Friday morning docket: Tailgate edition

January 30, 2009

ballCongress continues to wrangle with President Barack Obama’s plan to stimulate the nation’s economy as new indicators show the fiscal crisis is just getting worse. Meanwhile, Obama is reported to be hosting group of union leaders at the White House today, where he will undo several Bush-era executive orders that have been criticized as anti-union. And all is quiet at One First Street, NE, as the Supreme Court is on a nearly month-long hiatus.

As you prepare your Super Bowl party menus, here’s a quick look at legal news headlines:

Preempting preemption? Bad news for preemption proponents: Obama is ushering in a new era of “progressive federalism” by giving states more leeway to regulate environmental, consumer protection and other issues. (NYT)

A sticky situation: Lawmakers are looking into stricter regulations on food producers to prevent massive and costly recalls of dangerous products, like the recent peanut butter salmonella fiasco. (NYT)

No illegal credit? GOP sources say the new economic stimulus plan making its way though congress expressly bars illegal immigrants and nonresident aliens from receiving tax credits. But Democrats say the bill has nothing to do with immigration, and accused the GOP of scare tactics. (AP)

Cramdown bill advances: A bill that would give bankruptcy judges more leeway in adjusting homeowners’ mortgage terms has advanced in Congress. (Lawyers USA)

Another E-Verify delay: The federal government has again delayed implementation of a rule requiring all companies working on federal contracts to electronically check the legal working status of their employees through the Department of Homeland Security’s E-Verify system. (Lawyers USA)

Supporters cheer Obama’s first law

January 29, 2009

ledbetterPresident Barack Obama signed his first bill into law this morning, enacting the Lilly Ledbetter Fair Pay Act, which will restart the statute of limitations for unequal pay employment bias claims with the issuance of every disproportionately low paycheck.  The law overturns the 2007 U.S. Supreme Court decision Ledbetter v. Goodyear Tire and Rubber Co.

Ledbetter, the tire plant manager who brought the suit leading to the Supreme Court ruling, was with Obama today for the bill signing, as a was a bevy of officials that included House Speaker Nancy Pelosi, Senate Majority Leader Harry Reid, and Secretary of State Hillary Clinton, who was among the bill co-sponsors last senate session, as was Obama.

“It is fitting that with the very first bill I sign – the Lilly Ledbetter Fair Pay Restoration Act – we are upholding one of this nation’s first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness,” Obama said.

Obama’s comments were interrupted a number of times by applause from those in attendance. And supporters wasted no time lauding the new law. [More after the jump]

Read the rest of this entry »

Senator to Microsoft: lay off foreign workers first

January 29, 2009

Sen. Chuck Grassley has something to say to Microsoft about the way the company plans to implement its recently-announced layoffs: Axe the foreign employees first to save more Americans’ jobs.

But such a plan might violate anti-discrimination laws, some legal experts say.

grassleyGrassley, who has often decried the of the use of “special occupation” H-1B visa program in the tech industry, sent a letter to Microsoft last week after the company announced it would eliminate 5,000 jobs over the next 18 months.

Noting that last year Microsoft executives went to Capitol Hill to urge for an increase of H-1B visas, Grassley urged the company to prioritize American employees.

“H-1B and other work visa programs were never intended to replace qualified American workers,” Grassley’s letter stated.  “Certainly, these work visa programs were never intended to allow a company to retain foreign guest workers rather than similarly qualified American workers, when that company cuts jobs during an economic downturn.

“It is imperative that in implementing its layoff plan, Microsoft ensures that American workers have priority in keeping their jobs over foreign workers on visa programs….Microsoft has a moral obligation to protect these American workers by putting them first during these difficult economic times,” Grassley continued.

Grassley went on to ask the company which types of positions were being eliminated, how many are held by American workers and which are filled by foreign guest workers, and how many guest workers will remain after the reduction in force is completed.

But Cletus Weber, partner at the immigration law firm Peng & Weber, told The Seattle Times that targeting H-1B visa holders might be a legally risky move for Microsoft.

“I know of no immigration law that would require Microsoft or any other U.S. company to lay off its lawfully employed foreign workers first,” Weber told the paper. “To the contrary, I believe arbitrarily laying off lawfully employed foreign workers first would subject these companies to potential legal liability under federal anti-discrimination laws.”


Biden gives Supreme apology

January 28, 2009

bidenrobertssmallJust when we thought we were done with the topic, another twist emerges in the ongoing fallout from Chief Justice John G. Roberts, Jr.’s presidential oath flub.

