I served in the Iraq war 2005 to 2006. My job was to approve (or not) reconstruction projects. My post was at division level. We had some $90 million dollars each fiscal year to spend on projects inside Iraq. There were various civil affairs constraints on how to spend that money. It was my job to make sure these reconstruction projects adhered to civil affairs doctrine. I go outside the wire and  visit each of our four brigades and look at one project. Each month, I visited a Brigade headquarters to go look at one project.

In Mosul, the Civl Affairs Team had to rely on an Infantry platoon for bodies sufficient to man a patrol. As we went out to look at one project, the Infantry guys were also going to deliver school supplies to a nearby school. We ended up at an all-girls school. The teachers and all the students were female. But, this being Iraq, there was one adult male to act as chaperone. His only job, as we understood it later, was to help with small jobs and to chaperone the women when they encounter men.

The chaperone was a pain in the neck. There were some dozen officers and Non-Commissioned Officers taking school supplies to various classrooms. Going here and going there. The small school was filled with Americans in uniform and helmet handing out boxes of school supplies. The male chaperone followed every single person like a puppy dog. Later, we learned the reason. He wanted his share of the loot. To us, it was just school supplies. But, to him, part of his pay was some portion of whatever the school received.

We, as the Army guys, knew none of this during the visit. Only in leaving did the interpreter explain to us what had occurred. As the visit was concluding and we were saying good bye to these wonderful teachers and sweet, polite kids, the chaperone asked the interpreter for his share.

One thing about a counter-insurgency, you do not make unnecessary enemies. We had enough people wanting to kill us. We did not need more. The Interpreter knew this. He had worked with this Infantry Major many times before. The interpreter did mot want to offend the chaperone, but neither did he want to give him anything. Not to mention all the school supplies were handed out, already. Without consulting with the Infantry major in charge, the interpreter knew what to do. He told the chaperone he would get something when we come back. There would be no return trip. The interpreter knew that. But, he found a polite way to say no.

In Iraq and Afghanistan, no one messed with our interpreters. In countless ways, they saved many U.S. Army lives. That experience makes it hard to watch Pres. Trump say the Kurds are not worth our support and that we owe them nothing. I did not work with the Syrian Kurds, but  did work indirectly with Kurds in northern Iraq. The Iraqi Kurds were wonderful to work with. They had many Western values. I am very doubtful the Syrian Kurds are not worth our support. I expect they were, as many Special Forces soldiers have said, exceptional allies who deserve serve our support.

In what industry are both white collar and blue collar managers and leaders trained each time they are promoted? In the military. In the military services, we have to lead and manage persons from all sorts of backgrounds. So, for decades, the U.S. military has required attendance and graduation from various schools for promotion to the next rank. As a young lieutenant in the Infantry Officer Basic Course, we role played leaders and rank and file soldiers in various counseling situations. Upon graduation, we were not licensed counselors, but we knew enough to listen to our soldiers and understand how to help them find solutions to problems, such as divorce, child rearing and substance abuse. As we often say in the Army, “In the Army, we are in the people business.” That is our way of explaining that we focus on our most important inventory, the men and women who make up our forces.

Yet, a recent study by the Duke University Fuqua School of Business shows many employers in the U.S. see military veterans as a poor fit for emotional social jobs. In one study, conducted in the restaurant industry, employers rated military veterans as much more suitable for low feeling positions, such as dish washers and prep cooks than for servers. See Army Times report here.

That is ironic since every Sergeant has graduated from at least one NCO leadership school which typically last 4-8 weeks, in addition to the experience of leading and managing men and women in garrison and in combat.

I could write a book on the combat experience. But, I can say that there is no greater pressure cooker than a combat zone. In a war zone, every decision, no matter how trivial, presents life or death consequences. Stress is never greater. Leadership ability, including the simple ability to work well with others, is at a premium. I wondered, when I was in Iraq sometimes, about the Morale, Welfare, Recreation Centers. At the MWR center, a soldier could check out a movie or read a book. Would it set someone off if their favorite move was not available? In a war zone, everyone needs to be performing his/her job at top efficiency.

