Civil Registry.  As an acknowledged child, Saldana had the same filial rights vis-a-vis his father as a “legitimated” child.

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Military Survivor Benefits for Same-Sex Spouse

In Copper-Harris v. United States, Case No. 2:12-00887 (Aug. 29, 2013), the Central District of California District Court recently ruled that the military could not deny survivor benefits to a same-sex spouse.  This case is interesting because it brings up a very interesting conflict of laws.

California recognizes same-sex marriages and recently the Supreme Court reversed DOMA.  You can see my prior post discussing the DOMA decision here.

Meanwhile, the Veteran’s Benefits statute, Title 38, defines a survivor spouse as “a person of the opposite sex who was the spouse of a veteran.” 38 U.S.C. 101(3).

The federal District Court in California, without referencing DOMA or what would be the appropriate standard of review, sided with the same-sex surviving spouse.  Using a rational basis review, the military would have to show that their action was rationally related to the purpose of the statute.  The questions can be summed up as follows:

  1. Is the survivor benefit exclusion of same-sex spouses rationally related to the goal of gender equality and expansion of the availability of veteran’s benefits?
  2. Is the survivor benefit exclusion of same-sex spouses rationally related to caring for and providing for veteran families?

The court said no.  Relying on expert testimony, the court noted that “veteran’s benefits are essential to ensuring that servicemembers perform to their ‘maximum potential,’ and other purposes justifying veterans benefits including readiness, recruiting, cohesion, and retention.”  Further, the court concluded that excluding same-sex spouses were not rationally related to the promotion of gender equality.

The court, based on the stated purpose of the Veterans Benefits statute, held that there was no rational basis for prohibiting same-sex survivors to receive the survivor benefits.

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Attorney Client Privilege: Law firms and In-House Counsel

This is a very interesting article.  The attorney-client privilege is an important confidentiality rule that protects certain communications between a client and the lawyer/law-firm.  The attorney-client privilege is an important privilege because it encourages clients to be candid with their attorney.

The ABA adopted Resolution 103, which provides that the attorney-client privilege extends to communications between a law firm and in-house counsel for the purpose of facilitating legal services.  The resolution provides that these communications are protected to the same extent between the lawyer/law-firm and personnel of a corporation or other entity.

The ABA explains,

The measure stems from the increasing complexity of regulation, rules of professional conduct and greater disclosure obligations under legislation such as the Sarbanes-Oxley Act.

via Attorney-client privilege should apply to law firms consults with in-house counsel, ABA House says – ABA Journal.

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Fair Labor Standard Act and Individual Liability

In Torres et al. v. Gristedes Operating Corp. et al., Case No. 11-4035 (July 9, 2013), the Second Circuit Court of Appeals held that a mayoral candidate, a supermarket owner, and an executive can be individually liable for settlement payments arising of a Fair Labor Standard Act class action.

In this case, the parties settled the class action.  A class action is a discrimination case brought by a few plaintiffs on behalf of many employees.  All of the members who agreed to be part of the class (the individuals who were discriminated against) receive their part of the settlement.  In order for a fair disbursement, the Judge must adopt the settlement.

Under the settlement, the defendants agreed to pay $3.5 million to the class.  However, the defendants defaulted on the payments.  The judge’s order allowed the class to enforce the settlement.  Defendants, who sought to change the settlement, stated that they were not bound by the settlement because they were not “employers.”

The Second Circuit Court of Appeals disagreed.  The Court noted that the defendants exercised “operational control” that affected the class’ employment.  For example, based of their decisions, the employees’ wages were affected.  Because defendants were employers, defendants were bound by the settlement.  Based on this decision, defendants now have to pay the owed money.

via Labor Employment Law Blog: Second Circuit Imposes Individual Liability on New York Mayoral Candidate for Fair Labor Standards Act Settlement.

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Safe Act for Victims of Domestic Violence of Sexual Assault

On October 1, 2013, the “Safe Act” becomes effective.  The Safe Act provides 20 days of unpaid leave to victims of domestic violence and sexual assault.  The employer can require that this unpaid leave be covered under FMLA, New Jersey FMLA, vacation, or personal leave.

The purpose of the Safe Act is to provide New Jersey victims with time to deal with matters related to an incident of domestic abuse or sexual assault.  The Safe Act covers:

  1. The employee,
  2. The employee’s child,
  3. The employee’s parent,
  4. The employee’s spouse,
  5. The employee’s domestic partner, or
  6. The employee’s civil union partner.

