TLJ Daily E-Mail Alert No. 2,060, March 20, 2010.
March 20, 2010, Alert No. 2,060.
3/17. Sen. John Rockefeller (D-WV) and Sen. Olympia Snowe (R-ME) released a revised draft [62 pages in PDF] of S 773 [LOC | WW], the "Cybersecurity Act of 2010". The Senate Commerce Committee (SCC) is scheduled to mark up this bill on March 24, 2010. See, notice of executive session.
This huge bill addresses the development of a skilled cyber security workforce, cyber security of federal government systems, collaboration between the federal government and the private sector in promoting cyber security, and federal authority and powers with respect to cyber security.
It does not criminalize any conduct, contain any criminal law provisions, or provide any resources for law enforcement agencies. It does not mandate or address authentication, except to require a report on the subject.
Sen. Snowe (at right) stated in a release that "The Rockefeller-Snowe initiative seeks to bring new high-level governmental attention to developing a fully integrated, thoroughly coordinated public-private partnership ... It is imperative that the public and private sectors marshal our collective forces in a collaborative and complementary manner to confront this urgent threat."
Sen. Rockefeller, Sen. Snowe, and Sen. Bill Nelson (D-FL) introduced this bill on April 1, 2009. Sen. Evan Bayh (D-IN) is also a cosponsor.
Title I of the bill pertains to education, training and accreditation of personnel working in cyber security.
Title III of the bill pertains to cyber security research and development, and authorizes appropriations of over a billion dollars.
Title II of the bill pertains primarily to government planning and authority, and collaboration with relevant private sector entities.
It also authorizes the President to "declare a cybersecurity emergency" and implement the above referenced "collaborative emergency response and restoration plans".
Sen. Rockefeller and Sen. Snowe also released a summary [6 pages in PDF]. It explains that "Unlike physical critical infrastructure such as chemical plants and airports, it is not obvious where the ``critical´´ aspects of IT systems begin and end." Hence, the revised version of the bill "creates a process in which the President and the critical infrastructure sectors collaborate, through the existing sector coordinating councils, to designate the specific IT systems whose disruption or incapacitation would threaten strategic national interests."
This summary adds that "The process is an administrative rulemaking governed by the Administrative Procedure Act and provides for notice and comment regarding criteria for designation; adjudicative review, modification, and appeal; and protection of confidential, proprietary, and classified information."
The sponsors' summary explains that "Private sector owners and operators of critical infrastructure are responsible for securing a large percentage of the IT systems that our country relies on for basic day-to-day activities, but they often do not have sufficient access to classified information regarding threats to these IT systems." Therefore, the revised version of the bill "requires the President to provide security clearances to key private sector officials and to facilitate the sharing of classified threat information with these officials."
The summary's use of the word "requires" is not consistent with the draft bill's use of the word "may".
This title also requires the government to write a "a comprehensive review of the Federal statutory and legal framework applicable to cybersecurity-related activities in the United States", including, among others statutes, the Privacy Protection Act of 1980 and the Electronic Communications Privacy Act of 1986 (ECPA).
Kyle McSlarrow, head of the National Cable and Telecommunications Association, stated in a release that "We applaud Senators Rockefeller and Snowe for moving ahead on legislation to address the critical security of our nation's cyber networks. This legislation will help government and private sector networks to work together in identifying critical infrastructure and developing cyber emergency response plans. As information is increasingly transmitted via the Internet, combatting cyber threats is critical to safeguarding our nation's broadband's future. Passage of the Rockefeller-Snowe Cybersecurity Act is a necessary and important step in protecting our national infrastructure and we look forward to working together with the Committee as this bill moves forward."
3/18 The Senate Judiciary Committee (SJC) approved, without amendment, S 148 [LOC | WW], the "Discount Pricing Consumer Protection Act".
Introduction. This bill would undo the effects of the June 28, 2007, opinion of the Supreme Court (SCUS) in Leegin Creative Leather Products v. PSKS, an antitrust case regarding minimum resale price maintenance (RPM) by manufacturers and intermediate distributors. This opinion, this bill, and this issue, affect the distribution of complex consumer electronics products.
See also, story titled "SCUS Holds That All Vertical Price Restraints Are Subject to Rule of Reason" in TLJ Daily E-Mail Alert No. 1,603, June 28, 2007.
Sen. Herb Kohl (D-WI) introduced this bill on January 6, 2009. The SJC held a hearing on May 19, 2009.
Sen. Kohl (at left) stated on March 18, 2010, that "Since the Court’s decision three years ago, we have heard reports from all across the nation of manufacturers demanding an end to discounting engaged in by all types of retailers, from small mom-and-pop stores to giant Internet retailers".
He continued that "For nearly a century the rule against vertical price fixing permitted discounters to sell goods at the most competitive price. But now, at exactly the wrong time - in the midst of a serious economic recession when families’ budgets are under tremendous pressure -- this very practice of discounting is imperiled." See, Sen. Kohl's release.
The bill is supported by Democrats. Its cosponsors are Sen. Dianne Feinstein (D-CA), Sen. Russ Feingold (D-WI), Sen. Charles Schumer (D-NY), Sen. Richard Durbin (D-IL), Sen. Sheldon Whitehouse (D-RI), Sen. Amy Klobuchar (D-MN), Sen. Edward Kaufman (D-DE), Sen. Arlen Specter (D-PA) and Sen. Al Franken (D-MN).
S 148 has no Republican cosponsors.
Undoing Leegin is also supported by plaintiffs trial lawyers.
RPM, Dr. Miles and Leegin. Resale price maintenance (RPM) exists when a manufacturer agrees with its distributor(s) to set the minimum price that the distributor(s) can charge for the manufacturer's goods. Prior to the Leegin opinion, RPM was subject to the antitrust per se rule. That is, RPM was automatically illegal, even if it could be demonstrated to have no anticompetitive effect. The case on point was Supreme Court's 1911 opinion in Dr. Miles Medical Co. v. John D. Park & Sons Co., which is reported at 220 U.S. 373.
The Supreme Court overturned Dr. Miles in Leegin. It wrote that the "economics literature is replete with procompetitive justifications for a manufacturer's use of resale price maintenance." The Supreme Court did not hold that RPM is never a violation of Section 1 of the Sherman Act. Rather, it held that vertical RPM agreements are subject to the rule of reason standard. Leegin is also reported at 551 U.S. 877.
The Supreme Court wrote that "A single manufacturer's use of vertical price restraints tends to eliminate intrabrand price competition; this in turn encourages retailers to invest in tangible or intangible services or promotional efforts that aid the manufacturer's position as against rival manufacturers. Resale price maintenance also has the potential to give consumers more options so that they can choose among low-price, low-service brands; high-price, high-service brands; and brands that fall in between."
Moreover, it wrote that RPM "can increase interbrand competition by facilitating market entry for new firms and brands." Also, "Absent vertical price restraints, the retail services that enhance interbrand competition might be underprovided. This is because discounting retailers can free ride on retailers who furnish services and then capture some of the increased demand those services generate."
RPM is particularly significant for the marketing of complex consumer electronics products.
Many consumers do not know what the products' features are, or how to use the products. In order to promote adoption of new technologies, and sales of their products, manufacturers have an interest in incenting distributors to disseminate information about the new devices through advertising, in store demonstrations, training of employees, and customer support. But, these services impose costs on the distributors who provide them.
This can create a free riding problem, when some distributors go to the trouble to provide such information and support, but others do not. The presence of free riders, offering the products at lower prices, disincents other distributors from educating consumers. This, in turn, disincents manufacturers from offering complex devices that require consumer education. And this inhibits innovation in the IT sector.
Todd Cohen, head of eBay's government relations, has presented a contrary viewpoint. For example, he wrote in his April 28, 2009, prepared testimony for the HJC that "the largest and most established retailers are free-riding on the tremendous consumer information tools created by Internet innovators".
For example, wrote Cohen, "Internet retailers provide significant pre-sale information to their customers", and "consumers are increasingly turning to the Internet to search for product information, make product comparisons and check prices before visiting and purchasing from traditional brick and mortar stores – raising the question of who is actually the free-rider". See also, Cohen's prepared testimony of May 19, 2009, for the SJC.
Nevertheless, the argument that vertical RPM should be subject to the rule of reason, rather than antitrust per se rule, was advanced by many economists in the Leegin case. The Department of Justice's (DOJ) Office of the Solicitor General (OSG) also advanced it in an amicus curiae brief. And, the Supreme Court accepted it.
Leegin was a 5-4 opinion. The subsequent appointment of Justice Sonia Sotomayor cannot change the balance. She replaced former Justice David Souter, who joined in the dissent. Similarly, if Justice John Paul Stevens retires at the end of the current term, his replacement cannot tip the balance, because Justice Stevens joined in the dissent.
Nor can the Department of Justice's (DOJ) Antitrust Division ignore Leegin in brining price fixing cases. The DOJ is bound by judicial precedent.
However, the current Assistant Attorney General in charge of the Antitrust Division, Christine Varney, has expressed her criticism of the Leegin opinion. See, Varney's October 7, 2009, speech titled "Antitrust Federalism: Enhancing the Federal/State Relationship". See also, story titled "Varney Discusses Antitrust, States AGs, RPM and the Rule of Reason" in TLJ Daily E-Mail Alert No. 1,999, October 8, 2009.
Bill Summary. The relevant RPM cases are brought pursuant to Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1. Hence, S 148 would amend this section.
