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During the 2016 presidential election campaign, then-candidate Donald Trump made numerous appeals to win over Christian voters who felt as though their religious convictions were no longer welcome in the public square. He pledged to eschew political correctness by saying “Merry Christmas” instead of “Happy Holidays,” to expand efforts to protect the religious freedoms of conservative Christians, and to appoint to the U.S. Supreme Court conservative justices who would strictly apply the Constitution and resist the impulse to legislate from the bench. Partly as a result of these appeals, more than 80% of white evangelicals voted for him, and more than 75% continue to support him today.
Christians still represent the largest religious group in the United States, but survey research from the Pew Research Center shows that the percentage of Americans who identify as Christians has dropped quickly: in 2007, 78.4% identified as Christian, compared to only 70.6% by 2014. During that same time period, people of faith identifying as Jewish, Muslim, and Hindu increased in number, while the fastest growing group were those who claimed no religious affiliation. In 2014, 22.8% of all Americans identified as Agnostic, Atheistic, or “nothing in particular,” up from 16.1% in 2007.
This pluralistic trend is also seen in the current Congress, which is the most religiously diverse in our nation’s history. The majority still overwhelmingly identifies as Christian, but Protestants now represent only 56% of the entire body. Catholics are nearly one-third (31%), and Jews are almost 6%. In addition, among those elected in 2016, three were Buddhists, three Hindu, and two Muslim; surprisingly, ten members (9%) declined to state any faith at all.
Although Cuomo chose to endorse only those values that resonated with the community at large, the U.S. Constitution does not require public officials to set aside their personal faith in order to serve the public. In fact, Article VI prohibits the use of a religious test as a qualification for public office. That means public officials may endorse public policy solutions that are consistent with their religious beliefs or which espouse no particular faith at all. Nevertheless, even though the Constitution prohibits barring believers from public office, public pressure can make it more difficult for believers to be confirmed for administrative or judicial positions. As a recent example, Senate Democrats nearly succeeded in blocking the confirmation of Betsy DeVos, President Trump’s pick to head the Department of Education, in part because they believed her conservative Christian beliefs would lead her to reverse Obama-era protections for LGBT students. Similarly, Senator Dianne Feinstein’s (D-CA) tough questioning of Amy Coney Barrett, a Catholic judicial nominee for the United States Court of Appeals for the Seventh Circuit, was based on her concern that Barrett’s religious convictions would lead her to use her judicial office to undo case precedents that expanded women’s reproductive rights.
Given an increasingly pluralistic world, some worry that Christians who serve the public as government officials will thwart the will of the people and refuse to implement laws that contradict the tenets of their faith. Perhaps the most famous example of this is Kim Davis, the elected county clerk in Kentucky who refused to issue a marriage license to a gay couple following the U.S. Supreme Court’s decision in Obergefell vs. Hodges (2015). Davis, who was jailed in contempt of court for her refusal to issue marriage licenses as required under state law, explained that it would violate her conscience to obey a law that contradicted a core tenet of her faith. Her subsequent appeal to the U.S. Court of Appeals for the Sixth Circuit was summarily rejected.
Although the U.S. Supreme Court declined to take up the case, it is not likely that Davis would have succeeded in her request to be granted a legal exemption, even if she had been granted her day in the nation’s highest Court. While the First Amendment to the U.S. Constitution guarantees that “Congress shall make no law…prohibiting the Free Exercise [of religion],” a provision which has often led the U.S. Supreme Court to require accommodations for religious believers who are uniquely burdened by government requirements, Article VI of the U.S. Constitution also states that “Senators and Representatives,… Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by oath or affirmation, to support this Constitution.” Because she is a government actor, the Court would likely have ruled instead that Davis’s primary obligation was to uphold its own constitutional ruling. Legislatures have the ability to accommodate government officials who have religious objections to enforcing a law, but there is currently no Court precedent that would provide an automatic First Amendment exemption for an official seeking to avoid this responsibility.
In contrast, the Court has emphatically declared that civil law supersedes religious exercise. The first instance of this is seen in Reynolds v. United States (1878). In this case, George Reynolds argued that he should be exempted from the federal Morrill Anti-Bigamy Act because his Mormon religion required him to take multiple wives in order to remain in good standing with God. If he failed to commit polygamy, he would be punished by the church in this life and risk damnation in the next. As a result, he argued that he should be exempted from the Anti-Bigamy Act because it unduly burdened his constitutional right to freely practice his religion. In considering this claim, the Court acknowledged that the Constitution protects the right of religious believers to freely practice their faith. However, [what is “it” referring to?] the Court noted that if a person could be excused from every law that conflicted with her or his religious beliefs, the religion would become “superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances” (98 U.S. 167).
Nevertheless, in issuing rulings akin to giving “to Caesar what belongs to Caesar, and to God what belongs to God” (Mark 12:17), the Court has expanded protections for religious minorities so that they are often exempted from non-criminal laws. Today, for example, believers do not have to salute the flag (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 1943); may be eligible for unemployment benefits if they cannot work on their Sabbath (Sherbert v. Verner, 374 U.S. 398, 1963); and may educate their teenagers at home, instead of sending them to school (Wisconsin v. Yoder, 406 U.S. 205, 1972). In addition, the Court has ruled that candidates for public office at the state level do not have to first declare a belief in God in order to be eligible for the position (Torcaso v. Watkins, 367 U.S. 488, 1961), nor are clergy banned from serving in public office (McDaniel v. Paty, 435 U.S. 618, 1978).
But, in other cases, the Court has declared that government may constrain private religious behavior, including that of public officials. Public school teachers, for example, may not lead students in corporate prayer (Engle v. Vitale, 370 U.S. 421, 1962); direct students in a daily Bible reading (School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203, 1963); or teach Creationism as part of a science curriculum (Edwards v. Aguillard, 482 U.S. 578, 1987). In addition, clergy may not give an invocation at a public school gathering (Lee v. Weisman, 505 U.S. 577, 1992), and students may not use the school public address system to pray corporately before a football game (Santa Fe Independent School District v. Doe, 530 U.S. 290, 2000).
Finally, city officials may not erect a stand-alone nativity scene at Christmas (County of Allegheny v. ACLU, 492 U.S. 573, 1989), and public buildings may not feature displays of religious imagery if they are devoid of historical and/or cultural context (McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 2005). This latter case parallels a case in Alabama, wherein a federal district court ordered the removal of a granite monument of the Ten Commandments from the rotunda of the Alabama Judicial Building – a decision that Alabama Supreme Court judge Roy Moore refused to enforce. A state panel subsequently removed him office, but Moore remained unapologetic: “I cannot forsake my conscience. I will not neglect my duty. And I will never, never deny the God upon whom our laws and our country depend."
Is this, then, what we can expect to see in an increasingly pluralistic and religiously diverse society? Will Christian believers who serve in public office increasingly refuse to comply with the law if they are not granted religious exceptions or when a policy violates their consciences? This is probably not likely, and, as a general rule, would be unwise.
Civil governments should not be viewed as instruments of God’s righteousness, bringing about only that which has been divinely decreed as good; but, rather, they should be viewed as examples of God’s common grace. Just as God “causes the sun to rise on the evil and the good, and sends rain on the righteous and the unrighteous,” (Matthew 5:45), civil government prevents humankind from operating out of pure self-interest. This staves off the condition where “everyone does what is right in their own eyes,” (Judges 17:6) and prevents society from devolving into a Hobbesian state of nature, wherein life is “solitary, poor, nasty, brutish, and short.” Flawed though it may be, civil government is better than the absence of government, and even bad governments can be instruments to promote justice and restrain evil.
Undoubtedly, though, there may be times in which public servants find themselves torn between allegiance to God and allegiance to government, but in democratic regimes where people influence policy, these instances should be rare. Even in non-democratic regimes, the presumption is that people will obey the law so they might live quiet and peaceful lives (1 Thessalonians 4:11). Accordingly, there are only a few instances in Scripture wherein God seemingly rewarded people for disobeying government decrees. For example, God blessed the Egyptian midwives for refusing to murder newborn Hebrew boys (Exodus 1:17-20); God protected Shadrach, Meshach, and Abed-nego from dying when they were thrown in a furnace for defying the king’s order to worship a false deity (Daniel 3); and God kept Daniel from being eaten when he was thrown in a pit of lions for disobeying orders prohibiting people from petitioning or praying to anyone other than the king (Daniel 6). Instead, Scripture includes numerous stories wherein God elevated people to high positions not so that they could undermine the law, but so that they could use their influence to accomplish good and thwart evil. For instance, Joseph used his government office to keep his people from starving to death (Genesis 41-47), Esther used her royal position to save the Jews from extermination (Esther 7), and Gamaliel used his position of respect to persuade the Council of Pharisees to release Peter and the apostles before they were put to death (Acts 5).