U.S. employers clearly do not appreciate the sort of training we have had in the military. In my lawsuits, I often encounter businesses that provide no training for its mid-level managers. None. I find that simply astounding. Don’t you know that a young Sergeant with a couple of tours in Iraq could handle a busy night at a popular restaurant?

The President’s counsel, Pat Cipollone, sent a letter to the House of Representatives objecting to the impeachment inquiry. It is a five page letter which recounts the many perceived problems with the House investigation. It is signed by Pat Cipollone as counsel to Pres. Trump. But, it appears to have also been edited heavily by the client. In every lawsuit, the client wants to write a letter like this. It contains over-the-top language like this: “Given that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to participate in it.” See The White House letter here.

The letter does point to perceived problems and points to caselaw for authority. For example, the letter points to the decision in Watkins v. United States, 354 US 178, 188 (1957), a decision by Earl Warren regarding the House Committee on Un-American Activities. It is a very well-written decision which traces the history of Congressional contempt to Parliaments during  the anti-Catholic crusades in 1700 England. The letter insists the House conform to recognized standards of due process.

What was the Watkins decision about? The case concerned a witness, Mr. Watkins, who appeared in front of the Un-American Committee. The witness refused to answer certain questions. The Supreme Court decision found the refusal to answer lacked adequate basis for contempt. The witness refused to answer questions about any persons who had formerly belonged to the Communist party, but who had left the party. He was willing to answer and did answer questions about his involvement with the Communist party. He also answered questions about persons who were still involved with the Communist party. But, he refused to answer questions about persons who had once been party members, but had quit. For that refusal, the committee and the House referred him to the U.S. Attorney for prosecution for contempt of Congress. In Chief  Justice Warren’s decision, the Supreme Court found that contempt failed to conform to due process requirements. See the Watkins decision here.

So, yes, the Watkins decision requires Congressional investigations to conform to the Due Process clause of the Fifth Amendment. The decision mentions these particular requirement for due process: “Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged.” Watkins, 354 US at 188. Mr. Cipollone’s letter correctly nots the decision recounts the due process requirements of House investigations.

But, the problem here is that the White House has flat refused to allow witnesses to appear. It is difficult to be compelled to give testimony against oneself if one is not actually testifying. So, claiming your witnesses are being abused rings hollow when your witnesses do not actually appear.

Mr. Cipollone’s letter also notes that an accused has the right to call his/her own witnesses, present evidence and respond to one’s accuser. That is indeed fundamental due process. But, the problem is that so far, this is still just an investigation. There is no right to present evidence to an investigator or to an investigative body. Presentation of evidence and witnesses occurs at the trial stage, not during the investigatory stage. Mr. Cipollone, an experienced trial lawyer, doubtless knows this.

As simple legal reasoning, Mr. Cipollone’s letter makes no sense. And, that is what happens when a lawyer allows the client to edit a letter.

The Intelligence Community Whistleblower Protection Act of 1998 was passed to cover persons in the intelligence community, as the name suggests.  It applies to the 17 various federal intelligence agencies.  It defines an “urgent” concern as one that represents a “serious or flagrant problem, abuse, violation of law or executive order, or deficiency relating to the funding, administration, or operations of an intelligence activity involving classified information. It does not apply to differenses of opnion about policy matters. See Congressional Research Service information paper here. The Act is codified in three statutes: 5 U.S.C. App. §8H, which applies to Inspector Generals (IGs) for Intelligence Community elements generally; 50 U.S.C. §3517 which applies to the CIA IG; and 50 U.S.C. §3033 which is specific to the Intelligence Community IG.

The Ukraine whistleblower submitted a complaint which the IG found to be urgent and credible. Certainly, the President’s actions in attempting to trade a personal favor for military aid violates various national security laws and regulations. As a mid-level employee, if he were a mid-level manager, he would lose his security clearance for that violation.

The Act also applies to acts of reprisal or threats of reprisal. The Act specifically provides that the Inspector General of the Intelligence Community may not disclose the identity of a whistleblower without that person’s consent. 50 U.S.C. Sec. 3033(g)(3)(A). This is a protection unique among the various federal whistleblower statutes.