S 148 provides that "Section 1 of the Sherman Act (15 U.S.C. 1) is amended by adding after the first sentence the following: `Any contract, combination, conspiracy or agreement setting a minimum price below which a product or service cannot be sold by a retailer, wholesaler, or distributor shall violate this Act.´."
It also contains a detailed statement of findings and declaration of purposes.
It finds that "Abandoning the rule against resale price maintenance will likely lead to higher prices paid by consumers and substantially harms the ability of discount retail stores to compete." Moreover, the Supreme Court's opinion "incorrectly interpreted the Sherman Act and improperly disregarded 96 years of antitrust law precedent in overturning the per se rule against resale price maintenance".
It states that its purpose is "to restore the rule that agreements between manufacturers and retailers, distributors or wholesalers to set the minimum price below which the manufacturer's product or service cannot be sold violates the Sherman Act".
House Bill. The companion bill in the House is HR 3190 [LOC | WW], also the "Discount Pricing Consumer Protection Act". The House Judiciary Committee's (HJC) Subcommittee on Courts and Competition Policy (SCCP) held a hearing on this issue, but not HR 3190, on April 28, 2009. Rep. Hank Johnson (D-GA) introduced HR 3190 on July 13, 2009. It now has only three cosponsors -- all Democrats.
The SCCP approved the bill on July 30, 2009. The full Committee approved it on January 13, 2010.
See also, story titled "House Judiciary Committee to Mark Up Bill to Undo Leegin" in TLJ Daily E-Mail Alert No. 2,020, December 3, 2009.
The House bill is short and simple. It provides that "Any agreement setting a price below which a product or service cannot be sold by a retailer, wholesaler, or distributor shall violate section 1 of the Sherman Act (15 U.S.C. 1)."
The House bill contains no statement of findings and declaration of purposes.
3/16. FCC Commissioner Michael Copps wrote a statement [4 pages in PDF] for the March 16, 2010, meeting of the Federal Communications Commission (FCC) regarding the FCC's document [376 pages in PDF] titled "A National Broadband Plan for Our Future". He used this opportunity to discuss in vague language the FCC and competition.
The FCC's document is full of generic statements about fostering, spurring, enabling, ensuring and promoting competition. And, it contains many proposals for fostering competition that are unrelated to use of competition law principles, such as making more spectrum available.
It does recommend that the FCC "should comprehensively review its wholesale competition regulations", "ensure that special access rates, terms and conditions are just and reasonable", and "clarify interconnection rights and obligations".
However, the FCC document concludes that "The lack of a large number of wireline, facilities-based providers does not necessarily mean competition among broadband providers is inadequate."
Moreover, the document does not address the use of competition law tools to address mergers, monopolization, or anti-competitive conduct. It contains no recommendation that the FCC shift from being a rulemaking based agency to competition law based enforcement.
Commissioner Copps made some vague statements, that go beyond the FCC document, regarding competition.
Copps (at right) wrote that "In matters involving competition in our communications ecosystem, we will have to be vigilant to ensure that our strategies actually work. Lack of competition could conceivably require us to take actions going beyond what is generally discussed here. I daresay that I don't need to remind many people here that competition is not, to my mind, the defining hallmark of America's current telecommunications sector. But it is at the core of our enabling statute."
He continued, "In competition, and elsewhere, should we find that we lack the tools we need to conduct effective public interest oversight of the evolving broadband network, we may have to invoke other available authorities already invested in the Commission -- or, should we lack some authority that we need, we may have to request it."
He did not say what these "other available authorities" might be, or what new authority might be given by the Congress.
Commentary. The most important of the FCC's current competition "tools" may be its antitrust merger reviews. The FCC proceeds as if it had statutory authority under Section 7 of the Clayton Act, which is codified at 15 U.S.C. § 18. The FCC's merger reviews are redundant of reviews conducted by the Department of Justice's (DOJ) Antitrust Division or the Federal Trade Commission (FTC), which have statutory authority.
The FCC does not block mergers. It almost always approves them after obtaining concessions from the companies that it terms voluntary. It uses the process to pursue policy objectives which are often unrelated to competition. Preserving competition is not the defining hallmark of the FCC's merger reviews.
Moreover, the FCC can only conduct antitrust merger reviews when companies decide to merge.
Were the FCC to exert competition law principles to review and enjoin the conduct of one service provider in the "evolving broadband network" this would be in the nature of single firm conduct enforcement. The FCC lacks the Sherman Act authority held by the DOJ and FTC to conduct these proceedings. (Such DOJ and FTC proceedings are conducted pursuant to Section 2 of the Sherman Act, which is codified at 15 U.S.C. § 2.) Yet, unlike merger reviews, the FCC is probably incapable of exerting Section 2 like authority.
The FCC does have statutory authority to approve applications to transfer communications licenses. Mergers and related transactions also involve transfers of licenses to the acquiring company. Shortly after passage of the 1996 Act, the FCC began treating certain license transfer applications as if they were antitrust merger proceedings. This mimicking of DOJ/FTC antitrust proceedings provided the FCC a reason for demanding large amounts of documents and information, and to delay. For example, the FCC took over sixteen months between the filing of XM's and Sirius' application, and its approval.
Time is of the essence for merging companies. The FCC can delay with little consequence for its policy goals. The FCC's power derives from its leveraging of its license transfer authority to conduct antitrust merger proceedings, and the participants' need to consummate their mergers, as well as the repeat player phenomenon (the FCC does not treat license transfer applications of non-repeat players as antitrust proceedings), and the absence of any order subject to judicial review.
Were the FCC to issue an order denying an application, that would be a final order of the FCC subject to judicial review. Merging parties cannot seek judicial review of a dilatory federal agency. Nor can they seek judicial review of FCC approval orders, because the FCC first extracts consents. If the FCC were to issue an order denying a merger application, it might be challenged, and a Court of Appeals might overturn that order. The legal basis might be that the FCC lacks antitrust merger review authority. This is an outcome that the FCC seeks to avoid.
In contrast, hypothetically, were the FCC to attempt to enforce Section 2 of the Sherman Act against a single broadband internet access provider, time would not be of the essence to that company. It would be in a much stronger position to hold out against a stipulated settlement with the FCC. Were the FCC to issue an order enjoining certain conduct, that would be a final order subject to judicial review. Any Court of Appeals would likely overturn the order, holding that the FCC has no Section 2 enforcement authority.
Hence, the focus of FCC assertion of competition law authority is merger reviews, rather than single firm conduct, or anti-competitive agreements. If Copps wants the FCC to actually block some future mergers, or to address non-merger activity, the FCC may first have to get more statutory authority.
Commissioner Copps referenced asking for more authority. The FCC could seek expanded antitrust authority from the Congress. But obtaining passage of such legislation would be unlikely. Historically, substantive changes to the antitrust statutes are rare; the law tends to evolve by judicial interpretation and agency policy. Moreover, several industry sectors would likely lobby effectively against it. Also, the members of the Judiciary Committees would be loath to see more of their oversight authority migrate to the Commerce Committees.
And finally, it should be noted that Copps spoke in such broad and vague language that it is not obvious what competition tools he wants the FCC to use, or to acquire from the Congress.
The House will meet at 1:00 PM for legislative business. See, Rep. Hoyer's schedule for March 21. The House is scheduled to vote on HR 3590 [LOC | WW]. As introduced on September 17, 2009, this was an obscure bill titled "Service Members Home Ownership Tax Act of 2009". However, this bill became, via amendment, a vehicle for sweeping health care legislation. The House is now scheduled to hold an up or down vote on the bill that the Senate passed on December 24, 2009. Rep. Hoyer stated in a release that "The rule issued sets up a straight forward process with three votes. First, a vote on the rule. Second, a vote on the Senate bill itself, which will go to the President for his signature. And third, a vote on improvements to the Senate bill, which will then be sent to the Senate for passage." The agenda also includes consideration of a motion to concur in the Senate's amendments to HR 4872 [LOC | WW], the "Reconciliation Act of 2010". Finally, the schedule includes votes under suspension of the rules on numerous non-technology related items.
The Senate will meet at 2:00 PM. It will resume consideration of HR 1586 [LOC | WW], the FAA reauthorization bill.
9:00 AM - 1:00 PM. The Federal Communications Commission's (FCC) Communications Security, Reliability, and Interoperability Council (CSRIC) will meet. See, notice in the Federal Register, March 4, 2010, Vol. 75, No. 42, at Pages 9899-9900. Location: FCC, Commission Meeting Room, 445 12th St., SW.
12:00 NOON - 2:00 PM. The DC Bar Association will host an event titled "State Secrets Privilege". The speakers will be Judge Royce Lambeth (USDC/DC), Arthur Spitzer (ACLU), Stephen Vladeck (American University law school), and Edwin Huddleston. See also, stories titled "Holder Issues Memorandum on State Secrets Privilege" in TLJ Daily E-Mail Alert No. 1,988, September 24, 2009, and "9th Circuit Rules in State Secrets Case" in TLJ Daily E-Mail Alert No. 1,933, April 29, 2009. The price to attend is $20. Most DC Bar events are not open to the public. This event does not qualify for continuing legal education (CLE) credits. See, notice. For more information, call 202-626-3463. Location: DC Bar Conference Center, 1101 K St., NW.
5:30 PM. The House Judiciary Committee (HJC) will hold a hearing titled "Design Patents and Auto Replacement Parts". See, notice. Location: Room 2141, Rayburn Building.
8:00 AM - 6:00 PM. The TechAmerica will host an event titled "20th Annual Federal CIO Survey Conference". See, conference web site. Location: Grand Hyatt, 1000 H St., NW.