While these examples may inspire a call to service, religious believers who serve their neighbors in an official capacity should first exercise humility by recognizing that none of us are exempt from the self-interest that plagues humanity. Often, our desire to “turn over the temple tables” (Matthew 21:12-13) is grounded in pride and a desire for power, rather than genuine zeal for God or a selfless desire to correct injustices committed against others. Indeed, the authors of the Declaration of Independence noted that it is prudential to tolerate abuses and injustices rather than cast off established governments. Rebellion is only warranted when leaders become despots, inflicting injury upon their own people and resisting calls for correction—as those early American patriots argued had happened in the relationship between the colonies and their English king.
Today, many Christians – particularly conservative ones – fear that a pluralistic society will result in laws that are more tyrannical than democratic. They note, for example, that policy changes are enacted via judicial decree without regard to public opinion and our deeply polarized institutions enact laws without regard for minority viewpoints or without adequately accommodating sincere religious objectors. They feel that the political system is no longer responsive to their viewpoints and that they have to take increasingly drastic measures in order to be heard.
Understanding that conditions would be far worse in a different type of regime, Christians would be wise to do what they can to build up the house of democracy by encouraging collaboration and compromise, strengthening responsiveness to injustices, and securing protections for persons and communities who maintain countercultural convictions, even when they diverge from their own. In doing so, they would be doing their part to establish a more perfect union, thus securing the blessings of liberty for themselves and their posterity.
-Jennifer E. Walsh (PhD) is dean of the College of Liberal Arts and Sciences and a professor of political science at Azusa Pacific University.

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The legal dimension of response to intervention (RTI) has been the subject of considerable confusion. This brief article provides an overview of the prevailing misperceptions, or what may be termed the “common lore,” and the corresponding objective recitations, or the actual law, regarding RTI. Many of the misinterpretations are due to the professional norms or particular preferences of scholars from the various fields—including school psychology and developmental neuroscience—that intersect at special education. Because of the relative paucity of primary legal sources to date, the objective recitations largely consist of the policy interpretations of the U.S. Department of Education’s Office of Special Education Programs (OSEP), which is the specific administering agency for the Individuals with Disabilities Education Act (IDEA 2011), with due recognition that this source is at the outer margin of what is generally considered law (e.g., Zirkel, 2003).
The various state and local provisions for general education interventions, such as instructional support teams and school-based problem solving teams, legally qualify as RTI.
Although RTI is not limited to one specific model and although various states have legal provisions for prereferral or general education interventions, OSEP has repeatedly recited four distinguishing core characteristics of RTI: 1) high quality, research-based instruction in general education; 2) continuous progress monitoring; 3) screening for academic and behavior problems; and 4) multiple tiers of progressively more intense instruction (e.g., Memorandum to Chief State School Officers, 2008; Memorandum to State Directors of Special Education, 2011). In most cases, these other forms of general education interventions—although they are precursors to RTI—do not fulfill the systematic nature of these defining characteristics. Indeed, in many states, the state laws that provide for other such interventions are separate from, rather than coordinated with, RTI (Zirkel, 2011b).
The IDEA provides specific requirements for RTI, such as the number of tiers and the duration of the intervention at each tier.
The commentary accompanying the IDEA regulations makes clear that the intent was to avoid prescribing or endorsing any one of the various models of RTI (p. 46,653). Moreover, in this commentary (p. 46,658) and in subsequent policy interpretations concerning the duration of RTI and its interplay with the required evaluation (e.g., Questions and Answers on RTI and EIS, 2007), OSEP declined to define “an appropriate period” or “adequate progress.” Instead, consistent with the agency’s clear intent, such specific features only appear in state laws or guidelines, whether in permissive or mandatory form (Zirkel & Thomas, 2010).
The IDEA provides for the use of RTI beyond identification of students with specific learning disabilities (SLD).
It is not uncommon to find in the professional literature the view that the IDEA provides for the generic use of RTI extending well beyond SLD identification (e.g., Daves & Walker, 2012). Yet, a careful review of the IDEA legislation and regulations clearly reveals that the only reference to and recognition of the use of “a process that determines if the child responds to scientific, research-based intervention” (i.e., RTI) is limited to the identification of students with SLD (20 U.S.C. § 1414[b][B]; 34 C.F.R. §§ 300.307, 300.309, and 300.311). Other sources confirm this conclusion. First, OSEP has clarified that the IDEA does not address the use of an RTI model for children suspected of having disabilities other than SLD, which is a matter for states (Letter to Brekken, 2010). Second, OSEP has similarly rejected the interpretation that the reference to “behavior” in the IDEA regulation for the required observation in identifying students with SLD implies that RTI “extends to other classifications more closely connected to behavior” (Letter to Zirkel, 2011). Third, a recent review of state special education laws reveals that very few states have extended RTI beyond SLD identification, and—with the exception of Louisiana—these extensions are limited at most to one other disability classification (Zirkel, 2011b).
The IDEA requires the use of RTI.
Quite the contrary, the IDEA legislation is only permissive, not mandatory, in relevant part. More specifically, the 2004 amendments only established that in determining whether a child qualifies as having SLD, a local education agency “may” use RTI (20 U.S.C. § 1414 [b][B]). The 2006 regulations clarify that each state must permit RTI for SLD identification, which leaves them with the option to require or allow it, but not to prohibit it (34 C.F.R. § 300.307[a]). The other two specified choices are 1) to permit or prohibit, but not require, the traditional severe discrepancy approach, and 2) to permit the use of “other alternative research-based procedures” for determining presence of SLD in a student. Although approximately a dozen states opted for the mandatory approach, the vast majority of the separate state laws permit RTI for SLD identification, thus leaving the ultimate choice to the local level (e.g., Zirkel & Thomas, 2010).
RTI equates to or subsumes the IDEA’s required eligibility evaluation for SLD.
Quite the opposite, in the commentary accompanying the regulations (e.g., 71 Fed. Reg. pp. 46,647–46,648) and in subsequent policy interpretations (e.g., Letter to Prifitera, 2007; Letter to Zirkel, 2007b), OSEP has repeatedly emphasized that RTI, in states and local education agencies where in use, is only one component of the SLD identification process and is not, in itself, the equivalent to or replacement of the required comprehensive evaluation.
The use of RTI for SLD identification generally requires parental consent.
The requirement for parental consent would be the exception rather than the rule. More specifically, OSEP has explained that the IDEA does not require parental consent for RTI to the extent that it constitutes screening prior to the evaluation process (Letter to Torres, 2009).
The provision in the IDEA regulations for “a pattern of strengths and weaknesses” for SLD identification refers to RTI.
More specifically, the reference in the IDEA regulations is “a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of [SLD]” (34 C.F.R. § 300.309[a][ii]). OSEP has clarified that this regulatory language refers to the permissible methods other than RTI, namely, severe discrepancy and the third, research-based alternative (Letter to Zirkel, 2008). Moreover, the commentary accompanying the IDEA regulations clarified that the use of the term “intellectual development” in this provision “is consistent with the discretion provided in the Act in allowing the continued use of discrepancy models” (p. 46,651).
With or without RTI, the IDEA requires—or, alternatively, prohibits—IQ testing to determine whether the child qualifies as having SLD.
Although the IDEA’s definition of SLD includes a psychological processing component (20 U.S.C. 1402), the commentary accompanying the regulations clarifies that “the Department [of Education] does not believe that an assessment of psychological or cognitive processing should be required in determining whether a child has an SLD” (71 Fed. Reg. 46,651). Thus, the IDEA does not require IQ testing for SLD identification. Conversely, however, the IDEA permits IQ testing for SLD identification, as Item 7’s reference to “intellectual development” for the severe discrepancy approach illustrates. Indeed, although an early California case prohibited the use of IQ tests for determining eligibility of minority students as having intellectual disabilities under the IDEA (Larry P. v. Riles, 1979/1984), a federal court in another jurisdiction reached the opposite conclusion (PASE v. Hannon, 1980), and a subsequent ruling in California rejected the extension of Larry P. to SLD identification of minority students (Crawford v. Honig, 1994).
For SLD identification, the IDEA requires the use of either RTI or severe discrepancy (or the third research-based alternative) alone; it does not permit a combination of these approaches.
Quite the contrary, in a policy letter interpreting the IDEA, OSEP has made clear that states may permit any combination of the three aforementioned options, or approaches, identified in the regulations (Letter to Zirkel, 2007a).
The RTI approach for identifying students with SLD will generate a spate of losing litigation concerning child find under the IDEA.
Despite dire predictions in the special education literature, major problems of RTI in terms of child find litigation (e.g., Walker & Daves, 2010; Yell, Katsiyannis, & Collins, 2010) and repeated warnings from OSEP not to use RTI to delay or deny IDEA evaluations (e.g., Memorandum to State Directors, 2012), RTI has generated relatively negligible child find litigation under the IDEA, with the outcomes being notably deferential to districts. The reason is not a time lag in implementing RTI, because most states had implemented the provision in the 2004 IDEA legislation and the 2006 IDEA regulations by 2008, with at least a dozen states opting to require RTI and the rest duly permitting it (Zirkel & Thomas, 2010). Thus far no published court decision has specifically concerned RTI and child find, and the few pertinent hearing officer decisions have been deferential to school districts (e.g., Cobb County School District, 2012; Joshua Independent School District, 2010). Interestingly, the only notable child find violations to date have been Office for Civil Rights’ letters of findings under Section 504 (e.g., Harrison School District, 2011; Polk County Public Schools, 2010) rather than court decisions under the IDEA.
