2. A nolle prosequi is taken or the charge is otherwise dismissed, including dismissal by accord and satisfaction pursuant to § 19.2-151, he may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge.
B. If any person whose name or other identification has been used without his consent or authorization by another person who has been charged or arrested using such name or identification, he may file a petition with the court disposing of the charge for relief pursuant to this section. Such person shall not be required to pay any fees for the filing of a petition under this subsection. A petition filed under this subsection shall include one complete set of the petitioner’s fingerprints obtained from a law-enforcement agency.
C. The petition with a copy of the warrant or indictment if reasonably available shall be filed in the circuit court of the county or city in which the case was disposed of by acquittal or being otherwise dismissed and shall contain, except where not reasonably available, the date of arrest and the name of the arresting agency. Where this information is not reasonably available, the petition shall state the reason for such unavailability. The petition shall further state the specific criminal charge to be expunged, the date of final disposition of the charge as set forth in the petition, the petitioner’s date of birth, and the full name used by the petitioner at the time of arrest.
D. A copy of the petition shall be served on the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition or may give written notice to the court that he does not object to the petition within 21 days after it is served on him.
E. The petitioner shall obtain from a law-enforcement agency one complete set of the petitioner’s fingerprints and shall provide that agency with a copy of the petition for expungement. The law-enforcement agency shall submit the set of fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition for expungement attached. The CCRE shall forward under seal to the court a copy of the petitioner’s criminal history, a copy of the source documents that resulted in the CCRE entry that the petitioner wishes to expunge, and the set of fingerprints. Upon completion of the hearing, the court shall return the fingerprint card to the petitioner. If no hearing was conducted, upon the entry of an order of expungement or an order denying the petition for expungement, the court shall cause the fingerprint card to be destroyed unless, within 30 days of the date of the entry of the order, the petitioner requests the return of the fingerprint card in person from the clerk of the court or provides the clerk of the court a self-addressed, stamped envelope for the return of the fingerprint card.
F. After receiving the criminal history record information from the CCRE, the court shall conduct a hearing on the petition. If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge. Otherwise, it shall deny the petition. However, if the petitioner has no prior criminal record and the arrest was for a misdemeanor violation, the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the charge, and the court shall enter an order of expungement. If the attorney for the Commonwealth of the county or city in which the petition is filed (i) gives written notice to the court pursuant to subsection D that he does not object to the petition and (ii) when the charge to be expunged is a felony, stipulates in such written notice that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, the court may enter an order of expungement without conducting a hearing.
G. The Commonwealth shall be made party defendant to the proceeding. Any party aggrieved by the decision of the court may appeal, as provided by law in civil cases.
H. Notwithstanding any other provision of this section, when the charge is dismissed because the court finds that the person arrested or charged is not the person named in the summons, warrant, indictment or presentment, the court dismissing the charge shall, upon motion of the person improperly arrested or charged, enter an order requiring expungement of the police and court records relating to the charge. Such order shall contain a statement that the dismissal and expungement are ordered pursuant to this subsection and shall be accompanied by the complete set of the petitioner’s fingerprints filed with his petition. Upon the entry of such order, it shall be treated as provided in subsection K.
I. Notwithstanding any other provision of this section, when a person has been granted an absolute pardon for the commission of a crime that he did not commit, he may file in the circuit court of the county or city in which the conviction occurred a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge and conviction, and the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of such order, it shall be treated as provided in subsection K.
J. Upon receiving a copy of a writ vacating a conviction pursuant to § 19.2-327.5 or 19.2-327.13, the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of the order, it shall be treated as provided in subsection K.
K. Upon the entry of an order of expungement, the clerk of the court shall cause a copy of such order to be forwarded to the Department of State Police, which shall, pursuant to rules and regulations adopted pursuant to § 9.1-134, direct the manner by which the appropriate expungement or removal of such records shall be effected.
