The Fourth Court of Appeals in Richmond, Virginia has upheld the lower court’s preliminary injunction regarding the Trump travel ban. This ruling applies to the second ban, not the first. The second ban was written better after the administration encountered so many problems with the first ban.

A Maryland district court issued the preliminary injunction. Thirteen judges heard the appeal, indicating it was an en banc ruling. At the hearing, many of the judges were skeptical that the ban did not have the desired effect of applying to Muslims. The lengthy decision refers to Pres. Trump’s comments about Islam. It discussed comments by administration officials. The court found the ban implicated the establishment of religion clause in the U.S. Constitution. That clause forbids the government from establishing any one particular religion.

Among the facts causing concern for the court were the first travel ban. The administration claims the first travel ban and the second were based on national security concerns. But, the alleged national security issues were not identified until after the administration issued the first travel ban. Too, one recent report by the Department of Homeland Security explicitly said that most terrorist acts were committed by persons who grew up in the U.S. The report mentioned that no one has died at the hands of any person from the six nations identified in the second travel ban in the last 40 years.

In a display of poor appellate strategy, DOJ argued that “unofficial” comments by a candidate should not be considered, especially those made during a campaign. The government lawyers made the specious argument that somehow when Candidate Trump became President Trump, his statements became less probative. But, citing to various caselaw involving candidates for election and other issues, the court noted that such statements are probative if closely related in time and if uttered by the same deciding official. The court added, “Just as the reasonable observer’s world is not made brand new with every morning, . . . nor are we able to awake without the vivid memory of these statements.” The court cited to McReary County v. ACLU, 545 U.S. 844, at 866 (2005). Quoting Jonathan Swift, Polite Conversation (Chiswick Press, 1892), the court added a comment that we cannot shut our eyes to such evidence when it starts us in the face and there are none so blind as those who cannot see. Slip opinion, at 66. Anytime a court reaches back to the 1800’s for a non-law related book, you know the court is annoyed. The court was annoyed with the administration’s disingenuous attempt to pretend Pres. Trump did not say the things the country knows he said.

[Note: It is very poor form to argue obvious fallacies. It is a technique likely to lead to defeat. If a normal litigator had tried to argue an obvious fallacy like Candidate and President Trump’s comments about Muslims, the court would come down very hard on us.]

The DOJ also argued that the second travel ban was neutral in its language. But, responded, the court, even a neutral executive order can discriminate. See the Fourth Circuit’s decision in International Refugee Project v. Trump, No. 17-1351 (5/25/2017) here. The Fourth Circuit was once one of the two most conservative courts in the country. It is perhaps more liberal now than it was. The court reached this result with a 10-3 vote. See CBS news report here.

There is another preliminary inunction working its way through the appellate process in the Ninth Circuit. A federal judge in Hawaii also issued an injunction against the travel ban.

 

In a recent decision, the Western District of Texas granted the employer’s motion for summary judgment in a case alleging discrimination based on gender (male), age (age 55), race (Hispanic) and disability (morbid obesity). In his EEOC complaint, the employee also alleged national origin. As I have mentioned here before, it is very unwise to allege more than one basis of discrimination. It is not impossible that persons would discriminate based on multiple reasons, but it does look like the employee is throwing everything out there that might work. Lawsuits, especially in federal court, need to be based on more than “maybe” reasons. In Beltran v. Union Pacific RR. Co., No. 15-CV-1019 (W.D. Tex. 2017), the plaintiff argued age, national origin (Hispanic, and disability when it responded to the employer’s motion for summary judgment. He argued he had reported racial slurs at work in the past, but provided no details. He pointed out the obvious fact that he was replaced by someone in his 20’s.

But, most of his efforts were devoted to arguing that his disability played a role in his termination. And, that focus largely attacked the drug test to which Mr. Beltran was subjected. The employer argued that Mr. Beltran was  fired because he failed a drug test. The plaintiff responded that prior to his termination, he had passed some 55 drug tests over the prior 4 years. The plaintiff pointed to testimony from a doctor saying that the prescription medication he was taking likely caused a “false positive” on his test. During the lawsuit, the plaintiff moved that the judge allow a re-test of the same sample. The judge ordered the re-test to proceed. The parties knew the re-test could result in the same result, which it did.