9:00 AM - 12:30 PM. The Technology Policy Institute (TPI) will host an event titled "FCC's National Broadband Plan: The Early Reaction". The speakers will include Blair Levin (FCC), Thomas Lenard (TPI), James Cicconi (AT&T), Kyle McSlarrow (NCTA), Peter Pitsch (Intel), Gregory Rosston (Stanford Institute for Economic Policy Research), Thomas Tauke (Verizon), John Mayo (Georgetown Center for Business and Public Policy), Robert Crandall (Brookings Institution), Walter McCormick (USTelecom), Lee Rainie (Pew Internet and America Life Project), Robert Shapiro (Georgetown Center for Business and Public Policy), and Joseph Waz (Comcast). See, registration page. For more information, contact Ashley Creel at 202-828-4405. Location: National Press Club, First Amendment Lounge, 13th floor, 529 14th St., NW.
9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Department of Justice". The witness will be Attorney General Eric Holder. See, notice. Location: Room 226, Dirksen Building.
10:00 AM - 12:00 NOON. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "NIST Structure and Authorities, Its Role in Technical Standards, and Federal Coordination on Technical Standards". The HSC will webcast this event. Location: Room 2318, Rayburn Building.
1:00 PM. The Securities and Exchange Commission (SEC) will host a public seminar on eXtensible Business Reporting Language (XBRL), which enables interactive data. See, notice. Location: SEC, 100 F St., NE.
2:30 PM. The Senate Homeland Security and Government Affairs Committee's (SHSGAC) Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security will hold a hearing titled "Removing the Shroud of Secrecy: Making Government More Transparent and Accountable". The witnesses will include Vivek Kundra (EOP), Aneesh Chopra (EOP), David Ferriero (National Archives and Records Administration), Rob Pinkerton (Adobe Systems), and others. See, notice. Location: Room 342, Dirksen Building.
2:30 PM. The Senate Commerce Committee (SCC) will hold a hearing titled "Reviewing the National Broadband Plan". FCC Chairman Julius Genachowski will testify. See, FCC staff report [376 pages in PDF] titled "A National Broadband Plan for Our Future" and story titled "FCC Releases National Broadband Plan" in TLJ Daily E-Mail Alert No. 2,058, March 15, 2010. See, SCC notice. Location: Room 253, Russell Building.
4:00 - 6:00 PM. The House Intelligence Committee (HIC) will hold a closed hearing titled "FY11 Budget: National Cyber Security". See, notice. Location: Room HVC-304, Capitol Building.
8:00 - 9:00 AM. The Federal Communications Bar Association's (FCBA) Privacy and Data Security Committee will host an event titled "Coffee and Croissants with London Data Privacy Partner, Cynthia O'Donoghue". Register with Desiree Logan at dlogan at reedsmith dot com or 202-414-9318. Location: Reed Smith, East Tower, 1301 K St., NW.
8:30 AM - 5:00 PM. Day one of a two day meeting of the Department of the Interior's (DOI) U.S. Geological Survey's (USGS) National Geospatial Advisory Committee (NGAC). See, notice in the Federal Register, March 5, 2010, Vol. 75, No. 43, at Page 10309. Location: One Washington Circle Hotel, 1 Washington Circle, NW.
9:00 AM - 4:00 PM. The Office of the National Coordinator for Health Information Technology's HIT Policy Committee will meet. See, notice in the Federal Register, February 26, 2010, Vol. 75, No. 38, at Pages 8954-8955. Location: Omni Shoreham Hotel, 2500 Calvert St., NW.
10:00 AM. The House Ways and Means Committee (HWMC) will hold a hearing titled "China's Exchange Rate Policy". The HWMC will webcast this event. See, notice. Location: Room 1100, Longworth Building.
10:00 AM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, State and Related Agencies will hold a hearing titled "National Science Foundation Budget Overview". The witness will be Arden Bement (NSF Director). Location: Room H-309, Capitol Building.
10:30 AM - 12:30 PM. The House Science Committee's (HSC) Subcommittee on Technology and Innovation will hold a hearing titled "Supporting Innovation in the 21st Century Economy". The witnesses will include Aneesh Chopra (EOP's Office of Science and Technology Policy), Rob Atkinson (Information Technology and Innovation Foundation), Dan Breznitz (Georgia Tech University), and Paul Holland (Foundation Capital). The HSC will webcast this event. Location: Room 2318, Rayburn Building.
2:00 PM. The House Oversight and Government Reform Committee's (HOGRC) Subcommittee on Government Management, Organization and Procurement Subcommittee will hold a hearing titled "Federal Information Security: Current Challenges And Future Policy Considerations". See, notice. The HOGRC will webcast this event. Location: Room 2154, Rayburn Building.
2:00 - 4:00 PM. The House Intelligence Committee (HIC) will hold a closed hearing titled "FY11 Budget: DoJ Intelligence". See, notice. Location: Room HVC-304, Capitol Building.
2:00 PM. The Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age will meet. See, notice in the Federal Register, February 5, 2010, Vol. 75, No. 24, at Pages 6031-6032. Location: FCC, Commission Meeting Room, 445 12th St., SW.
2:30 PM. The Senate Judiciary Committee (SJC) will hold a hearing on the nomination of Goodwin Liu to be a Judge of the U.S. Court of Appeals (9thCir). See, notice. The SJC will webcast this event. Location: Room 226, Dirksen Building.
2:30 PM. The Federal Trade Commission's (FTC) Bureau of Economics (BOE) will host a seminar presented by Simon Anderson (University of Virginia Department of Economics). His research focuses on advertising, search and information. For more information, contact Loren Smith lsmith2 at ftc dot gov or Tammy John tjohn at ftc dot gov. Location: FTC, Conference Center, 601 New Jersey Ave., NW.
5:00 PM. Deadline to submit comments to the Executive Office of the President's (EOP) Office of Management and Budget's (OMB) Intellectual Property Enforcement Coordinator regarding coordination of federal efforts to enforce intellectual property rights. See, notice in the Federal Register, February 23, 2010, Vol. 75, No. 35, at Page 8137-8139.
TIME? The U.S.-China Economic and Security Review Commission will hold a hearing titled "China's Industrial Policy and its Pillar Industries". This event is open to the public. Location: Room 236, Russell Building, Capitol Hill.
8:30 AM - 4:30 PM. Day two of a two day meeting of the Department of the Interior's (DOI) U.S. Geological Survey's (USGS) National Geospatial Advisory Committee (NGAC). See, notice in the Federal Register, March 5, 2010, Vol. 75, No. 43, at Page 10309. Location: One Washington Circle Hotel, 1 Washington Circle, NW.
10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda includes consideration of S 3111 [LOC | WW], the "Faster FOIA Act of 2010", a bill to create a powerless commission that would write a toothless report on why federal officials do not comply with the federal Freedom of Information Act (FOIA), which is codified at 5 U.S.C. § 552. The SJC rarely follows its published agendas. The SJC will webcast this event. See, notice. Location: Room 226, Dirksen Building.
10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications, Technology, and the Internet (SCTI) will hold a hearing on the FCC staff report [376 pages in PDF] titled "A National Broadband Plan for Our Future". See, HCC notice, and story titled "FCC Releases National Broadband Plan" in TLJ Daily E-Mail Alert No. 2,058, March 15, 2010. Location: Room 2123, Rayburn Building.
2:00 PM. The House Appropriations Committee's (HAC) Subcommittee on Commerce, Justice, State and Related Agencies will hold a hearing titled "USPTO FY 2011 Budget Overview". The witness will be David Kappos (head of the USPTO). Location: Room H-309, Capitol Building.
6:00 - 8:00 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host an event titled "Happy Hour". For more information, contact Nguyen Vu at nguyen dot vu at bingham dot com or Micah Caldwell at mcaldwell at fh-law dot com. Location: Mackey's Public House, 1823 L St., NW.
10:00 AM - 12:00 NOON. The Department of State's (DOS) International Telecommunication Advisory Committee (ITAC) will meet by teleconference to prepare for an April 19-30, 2010, meeting of International Telecommunication Union's (ITU) Telecommunication Standardization Sector's (ITU-T) Study Group 13 (Future networks including mobile and Next Generation Networks). See, notice in the Federal Register, March 9, 2010, Vol. 75, No. 45, at Page 10860.
12:00 NOON. The American Bar Association's (ABA) Antitrust Section will host a brown bag lunch titled "60 Minutes with the Antitrust Division". The speakers will include Christine Varney, William Cavanaugh, and Molly Boast. Location: Wilmer Hale, 1875 Pennsylvania Ave., NW.
5:00 PM. Extended deadline to submit to the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) applications for Comprehensive Community Infrastructure (CCI) projects under the Broadband Technology Opportunities Program (BTOP). See, notice in the Federal Register, March 8, 2010, Vol. 75, No. 44, at Page 10464.
3/20. The Senate Commerce Committee (SCC) is scheduled to mark up S 2881 [LOC | WW], the "FCC Commissioners' Technical Resource Enhancement Act" on March 24, 2010. See, notice of executive session.
This bill would enable each of the five Federal Communications Commission (FCC) Commissioners to also hire an "electrical engineer or computer scientist". Each Commissioner already has authority under 47 U.S.C. § 154 to hire "three professional assistants".
Commissioners currently have authority to hire engineers or scientists. However, they almost always choose to hire lawyers. This bill would enable each Commissioner to expand his or her office, but require that the additional hire be an engineer of scientist.
Similarly, the President is free to appoint as Commissioners engineers, scientists, economists, or other non-lawyers. However, Presidents almost always appoint lawyers. Former Commissioner Harold Furchtgott-Roth, an economist, was the last non-lawyer.