L. Costs shall be as provided by § 17.1-275, but shall not be recoverable against the Commonwealth. If the court enters an order of expungement, the clerk of the court shall refund to the petitioner such costs paid by the petitioner.
M. Any order entered where (i) the court or parties failed to strictly comply with the procedures set forth in this section or (ii) the court enters an order of expungement contrary to law, shall be voidable upon motion and notice made within three years of the entry of such order.
1977, c. 675; 1983, c. 394; 1984, c. 642; 1990, c. 603; 1992, c. 697; 2001, cc. 40, 345; 2007, cc. 465, 824, 883, 905; 2009, c. 618; 2011, c. 362; 2015, c. 426; 2016, c. 617.
If you’re reading this for anything important, you should double-check its accuracy—read § 19.2-392.2 on the official Code of Virginia website.
. . . arrest record subsequently expunged under Code § 19.2-392.2. . . .
. . . criminal record may be expunged under Code § 19.2-392.2. Here, disposition of a drug charge was in . . .
. . . Code § 19.2-392.2. We also consider whether the trial court was required under Code § . . .
. . . insanity may invoke the provisions of Code § 19.2-392.2 to obtain expungement of the police and . . .
. . . Reversed and final judgment. . . .
. . . under one of the applicable provisions of Code § 19.2-392.2(A), specifically whether the criminal . . .
. . . otherwise dismissed" as contemplated by Code § 19.2- . . .
. . . BY Senior Justice CHARLES S. RUSSELL. . . .
. . . convicted. . . .
. . . disposition of papers in ended cases; Code § 19.2-392.2 that governs expungement of police and . . .


The Federal Employers’ Liability Act (“FELA”), 45 USC § 51, et seq., is a humanitarian statute intended to protect railroad workers from unsafe conditions and practices associated with their occupations. Its purpose has been interpreted as to adjust and allocate the cost of work-related injuries, an inescapable expense of the railroad industry, between the worker and the railroad. Sinkler v. Missouri Pacific R.R, 356 U.S. 326 (1958). “The FELA was designed to put on the railroad industry some of the costs for legs, eyes, arms and lives which it consumed in its operations.” Wilkerson v. McCarthy, 336 U.S. 53, 68 (1949). In Rogers v. Missouri Pacific R.R, 352 U.S. 500 at 507 (1957), the U. S. Supreme Court noted the Federal Employers’ Liability Act “was enacted because Congress was dissatisfied with the common law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer’s negligence … “.
The statute changed and modified the common law, and although the basis of liability is negligence, the FELA abolished the defenses of the fellow servant rule (45 U.S.C. § 51, and the doctrine of assumption of the risk. 45 U.S.C. § 54. The FELA also provides that contributory negligence does not bar recovery but merely diminishes the amount of damages recoverable by the injured employee. 45 U.S.C. 53. “What constitutes negligence and makes a railroad liable in damages under the FELA is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes, and is governed by the Federal Decisional Law.”: Urie v. Thompson, 339 U.S. 163 (1949). The basic inquiry in an FELA case is whether any negligence on the part of the railroad “played any part, even the slightest, in producing the injury or death for which damages are sought”. Rogers v. Missouri Pacific R.R., 352 U.S. at 506.
In 1893, Congress passed the first version of what is now called the Safety Appliance Act, followed in 1911 by the Boiler Inspection Act (also referred to as the “Locomotive Inspection Act”). The Boiler Inspection Act is now found at 49 U.S.C. § 20701, et seq., and the Safety Appliance Act at 49 U.S.C. § 20301, et seq. These acts standardized the safety requirements for many aspects of railroad operation. A plaintiff seeking damages under either the Safety Appliance Act or Locomotive Inspection Act need only prove a statutory violation and causation to establish liability on the part of the railroad. Kernan v. American Dredging Co., 335 U.S. 426, 432 (1958); Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 434-35 (1949). The violation “is itself an actionable wrong, and no way dependent upon negligence and for the proximate results of which there is liability – a liability that cannot be escaped by proof of care or diligence”. O’Donnell v. Elgin, Joliet and Eastern Ry. Co., 338 U.S. 384, 390 (1949); see also Brady v. Terminal R.R. Assoc., 303 U.S. 10, 15 (1938).
