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.

Some employers try to avoid the overtime requirements of the Fair Labor Standards Act by claiming an hourly employee is a manager or simply that the employee is paid on a salary basis. In Kim v. Umami Grill & Sushi, LLC, No. H-18-850, 2019 U.S. List. LEXIS 31054 (S.D. Tex. 2/27/2019), the employer moved moved for summary judgment saying the plaintiff was a chef, and, therefore, an executive or professional who was paid on a salary basis. Umami also claimed the chef was management.

Kim, however, points out that according to several pay stubs, he was often paid significantly below his alleged salary amount. The employer was deducting pay for days which the chef missed for illness. The court noted the deductions. The judge said that deductions for a half day are permitted for absences. But, the employer was deducting full days when the chef was absent. There are exceptions under the FLSA for situations in which full day deductions are permitted, but the employer offered no such explanation. So, the court said there were genuine issues of material fact and summary judgment, was not, therefore, appropriate. See the decision here.

Clients sometimes come to my office, convinced they have an unassailable lawsuit. They cannot lose. They are certain they have the best evidence. But, in litigation, nothing is ever certain. In the case of Knepper v. Ogletree Deakins, Nash. Smoak & Stewart, P.C., No. 19-CV-0060 (C.D. Calif.), much has gone wrong. Dawn Knepper, who practiced here in San Antonio before she moved to Orange County, California, sued her employer, Ogletree Deakins for gender bias. The Plaintiff alleged violations of the Equal pay Act. She filed her suit in 2018.

In March, 2019, the California court ruled that Ms. Knepper must pursue her claims in arbitration. She had apparently not opted out of a firm-wide arbitration agreement. Ms. Knepper testified that she did not recall any such email asking her to either sign the arbitration agreement or to opt out. The former employer presented evidence indicating that she did receive the emails sent to all Ogletree Deakins employees. The 2016 emails was sent to all staff. In 2014, the law firm had started a similar arbitration program for equity shareholders. Of course, the firm described the program as an “Open Door Policy and Mutual Arbitration Agreement.”

There was evidence of an email from Ms. Knepper in 2016 saying she would turn in her form tomorrow. But, in 2019, she had no recollection of that email. Dawn Knepper was intended to be the class representative for a class action lawsuit against the Ogletree law firm.

The lawsuit was originally filed in the Northern District of California. But, based on those arbitration agreements, the employer sought a transfer to the Central District of California. The Plaintiff then tried to amend the claims, so as to strengthen the venue in northern California. At that point, Ogletree said if Knepper has a binding arbitral agreement, then amendment would be futile. See Bloomberg news report.

Later, the plaintiff tried to add three other female plaintiffs, based in Colorado and Texas. But, on July 30, the Central District dismiss those claims with prejudice and allowed the three women to withdraw their intervention in the Knepper lawsuit. Those three women then filed a separate class action lawsuit in California state district court in January, 2019. See ABA Bar Journal news report.

Yes, amigos, lawsuits can go wrong in a variety of ways. And, these were the experts. Dawn Knepper, like the Ogletree form itself, are employment law specialists. One notable allegation in the new lawsuit:

“On information and belief, when a female shareholder asked the Managing Shareholder of the Firm, Defendant Matt Keen, about the Firm’s response to gender discrimination complaints made by female employees, he explained: “we’re not real good at practicing what we preach.”

If true, that does not bode well for the employer.

In the military, it is has always ben understood that discipline is critical. But, what does that mean in actual practice? Proper discipline starts with the small things. Commanders eat last. Officers do not leave the bivouac area to go into town for a shower and a nice meal. Those small things matter. They create a climate in which the rules are observed and in which enlisted soldiers see value in following the rules.

When I deployed to Iraq in 2005, we replaced a civil affairs battalion headquarters that was completely ineffective. The staff members had all sorts of ongoing feuds among themselves. They had so many IG investigations, so many EEO complaints filed. For the two weeks we had to spend with those men and women, I found them to be completely unprofessional and petty. Not surprisingly, they were said to be largely absent from the civil affairs battlefield in their corner of Iraq during their time in country. A critical military asset was absent for 12 months.

So, it is perhaps not surprising that the SEAL Team which admitted it posed with dead Taliban, a clear violation of the rules of war, contineus to have issues. Eddie Gallagher was acquitted of the charge of killing a wounded Taliban prisoner, but he was found guilty of using with dead Taliban. He could hardly be acquitted of that charge, since the pictures were admitted as evidence.

And, now that same SEAL Team was kicked out of Iraq due to drinking and possible rape at Fourth of July party. Drinking alchohol is forbidden in Iraq. We show respect for the Moslem faith by not drinking alcohol. SEAL Team 7, it was revealed at Gallagher’s trial, also drank in country. Other Team members posed with dead Taliban. These are clear violations of long-time general orders.  See Navy Times report.

Command relationships in Special Operations forces are complicated. They tend to operate on a first-name basis, despite different ranks. But, we must wonder if allowing alcohol, allowing picture of dead Taliban will not lead to more serious allegations, such as rape.

SEAL Team 7 was sent home from Iraq. That is a big deal. Being redeployed means the leadership has lost all faith in your abilities. You have become so unreliable that you are seen as more trouble than benefit to the war effort.

Yet, Special Operations teams are absolutely critical in a counter-insurgencies, like the war in Iraq. The Navy sent them home, because the team would not cooperate in an investigation of the rape and the drinking. It is a pretty flagrant breach of discipline, when sailors will not cooperate with an NCIS investigation. Military discipline can slip away so easily. I fully support killing Taliban fighters. But, mugging in front of the camera: officers and Non-Commissioned officers saw that and looked the other way. It is an appalling lack of discipline.