The President attacks the report as based on second-hand information. That is not accurate. The report is based on first-hand and second-hand information. Even so, no whistleblower statute, and there are some 20 different federal whistleblower statutes, requires first-hand information. As Sen. Chuck Grassley said, if a whistleblower complaint is based on second-hand information, then more leg work is required and the whistleblower needs to be sure of his/her information. But, there is no specific statutory requirement that a whistleblower complaint be based on first-hand information.

Pres. Trump has again insisted he should know the identity of the Ukraine whistleblower. He says he wants to talk to him and ask questions. See The Hill report. The President says the whistleblower is a “fraud” who was given false information by others. Certainly, these remarks constitute evidence of an intention to take reprisal against the whistleblower. This is the reaction of most employers to a whistleblower report. Aren’t all employers of a whistleblower convinced their actions were nice and warm, as the President claims? I have yet to meet a whistleblower who did not endure vicious blowback for even questioning his/her employer’s actions.

We can, it seems, count on the President to reflect our worse natures……..

There are various whistle blower statutes that apply to federal and state employees. The federal intelligence community has a unique statute. A whsitle blower in the intelligence community can make an anonymous complaint. A whistle blower in the intelligence community has complaiend that Pres. Trump has committed certain acts. Those acts, if committed by an average mid-level manager type federal worker would have resulted in the loss of his security clearance. One of the requirements in the security clearance world is that if you see a person committing some act which imperils his security clearance, you as a co-worker must report that breach. That person who has committed some unlawful act becomes subject to manipulation by a hostile government. The President, in offering a quid pro quo to Mr. Zelensky, engaged in behavior which is unlawful or potentially unlawful. A hostile foreign power could use that quid pro quo against the President. If he were a mid-level manager, he would surely lose his security clearance for that act.

In the Army, it occurs rarely, but it does occur that an Intelligence officer or NCO will report some perceived breach of security protocol. The whistle blower who has complained about Pres. Trump has done what any person with a security clearance is required to do.

But, the President does not like that. He has suggested publicly that the whistle blower is “like a spy” and should suffer the consequences of a spy. He has threatened “big consequences” to any person who provided information to the whistle blower. That threat alone violates the pertinent whistle blower statute.

The President has also insisted he has a right to confront his accuser. No, he does not. The statute that applies to the federal intelligence community was passed soon after the Watergate scandal in the 1970’s. The point of the statute is to provide a way for members of the intelligence community to voice concerns without exposing himself to reprisal.

David Gergen, counselor to Presidents Nixon, Reagan and Clinton, has pointed out that Pres. Trump has placed the well-being of the whistle blower in some danger. Some crazy person could over-react to Pres. Trump’s threats. Too, as Mr. Gergen mentions, it is just nuts to spout off like this. See CNN news report here.

Regardless of the President’s instincts, we are a nation of laws. The law currently in place prevents him from confronting his accuser, for the near-term.  . . . . So long as we remain a nation of laws.

Even on Pres. Nixon’s worst day, he did not threaten Alexander Butterfield, who revealed the existence of the taping system in the Oval Office, or John Dean, who revealed many illegal activities by the Nixon administration. Let us hope we remain a nation of laws.

The Western District Court recently awarded attorney’s fees and costs of court in the Johnson v. Southwest Research Institute, No. 15-CV-297, matter. I previously wrote about that trial here and here. The judge awarded $535,609 in attorney’s fees and costs of the lawsuit. Included in that attorney fee figure are attorney fees ranging from $125 to $585 per hour, for five lawyers. As I mentioned perviously, the jury already awarded $550,914 in lost pay and benefits and emotional suffering type damages. The Judge previously awarded $45,000 in lost pay in the future, and $74,000 in past interest.

Remarkably, the defense again tried to re-argue the evidence at trial. The judge, however, pointed to substantial evidence supporting the plaintiff’s claims. The judge seemed annoyed that the Defendant was once again re-urging arguments already rejected three times previously.

And, all this started because one woman complained about discrimination. All the employer had to do was listen to her complaint. But, one has to add that during the litigation, SWRI fussed about things it did not need to oppose. We have to wonder how much the trial and the judge were affected by needless fussing over security clearances.