The defenses of contributory and comparative negligence are not available in actions based on a violation of a safety statute such as the Safety Appliance Act or the Locomotive Inspection Act. 45 U.S.C. § 53. The fact there may have been more than one cause of an injury is immaterial as long as one of the causes is attributable to the Railroad’s negligence. Heater v. C & O, 493 F.2d 1243 (7th Cir. 1974). A railroad employee may likewise recover from his employer for any injury caused, in whole or in part, by any negligence of a fellow employee. Sinkler v. Missouri Pacific R.R., 356 U.S. 326 (1958).
While state law governs purely procedural matters in an FELA case, any matter of a substantive nature is controlled by federal law as developed in federal decisions. Norfolk and Western Rwy. Co. v. Liepelt, 444 U.S. 490 (1980). The sufficiency of the evidence is a substantive matter determined by federal precedent. Brady v. Southern Rwy. Co., 320 U.S. 476 (1943).
The right to a jury trial is “part and parcel” of the FELA. Bailey v. Cent. V. Rwy. Co., 319 U.S. 350, 354 (1943). The FELA’s liberal purposes must be kept in mind when deciding an issue and derogation of the FELA’s remedial purpose of providing workers with access to courts for redress of their injuries. Urie v. Thompson, 337 U.S. 163 (1949).


§ 608.030 Identification Card Required for Peddlers and Solicitors, Available for Canvassers.
§ 608.050 Contents of Application.
§ 608.060 Issuance of Identification Card.
§ 608.080 Denial — Administrative Revocation.
§ 608.090 Hearing on Appeal.
§ 608.100 Display of Identification Card.
§ 608.110 Validity of Identification Card.
§ 608.120 Revocation of Card.
§ 608.130 Distribution of Handbills and Commercial Flyers.
§ 608.150 Violation to Be Prosecuted as Trespass.
Section 608.030 Identification Card Required for Peddlers and Solicitors, Available for Canvassers.
Section 608.050 Contents of Application.
Section 608.060 Issuance of Identification Card.
Section 608.080 Denial — Administrative Revocation.
Section 608.090 Hearing on Appeal.
Section 608.100 Display of Identification Card.
Section 608.110 Validity of Identification Card.
Section 608.120 Revocation of Card.
Section 608.130 Distribution of Handbills and Commercial Flyers.
Section 608.150 Violation to Be Prosecuted as Trespass.
A person who attempts to make personal contact with a resident at his/her residence without prior specific invitation or appointment from the resident for the primary purpose of attempting to sell a good or service. A "peddler" does not include a person who distributes handbills or flyers for a commercial purpose, advertising an event, activity, good or service that is offered to the resident for purchase at a location away from the residence or at a time different from the time of visit (such a person is a "solicitor").
No person shall act as a peddler or as a solicitor within the City without first obtaining an identification card in accordance with this Chapter. A canvasser is not required to have an identification card but any canvasser wanting an identification card for the purpose of reassuring City residents of the canvasser's good faith shall, upon request and after paying to the City the cost of three dollars ($3.00) per identification card, be issued an identification card. Any person or organization (formal or informal) may apply for one (1) or more identification cards by completing an application form at the office of the City Clerk during regular office hours.
The fees for business licenses as set forth in Chapter 605 of this Code shall be paid prior to the issuance of an identification card. Each person acting as a peddler or solicitor shall pay said fee.
The name, Social Security number, driver's license number (if any), date of birth, place of birth, physical description and photograph of the applicant. In lieu of this information, a driver's license, State identification card, passport or other government issued identification card (issued by a government within the United States) containing this information may be provided, and a photocopy taken. If a photograph is not supplied, the City will take an instant photograph of each person for which a card is requested at the application site. The actual cost of the instant photograph will be paid by the applicant.