Regardless of child find and the winning/losing outcome, RTI has accounted for several published court decisions that provide generalizable guidance as to the implementation of this approach to SLD identification.
Although RTI has been mandatory in at least 10 states for at least 3 years and although various local school districts have adopted it in the permissive states since the 2006 IDEA regulations, not one published court decision has yet emerged that is generalizable. The closest case was the Ninth Circuit’s decision in Michael P. v. Department of Education (2011), but as explained elsewhere (Zirkel, 2012), it is narrowly limited to the unusual status of Hawaii, in which the state education agency is also the local education agency, and the transitional period between the IDEA’s 2004 amendments and its 2006 regulations. The few other court decisions that have mentioned RTI are unpublished and entirely peripheral to RTI, with the SLD determination based instead on the severe discrepancy approach (e.g., Daniel P. v. Downingtown Area School District, 2011). The most recent of these unpublished decisions came close, to the extent that the child participated in the RTI process for reading; however, the district determined eligibility based on severe discrepancy, and the court ruled that the law did not require the district to disclose the RTI data to the parents or to use these data for IEP development (M.M. v. Lafayette School District, 2012). Finally, as specifically cited elsewhere (Zirkel, 2011a), the relatively few hearing or review officer decisions have reflected, rather than resolved, the confusion concerning RTI.
Cobb Cnty. Sch. Dist., 58 IDELR ¶ 180 (Ga. SEA 2012).
Crawford v. Honig, 37 F.3d 485 (9th Cir. 1994).
Daves, D., & Walker, D. W. (2012). RTI: Court and case law—Confusion by design. Learning Disabilities Quarterly, 35(2), 68–71.
Harrison (CO) Sch. Dist., 57 IDELR ¶ 295 (OCR 2011).
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1401 et seq. (2011).
IDEA regulations, 34 C.F.R. §§ 300.1 et seq. (2011).
IDEA regulations commentary, 71 Fed. Reg. 46,540 et seq. (Aug.14, 2006).
Larry P. v. Riles, 495 F. Supp. 926 (N.D. Cal. 1979), aff’d in part, rev’d in part, 793 F.2d 969 (9th Cir. 1984).
Letter to Zirkel, 48 IDELR ¶ 192 (OSEP 2007a).
Letter to Zirkel, 47 IDELR ¶ 268 (OSEP 2007b).
Letter to Zirkel, 49 IDELR ¶ 50 (OSEP 2008).
Memorandum to Chief State School Officers, 51 IDELR ¶ 49 (OSEP 2008).
Memorandum to State Directors of Special Education, 56 IDELR ¶ 50 (OSEP 2011).
M.M. v. Lafayette Sch. Dist., 58 IDELR ¶ 132 (N.D. Cal. 2012).
PASE v. Hannon, 506 F. Supp. 831 (N.D. Ill. 1980).
Polk County (FL) Pub. Sch., 56 IDELR ¶ 179 (OCR 2010).
Questions and Answers on Response to Intervention (RTI) and Early Intervening Services (EIS), 47 IDELR ¶ 196 (OSERS 2007).
Walker, D. W., & Daves, D. (2010). Response to intervention and the courts: Litigation-based guidance. Journal of Disability Policy Studies, 21(1), 40–46.
Yell, M., Katsiyannis, A., & Collins, J. (2010). Compton Unified School District v. Starvenia Addison: Child find activities and response to intervention. Journal of Disability Policy Studies, 21(2), 67–69.
Zirkel, P. A. (2003). Do OSEP policy letters have legal weight? West’s Education Law Reporter, 171(2), 391–396.
Zirkel, P. A. (2011a). RTI and the law. West’s Education Law Reporter, 268(1), 1–16.
Zirkel, P. A. (2011b). State laws and guidelines for RTI: Additional implementation features. Communiqué, 39(7), 30–32.
Zirkel, P. A., & Thomas, L. (2010). State laws and guidelines for implementing RTI. Teaching Exceptional Children, 43(1), 60–73.


In Brown, III v. United of Omaha Life Insurance Company, No. 15-4293 (6th Cir. 2016) (Unpublished), plaintiff Lloyd Brown III (“Brown III”) alleged that defendants United of Omaha Life Insurance Company (“United”) and West Side Transport, Inc. (“West Side”) wrongfully denied him life insurance benefits. Brown III asserted contractual and equitable state law claims and, in the alternative, causes of action under ERISA §§ 502(a)(1) (claim for benefits) and 502(a)(3) (claim for equitable relief).
The district court concluded that Brown III’s state law claims against United and West Side were preempted by ERISA, granted summary judgment to Brown III on the merits of his ERISA § 502(a)(1) claim against United, and found that Brown III was not entitled to relief under ERISA § 502(a)(3) because § 502(a)(1)(B) fully provides a means for the relief sought. The district court then awarded Brown III $181,666.67 in damages for benefits due him under United’s life insurance policy, prejudgment interest, and $27,040.00 in attorneys’ fees. United appeals the judgment and remedies awarded.
Upon review, the Sixth Circuit Court of Appeals (the “Court”) affirmed the district court’s grant of summary judgment to Brown III on the merits of his § 502(a)(1) claim for benefits, since United’s reason for denying the benefits-failure to submit certain evidence of insurability-was arbitrary and capricious and could not be upheld. The Court also affirmed the district court’s awards of prejudgment interest and attorneys’ fees. However, the Court reversed the district court’s summary judgment to United on Brown III’s § 502(a)(3) claim. The Court said that, while a plaintiff cannot “repackage” a claim for benefits under 502(a)(1) into a claim for equitable relief under 502(a)(3) and thus recover twice, here, the plaintiff can pursue the claim for equitable relief if it is based on an injury that is separate and distinct from the denial of benefits, or if the claim for benefits is inadequate to make the plaintiff whole. The Court then remanded the case back to the district court to determine whether equitable relief is available.


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Key words: two-sided Pronyʼs method, spectral parametric estimation, digital signal processing, redefined system of Yule – Walker equations, quasi-inverse matrix, minimization of average error square, weight vector.
Key words: micromechanical sensing elements, angular orientation system, roll, course, pitch, kinematic equations, Rodrigo-Hamilton parameters, invariant blocking scheme, adaptation, noise estimation.
Key words: adaptive processing, analysis, Doppler phase, correlation coefficients, multifrequency signals, adaptation errors, clutter, processing efficiency.
Autors: V. K. Klochko, S. M. Gudkov, X. K. Nguyen.
Key words: two-position system, passive radiovision, mutual orientation, conjugate vectors, estimation of ranges.
Autors: B. A. Atayants, V. M. Davydochkin, V. V. Ezerskiy.
Key words: frequency range finder, measurement error, phase additives method, influence of parasitic frequency modulation.
Autors: M. M. Gourary, M. M. Zharov, S. G. Rusakov, S. L. Ulyanov.
Key words: linear dynamical system, multiport blocks, implicit multistep integration formulae, transfer function, differential equations, delay differential equations, circuit simulation, electromagnetic interactions, net-list.
Autors: О. V. Druzhinina, O. N. Masina, A. A. Petrov.
Key words: mathematical modeling, controlled technical systems, differential inclusions, variability, multivaluence, optimization, algorithms, artificial neural networks, gradient descent method, genetic algorithms.
Key words: clustering, hyperspectral images, neural map, filtration, remote Earth sensing.
Autors: A. D. Zaltsman, A. S. Alyoshkin.
Key words: algorithms for constructing random networks, algorithms for modeling network clustering and percolation, software for percolation modeling.
Autors: K. K. Otradnov, V. K. Raev.
Key words: clustering efficiency, quality metrics, processing time, clustering algorithms, vector document representation models.
Autors: A. V. Gigolaev, N. I. Tsukanova.
Key words: text, words, context, clustering, Kohonen map, metric, neural network, fuzzy sets and fuzzy relations, fuzzy graph.
Autors: A. G. Smychkova, E. G. Andrianova.
Key words: group selection; social systems; modeling of voters’ behavior; kinetic differential equations; election campaign; transition diagram; almost periodic functions; forecasting.
Autors: L. A. Ponomareva, O. N. Romashkova, I. P. Vasiljuk.
Key words: structural subdivisions of the university, efficiency evaluation, calculation algorithm, discriminant analysis, rating, department, efficiency boundary.
Autors: V. YA. Tsvetkov, V. V. Oznamets.
Key words: fuzzy sets, soft calculations, spatial analysis, information situation, fuzzy information situation.
Key words: small-sized sealed-off TEA–CO2 laser, generation characteristics, pumping efficiency, temperature regime of laser active element, laser radiation pulse parameters, laser radiation energy in pulse, pulse radiation duration, pulse power.
Key words: pulse repetition rate, average radiation power, «electrical wind» effect, unipolar crown discharge, gas addition, transverse gas blowing, gas dynamic method of gas flow velocity measurement, dynamic pressure.
