A frequent issue for employees in today’s workplaces is drug testing. All too often the drug testing laboratory makes a mistake. The lab mistakenly finds Joe Worker tested positive for cocaine. But, it is a false positive. What does Joe do? The Texas Supreme Court re-affirmed what it said in prior cases: Joe can do nothing.

In Houston Area Safety Council v. Mendez, 671 S.W. 3d 580 (Tex. 2023), Guillermo Mendez received a false positive for cocaine. Mendez was a pipefitter. He had been tested many times in his previous 25 years. He was employed by Valero Ardmore Refinery. Valero referred him to Houston Area Safety Council for the drug test. HASC then sent his sample to Psychemedics for testing. Psychemedics produced a positive result. A second sample was then sent a different collection entity, DISA Global Solutions. The second sample came back negative. Mendez then sent a third sample to a third lab at his own expense, which also came back negative.

Mendez was required to complete a substance abuse course, which he did. But, Valero still refused to take him back. His actual employer, Turnaround Welding then fired him. Mendez won in front of the court of appeals. The appellate court found that the laboratory owed a duty of reasonable care to Mr. Mendez. On appeal to the Texas Supreme Court, however, the higher court disagreed,

The Texas Supreme Court noted that lower courts around the country have split whether an employer owes a common law duty to its employees. Only five state supreme courts have found such a duty. The court noted that the laboratory assured the court that the risk of an error was so low as to be essentially “non-existent.”

Foreseeability

The court acknowledged that the court of appeals found that the labs were in the best position to safeguard the drug tests. Thus, they should be held responsible. But, the Supreme Court disagreed, finding that the risk of harm lay with the employer. It was the employer who decided whether to terminate a worker due to a false positive. The lab has no control over what the employer does. If labs were held responsible, they would or could transfer that responsibility to employers via indemnity agreements.

So, the Texas Supreme Court found no one was responsible for the employee’s false positive. But, at his apparent age, this was a life-defining moment. Anyone’s career would be placed in great jeopardy due to a positive drug test. Yet, the Supreme Court engaged in rationalization and sophistry. It found the lab was virtually never at fault. Then, the court found no causal relationship between the false positive and the employer’s action. The court said the lab had no control over what the employer does and no knowledge of what they might do. The court essentially erected an artificial barrier between the actions of the lab and the employer. Any lab would know that termination was a possible, if not likely outcome of a positive drug test.

The Texas Supreme Court accepted the lab’s argument regarding foreseeability simply based on the lab’s broad assurance that the chances of a false positive are virtually “non-existent.” Virtually non-existent means some chance is in fact existent. I get those calls from frustrated workers with false positives often enough to know they do occur. They occur often enough that foreseeability is an issue. See the decision in Houston Area Safety Council v. Mendez here.

On various social media platforms, we can express various emotions with emojis. Sad face means sad. Frowning means anger, dislike, etc. But, some emojis are less clear. What does a fire emoji mean? What does a winking face mean? Those emojis have slowly been creeping into caselaw. In 2004, an emoji was part of a lawsuit filed in the Eastern District if Virginia. In 2016, there were at least 26 cases involving emojis referenced in court opinions. In 2023, there were more than 200 such opinions.

Eric Goldman of Santa Clara University School of Law researches court opinions involving emojis and emoticons. The 2023 case referred to a wide range of emojis, including heart eyes, pigs, skulls, and devils. Entire conversations across Snapchat can involve nothing more than emojis. Context is everything, says Mr. Goldman. One dispute involved Bed Bath and Beyond investor Ryan Cohen. In 2022, Mr. Cohen posted a tweet responding to a CNBC story that predicted the company’s share would drop. Cohen re-posted the story with a photo of a woman smiling – with the comment “At least her cart is full” and an emoji of a smiling moon. Other investors said they interpreted the emoji as a sign that the Mr. Cohen believed Bed Bath & Beyond stock would rise to the moon. They saw that post as advice that investors should buy or hold onto their investments, according to court pleadings.

Fraud

In 2023, Judge Trevor McFadden, sitting for the U.S. District of Columbia district court, found that Mr. Cohen and his venture capital firm would have to face plaintiff’s’ claims based on fraud. The plaintiffs claimed the smiley moon emoji was a fraudulent misrepresentation. Judge McFadden wrote that the smiling moon was “plausibly misleading.” The judge was probably addressing a motion to dismiss.

