Posted by Gale Burns on Mon, Apr 23, 2012 @ 11:58 AM
April 24, 2012
John Stone, Senior Attorney, National Legal Research Group
Title IX of the Education Amendments of 1972 prohibits gender‑based discrimination by federally funded educational institutions. It provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). In Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Supreme Court held that retaliation against a person because that person has complained of sex discrimination is also a form of gender‑based discrimination actionable under Title IX.
On its first occasion to say what a plaintiff must prove to prevail on a retaliation claim under Title IX, the Ninth Circuit has reinstated a case for a plaintiff whose claim had been dismissed on summary judgment by a federal district court. Emeldi v. Univ. of Or., No. 10-35551, 2012 WL 933821 (9th Cir. filed Mar. 21, 2012). As other federal circuits have done, the Ninth Circuit applied the same framework as is used to decide retaliation claims brought against employers under Title VII of the Civil Rights Act of 1964. See, e.g., Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d 81, 91B92 (2d Cir. 2011) (applying the Title VII framework to a Title IX retaliation claim); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002) (same).
According to that framework, a plaintiff who lacks direct evidence of retaliation must first make out a prima facie case of retaliation by showing that he or she was engaged in protected activity, he or she suffered an adverse action, and there was a causal link between the two. Once the plaintiff has made the threshold prima facie showing, the defendant must articulate a legitimate, nonretaliatory reason for the challenged action; if the defendant does so, the plaintiff must then show that the reason is pretextual either directly, by persuading the court that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer's proffered explanation is unworthy of credence.
In Emeldi, the plaintiff was a graduate student who alleged that she had been retaliated against because she had complained about bias based on gender. Her complaints were on such matters as the lack of women on the faculty, the failure to give female students the same support and attention as male doctoral candidates received, and the fact that male students had opportunities that were not available to female students, such as access to more and better resources, including more office space and better technology for collecting data.
The court found that the plaintiff's complaints to the Dean of the College of Education and, later, to an administrator about gender‑based institutional bias and about a male professor's—her dissertation committee chair's—unequal treatment of her in particular and of female graduate students in general constituted "protected activity" under Title IX; moreover, the protected status of her alleged statements stayed intact whether or not she would ultimately be able to prove her underlying contentions about discrimination.
The second element of the prima facie case, that is, "adverse action" against the plaintiff based on the protected activity, was met in an unusual manner, by the resignation of the professor as her dissertation chair. At first blush, it would seem that the student would have welcomed the resignation. However, the resignation was "adverse" to the plaintiff because she could not complete the University's PhD program without a faculty dissertation chair and she had been unable, despite diligent efforts, to secure a replacement chair.
The necessary causal link between the protected activity and the adverse action was provided by evidence that the professor/dissertation chair had resigned within one month of having allegedly been told by the administrator of the student's complaints and that the professor had exhibited a gender‑based animus in other contexts. This causal-link element is construed broadly, so that a plaintiff merely has to prove that the protected activity and the negative action are not completely unrelated. A causal connection can be shown, as was done in Emeldi, by proximity in time between the protected activity and the adverse action.
Once the plaintiff student had made out her prima facie case of Title IX retaliation, the University did articulate legitimate, nonretaliatory reasons for the resignation by her dissertation chair and for her inability to secure a replacement chair. According to the University, the dissertation chair had resigned because the student did not follow his research advice, and university administrators had not provided a replacement dissertation chair because faculty members whom the student had solicited were unwilling to take the student for legitimate reasons, such as being unavailable or unqualified to advise her research.
The University's production of a nonretaliatory reason for the adverse action shifted the burden to the student to show that the proffered reasons were merely a pretext for retaliation. It was on this point that genuine issues of fact existed, making summary judgment for the University inappropriate. The court mentioned the following factors supporting the student's showing of pretext: the proximity in time between the student's complaints of unequal treatment and the professor's resignation as her dissertation chair; the administrator's admission that she had relayed the student's complaints to the professor; the professor's resignation as dissertation chair without having provided assistance in securing a replacement chair; other evidence of the professor's gender‑based animus; the professor's praise for the student on the progress of her dissertation; and the student's inability to secure a replacement dissertation chair. Considered together, these facts could lead a reasonable jury to conclude that the student's complaints of unequal treatment, and not the professor's supposed dissatisfaction with her research, motivated the resignation. Because a reasonable jury could conclude from the evidence presented at summary judgment that the professor's resignation was gender‑based retaliation, the district court had erred in granting summary judgment.