The U.S. Congress passed the Uniform Services Employment and Reemployment Rights Act in 1994. Congress based the act on the “necessary and proper” clause of Article I, Section 8 of the U.S. Constitution. That means, said the Corpus Christi court of appeals, that the act did not waive sovereign immunity of the states. See Texas Dept. of Public Safety v. Torres, No. 17-000659 (Tex.App. Corpus Christi 11/20/2018). All governments, state and federal, start with sovereign immunity. Governments start from a default position that they cannot be sued. Over the couple hundred years of our existence, various state and federal laws have been passed which expressly waive sovereign immunity. That is, those statutes expressly provided the government could be sued in certain circumstances. See the decision by the Corpus Christi court of appeals here.

But, according to various courts, including the Corpus Christi court of appeals, the USERRA did not waive state law immunity. That means Leroy Torres’ lawsuit was dismissed before the merits of his lawsuit could even be addressed. See the San Antonio Express News report about his appeal here. Mr. Torres suffered discrimination by his employer, the Department of Public Safety, when he returned from a deployment to Iraq. He lived near the burn pits and his health suffered. Upon his return, he asked for an accommodation. DPS told him no. He was forced to resign early, before he could qualify for retirement. He filed suit in state court under the USERRA. That suit was dismissed.

The Attorney General’s Office defended the lawsuit. The AG filed a motion to dismiss. Ken Paxton’s office did not have to file that motion. On appeal, the AG has been arguing that there is a state law equivalent statute. Chap. 437 of the Texas Government Code allows members of the military to sue for discrimination based on membership in the military. But, the time frame for filing that suit is very brief, only 60 days. Too, the state law is simply not known, at all. I practice employment law and have served in the military for 28 years. I have never heard of this state law before. Some states, such as Tennessee, have passed laws which expressly state they are waiving state law immunity for the USERRA act. If Texas wants to support veterans, it should do the same.

Sixty days is remarkably short. Victims of discrimination often suffer from delibitating depression that prevents a quick response. It is not realistic to expect many victims of discrimination to file suit within 60 days of a termination.

Mr. Torres has appealed his case to the Texas Supreme Court. But, the Texas Supreme Court is notoriously anti-plaintiff. At least one plaintiff has already sought a writ of certiorari from the U.S. Supreme Court regarding this issue and was turned down. Some ten percent of state workers serve in the Reserve forces, and another ten percent serve in local governments. I know from my own experience in the Reserves and National Guard that a very large percentage of Reservists and Guardsmen are employees of state and local governments. These court rulings by the Corpus Christi court of appeals and others virtually guarantee that state and local government employees will have no recourse when they suffer discrimination. Texas should do what Tennessee did, pass a law that expressly waives state immunity for the USERRA act.

And, really, the AG does not need to file motions to dismiss based on sovereign immunity. Many persons say they support veterans. Some of those folks actually mean it.

Advertising slogans can be a precious thing. Attorney Melissa A. Wilson has sued San Antonio attorney Heather C. Tessmer in federal court for the use of the slogan, “Ever Argue with a Woman?” Ms. Wilson has used a similar slogan. “Ever Argued with a Woman?” in Florida. Ms. Wilson says she has used the slogan San Antonio since 2007. Ms. Wilson received a trademark registration for the slogan in 2014. Ms. Tessmer, however, says she has used the slogan since 2012. State bar records show the Texas bar issued a registration certificate to Tessmer in 2018.

The U.S. Trademark Office records show it initially issued a registration for “Argue” in 2009 to a third law firm in Buffalo, New York. In 2012, Wilson asked the Trademark office to rescind that registration. She later reached a settlement with the Buffalo law firm, to allow Wilson to use the phrase. But, that registration was canceled in 2015.

Ms. Tessmer appears to be relying on the defense that she has rights to use the phrase in Texas. Since, she started using the phrase without notice that Wilson was using a similar phrase. But, that may not fly. I am no patent lawyer, but am very doubtful that lack of notice for trademark infringement makes a difference. See San Antonio Express News report here.