Within 12 months of the incident, the Safe Act’s purpose is to provide the victim of domestic abuse or sexual assault can:

  • Seek medical attention for, or recover from, physical or psychological injuries;
  • Obtain servies from victim services organization;
  • Obtain psychological or other counseling;
  • Participate in safety planning, temporarily or permanent relocate, or undertake other actions to increase safety;
  • Seek legal assistance or remedies; or
  • Attend, participate in, or prepare for court proceedings.

If the employer violates the Safe Act, the employee can ask for the following remedies: (1) Reinstatement; (2) compensation for lost wages and benefits; (3) an injunction; (4) attorney’s fees and costs; (5) civil find of $1,000 to $2,000 for a first time violation; and (6) a fine of $5,000 for any subsequent violations.

via Labor Employment Law Blog: New Jersey Provides Unpaid Leave to Victims of Domestic Violence.

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Government Can Track Cellphones Without Warrants

Mostly everyone has a cell phone.  A lot of smartphones have GPS capabilities.  This can be handy when you are looking for directions and you are lost.  However, what about being tracked?  For instance, unless you change your privacy settings, your photos will keep track of where you took the picture and what time.

The question the Fifth Circuit Court of Appeals decided is whether the government needs a warrant to track you.  In In re: Application of the U.S.A. for Historical Cell Site Data (July 30, 2013 5th Cir. Ct.), the court ruled that obtaining cell-location information without a warrant  did not violate the Fourth Amendment.

When we think of the Fourth Amendment we remember that a search and seizure may require a warrant.  If there is no expectation of privacy, i.e. in a garbage bag we got rid of, then the government wouldn’t need a warrant.  However, if we have an expectation of privacy, i.e. to enter your house, then the government must have a warrant.

An expectation of privacy usually is the crux of a search and seizure case.  Here, the ACLU argued that people have a reasonable expectation of privacy when they are being tracked for a long period of time and the data gathered is collected in great detail.

In this case, this argument was not discussed by the court.

Why would this not be discussed?  The Fourth Amendment deals with government actions.  In other words,  the seizure or search has to be collected by the government.  In a similar case, the Supreme Court had decided that the government must obtain a warrant if it wants to install a GPS tracking device.  See United States v. Jones (2012).

However, this case was found to be different.  The reason for this is because the Fifth Circuit Court of Appeals found that the information was collected by a third-party, i.e. the cell phone carrier.  The court explained,

Where a third party collects information in the first instance for its own purposes, the Government claims that it can obtain this information later with a [section] 2703(d) order, just as it can subpoena other records of a private entity.  We agree.

Id. (citations omitted).

Here, the government was not installing a GPS tracking device.  The Government was accessing a business record owned by carriers.  The court stated:

… cell site information is clearly a business record.  The cell service provider collects and stores historical cell site data for its own business purposes, perhaps to monitor or optimize service on its network or to accurately bill its customers for the segments of its network that they use.   The Government does not require service providers to record this information or store it.  The providers control what they record and how long these records are retained.

Consequently, the court found that the Government did not need a warrant.

via Cops Can Track Cellphones Without Warrants, Appeals Court Rules | Threat Level | Wired.com.

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Targeting Union Employees For Layoffs Violates The First Amendment

The Second Circuit Court of Appeals brings an interesting labor decision.  In State Employee Bargaining Coalitation v. Roland, ___F.3d___( 2d Cir. May 31, 2013), the court found that targeting Union employees for layoffs violates the First Amendment (freedom of association).

In this case, the employer employed around 50,000 people.  75% of these employees were members of the Union, and 25% were not.  In December 2002, the employer fired only Union employees.  No non-Union employees were fired.

It is important to note that an employer can manage the size of their work force.  However, the employer cannot target a protected group (here, employees who associated themselves with the Union).  The reason for this is because by targeting a protected group, the effect is to inhibit employees from their freedom to associate.

Under the Constitution, in order for the employer to not violate the Constitution it must show that they used the less restrictive means to accomplish their interest and must be narrowly tailored to achieve their goals.

The following are the pivotal facts of this case.  The employer’s interest was to manage their economical situation.  However, the laying off those Union employees had a minimal effect on their budget.  In fact, these Union-only lay offs were not included in the Balanced Budget Plan.  Further, the facts showed that because both Union and non-Union employees had the same health care and pension benefits there was no reason why only the Union employees were targeted.

via Adjunct Law Prof Blog: Targeting Union Employees For Layoffs Violates The First Amendment.

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AMA declares obesity a disease

The American Medical Association (AMA) declared that obesity is a disease and not a condition.  AMA board member Patrice Harris stated in a statement,

Recognizing obesity as a disease will help change the way the medical community tackles this complex issue.

