Vets discharged under Don’t Ask Don’t Tell

The ABA is supporting legislation to allow veterans who were discharged under the Don’t Ask Don’t Tell to request a change in their military records.

“Restore Honor to Service Members Act,” H.R. 2839, will ensure that veterans who were discharged solely because of their sexual orientation and did not receive an “honorable” characterization of service can have the opportunity to request their characterization be upgraded. In addition, those who did receive an honorable discharge would be able to remove any reference to sexual orientation from their records by requesting a review.

This bill was introduced on July 25, 2013 and was referred to committee.  Since July 25, 2013 there has been no movement.  The ABA President’s letter, dated November 21, urges the subcommittee to take action.

via Vets discharged under Dont Ask, Dont Tell should be allowed to seek change in records, ABA says.

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Follow up: Rulings Against Sheriff Arpaio

A while back images where shown of Sheriff Arpaio, from Arizona, having 220 immigrants march in a line with shackles.  (One story here).  This story, among others, prompted lawsuits against Arpaio. The first case granted an injunction against Arpaio and the Sheriff’s Office.  The second case ruled that the Human Smuggling Act (which allowed the arrest and prosecution of immigrants).

It is interesting to point out that these decisions came before the 9th Circuit Court of Appeals decision (Oct. 8, 2013), discussed here, which held Arizona S.B. 1070 was void and preempted.

In Manuel de Jesus Ortega Melendres v. Arpaio, No. CV-07-02513-PHX-GMS (D. Ariz. Oct. 2, 2013), U.S. District Court Judge Snow granted an injunction and listed reforms in which Arpaio and the Maricopa Sheriff’s Office must comply with.  This list includes, for example:

  • Supervisors shall provide effective supervision necessary to direct and guide Deputies.  Some of these include, for example: Respond to certain arrests; confirm the accuracy and completeness of Deputies’ daily reports;and hold Deputies accountable.
  • Supervisors enforcing Immigration-Related laws will directly supervise law enforcement activities.
  • Appointment of a federal independent monitor;
  • Hiring a Community Liaison Officer who is a sworn Deputy fluent in English and Spanish; and
  • Video recorder in every patrol car to record every traffic stop.

In We are America v. Maricopa County Bd. of Supervisors, No. CIV 06-2816-PHX-RCB (Sept. 27, 2013), U.S. District Court Judge Broomfield enjoined Arizona’s Maricopa Migrant Conspiracy Policy.

Sheriff Arpaio created this policy based on the Human Smuggling Act, Ariz. Rev. Stat. 13-2319 which allowed for the arrest and prosecution of immigrants for “conspiring to transport themselves within Maricopa County.”

District Court Judge, like the reasoning of the 9th Circuit a few days later, ruled that the statute was preempted by the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq.

The court also certified the class, which included “all individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute or penalize individuals for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Stat. 13-2319 [Human Smuggling Act].”

via Courthouse News Service.

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Rule 68 does not moot case

In Emily Diaz v. First Am. Home Buyers Protection Corp., No. 11-57239 (9th Cir. Oct. 4, 2013), the 9th Circuit Court of Appeals ruled that an offer of judgment (Rule 68) did not make a plaintiff’s case moot.  This is an important case because it provides guidance when considering when to file summary judgment when a Rule 68 offer has been made.

Rule 68 is when a party offers opposing party a judgment for full satisfaction that the opposing party could recover at trial.  In this case, First American offered $7,019.32 plus costs.  Diaz, the plaintiff, declined this offer.  Thereby the issue was whether offering the money made the lawsuit moot.

The 9th Circuit Court of Appeals held that the First American’s offer, even if it fully satisfied the plaintiff’s claim, did not make the case moot.  When reaching this conclusion the 9th Circuit cited Kagan’s dissent in Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528-29 (2013).

‘[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’ By those measures, an unaccepted offer of judgment cannot moot a case.   When a plaintiff rejects such an offer – however good the terms – her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer – like any unaccepted contract offer – is a legal nullity, with no operative effect.”

Id. at 1536 (citation omitted).

via Courthouse News Service.

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Follow up on Arizona S.B. 1070

You might remember the very controversial legislation against unauthorized aliens in Arizona.  Arizona Governor Jan Brewer was launched into the spotlight when she signed this bill.  The ruling of the 9th Circuit is important because it points to the exclusive control of the federal government of immigration.

In Valle Del Sol v. Whiting., No. 12-17152 (9th Cir. Oct. 8, 2013), the 9th Circuit Court of Appeals ruled that S.B. 1070 was void because it is vague and incomprehensible to a person of ordinary intelligence; and (2) it is preempted by federal law.

Setting aside the vagueness and incomprehensible nature of the law, the Court explained preemption.  The 9th Circuit focused on three main arguments: (1) federal government’s exclusive control over immigration policy; and (2) how Arizona’s law conflicted with federal’s laws.

The 9th Circuit first commented on why the federal government has this control.

Federal control over immigration policy is integral to the federal government’s ability to manage foreign relations:

“Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.  Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”

Then, the Court explained why the federal government has exclusive control over immigration and not the states. The Court stated:

Congress did not, however, grant states the authority to prosecute [section] 1324 violations, but instead vested that power exclusively in the federal authorities.  Thus, “the inference from these enactments is that the role of the states is limited to arrest for violations of federal law.”

(citations omitted).

Lastly, the 9th Circuit pointed to the conflict of laws of Arizona and federal statutes as follows:

  1. First, Arizona’s statute provided “additional and different state penalties.”
  2. Second, Arizona “conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized aliens in a manner unaligned with federal immigration priorities.”
  3. Third, Arizona “criminaliz[ed] conduct not covered by the federal harboring provision.” Arizona also “criminalizes encouraging or inducing an alien to come to or reside in Arizona.”