Posted by Gale Burns on Mon, Apr 09, 2012 @ 12:00 PM
The Lawletter Vol 36 No 10
John Stone, Senior Attorney, National Legal Research Group
The Fourth Circuit Court of Appeals has upheld summary judgment granted in favor of a university medical school that had been sued by a dismissed medical student with attention deficit hyperactivity disorder ("ADHD"). Halpern v. Wake Forest Univ. Health Sci., 669 F.3d 454 (4th Cir. 2012). The claims of disability discrimination were brought under the federal Rehabilitation Act of 1973, which prohibits discrimination against the disabled in programs or activities receiving federal financial assistance, and that part of the Americans with Disabilities Act ("ADA") that prohibits disability discrimination in places of "public accommodation," 42 U.S.C. §§ 12181–12189.
To the extent possible, the ADA and the Rehabilitation Act are construed to impose similar requirements. Accordingly, despite the different language these statutes use, they require a plaintiff to demonstrate the same elements to establish liability. In the relevant context of a student excluded from an educational program, to prove a violation of either the ADA or the Rehabilitation Act, a plaintiff must establish that he or she (1) has a disability; (2) is otherwise qualified to participate in the defendant's program; and (3) was excluded from the program on the basis of his or her disability. If a person, due to his or her disability, requires a modification to meet the essential requirements to participate in an educational program and if the necessary modification is unreasonable, then that person is not "qualified" under the ADA and the Rehabilitation Act to participate in the program. In Halpern, the dismissed student had a disability, but his claims fell because he was not otherwise qualified to participate in the medical school's program and the modification or accommodations he sought were found to be unreasonable.
From the defendant medical school's viewpoint, the problem was not the student's disability, per se, but his objectionable behavior that may well have stemmed from the disability. To determine whether a plaintiff has satisfied the burden of establishing that he or she is qualified for an educational program, a court must decide whether the plaintiff has presented sufficient evidence to show (1) that he or she could satisfy the essential eligibility requirements of the program, that is, those requirements that bear more than a marginal relationship to the program at issue; and, if not, (2) whether any reasonable accommodation by the defendant would enable the plaintiff to meet these requirements. For purposes of this analysis, the court in Halpern began with the premise that the University's professional judgment as to the medical student's ability to continue in the medical program with his ADHD and anxiety disorder and as to whether his proposed accommodations would effect substantial modifications to the program was entitled to deference.
The court concluded that the unprofessional behavior of the student and the real potential for such behavior to undermine patient care rendered the student, absent accommodation, not "otherwise qualified" for the University's medical school program, for purposes of determining whether his dismissal had violated the ADA and the Rehabilitation Act. Professionalism was a fundamental goal of the program and was required of all students, and the University reasonably pointed to evidence that inappropriate and disruptive behavior by physicians increased adverse patient outcomes. In addition, the student treated nonphysician staff unprofessionally, including being rude and abusive, he was resistant to constructive criticism, and he failed to appear for a family medicine exam.
The plaintiff's argument that there were reasonable accommodations of his disability that had not been implemented by the medical school fared no better before the Fourth Circuit. His request for accommodation for his ADHD and anxiety disorder, by means of a special remediation plan, which included ongoing psychiatric treatment, participation in a program for distressed physicians, and continuing in the University on strict probation, was not reasonable. The student had not informed the University of his disability for several years and had initially requested only testing accommodations; by the time he requested the remediation plan, he had already engaged in numerous unprofessional acts, including acting abusively towards staff and taking multiple unexcused absences. In addition, the proposed accommodation was of indefinite duration and had an uncertain likelihood of success, and the student had reverted to unprofessional conduct even after university officials attempted to intervene or to rectify his conduct, including permitting him medical leave.
Posted by Gale Burns on Mon, Apr 09, 2012 @ 11:35 AM
The Lawletter Vol 36 No 10
Paul Ferrer, Senior Attorney, National Legal Research Group
The U.S. Supreme Court has been called on a number of times in recent years to decide whether a procedural rule is "jurisdictional." See Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011) (collecting cases). The question is important because once a procedural rule is labeled "jurisdictional," the court has no power even to consider granting relief, for any reason, from a failure to comply strictly with the rule's requirements. In Bowles v. Russell, 551 U.S. 205 (2007), for example, the Court held that the statutory limitation on the length of an extension of the time to file a notice of appeal in an ordinary civil case, 28 U.S.C. § 2107(c), is "jurisdictional," such that a party's failure to file a notice of appeal within that period cannot be excused based on equitable factors or on the opposing party's forfeiture or waiver of any objection to the late filing. 551 U.S. at 213-14.