In a separate suit, Judge Ho in the Southern District of New York found that two shareholders could not force Mr. Cohen to return profits from selling his shares on Bed Bath and Beyond. Judge Ho found that the shareholders’ claims were moot due the bankruptcy of the company.

One issue is that interpreting emojis can be generational, says Prof. Leslie Y. Garfield Tenzer of the Elisabeth Haub School Law at Pace University and author of the Emoji Legal Dictionary. That dictionary is posted on the website of her law school. Prof. Tenzer points out that an eggplant emoji is just a vegetable to an older person. While, a younger person would see a symbol for a penis.

The other issue is how to address the emoji issue. Some judges would see the use of emojis as a fact issue, best decided by a jury. While other judges view the use of emojis as a question of evidence which require a ruling by the judge.

See Dec/Jan, 2024-25, Vol. 110, No. 6 edition of the ABA Bar Journal for more information.

A recurring issue in retaliation lawsuits concerns the temporal connection between opposing discriminatory practices and the resulting discrimination. Fifth Circuit precedence suggests that a temporal connection alone that extends over four months is too long to infer a connection. That tension is vividly demonstrated in Stamps v. University of Texas System, No. 24-CV-00249 (W.D. Tex. Nov. 13, 2024). Prof. Stamps was employed at University of Texas at Austin as a professor of music. He had worked there for five years.In 2020, he reported to the school’s Office of Inclusion and Equity alleged sexual misconduct by administrators. Two weeks later, his contract was terminated. That series of events then led to a lawsuit against U.T. in Austin.

Dr. Stamps then moved to San Antonio. He applied for a teaching position with University of Texas at San Antonio. On Jan. 20, 2022, the UT System, not UTSA, notified Dr. Stamps that he was not selected. This position was known as the DH position.

On July 12 2022, he interviewed with UTSA for a part-time position in their music department. In his interview Dr. Stamps explained how he came to leave UT at Austin and mentioned his lawsuit against UT at Austin. He was hired for part-time position to teach an online class in which he had limited contact with students. Dr. Stamps was essentially overqualified for this position.

Tenure Track Position

On Oct. 14, 2022, Stamps applied for a tenure track position in the Music department. This was known as the DM position. In January, 2022, the plaintiff learned he was not selected for the position. The plaintiff filed a complaint with UTSA’s EEO office. Later, in his lawsuit, Dr. Stamps learned of a text exchange a member of the search committee expressed concern about hiring the “crazy” and “challenging” professor. That text referred to the plaintiff’s lawsuit against UT at Austin.

The Magistrate Judge pointed to Fifth Circuit caselaw which disfavored claims of retaliation based solely on timing – if that connection was longer than a few weeks or a few months. The Judge granted UT’s motion to dismiss – based on Rule 12(b)(6) – regarding the DM position. The Court noted that the Plaintiff did not plead that UT at San Antonio was aware of his lawsuit against UT at Austin when it passed him over in January 2022. Even so, the temporary connection from 2020 to January, 2022 was just too long.

Temporal Nexus

Regarding the DM position, the plaintiff told the search committee in July, 2022 about his lawsuit against UT at Austin. He was then told in January, 2023 that he would not get the tenure track position at UTSA. Here the timing is about 6.5 months. The Court found this was sufficient nexus between the two events. Plus, the text exchange amounts to more evidence than just a temporal connection.

Dr. Stamps did not have a lawyer at this point. He had written and filed his own response to the employer’s motion to dismiss. The Judge did not say so, but he was construing the pleadings of the pro se plaintiff liberally. The court also noted that during this 6.5 month time period, UTSA did hire Dr. Stamps. It hired him for a one semester job for which he was over-qualified. Then, upon the conclusion of the semester, it moved that part-time position to the job description for the tenure track position for which Stamps was turned down. Too, Stamps’ interview where he mentioned the UT lawsuit was in October, 2022. That means there was only a two month gap between the time when the search committee learned about his opposition to discrimination and the adverse personnel action.

The Judge described the causation nexus as plausible, but just “barely.” So, the Judge granted UT’s motion to dismiss in part and denied it in part.

In the aftermath of the 2020 election, the MyPillow CEO, Michael Lindell lodged claims of fraud against Eric Coomer, former executive at Domino Voting Systems. Mr. Lindell was a very vocal supporter of Donald Trump’s claims that the 2020 election had been stolen. Cooper Then sued Lindell for defamation. In June, a jury agreed with Mr. Coomer and awarded him $2.3 million. During this process, Mr. Lindell’s lawyers filed a brief with “30 defective citations,” according to U.S. District Court Judge Nina Y. Wang. The Judge said those defects included citations to cases that do not exist.