The FCC, and its predecessor agency, were conceived nearly a century ago as bodies of technical experts that would bring their independence and expertise to bear in implementation by rulemaking and adjudication of the directives set forth in Congressional statutes.
The FCC has long since abandoned this model. The agency is run by lawyers, rather than technicians, and often lacks the in house expertise to understand the technologies and business models that it regulates. It also operates, in legislative and policy making mode, without independence, in an agency relationship with the Congress.
Sen. Olympia Snowe (R-ME) and Sen. Mark Warner (D-VA) introduced this bill on December 14, 2009.
Sen. Snowe stated in December that this bill provides that each FCC Commissioner "may hire an additional staff member -- an electrical engineer or computer scientist -- to provide in-depth technical consultation. Currently, the statute allows each Commissioner to appoint only three professional assistants and a secretary. Typically, these professional assistants have been legal advisors covering the wireline, wireless, and cable/media sectors. However, in order to properly regulate communications, Commissioners must be well-versed in both the legal and technical aspects of the issues." See, Congressional Record, December 14, 2009, at Page S13192.
She added that "With the rapid advancement of technologies and innovation within the telecommunications industry, it is imperative that Commissioners have the technical expertise on their staff to make well informed regulatory decisions".
Rep. Jerry McNerney (D-CA) introduced a substantially identical bill in the House on March 10, 2010. It is HR 4809 [LOC | WW], also titled the "FCC Commissioners' Technical Resource Enhancement Act". It has been referred to the House Commerce Committee (HCC), of which Rep. McNerney is a member. Rep. McNerney received a Ph.D. in mathematics from the University of New Mexico.
Both S 2881 and HR 4089 provide as follows: "Section 4(f)(2) of the Communications Act of 1934 (47 U.S.C. 154(f)(2)) is amended by inserting after the first sentence the following new sentence: `Each commissioner may also appoint an electrical engineer or computer scientist to provide the commissioner technical consultation when appropriate and to interface with the Office of Engineering and Technology, Commission Bureaus, and other technical staff of the Commission for additional technical input and resources, provided that such engineer or scientist holds an undergraduate or graduate degree from an institution of higher education in their respective field of expertise.´."


Jimmie E. Tinsley, under appointment by the Supreme Court, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Robert R. Granucci and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant appeals from judgment entered on jury verdicts convicting him of 1 count of grant theft (Pen. Code, §§ 484, 487, subd. 1) and 14 counts of forgery (Pen. Code, § 470) based on unemployment insurance fraud. He was sentenced to state prison for the term prescribed by law, the terms on the forgery counts to run concurrently with the grand theft term. The principal question presented by this appeal is whether section 2101 of the Unemployment Insurance Code, classifying as a misdemeanor fraudulent representation to obtain unemployment [16 Cal. 3d 694] benefits, is a special statute precluding prosecution of such fraud under the general theft and forgery statutes. The judgment must be reversed.
Defendant submitted a questionnaire establishing his eligibility for unemployment benefits to an employee of the Employment Development Department (EDD); he signed the questionnaire "Gary Roster," social security number 549940478. Receiving a pay certification card for $65, he signed the same name on that form and presented it to a cashier in the EDD office. A supervisor then noticed that defendant resembled a photograph posted on the office bulletin board of a man wanted by the department for questioning concerning possible violations of the Unemployment Insurance Code. The supervisor instructed the cashier to stall defendant until an EDD investigator could be summoned.
While defendant was still at the cashier's window, but after he received the $65, an investigator approached defendant and identified himself. Defendant ran toward an exit, but was apprehended. He then produced identification indicating he was Gary Ruster, social security number 564560708. Subsequent searches made with his consent or pursuant to warrant produced documents indicating petitioner had received thirteen $65 unemployment insurance payments using the name "Gary Roster" between May and September of 1971, and had received $1,400 in unemployment insurance benefits by using a false social security number between April of 1970 and August of 1971. His defense at trial was diminished capacity.
The People contend that section 2101 does not include one of the elements of section 484 and, therefore, does not supplant it. The theft statute requires that the fraud victim actually "part with value." (See People v. Gilbert, supra, 1 Cal.3d at p. 480; People v. Phillips, supra, 64 Cal.2d at p. 582.) Relying on People v. Lustman (1970) 13 Cal. App. 3d 278 [91 Cal. Rptr. 548], the People contend section 2101 has no such requirement, but rather, the words "to obtain" limit the application of the statute to attempted unemployment insurance fraud.
In Armstrong, the defendant was convicted of both unemployment insurance fraud and theft based on the same misconduct. He contended that the offense described by section 101, subdivision (a), was necessarily included within theft and, therefore, that he was being punished twice for the same offense. The Court of Appeal found merit in this contention, observing that "the corpus delicti [of unemployment insurance fraud] is identical with attempted theft by false pretenses." (100 [16 Cal. 3d 696] Cal.App.2d Supp. at p. 858, italics added.) However, because it was not confronted with the question presented here, the Armstrong court had no occasion to consider whether section 101, subdivision (a), while requiring only an attempt, might also conver consummated fraud. The question presented in Haydon was whether section 101, subdivision (a), was a special statute precluding prosecution of unemployment insurance fraud under section 72 of the Penal Code. Section 72 then provided in pertinent part: "Every person who, with intent to defraud, presents for allowance or for payment to any state board ... any false or fraudulent claim ... is guilty of a felony." The Court of Appeal held that section 72 was supplanted by section 101, subdivision (a). In reaching this conclusion, the court was not required to, and did not, determine whether section 101, subdivision (a), applied to completed, as well as attempted, fraud.
Statutes are to be construed so as to effect the intent of the Legislature. (Code Civ. Proc., § 1859; Mercer v. Perez (1968) 68 Cal. 2d 104, 112 [65 Cal. Rptr. 315, 436 P.2d 315]; Select Base Materials v. Board of Equal. (1959) 51 Cal. 2d 640, 645 [335 P.2d 672].)  To ascertain legislative intent, the court should construe a statute with reference to the whole system of law of which it is a part. (Select Base Materials v. Board of Equal., supra; Stafford v. L. A. etc. Retirement Board (1954) 42 Cal. 2d 795, 799 [270 P.2d 12]; County of Los Angeles v. Frisbie (1942) 19 Cal. 2d 634, 639 [122 P.2d 526].) [2b] When this principle of statutory construction is followed here, it becomes clear that section 2101 applies to completed, as well as attempted, unemployment insurance fraud and, therefore, that it precludes prosecution of such fraud under section 484.
Section 1263, subdivision (c), of the Unemployment Insurance Code provides: "The department shall, effective upon the date of the filing of a criminal complaint against an individual prosecuted under Section 2101, suspend the payment of benefits to the individual." This section makes it clear that section 2101 was intended to apply to individuals who succeed in fraudulently obtaining unemployment benefits, as well as those who merely attempt to do so; if section 2101 applied only to attempts, it would be unnecessary to suspend payments of benefits.
This conclusion is reinforced by other sections in the same division. Section 1375 provides in pertinent part that "[a]ny person who is overpaid any amount as benefits ... is liable for the amount overpaid unless: (a) The overpayment was not due to fraud, misrepresentation or wilful nondisclosure on the part of the recipient ...." Section 2113 [16 Cal. 3d 697] provides that in lieu of filing a criminal complaint, the department may accept restitution of overpayment from one who has "willfully made a false statement or representation ... to obtain or increase any benefit." Both sections obviously contemplate that overpayments may actually be made as a result of violations of section 2101.
Finally, section 2113 further provides that no one who has been convicted of violating section 2101 within the preceding three years may be offered an opportunity to restore benefits in lieu of criminal prosecution. If section 2101 applies only to attempts, then one who succeeded in defrauding the department and, thus, was convicted of theft would be eligible within three years to avoid a new prosecution under section 2101 by restoring benefits under section 2113, while one who had previously merely attempted to defraud the department would not be eligible for such treatment. That such a distinction would be unreasonable further demonstrates that section 2101 applies to completed, as well as attempted, fraud.
One of the elements of the crime defined by section 470 is signing the name of another, or of a fictitious person to, or otherwise forging, one of the documents enumerated in the statute. Pointing out that forgery is not expressly made an element of section 2101, the People contend that section 2101, therefore, does not supplant section 470 when unemployment insurance fraud involves forgery.
An analogous question was presented in People v. Swann (1963) 213 Cal. App. 2d 447 [28 Cal. Rptr. 830]. Charged by information with forgery, the defendant had allegedly used a credit card without the owner's permission, forging the owners's name to a credit invoice. The information was set aside on the ground that former section 484a of the Penal Code, making it an offense, inter alia, to "use" a lost or stolen credit card, was a special statute precluding prosecution of such misconduct under section 470. fn. 3 The People appealed, contending, as they have here, that the general statute was not supplanted by the special statute because [16 Cal. 3d 699] forgery was not expressly made an element of the special statute. In an opinion prepared by Presiding Justice Burke, subsequently a member of this court, the Court of Appeal affirmed the order setting aside the information. "The People's argument that the signing of the credit invoices should be separated from the 'use' of the credit card making such signing separately chargeable as forgery is without merit. Certainly the Legislature in enacting section 484a, Penal Code, contemplated false or unauthorized signatures on credit invoices by parties engaged in the misdemeanor use of credit cards ... since such signatures are required of credit card users in the customary use of such cards." (213 Cal.App.2d at p. 451.) Swann was cited with approval by this court in People v. Ali (1967) 66 Cal. 2d 277, 279 [57 Cal. Rptr. 348, 424 P.2d 932].