Autors: V. A. Stepanov, A. I. Kudyukin, E. N. Moos, N. B. Rybin, A. T. Rott, K. E. Seregin.
Autors: A. I. Kudyukin, M. N. Makhmudov, E. N. Moos, A. T. Rott, K. E. Seregin, V. A. Stepanov, L. F. Sjatisheva.
Key words: hydrogen furnace, vacuum, arc extinguishing chamber, temperature gradient, metal ceramics, mode, computer graphics, pumping, vacuum furnace, components, section, technology.
Autors: V. A. Korotchenko, V. K. Bazylev, V. E. Skvortsov, A. M. Zhidkov, T. N. Andreasyan.
Key words: orbitron vacuum sensor, сomputer modelling, motion of electrons.
Autors: E. V. Maraeva, V. A. Moshnikov.
Key words: Lead chalcogenides, photoconductivity, phase equilibrium, triangulation method.

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Gloria BERNAL-RENDON, et al., Petitioners, v. Alberto R. GONZALES, United States Attorney General, Respondent.
Before MURPHY, BYE, and SMITH, Circuit Judges. D. Warren Hoff, argued, St. Louis, Missouri, for appellant. Melissa Neiman-Kelting, argued, Washington, D.C, for appellee.
Gloria Bernal-Rendon, her husband Jairo Rios-Giraldo, and her two daughters (petitioners) appeal from a decision of the Board of Immigration Appeals (BIA). The BIA affirmed and adopted the decision of the immigration judge (IJ), denying petitioners' asylum claim, request for withholding of removal, and request for protection under the Convention Against Torture (CAT), but granted petitioners voluntary departure. Petitioners seek reversal and remand of the BIA's decision. We affirm.
Petitioners are citizens of Colombia who resided in the city of Armenia, Colombia. Petitioners entered the United States as visitors and overstayed their departure date. They were arrested by the former Immigration and Naturalization Service and charged with being subject to removal under 8 U.S.C. § 1227(a)(1)(B) (2000) (staying beyond a departure date). Additionally, Bernal-Rendon and Rios-Giraldo were charged with removal under 8 U.S.C. § 1227(a)(1)(C)(i) (failing to maintain or comply with the conditions of a person's non-immigrant status).
Petitioners applied for asylum, withholding of removal, protection under CAT, or in the alternative, voluntary departure. Petitioners fear that if they return to Colombia, they would be targeted for persecution by the Fuerzas Armadas Revelutionarios de Colombia-Ejercito Popular (FARC). Bernal-Rendon claims that petitioners were targeted because of her imputed political opinion and/or her membership in a social group consisting of her family.
At a hearing before an IJ, Bernal-Rendon testified that her sister, Maribel Bernal-Rendon, a government engineer, was kidnapped, held for three days, and interrogated by the FARC. The interrogation included questions about the daily movements of Bernal-Rendon's family, including their residence, work location, and where the daughters went to school. Prior to Maribel Bernal-Rendon's kidnapping, another government engineer disappeared.
Bernal-Rendon testified that four months after her sister was kidnapped, a female from FARC controlled territory arrived unsolicited at petitioners's house seeking employment. Bernal-Rendon employed her as a maid. Maribel Bernal-Rendon warned Bernal-Rendon that the maid could be a FARC spy. Later, Bernal-Rendon fired this woman for offering to take her daughters to the park, the supermarket, or for a walk. The maid also asked on several occasions whether Bernal-Rendon thought she might kidnap her daughters. Following the firing, Bernal-Rendon and her husband received several threatening anonymous telephone calls. The callers indicated that they knew Maribel Bernal-Rendon worked for the government, that Bernal-Rendon's family “[has] enough money,” and that at any time she could “receive some scare ․ with regard to [her] daughters.” Bernal-Rendon and Rios-Giraldo did not report the telephone calls, change their telephone number, or hire a security guard. Bernal-Rendon claimed that they lived in a secure area.
Bernal-Rendon also testified that her daughters were driven to school by Rios-Giraldo and picked up for lunch. Bernal-Rendon stated that she did not go into the streets very often because of fear for her daughters. Petitioners received no other threats than the telephone calls. Bernal-Rendon's mother, father, and one sister still live in Armenia, Colombia. Her two other siblings live in Florencia, Colombia.
Bernal-Rendon submitted an affidavit executed by Maribel Bernal-Rendon, stating that Maribel Bernal-Rendon was an engineer, that several co-workers were kidnapped by FARC, held for three days and released, and that she was briefly kidnapped by FARC. She stated that her husband was briefly taken by FARC, but soon returned. The affidavit also indicated that Maribel Bernal-Rendon was concerned about the security of her family when Bernal-Rendon hired a maid who appeared to be a FARC spy. Maribel Bernal-Rendon also indicated that she received frequent blackmail telephone calls that she reported to the authorities.
We review questions of law de novo and accord substantial deference to the BIA's interpretation of immigration law and agency regulations. Tang v. INS, 223 F.3d 713, 718-19 (8th Cir.2000); Ikenokwalu-White v. INS, 316 F.3d 798, 804 (8th Cir.2003) (holding that the BIA's interpretation of immigration law is entitled to deference). We review an IJ's fact determinations under the substantial evidence test. Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986-87 (8th Cir.2003); Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir.2002). Under that test, we will affirm if the IJ's decision is supported by reasonable, substantial, and probative evidence. Melecio-Saquil, 337 F.3d at 986-87; Perinpanathan, 310 F.3d at 597. We will reverse only if the petitioner demonstrates that the evidence is so compelling that no reasonable factfinder could fail to find in favor of the petitioner. Melecio-Saquil, 337 F.3d at 986; Perinpanathan, 310 F.3d at 597. Where the BIA adopts and affirms the IJ's opinion, we review the IJ's decision directly. Loulou v. Ashcroft, 354 F.3d 706, 708 (8th Cir.2003); Hassanein v. Ashcroft, 380 F.3d 324, 327-28 (8th Cir.2004).
Petitioners contend that we should review their asylum claim because they subjectively and objectively demonstrated a well found fear of persecution upon return to Columbia. Asylum applicants must demonstrate by clear and convincing evidence that they filed an application within one year of arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). Petitioners failed to do this. There are exceptions to this rule, see 8 U.S.C. § 1158(a)(2)(D) (changed circumstances materially affecting an applicant's eligibility of asylum or extraordinary circumstances relating to the filing delay), but the petitioners have not raised them. Consequently, we lack jurisdiction to review the IJ's decision. 8 U.S.C. § 1158(a)(3) (“No court shall have jurisdiction to review any determination of the Attorney General” regarding the timeliness of an asylum application); Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir.2001) (finding § 1158(a)(3) to be an absolute bar to judicial review).
Relying on El Himri v. Ashcroft, 378 F.3d 932 (9th Cir.2004), petitioners argue that the IJ erred in denying their minor daughter's application for asylum. In El Himri, the Ninth Circuit agreed with the IJ that the one-year filing requirement does not apply to minors. We have declined to adopt the Ninth Circuit's position. See Begna v. Ashcroft, 392 F.3d 301, 303 (8th Cir.2004); Ismailov, 263 F.3d at 855.
An alien who shows there is a clear probability that her “life, or freedom would be threatened in [her] country because of [her] race, religion, nationality, membership in a particular social group or political opinion,” is eligible for withholding of removal. 8 U.S.C. § 1231(b)(3)(A)(1999); Ngure v. Ashcroft, 367 F.3d 975, 989 (8th Cir.2004). The alien “must establish that it is more likely than not that [she] will suffer persecution.” Id.
Petitioners contend that they are “members of a family that has suffered persecution at the hands of the guerillas who are everywhere.” However, petitioners's evidence does not meet the high standard of being “so compelling that no reasonable factfinder could fail to find” in their favor. Hassan v. Ashcroft, 388 F.3d 661, 666 (8th Cir.2004). Petitioners rely heavily upon Maribel Bernal-Rendon's kidnapping. However, the evidence does not show that Maribel Bernal-Rendon's kidnapping made persecution of Bernal-Rendon more likely. Rather, the kidnapping appeared to be connected to Maribel Bernal-Rendon's specific government employment. Further, although petitioners claim a threat based on their political opinion, they fail to discuss their political opinion or indicate how it differs from FARC.
While petitioners correctly contend that a nuclear family can constitute a social group, Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir.1993) (“There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.”); see also Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986) (the prototype of a social group would consist of “the immediate members of a certain family”), petitioners fail to prove that a specific threat exists to their family as a social group. Moreover, petitioners's extended family still lives without incident in the cities of Armenia and Florencia, Columbia. An alien's fear of persecution is reduced when her family remains unharmed in her native country. In re A-E-M, 21 I & N Dec. 1157 (BIA 1998).
Petitioners cannot show that there is a clear probability that their lives would be threatened based on membership in a social group or political opinion.
