Some Tea Leaves

If you want to know why it will be more or less impossible to succeed in bringing claims against U.S. government employees for based on being tortured while in U.S. custody, read Harbury v. Hayden, D.C. Cir. No. 06-5282. The case stems from U.S. meddling in Guatemala in 1992.

Key takeaway: regardless of what the law says, regardless of what the cases say, courts are going to resolve every question in favor of letting the government off the hook. Noted, as they say, without comment.

Great Moments In This Administration

The Widget:

Court: D.C. Circuit
Judge: Brown
Subject: Veterans
Tone: Unremarkable
Importance: 5.5

Given the way the Bush Administration has gone about its business, you have to wonder what they have against veterans. Today, in Cody v. Cox, D.C. Cir. No. 06-5253, the D.C. Circuit reversed a trial court’s dismissal of claims brought by residents of the Armed Forces Retirement Home – Washington, D.C. These veterans claimed that the ingrates – er, the Administration – violated their statutory right to high quality care when the Home’s chief operating officer imposed draconian cost saving measures. Their specific complaints related to “unavailability of physicians and dentists, neglect of patients, and delays in obtaining prescription drugs.” So not very important stuff.

In response, Congress passed a statute that gave the veterans additional detailed rights beyond their generalized entitlement to “high quality” healthcare. The ingrates’ – sorry, the Administration’s – response to that was to say to the trial court “OK! Awesome! Problem solved!” The trial court agreed. But today the D.C. Circuit, that bastion of left wing activism, said “Not so fast.”

Mmm – Davis Bacon

The Widget

Court: D.C. Circuit
Judge: Rogers
Subject: Government Contracts
Tone: Intermittently empathetic
Importance: 5.0

After a holiday that is so very much about food, it is fitting that we return with a case about Bacon! Okay, so it’s Davis Bacon. But still!

Davis Bacon is a federal statute governing what contractors must pay workers on federal construction projects. This case, Abhe & Svoboda, Inc. v. Chao, D.C. Cir. No. 06-5305, demonstrates that things get complicated very quickly.

The contractor on a bridge repainting project determined that it would pay its workers a mix of wages based on prevailing rates for painters, laborers, and carpenters. Union laborers and carpenters make less than painters. When the contractor submitted its bid, the Connecticut Department of Transportation, which was running bidding on the project, didn’t say that the contractor had to pay painters' wages. As the Court says, “the Department might have provided more explicit guidance.” But the Court still dismisses the contractor’s claim.

There’s a lot going on here that the opinion doesn’t quite address. This case isn’t an appeal of the Department of Labor’s determination that the contractor had to pay painters’ wages. Why the contractor didn’t directly appeal that determination is not clear. Also: how did the Department get interested in this contractor in the first place? Did the union representing Connecticut painters have anything to do with that?* If so, why did the Department focus on this particular contractor, given that the contractor had made its determination based on information it had received from other contractors?

More fundamentally: do we want labor unions controlling what people get paid on public construction projects? Because they do now. If you’re interested, there are good arguments for the status quo and against it (scroll for a bit and you’ll find it).

*You think?

My Kind Of Water-Borne Parasite

On environmental issues, the conventional wisdom is probably that big liberal cities like New York and Portland are more aggressively regulatory than the Bush administration or the judges sitting on most circuit courts of appeal.

How to explain this, then? New York and Portland unsuccessfully challenged an EPA rule that will require them to take additional steps to reduce the amount of cryptosporidium in public drinking water. The Court helpfully reminds us that cryptosporidium “is a parasite found in human and animal feces.”

New York and Portland also win the award for most cringe-inducing argument of the day: claiming that “sensitive subpopulations (e.g., AIDS patients) . . . tend to drink more bottled water than normal.” If you’re going to make an argument like that to smart fellas like Messrs. Ginsburg, Tatel, and Sentelle, you might want it to, er, have at least some factual support.

October 24, 2007

There Are Limits Out There Somewhere

In the current political and constitutional climate, it’s easy to forget on occasion that we have some fairly significant protections, at least nominally, within the bill of rights. One of these protections, found in the Fourth Amendment, is the right to be free from unreasonable searches and seizures. That right applies to good folks and bad folks, alike. And it makes everybody uncomfortable.

Earlier this week, three judicial celebrities on the D.C. Circuit (Ginsburg, Sentelle, and Tatel, JJ.) reversed the gun charge conviction of Ronnell Holmes. D.C. police officers saw Holmes visiting with an unsavory member of the opposite sex in a dark alley in the middle of the night. They detained him after a brief foot pursuit, took his car keys from him, handcuffed him, and then, after obtaining his permission, searched his car and found a gun under the front seat. The problem with the government’s case was the decision to take Mr. Holmes’s car keys from him. They weren’t a weapon and they weren’t contraband, so under the caselaw interpreting the Fourth Amendment, the police had no business with them.

The prosecution argued that the taint on the keys issue was mitigated by Holmes’s consent to the search. But the Court held that Holmes’s consent to the search had been coerced, that he’d only agreed to let them search the car (which they located by clicking the little remote unlock button) because he thought it was his only way of avoiding an arrest.

So Holmes, who admitted that he had been offering to pay his female friend for her entertainments, ran away from police when they approached him, and kept a gun under the front seat of his car, goes free. Imagine this though, what if instead of finding a gun under the front seat, the police found a dirty bomb? Same result? If the answer is no, that’s a problem. Isn’t it?

October 9, 2007

Charge!

Late last week we learned that filing an EEOC “charge questionnaire” was the same thing, apparently, as filing an EEOC “charge of discrimination.” Even though the petitioner in this case had filed both. This was another instance of a person making a very simple mistake that, when presented to a jury, will make that person appear to be not so credible. Here, it was identifying the date of the relevant event as April 6, 2004 and April 2004 where the event actually occurred on July 6, 2004. Simple and fruitful cross examination possibilities abound.