Saturday, October 29, 2005

On the 2004 Annual Report of the EEOC Office of General Counsel

Via this post, I've been reading this EEOC report.

Regarding Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277 (4th Cir. 2004) (en banc), the report says:

The plaintiff, a 57-year-old female aircraft sheet metal mechanic, filed this action under Title VII and the ADEA alleging that she was discriminatorily discharged because her supervisors relied on the reports of work infractions submitted by a biased safety inspector. In an en banc decision, a divided Fourth Circuit rejected the approach urged by EEOC as amicus curiae and held that the discriminatory motives of a subordinate cannot be imputed to an employer unless the evidence demonstrates that the formal decisionmaker essentially "rubber-stamped" a decision, report, or recommendation of the biased subordinate. The majority conceded that an inquiry into discriminatory motives must often go beyond the actions of the formal decisionmaker, recognizing that otherwise employers could "insulate themselves from liability simply by hiding behind the blind approvals, albeit non-biased, of formal decisionmakers." But the majority said that a biased subordinate's motive was irrelevant where the subordinate merely had "a substantial influence on the ultimate decision or . . . played a role, even a significant one, in the adverse employment decision." The dissent said that the majority's position put the Fourth Circuit at odds with virtually every other circuit as well as with the statutory language, "which impose[s] liability when an adverse employment decision is taken 'because of' sex or age discrimination." The dissent would have imputed a subordinate's bias to the formal decisionmaker when a subordinate's sex- or age-based bias "has a substantial or determinative influence on a formal decisionmaker's adverse employment action," because under those circumstances "the causation (or liability) requirement is satisfied."

This opinion fits with some of my writings on the interesting topic of proving motive/causation in cases against a public entity governed by a board or commission.

Friday, October 28, 2005

On the haunting of No. 13 West Range

Friday's Cavalier Daily reprints this story from the CD in 1942 about the spooks in the old Poe Room.

The Libby indictment seems to be simple enough

Well, I read the Libby indictment. It says he lied about to the FBI and the grand jury about his conversations with Tim Russert, Matthew Cooper, and Judith Miller, when he told the FBI and the grand jury that he heard about Ms. Plame's undercover status from reporters. Instead, Libby heard about it from people in the Vice-President's office, where Libby was Chief of Staff. I suppose Cheney, Russert, Cooper, and Miller are necessary witnesses for the prosecution.

I'm guessing that the indictment does not live up to the advance hype - the Bush haters and muckrakers will be disappointed.

Thursday, October 27, 2005

What might have done in Judge Karen Williams in the last go round

John Fund wrote here: "One federal judge was nixed by a powerful senator over a judicial opinion that would have been attacked by feminists."

Some commenters thought this reference might be to Judge Williams' opinion in the Ocheltree panel decision - the en banc court upheld the liability verdict but reversed on punitive damages. Others thought it might be Judge Edith Jones' concurring opinion in the McCorvey case.

I suspect, notwithstanding the NY Times article focusing on Ocheltree, that Mr. Fund's reference is to the McCorvey case.

Senator Warner on Miers' withdrawal

Here the AP quotes Senator John Warner of Virginia as saying regarding the withdrawal of the nomination of Harriet Miers to the U.S. Supreme Court: "In effect, she was denied due process by members of her own party."

Perhaps the senators like Warner who thought that Miers was a fine choice will give the rest some trouble over her replacement as the nominee.

The article also quotes the former majority leader from Mississippi, Sen. Lott, as saying: "In a month, who will remember the name Harriet Miers?"

NRC gives notice of intent to terminate the license for U.Va.'s nuclear reactor

Here is the notice from the U.S. Nuclear Regulatory Commission of the termination of the operating license for the nuclear reactor facility that was located at the University of Virginia.

If I understand it correctly, it says the reactor was first operated in 1960 and shut down in 1998.

I wondered when I saw the recent ABC News story about loose security at college nuclear facilities whether there was still an operating nuclear reactor at U.Va.

What kinds of civil litigation gets reported in the Roanoke paper

Exhibit A - This story titled Lively legal fight breaks out over Salem cemetery, about competing boards of directors of a cemetery with a lot of money.