Regarding summary judgment, the court noted that it does not matter whether the drug test was valid or not. Even if the third re-test had produced a different result, that would still not create a fact so as to avoid summary judgment. Citing Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991), the court noted that the existence of competing evidence about the objective truth of a fact supporting the employer’s preferred reason does not in itself make it reasonable to believe the employer was not truly motivated by its proffered reason. The plaintiff presented evidence that the doctor certifying the initial drug test had a felony conviction did not create a fact issue either. The court was saying that just because the drug test had issues does not indicate the employer did not sincerely believe the results were genuine. Something more would be needed to show that Union Pacific had doubts about the drug test.

The employee also argued that the employer had shifted its explanation over time. But, said the court, the shift was not perceptible to it. So, the judge granted the motion for summary judgment. See the decision here.

And, we are reminded that it is never wise to allege too many bases for discrimination.

Howard Cohan visits many public establishments. Mr. Cohan is restricted to a wheelchair. He is disabled. But, he visits these public establishments in Florida to see if they are accessible to persons with disabilities. Many restaurants, stores and motels get nervous when they see him rolling toward their front door. See Cohan v. Southeastern Hotels Ltd. Partnership, et al, No. 3:14-cv-393 (N.D. Fla. 6/26/2015), in which he sued some two dozen different motels. See an order here in which instance he could not attend court due to medical treatment. According to one report, he has filed some 1200 lawsuits against non-compliant businesses.

He identifies himself as a “tester.” He tests these places to see if they comply with the ADA. The state of Texas just recently tried to pass a statute limiting the recovery for testers like Mr. Cohan. But, Mr. Cohan is genuinely impaired. And, he genuinely wants businesss to comply with the ADA. Speaking from experience, in some parts of my neighborhood, there are not enough sidewalks. Fredericksburg Road inside Loop 410 lacks sidewalks. So, one young man who uses a wheelchair is forced to travel in the busy street. He wears a huge cowboy hat, and has a tall bicycle flag attached to his chair to make himself more visible. Yet, just a few weeks ago, he was struck by a car. If you are in a wheelchair or suffer some impairment, the concerns of Mr. Cohan are quite genuine.

In Cohan v. Arvilla Motel, Inc., No. 8:15-cv-2174 (M.D. Fla. 1/18/2017), the court declined to award sanctions against Mr., Cohan after he dropped a lawsuit soon after filing it. The court noted rightly that Mr. Cohan has a genuine disability. He visited one motel as a “tester” with an ADA expert and found some violations. The court found that just because Mr. Cohan’s “calculated” presence on the property and his stated claim to return as a “tester” and using a “form” complaint that was not well drafted do not equate to bad faith. He might have failed to prevail on all his claimed violations, but it is apparent from the expert’s report and the photographs, that there was reasonable basis in law and in fact to support the allegations in his Complaint. See the decision here.

The court noted that it reached the same result in another lawsuit field by Mr. Cohan, Cohan v. Island House Resort Hotel, Inc., No. 8:15-cv-21-8 (M.D. Fla. 1/20/2017). Mr. Cohan does stay busy.

At least one news report suggests Mr. Cohan is motivated to sue by greedy lawyers. See a local Florida news station news report. But, the most the plaintiff can sue for is to rectify the barrier and for attorney’s fees. I do not know what Mr, Cohan’s lawyers are seeking as attorney’s fees, but the sooner the defendant settles, the lower the amount of attorney’s fees.

Well, I described the argument as a silly one, but it was not too silly for the Texas Supreme Court. In the case of Redus v. UIW, the Supreme Court ruled that the law enforcement department of a private university is a governmental body for purposes of qualified immunity. With qualified immunity, the law enforcement officers enjoy greater protection from lawsuits. As I indicated then, the Texas Supreme Court is remarkably friendly to defendants in suits for money damages. I previously wrote about the appeal here.