The Court attempted in Henderson to provide some general guidance to lower courts in attempting to determine when a particular rule should be considered jurisdictional, but whether the Court succeeded is questionable. The Court indicated its general preference that so-called "claim-processing rules"—rules that "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times"—not be considered jurisdictional. 131 S. Ct. at 1203. But the quintessential claim-processing rules are filing deadlines, and, as Bowles makes clear, even filing deadlines can have jurisdictional consequences "if there is any 'clear' indication that Congress wanted the rule to be 'jurisdictional.'" Id. (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16 (2006)). The problem is that in trying to divine "Congress' likely intent," which is supposed to provide "helpful guidance for courts and litigants," "Congress . . . need not use magic words in order to speak clearly on this point." Id.
As such, the Court undertook to draw a series of dubious distinctions between the rule at issue in
Bowles and the rule under consideration in
Henderson, which requires a veteran whose claim for federal benefits from the Department of Veterans Affairs ("VA") has been denied by the Board of Veterans' Appeals to file a notice of appeal to the U.S. Court of Appeals for Veterans Claims within 120 days after the date when the Board's final decision is properly mailed. 38 U.S.C. § 7266(a). The Government pointed out in
Henderson that this statutory deadline is similar to the rule found to be jurisdictional in
Bowles. In the end, however, the Court held that the VA rule is not jurisdictional based on the "singular characteristics of the review scheme that Congress created for the adjudication of veterans' benefits claims."
Henderson, 131 S. Ct. at 1205. In particular, the Court noted the long-standing solicitude of Congress for veterans, which was reflected in other aspects of the statute containing the 120-day notice requirement.
Id. Accordingly, the district court was directed to consider, on remand, exceptions to the rule, such as equitable tolling.
See id. at 1206 & n.4. It remains to be seen, however, whether the case has any more far-reaching ramifications, given the unusual nature of the litigation process in cases adjudicated under the federal laws dealing with veterans' benefits, which "place a thumb on the scale in the veteran's favor in the course of administrative and judicial review of VA decisions."
Id. at 1205 (internal quotation marks omitted).
Posted by Gale Burns on Wed, Apr 04, 2012 @ 12:42 PM
The Lawletter Vol 36 No 9
Tim Snider, Senior Attorney, National Legal Research Group
The Supreme Court takes so few cases on writs of certiorari that it is remarkable that the Court in consecutive Terms has accepted and decided two cases involving arbitration of consumer disputes. Last Term, the Court decided AT&T Mobility LLC v. Concepcion, 563 U.S. ___, 131 S. Ct. 1740 (2011), which held that the Federal Arbitration Act, 9 U.S.C. § 2, preempts California's judicial rule regarding the unconscionability of class arbitration waivers in consumer contracts. This Term, the Court again took up arbitration, also in the context of consumer contracts, in CompuCredit Corp. v. Greenwood, 132 S. Ct. 665 (2012).
There, a group of consumers filed a class-action complaint in the U.S. District Court for the Northern District of California against the defendant credit card issuers, alleging, inter alia, violations of the Credit Repair Organizations Act ("CROA"), 15 U.S.C. §§ 1679B1679j. The claims largely involved the defendants' allegedly misleading representation that the issuers' credit card could be used to rebuild poor credit and their assessment of multiple fees upon opening the accounts, which greatly reduced the advertised credit limit. The defendants moved to compel arbitration in accordance with a provision in the consumers' contracts. The district court denied the motion, and the Ninth Circuit affirmed. Greenwood v. CompuCredit Corp., 615 F.3d 1204 (9th Cir. 2010). The Supreme Court reversed and remanded.
CROA sets out a statement that credit repair organizations must provide to consumers before any contract is executed. 15 U.S.C. § 1679c(a). One sentence of the required statement reads, "'You have a right to sue a credit repair organization that violates the Credit Repair Organization Act.'" Id. CROA's nonwaiver provision states, "Any waiver by any consumer of any protection provided by or any right of the consumer under this subchapter—(1) shall be treated as void; and (2) may not be enforced by any Federal or State court or any other person." Id. § 1679f(a). The Ninth Circuit reasoned that the disclosure provision gives consumers the "right to sue," which "clearly involves the right to bring an action in a court of law." Greenwood, 615 F.3d at 1208. Because the nonwaiver provision prohibits the waiver of "any right of the consumer under this subchapter," the arbitration agreement—which waived the right to bring an action in a court of law—could not be enforced.