Exhibit B - This story titled Lawsuit filed over stadium expansion, about the first suit filed by a sub-contractor claiming it was not paid for work done on the behind-schedule expansion of the Virginia Tech football stadium that messed up everyone's season ticket seating.

Motion to dismiss granted in wrongful discharge case

In Lucker v. Cole Vision Corp., Judge Turk explained in analyzing the plaintiff's Virginia law wrongful discharge claim that (1) the plaintiff must show either that the employer "violated a statutorily created right by firing him" or the plaintiff "had a statutorily imposed duty which he was fired for refusing to violate," and (2) "either that he was clearly within the public group directly entitled to statutory protection" or that the employer "fired him in retaliation because he refused to engage in a criminal act."

The Court concluded that the plaintiff had no claim based on the Virginia Consumer Protection Act.

On cross-examination

The other day, I was cross-examining a woman regarding her testimony about what she saw out the window of her trailer.

I asked something like, "Was your trailer at a right angle to the other trailer?"

From behing me, I heard the other party murmur to her lawyer, speaking of the witness, "She doesn't know what a right angle is."

Ouch, I thought.

The last Harriet Miers post

In the manner predicted by various bloggers and pundits, Supreme Court nominee Harriet Miers asked President Bush to withdraw her nomination, citing the problem of Senate demands for her papers as White House counsel. Of course, this problem didn't sneak up on her or anyone, particularly since the quest for documents (typically by Senate Democrats) has become the main tactic of opposition to nominations.

The best thing I read about the reaction to the Miers nomination is that it, like the response to the selection of former Vice-President Quayle, shows that standards are higher than they used to be. Sure, history tells us that many popular Supreme Court justices were not appeals court judges or law professors or Supreme Court advocates before their appointment. In the present day, however, there are literally more lawyers and more judges than ever before. The talent pool is deeper than ever before.

Wednesday, October 26, 2005

Why your dog watches lots of TV and eats Doritos

CSM has this report titled Why your dog is smarter than a wolf about how dogs have mastered the study and imitation of humans.

On failure to provide timely expert witness disclosures

In Saudi v. Northrop Grumman Corp., Judge Wilkinson wrote:

"Rule 37(c)(1) provides that '[a] party that without substantial justification fails to disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at trial . . . any witness or information not so disclosed.' A district court may also impose 'other appropriate sanctions.' Id. Rule 26 disclosures are often the centerpiece of discovery in litigation that uses expert witnesses. A party that fails to provide these disclosures unfairly inhibits its opponent’s ability to properly prepare, unnecessarily prolongs litigation, and undermines the district court’s management of the case. For this reason, '[w]e give particularly wide latitude to the district court’s discretion to issue sanctions under Rule 37(c)(1).' S. States Rack & Fixture, 318 F.3d at 595 (internal quotation marks omitted)."

Tuesday, October 25, 2005

Wellington Mara right up there with Harriet Miers

Here the New York Times quotes Frank Gifford, who said of the late Wellington Mara: "For all the years I've known him, and they number more than 40, I've never heard him utter a swear word."

On Saturday, I posted the following:

Here Secretary of Education Margaret Spelling says of Supreme Court nominee Harriet Miers: "I don't think I have ever heard her say a cuss word in the entire time I have known her."

Why they're ordering new spittoons for the White House

Here it is revealed that the secret of Senator George Allen's success is his smokeless tobacco technique.

Why Justice Miers will cancel the Supreme Court's account with Lexis

In this cheeky press release, LexisNexis says more or less that it looks like Harriet Miers might not be the next justice, and they are offering a scoreboard on the number of cases/opinions/stuff on Lexis for various possible candidates to succeed Justice O'Connor:

Harrier Miers, 16
Alice Batchelder, 800+
J. Michael Luttig, 420+
J. Harvie Wilkinson, 720+
Priscilla Owen, 135
Samuel Alito, Jr., 960
Michael McConnell, 230
Larry Thompson, 70
Maura Corrigan, 360
Alberto Gonzales, 800+

What happens if the witness takes the stand and swears he is Napoleon

Years ago, at a hearing before Judge Thomas F. Hogan in the District of Columbia, I heard him ask something like whether on a motion for summary judgment, if the non-moving party swears that he is Napoleon, if the Court has to accept that evidence as true.