Most, perhaps all, new clients hold an unrealistic view of juries. The movies and television generally depict jurors as somber, thoughtful persons listening intently. The media never depicts what occurs inside the jury room, but we all assume they remain thoughtful, deliberative inside the jury room.

No, they do not. . . . Well, sure, some do. But, many do not. There are no surveys or studies about the internal dymanics, but we know many juries violate accepted practices. We see this in the recent trial at the Bexar County Courthouse. World Car Hyundai owner, Ahmad Zabihian, sued Hyuandai in 2013 alleging the car maker violated an agreement to let him open the next Hyundai dealership in the area. Millions of dollars were at stake. The trial lasted two weeks. The pre-trial litigation lasted years. The trial ended on a Thursday.

The jury deliberated about one hour Thursday afternoon. They returned Friday, just before a three day weekend. According to one juror, the vote was generally 60-40 in favor of the plaintiff. But, some folks were in a hurry to get out of there. If the jury finds in favor of the plaintiff. that takes longer. The jury must then answer a series of questions and arrive at specific numbers for damages. Each question would require a vote and extended discussion. But if the jury finds for the defendant, the entity being sued, then there is just one vote and one discussion.

According to the one unnamed  juror, some folks on the jury wanted them to decide the case within that 30 minutes on Thursday. That struck the one juror as absurd given the complicated issues.

On Friday, one jury member had to leave by 12 pm. They discussed resuming next week. But, other jurors had conflicts. Trying to wrap it up before 12, some jurors suggested finding in favor of Mr. Zabihian, but giving him no damages. No, said others, that accomplishes nothing. They might as well as vote for Hyundai and get it over with. And, that is what they did. They voted for the car maker, because that was the fastest way to get out of the court house and go home.

But, after the trial, after everyone had been released to go home, three jurors approached the judge, Rosie Alvarado, and reported what had occurred. The three jurors said they felt pressured to agree to a vote. Judge Alvarado said she thought this was jury misconduct, but was not sure. But, it certainly is. The jury members were clearly trading votes. Trading votes is one clear action jurors cannot take. In the trial business, the truth is most of us prefer not to look too closely at what juries do inside the jury room. That room is considered almost sacrosanct. Yet, most of us also know what truly goes on. See San Antonio Express-News report here.

As I tell my clients, it is one thing to file suit and risk your future. But, to risk your future on jurors who just do not want to be there raises the risk to a much higher level. And, you notice that at the end, the three jurors asked Judge Alvarado if their complaint meant all 12 jurors would have to come back again for jury duty. Even the three “good” jurors were concerned they might have to do jury duty, again. Her answer was no.

A recent jury in the Western District found Southwest Research Institute, one of the largest employers in San Antonio, guilty of retaliating against a female worker who complained about discrimination. The jury awarded her $410,000. I previously wrote about that jury result here. The jury awarded $335,624 in lost pay and $260,000 in compensatory (i.e., emotional suffering types) damages. The amount of lost pay was then reduced by $185,000 because, said the jury, Ms. Johnson did not adequately look for and maintain employment. The plaintiff then requested interest on these amounts, lost pay in the future, and to seek a rescission of issues regarding the plaintiff’s security clearance.

In response, the Western District awarded $74,000 in interest. It found that reinstatement was not feasible. So, it awarded $45,000 in lost future pay. It also ordered SWRI to send a letter to the government agency that processes security clearances. The letter, said the court, must withdraw its earlier report about Ms. Johnson’s termination, and instead, state that SWRI fired Ms. Johnson because she complained about sex discrimination. With the caps on compensatory damages, the total award to Ms. Johnson then totaled $300,000 in compensatory damages, $55,828 in interest on the back pay, and $45,000 in lost future pay. See Texas Public Radio report here.

Remarkably, the employer opposed the request to withdraw or countermand in some way its previous negative report regarding Ms. Johnson’s security clearance.

Courts often refuse to award lost future pay. This court evidently thought the discrimination endured by Ms. Johnson was egregious. Still to come is the plaintiff lawyer’s application for an award of attorney fees. The amount owed will only increase.