The Supreme Court rejected the premise that the disclosure provision affords consumers a right to bring an action in a court of law. The Court concluded that the defendants were required only to provide consumers with the mandated statement, which referred to rights afforded elsewhere in the statute. The statute provides for procedures that must be utilized if and when the case finds its way into court, but that does not mean that Congress intended to supplant the availability of arbitration under the Federal Arbitration Act ("FAA"). If Congress had intended to do so, it would have done so explicitly as it has done elsewhere, particularly inasmuch as arbitration is a favored means of resolving disputes.
More broadly, the Court made clear that the policy favoring arbitration applies even if the right being sought to be vindicated is created by a federal statute. The Court concluded that 9 U.S.C. § 2 establishes a liberal federal policy favoring arbitration agreements. It requires courts to enforce agreements to arbitrate according to their terms. That is the case even when the claims at issue are federal statutory claims, unless the FAA's mandate has been overridden by a contrary congressional command. 132 S. Ct. at 669. It has always been difficult to avoid arbitration in federal court, but Concepcion and Greenwood, taken together, only reinforce how strongly arbitration is favored when the FAA requires arbitration. If the contract containing the arbitration provision implicates interstate commerce, then the FAA applies, even to cases in state court. Goodwin v. Elkins & Co., 730 F.2d 99, 108 (3d Cir.) ("[I]f the Arbitration Act is deemed applicable, federal law applies in construing and enforcing an arbitration clause, even in those cases in which jurisdiction is based on diversity. Indeed, it applies to proceedings in state courts as well as federal courts." (citations omitted)), cert. denied, 469 U.S. 831 (1984).
Posted by Gale Burns on Wed, Apr 04, 2012 @ 12:26 PM
The Lawletter Vol 36 No 9
Anne Hemenway, Senior Attorney, National Legal Research Group
Indian Tribes, like the individual States, have immunity from suit pursuant to the federal law of each Tribe's sovereign status. While this immunity may be waived by a Tribe or Congress may abrogate it through clear and unequivocal legislative action, generally an American Indian Tribe may not be haled into court.
The Tribes' important sovereign immunity has not, however, gone unchallenged in recent years. Significantly, Congress has legislated some exceptions to tribal immunity in specific circumstances. For example, in 1968, Congress enacted the Indian Civil Rights Act, 25 U.S.C. §§ 1301B1341, which makes certain substantive rights arising from the Bill of Rights to the U.S. Constitution, already applicable to States through the Fourteenth Amendment, also binding on American Indian tribal governments. These legislative actions, however, have not changed the general broad concept of tribal sovereign immunity.
When presented with a challenge to the doctrine of tribal sovereign immunity in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), the U.S. Supreme Court specifically refused to make any significant changes to the way in which that doctrine has been interpreted. In that case, a private entity had contracted with the Kiowa Tribe's Industrial Development Commission, and the Tribe had executed a promissory note with the private entity outside the boundaries of the Tribe's lands. When the Tribe defaulted, the entity brought suit against the Tribe in state court. The state court denied the Tribe's motion to dismiss for lack of jurisdiction. The Supreme Court eventually reversed, and, while it questioned the wisdom of tribal immunity, the Court enforced its own precedent and held, as a matter of federal law, that an Indian Tribe is subject to suit only where Congress so states or where the Tribe waives its own immunity. The Court emphasized that no distinction has ever been drawn either between whether a Tribe engages in governmental or commercial activity or based on where the activity takes place.
State courts are also asked to interpret tribal sovereignty when it is challenged and have upheld the basic principles of the federal law. Recently, in State v. Native Village of Tanana, 249 P.3d 734 (Alaska 2011), the Supreme Court of Alaska held that the Indian Child Welfare Act, 25 U.S.C. § 1911, did not extinguish tribal sovereignty or a Tribe's jurisdiction over child custody protection proceedings. Importantly, the court further held that the elimination of most of the Indian territory in Alaska did not divest the federally recognized sovereign Alaskan Tribes of their authority to regulate internal disputes among their members.
Posted by Gale Burns on Tue, Feb 14, 2012 @ 10:22 AM
January 3, 2012
John Stone, Senior Attorney, National Legal Research Group
By federal statute, anyone seeking to board a commercial airline flight must be screened by the Transportation Security Administration ("TSA") in order to ensure that he or she is not "carrying unlawfully a dangerous weapon, explosive, or other destructive substance." 49 U.S.C. §§ 44901(a), 44902(a)(1). The details of the screening process have largely been left to the discretion of the agency.
