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    The Lawletter Blog

    Suzanne L. Bailey

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    CRIMINAL LAW:    The Extent of Judicial Power in Sentencing Pursuant to a Federal Plea Agreement

    Posted by Suzanne L. Bailey on Tue, Dec 12, 2023 @ 14:12 PM

    Lawletter Vol. 48 No. 4

    CRIMINAL LAW:  The Extent of Judicial Power in Sentencing Pursuant to a Federal Plea Agreement

    Suzanne Bailey, Senior Attorney

              A recent decision from the U.S. Court of Appeals for the Fourth Circuit, United States v. Toebbe, 85 F.4th 190 (4th Cir. 2023), illustrates both the binding nature of plea agreements entered into pursuant to Rule 11 of the Federal Rules of Criminal Procedure and the ultimate authority of the judge in sentencing. Diana Toebbe, a high school humanities teacher with a Ph.D., and her husband, Jonathan Toebbe, a nuclear engineer assigned to the Reactor Engineering Division of the Naval Nuclear Propulsion program and possessing both an active Top Secret security clearance through the Department of Defense and an active “Q clearance” through the Department of Energy, decided to supplement their income by selling Restricted Data of the U.S. Navy relating to Virginia-class-nuclear-powered submarines to a foreign government. Unfortunately for the Toebbes, the foreign government alerted the FBI to the couple’s proposed scheme, and all of the “dead drops” of information Jonathan thought he was making to the foreign government—with Diana acting as look-out—were actually left for an FBI undercover investigation team. Both Toebbes were indicted and charged with “one count of conspiracy to communicate Restricted Data, in violation of 42 U.S.C. § 2274(a), and two counts of aiding and abetting the communication of Restricted Data, in violation of § 2274(a) and 18 U.S.C. § 2," 2023 U.S. App. LEXIS 28366, at *7-8, and both faced a potential sentence of life in prison.

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    Topics: criminal law, judicial control, conspiracy

    PUBLIC LAW:  The Continued Vitality of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

    Posted by Suzanne L. Bailey on Wed, May 24, 2023 @ 14:05 PM

    The Lawletter Vol. 48 No. 2

    Suzanne Bailey, Senior Attorney

                In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court recognized an implied right of action for damages by a victim of a constitutional violation by a federal agent against that federal agent in federal court. In that case, the plaintiff sought damages for a violation of his Fourth Amendment rights when federal narcotics agent conducted a warrantless search of his apartment, arrested him for alleged narcotics violations, and subjected him to excessive force by conducting a visual strip search. Since Bivens, the Supreme Court has recognized an implied right of action against a federal agent committing a constitutional violation in only two other cases, Davis v. Passman, 442 U.S. 228 (1979) (woman discharged from employment by U.S. Congressman a right of action, arising directly under Fifth Amendment due process clause, to recover damages for Congressman's alleged sex discrimination), and Carlson v. Green, 446 U.S. 14 (1980) (administratrix of deceased federal prisoner's estate had cause of action against federal prison officials for violation of deceased's Eighth Amendment right to be free from cruel and unusual punishment by failing to give him proper medical attention). More recently, in Ziglar v. Abbasi, 582 U.S. 120 (2017), the Court stated that recognizing implied causes of action was now a "disfavored judicial activity," noting its consistent refusal "to extend Bivens to any new context or new category of defendants." Id. at 135 (internal quotation marks omitted). Before implying a cause of action, courts must engage in a two-step inquiry: (1) determine whether the claim presents a new Bivens context not previously recognized by the Supreme Court and, if so, (2) determine whether there are special factors counseling judicial hesitation absent action from Congress. Id. at 136-140.

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    LABOR & EMPLOYMENT LAW: Love in the Time of COVID-19

    Posted by Suzanne L. Bailey on Wed, Mar 16, 2022 @ 11:03 AM

    The Lawletter Vol 47 No 1

    Suzanne L. Bailey—Senior Attorney, National Legal Research Group

                The COVID-19 pandemic has been a fertile source of new litigation: challenges to mask mandates, challenges to vaccine mandates, construction of child custody visitation agreements in light of COVID-19, assertion of the defense of impossibility in response to attempted enforcement of a contract, etc. Recently, a federal district court in Virginia addressed whether an individual stated a cause of action against his employer for firing him after the employer denied the individual’s request to quarantine at home in order to avoid exposing his adult paraplegic brother to the coronavirus. The court in Crawford v. Creative Cost Control Corp., Case No. 7:21-CV-00419, 2021 WL 5049768, 2021 Wage & Hour Cas.2d (BNA) (W.D. Va. Nov. 1, 2021), held that plaintiff Christian Crawford (“Christian”) stated claims for (1) interfering with rights provided under the Family and Medical Leave Act (“FMLA”), and (2) retaliation or discrimination in violation of the FMLA. However, he did not state a claim under the Families First Coronavirus Response Act (“FFCRA”).