As background, the U.S. has been consistently rated as No. 1 in obesity.  Recently, Mexico took the No. 1 spot and the U.S. moved to No. 2.  See Huffington article, Mexico Obesity Rate Surpasses The United States (July 9, 2013).  Mexico was reported to have 32.8% obesity rate while the U.S. has a rate of 31.8%.

This new definition may have an unknown impact in disability claims.  The ABA Journal reports:

Although the AMA’s action was intended to affect medical treatment for the obese, “there’s a high probability it will make it easier for an obese employee to argue that he or she is disabled,” said partner Myra Creighton of Fisher & Phillips.

“It may be easier for employees to prove disability discrimination,” Creighton, who represents employers, told the newspaper. “And, if classified as a disease, it will be difficult for employers to argue that any level of obesity is not an impairment.”

The EmploymentEmployment Opportunity Commission (EEOC) has previously defined a “morbid” obese individual as disabled.  Seee.g.JD Supra, Morbid Obesity as a Covered Disability under the ADA (July 30, 2012)EEOC Press Release (July 24, 2012); EEOC Press Release (Apr. 10, 2012), EEOC Press Release (Sept. 27, 2011).

It would be interesting to see if the EEOC will change its definition of obesity as a disability.

via Obesity is a disease, AMA says, aiding weight-related disability claims – ABA Journal.

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Judge OKs $1.6B settlement in Toyota class action

You may remember this story that exploded all over the news.  Around the end of 2009 and start of 2010, the news reported that some Toyota cars had sudden-acceleration defects.

Toyota recently settled a federal class action.  U.S. District Court Judge James V. Seina approved of the federal class action settlement.  The settlement approved is for $1.6 billion, which includes attorney fees and costs calculated at $227 million.  The class members are said to receive anywhere between $125 to $10,000 each.

Toyota has denied liability for the alleged sudden-acceleration problem with the vehicles, as provided in the language of the settlement.  The ABA reports that a spokeswoman for Toyota stated,

This agreement allows us to resolve a legacy legal issue in a way that provides significant value to our customers and demonstrates that they can depend on Toyota to stand behind our vehicles,

It is important to note that Toyota is still facing trials in more than 80 state court lawsuits over the alleged sudden-acceleration defects.

via Judge OKs $1.6B pact in Toyota class action as trial begins in first wrongful death case – ABA Journal.

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Court orders reporter to testify in leak case re: Sterling

The Fourth Circuit Court of Appeals ruled in a 188-page decision that there is no journalist protection of sources.  The decision can be viewed here.

In this case, ex-CIA officer Sterling worked for the CIA from 1993 to Jan. 2002.  During his tenure, he provided classified information to a NT Times reporter Risen.  In 2001, Risen published two articles based on classified information provided to him by Sterling.  After Sterling’s employment was terminated, Sterling attempted to publish a book but was denied ultimately because it contained classified information.

Afterwards, and while Sterling was pursuing legal action against the CIA, Sterling again gave Risen classified information.  NY Times Reporter met with senior administration officials to discuss the impact of the story.  The recommendation was to not publish, which the NY Times agreed to.  Nevertheless, NY Times reporter Risen published his book, “State of War: The Secret History of the CIA and the Bush Administration,” which disclosed classified information.

As a result, the Attorney General sought to compel Risen’s testimony about the identity of his source.  Risen motioned to quash the subpoena on the basis that he was protected under the First Amendment or/and the federal common-law reporter’s privilege.

 

The Circuit Court of Appeals disagreed.  The court held that Risen did not have a reporter’s privilege.  The Circuit Court of Appeals relied heavily on Supreme Court cases.

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court in no uncertain terms rejected the existence of a reporters’ privilege.   In Univ. of Pa. v. EEOC, 493 U.S. 182, 201 (1990), the Supreme Court explained that the “First Amendment does not invalidate every burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.”  In Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991), the Supreme Court again stated that the First Amendment does not “relieve a newspaper reporter of the obligation shared by all citizens to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source.”

Pointedly, the Circuit Court of Appeals refused to apply a “balance test” approach when deciding whether a reporter can be compelled to testify in criminal proceedings.  The court noted that in civil matters, the court recognized a reporter’s privilege which could be overcome if the 3-part test was met.

The Circuit Court of Appeals noted why this line is so important.  In criminal cases, there is a fundamental and comprehensive need for every man’s evidence.  For this reason, any shield to information has to be narrowly construed.  In a civil matter, however, the need for information does not share the same urgency or significance.

For these reasons, the Fourth Circuit Court of Appeals ordered NY Times reporter Risen to testify in the criminal trial of former CIA official Sterling charged with providing the reporter with classified information.  In so doing, the Court of Appeals held that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them.

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July 22, 2013 · 13:45