January 2018 Legal Report
The U.S. government is shielded by sovereign immunity from a lawsuit claiming that an FBI agent used Bureau resources to spy on his wife, a U.S. court of appeals ruled.
Aida Gordo-González was married to an FBI agent when she discovered that he was using Bureau surveillance equipment to keep tabs on her, including GPS devices and video recording paraphernalia.
Gordo-González filed for divorce and, after it was finalized, she sued the U.S. government alleging that her ex-husband had "improperly used equipment belonging to the FBI and that his superiors were negligent in failing to supervise him adequately, thus allowing him to engage in inappropriate surveillance," according to court documents.
The government moved to have the case dismissed for lack of subject-matter jurisdiction, and a district court granted its request. Gordo-González appealed the dismissal to the U.S. Court of Appeals for the First Circuit, which took up the case.
The appellate court found that agency officials should not allow unauthorized use of FBI equipment by agents.
But the law does not "direct the manner in which the supervision is to be carried out," court documents said. "Nor does it necessitate the taking of any specific action that the plaintiff plausibly might contend would have prevented her ex-husband's misuse of FBI equipment." (Gordo-González v. U.S., U.S. Court of Appeals for the First Circuit, No. 16-2276, 2017)
Dash Dream Plant, Inc., will pay $110,000 and other relief to settle charges that it engaged in pregnancy discrimination when it allegedly told female workers to not get pregnant.
The U.S. Equal Employment Opportunity Commission (EEOC) claimed that through an investigation it found that Dash held staff meetings during which female employees were told to not get pregnant, and if they became pregnant they should consider themselves fired.
"The lawsuit also alleged that female employees were not reinstated or rehired when they attempted to return to work after childbirth," according to an EEOC press release.
The alleged conduct is a violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978 and Title I of the Civil Rights Act of 1991.
The EEOC filed suit against Dash, which agreed to pay $110,000 to two former employees who said they were discriminated against to settle the charges. Dash will also retain an external equal employment opportunity monitor to assist it in creating, reviewing, and revising its policies and practices to ensure they are compliant with U.S. law.
The monitor will help Dash create a centralized tracking system for discrimination complaints, and prep semi-annual reports for the EEOC on Dash's progress and compliance. (EEOC v. Dash Dream Plant, Inc., U.S. District Court for the Eastern District of California, No. 1:16-cv-01395-DAD-EPG)
U.S. Attorney General Jeff Sessions revived a U.S. President George W. Bush–era strategy to fight crime that emphasizes prosecutions of gun and gang crimes.
In a memo, Sessions said federal prosecutors would be evaluated based on their commitment to Project Safe Neighborhoods. The program focuses on trying individuals on gun crimes in federal court, which can issue longer sentences at prisons further away from the original area of jurisdiction.
"Taking what we have learned since the program began in 2001, we have updated it and enhanced it, emphasizing the role of our U.S. attorneys, the promise of new technologies, and above all, partnership with local communities," Sessions said in a press release. "With these changes, I believe that this program will be more effective than ever and help us fulfill our mission to make America safer."
As part of the program, Sessions is requiring each U.S. attorney to implement a plan based on five principles—leadership, partnership, targeted and prioritized enforcement, prevention, and accountability—to address the most significant violent crime in his or her district.
"This framework will enable each United States attorney, in collaboration with law enforcement and community partners, to develop a violence reduction plan that meets local needs, while leveraging the power of federal law and federal courts against the most violent offenders," Sessions said in a memo to U.S. attorneys.
The U.S. Department of Education Office of Civil Rights rescinded previous mandates issued during the Obama administration on campus sexual assault that required higher education institutions to take specific actions and meet reporting requirements on sexual assaults.
In a new mandate described in a Dear Colleague letter the department rescinded previous letters because they were "confusing and counterproductive" and "led to the deprivation of rights for many students—both accused students denied fair process and victims denied an adequate resolution of their complaints."
Revoking the letters means that schools no longer have to adopt a "minimal standard of proof" when investigating and disciplining students for sexual assaults. Schools now have the option to apply the "minimal standard of proof" or higher standards of proof: the "clear-and-convincing-evidence standard," which means it's "more likely than not" that a sexual assault occurred; and the "highly probable or reasonably certain" standard.