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    Topics: employment law, Suzanne Bailey, FMLA, retaliation or discrimination, in loco parentis

    ADMINISTRATIVE/IMMIGRATION LAW: Chevron Deference Does Not Always Result in Support for the Government's Position

    Posted by Suzanne L. Bailey on Thu, Feb 18, 2021 @ 10:02 AM

    The Lawletter Vol 46 No 2

    Suzanne Bailey—Senior Attorney, National Legal Research Group

                It is well-established law that when a federal court reviews a federal agency's construction of a statute it administers, the court will look to whether Congress has addressed the precise question at issue. If the court determines that Congress has not directly addressed the issue, rather than imposing its own construction of the statute, the court will defer to the administrative agency's permissible construction of the statute. This standard of review is called Chevron deference, after the U.S. Supreme Court decision that articulated it. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). While application of Chevron deference frequently results in a decision upholding the agency's interpretation of its own statute, a recent decision from the Fourth Circuit Court of Appeals demonstrates that when the agency's interpretation is unreasonable, its interpretation will not prevail.

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    Topics: Suzanne Bailey, Chevron deference, Amaya v. Rosen, administrative law, unreasonable statutory construction

    EMPLOYMENT LAW: When Can an Employer Require an Employee to Undergo a Medical Exam Under the ADA?

    Posted by Suzanne L. Bailey on Tue, Mar 19, 2019 @ 12:03 PM

    The Lawletter Vol 44 No 3

    Suzanne Bailey—Senior Attorney, National Legal Research Group

                Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111-12117, makes it unlawful for an employer to "require a medical examination" or to "make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."  Id. § 12112(d)(4)(A). According to the Equal Employment Opportunity Commission ("EEOC"), this means that an employer should not make disability-related inquiries or require a medical examination of an employee unless the employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition." Enforcement Guidance:  Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), 5 (EEOC No. 915.002 July 27, 2000).  A recent decision from the Fourth Circuit Court of Appeals reversing a grant of summary judgment in favor of the employer illustrates the difficulties employers face in navigating the ADA rules regarding required medical examinations of employees.

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    Topics: ADA, subjective observations, business necessity, medical exam, nonmedical supervisor

    EMPLOYMENT LAW: EPA Prohibits Using Prior Salary in Establishing Initial Pay

    Posted by Suzanne L. Bailey on Thu, Nov 29, 2018 @ 10:11 AM

    The Lawletter Vol 43 No 7

    Suzanne Bailey—Senior Attorney, National Legal Research Group

                The Equal Pay Act ("EPA") provides as follows:

                No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to . . . (iv) a differential based on any other factor other than sex[ .]

    29 U.S.C. § 206(d)(1) (emphasis added). 

                The Ninth Circuit Court of Appeals has stated that "[t]he [EPA] stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex." Rizo v. Yovino, 887 F.3d 453, 456 (9th Cir. 2018) (en banc), pet. for cert. filed (Aug. 30, 2018), pet. for cert. docketed (Sept. 4, 2018).  The Act "'creates a type of strict liability' for employers who pay men and women different wages for the same work: once a plaintiff demonstrates a wage disparity, she is not required to prove discriminatory intent." Id. at 459 (citation omitted). The employer can avoid liability, however, by establishing one of the four affirmative defenses enumerated in the Act. In Rizo, the Ninth Circuit considered, en banc, whether prior salary was "a differential based on any other factor other than sex" within the meaning of the EPA that would permit an employer to escape liability for paying disparate wages to a female employee.

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    Topics: employment law, Suzanne Bailey, Equal Pay Act, prior salary use, wage disparity

    CRIMINAL LAW:  Second Circuit Upholds Restrictions on Removing "Premises Licensed" Handguns from Premises

    Posted by Suzanne L. Bailey on Fri, Jun 15, 2018 @ 11:06 AM

    The Lawletter Vol 43 No 3

    Suzanne Bailey—Senior Attorney, National Legal Research Group

         Coming in the midst of a national discussion on reasonable limits on the Second Amendment right to bear arms prompted by high school students’ reaction to the Parkland, Florida, school shooting, a decision from the Second Circuit Court of Appeals upholding a New York City regulation restricting the ability of individuals with a "premises license" handgun permit to remove the gun from the specified premises has special resonance. In New York State Rifle & Pistol Association, Inc. v. City of New York, 883 F.3d 45 (2d Cir. 2018), a firearms owners' association and individual holders of premises handgun licenses sued the City of New York and the New York City Police Department‑License Division (collectively, the "City"), the local office authorized by the New York State Penal Code to issue handgun permits in the City, challenging New York City Rule 5‑23(a) on the grounds that it violates the Second Amendment, the dormant Commerce Clause, the fundamental right to travel, and the First Amendment right to expressive association. The district court granted the City's motion for summary judgment, upholding the regulation on all grounds, and the Second Circuit affirmed.