Here, too, the Legislature unquestionably contemplated that the special statute might be violated by means of forgery. Indeed, applying for aid under a false identity, which entails signing eligibility questionnaires and pay certification cards with a false name, is apparently one of the most common forms of unemployment insurance fraud. Therefore, such fraud may not be prosecuted under section 470. People v. Lustman, supra, is disapproved on this ground as well.
Reversing the judgment renders it unnecessary to reach most of defendant's remaining contentions. However, because the admissibility of the fruits of the searches will inevitably arise again on retrial, we proceed to consider that question.
 Both the EDD investigator who apprehended him and the police officer who subsequently took custody of him advised defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974]. On both occasions, defendant declined to make a statement. When defendant arrived at the police station, he appeared to be hyperventilating and "quite upset, quite nervous." However, during the booking interview, defendant's breathing slowed and he "calmed down somewhat;" he appeared to be "rational" and to understand the "nature" and "gravity" of his situation.
At the conclusion of the booking interview, which was recorded and transcribed, defendant consented to a search of his automobile. "[Officer]: Gary, we are impounding your car and we are obtaining a search warrant for it. We will be able to hold the car until we search it. It [16 Cal. 3d 700] might not be necessary to impound the car. However, if we have a permissive search from you we expect to find things of the same nature in your car with all of the other records. You can consent to such a search knowing that we can use the material against you. However, you do not have to consent to it. In fact, you can demand we get a search warrant. In that case we will get a search warrant, but your car will be impounded in the meantime. What is your choice? [¶] Ruster: Well, you might as well search it then. [¶] [Officer]: Okay. This is freely and voluntarily? [¶] Ruster: Yes."
Relying on People v. Superior Court (Keithley) (1975) 13 Cal. 3d 406 [118 Cal. Rptr. 617, 530 P.2d 585] and Bumper v. North Carolina (1968) 391 U.S. 543 [20 L. Ed. 2d 797, 88 S. Ct. 1788], defendant contends that the search of his automobile was illegal because his purported consent to the search was involuntary.
Defendant's reliance on People v. Superior Court (Keithley), supra, is misplaced. In Keithley, the police continued to interrogate the defendant, obtaining an incriminating statement from him, after he asserted his Miranda rights. Subsequently, he consented to a search of his residence. When his motion to suppress the evidence seized during the search was granted, the People sought review by writ of mandate. (Pen. Code, § 1538.5, subd. (o).) Substantial evidence supported the trial court's implied finding that the consent to the search was the fruit of the Miranda violation. Therefore, we denied the writ.
Bumper is inapposite because the officer here did not claim present authority to search under a warrant. Instead, the officer merely informed defendant that he would obtain a warrant if defendant did not consent to the search. Moreover, in the same breath the officer expressly informed defendant that he need not consent to the search, that the search was expected to reveal incriminating evidence, and that such evidence would be admissible against him.
 "[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227 [36 L. Ed. 2d 854, 862-863, 93 S. Ct. 2041]; see People v. Michael (1955) 45 Cal. 2d 751, 753 [290 P.2d 852].) The trier of fact's resolution of this question will not be disturbed on appeal if there is substantial evidence to support it. (People v. Superior Court (Keithley), supra, 13 Cal.3d at p. 410; People v. West (1970) 3 Cal. 3d 595, 602 [91 Cal. Rptr. 385, 477 P.2d 409].) There is such evidence here.
 Relying on People v. Grant (1969) 1 Cal. App. 3d 563 [81 Cal. Rptr. 812], defendant contends that the search warrant for his San Mateo County residence was invalid because it was issued by a Santa Clara County magistrate.
In Grant, a San Mateo County magistrate issued a search warrant for the defendants' residence in that county, as well as their persons. San Mateo County peace officers in possession of the warrant observed the defendants driving in the county, but were unable to stop their car until [16 Cal. 3d 702] it entered adjoining San Francisco County. There a search of the pockets of one of the defendants revealed a large quantity of heroin.
Although ultimately upholding the search and seizure under a "hot pursuit" theory, the Court of Appeal held that the effect of a search warrant ordinarily should be limited to the county issuing it. "The person offended should have a ready forum in which to attack the validity of the search or seizure, and not be subjected to following his property across county lines, or conceivably to the opposite end of the state." (1 Cal.App.3d at p. 569.) If the property of a stranger to a criminal investigation were seized in one county pursuant to a warrant issued by a magistrate in another county, it might well be inconvenient for him to contest the validity of the search or seizure in the county issuing the warrant. But that is not the case here. Defendant had already been arrested and admitted to bail in Santa Clara County when the warrant issued; the charges to which the evidence pertained were triable in Santa Clara County. Therefore, Santa Clara County was the most convenient forum in which to resolve the validity of the search and seizure. The Santa Clara County magistrate had jurisdiction to issue the warrant.
The affiant was an investigator for the district attorney's office. His informants were the chief investigator for that office and the EDD investigator who apprehended defendant. The information provided by the chief investigator was in turn based on information provided him by investigators for the district attorneys of other jurisdictions. If the affidavit is read in a commonsense manner, as it must be (United States v. Ventresca (1965) 380 U.S. 102, 108-109 [13 L. Ed. 2d 684, 688-689, 85 S. Ct. 741]; People v. Mesa (1975) 14 Cal. 3d 466, 469 [121 Cal. Rptr. 473, 535 P.2d 337]), it is clear that the ultimate sources of information spoke with personal knowledge of it. The fact that the information was relayed to the affiant through "official channels" did not vitiate its reliability. (See People v. Terry (1970) 2 Cal. 3d 362, 394 [85 Cal. Rptr. 409, 466 P.2d 961]; People v. Ross (1967) 67 Cal. 2d 64, 70 [60 Cal. Rptr. 254, 429 P.2d [16 Cal. 3d 703] 606], reversed on other grounds, 391 U.S. 470 [20 L. Ed. 2d 750, 88 S. Ct. 1850].) The warrant was valid.
Wright, C. J., McComb, J., Tobriner, J., Mosk, J., Sullivan, J., and Richardson, J., concurred.
FN 1. Section 101 provided in pertinent part: "It is a misdemeanor to: (a) Wilfully make a false statement or representation or knowingly fail to disclose a material fact to obtain ... any benefit or payment ...."
FN 2. Our conclusion is also supported by the construction given the statute by the Employment Development Department, the administrative agency charged with its enforcement and interpretation.
After oral argument, we directed the following letter to respondent: "One question presented by this case is, of course, whether section 2101 of the Unemployment Insurance Code is applicable only to attempted unemployment insurance fraud. In resolving such a question, great weight is accorded contemporaneous administrative construction of the statute by the agency charged with its enforcement and interpretation. (See, e.g., Rivera v. City of Fresno (1971) 6 Cal. 3d 132, 140.) Therefore, respondent is directed to ascertain and to inform the court whether the [Employment Development Department] has a policy of prosecuting completed unemployment insurance fraud under section 2101 in certain circumstances, e.g., when the fraud is practiced, not in the initial application for benefits, but in failure to reveal a subsequent disqualifying change of circumstances.
In response to our letter, the chief counsel of the EDD filed a memorandum confirming that the department does interpret section 2101 as applicable to completed unemployment insurance fraud except in cases involving "fraud in the inception." As the chief of the EDD investigative section stated in a declaration attached to the memorandum: "Since the enactment of the [predecessor to section 2101 in 1935], it has been consistently applied to individuals who have fraudulently obtained benefits as the result of misstatements or nondisclosure of material facts. ... The mere attempt to get benefits fraudulently is rarely prosecuted. Normally the prosecutor requires evidence that the individual in question drew benefits as the result of his fraudulent act."
The EDD interprets section 2101 as being inapplicable to cases involving "fraud in the inception." "Cases of this kind may come about, for instance, where there is a 'grand design' to defraud, such as the formation of fictitious businesses which register with the department as covered employers and are then used for the purpose of claiming benefits by persons not entitled to receive them; or an individual may 'usurp' the names and records of persons other than himself to claim benefits; or the claim may be based on forgery. Under these circumstances, no valid claim can be filed, since the claim itself is based on fraud. This 'fraud in the inception' is the basis for prosecutions under the Penal Code. [¶] It is the view of the department that Section 2101 was not intended by the legislature to cover criminal actions of the kind just described in the preceding paragraph; that is, cases where there is fraud in the inception. Forgery, for instance, is a specific crime not related uniquely to the false claiming of benefits, whereas Section 2101 clearly implies punishment for acts specifically related to misstatements concerning eligibility for benefits under a valid claim. 'Grand theft' is not used as a ground for prosecution under Section 2101 no matter what amount of benefits is fraudulently obtained, but it is appropriate as a ground in the 'fraud in the inception' case where the amount involved is sufficient for the charge of grant theft."
We are not persuaded by the department's argument that cases involving "fraud in the inception" are appropriately prosecuted under the general theft and forgery provisions of the Penal Code. However, the department's practice of prosecuting other forms of completed unemployment insurance fraud under section 2101 makes us more confident of our conclusion that section 2101 is not limited to attempted unemployment insurance fraud.
FN 3. Former section 484a, added by Statutes 1961, chapter 813, section 1, and repealed by Statutes 1967, chapter 1395, section 1, was the forerunner of present sections 484d through 484i of the Penal Code.