In response to a 2004 congressional directive, but also to address the inadequacies of the older magnetometers through which passengers were required to pass, the TSA began contracting with private vendors to develop advanced imaging technology ("AIT") for use at airports. One of the AIT scanners subsequently procured by the TSA uses millimeter wave technology, which relies upon radio frequency energy, and the other uses backscatter technology, which employs low-intensity X-ray beams. Each technology produces a crude image of an unclothed person, who must stand in the scanner for several seconds while it generates the image. That image enables the operator of the machine to detect a nonmetallic object, such as a liquid or powder—which a magnetometer cannot detect—without touching the passengers coming through the checkpoint.
The TSA began to deploy AIT scanners in 2007 as "secondary" screening of selected passengers who had already passed through a magnetometer. Based upon the apparent success of testing, the TSA decided early in 2010 to use the AIT scanners everywhere for primary screening. No passenger is ever required to submit to an AIT scan. Although they often go unnoticed, signs at security checkpoints notify passengers they may opt instead for a pat-down, which the TSA claims is the only effective alternative method of screening passengers.
The TSA has tried to mitigate the effect that a scan using AIT might have upon passenger privacy. Each image produced by a scanner passes through a filter to obscure facial features and is viewable on a computer screen only by an officer sitting in a remote and secure room. As soon as the passenger has been cleared, the image is deleted, and it cannot be retained on the computer or in any other way. In addition to these measures to protect privacy, two studies of the safety of the scanners that use backscatter technology have both found that the scanners emit levels of radiation well within acceptable limits.
Unsatisfied by the mitigation measures taken by the TSA, a privacy rights organization and two individuals sued the federal Government over the use of AIT, claiming violations of statutory and constitutional rights. Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 653 F.3d 1 (D.C. Cir. 2011), reh'g en banc denied (Sept. 12, 2011). The litigation failed on these substantive claims, but there was a procedural victory of sorts for the plaintiffs, concerning rulemaking requirements. The TSA rule allowing AIT technology instead of magnetometers constituted a substantive legislative rule subject to notice-and-comment rulemaking requirements that the TSA should have followed. The rule could not be characterized as a procedural rule, an interpretative rule, or a general statement of policy not subject to rulemaking requirements, since the change substantively affected the public and substantially changed the experience of airline passengers. The rule was not merely "interpretative" either of the statute directing the TSA to detect weapons likely to be used by terrorists or of the general regulation requiring that passengers comply with all TSA screening procedures. Therefore, the court remanded the matter to the TSA with instructions to "cure the defect in [the rule's] promulgation." Id. at 8.
Except for this success on the rulemaking issue, the plaintiffs' arguments failed. An imaginative claim that use of AIT violated the federal Video Voyeurism Prevention Act ("VVPA") was unavailing. That statute did not apply because the TSA's screening fell within the VVPA's exemption for "lawful law enforcement, correctional, or intelligence activity." 18 U.S.C. § 1801(c). The court added that the plaintiffs' argument that the TSA does not engage in "law enforcement, correctional, or intelligence activity" bordered upon the silly. Elec. Privacy, 653 F.3d at 8.
Nor did the TSA's use of AIT violate the Privacy Act, 5 U.S.C. § 552a, a statute that applies only insofar as the Government maintains a "system of records" from which it can retrieve a record by using an individual's name or other identifying information. The TSA does not maintain data from AIT scanners in a "system of records" linked to names or any other identifier. Even if the TSA had the ability to combine various sources of information and then to link names to the images produced using AIT, the Privacy Act claim still failed because the plaintiffs offered no reason to believe that the TSA has, in fact, done so.
The plaintiffs' unsuccessful constitutional theory was that the use of AIT by the TSA constitutes unreasonable searches prohibited by the Fourth Amendment. First, as an administrative search, use of AIT does not require individualized suspicion. Moreover, the need to search airline passengers to ensure public safety has been particularly acute, and an AIT scanner, unlike a magnetometer, is capable of detecting, and therefore of deterring, attempts to carry aboard airplanes explosives in liquid or powder form. It was also significant that any passenger can avoid AIT screening in favor of a pat-down; this option reasonably allows each passenger to decide which of the two options for detecting a concealed, nonmetallic weapon or explosive is less invasive.
Whether an administrative search is "unreasonable" under the Fourth Amendment is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. In the court's view, "[t]hat balance clearly favors the Government here." 653 F.3d at 10.
Finally, the court rejected what might be called a "slippery slope" argument advanced by the plaintiffs. It was not a sufficient basis for striking down the use of AIT at airports that, given the times in which we live, the public may not yet have seen the most intrusive security measures that could be taken by the TSA. As stated by the court, "it is not determinative that AIT is not the last step in a potentially escalating series of search techniques." Id. AIT scanners do not necessarily have to be "minimally intrusive" to be consistent with the Fourth Amendment.