Vice President Joe Biden – who cracked wise about Roberts’ trouble with the oath, much to President Barack Obama’s visible chagrin (see it here) – called and apologized to the chief justice for the remark.

Biden called Roberts some time last week, and the two had “a good conversation” according to Someone Who Knows.

Ginsburg gets her way

January 28, 2009

rbginsburgYesterday Congress formally sent to President Barack Obama’s desk a bill that extends the time period in which an employee can file an unequal pay bias claim by re-starting the statute of limitations with the issuance of each disproportionate paycheck.

Obama will sign tomorrow, 20 months to the day after the Supreme Court handed down the decision Ledbetter v. Goodyear Tire and Rubber Co., which held that a worker had 180 days to file a claim irrespective of how many unequal paychecks were issued.

In that case, Justice Ruth Bader Ginsburg wrote an ardent dissent – which she read in part from the bench, an unusual move at the Court – arguing that lawmakers who enacted Title VII “never intended to immunize forever discriminatory pay differentials unchallenged within 180 days of their adoption.”

She also urged the lawmakers across the street from the Court to change things. “The ball is in Congress’ court,” Ginsburg wrote. “The Legislature may act to correct this Court’s parsimonious reading of Title VII.”

The bill is expected to be signed into law Thursday by President Barack Obama, and will go into effect immediately.

U.S. Attorney-gate continues: Conyers subpoenas Rove

January 27, 2009

If you thought the end of the Bush administration meant the end of the House Judiciary Committee’s ‘contempt’ for the folks believed to be involved in the firings of nine U.S. attorneys during former Attorney General Alberto Gonzales’ tenure, you’d be wrong.

conyersYesterday, Committee Chairman John Conyers, Jr., subpoenaed former White House adviser Karl Rove to testify next month before the committee on the matter, extending the long-running battle over the firings into the Obama administration.

RoveAs a recap, lawmakers voted last year to hold Rove in contempt for refusing to testify about the political motives behind the firings. Rove refused to give testimony, citing executive privilege. The committee had previously summoned Harriet Miers, former White House counsel, and former White House Chief of Staff Josh Bolten, even suing them in an attempt to compel their cooperation. But both refused.

It is unclear what effect the change in administration will have on the former White House officials’ privilege claim. Conyers believes it makes a big difference, saying: “Change has come to Washington, and I hope Karl Rove is ready for it. After two years of stonewalling, it’s time for him to talk.”

Supreme decisions: employee retaliation, police pat downs, ERISA and more

January 26, 2009

ussc1It’s been a busy day at the U.S. Supreme Court, as the justices handed down six decisions and granted certiorari in three cases.

In the opinion in Crawford v. Nashville and Davidson County, the justices held that Title VII protects employees from retaliation for speaking out about discrimination, whether on her own initiative, or in answering questions during an employer’s internal investigation. See more here on that case from Lawyers USA.

In Van de Kamp v. Goldstein, the Court held that Police are protected by absolute immunity from being sued over the adequacy of supervision, training, and information-system management systems. The Defendant claimed the inadequate system prevented his defense from being given information about deals cut by informant witnesses.

In Arizona v. Johnson, The Court ruled that a pat down of a car passenger during a traffic stop did not violate the Fourth Amendment.

In a case that will have divorce attorneys everywhere paying special attention, the Court ruled in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan that a waiver in a divorce decree is not sufficient to divest interest in a pension plan under ERISA.

The court also ruled on anti-dumping laws’ application to uranium dumping services in U.S. v. Eurodif, and issued a per curiam sentencing guidelines opinion in Nelson v. U.S.

But wait, there’s more:

The court agreed to add three cases to its docket, taking up: Maryland v. Shatzer , which asks whether police can resume questioning of a suspect two years after the suspect asked for a lawyer without running afoul of Miranda; Mohawk Industries v. Carpenter, considering whether a company must give a former employee information they had argued was protected by attorney-client privilege; and McDaniel v. Brown, which considers whether evidence presented during federal habeas review of a sexual assault conviction was clearly insufficient.

More on these cases on Lawyers USA‘s website.

Monday status conference: Busy week on the Hill

January 26, 2009

capitolfrontAs President Barack Obama begins his first full week as president, Congress will be squarely focused on the economy this week, as lawmakers hold confirmation hearings on the president’s pick to head the Treasury Department and consider economic stimulus legislation. And orders and/or opinions could be coming from the Supreme Court this morning.