Under CAT, an alien must show that “it is more likely than not that [she] would be tortured if returned to the proposed country of removal.” Ngure, 367 F.3d at 992 (citing Perinpanathan, 310 F.3d at 599); 8 C.F.R. § 208.16(c)(2). In determining eligibility under CAT, “all evidence relevant to the possibility of future torture should be considered, including but not limited to: past torture inflicted upon the applicant; the applicant's ability to relocate to another area of the country where torture is unlikely; and gross, flagrant, or mass violations of human rights.” Ngure, 367 F.3d at 992; 8 C.F.R. § 208.16(c)(3). To sustain a CAT claim, petitioners must show that the government of Colombia is the agent of torture. See In re S-V-, 22 I & N Dec. 1306 (BIA 2000) (holding that third party actors are not covered by CAT). Petitioners failed to make such a showing as the claimed fear of torture was from FARC, not from the government of Colombia.
For the foregoing reasons we affirm the decision of the BIA.


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With less than two weeks left before the Supreme Court finishes its term and begins its summer recess, there remain several major--i.e., possibly blockbuster--decisions yet to be announced. They deal with presidential power to restrict foreign entry, partisan gerrymandering, privacy from technological surveillance, union dues, and internet taxation.
Trump v. Hawaii. This, of course, is the challenge to President Trump's so-called "travel ban"--the 3rd one. The core substantive issues are whether the ban is overly broad (i.e., whether it restricts the entry of a larger category of foreigners into this country than is reasonably necessary for the purported national security purpose), whether it violates constitutional non-establishment principles by taking sides against Muslims, and even whether the president has the authority to issue such an order under the Constitution or congressional legislation.
Gill v. Whitford. The Court must decide whether courts may even hear cases that challenge a redistricting drawn by a state legislature that favors the majority political party. If the answer to that is yes, then the Court must decide whether hyper-partisan gerrymandering is constitutional--e.g., where the party in power carves districts so that it wins a significant disproportion of the state's district elections, even though the other party actually wins most of the votes statewide.
Carpenter v. United States. This case presents the Court with an ever increasing concern about privacy rights amidst the current technological revolution. The issue involves government surveillance of someone's whereabouts and movements, without a warrant and without probable cause, through the use of data obtained from a cell-.phone company. This critical question involving privacy rights arises largely because of two 4th Amendment doctrines created by the Court.
The first is the so-called "third party" doctrine." Under that doctrine, the Court has ruled that someone has no constitutional rights against the government searching through any information if anyone else lawfully has that information--e.g., information about someone's spending obtained through credit card company records; information about phone calls someone has made and received through a phone company's records. So here, the cell-phone company lawfully has data about the location and movements of someone's cell phone and, thus, under the "third party" doctrine, government may search that data without a warrant or probable cause.
The second is the "trespass" theory of the 4th Amendment, recently revived by the late Justice Scalia in a majority opinion over a blistering concurring opinion by Justice Alito. In that case (U.S. v. Jones, 2011), the unanimous Court held it was unconstitutional for government to monitor a driver's movements, without first obtaining a warrant, through means of a GPS device attached to the driver's car. Scalia declared that the surveillance was an unconstitutional search because the government had trespassed on the driver's private property, his car, by attaching the GPS without his consent. Justice Alito criticized Scalia's reasoning on the ground that the trespass-upon-property theory of the 4th Amendment had long been discarded and because it is entirely inadequate to protect legitimate privacy concerns today inasmuch as most technological surveillance requires no trespass at all--e.g., drones, satellites, cameras, etc.
We'll see if a majority of the Court rejects, limits, or retains those doctrines.
Janus v. American Federation of State, County, and Municipal Employees. The question here is the validity of "agency fees." These are the reduced union dues imposed on public employees who are not members of the public sector union which, nevertheless, is obligated to represent the non-members in collective bargaining and other worker-related matters. The competing interests here are, on the one hand, the fairness to the union and its members to have non-members contribute their "fair share" to help defray the costs incurred by the union in representing them. On the other hand, there are the First Amendment rights of the non-members who do not wish the union to speak for them and do not wish to associate with the union.
At stake is the 1977 precedent, Abood v. Detroit Board of Education, where the Court upheld such non-member dues.
South Dakota v. Wayfair, Inc. At stake in this case is another precedent, this one, the 1992 decision in Quill Corp. v. North Dakota, where the Court invalidated state sales taxation on internet sales unless the seller-company had an actual physical presence in the state. The issue for the Court is whether the extraordinary increase in internet commerce and the omnipresence of "virtual storefronts"--on smartphones and tablets and other modern technological devices--makes the physical presence requirement outdated. Also of concern is the unfairness to traditional retailers with actual storefronts who have been subjected to state sales taxes while internet businesses have not.
The decisions in these cases could bring significant change to the law in several enormously important areas of government power, politics, business, working arrangements, and privacy. Indeed, by all accounts, some real blockbusters are expected as the Supreme Court's comes to a close.

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HELEN BROWN vs. OFFICE OF THE COMMISSIONER OF PROBATION.
Suffolk. April 21, 2015. – August 4, 2015.
Present: Green, Fecteau, & Agnes, JJ.
Public Employment. Governmental Immunity. Judgment, Interest. Damages, Punitive, Interest, Attorney’s fees. Interest. Waiver. Practice, Civil, Interest, Waiver, Attorney’s fees, Costs.
Civil action commenced in the Superior Court Department on August 13, 2007.
Following review by this court, 84 Mass. App. Ct. 1109 (2013), a motion for postjudgment interest was considered by Paul E. Troy, J., and judgment was entered by him.
Jonathan J. Margolis (Beth R. Myers with him) for the plaintiff.
Sally A. VanderWeele, Assistant Attorney General, for the defendant.
David A. Russcol, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.
FECTEAU, J. This case presents the novel issue of whether a plaintiff who recovers punitive damages as part of a judgment under the provisions of G. L. c. 151B, § 9, against a subdivision of the Commonwealth may be awarded postjudgment interest on that award and on the award of attorney’s fees and costs, or whether sovereign immunity bars such interest. The statutes relevant to the issue, including those under which the punitive damages were awarded, i.e., c. 151B, and G. L. c. 235, § 8 (interest on judgments), are silent on the matter. Neither the Appeals Court nor the Supreme Judicial Court has squarely addressed the issue in a published opinion with respect to c. 151B. In Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 465 Mass. 584, 597‑598 (2013), the Supreme Judicial Court stated, “the general rule is that ‘the Commonwealth . . . is not liable for postjudgment interest in the absence of a clear statutory waiver of sovereign immunity in that regard,’” and “entities entitled to sovereign immunity are not liable for interest under G. L. c. 235, § 8, absent an unequivocal statutory waiver,” citing Chapman v. University of Mass. Med. Center, 423 Mass. 584, 586 (1996). Thus, we must discern whether this case presents an exception to the general rule.
In Todino v. Wellfleet, 448 Mass. 234, 238 (2007) (Todino), the court generally observed that “[m]unicipal liability implicates the doctrine of sovereign immunity, which protects the public treasury from unanticipated money judgments. Sovereign immunity prohibits liability against the Commonwealth [and] . . . its instrumentalities . . . except with [the Commonwealth’s] consent, and, when that consent is granted . . . only in the manner and to the extent expressed . . . [by] statute” (citation and quotation omitted). The court also noted that “[t]he rules of construction governing statutory waivers of sovereign immunity are stringent.” Ibid. (quotation omitted). However, it allowed that “even a strict interpretation must be reasonable, and our focus remains on the intent of the Legislature. If sovereign immunity is not waived expressly by statute, we consider whether governmental liability is necessary to effectuate the legislative purpose.” Ibid. (citations omitted). See DeRoche v. Massachusetts Commn. Against Discrimination, 447 Mass. 1, 12-13 (2006) (DeRoche). Thus, the issue presented in this case reduces to whether sovereign immunity has been waived by necessary implication in regard to postjudgment interest on punitive damages, costs, and attorney’s fees in an award against the Commonwealth or its entities under c. 151B.
The Commonwealth contends that sovereign immunity has not been waived for this type of postjudgment interest. It urges that there is a substantial and practical reason that justifies treatment of the Commonwealth differently from private employers. While it recognizes that G. L. c. 151B, § 1(1) and (5), includes the Commonwealth in the statutory definition of “persons” and “employers” subject to c. 151B, and that generally the Legislature intended for the Commonwealth to be treated the same as private employers under most of the statutes and rules applicable in c. 151B proceedings, it argues that postjudgment interest on punitive damages is fundamentally different in kind from any other type of award or benefit. This is true if only because the amount of punitive damages is neither foreseeable nor readily available for payment given the system of balanced budgeting and that State departments and agencies must depend on legislative appropriation for their funding, thus requiring time to obtain funds necessary to pay such awards. Indeed, as noted in M. O’Connor Contr., Inc. v. Brockton, 61 Mass. App. Ct. 278, 285 n.12 (2004), “[p]unitive damages, by definition, are not intended to compensate the injured party, but rather to punish and deter the wrongdoer; yet an award of punitive damages against a municipality punishes only the taxpayers, who took no part in the wrongful conduct, but who nevertheless may incur an increase in taxes or a reduction in public services as a result of the award. See Newport v. Fact Concerts, Inc., 453 U.S. [247,] 266-267 .” Thus, the underlying reasoning for postjudgment interest on awards under c. 151B — to encourage prompt payment by employers — ought not apply to the Commonwealth.