Section 8 CFR §214.2(h) (5) (i) governs the admission of H-2A temporary or seasonal, agricultural workers. In addition, Section 20 CFR, Part 655, contains extensive regulations from the Department of Labor governing admission of temporary, agricultural workers. Section 22 CFR § 41.53 and additional clarifications stated in 9 U.S. Department of State, Foreign Affairs Manual, supplement the rules for the admission of temporary, agricultural workers to the United States.
To receive an H-2B temporary nonagricultural worker visa, the petitioning employer must demonstrate that the job itself and the employer’s need for the specific beneficiary are temporary. Section 8 CFR § 214.2(h) (6) (i) states that an “H-2B nonagricultural temporary worker is an alien who is coming temporarily to the United States to perform temporary services or labor, is not displacing U.S. workers capable of performing such services or labor, and who is capable of performing such services or labor, and whose employment is not adversely affecting the wages and working conditions of U.S. workers.” Section 8 CFR § 214.2(h)(6)(ii) (A) defines temporary services as “any job in which the petitioner’s need for the duties to be performed by the employee is temporary, whether or not the underlying job can be described as permanent or temporary.” The petitioner’s need (which must generally be one year or less) can be a one-time occurrence, seasonal, peak load or intermittent.
One-time Occurrence. Pursuant to 8 CFR § 214.2(h) (6) (ii) (B) (1), the employer needs to show that he has not employed, and will not need, workers, or has an employment situation that is otherwise permanent, but an event of short duration has created the need for a temporary worker.
Seasonal Need. According to 8 CFR § 214.2(h)(6)(ii)(B)(2), the employer needs to show that the services or labor are traditionally tied to a season or by an event or pattern. An example of such a need is diving instructors hired for the summer. The employer must specify the period(s) of time during which he does not need the labor. USCIS does not consider employment to be seasonal if the period during which the labor is not needed is unpredictable, subject to change or considered vacation time for the petitioner’s employees.
Peak-load Need. Pursuant to 8 CFR § 214.2(h) (6) (ii) (B) (3), the employer must show that he regularly employs permanent workers and needs to supplement them on a temporary basis due to seasonal or short-term demand. Additionally, the temporary additions to staff must not become a part of his regular operations.
Intermittent Need. In accordance with to 8 CFR § 214.2(h) (6) (ii) (B) (4), the employer must show that he regularly hires permanent workers and needs to supplement his permanent staff on a temporary basis due to a seasonal or short-term demand. Additionally, the temporary additions to the staff will not become a part of the petitioner’s regular operations.
Required Documentation. An employer first needs to obtain a temporary labor certification, Form ETA-750, from DoL, which allows him to hire temporary or seasonal workers. Before USCIS can approve a petition for such workers, the employer must file an application with DOL stating that there are not sufficient workers who are able, willing, qualified and available, and that the employment of foreign nationals will not adversely affect the wages and working conditions of similarly employed American workers. The petitioner may not appeal DOL’s denial of the certification.
The employer shall file the certification and I-129 with USCIS. USCIS may, however, deny an H-2B visa petition even if there is a certification from DOL. Likewise, an H-2B petition can be granted despite a negative recommendation from DOL.
a statement describing in detail the temporary situation or conditions that make it necessary to bring the beneficiary to the United States and whether the need is a one-time occurrence, seasonal, peak load or intermittent. If the need is seasonal, peak load or intermittent, the statement must indicate whether the situation or conditions are expected to be recurring.
USCIS may grant two one-year extensions for to H-2B temporary workers. To this end, the petitioning employer must file a new I-129 and request another labor certification. If he dismisses without cause an H-2B beneficiary before the end of his approved stay, the employer must pay the transportation costs to return the worker to his home country.
In order to receive USCIS’ approval, the employer must demonstrate that he will pay the H-2B worker the prevailing wage and provide conditions that are typical to workers similarly employed in the area of intended employment. In addition, the employer must show that there is no strike, lockout or work stoppage in the occupational classification at the place of employment. The employer must also demonstrate that it has complied with the recruitment requirements and will comply with all federal, state and local laws related to the job opportunity.
If DOL selects an H-2B petition for audit, the employer must respond within thirty days of date of the notice. If DoL finds that an employer has misrepresented a material fact in the petition, it may disbar the employer from the H-2B program for a maximum of three years.


COLETTE JOLICOEUR, a Minor, et al., Petitioners, v. EMMERY MIHALY, as Registrar of Voters, etc., et al., Respondents.
JAMES TABILIO, a Minor, et al., Petitioners, v. EMMERY MIHALY, as Registrar of Voters, etc., et al., Respondents.
MARK STEVEN RANDELL, a Minor, etc., et al., Petitioners, v. JAMES S. ALLISON, as Registrar of Voters, etc., Respondent.
John R. Cosgrove, Jorgenson, Cosgrove, Andrews, Elliott & Gillio, Joseph Freitas, Jr., Dov M. Grunschlag, Robert Powsner, William A. Dobrovir, David L. Crump, Roger Jon Diamond and William Bennett for Petitioners.
In these proceedings we are called upon to determine whether the newly enfranchised young people of this state residing apart from their parents shall be treated like other voters for purposes of acquiring a voting residence or, on the contrary, shall be presumed to reside with their parents. We conclude that for state officials to treat minor citizens differently from adults for any purpose related to voting would violate the Twenty-sixth Amendment to the United States Constitution. We also conclude that strong state policies require that voters participate in elections where they reside and, in accordance with California law permitting a minor to be emancipated for residential or other purposes, that California law requires that minors of 18 years of age or older be treated as emancipated and hence as adults for voting purposes in light of the Twenty-sixth Amendment.
Petitioners are nine individual unmarried minors and two organizations. The nine individuals sought to register to vote in the jurisdiction they claim to be their actual permanent residence. Registrars of voters in the City and County of San Francisco, Alameda County, Santa Barbara County, San Diego County, and Los Angeles County refused to register the individual petitioners because they did not register at their parents' address, pursuant to the California Attorney General's opinion of February 17, 1971 (Opn. No. 70/213, 54 Adv.Ops.Cal.Atty.Gen. 7, 12), in which he concluded that "for voting purposes the residence of an unmarried minor [whether student or not] ... will normally be his parents' home" regardless of where the minor's present or intended future habitation might be.
 The Twenty-sixth Amendment prohibits abridging the right to vote on account of age.  The word "abridge" means diminish, curtail, deprive, cut off, reduce. (Webster's New Internat. Dict. (3d ed. 1961) p. 6; Schermerhorn v. Local 1625 of Retail Clerks Int. Assn. (Fla. 1962) 141 So.2d 269, 276; Piegts v. Amalgamated Meat Cutters, etc. (1955) 228 La. 131, 139 [81 So.2d 835, 838]; Gray v. Johnson (S.D. Miss. 1964) 234 F.Supp. 743, 746.) Gray is significant for its interpretation of similar language in the Twenty-fourth Amendment, which forbids denial or abridgment of the right to vote on account of failure to pay a poll tax. The court in Gray held unconstitutional as abridging the right to vote a Mississippi statute which compelled persons exempted from the poll tax by the Twenty-fourth Amendment to secure special receipts within a limited period of time. The burden put on exempted voters to obtain the special receipts was held to circumscribe, impair, and impede the right to vote.
Compelling young people who live apart from their parents to travel to their parents' district to register and vote or else to register and vote as absentees burdens their right to vote no less than the State of Mississippi burdened its poor people in Gray. Such young people would be isolated from local political activity, with a concomitant reduction in their political influence and information. The burden placed on youth would be different than that placed on other absentee voters. The youth, unlike other absentee voters, claims his current residence as his domicile but would be disqualified solely "on account of age."
 An unmarried minor must be subject to the same requirements in proving the location of his domicile as is any other voter.  Fears of [5 Cal.3d 572] the way minors may vote or of their impermanency in the community may not be used to justify special presumptions--conclusive or otherwise-- that they are not bona fide residents of the community in which they live.
In Carrington v. Rash (1965) 380 U.S. 89 [13 L.Ed.2d 675, 85 S.Ct. 775], the United States Supreme Court was faced with a quite similar problem. There a Texas statute prevented persons entering the state as soldiers from acquiring a voting residence in the state while soldiers. The state claimed that military personnel might not make responsible use of the ballot, might vote in a bloc if under the dominating influence of a commanding officer, and, as transients without a stake in the future of the area, might vote against needed bond issues and property taxes. The court's answer was clear: Texas might restrict the franchise to bona fide residents, but it could not conclusively presume soldiers to be transients. To the state's claim that soldiers could "take over" a small town near the base, the court responded firmly: "`Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible." (Id, at p. 94 [13 L.Ed.2d at p. 679].) Carrington obviously applies to minors as well as to soldiers.
Were there any doubt that the Twenty-sixth Amendment is intended to compel adult treatment of minors for voting purposes, reference to the legislative history of the amendment would dispel it.  It is clear from that history, which is entitled to "an important place in ascertaining the legislative intent" (Freedland v. Greco (1955) 45 Cal.2d 462, 467 [289 P.2d 463]; cf. Bourland v. Hildreth (1864) 26 Cal. 161, 180; Keeler v. Superior Court (1970) 2 Cal.3d 619, 624 [87 Cal.Rptr. 481, 470 P.2d 617]), that Congress believed both that minor voters are entitled to be treated as adults for voting purposes and that voting in the youth's actual place of residence is essential to accomplishing a primary congressional goal of channelling youthful idealism through the political process.
