October 2014 Legal Report
Print Issue: October 2014
US JUDICIAL DECISIONS
Whistleblowers. The U.S. Supreme Court has ruled that the First Amendment protects public employees from retaliation when they are called to testify in court about official corruption. In its opinion, the Court held that anyone who testifies in court bears an obligation to tell the truth, which is separate from any obligations an individual may have to an employer.
Central Alabama Community College (CACC) hired Edward Lane in 2006 to be the director of Community Intensive Training for Youth (CITY), a statewide program for underprivileged youth. Lane was hired on a probationary basis.
When Lane was hired, CITY was facing significant financial difficulties, and he conducted an audit of the program’s expenses. The audit revealed that Suzanne Schmitz, an Alabama state representative on CITY’s payroll, had not been reporting to her CITY office. After unsatisfactory conversations with Schmitz, Lane discussed the problem with CACC’s president and its attorney, who warned him that firing her would have negative repercussions for him and CACC.
Shortly thereafter, Lane fired Schmitz, which drew the attention of the FBI. The bureau launched an investigation into her employment with CITY that led to a federal grand jury. During the proceeding in 2006, Lane testified about why he fired Schmitz. The grand jury then indicted her on four counts of mail fraud and four counts of theft concerning a program receiving federal funds.
At the trial in 2008, Lane testified under subpoena about the events that led to Schmitz’s firing. The jury, however, failed to reach a verdict, and six months later federal prosecutors retried Schmitz, with Lane testifying again. This time, the jury convicted Schmitz on all counts.
Despite firing Schmitz, CITY continued to have budget shortfalls, and Lane recommended that the new president of CACC, Steve Franks, consider layoffs to address the problem. In January 2009, 29 people—including Lane—were fired. However, Franks reconsidered and Lane was later reinstated to his position as director before the CITY program was eliminated in September 2009.
In January 2011, Lane sued Franks in his individual and official capacities, alleging that Franks had violated the First Amendment by firing him in retaliation for his testimony against Schmitz. Lane asked for reinstatement to his position and monetary damages from Franks.
After a series of court proceedings, the case reached the U.S. Supreme Court, which ruled in favor of Lane. In a unanimous opinion, Justice Sonia Sotomayor wrote “the First Amendment protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.”
Sotomayor explained that “this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights,” in her opinion. “There is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees for government employees are often in the best position to know what ails the agencies for which they work.”(Lane v. Franks, U.S. Supreme Court, No. 13-483, 2014)
Due Process. A U.S. federal judge has ruled that the federal government’s procedure for people on the No-Fly List to challenge their inclusion is unconstitutional. The judge ordered the government to create a new process, calling the current process “wholly ineffective” and a violation of the Fifth Amendment’s guarantee of due process.
The ruling stems from a case that was brought by the American Civil Liberties Union (ACLU) on behalf of 13 Americans who were denied boarding for flights over U.S. airspace without prior notice. Some individuals drew the conclusion that they were on the government’s No-Fly List after being told so by airline representatives, FBI agents, or other government officials. Each of the 13 filed complaints with the Department of Homeland Security (DHS) after being denied boarding and each received a letter that did not confirm, nor deny, that their name was on any terrorist watch list. The letter also failed to explain why they might be included in the Terrorist Screening Database (TSDB), the database that provides the information for the No-Fly List.
The 13 individuals then submitted applications for redress through the DHS Traveler Redress Inquiry Program (TRIP). Despite their requests for answers about why they were not allowed to board flights, explanations were not provided and the individuals were not told if they would be allowed to fly in the future.
With help from the ACLU, the individuals filed a lawsuit against U.S. Attorney General Eric Holder in June 2010. They alleged that their Fifth Amendment rights to due process had been violated because the government gave them no explanation as to why they were not allowed to board nor any “meaningful opportunity to contest their continued inclusion on the No-Fly List.” The individuals also contended that the No-Fly List had deprived them of their constitutionally protected liberty because they were not allowed to travel.
The government argued that there is no constitutional right to travel by airplane or by the most convenient form of travel. It claimed that the individuals were not “constitutionally burdened” because the No-Fly List only prohibits air travel. It moved to have the case dismissed.
The case reached the U.S. District Court for the District of Oregon, and Judge Anna Brown ruled in favor of the plaintiffs. She concluded that “without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the No-Fly List…the absence of any meaningful procedures to afford plaintiffs the opportunity to contest their placement on the No-Fly List violates plaintiffs’ rights to procedural due process.”
Brown also said that by being included on the No-Fly List, the individuals had been deprived of their liberty interests in international travel. “International travel is not a mere convenience or luxury in this modern world,” she explained. “Indeed, for many, international travel is a necessary aspect of liberties sacred to members of a free society.”
For these reasons, Brown ruled that the procedures for people on the No-Fly List to challenge their inclusion are unconstitutional and ordered the government to create a new process to address the procedures’ shortcomings. (Latif v. Holder, U.S. District Court for the District of Oregon, No. 3:10-cv-00750-BR, 2014)
Surveillance. The U.S. House of Representatives has passed an amendment that would end the backdoor search loophole that allows the National Security Agency (NSA) to search for the communications of U.S. citizens without a warrant. The amendment is part of the broader 2015 Department of Defense Appropriations Act (H.R. 4870), which also passed the House.
Along with closing the search loophole, the amendment would prevent the NSA and CIA from requiring the placement of backdoors in products. This would bar the agencies from mandating that American companies alter products to allow surveillance. The bill will now be taken up by the Senate.
Cybersecurity. The U.S. Senate Select Committee on Intelligence has passed a cybersecurity bill intended to help companies and government thwart hacking and other cyber intrusions.
Known as the Cybersecurity Information Sharing Act (CISA), the bill (S. 2588) authorizes the voluntary sharing of cyberthreat information by individuals and companies with each other and with the government. It also requires the director of national intelligence to share more classified and unclassified cyber threat information with the private sector. The Senate has announced that it will consider the bill.
Terrorism. The U.S. House of Representatives Financial Services Committee has approved legislation to amend the Terrorism Risk Insurance Act of 2002 that was passed after 9-11. The bill (H.R. 4871) provides a backstop for insurers, allowing them to continue to provide terrorism insurance despite the potential for catastrophic losses should an incident occur.
The measure would require the secretary of the treasury to consult with the secretary of homeland security and the attorney general when deciding whether to certify an act of terrorism, along with removing the $5 million threshold for certifying acts of terror. The bill also requires the treasury secretary to issue a preliminary certification within 15 days after an event, followed by a final determination within 90 days to certify an event as an act of terrorism.
Along with these changes, the bill would require the treasury secretary to include whether the event does or does not involve nuclear, biological, chemical, or radiological (NBCR) terrorism. This designation will also change the federal share of payments for insured losses for acts not involving an NBCR terror act.
The bill was introduced by U.S. Rep. Randy Neugebauer (R-TX) and has 28 cosponsors. It can now be considered by the full House of Representatives.