The court reasoned that charter schools are afforded governmental immunity. Although, charter schools are also expressly provided with governmental immunity by the statute creating charter schools. The court then pointed to the various functions performed by campus police officers which equate to the same functions performed by true governmental police officers.

The court notes that the Texas Tort Claims Act provides that to receive governmental immunity, an entity must be an “institution, agency or organ of government” and derive its status and authority as such from laws passed by the Legislature. The court then asks if the UIW campus police department is part of a larger governmental system. The court pointed to the statutory scheme that makes private charter schools part of the broader public school system in Texas. The statutory scheme that created charter schools expressly provides governmnental immunity to those schools. The Legislature did not say anything similar when it allowed private universities to establish campus police departments. But, said the court, the Legislature allowed private universities to use the same resources true governmental entities use to enforce laws: commissioned peace officers. The court concluded that the UIW police department satisfies the requirements of a governmental entity. It left to the court of appeals to determine the final question, whether sovereign immunity would apply to the lawsuit regarding the death of Cameron Redus in 2013. See the decision here. But, if UIW is now an “organ” of government, that result is essentially decided by this opinion.

No dissent was filed, so we assume the decision was unanimous. The court went to great lengths to reach its intended aim, limiting the lawsuit against UIW. No law gives UIW its status as an organ of government. The reasoning tends to suggest a result oriented decision. The court’s opinion would apparently not apply to private security guards, who are not commissioned peace officers. But, otherwise, it appears that any entity that hires commissioned peace officers for security may become a governmental entity for purposes of the Texas Tort Claims Act. That is a remarkable result. For example, under this reasoning, a celebrity passing through Texas who hires a commissioned peace officer for security would probably achieve governmental entity protections just like UIW.

I do not know whether I should laugh or cry as a lawyer at the latest antics of the Trump administration. They have been litigating the Moslem travel ban for some time. Last week, the Fourth Circuit Court of Appeals in Virginia heard oral arguments about the ban. One of the key issues is whether the ban intentionally targets a religion, the Muslim religion. The judges asked several pointed questions about past statements by Pres. Trump advocating a Moslem ban. The DOJ lawyers argued the Executive Order was not intended to apply to Muslims in particular. The judges even noted that on Pres. Trump’s campaign website, he still advocates a Moslem immigration ban.

Then, on Monday, a reporter asked Sean Spicer at a press briefing if the Trump Pence website still included the language advocating a ban on Moslem immigration. Mr. Spicer said he was not aware of any such language on the website. There was at the time a link that said, “DONALD J. TRUMP STATEMENT ON PREVENTING MUSLIM IMMIGRATION.” Within minutes of that question to Mr. Spicer, the link and the language disappeared. It became a blank URL. Within minutes. See CBS news report.

As a lawyer, I do not know whether I should laugh or cry. Fudging with evidence within minutes of a question like that almost guarantees a conclusion of guilt. It just highlights a web page that might have been ignored for a little longer. How can the administration claim in court that the ban is secular when it has language targeting Muslims on its website? If it has language targeting Muslims, how can it seriously bring attention to that language by making it go away so suddenly? From the Administration’s perspective, this is no way to manage a lawsuit.

When you look at a termination, you start with the reasons provided by the employer. In Donald Trump’s letter to former Director Comey, he starts by stating the Attorney General recommended that the Director be replaced. He thanks him for telling him three times that he was not the subject of the Russia investigation. See Trump’s letter here. Then,w e learn the Attorney General provided a memo to Pres. Trump upon which the President supposedly based his decision to terminate. That Memo describes Dir. Comey’s conducts regarding Hillary Clinton emails last Summer and last October.

Those two documents become the employer’s articulated response. Those are the reasons offered by the employer for the termination. As in any discrimination case, we then ask do those reasons make sense? In this case, not really. Pres. Trump has praised Dir. Comey many times for making public the investigation into Ms. Clinton’s emails. It strains credulity to believe he now sees those actions as performance deficiencies.