In April, Judge Wang ordered the two lawyers to show cause why they should not be sanctioned. Judge Wang said one of Lindell’s lawyers, Christopher I. Kachouroff, was “puzzlingly defiant” in tone and tenor at that hearing. Mr. Kachouroff says, no, he was simply taken by surprise at the hearing. The Judge sanctioned both of Mr. Lindell’s lawyers $3,000 each. She said the explanations of the two lawyers, absent the use of Artificial Intelligence or gross carelessness, did not make sense.

WrongBrief

Mr. Kachouroff claimed the wrong brief, a brief still in the draft stage had been filed. He blamed the error on the second lawyer, Jennifer T. DeMaster. Kachouroff said DeMaster saved a brief with the wrong file name. Mr. Kachouroff, however, was unable to show the correct brief. He said he does not save old briefs. The Judge pointed out that Mr. Kachouroff also filed Notices of defects in briefing in a second case in another jurisdiction. Mr. Kachouroff said he took full responsibility for the mistake. He added that he had no idea how incorrect citations found their way to the brief. See ABA Bar Journal report here for more information.

It is hard to imagine how this could have happened without a careless use of AI. Thirty incorrect citations is a lot. Thirty incorrect citations including some that do not exist cannot be explained other than due to AI.

A frequent question in disability cases concerns how long can an employer take when considering a request for accommodation. Some requests are so urgent that any delay will cause irreparable injury. In Strife v. Aldine Independent School District, No. 24-20269 (5th Cir. May 16, 2025), we get some answers. In Strife, a teacher, Alisha Strife, was a combat veteran of the Iraq war. She had been diagnosed with PTSD. She asked to bring a service animal to work with her. She provided two notes from two different VA doctors. But, Aldine ISD objected to the first letter, because the doctor was a Pharmacist, who practiced psychiatry with a VA protocol to treat veterans. Ms. Strife then provided the second letter from another VA psychiatrist.

Delay

Then Aldine ISD asked the doctor to complete a lengthy questionnaire in August. Then the employer asked Strife to sit for a medical exam. At that point, Ms. Strife rightfully felt the district was dragging out the process. In November, the entity that certified the service animal notified Aldine that its actions amounted to discrimination. A week later, the district asked Ms. Strife if she was refusing to continue with the interactive process. A couple days later, Strife’s attorney wrote a letter to the school district explaining the law of accommodations. Aldine’s lawyer then responded that the district had a right to consider other accommodations in addition to a service animal.

(Of course, that is a strange response. It is hard to imagine an accommodation that would meet the patient’s needs for 24/7 support that do not include a service animal).

Strife’s lawyer then replied asking what other “additional” accommodations Aldine was considering. Aldine then responded that the two letters from the doctors were not reliable, because they lacked letterhead and had conflicting doctor titles. (At this point, it had to occur to Strife’s lawyer that Aldine was deliberately stringing her along).

Two More Letters

In December, 2023, Aldine scheduled Ms. Strife for a medical exam. The following January, Strife’s lawyer provided two more letters from doctors indicating that Strife needed the use of a service animal at work. Ms. Strife also filed a charge of discrimination with the Equal Employment Opportunity Commission. That same month. Aldine ISD rejected the two new letters, because they did not discuss other possible accommodations.

Dismissal

Eventually, Ms. Strife filed suit. The district court granted Aldine’s motion to dismiss regarding Strife’s failure to accommodate allegation. On appeal, however, the Fifth Circuit disagreed. The court fist noted that the issue of delay had not yet been addressed in the Fifth Circuit – except in non-binding dicta.

The Fifth Circuit noted that Aldine eventually granted Ms. Strife’s request for a service animal – after six months. The court noted that delay was not just potentially harmful to the employee. It also suggested a lack of good faith on the part of the employer in evaluating her request. The employee argued that she provided sufficient information such that school district should have been aware of her impairment. The Court agreed. When considering a motion to dismiss, a court should draw all inferences in favor of the non-movant. Ms. Strife met her burden to show adequate evidence such that the employer should have acknowledged her disability much sooner than it did.