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    Topics: gun restrictions, criminal law, premises-licensed handgun, handguns

    CRIMINAL LAW: No Right to Use Forfeited Substitute Assets to Pay for Appeal Counsel

    Posted by Suzanne L. Bailey on Fri, Dec 15, 2017 @ 10:12 AM

    The Lawletter Vol 42 No 9

    Suzanne Bailey, Senior Attorney, National Legal Research Group

                A recent decision from the Fourth Circuit Court of Appeals is a reminder of both the strength of federal forfeiture laws and the limits on the right to appellate counsel. On a practical level, it illustrates the danger of assuming that assets that might be subject to postconviction forfeiture will be available to pay for an appeal.

                Following his convictions for a host of drug, conspiracy, and money laundering offenses, and following the court's order for forfeiture in the amount of $51.3 million, the defendant in United States v. Marshall, 872 F.3d 213 (4th Cir. 2017), made a motion in the district court to release $59,000 in the defendant's credit union account in order to pay for his appeal. The motion correctly noted that the order of forfeiture did not specifically mention the $59,000 credit union assets. Although the Government previously had filed a bill of particulars providing notice that it intended to seek the forfeiture of the $59,000 in the credit union account, the bill did not indicate whether the Government classified the credit union funds as assets derived from the crimes pursuant to 21 U.S.C. § 853(a) or substitute assets pursuant to 21 U.S.C. § 853(p), that is, assets that are a substitute for assets derived from the crime that cannot be located due to an act or omission of the defendant.

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    Topics: criminal, substitute assets, forfeiture laws, payment for appeal

    CRIMINAL LAW: Due Process Demands Return of Court Costs, Fees, and Restitution When Conviction is Overturned

    Posted by Suzanne L. Bailey on Fri, Jul 14, 2017 @ 16:07 PM

    The Lawletter Vol 42 No 5

    Suzanne Bailey, Senior Attorney, National Legal Research Group

                Following the exhilaration accompanying a reversal of a criminal conviction, the former defendant must begin efforts to mitigate the damage, not the least of which may be repairing the financial harm of participating in the criminal justice system. In a seven to one decision (Justice Gorsuch did not participate), the U.S. Supreme Court addressed the Colorado statutory scheme for the refund of costs, fees, and restitution paid pursuant to the invalid conviction and concluded that the Compensation for Certain Exonerated Persons Act (Exoneration Act), Colo. Rev. Stat. §§ 13-65-101 to -103 (2016), violated due process by requiring defendants whose convictions have been reversed or vacated to prove their innocence by clear and convincing evidence in order to obtain a refund.  Nelson v. Colorado, 137 S. Ct. 1249 (2017).

                There were two petitioners in Nelson: (1) Shannon Nelson sought a refund of $702.10 withheld from her inmate account with the Colorado Department of Corrections toward an assessment of $8,192.50 in court costs, fees, and restitution following a reversal of her conviction for sexual and physical abuse of her four children and acquittal after retrial; and (2) Louis Alonzo Madden asked for a refund of $1,977.75 he paid toward assessed court costs, fees, and restitution totaling $4,413 after his conviction for patronizing a prostituted child was reversed on direct appeal, his conviction for attempted third-degree sexual assault by force was vacated on postconviction relief, and the State elected not to appeal or retry the case. Neither petitioner proceeded under the Exoneration Act. The Colorado Supreme Court held that the Exoneration Act was the sole means of seeking a refund, and, thus, the courts were without authority to refund the money paid. Moreover, the Colorado court found no due process problem because the Act provided sufficient process to defendants seeking refunds. Justice Ginsberg, writing for the U.S. Supreme Court, disagreed.

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    Topics: criminal law, refund of court costs, fees, and restitution, overturned conviction, Colorado Exoneration Act violates due process

    EMPLOYMENT LAW: NLRB "Search-for-Work" and "Interim Employment"

    Posted by Suzanne L. Bailey on Mon, Oct 17, 2016 @ 15:10 PM

    he Lawletter Vol 41 No 9

    Suzanne Bailey, Senior Attorney,National Legal Research Group

              For almost 80 years, the National Labor Relations Board ("NLRB" or "Board") has awarded "search-for-work" and "interim employment" expenses as part of its broad discretionary authority under section 10(c) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(c), to provide a make-whole remedy for those injured by unfair labor practices in violation of section 8 of the NLRA, 29 U.S.C. § 158.  See Crossett Lumber Co., 8 N.L.R.B. 440, 497-98, enforced, 102 F.2d 1003 (8th Cir. 1938).  Such expenses include, for example, increased transportation costs necessitated by seeking or commuting to interim employment, room and board while seeking employment and/or working away from home, and the cost of moving if necessary to assume interim employment. During those almost-80 years, the NLRB has awarded these expenses to those individuals who have suffered discrimination under section 8 of the NLRA in the form of an offset to interim earnings, rather than as a separate element of a back-pay award.  The result of treating the award as an offset to interim earnings was that (1) individuals who were unable to find interim employment did not receive any compensation for their search-for-work expenses, and (2) individuals who found jobs that paid wages lower than the amount of their expenses did not receive full compensation for the search-for-work and interim employment expenses.

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    Topics: employment law, NLRB, Suzanne Bailey, The Lawletter Vol 41 No 9, interim employment expenses, search for work, make-whole relief

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