In employment cases, circumstantial science is admissible, If the employer has violated its normal procedures, that can help show an improper termination. Many, perhaps most cabinet level officials are asked to resign. It is actually quite rare to “fire” a cabinet level official. It is more common to ask an official to resign. Too, the fact that Mr. Comey was not notified prior to his dismissal arouses concern. If this was a performance based decision, why was he not notified first? If the employer truly wants improvement, why would it not notify the employee of performance issues? Why was a replacement not discussed and perhaps even vetted with Congress first?

So, the administration has not followed normal protocol in firing a cabinet level official in two ways, not personally discussing the termination with the official beforehand and not allowing him to resign. The White Hosue has not followed basic White House protocol. The employer could then argue that this is not a typical White House. There might be some merit to that argument. But, few employers are willing to state publicly that it violated protocol because it is not competent. Most employers just will not go there.

Then, we come to the mention of the Russia investigation in the letter actually firing Mr. Comey. That suggests the true reason was the Russian investigation. So, in the end, this would be a case in which the judge is not likely to dismiss or grant a motion for summary judgment. So, yes, this would be a case which most plaintiff lawyers would accept.

 

Not many people realize that to receive unemployment benefits, an applicant must be willing and able to work. That is why a person receiving unemployment must certify each week that s/he is looking for work. And, what if a worker is off on FMLA leave? Could that person receive unemployment benefits? The court in Texas Workforce Commission v. Wichita County, Texas, 2016 WL 7157247 (Tex. App. Ft. Worth 2016) said no. It might seem obvious that if someone is out on FMLA leave, then that person must be too ill to work.

But, in this case, the employee, Julia White, suffered from anxiety and depression. She went out on sick leave. When that leave ran out, her employer placed her on unpaid leave. It continued to pay for her medical benefits. At a meeting, the County decided it could not offer a job that would accommodate her impairment. So, the parties agreed her employment would cease after the FMLA period of 12 weeks ended. But, Ms. White applied for unemployment benefits before the 12 weeks elapsed. She testified, apparently without benefit of a lawyer that she was not sure what her status was during those 12 weeks. She said her job ended due to illness. TWC allowed her to receive benefits. It billed the County’s account. Wichita County filed a petition seeking administrative decision, contesting the award of benefits.

On appeal, the court found the employee was out on FMLA leave and could not, therefore, receive unemployment benefits. Tex.Lab.C. Sec. 207.002-.003 provides that unemployment benefits are available to persons who are unemployed. An unemployed person is defined as a person who is not performing services for another for a wage. But, Tex.Lab.C. Sec. 207.021(a) provides that a person receiving benefits must be able to work and is actively pursuing employment. Instead of addressing the question regarding when Ms. White’s employment ended, the court simply found that during the period of FMLA leave, she was not eligible rot unemployment benefits. See the decision here.

Our judicial system requires juries to review only evidence produced at trial. That is the system we have had since before 1776. A juror who brings in a medical dictionary to better understand medical testimony would violate the oath they take as jurors. The theory is that a jury should review only the evidence that has passed judicial scrutiny. We have an adversarial system that relies on two different parties battling it out in court. If a juror does her own research, that turns everything upside down.

So, what happens when a juror looks something up on the internet? Everyone, well, almost everyone carries a little computer with him –  a cell phone. It has become second nature to some folks to pull out the phone and look something up. But, that is all wrong for the jury. A jury cannot review or consider something that was not introduced as evidence during the trial. Courts have been wrestling with this phenomenon. In U.S. v. Zimny, 846 F.3d 458 (1st Cir. 2017), a juror did violate her oath as a juror.