The plaintiff relies on DeRoche, supra at 3, where the Supreme Judicial Court reviewed a judgment of the Superior Court affirming an award entered by the Massachusetts Commission Against Discrimination (MCAD) on a complaint brought under G. L. c. 151B, § 5, against a public entity. The MCAD found for the plaintiff and awarded compensatory damages but did not assess interest on the damages. Ibid. The Superior Court, in affirming the award, ordered prejudgment and postjudgment interest. See id. at 6. The Supreme Judicial Court, noting that c. 151B, and G. L. c. 258, § 1 (“the primary statutory basis for the waiver of sovereign immunity”), are silent on whether interest may be assessed on awards under c. 151B against the Commonwealth, held that for certain provisions of c. 151B, sovereign immunity of the Commonwealth had been waived for interest purposes “by necessary implication.” Id. at 12-14 (quotation omitted). The court reached its decision on two grounds.
First, because the Commonwealth is explicitly included as a “person” or “employer” subject to suit under c. 151B, and because the MCAD has the power to impose prejudgment interest on private employers in the c. 151B context, the “inevitable conclusion” is that the Legislature must have intended for the Commonwealth to also be subject to interest. Id. at 13. Second, the court reasoned, c. 151B, § 5 (regarding proceedings before the MCAD and the MCAD’s powers), gives the MCAD broad discretion to order a full range of remedies to eradicate discrimination, therefore also supporting the conclusion that the Legislature intended to allow the MCAD to impose interest on awards entered against the Commonwealth. Id. at 13-14. The court affirmed the judgment of the Superior Court allowing prejudgment and postjudgment interest to be assessed against the Commonwealth. See ibid. The plaintiff here avers, relying on the same reasoning as in DeRoche, that because c. 151B explicitly puts the Commonwealth in the same class as private employers, remedies that can be imposed against a private employer can be imposed against the Commonwealth. The plaintiff contends that it is a logical extension of the reasoning in DeRoche to conclude that, because private employers are subject to postjudgment interest on those types of awards, so must the Commonwealth, by necessary implication of legislative intent.
However, there are three limitations to the reach of DeRoche, supra, that we consider significant. First, while we recognize the court addressed postjudgment interest, id. at 19 n.19 (note 19), the MCAD had not raised as an issue whether postjudgment interest should be treated differently from the prejudgment interest portion of the judgment. See note 19. The case was primarily focused on prejudgment interest, see id. at 13-14, and as such, although the court allowed postjudgment interest to stand, that portion of the judgment had not been challenged, and thus served only as a historical artifact not essential to the court’s analysis. Second, the substantive award consisted only of compensatory damages; no punitive damages were awarded. Therefore, the court had no need to address whether postjudgment interest may be allowable on a punitive damages award. Third, one of the bases for the court’s holding, as mentioned above, was the broad discretion the Legislature afforded to the MCAD under c. 151B, § 5, whereas the case at bar involves a Superior Court trial and jury verdict awarding punitive damages under c. 151B, § 9. While civil penalties may now be imposed by the MCAD, see G. L. c. 151B, § 5, as amended in 2003, such penalties are limited in amount, not as broad as penalties available after a trial, and “staircased” depending on prior violations. See G. L. c. 151B, § 5, fourth par.
Furthermore, while there is a logical thread in our cases discerning a legislative intent, either expressed or implied, to permit interest on compensatory awards so that employees do not suffer a loss in value, due to the passage of time, of their earnings awarded as damages, there is reason to interpret the case law to limit such interest to compensatory awards only. Compare, e.g., Perkins Sch. for the Blind v. Rate Setting Commn., 383 Mass. 825, 835 (1981) (“Interest is awarded by law so that a person wrongfully deprived of the use of money should be made whole for [her] loss”); Todino, 448 Mass. at 239 (discussing interest on award under provisions of G. L. c. 41, § 111F, court stated that “considering the time value of the dollar, the only way in which a[n] . . . award will retain its stated worth is by adding interest in order to compensate for delay in payment from that point forward”) (quotation omitted), with Onofrio v. Department of Mental Health, 411 Mass. 657, 659-660 (1992) (noting that “the fact that the Legislature provided for the recovery of damages from the Commonwealth in G. L. c. 258 does not lead necessarily to the conclusion that the statute allows for the recovery of costs as well, because costs are an ancillary matter to the underlying concern of liability for damages. Postjudgment interest, similarly, is not an element of damages. Rather, postjudgment interest serves to compensate the plaintiff for loss of the use of money when damages are not paid on time”) (quotation and citation omitted). In our view, the considerations that apply to the loss of use of money awarded to compensate for lost earnings are significantly different from those involving a delay in receiving a punitive damage award which is not designed to compensate but rather to punish.
DeRoche, 447 Mass. at 15. Similarly, we conclude that such intent can be discerned with respect to punitive damages, since their purpose is not to compensate for lost pay, but rather to penalize for wrongdoing.
While not on all fours, we find support in Gurley v. Commonwealth, 363 Mass. 595, 599-600 (1973), in which the court failed to discern by necessary implication a waiver of sovereign immunity for interest on awards for victims of violent crimes under the provisions of G. L. c. 258A in effect at the time. See Todino, 448 Mass. at 241 (noting that court in Gurley held that “because . . . the payment [under the statute is] essentially a gift, no award of interest would be necessary or reasonable”).
Consequently, for the foregoing reasons, we fail to be persuaded by the plaintiff that sovereign immunity has been waived, by necessary implication, for postjudgment interest on awards of punitive damages, attorney’s fees, and costs.
GREEN, J. (dissenting). In my view, the present case warrants a straightforward application of the rationale and conclusion of the Supreme Judicial Court in DeRoche v. Massachusetts Commn. Against Discrimination, 447 Mass. 1, 14 (2006). In that case, as the majority acknowledges, the Supreme Judicial Court concluded that the waiver of sovereign immunity effected by the inclusion of political subdivisions of the Commonwealth within the statutory definitions of persons and employers set forth in G. L. c. 151B, § 1(1) and (5), means that public employers are subject to prejudgment interest on any award of compensatory damages. By resting its conclusion on the statutory definitions of persons and employers, the court’s rationale essentially placed the Commonwealth (and its political subdivisions) on the same footing as a private employer. Ibid.
The purpose of postjudgment interest is to preserve the value of a damage award until the time it is paid. It is settled that postjudgment interest will be imposed on awards of punitive damages against a private employer. See Nardone v. Patrick Motor Sales, Inc., 46 Mass. App. Ct. 452, 454 (1999). It is also settled that public employers are subject to punitive damages. See Bain v. Springfield, 424 Mass. 758, 762-764 (1997). Under the rationale adopted by the court in DeRoche, then, the inclusion of public employers within the statutory definitions of persons and employers for purposes of G. L. c. 151B subjects public employers to postjudgment interest on both compensatory and punitive damages, just as it does private employers.
Because I believe DeRoche and Bain, considered together, entitle the plaintiff to postjudgment interest on the punitive damages awarded to her, I respectfully dissent.
 On February 9, 2011, judgment on the jury verdict in favor of the plaintiff entered for $ 6,000 in compensatory damages and $ 500,000 in punitive damages, which was later reduced by an order of partial remittitur, reducing the punitive award to $ 108,000 (affirmed after a report to this court, see Brown v. Office of the Commr. of Probation, 84 Mass. App. Ct. 1109 ). The plaintiff ultimately accepted the remittitur. On January 18, 2012, attorney’s fees were awarded in the amount of $ 233,463.48, and costs of $ 13,294.47. On January 30, 2014, the trial judge denied the plaintiff’s motion for postjudgment interest on the award of punitive damages, attorney’s fees, and costs, and judgment after rescript was entered accordingly on March 12, 2014. On July 15, 2014, the Commonwealth paid the compensatory and punitive damages, attorney’s fee and costs, and prejudgment and postjudgment interest on the compensatory damages.
 In Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 608 (2006), this court cited DeRoche, supra, for the proposition that “[i]t is now settled law that sovereign immunity is no bar to the liability of a public sector employer for prejudgment interest on damages in a G. L. c. 151B discrimination case.” See Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Commn. Against Discrimination, 65 Mass. App. Ct. 329, 338 (2005), S.C., 449 Mass. 675 (2007) (concluding that Commonwealth is subject to prejudgment interest because Commonwealth and its subdivisions are listed under statutory definition of persons and employers subject to c. 151B, and because prejudgment interest is remedy authorized under c. 151B).
 Private employers are subject to postjudgment interest on punitive damages and attorney’s fees in c. 151B cases. See Nardone v. Patrick Motor Sales, Inc., 46 Mass. App. Ct. 452, 453‑454 (1999). In Bain v. Springfield, 424 Mass. 758, 762-763 (1997), the court held that the Commonwealth is subject to punitive damages under c. 151B, reasoning that because the Legislature explicitly deemed the Commonwealth a person or employer subject to c. 151B, and because c. 151B, § 9, provides for the award of actual and punitive damages, the Commonwealth, like private employers, is equally subject to punitive damages.