The department will also develop a new approach to student sexual misconduct that "responds to the concerns of stakeholders and that aligns with the purpose of Title IX to achieve fair access to educational benefits," it said.
While the department said the new policy is designed to create a fairer process for sexual assault investigations, critics have claimed that it will discourage victims from reporting sex crimes.
Sessions rescinded a previous federal government policy that protected transgender workers from discrimination under Title VII of the 1964 Civil Rights Act.
"Title VII's prohibition on sex discrimination encompasses discrimination between men and women, but does not encompass discrimination based on gender identity per se, including transgender status," according to a memo from Sessions to the U.S. Department of Justice (DOJ) staff that was obtained by Buzzfeed.
"Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se," Sessions wrote. "This is a conclusion of law, not policy. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress."
Critics, however, contend that Sessions' position ignores developments in case law, which has recently established that sex discrimination does include discrimination based on gender identity and sex stereotyping—meaning it's prohibited under Title VII.
The U.S. Department of Homeland Security issued a binding directive that requires all U.S. agencies to adopt email and Web security protections against phishing and spam.
All agencies were required to implement Domain-based Message Authentication, Reporting, and Conformance (DMARC) by January 2018. DMARC is a technical specification that is designed to stop unauthorized email uses of a domain in an effort to prevent email domain attacks, such as Business Email Compromise.
Agencies are also required to implement Hypertext Transfer Protocol Secure (HTTPS) for all .gov websites. HTTPS uses an encryption protocol that is designed to keep data safe when transmitted over the Internet, such as payment information in an e-commerce transaction.
California Governor Jerry Brown signed legislation into law that allows state residents to choose between one of three gender options on official documents.
The Gender Recognition Act (formerly S.B. 179) allows California residents to select male, female, or nonbinary—an intersex option—on official documents, including driver's licenses. California's registrar will then issue new birth certificates to residents born in the state who wish to identify as nonbinary.
The law also eliminates a previous requirement that residents undergo treatment and submit a sworn statement from a physician to change their gender identity.
With the law's enactment, California joins Oregon and Washington, D.C., in allowing residents to identify as an intersex option on driver's licenses.
Elsewhere in the Courts
Bombing. A jury convicted Ahmad Khan Rahimi on eight charges related to his execution and attempted execution of bombings in New York City and New Jersey on September 17, 2016, which injured more than 30 people and caused millions of dollars in property damage. The jury found Rahimi guilty of using a weapon of mass destruction, attempting to use a weapon of mass destruction, bombing a place of public use, destroying property by means of fire or explosive, interstate transportation and receipt of explosives, and two counts of using a destructive device to further a crime of violence. Rahimi's sentencing is scheduled for January 18, and he faces the possibility of multiple life in prison sentences. (U.S. v. Rahimi, U.S. District Court for the Southern District of New York, No. 16-CRIM-760, 2017).
Emails. The U.S. Supreme Court agreed to hear a case that could require Microsoft to turn over emails stored overseas to the U.S. government. Microsoft has been engaged in a legal battle with the U.S. government since 2013 when prosecutors demanded it turn over emails related to a drug-trafficking case. The emails in question were stored on servers in Ireland. Microsoft sued to block the request, claiming U.S. law enforcement could not seize evidence held in another country—even with a warrant. Microsoft lost its case, but appealed to the U.S. Court of Appeals for the Second Circuit, which declined to enforce the warrant. (U.S. v. Microsoft, U.S. Court of Appeals for the Second Circuit, No. 14-2985, 2017).
Hacking. The U.S. Supreme Court declined to take up cases on computer hacking, leaving in place a lower ruling that found that employees with legitimate access to employer systems cannot grant authorization to third parties to use them—only the computer system owner can do that. The decision upholds a jury ruling that convicted a recruiter for using another employee's password to access his former employer's database. (Power Ventures v. Facebook, U.S. Supreme Court, No. 16-1105, 2017; Nosal v. U.S., U.S. Supreme Court, No. 16-1344, 2017).