As lawsuits go, these are pretty bizarre. The Trump campaign has filed at least a dozen lawsuits in several states seeking to overturn the election results. One lawyer, Mark “Thor” Hearne, from St. Louis, filed a lawsuit in the Federal Court of Claims, apparently intending to file in the Michigan Court of Claims. He blamed the error on PACER, the online filing platform. But, he did not explain how PACER was able to cover the cost of a filing fee in a second, wrong court. For those of you who do not file suits on PACER, the PACER system takes you to a second web page to pay the filing fee. For PACER to “accidentally” file your lawsuit in a second court, it would also have to somehow pay for the second lawsuit in the wrong court.

Wrong Court

Too, at least one of the lawsuits filed in the federal court of claims was styled, “Donald J. Trump v USA.” As Ben Ginsberg asks, why would anyone style their lawsuit that way? Typically, you style the lawsuit against the entity you are suing. Was Donald Trump suing the entire USA? Too, when you fie a lawsuit, you want to name the actual opposing party. You are asking the judge to take action against a specific person pr entity. If you sue the USA, who are you asking the judge to issue orders to? But, the title of the lawsuit likely appealed to the real client, Donald J. Trump.

Michigan Court of Claims

“Thor” Hearne then appeared in front of the Michigan Court of Claims, First District, on Nov. 5, 2020. Mr. Hearne explained that a poll watcher said he was told by a poll worker who was told by a second poll worker that he had been told to back-date a ballot. The judge asked how that was not hearsay. Mr. Hearne struggled in trying to explain to the Judge how third-hand testimony was not hearsay. Thor Hearne insisted that for the person who signed the affidavit, he did actually hear it. As if, hearsay testimony might be admissible if the final listener did “actually” hear the third-hand information. But, Mr. Hearne’s lawsuit had so many other defects. The judge listed the many defects in the pleadings at the outset of thee hearing. Among those defects was that the motion for injunction had not been filed. The judge did not have a copy of the motion. Although the lawyer for the Secretary of State did have a copy of the motion in question.

The campaign sued the Michigan Secretary of State. The Trump campaign insisted their poll watcher be allowed to view the recorded videos of each drop box. But, as the opposing lawyer explained, the Secretary of State cannot compel action by the various County boards across the state. The Trump campaign would have to sue each individual county to obtain an order against those entities. Too, there is no right in statute or elsewhere that mandates a voter be allowed to view any videos of persons dropping their ballots in a drop box. The Trump campaign was asking for a remedy that did not exist in the law anywhere.

The Trump campaign also alleged a poll watcher was excluded from watching the vote counting. But, the affidavit did not specify when, where or by whom he was excluded. Thor Hearne was not able to explain anymore than what was in the affidavit.

And, in the end, the lawsuit would have made no difference to the outcome of the election results. Only one ballot was in question. Viewing the videos of the drop boxes may or may not result in any discrepancies. So, the Trump lawsuit was largely symbolic.

Judge Stephens

At the close of the hearing, the judge rejected the motion for injunction. The judge noted the Secretary of State does not conduct local elections. That responsibility lies with the individual counties. The judge noted a prior lawsuit in which the role of the Secretary of State was made clear. So, why, Judge Stephens asked, did Mr. Hearne sue the Secretary of State, again? Thor Hearne said the Secretary of State should issue a directive to the counties to make videos available, if they have such videos. But, as the judge noted, once the ballots are collected from the drop boxes, the ballots are not segregated. Even if the videos showed some malfeasance, no one would know where that ballot was. In the end, the Judge simply noted the Secretary of State had already issued guidance to the counties regarding access to the vote counting. Regarding local county officials, the court has no jurisdiction over those entities. Even if court had jurisdiction, the vote counting was essentially completed by the time of the hearing. So no relief was available. And, there is no legal duty on the part of any official regarding any videos of the drop boxes. The lawsuit was largely symbolic.

See C-Span recording of the Nov.5 hearing here.

Other Lawsuits

In other lawsuits, one lawyer for Pres. Trump, Kory Langhofer, admitted in Arizona that many of the affidavits acquired for these lawsuits were gathered online. The process for gathering those affidavits resulted in some “spam.” Mr. Lahnghofer called his business partner as a witness and called other witnesses, who could not say they were deprived of any votes. Mr. Langhofer said this was not a fraud case. It is not a “vote-stealing” case, the Trump lawyer added.