Mark Zimny operated a business known as Ivy Admit. The business helped Chinese and South Korean students get into prestigious American boarding schools in return for the parents making surreptitious donations to the school. The donations would be processed through Ivy Admit. But, Mr. Zimny kept much of the donations. So, he was charged and his trial attracted the attention of a blog post. Several hundred comments were made to the blog. People were very upset with Mr. Zimney. The comments were very angry and contained threats against the defendant. One of the comments was apparently made by a juror. Juror No.  8 said when she left the jury, half of the jury supported conviction, while half favored acquittal. Juror No. 8 had left the jury before trial ended for medical reasons. The judge called her back and asked her about the comments. She assured the judge she had visited the blog only after she was removed from the jury. A few days later, another purported juror made a comment on the blog. That comment referred to Juror No. 8.

The judge did not ask the other jurors if they had been affected or even if they were aware of Juror No. 8’s visits to the blog during the trial. Defendant Zimney appealed the court’s failure to interview other members of the jury. The appellate court found that Zimney did not suggest questions to the court to ask Juror No. 8 about whether she was affected by the comments on the blog. Not having asked to pose such questions, the defendant cannot appeal the court’s failure to ask such questions.

But, regarding the other juror, the court found some concern. The second juror who commented on the blog post remarked that Juror No. 8 was “spouting about” some things she had seen on the blog, at the trial. That comment indicated that Juror No. 8 had indeed discussed with jurors what she had seen on the blog. The court of appeals felt this would “inflame” the passions of the jury. The First Circuit panel concluded that the Defendant’s concern was legitimate. There was a colorable claim that Juror No. 8 saw things on the blog post and shared them with other members of the jury.

The court recognized the possibility that in the future, some defendant could prolong a trial by making inflammatory comments online. That is, a friend of an accused could help him avoid trial by making inflammatory comments online in the hopes of contaminating the jury. But, in the circumstances of this case, the district court should have investigated the actions of Juror No. 8 and of the second juror more closely. Zimney, at p. 468.

Mr. Zimney urged the appellate court to overturn his conviction and order a new trial. But, the higher court would not go there. Instead, the panel ordered the district court to investigate the actions of the jurors and determine if those actions were prejudicial to the jury. See decision here. The court of appeals retained jurisdiction over the remaining points of appeal.

No one wants to overturn a jury verdict. But, what do you do if the jury was contaminated by outside influence? Way back when, in 1807, Aaron Burr was tried for treason. In the early days of the Republic, that was the OJ Simpson case of the era. The Burr prosecution received overwhelming media attention. The justices had to work mightily to find jurors not contaminated by media accounts. Justice Marshall presided over the trial. He wrote in the opinion that an impartial jury must be seated. But, what does that mean? It means a jury that not only states it will abide by the evidence, but one that truly means it. Justice Marshall said a man (they were all men at the time) must come to jury duty “with a perfect freedom from previous impressions.” U.S. v. Burr, 25 F.Cas. 49, 50 (No. 14,692g) (CC Va. 1807). That is high burden, but one that is required by our system of justice.

 

Most lawyers avoid discovery sanctions like the plague. Yet, some parties accept the risk. One recent sanctions award amounted to $2.7 million. In a lawsuit entitled Goodyear Tire & Rubber Co. v. Haeger, the U.S. Supreme Court heard an appeal regarding that very lag sanction award. Justice Elena Kagan ruled in a unanimous opinion that the amount was too large. It exceeds the fees incurred by the wronged party due to Goodyear’s discovery abuse.

The parties had reached an agreement to settle the lawsuit when the plaintiffs learned that Goodyear had failed to produce the results of a tire test. The Arizona judge awarded sanctions based on the legal fees incurred since the date when the defendant failed to produce the requested information. The Supreme Court court, however, said that was error. The amount of the fees should be based on fees incurred due to the discovery abuse. The higher court required a “But for” standard that looks at the expenses incurred due to the discovery abuse. The court asks what would have been incurred but for the discovery abuse.

The plaintiffs responded that $2 million in attorney fees were incurred after the abuse was discovered. The parties would have settled otherwise, they argued. But, the Supreme Court noted the district court awarded $2 million in fees if the $2.7 million was overturned, indicating the district court did not believe the $2.7 million was directly due to the discovery abuse. The federal district court would have to reconsider its $2 million contingent award in night of the Supreme Court ruling. See ABA Bar Journal report.