Posted by Gale Burns on Thu, Feb 02, 2012 @ 04:09 PM
The Lawletter Vol 36 No 7
Matthew McDavitt, Senior Attorney, National Legal Research Group
It is sometimes unclear whether particular governmental bodies enjoy the broad-based blanket immunity afforded to political subdivisions of states, such as counties, or whether the more limited "governmental function" immunity applies, granting protection from tort suit regarding only political, discretionary, or legislative functions.
"A function is governmental if it is directly tied to the health, safety, and welfare of the citizens." Niese v. City of Alexandria, 264 Va. 230, 239, 564 S.E.2d 127, 132 (2002) (citation omitted) (internal quotation marks omitted). Where governmental function immunity applies, any actions deemed to be "proprietary" in nature, i.e., those performed for the private benefit of the governmental bodyClikened to for-profit activities of private corporations such as distributing water to households for a feeCare not immune from suit.
Case law confirms that the water authorities generally do not enjoy the blanket immunity from tort suit that counties do, but merely the limited "governmental function" immunity afforded to municipal corporations.
A characteristic example of a function undertaken by cities and towns in their private or proprietary capacity is the distribution of water to their inhabitants for domestic purposes. Such a function is one that is often performed by private water companies, and when assumed by a municipal corporation it is a purely commercial transaction between the municipality as a dealer and the citizen as a customer. While an ample supply of fine water doubtless enhances the public health, this result is merely incidental, and the primary object of a city or town in securing a water supply is to increase the comfort and convenience of its own inhabitants. It is accordingly well settled that a municipal corporation is liable for the negligence of its employees in connection with its water department to the same extent as a private company.
City of Richmond v. Va. Bonded Warehouse Corp., 148 Va. 60, 71, 138 S.E. 503, 506 (1927) (citation omitted) (internal quotation marks omitted). Additionally, an unpublished trial order of the Circuit Court of Virginia, City of Roanoke, similarly held that public water authorities created pursuant to the Virginia Water and Waste Authorities Act, Va. Code Ann. '' 15.2-5100 through -5158, constitute municipal corporations, even where created under the auspices of counties. "[T]he General Assembly intentionally withheld full sovereign immunity from entities chartered under the Water and Waste Authorities Act. As a municipal corporation, the Authority is entitled to assert, and to try to prove, that it is entitled to governmental-function immunity [only]." Robertson v. W. Va. Water Auth., No. CL07-1316, 2011 WL 3295668 (Va. Cir. Ct. City of Roanoke July 25, 2011). Finally, in a recent opinion, an Attorney General concluded that
It is my opinion that a water authority created pursuant to the Virginia Water and Waste Authorities Act is a public body, specifically, a municipal corporation. . . . As a municipal corporation, sovereign immunity shields a water authority from liability for its governmental functions, but not its proprietary functions.
Op. Va. Att'y Gen. 06-060, 2006 WL 4286453, at *3 (Oct. 31, 2006). As a result, proprietary functions performed by Virginia water authorities, such as installing or removing meters in private homes or terminating water service, are acts not immune from tort suit, and such water authorities are fully liable for the negligence of their employees, just as a private person or corporation would be.
Posted by Gale Burns on Tue, Jan 17, 2012 @ 04:24 PM
The Lawletter Vol 36 No 6
John Stone, Senior Attorney, National Legal Research Group
The California Invasion of Privacy Act ("Act"), Cal. Penal Code § 632, prohibits unconsented-to recording or monitoring, regardless of the content of the conversation or the purpose of the monitoring. The law is intended to protect rights that are separate and distinct from the right to prevent the disclosure of improperly obtained private information, and it requires the assent of all parties to a communication before another person may listen. An actionable violation of the Act occurs the moment a surreptitious recording or eavesdropping takes place, regardless of whether it is later disclosed.
In Kight v. CashCall, Inc., 200 Cal. App. 4th 1377, 2011 WL 5829678 (Nov. 21, 2011), the court reversed a summary judgment for the defendant company, finding that a lending corporation was potentially liable for violating the Act's prohibition against eavesdropping on telephone calls, without the consent of all parties, if it had directed one or more of its employees to secretly listen to a telephone conversation between a borrower and another employee. The legislature enacted the Act prohibiting the recording of confidential communications to ensure an individual's right to control the firsthand dissemination of a "confidential communication," and the legislature further expressed its intent to strongly protect an individual's privacy rights in electronic communications.