 “The [MCAD] has presented no independent argument as to why, if sovereign immunity has been waived in connection with prejudgment interest, that part of the judgment allowing postjudgment interest should not be affirmed. What has been said with respect to sovereign immunity thus applies to both prejudgment and postjudgment interest, for purposes of this opinion.” DeRoche, supra at 19 n.19.
 See St. 2003, c. 26, § 438.
 General Laws c. 258A was repealed and replaced by G. L. c. 258C in 1993. See St. 1993, c. 478, §§ 3, 6; Todino, 448 Mass. at 241 n.9.
 For that reason, the majority’s attempt to distinguish actual and punitive damages based on a contrast between the compensatory nature of the former and the punitive nature of the latter is inapt.
 As the majority also acknowledges, the court in DeRoche, supra at 19 n.19, also affirmed the assessment of postjudgment interest on the damage award in that case. Though the question of postjudgment interest (as distinct from prejudgment interest) appears not to have been contested in DeRoche, the distinction is without a difference in terms of the rationale on which the court rested its conclusion. Accordingly, even if the court’s affirmance of the judgment concerning postjudgment interest in DeRoche is considered dictum, the principles on which the court’s holding was based dictate that postjudgment interest be treated the same.


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1. Court of Industrial Relations: Labor and Labor Relations. In determining what is an appropriate employee unit for the purposes of collective bargaining, consideration may be given to the mutuality of interest in wages, hours, and working conditions; the duties and skills of the employees; the extent of union organization among the employees; and the desires of the employees. 2. Legislature: Labor and Labor Relations. It is the intent of the Legislature, and the policy of this court, that undue fragmentation of bargaining units within the public sector is to be avoided. 3. Court of Industrial Relations: Labor and Labor Relations: Statutes. The considerations set forth in section 48-838 (2), R. S. Supp., 1976, in regard to collective bargaining units of employees, are not exclusive; and the Court of Industrial Relations may consider additional relevant factors in determining what bargaining unit of employees is appropriate. 4. Court of Industrial Relations: Appeal and Error: Evidence. Review by this court of orders and decisions of the Court of Industrial Relations is restricted to considering whether the order of that court is supported by substantial evidence justifying the order made, whether it acted within the scope of its statutory authority, and whether its action was arbitrary, capricious, or unreasonable.
Appeal from the Nebraska Court of Industrial Relations. Affirmed.
Paul L. Douglas, Attorney General, and John R. Thompson, for appellants.
John B. Ashford of Bradford Coenen, for appellee American Fed. of S., C. M. Emp. AFL-CIO.
The American Federation of State, County and Municipal Employees, AFL-CIO Local No. 2088, hereafter called the union, brought two actions, one against Douglas County and one against Lancaster County, seeking to have the union declared the exclusive bargaining agent for the employees of the respective county welfare departments. The two actions were consolidated for trial in the Court of Industrial Relations. The State Department of Public Welfare was made a party in each case in compliance with American Fed. S., C., M. Emp., AFL-CIO v. County of Lancaster, 196 Neb. 89, 241 N.W.2d 523. In view of the pleadings, the Court of Industrial Relations ordered all 93 counties of the state made parties in both actions. Issues were raised as to the constitutionality of the statutes establishing the Court of Industrial Relations and its jurisdiction as applied to the State Department of Public Welfare. At oral argument in this court the State conceded that the issue of constitutionality of the statutes as applied to the State Department of Public Welfare was foreclosed by the decision of this court in American Fed. of S., C. M. Emp. v. State, 200 Neb. 171, 263 N.W.2d 643. The issues on this appeal are therefore limited to those involving the determination of the appropriate bargaining unit for county-level welfare employees jointly employed by the State Department of Public Welfare and the respective County Boards of Public Welfare.
The Court of Industrial Relations determined that the appropriate bargaining unit consisted of a single county-level unit in each county, excluding certain supervisory employees. The court found that there had been a proper showing of interest in only four counties, Douglas, Lancaster, Sarpy, and Scotts Bluff, and ordered an election to be held in each of those counties. None of those four counties have appealed. The State Department of Public Welfare and the county divisions of public welfare for 41 of the 93 counties have appealed.
Some preliminary explanatory facts are advisable. The union was voluntarily recognized by Douglas County in 1973. A collective bargaining agreement was entered into by the union and Douglas County which remained in effect until July 1, 1976. On May 5, 1976, this court determined that county-level welfare employees were jointly employed by the State Department of Public Welfare and the respective counties. See American Fed. S., C., M. Emp., AFL-CIO v. County of Lancaster, supra. Douglas County refused to renegotiate its contract without the State's participation, and Lancaster County and the State Department of Public Welfare refused to recognize the union. The two actions against Douglas County and Lancaster County were subsequently instituted by the union. The State Department of Public Welfare was a named defendant in each case. The divisions of public welfare of all 91 remaining counties of Nebraska were then joined as parties defendant by order of the Court of Industrial Relations. The cases were then consolidated for purposes of trial and appeal.
The facts here are virtually undisputed. The State Department of Public Welfare and the respective county divisions of public welfare of this state are engaged in a cooperative effort to provide welfare services. The welfare services include the administration of federally funded programs, such as aid to the blind and disabled, families with dependent children, and to the aged. The record also reflects that some counties have additional welfare programs which have been initiated and are operated independently by the counties.
The State Department of Public Welfare has approximately 500 employees working in the central office of the State Public Welfare Department, the Nebraska Center for Children and Youth, and the six regional offices throughout the state. These offices are all separate from the various county welfare offices. With some exceptions, the state employees in these offices supervise the administration of the welfare programs and train county employees. Neither the State nor the union now contend that these state-level employees should be made a part of the bargaining unit of any county-level unit.
There are slightly more than 1,300 county division welfare employees jointly employed by the state and the respective counties who are engaged in providing welfare services at the county level. These employees are subject to the state merit system. The state has established a system of job classifications for welfare workers. A series of 11 pay steps have also been established. Each county selects a series of any six consecutive steps for its welfare employees' compensation plan. The counties can, and in many cases do, choose to pay higher wages than those authorized by the state plan, but if they do, they are not reimbursed by the state for that additional compensation.
The job classification plan on the state level divides the counties into four classes based upon population and caseload. Douglas County is the only county in Class I, Lancaster County is the only county in Class II, and the remaining counties are in Classes III and IV. Some job classifications are only used in Classes I and II and do not apply to Classes III and IV. There are also job classifications on the state level which are not found on the county level.
Each individual county exercises independent control over most aspects of the county division of welfare operations. Although all the county-level welfare employees are subject to the state merit system, each individual county has its own grievance procedures. Not all grievances an employee might have are subject to the state system. Evaluations of employee job performance are made at the county level by the supervisor or county director. County officials make the decision as to whether an employee should be promoted or whether a probationary employee should be retained. So long as a previously funded position is available, the state does not have the authority to pass on promotions. Similarly, a lateral movement within the county department does not require state approval.
The State Department of Public Welfare cannot order the transfer of an employee from one county to another, nor order any county division director to accept any employee from the state or from any other county, and there is little or no interchange of employees from county to county.
Conditions of employment for welfare employees can and do differ from county to county. Each individual county establishes its own annual and sick leave policies, office hours, pay periods, and schedule of holidays observed. Each county establishes its own rules for vehicle use, office attire, and office closings.
On the basis of the foregoing evidence the Court of Industrial Relations determined that the "working" level for county division welfare employees is basically in the 93 individual county divisions of public welfare, rather than in the State Department of Public Welfare, and that the state agency is primarily a supervisory agency, monitoring the administration of the several welfare programs. The court concluded that a single statewide unit would be inappropriate. The court then established separate county-level bargaining units as the appropriate bargaining units, and ordered an election to be held in each of four counties, Douglas, Lancaster, Sarpy, and Scotts Bluff, the only counties in which there had been a sufficient showing of union interest.
The issue on this appeal is whether the appropriate bargaining unit for county-level welfare employees, jointly employed by the state and the respective counties, should be a single statewide unit or should be a single county-level unit in each county.
In City of Grand Island v. American Federation of S.C. M. Employees, 186 Neb. 711, 185 N.W.2d 860, this court determined that decisions under the National Labor Relations Act with respect to appropriate bargaining units were helpful but not controlling upon the court. In that case this court specifically held: "In determining what is an appropriate employee unit for the purpose of collective bargaining, consideration may be given to the mutuality of interest in wages, hours, and working conditions; the duties and skills of the employees; the extent of union organization among the employees; and the desires of the employees."
In Cornell University, 183 NLRB 329 (1970), the National Labor Relations Board said: "In determining whether a particular group of employees constitutes an appropriate unit for bargaining where an employer operates a number of facilities, the Board considers such factors as prior bargaining history, centralization of management particularly in regard to labor relations, extent of employee interchange, degree of interdependence or autonomy of the plants, differences or similarities of skills or functions of the employees, and geographical location of the facilities in relation to each other." This court quoted and adopted that language in American Assn. of University Professors v. Board of Regents, 198 Neb. 243, 253 N.W.2d 1, and said: "It has long been held that a basic inquiry in unit determinations is whether a community of interest exists among the employees which is sufficiently strong to warrant their inclusion in a single unit."