In another lawsuit in Pennsylvania, Bob Goldstein said in court he was not alleging fraud. Accusing people of fraud was a “pretty big step,” he said. The next day, his law firm withdrew from its lawsuit. In Montana, federal judge Dana Christensen labeled the allegations of voter fraud “fiction.” See Politico news report here. It is very unusual for a firm to withdraw within days of filing the lawsuit. The suit was filed in U.S. district court. That means the lawyers must first obtain approval form the judge. The judge has yet to rule on the law firm’s motion to withdraw.

And, I am just surprised no one has been sanctioned, yet.

 

Social media has become one part of the life of millions of Americans. We see Facebook, Twitter, Instagram pages everywhere. But, how will that work in court? How does a lawyer or person use that sort of evidence in court? With photos, a witness can testify about who took the picture and where the picture has been since its initial creation. The Fourth Court of Appeals adopted a similar authentication process for Facebook posts.

In Walls v. Klein, No. 04-13-00565 (Tex.App. San Antonio 7/9/2014), the lawsuit concerned invasion of privacy, breach of contract, and defamation. Klein testified that he printed off a Facebook page belonging to the other party. The Court of Appeals approved this method for authenticating the document. Mr. Klein said he printed off the page when he still had access to Ms. Walls’ Facebook page. Ms. Walls said no, he printed it off after his access had been blocked. The court noted rightly that such testimony is for cross-examination. It does not pertain to the authenticity of the document. Just like a photo, the witness can testify that he took a given picture on a given day and has retained it ever since. If a second witness wants to say the conditions were cloudy and foggy that day, such testimony applies to the accuracy of the photo, not its authenticity.

See the decision here.

One would think that with a pandemic crashing into our society, OSHA would lead the way in protecting U.S workers. But, no. The Occupational Safety Health Administration is taking a few steps backward. Senior OSHA staff had a six page memo prepared and ready to issue in the Spring of 2020, that would institute protections for workers. The memo was similar to one issued in 2009 in response to the H1N1 virus epidemic. But, the memo was never issued. Eugene Scalia, son of the former Supreme Court justice, likely prevented issuance of the work place protections. He heads the Department of Labor, which oversees OSHA. Mr. Scalia, a former partner at Gibson Dunn Crutcher, where he practiced employment law as a defense lawyer. He acquired some notoriety for overturning government employment regulations.

Instead, OSHA issued a memo requiring employers to record any COVID19 infections that were “work-related.” A career OSHA lawyer, Joseph Woodward, explained that the April memo did not even require employers to inform workers that a co-worker had tested positive for the virus. After much criticism, the April memo was rescinded. No protective guidance was ever issued instead.

OSHA has reduced the number of inspectors. It now has the fewest number of inspectors in 45 years. 42% of senior OSHA leadership positions remain vacant. OSHA enforces some 20 federal whistle blower statutes. Work place whistle blower complaints have surged. Yet, five whistle blower investigator positions remain unfilled.

In April, McDonald’s workers in Chicago submitted two written complaints about unsafe working conditions to OSHA. OSHA simply told McDonald’s management to deal with it. The McDonald’s franchisees were not practicing social distancing. Two workers contacted the virus, but management did not inform the co-workers. The McDonald’s workers eventually went on strike due to the unsafe working conditions. The workers later filed complaints with the Chicago Board of Health. A state district court eventually issued a preliminary injunction against McDonald’s forcing them to take precautions.

When the meat-packing plants erupted with infections in April and May, Pres. Trump issued an executive order designating meat-packing plants as “critical” to national defense. That designation meant the plants had to remain open. OSHA issued no guidance on how to stay open safely. Later, when three workers died at one plant from the virus, OSHA conducted an inspection. But, the inspection was hurried and not detailed. Many issues remain in the meat-packing plants which the inspection glossed over.

During one lawsuit over unsafe conditions at a meat-packing plant, an assistant area director for OSHA testified that senior OSHA officials had designated all COVID19 complaints as “non-official.” That designation meant physical inspections were not required. OSHA has dropped the ball for American workers.

See the New Yorker report for more information.

Teachers are more and more being asked to bear the brunt of the battle with COVID19. As I mentioned in a prior post, Gov. Abbott has ordered that school districts provide in-person instruction to any student desiring it. See my prior post here.

Yet, neither the state or federal governments have offered the districts any additional resources to meet this need. The teachers in Northeast Independent School District fear for their safety. The district expects about half of its students to come on campus for in-person teaching. But, the district is not providing adequate safeguards. The Texas State Teachers Association has filed a grievance with the Northeast ISD on behalf of those NEISD teachers.