Indeed, noted the court, the district did not grant her request for accommodation until after the employee filed suit. Aldine defended itself saying the delay caused no harm to Ms. Strife. But, the Fifth Circuit rejected that argument. It noted that the ADA does not require actual harm when denying or delaying a request for accommodation. The only question is whether Aldine “failed to make reasonable accommodations” after being informed of Strife’s limitations. The Court then reversed the lower court’s dismissal. See the Fifth Circuit opinion here.

The American Bar Association has filed suit against the Federal government over Pres. Trump’s Executive Orders targeting big law firms. The suit accuses Pres.Ttrump of coercing law firms into forgoing certain types of legal work, and to abandon some clients, causes and policy positions. The suit was filed against the President and over two dozen Federal agencies.

The suit notes that Pres. Trump targeted the firm Paul Wise, because it filed a pro bono lawsuit against certain particpants in the events of Jan. 6, 2021. The Executive Order also faulted the law firm Paul Weiss., because it hired Mark Pomerantz. Mr. Pomerantz was the former Assistant District Attorney in New York who tried to build a criminal case against Mr. Trump. Soon after the EOs, Trump announced a settlement with Paul Wise, in which the firm agreed to provide legal work for the President. Thus, the President “dragooned” the law firm into performing free legal work for him. Those actions amounted to a message to law firms as a whole.

Administration Disfavor

The ABA explains that it sought to sue the government over other actions that harmed the ABA. But, it could find no firms willing to do the work pro bono. Since, the law firms knew the administration disfavored such suits. An equity partner in a major law firm was prevented from performing certain legal work, because such work was disfavored by the White House. Yet, that same lawyer had performed similar work in the past – with no objection from his firm. The suit argues that Mr. Trump’s actions are already limiting persons’ access to legal counsel and constraining free speech.

These actions amount to violations of free expression under the First Amendment. They also constitute violation of separation of powers. The Executive Branch does not have the authority to convey to certain lawyers or law firms and dictate what work they may do by fiat. There should be some sort of due process involved. See the ABA Bar Journal report here for more information on this lawsuit.

It is rare when a court overturns a motion to compel arbitration. In Brown v. Child Advocates, Inc., No. 14-24-00012-CV (Tex.App. Hou. April 15, 2025), the court did just that. Ms. Chiffon Brown filed suit claiming CAI fired her when she refused to perform illegal acts. The employer produced an arbitration agreement. But, Ms. Brown said she had no recollection of signing the arbitration agreement. It was signed via electronic signature. The agreement had a unique provision, that the parties would attempt mediation before seeking arbitration.

Brown’s attorney suggested to CAI that they attempt mediation, before invoking arbitration. But, CAI proceeded to file a motion to compel arbitration. Without a hearing, the court granted CAI’s motion to compel arbitration. Once the parties were in arbitration, Brown pointed out that they still had not done any mediation. The Arbitrator replied that they are now in arbitration and they could now do mediation. But, Ms. Brown insisted under the terms of the arbitration agreement, they must do mediation before starting arbitration. The parties did mediate. No settlement occurred. Then Brown lost in front of the arbitrator. The employer filed a motion seeking to conform the arbitration award. At that point, the claimant objected that the pre-condition of mediation did not occur as required by the arbitration agreement. The trial court sided with the employer.

Security Procedures

On appeal the Fourteenth Court of Appeals agreed with the plaintiff. The court pointed to the requirements of Texas’ Uniform Electronic Transactions Act. Under that statute, to show a valid electronic signature, the employer must show various security procedures were in place when the employee signed the arbitration agreement. The burden is on the employer to show the electronic signature procedures were secure enough that only the employee in question could have signed the agreement.

The court of appeals reviewed an affidavit signed by CAI’s CEO and found it wanting. The affidavit did not show: 1) that creating the online account required personal information unique to Ms. Brown, 2) that security procedures are in place which would have prevented any unauthorized person from accessing the web page in place of Brown, 3) the affidavit did not present evidence corroborating Brown’s unique password and login, and 4) no evidence was shown that users must complete all steps before moving forward in the online process.

But, noted the court of appeals, CAI did present a copy of the arbitration agreement with Brown’s signature and a date and time stamp. That was sufficient evidence to put the burden back on Brown to show she did not sign the agreement.

Brown then testified via declaration that :

  • She never intended to enter a binding arbitration agreement.
  • She could not confirm that the electronic signature was hers.
  • She had no recollection of signing an arbitration agreement.
  • She never received a copy of the arbitration agreement while she was employed, and does not remember accessing an electronic version of the agreement.
  • If she had known about the possibility of opting-out of the agreement at the time that she allegedly signed the document, she would have “certainly” completed the proper form in order not to be bound by arbitration.