It would be impossible here to analyze fully the extensive hearings and debates held on whether to extend the vote to 18-year-olds. fn. 6 One of the best and most concise guides to congressional intent is the Senate Report accompanying Senate Joint Resolution 7 (later enacted as the Twenty-sixth Amendment), a report adopted by both houses of Congress by more than a two-thirds majority. (S.Rep. 92-26, 1971 U.S. Code Cong. & Admin. News 362.) "Reports of commissions which have proposed statutes that are subsequently adopted are entitled to substantial weight in construing the statutes. [Citations.]" (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249 [66 Cal.Rptr. 20, 437 P.2d 508].) That report makes the following "Case for 18-Year-Old Voting."
It is clear that respondents have abridged petitioners' right to vote in precisely one of the ways that Congress sought to avoid--by singling minor voters out for special treatment and effectively making many of them vote by absentee ballot. The Senate Report indicates that Congress not only disapproved of such treatment, but feared that it would give youth "less of a sense of participation in the election system" and "might well serve to dissuade them from participating in the election," a result inconsistent with the goal of encouraging "greater political participation on the part of the young."
Respondents' policy would clearly frustrate youthful willingness to accomplish change at the local level through the political system. Whether a youth lives in Quincy, Berkeley, or Orange County, he will not be brought into the bosom of the political system by being told that he may not have a voice in the community in which he lives, but must instead vote wherever his parents live or may move to. Surely as well, such a system would give any group of voters less incentive "in devising responsible programs" in the town in which they live. Only the most dedicated partisan would travel from Oakland to San Diego (or Tucson) in order to exercise effectively his First Amendment rights of political association and expression.
America's youth entreated, pleaded for, demanded a voice in the governance of this nation. On campuses by the hundreds, at Lincoln's Monument by the hundreds of thousands, they voiced their frustration at their electoral impotence and their love of a country which they believed to be abandoning its ideals. Many more worked quietly and effectively within a system that gave them scant recognition. And in the land of Vietnam they lie as proof that death accords youth no protected status. Their struggle for recognition divided a nation against itself. Congress and more than three-fourths of the states have now determined in their wisdom that youth "shall have a new birth of freedom"--the franchise. Rights won at the cost of so much individual and societal suffering may not and shall not be curtailed on the basis of hoary fictions that these men and women are children tied to residential apron strings. Respondents' refusal to treat petitioners as adults for voting purposes violates the letter and spirit of the Twenty-sixth Amendment.
Petitioners sought to register at addresses they claim to be their residences for voting purposes. If petitioners are residents of the districts they claim, the integrity of our state's political system demands that they be allowed to vote in those areas. This is true for two reasons.
First, basic democratic principles require that citizens be able to participate in making decisions that intimately affect their lives. Forcing residents of one locality to vote in the elections of another locality denies to those voters the right to help determine the resolution of issues which vitally affect them, and eventually alienates them from the political process.
The rules announced by respondents not only would deny to some residents the right to vote where they live, but could also serve to give an unmarried minor a series of voting residences which he has never seen. The 18-year-old who lives and works in San Francisco for the three years he is a voting minor might well wind up voting in turn for the Mayor of Seattle, the Governor of Maine, and school bonds in Oshkosh, Wisconsin, only to be disenfranchised completely on the local level when his parents move permanently to Paris.
In many states special rules are applied in determining the voting residence of students. (Singer, Student Power at the Polls (1970) 31 Ohio St.L.J. 703, 721-723.) The underlying rationale of these various tests is that students are apt to be transient inhabitants of the community, little concerned about long-term policies and problems, and often may not pay local property taxes. (But see Note, Restrictions on Student Voting: An Unconstitutional Anachronism? (1970) 4 Mich.J.Law Reform 215.) The possible transiency, penury, or ignorance of students did not, however, impress the California Legislature, which has expressly provided that the law "shall not be construed to prevent a student at an institution of learning from qualifying as an elector in the locality where he resides while attending that institution, when in fact the student has abandoned his former residence." (Elec. Code, § 14283.)  Student status is therefore a neutral fact in determining residence for voting purposes.
The Legislature has thus determined that differential treatment of students for voting purposes may not be condoned as a legitimate governmental policy. No reason appears for construing differential treatment of minors in a more favorable light.
The second major evil accomplished by allowing or forcing voters to vote in districts not their own is that voters of other districts have inflicted upon them a voter with no stake or interest in the outcome of the election. The extent of the evil is not only that residents of California would be asked to decide issues in Arizona or Hawaii. Small towns in California would be especially affected by such a rule, since the number of young people from the town who have left for other areas may be substantial in comparison to the town's total population. Allowing unmarried minors who reside elsewhere to vote may effectively turn a small town over to the control of unconcerned outsiders. Over a century ago we recognized the wisdom of requiring voters to be residents of the jurisdiction: "[C]itizens ... should not deal with public questions through the ballot box until they at least [have] the benefit of an opportunity to learn the public wants, of concerting measures the best calculated to provide for them, and of selecting proper men to carry those measures into effect; ...." (Bourland v. Hildreth, supra, 26 Cal. 161, 179.) Allowing minors to vote at fictional residences would compromise the integrity of the political process.
In addition to these fundamental policies requiring that a person vote where he actually resides and not be compelled to vote at a fictional residence, [5 Cal.3d 578] there are further legislative policies which require that a minor residing apart from his parents be permitted to vote at his residence.
 The provisions of the Elections Code governing determination of residence for voting purposes also reflect the state policy of recognizing an actual rather than a fictional residence.
The Attorney General has misapplied section 244 by failing to view it in light of other pertinent statutes and decisions governing parent-child relations.  Specifically, under California law a minor may be emancipated partially or completely by his parents or by operation of law. It is possible that a minor of 18 years of age or older, living apart from his parents, will be emancipated for all purposes; it is substantially probable that he will be emancipated for purposes of residence; and the minor is necessarily emancipated for all purposes related to voting when he is given the vote in his own right, without regard to the consent of his parent or guardian.  In light of this California law regarding the emancipation of minors, we conclude that minors over 18 years of age must be treated as adults for voting purposes, and the location of their domiciles may not be questioned on account of their age.
 Nor must a child be fully emancipated in order to acquire a domicile of choice. California law recognizes that emancipation for specific purposes is effective. (Martinez v. Southern Pacific Co. (1955) 45 Cal.2d 244, 253 [288 P.2d 868] [emancipation implied by circumstances]; Slater v. California State Auto. Assn. (1962) 200 Cal.App.2d 375 [19 Cal.Rptr. 290] [partial emancipation implied]; Perkins v. Robertson, supra, 140 Cal. [5 Cal.3d 581] App.2d 536 [partial emancipation implied]; Argonaut Ins. Exchange v. Kates (1955) 137 Cal.App.2d 158 [289 P.2d 801] [partial emancipation implied].)  As stated in Cole v. Superior Court (1915) 28 Cal. App. 1, 6 [151 P. 169], "`the county of the husband's residence is [that] of the minor children, unless he has consented to their acquiring residence elsewhere, or has voluntarily relinquished his parental authority over them....'"
 Whether the minor has been emancipated for residential purposes is ordinarily a question of fact. (Martinez v. Southern Pacific Co., supra, 45 Cal.2d 244, 253.)  Establishment of a separate abode is evidence of emancipation. (Spurgeon v. Mission State Bank, supra, 151 F.2d 702; Rounds Bros. v. McDaniel (1909) 133 Ky. 669 [118 S.W. 956]; Ream v. Watkins (1858) 27 Mo. 516; see generally Annot., 165 A.L.R. 723, 740-742.) fn. 11 In addition, it is common sense to believe that a good many minors over the age of 18 living apart from their parents are emancipated for these purposes. Eighteen is the age when most minors graduate from and leave school, when many get full time jobs and become self-supporting, when the state ceases to limit the number of hours they may work (Lab. Code, § 1172), when they may smoke cigarettes (Pen. Code, § 308), and when criminal proceedings begin to be brought in adult rather than juvenile courts. (Welf. & Inst. Code, § 604; Boches & Goldfarb, Cal. Juvenile Court Practice (Cont.Ed.Bar 1968) p. 35.) It is an age when males register for the draft and females may get married without the consent of either parent. (Civ. Code, § 4101.) A minor 18 to 21 years old who lives apart from his parents will usually consider his house to be home.
The fundamental importance of the franchise, as both a symbol and a vital tool of our democracy, requires that every effort be made to apply uniform standards and procedures to all qualified voters equally. (Cf. 42 U.S.C. § 1971 (a)(2)(A).)  In this case the strong likelihood that substantial numbers of voting minors living apart from their parents are emancipated for residential purposes, coupled with the necessity that minors given the vote be treated as emancipated for all purposes related to voting, persuades us that a minor 18 years of age or older must be treated as an adult for voting purposes, and that the location of his domicile may not be questioned on account of age or occupational status.
 We hold today that both the Twenty-sixth Amendment to the United States Constitution and California law require respondent registrars to treat all citizens 18 years of age or older alike for all purposes relating to voting. We do not imply that registrars may not question a citizen of any age as to his true domicile. However, the middle-aged person who obtains a job and moves to San Francisco from San Diego, and the youth who moves from his family home in Grass Valley to Turlock to attend college must be treated equally. Whether either of them acquires a new domicile or retains the old one is governed by sections 14280-14292 of the Elections Code.  We hold only that registrars may not specially question the validity of an affiant's claim of domicile on account of his age or occupational status.
Let the peremptory writ of mandate issue directing respondent voting registrars to determine each individual petitioner's residence for voting purposes strictly in accordance with Elections Code, sections 14280-14292, and by the same standards, tests, and procedures as are applied to persons 21 years of age or older.
Tobriner, J., Mosk, J., and Sullivan, J., concurred.