During the relevant period for the class action, CashCall randomly monitored 547 calls to and from the servicing department: 225 inbound calls and 322 outbound calls. The calls were monitored for quality control purposes to ensure that CashCall employees were following CashCall's policies and procedures and applicable laws governing debt collections. Supervisors monitored calls either electronically by using software or by physically sitting next to the representative and "plugging" in to the call. For purposes of the summary adjudication motion, it was assumed that the calls were not recorded; the supervisor would listen to the call while the conversation was occurring.
While in many cases of incoming calls the customer heard the familiar recording that "[t]his call may be monitored or recorded for quality control purposes," it was not always the case, and it was never the case on outgoing calls. At the beginning of the borrower relationship, CashCall generally provided written notice to all borrowers that information disclosed to CashCall would be disseminated to "those employees who need to know that information to provide products or services to you."
A "person" is defined in the Act broadly to include business entities like the defendant in Kight. Based on the facts before it, the appellate court ruled that the lender corporation had potentially violated the Act's prohibition against eavesdropping on telephone calls if the borrowers had had a reasonable expectation that their telephone conversations with its employees were not being secretly overheard by other employees, even if the borrowers knew that the information in their calls would eventually be disseminated to other employees.
A communication is "confidential" under the Act if a party to the conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded, Flanagan v. Flanagan, 27 Cal. 4th 766, 41 P.3d 575 (2002), and that is generally a question of fact in an action under the Act. (This standard is to be distinguished from any requirement that a party to the conversation had a reasonable expectation that the contents of the conversation would be kept secret.) In the case before the court, CashCall argued that the telephone conversations were not confidential as a matter of law, because the undisputed evidence established that all callers had been informed, at least at the outset of the borrower/lender relationship, that calls might be monitored. However, there was a genuine issue of material fact as to whether notice of monitoring had been disclosed to borrowers during all telephone calls, regardless of what the company might have said to a customer at an earlier point in time. The presence of this issue should have precluded summary adjudication for the lender on the borrowers' class action claims for violations of the Act, so the case was remanded to the lower court for further proceedings.
Posted by Gale Burns on Thu, Dec 29, 2011 @ 03:32 PM
January 3, 2012
John Stone, Senior Attorney, National Legal Research Group
It should not come as a surprise to most people that when an individual gets a driver's license from a State, he or she necessarily gives the State some personal information that is then stored in a database for use by the Division of Motor Vehicles ("DMV"). Typically this information includes name, address, telephone number, vehicle description, Social Security number, some medical information, and a photograph. What may not be so commonly known is that the States legally can and do turn around and sell that information to individuals, businesses, and other governmental entities.
There are some federal statutory limits on the States' ability to sell DMV driver record information. In a recent case, Howard v. Criminal Information Services, 654 F.3d 887 (9th Cir. 2011), the Ninth Circuit heard appeals from two essentially identical class actions that had been filed in two different states, by different groups of plaintiffs, seeking damages on the ground that their personal information had been obtained by defendant companies in violation of the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. §§ 2721–2725. That statute provides that personal information from state driver's license databases can be obtained, disclosed, or used only for certain specified purposes. The 14 enumerated permissible purposes include, in addition to those directly related to motor vehicles, such purposes as court or law enforcement functions; verification of information by businesses, including employers; research activities; and insurance purposes. All in all, the list and scope of permissible purposes for obtaining DMV information on drivers is rather broad, and it is little wonder that companies decide to mine these databases.
In the case before the Ninth Circuit, a newspaper company had used the information in reporting stories involving the operation or safety of motor vehicles. Another company had found the information helpful in performing background checks; it used the information to verify personal information submitted by the person about whom the background check was being performed. Another of the defendants had used the information to perform research about motor vehicles. A parking lot management business had used the information to check information provided by its customers and to provide notice to owners of towed or impounded vehicles. These businesses had determined that it is neither efficient nor cost‑effective to request records piecemeal—that is, individually, each time they had a need for the information—or to be limited to getting the information during business hours when the state agency is open. Instead, they purchased the entire database from the State "in bulk" so as to be able to access specific information as and when the need arose.
Thus, in the consolidated cases, each of the defendants had purchased driver record information in advance and in bulk so that it would have the information available for its possible future use. The plaintiffs did not complain that the ultimate use of the information by any of the defendants had been for a purpose not permitted under the DPPA. They argued, however, that the DPPA forbids bulk purchasing of drivers' personal information for future use, because obtaining the information for future use is not itself a permitted purpose under the DPPA. Joining other courts that had dealt with similar claims, the Ninth Circuit concluded that the defendants' actions, sometimes referred to as "stockpiling" information, were not unlawful under the DPPA, and it affirmed the dismissal of the actions by the federal district courts.