NEISD is the second largest district in San Antonio. It has some 60,000 students and 80 campuses.

The union objects to the lack of limits on the classroom size. Through Phase 3, the class sized had been limited to 12 students. But, now in Phase 5, there is no size limit. The district has also not adequately distributed personal protective equipment (PPE). See San Antonio Express-News report for more information. I expect as the school year progresses, there will be more such grievances.

The Trump administration issued an Executive Order that changes the classification of top civil servants and makes it easier to fire them. The order targets those in policy-making positions. Experts indicate the move would affect anywhere from tens of thousands to hundreds of thousands in a workforce of some 2.1 million. The move would affect many attorneys, public health experts, scientists and regulators. See Stars and Stripes article here. In an administration that disfavors expertise, this new regulations would effectively muzzle many federal experts. This change would also remove these folks from union membership.

The Office of Management and Budget claims the new regulations will make top level civil servants more accountable. But, as someone who represents civil servants, I can say there is ample accountability built into the system, already. As with most private sector jobs, if you write someone up a few times with good, objective written warnings, then  you can terminate any federal worker. That the OMB argues there is a lack of accountability suggests to me they have some other ulterior motive. Or, they simply prefer to fire someone within days, instead of the months necessary to allow that person to improve his/her job performance.

And, given this administration, they may simply be angry with those scientists who keep disagreeing with the President about the coronavirus.

Ronald Sanders, a 30 year long civil servant, resigned from his high level civil servant position over this proposed new regulation. Mr. Sanders was the chair of the Federal Salary Council. Mr. Sanders is certain this new regulation is designed to make top level civil servants political. See The Hill news report.

During this COVID crisis, many folks are being asked to risk their health and possibly their lives to keep the business running. What about teachers? The state of Texas has mandated that school districts provide in-person teaching for any family desiring it. That means school districts are pressuring teachers to return to in-person teaching, even if it means risking their health and that of their families. One such teacher is Joy Tucker, who works for a charter school in Houston. After several miscarriages, she is finally pregnant at the age 37. That is considered a high risk pregnancy, even without the COVID19 virus.

The charter school insisted she return to on-campus teaching. After Ms. Tucker used all her leave, she filed a grievance, to avoid returning to school. She wants to teach. She misses her kids. But, she is not willing to risk the health of her family. About 28% of the district’s children have returned to in-person teaching. It sounds like Ms. Tucker sought an accommodation. The Texas Tribune article mentions that the district can deny her request for an accommodation if the accommodation poses “undue hardship” for the district. Her lawyer appears to be speaking about the Americans with Disabilities Act. Under the ADA, a person can request an accommodation. The employer can refuse the accommodation, if it presents an undue hardship for the employer.

Dozens of teachers at several dozen schools in the Houston Independent School District are staging a “sick out” to protest the lack of protections at their schools for the virus. See Houston Chronicle report.

The challenge for Ms. Tucker’s school will be in showing a true undue hardship. Texas school districts largely conducted all teaching online in the latter half of the Spring semester. Many school districts are still conducting most classes online. That suggests online teaching is a viable alternative. But, this problem will only grow as the semester progresses. More and more schools will feel the pressure to conduct classes in-person. And, we may well have a resulting spike in infections.  See Texas Tribune article here. And with those increasing case numbers will come increasing fear of returning to work.

Ken Paxton is the Attorney General of Texas. Recently, seven of his top deputies submitted information to the AG’s Human Resource department accusing their boss of corruption. It is hard to over-state how extraordinary that is. Assistant AG’s are not liberal. They are generally careful and conservative. It is also obvious they reported the apparent violations at the risk of their continued employment. Weeks later, AG Paxton has now fired two of those whistle blowers, Blake Brickman and Lacy Mase. See Texas Tribune report.

The most senior aide and whistle blower, Jeff Mateer, resigned. Mr. Paxton placed two other whistle blowers on leave. It is remarkably bad legal advice to fire whistle blowers a few weeks after they blew the whistle. Call that whistle blowing 101. As I have told clients, it is bad for the person to get fired, of course, but the employer, who here is Ken Paxton, is handing them an excellent lawsuit. Indeed, Ken Paxton described the seven top aids as “rogue” employees. Yes, that is a very helpful comment for those seven in their whistle blower lawsuits. AG Paxton needs better legal advice.