It cannot be disputed that state-imposed restrictions which compel a minor of voting age to vote, if at all, only in the jurisdiction where his parents reside whatever his legitimate reasons for living apart from them, necessarily diminishes, curtails, reduces and accordingly abridges his right to vote only an account of his minority. The minor would thus be incapable of voting in the jurisdiction where he permanently and legally resides, while the adult is free not only to vote in such jurisdiction but to change the place where he votes when he changes his residence. No basis for justifying such an abridgment or discrimination on the right to vote, other than the minor's age or distinctions dependent thereon, has been suggested in the instant case. As the Twenty-sixth Amendment expressly prohibits the described state of conduct, we need not inquire further and to do so only emphasizes matters which should be of no concern to us.
There is no stronger statement of governing policy considerations in any particular circumstance than an express declaration embodied in our federal Constitution. Where, as here, such a declaration is manifestly dispositive of the single issue no good purpose is served by a concurrent examination of state or federal policies, or legislative histories, in an attempt to ascertain that the supreme law of the land must be adhered to because lesser policy considerations likewise require the same result.
Petitioners are entitled to their peremptory writ because the Constitution directs it, and we need and should not seek otherwise to justify such constitutional direction.
McComb, J., and Burke, J., concurred.
No less speedy resolution of the issues presented by petitioners would be adequate here. The last day for registration for the November 2, 1971, election is September 9, 1971. The last day for registration for the June 6, 1972, election is April 13, 1972. It is highly unlikely that petitioners could secure a superior court decision and complete the inevitable appeals by either side from that decision in time to register for these elections.
FN 3. See, e.g., Hearings before the Subcommittee on Constitutional Amendments of the Committee on the Judiciary, 91st Cong., 2d Sess., at p. 130 (President Nixon); 116 Cong. Rec. S3216 (daily ed. March 9, 1970), remarks of Sen. Goldwater; 116 Cong. Rec. S3216, S3392, H5661, H5668 (daily ed. March 9, 10, and June 17, 1970), remarks of various Congressmen re educational attainment of youth.
FN 4. See, e.g., 116 Cong. Rec. S3058 (Sen. Kennedy), S3214 (Sen. Cook), H5651 (Rep. Stokes), H5654 (Rep. McCloskey, Jr.) (daily ed. March 5, 9 and June 17, 1970).
FN 5. See, e.g., 116 Cong. Rec. H5675 (Rep. Ottinger), and H5643 (Rep. Anderson) (daily ed. June 17, 1970).
FN 6. See generally, Note, Legislative History of Title III of the Voting Rights Act of 1970 (1970) 8 Harv.J.Legis. 123.
FN 7. The fear of a deluge is more theoretical than real. In Berkeley, for example, some 51,464 votes were cast in the recent municipal election. (Oakland Tribune, April 7, 1971.) Of 27,000 students at the University of California, no more than 9,000 freshmen through juniors) are likely to be in the 18-20 age group. If typical registration percentages adhere, no more than 5,000-6,000 of these minors would register to vote. Even if every single one of these minors registered in Berkeley, which is highly unlikely, and even if every one then voted (which is more unlikely), the vote total would be increased no more than 10 percent, and the rolls an even lesser percentage. Nor, among this highly educated group, is it very probable that all 5,000 minors would vote the same way on any issue.
FN 8. Sections 14280-14292, and the preceding sections 14240-14255, concern challenges to any voter at the polls by the precinct board appointed by the board of supervisors. Since challenges are based only on failure to possess qualifications set forth in the affidavit of registration, e.g., residence in the jurisdiction, it is clear that these same standards for determining residence apply as well to the registrar of voters.
FN 9. Government Code, section 244, subdivision (d) provides: "The residence of the father during his life, and after his death the residence of the mother, while she remains unmarried, is the residence of the unmarried minor child, provided that when the parents are separated, the residence of the parent with whom an unmarried minor child maintains his place of abode is the residence of such unmarried minor child." Subdivision (f) further provides: "The residence of an unmarried minor who has a parent living cannot be changed by his own act."
FN 10. The great preponderance of authority from other jurisdictions similarly holds that an emancipated minor, being sui juris, may acquire his own domicile. (See,. e.g., Bonneau v. Russell (1952) 117 Vt. 134 [85 A.2d 569, 570]; Cohen v. Delaware, Lack. & Western R.R. Co. (1934) 150 Misc. 450 [269 N.Y.S. 667, 673-675]; Bjornquist v. Boston & A. R. Co. (1st Cir. 1918) 250 F. 929, 932-933; Spurgeon v. Mission State Bank (8th Cir. 1945) 151 F.2d 702, 705, cert. den. (1946) 327 U.S. 782 [90 L.Ed. 1009, 60 S.Ct. 682]; Appelt v. Whitty (7th Cir. 1961) 286 F.2d 135, 137; 28 C.J.S., Domicile, § 12, p. 21; Rest., Conflict of Laws, § 31; Rest.2d, Conflict of Laws, § 22.) As provided in Restatement Second of Conflict of Laws, section 22, comment f: "A parent has no power to control the domicil of an emancipated child...."
FN 12. Since the minor is emancipated for all purposes relating to voting, we have concluded that petitioners may sue in their own right, and that it would be improper for us to appoint a guardian ad litem pursuant to Code of Civil Procedure, sections 372-373, and Civil Code, section 42.
FN 1. The majority correctly and, for purposes of the decision herein, conclusively holds that the "Twenty-sixth Amendment prohibits abridging the right to vote on account of age. The word `abridge' means diminish, curtail, deprive, cut off, reduce, [Citations.]"
SCOCAL, Jolicoeur v. Mihaly , 5 Cal.3d 565 available at: (https://scocal.stanford.edu/opinion/jolicoeur-v-mihaly-30212) (last visited Sunday April 21, 2019).


FRANCIS HOWELL SCHOOL DISTRICT, et al., Defendants.
JOHN A. ROSS UNITED STATES DISTRICT JUDGE.
This matter is before the Court on Defendants Francis Howell School District, Pam Sloan, Steve Griggs, Nancy Wade, William Vanderpool, and Kathryn Greer's second motion to dismiss (Doc. No. 46) and Defendant Patrick Fitzgerald's second motion to dismiss (Doc. No. 48). The motions are fully briefed and ready for disposition.
On April 12, 2017, Plaintiff Jane Doe, a high school student, filed a complaint through counsel asserting violations of Title IX and 28 U.S.C. § 1983 arising out of a sexual assault on school grounds and the subsequent investigation conducted by Defendant Francis Howell School District (“School District”), Defendants Pam Sloan, Steve Griggs, Nancy Wade, William Vanderpool, and Kathryn Greer (“individual District Defendants”), and Defendant Officer Patrick Fitzgerald. The Court dismissed with prejudice the Title IX counts on November 22, 2017 and dismissed without prejudice Plaintiff's § 1983 counts with leave to amend (Doc. No. 35).
On December 13, 2017, Plaintiff filed a second amended complaint attempting to cure the defects present in the first amended complaint (Doc. No. 39). In Count III,  Plaintiff asserts a Fourteenth Amendment Equal Protection claim that she was treated differently from other similarly situated female students who filed a complaint under Title IX, in that she was accused of being complicit in the sexual conduct and suffered expulsion prior to any investigation. Plaintiff further asserts that Defendants' failure to follow the requirements of Title IX and investigate the allegations support Plaintiff's claims that she was treated differently.
In Count IV, Plaintiff asserts a Monell claim against the school district. There, she contends that the individual Defendants and Defendant Fitzgerald were state actors who violated her Fourteenth Amendment right to equal protection by failing to properly train and supervise school district employees as to mandated investigative requirements. Plaintiff claims that she thoroughly and properly advised the school of the sexual assault, thereby constituting notice to the school. She asserts that Defendants' continued accusations of her complicity in the sexual act constitute a persistent pattern of unconstitutional action. As a result, Plaintiff claims she suffered emotional distress and psychological damage.
In their second motion to dismiss, Defendants contend that Plaintiff again fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). With regard to her equal protection claim, Defendants argue that Plaintiff's allegation that she was treated differently than a similarly situated female should have been treated is based on Plaintiff's subjective belief “of the way things ought to be.” They also argue that Plaintiff failed to name other females at the school who filed a complaint under Title IX and were treated differently. As to Count IV, Defendants argue that Plaintiff failed to plead notice and causation, as required to establish Monell liability. Specifically, Defendants contend that Plaintiff did not plead that Defendants had notice or knowledge of some violation to which they were deliberately indifferent or tacitly authorized. Moreover, Defendants claim that Plaintiff did not plead how this deliberate indifference or tacit authorization caused Plaintiff to suffer harm.
Lastly, Defendants argue that sovereign immunity applies to the allegations against the individual defendants in their official capacities, and qualified immunity applies to the allegations against the individual Defendants in their individual capacities.
To survive a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face, ' ” meaning that it must contain “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court must accept the plaintiff's factual allegations as true and construe them in plaintiff's favor, but it is not required to accept the legal conclusions the plaintiff draws from the facts alleged. Id. at 678; Retro Television Network, Inc. v. Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012). Ultimately, the question is not whether the claimant “will ultimately prevail . . . but whether his complaint [is] sufficient to cross the federal court's threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011).
To state a § 1983 claim, a plaintiff must plead “(1) that the defendant(s) acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right.” Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). A school district may be considered a “person” for purposes of § 1983 liability. Keckeisen v. Indep. Sch. Dist., 509 F.2d 1062, 1065 (8th Cir. 1975).