This opinion from the Second Circuit suggests that the answer is no, at least not when "“[n]o reasonable person would undertake the suspension of disbelief necessary to give credit to the allegations made in [the] complaint."

On which or that

Ray has this post on an explanation by Judge Traxler, when he was a district court judge, on the different meanings of "which" and "that," in the case of Rhodes v. County of Darlington, South Carolina, 833 F. Supp. 1163, 1191 n.18 (D.S.C. 1992).

ABA can't win on Harriet Miers evaluation?

This article from suggests: "For the ABA's effort to overcome the allegations of bias in its ratings, the Miers assessment may be a lose-lose situation. If Miers is rated well qualified, the bar group will be derided by those conservative stalwarts, such as columnist George F. Will, who have declared her unqualified and an embarrassment. If she is rated not qualified or less-than-unanimously qualified, the wrath will come from the White House, which disassociated itself four years ago from the prescreening relationship with the ABA that had been in place for decades."

It goes on to suggest the possibility of another form of cronyism, quoting one source who said: "Miers has had a lot of involvement in the ABA and there may be feelings of loyalty." Another source said that if Miers gets the same rating as constitutional law practitioners John Roberts and Ruth Bader Ginsburg, then the ratings don't mean much: "For the ABA to give [Harriet Miers] a 'well qualified' rating would really dilute the effectiveness of these ratings, not just to conservatives but to moderates as well."

Monday, October 24, 2005

Miers' nomination hits the red line

This report quotes President Bush as saying, by way of explanation about why he will not release the Harriet Miers papers from her work as White House counsel, "That would breach very important confidentiality, and it's a red line I'm not willing to cross."

He's not willing to cross the red line? Ordinarily, I would assume that means something about ice hockey or the D.C. Metro, I'm not sure which. (At Metro Center, I think you can walk under the Red Line.)

Sunday, October 23, 2005

The Commission on Courts in the 21st Century

This press release announces the formation of the Commission on Courts in the 21st Century, to forecast the needs of Virginia courts 10-15 years into the future.

When is a publicly-owned road not a highway under Virginia law

In U.S. v. Adams, Judge Luttig of the Fourth Circuit followed up on his earlier opinion in U.S. v. Smith, concluding once again that driving on federal property not open to the public is not subject to the rules of the road for Virginia's highways.

What these opinions don't say, I suppose, is that even if you could not be driving illegally, you could be guilty of criminal trespass, either on the CIA access road or the Jericho Ditch Lane in the Great Dismal Swamp National Wildlife Refuge.

Class certification denied in hostile work environment claim against Roanoke City sheriff

In King v. McMillan, Judge Wilson refused to certify a class action for claims of sexual harassment brought against the Sheriff for the City of Roanoke, concluding that the motion for class certification was untimely and failed to meet the required elements of numerosity and commonality.

Prison Litigation Reform Act does not apply to action brought by administrator of deceased inmate's estate

Denying the defendants' motions to dismiss in Simmons v. Johnson, Judge Conrad held, among other things, that the Prison Litigation Reform Act did not apply to the plaintiff's claims as the administrator of the estate of an inmate who committed suicide in prison.

The Condoleezza Rice coin toss

Here is a picture of the Secretary of State tossing the coin at the Tennessee-Alabama game.

I wrote the other day that the White House needed to put out some football stories about Harriet Miers, but this was not the kind of thing I had in mind at all.

On Miers and money

Atrios is more disturbed on items 3 and 4 on this list of money delinquencies attributed to Supreme Court nominee Harriet Miers.

I would have thought that items 1 and 2, related to the suspensions of her law license for failure to pay dues, were more important, at least before Judge Thomas Griffith was confirmed to the D.C. Circuit, having not paid for three years.