The plaintiffs' allegation that the defendants had obtained the information for the improper purpose of stockpiling misconstrued the meaning of "purpose." "Purpose" is defined as something that one sets before oneself as an object to be attained, an end or aim to be kept in view. Stockpiling was plainly not the defendants' "purpose" for obtaining the information, as that term is used in the statute. The object or end to be attained by the defendants in obtaining the driver record information—the reason they wanted the information—was not just to have it available: The defendants had obtained the information so that they would be able to use it for eventual or ultimate purposes that the plaintiffs conceded were allowed by the statute.
The plaintiffs' argument also confused the defendants' purposes for obtaining the information with their reasons for obtaining the information in bulk form. By purchasing the entire database in bulk rather than waiting to obtain individual records when they were needed, the defendants no doubt wanted to make their access to the information easier when the time came to use it, and they also probably hoped to get the information at a lower cost than would be incurred by requesting one record at a time. But those were not, in any real sense, the "purposes" for obtaining the information. At this point in its reasoning, the court employed an unusual, though apt, analogy:
Someone who buys toilet paper in a package of 48 rolls from a warehouse store, for example, ordinarily buys it for the same purpose as the person who buys it one roll at a time. That it might save money or extra trips to the store to buy in bulk isn't why the toilet paper is bought in the first place.
Id. at 890.
The court observed that if Congress had meant to prohibit the sale of a State's driver record database in bulk, the statute could have, and presumably would have, said as much. Instead, the legislation was written in a way that logically put the focus on the purposes for which the information would eventually be used—on the "end" sought by the purchaserCnot on the reason for buying it in bulk.
It also did not save the plaintiffs' case that the acquired personal information had been obtained for its potential for future use and, as to the majority of records, might never actually be used. The DPPA does not contain a time requirement for when the information obtained must be used for the permitted purpose. Nor is there a requirement that the information actually be used at all once it has been obtained for a permitted purpose.
The Ninth Circuit drew upon precedents reaching the same outcome on similar challenges under the DPPA in other federal circuits. See Taylor 10833 v. Acxiom Corp., 612 F.3d 325, 340 (5th Cir. 2010) ("A person who buys DMV records in bulk does so for the purpose of making permissible actual use of information therein under [the DPPA], even if that person does not actually use every single item of information therein."), cert. denied, 131 S. Ct. 908 (2011); Roth v. Guzman, 650 F.3d 603, 614-17 (6th Cir. 2011) (citing Taylor, 612 F.3d 325).
Posted by Gale Burns on Wed, Dec 28, 2011 @ 07:49 AM
The Lawletter Vol 36, No 5
Charlene Hicks, Senior Attorney, National Legal Research Group
Professional medical employees are subject to such a wide variety of laws and regulations that it has become increasingly difficult for such professionals to both treat patients effectively and navigate through the legal maze. With the passage of time, the problem seems to be deepening. In 2009, California adopted an unprecedented program of medical privacy oversight by enacting laws that increase the financial penalties for a medical professional's unauthorized access of a patient's medical records. This legislation was a direct response to a series of high-profile privacy breach cases at UCLA Medical Center. In anticipation of the strong likelihood that the new state laws would conflict with existing federal laws, the State also established a new agency, the California Office of Health Information Integrity ("CalOHII"), to oversee the State's new medical privacy program.
Studies showed that in 2009, the first year California's new medical privacy laws were in effect, a total of 2,490 breaches were reported to the Department of Public Health. That Department, in turn, referred approximately 320 individuals to CalOHII for investigation. To date, CalOHII has demonstrated a willingness to investigate and fine medical professionals who did not actively intend to breach the law: Instead of interpreting the State's medical privacy laws as requiring a medical professional's specific knowledge that his or her action constituting the offense violates state law, CalOHII has interpreted the laws as requiring only the professional's knowledge that he or she performed the action.
To avoid federal preemption problems, CalOHII is in the process of completing preemption analyses of every California medical privacy statute. If the agency determines that a specific state law concerning personal medical information is preempted, that state law shall not be applicable to the extent of the preemption. Cal. Health & Safety Code § 130311.5(b). However, the extent to which a medical professional may view a patient's private medical information in contexts that do not directly relate to the treatment of that patient (such as administrative or even whistle-blowing activities) under the State's new legal scheme is unclear.
Where personal (medical) privacy interests clash with medical professionals' performance and workplace rights, the current trend is for legislators to favor the individual's privacy interests. Whether and to what extent this action may impede the future advancement of the medical field and/or infringe upon the employment rights of medical professionals remains to be seen.