The court found Brown’s testimony sufficient to show she did not sign the agreement. It is not stated, but the court also seemed concerned by the lack of security procedures. The employer did present a “scintilla” of evidence that Brown likely signed the agreement. But, the court seemed less than impressed.

The court appeared to be impressed by Brown’s declaration that she would have opted out of arbitration if she had been aware of it. Having reviewed many of these appeals, I think it was the weakness of the employer’s evidence more than the strength of the employee’s evidence. In many cases concerning electronic signatures, the employee claims to have no recollection of having signed the arbitration agreement. Indeed, that is really the norm in electronic signature cases. The employees always claim to have no memory of the signing or of the agreement. The Fourteenth Court seemed impressed by Brown’s assertion that she would have opted out of any arbitration and by CAI’s lack of security procedures.

In Any Manner

The dissent was troubled by the decision. The dissent pointed to the Uniform Electronic Transactions Act’s catch-all phrase that an electronic signature can always be proven “in any manner.” The dissent believes the emphasis on security procedures was over-blown. The dissent believed presenting the arbitration agreement with a date and time stamp and Brown’s user name should suffice. But, if we were to accept the dissent’s view, then the requirement for security procedures would effectively be written out of the statute. See the opinion here.

Judge Richard J. Leon, of the D.C. District Court granted a permanent injunction agsinst Pres. Trump’s Executive Order which targeted the big law firm, Wilmer Cutler Pickering Hale and Dorr. I previously wrote about that Executive Order here. Judge Leon used twenty-six exclamation points in his order. The EO, said the Judge, had a “kitchen sink of severe sanctions.” The judge found it violated the First Amendment protection against free speech, the Fifth Amendment regarding Wilmer Hale’s right to due process, and the Sixth Amendment regarding its clients’ right to counsel. It is an overwhelming win for the law firm against an exceedingly weak EO.

In its first sentence, the EO specifically mentioned the law firm hiring Robert Mueller. Mr. Mueller conducted the investigation into Pres. Trump in 2016. The EO pointed to Wilmer’ Hale’s participation in election and immigration litigation and said it participated in “partisan representations.” (As if in our adversarial process, there might be non-partisan representations). The EO clearly took aim at Wilmer Hale’s free speech rights.

By the time of Judge Leon’s decision, the EO had already resulted in two lawyers seeing their security clearances suspended. The Court’s order added that existing clients have already started to curtail their business with the firm and new clients are taking their business elsewhere. Provisions in the executive order “constitute a staggering punishment for the firm’s protected speech!” The Judge was clearly annoyed with the EO. He was right to be upset. EOs targeting law firms for protected speech does not even come close to lawful. See ABA Bar Journal report here for more information.

See Judge Leon’s order here.

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Carlos Saenz had a huge laugh and a booming voice. He laughed a lot.  

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. See a tribute to 1SGT Saenz at the Arlington cemetery website here.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here.

Like many of us, PVT Clevenger returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, let us recall the fallen – including the Confederate fallen.

I wrote about the hearing regarding the lawsuit filed by the law firm, Perkins Coie here. The Judge was clearly flabbergasted by the Executive Order targeting two big law firms. She asked at that hearing if this EO was not like something from the Joe McCarthy era? Well, Judge Howell has now issued her decision in the matter of Perkins Coie v. Dept. of Justice, No. 25-716-BAH (D.C. D.C. May 2, 2025). She has granted the two law firms’ motion for summary judgment. See her decision here.

Its is very rare for a U.S. District Judge to grant a motion for summary judgment this early in the life of a lawsuit. Summary judgment, as the name suggests, is a quick decision – one reached without benefit of a trial. In this instance, the judge issued her decision even before the discovery process has started. That is rare enough to compare to snow in July.

Kill All The Lawyers

But, it was an easy decision for the Judge. The President’s EO has so many holes in its premise and legal reasoning. It seems likely that it was not drafted by lawyers. In the very first paragraph of a 100 page opinion, the judge refers to the well-known phrase in Shakespeare’s play, Henry VI. “The first thing we do, let’s kill all the lawyers.” The speaker of that phrase is a rebel leader who wants to make himself king. As the rebel leader – and Shakespeare – knew, the first step in any rebellion is to remove those who implement the rule of law.