It’s more easy being green: Today President Obama will announce plans to give states more leeway in imposing automobile emissions standards. The move is a sharp departure from the Bush administration, whose refusal to grant states the ability to impose tighter greenhouse gas emissions led to a lawsuit between the EPA and 13 states. (NYT)

More to Holder holdup: One of the issues holding up the confirmation of attorney general pick Eric Holder? Some lawmakers want to know whether or not he plans to seek criminal probes of former Bush administration officials over CIA tapes depicting harsh interrogation methods used against two al-Qaeda suspects. (WaPo)

Obama’s labor team: Meanwhile, Obama has named his picks to head the federal agencies in charge of enforcing private sector labor laws and enforcing federal employment discrimination laws. (Lawyers USA)

More Supreme nomination Chatter: If a Supreme Court vacancy opens up this summer, who might get the nod? SCOTUSBlog’s Tom Goldstein thinks that newly-named SG pick Elena Kagan is in a good spot, as are two female federal judges. (SCOTUSBlog)

Peanut butter recall grows: The FDA is continuously adding to the list of peanut putter-containing products that may be tainted with salmonella. Meanwhile food producers like Kellogg are pulling more products from the shelves voluntarily. (MarketWatch)

Friday morning docket: Out with the old, in with the news

January 23, 2009

whitehouseA new president is in, Gitmo is on the way out, the nation’s Chief Justice earned worldwide infamy, and Congress has answered the challenge made by Justice Ruth Bader Ginsburg almost two years ago to make it easier to file unequal pay claims. And that’s just scratching the surface of this extraordinary news week!

Here’s what else is happening:

Stem cell trial approved: The Food and Drug Administration cleared the way for the first-ever human trial of a medical treatment derived from embryonic stem cells. (WSJ)

PB&J – but hold the PB: The FDA has also recalled about 31 million pounds of peanut butter and peanut paste due to the salmonella scare. (AP)

Bringing change to the USPTO? The Intellectual Property section of the American Bar Association recently made recommendations to the Obama administration transition team regarding changes to the U.S. Patent and Trademark Office. (Lawyers USA)

Contraception showdown: Seven states and an advocacy group filed a federal lawsuit last week seeking to invalidate an administrative regulation that denies federal funding to health care facilities that refuse to accommodate employees that object to providing birth control. (Lawyers USA)

Congress considers cabinet: It’s nine down, six to go to fill President Barack Obama’s Cabinet. One of the nominees still waiting: attorney general pick and formidable b-baller Eric Holder. (AP)

Holding down the fort: Speaking of AG, do you know who is holding the job right now? Here’s a hint – he’s one of the only Bush appointees still in the Justice Department building. Meet Mark Filip. (WaPo, DOJ)

Another senate seat occupant revealed: The senate seat formerly occupied by Hillary Clinton will be filled by someone who isn’t named Kennedy or Cuomo. (NYT)

The funniest justice, week 8: When the whole world laughed

January 22, 2009

cjrobertsThere was only one day of oral arguments at the Supreme Court this week. And the three cases heard yesterday did not provide much opportunity for laughter in the courtroom (that is, aside from the laughter in the press gallery as reporters rehashed the presidential oath flub heard around the world).

Chief Justice John G. Roberts, Jr. did manage to make the crowd laugh once inside the courtroom. While some court watchers were expecting him to make some sort of self-effacing comment regarding the trouble he had with President Barack Obama’s oath Tuesday – Roberts does, after all, have a pretty good sense of humor – he made no reference to it at all. (Legal Times’ Tony Mauro thinks he may have heard something in the way Roberts pronounced the word “clerk.” DC Dicta didn’t catch that, but we always defer to Tony’s ear, being the astute reporter that he is.)

Justice Stephen Breyer was the only other justice to get a laugh, which creates a real three-way contest in the quest to be the Funniest Justice of the term. Usually Justice Antonin Scalia runs away with it by now, but Nino better think of some funny quips quickly if he wants to stay in top.

Here are the laugh standings after eight weeks of oral arguments:

Justice Antonin Scalia: 29

Justice Stephen Breyer: 22

Chief Justice John Roberts: 20 (Not counting the laughs he may have received Tuesday)

Justice David Souter: 9

Justice Anthony Kennedy: 9

Justice John Paul Stevens: 6

Justice Samuel Alito: 2

Justice Ruth Bader Ginsburg: 1

Justice Clarence Thomas: 0 (Thomas hasn’t made a remark during oral arguments since Feb. 22, 2006).


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