The State contends that the establishment of separate rate county-level units rather than a single statewide unit constitutes a fragmentation of bargaining units in violation of section 48-838(2), R. S. Supp., 1976. Clearly it is the intent of the Legislature, and the policy of this court, that undue fragmentation of bargaining units within the public sector is to be avoided. The considerations set forth in section 48-838(2), R. S. Supp., 1976, in regard to collective bargaining units of employees, are not exclusive; and the Court of Industrial Relations may consider additional relevant factors in determining what bargaining unit of employees is appropriate. See American Assn. of University Professors v. Board of Regents, supra.
The evidence in the case now before us fully supports the finding of the Court of Industrial Relations that a single statewide bargaining unit of county level welfare employees would be inappropriate, and that there is little or no community of interest among the county-level welfare employees in the 93 separate counties sufficiently strong to warrant their inclusion in such a single unit. Prior union bargaining history has been established only at the county unit level, and whether successful or not, in only a very few counties. There is no prior statewide bargaining history for county-level welfare employees. There is little or no interchange of employees between counties or between the state and a county. Each county operates its welfare program independently of the program of any other county, and, except for the coordinating supervision of the State Department of Public Welfare, each county is virtually autonomous.
Urban and rural differences between individual counties are obvious and are pointed up by the differences in numbers of employees, differences in job classifications and functions, and the overlapping of functions and classifications in many rural areas. The evidence is persuasive that the "working" level for county-level welfare employees rests basically in the division of public welfare of each county. More than half of the counties in the State of Nebraska have announced policies against a single statewide unit and those counties are not appellants in this action.
Review by this court of orders and decisions of the Court of Industrial Relations is restricted to considering whether the order of that court is supported by substantial evidence justifying the order made, whether it acted within the scope of its statutory authority, and whether its action was arbitrary, capricious, or unreasonable. American Assn. of University Professors v. Board of Regents, supra; House Officers Assn. v. University of Nebraska Medical Center, 198 Neb. 697, 255 N.W.2d 258.
The decision and orders of the Court of Industrial Relations in these cases are supported by substantial evidence justifying the orders made, and its action was not arbitrary, capricious, or unreasonable. The judgment is affirmed.


Having its first opportunity to address, somewhat indirectly, the gravamen of the United States Supreme Court’s holding in Padilla v. Kentucky, 130 S. Ct. 1473 (Mar. 31, 2010), the Virginia Supreme Court in Commonwealth v. Morris, Record No. 092163 and Commonwealth v. Chan, Record No. 092346 (Jan. 13, 2011) (collectively referred to as the “Morris/Chan” case) significantly limited the remedies available to a defendant who seeks to rely on Padilla for post-conviction relief in courts in the Commonwealth.
In Padilla, the United States Supreme Court held that where defense counsel fails to inform or incorrectly informs her non-citizen client of the immigration consequences of pleading guilty to a crime in state court, counsel has fallen below an objectively reasonable standard of professional performance, in violation of the Sixth Amendment as interpreted by Strickland v. Washington, 466 U.S. 688, 694 (1984). Padilla, 130 S. Ct. at 1484. (“It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so ‘clearly satisfies the first prong of the Strickland analysis.’”). In light of Padilla, the appellees in Morris/Chan sought relief from the trial court where they pled guilty, claiming that their trial counsel purportedly gave them erroneous advice regarding the immigration consequences of pleading guilty.
Morris and Chan pled guilty to and were convicted of crimes against the Commonwealth in 1997 and 2005, respectively. After their convictions, Morris and Chan applied for United States citizenship, only to learn that their previous state court convictions not only prevented them from becoming citizens, but subjected them to removal from the United States, pursuant to the Immigration and Nationality Act (“INA”). 8 U.S.C. § 1227, et seq. Specifically, Morris’ plea to petit larceny and sentence of 12 months’ imprisonment, with 11 months suspended constituted a “crime involving moral turpitude . . . for which a sentence of one year or longer may be imposed,” and, thus, subjected him to removal proceedings under the INA. 8 U.S.C. § 1227(a)(2)(A). Similarly, Chan’s plea to misdemeanor assault and battery for which he received a 12 month sentence with all 12 months suspended, made him an “aggravated felon” for immigration purposes and subjected him to mandatory detention and deportation. Id.; 8 U.S.C. § 1101(a)(43). Claiming ineffective assistance of counsel under Padilla, the appellees sought a writ of error coram vobis, pursuant to Va. Code Section 8.01-677, and a writ of audita qurela, requesting that the trial court modify their original criminal sentence in a manner that would preclude removal. In Morris’ case, the trial court determined that the writs sought by Morris were appropriate to review and modify his criminal sentence and, thus, modified Morris’ 12 month sentence by one day. Likewise, in Chan’s case, the trial court amended Chan’s original sentence to 360 days by a nunc pro tunc order.
However, the Virginia Supreme Court disagreed and reversed the Circuit Courts’ rulings in both Morris’ and Chan’s cases. The Court reasoned that unless a statute clearly provided otherwise, a trial court is not able to modify a final order more than 21 days after the order has been entered. Pursuant to Virginia Supreme Court Rule 1:1: “[a]ll final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” Accordingly, though recognizing that a writ of habeas corpus, a writ of error coram vobis, and a writ of audita querela provide exceptions to Rule 1:1, the Court held that “these cases do not fall within the contemplated circumstances required by Code § 8.01-677 for error coram vobis, and audita querela is not available for use to modify criminal sentences in Virginia.” Morris/Chan at 7.
With respect to the writ of audita querela, the Court held that such a writ was only applicable to provide relief to civil judgment debtors and that, therefore, “[w]hat is certain is that the writ of audita querela has never been applicable to modify a criminal sentence in Virginia.” Morris/Chan at 16. Notably, the Court refused to follow the lead of other states, namely Florida and Kentucky, which have applied the writ to modify criminal sentences, holding, instead, that the writ as recognized in Virginia is the same as it was recognized under English common law: a writ “available for use by [civil] judgment debtors to release them from judgment where the judgment ‘ought not to have issued . . .’” Morris/Chan at 16.
With respect to the writ of error coram vobis, the Court stated that the essential question “is whether there was an ‘error of fact not apparent on the record, not attributable to the applicant’s negligence, and which if known by the court would have prevented rendition of the judgment.’” Morris/Chan at 10 (quoting Dobie v. Commonwealth, 198 Va. 762, 769 (1957)) (emphasis in original). The Court rejected, therefore, Chan’s contention that because her counsel never made the trial court aware of Chan’s non-citizen status, the trial court was deprived of a fact which would have prevented it from proceeding to judgment. The Court, instead, concluded that “[w]hile the trial court may have been inclined to impose a lesser sentence had it known of Chan’s non-citizen status, it still had the authority to render judgment against Chan.” Morris/Chan at 10.
Likewise, the Court went on to reject Morris’ seemingly stronger, Padilla-centered argument that ineffective assistance of counsel that results in a defendant pleading guilty to a crime for which he is either unaware or misinformed about the immigration consequences of pleading guilty is an error of fact for which a writ of coram vobis should issue. The Court concluded that “[w]hile ineffective assistance of counsel may render a judgment voidable upon the necessary showing, it does not render the trial court incapable of rendering judgment, as do errors of fact in cases ‘where judgment is rendered against a party after his death, or who is an infant.’” Morris/Chan at 12 (quoting Dobie, 198 Va. at 770)(emphasis in original). Without additional analysis or reasoning, the Court concluded that Morris and Chan’s reliance on Padilla was misplaced because “[w]hile Morris and Chan may have suffered ineffective assistance of counsel according to Padilla, and may have been successful had they timely filed petitions for writs of habeas corpus pursuant to Code § 8.01-654, neither did so.” Morris/Chan at 13. Seemingly, the Court would confine Padilla’s applicability to the habeas corpus context, a conclusion that does not seem to necessarily follow the holding of Padilla.
Said differently, the Court’s holding seems to promote the remarkable conclusion that a trial court, either knowing that a defendant has received ineffective assistance of counsel or, more simply, knowing that a defendant is unaware of one of the consequences of pleading guilty, a consequence that the U.S. Supreme Court has held to be most severe and crucial, see Padilla, 130 S. Ct. 1487 (“The severity of deportation – ‘the equivalent of banishment or exile,’ – only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation.” (quoting Delgadillo v. Carmichael, 332 U.S. 388, 390-391 (1947))), could still proceed to render a judgment against such a defendant. Thus, where, as in this case, the trial court is unaware of those facts, there is no error of fact that would have prevented the trial court from proceeding to judgment. Id. (“Accordingly, a claim of ineffective assistance of counsel does not constitute an error of fact for which coram vobis will lie under Code § 8.01-677, because such a claim would not have prevented rendition of the judgment.”).