The judge finds that the plaintiffs, the two law firms, Perkins Coie and Wilmer Cutler Pickering Hale and Dorr, are entitled to summary judgment on all their claims: 1) First Amendment free speech protection, 2) compelled disclosure in violation of the First Amendment, 3) denial of equal protection in violation of the Fifth Amendment, 4) denial of the clients of the two firms to pick their lawyers in violation of the Fifth and Sixth Amendments, 5) denial of due process in violation of the Fifth Amendment, 6) that the EO is unconstitutionally vague.

It should be obvious that a law firm may express its political views as it wishes. Yet, the EO and Pres. Trump’s public statements made it clear that the two firms were targeted largely because they supported politicians, such as Hillary Clinton, and views, such as opposing many of the electoral lawsuits filed in 2020 regarding Trump’s failed candidacy. The court noted that all but one of those election lawsuits lost.

The EO was drafted so poorly as to approach farce. It claimed in Sec. 1 that the law firms engaged in discrimination. Yet, no hearing, no finding on that issue was ever held. The EO pointed, instead, to the support of the two firms for various EEO type initiatives. Those initiatives verbally advocated greater diversity in law firm hiring. As the court noted, even if the court could find that such actions amounted to discrimination, the EO specifically targets not implementation of diversity hiring, but public support of such hiring. That is, on its face, the EO targets public speech. The DOJ compounded this error by claiming in its pleading that these accusations were not “seriously contested.”

One frequent hallmark of the current DOJ is it’s simple poor advocacy skills. Of course, these accusations were contested. It is disingenuous to claim otherwise. The law firm surely admitted to the statements. But, it also surely disputed that such statements rendered them guilty of discrimination.

All Employees

The court noted that Pres. Trump frequently expressed in public his ire at the firm and at Marc Elias in particular. But, Elias left the firm in 2021. Yet, the EO would cause harm to all the employees of Perkins Coie, which would include some 2500 employees, of whom about 1200 were lawyers. This number included about 24 persons with security clearances. About 12 of those held their clearances from prior military or government service.

One section specifically forbade any government agency from hiring any former Perkins Coie employee from without authorization. This provision does not explain the duration of such a prohibition. Does it apply to persons going directly from Perkins Coie to the government, or some time later? This provision, said the Judge amounts to a ban on any current or former employee from the two law firms – with no hearing or process to arrive at such a draconian step.

Compelled Disclosure

The EO requires government contractors to disclose any business they do with Perkins Coie. The law firm engages in much litigation. That means its business contacts cast a wide net. Compelled disclosure on association with groups engaged in advocacy acts as a restraint on freedom of association and free speech. The government may prevail on such compelled disclosure, but only if they satisfy a high standard for that restriction. DOJ acknowledged that high bar for such restrictions. But, in its pleading, it completely disregarded that the burden to meet that high bar falls on the government, not on the law firm. It made no showing of how the perceived offenses of the two law firms required compelled disclosures.

The court noted the obvious: that other law firms engaged in election lawsuits, but have not been targeted,. The EO amounts to a “class of one.” It targets one law firm by name, not a class of law firms or persons who engaged in given conduct. This violates the equal protection clause of the Fifth Amendment. DOJ mentioned the Mansfield Rule, which seeks to diversify law firms. Perkins Coie and Wilmer Cutler issued public statements supporting the Mansfield goal. But, so did 358 other law firms. The government offered no explanation for targeting the two firms, but not the other 358 law firms. As the court noted, “Judges are not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977) (Friendly, J.). Whenever a Judge points out they are not required to ignore the obvious, a litigant has truly lost.

Bills of Attainder

The court mentioned bills of attainder in a lengthy footnote. Bills of attainder were used in colonial America to target colonists who had incurred the ire of the British government. Bills of attainder are essentially an act of government finding persons guilty of some offense with no process. Bills of attainder are prohibited twice in the U.S. Constitution. Those two sections address Congressional powers. There is no similar provision regarding Presidential powers.

The court notes that this EO is similar to a bill of attainder. It finds the two law firms guilty of perceived offenses with no hearing or trial. The court does not directly address the issue since the plaintiffs did not present the issue as a claim. But, if Congress cannot pass a bill of attainder and if the President must enforce the laws passed by Congress, it would seem that neither may the President engage in bills of attainder.

In the end, the court was forced to do a lot of research and draft a book-length decision, but in the end, this was an easy decision for the Judge. And, I have to ask, what lawyer would accept defending such a case?