 

As a side note, if you are interested in standing and organizational standing, the 9th Circuit Court of Appeals discussed the standard and explained how plaintiffs had standing.

via Courthouse News Service.

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Government Shut Down and the NLRB

When the shut down occurred, the NLRB closed its doors.  What is interesting is that the NLRB’s website is also down.

There are several notes that need to be pointed down.  Even though the NLRB is shut down, unfair labor practice charges’ statute of limitations of 6 months keeps running.  The statute of limitations is the time that a person/organization/company has to enforce their rights.  After that period, they may lose their right to do so.

The federal register provides:

Extensions for time of filing cannot apply to the 6-month period provided by Section 10(b) of the Act for filing charges, 29 U.S.C. 169(b), or to Applications for awards of fees and other expenses under the Equal Access to Justice Act, 5 U.S.C. 504.

….

(emphasis added).

The federal register also cautions persons to file the charge via fax and to serve the charges themselves.  The federal register states:

Notwithstanding the foregoing, persons wishing to file a charge pursuant to Section 10(b) of the Act, and for whom the 6-month period of Section 10(b) may expire during the interruption in the Board’s normal operations, are cautioned that the operation of Section 10(b) during an interruption in the Board’s normal operation is uncertain.

Consequently, it would be prudent to file the charge during the interruption in the Board’s operations by faxing a copy of the charge to the appropriate Regional Office.

…..

Moreover, persons filing a charge are reminded that it is their responsibility… to serve a copy of the charge upon the person against whom the charge is made.  While Regional Directors ordinarily serve a copy of the charge on a person against whom the charge is made as a matter of courtesy, they do not assume responsibility for such service, and it is unlikely that the Agency will be able to serve the charges during any period of shutdown due to a lapse in appropriated funds.

(emphasis added).

In summary, you must do as follows:

  1. Serve the unfair labor practice charge and the applications of fees and other expenses via fax.
  2. Serve the papers to the person against whom the charge is made.

Regarding other issues, the federal register explains that they are postponed.  These include hearings in front of Administrative Law Judges, pre and post election hearings, and filing or serving of documents (including briefs and appeals).

via NLRB |.

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Discrimination for being “unmanly”

The Fifth Circuit Court of Appeals (en banc) ruled that an iron worker who was subjected to gay slurs and simulated sex because he failed to conform to the employer’s male stereotypes was discriminated against under Title VII.

In EEOC v. Boh Bros. Constr. Co., No. 11-30770 (5th Cir. Sept. 27, 2013), the  court reviewed the jury’s findings and awarded damages.  The Fifth Circuit found that taking the case as a whole, a jury could have found that the employee was harassed because he did not fall under the “manly-man stereotype.”

This case arose when a worker, Kerry Woods, was subjected to sex harassment.  Woods was often sexual derogatory terms regarding Woods’ sexuality.  In addition, the superintendent also exposed himself when Woods was going to the bathroom, and made sexual innuendo comments to Woods.  When these actions were brought to the employer, the superintendent told the general superintendent that he didn’t care for Woods because he was “different” and “didn’t fit in.”

After trial the jury found that this verbal and physical harassment occurred daily.  The jury awarded Woods $200,000 in compensatory damages and $250,000 in punitive damages.

via Harassed for being unmanly? En banc court sees Title VII violation; dissent sees clean-talk enforcer.

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Home Health Care Rule and FLSA

Starting January 1, 2015 home care aides are not exempt from Wage and Overtime laws.  The Department of Labor released a press release discussing this wage and hour change as well as unveiling a new web portal with interactive tools.  The web portal for Home Care can be accessed here.

In the DOL’s press release, DOL stated,

This change will result in nearly two million direct care workers – such as home health aides, personal care aides and certified nursing assistants – receiving the same basic protections already provided to most U.S. workers.

The DOL also explained that this wage and hour new rule did not apply to companionship workers.  The DOL stated,

The final rule also clarifies that direct care workers who perform medically-related services for which training is typically a prerequisite are not companionship workers and therefore are entitled to the minimum wage and overtime.

And, in accordance with Congress’ initial intent, individual workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection (providing company, visiting or engaging in hobbies) and care incidental to those activities, will still be considered exempt from the FLSA’s minimum wage and overtime protections.

The final rule can be accessed here.

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Clicking ‘like’ is protected by First Amendment, 4th Circuit says

The ABA Journal has an interesting case regarding Facebook and its “likes.”  If you use Facebook, it is very likely that you have “liked” a page, a comment, a photo, etc.  The 4th Circuit Court of Appeals recently held that a “like” is protected under the First Amendment.

In Bland v. Roberts, No. 12-1671  (4th Cir. Sept. 23 2013), six plaintiffs allege that because their support for the Sheriff’s opponent, the Sheriff retaliated by choosing not the reappoint them. One of the plaintiffs had “liked” the opponent’s Facebook page.

The First Amendment application for a public employee is interesting. In order for a public employee to enjoy First Amendment protection and show that the employer violated the First Amendment, the employee has to show 3 items.

  • (1) the employee was speaking as a citizen upon a matter of public concern rather than an employee about a matter of personal interest;
  • (2) the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and
  • (3) the employee’s speech was a substantial factor in the employer’s termination decision

Furthermore, the degree of the protection depends on whether the political affiliation or political allegiance is an appropriate requirement for the effective performance of the public office.  Here, the three deputies were trained as jailers and had never made an arrest.  In other words, their political support for the Sheriff’s opponent may not a requirement for their performance of their duties.  This speech includes a “like” on Facebook.  The 4th Circuit remanded the case for further proceedings.

via Clicking ‘like’ is protected by First Amendment, 4th Circuit says.

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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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