Arbitration has been sold as a more efficient, cheaper alternative to litigation. But, the reality is that it can be very expensive. And, unlike traditional courts, if you do not pay the arbitrator, the lawsuit stops. AAA, the leading provider of arbitral service, requires periodic deposits to cover anticipated future costs of the arbitration. Pres. Trump is learning this the hard way in his lawsuit against Omarosa Manigault Newman. Ms. Manigaiult Neman wrote a “tell-all” book about Pres. Trump. The Trump campaign then sued her for violating the terms of a Non-Disclosure Agreement. Her NDA likely included a non-disparagement clause.

But, the Trump campaign has failed to provide the latest requested deposit of $51,940. AAA sent a letter to both parties saying it wold dismiss the action if the deposit was not made. The letter is addressed to both parties, but its the Trump Campaign’s arbitration. So if they want it to continue, then they must pay the piper. See Politico news report here. AAA sends that sort of letter only after more discrete requests for the deposit have been ignored.

Arbitrations typically start with a required deposit. But, if the process drags on further and the hours invested by the arbitrator mount up, then AAA will request an additional deposit. Records indicate the campaign paid $49,000 to AAA in 2019. So, that was apparently the initial deposit. It appears this $51,940 deposit is the later or subsequent deposit. Its easy to file a lawsuit. Its hard to pay those subsequent deposits.

The Department of Justice, the pre-eminent law firm in the country, has sued Stephanie Winston Wolkoff for breach of a confidentiality agreement. Winston Wolkoff signed the Non-Disclosure Agreement when she worked for a time at the White House. Later, this year, she published a “tell-all” book about Melania Trump. Ms. Winston Wolkoff is a former friend to Melania Trump.

Pres. Trump has required all White House employees to sign a NDA, as was his practice in private business. Someone needs to tell Pres. Trump he is not in private business. Non-Disclosure Agreements apply to confidential information which an employee acquires while employed by a private business. Under the laws in most states, if the employer satisfies such as criteria as: 1) the information is difficult to acquire or develop, 2) the information is private, and 3) the information has some value, then the private business can require that such information be kept confidential.

Working for the federal government is a completely different animal. The “information” any federal worker comes across belongs to the public, already. A President, who holds office for only 4-8 years, cannot privatize property – information – which belongs to the government, or or to the public. No one has ever tried this dubious tactic. So there is no caselaw on the topic. But, consider the Freedom of Information Act. That statute entitles any member of the public to any information which is not classified. The FOIA has some limited exceptions, but generally, all unclassified information is available for the asking.

There are also some two dozen various federal whistle blower statues which specifically provide a federal worker cannot be subject to reprisal for reporting in good faith unlawful actions by a federal agency. That law applies to former workers. it applies to even potentially unlawful actions by a federal employer.These laws are very broad.

But, the biggest hurdle for these private business NDA’s is the First Amendment. The First Amendent does not apply to private employers. Pres. Trump could use these NDA’s in his business with no fear of free speech rights. A private employer can insist that a worker not discuss matters of public importance. But, the First Amendment applies to every state government and to the federal government. No federal or state employer can prevent an employee from discussing publicly any matter of public import. None. It is not even a close question.

It is silly really to require NDA’s of federal employees. It is even sillier for DOJ to get involved. For DOJ to embark on a lawsuit against a former employee for her “tell all” book approaches the bizarre. Surely, DOJ has more meritorious lawsuits than dubious violations of a dubious NDA. See NBC news report here and Politico news report here. This at a “law firm” that largely hires only from so-called top tier law schools.  I expect a team of DOJ lawyers are right now feeling like the time their mommy made them take their little brother to the movies.

Another whistle blower has been forced out of his job in the Trump Administration. Dr. Rick Bright, a scientist at the National Institute of Health and a vaccine expert, has resigned. He submitted a whistle blower complaint several months ago. See my prior post here. His complaint was very detailed, extending over some 300 pages. He was demoted because he opposed the use of hydroycloraquine as a treatment for the COVID19. The Office of Special Counsel found in his favor, a rare enough event that would justify popping some champagne bottles.

Dr. Bright has now submitted an amended complaint which states that he still has not been assigned any meaningful duty. That itself is a crime in this pandemic area, that a person with his experience is not being utilized. See CBS news report here. This administration is truly a full-employment program for employment lawyers. And, worse, this administration is handing to the plaintiff lawyer bar some excellent cases against the federal government.