The permanent and local address (if any) of the applicant.
A list of all misdemeanor and felony convictions of the applicant for the seven (7) years immediately prior to the application.
The motor vehicle make, model, year, color and State license plate number of any vehicle which will be used by the applicant.
A copy of the principal's sales tax license as issued by the State of Missouri.
The telephone number or other suitable information for this organization, person or group where residents having subsequent questions can go for more information.
"Working hours", as used in this Section, shall be defined as the hours that the Camdenton City Hall is open for business.
During the period of time following the application, the City shall investigate as to the truth and accuracy of the information contained in the application. If the City has not completed this investigation within the sixteen (16) working hours provided in Section 608.060, the identification card will nonetheless be issued, subject, however, to administrative revocation upon completion of the investigation. "Working hours", as used in this Section, shall be defined as the hours that the Camdenton City Hall is open for business.
If the issuing officer denies (or upon completion of an investigation revokes) the application, he/she shall immediately convey the decision to the applicant orally and shall within sixteen (16) working hours after the denial prepare a written report of the reason for the denial which shall be immediately made available to the applicant. Upon receipt of the oral notification, and even before the preparation of the written report, the applicant shall have at his/her option an appeal of the denial of his/her application before the City Council at its next regular meeting. "Working hours", as used in this Section, shall be defined as the hours that the Camdenton City Hall is open for business.
If the applicant requests a hearing under Section 608.080, the hearing shall be held in accordance with the Administrative Procedure Act of the State of Missouri and review from the decision (on the record of the hearing) shall be had to the Circuit Court of the County in which the City is located. The hearing shall also be subject to the Missouri Open Meetings and Records law.
An identification card shall be valid within the meaning of this Chapter for a period of twelve (12) months from its date of issuance or the term requested, whichever is less.
The revocation procedure shall be initiated by the filing of a complaint by the City Attorney or the issuing officer pursuant to the State Administrative Procedure Act and a hearing before the tribunal identified in Section 608.080 above.
Any person observed distributing handbills or flyers shall be required to identify himself/herself to the Police (either by producing an identification card or other form of identification).
Use or attempt to use any entrance other than the front or main entrance to the dwelling or step from the sidewalk or indicated walkway (where one exists) leading from the right-of-way to the front or main entrance except by express invitation of the resident or occupant of the property.
Enter upon the property of another except between the hours of 9:00 A.M. and 8:00 P.M. except that the above prohibitions shall not apply when the peddler, solicitor or canvasser has an express invitation from the resident or occupant of a dwelling allowing him/her to enter upon any posted property.
Any person violating any part of this Chapter shall be deemed to have committed a trespass on such property and shall be prosecuted under the general trespass ordinance of the City.
It is hereby declared to be the intention of the Camdenton Board of Aldermen that the Sections, paragraphs, sentences, clauses, phrases and words of this Chapter are severable. If any Section, paragraph, sentence, clause, phrase or words of this Chapter shall be declared unconstitutional or otherwise invalid, such unconstitutionality or invalidity shall not affect any of the remaining Sections, paragraphs, sentences, clauses, phrases and words.


John M. BONDS, Officer in Charge, United States Immigration and NaturalizationService.
Messrs. Jack Wasserman, David Carliner, Washington, D.C., for petitioner.
Petitioner, a native of Tunis, Africa, was ordered deported after a hearing pursuant to § 242(b) of the Immigration and Nationality Act of 1952, 66 Stat. 209, 8 U.S.C. § 1252(b), 8 U.S.C.A. § 1252(b). It was found that he had been convicted in 1938 of violation of the Marihuana Tax Act, 26 U.S.C. § 2591, 26 U.S.C.A. § 2591, and sentenced to imprisonment for one year. Section 241(a) (11) of the 1952 immigration law1 makes such conviction at any time ground for deportation, and § 241(d)2 provides that the deportation provisions of § 241(a) shall apply even though the facts giving rise to the alien's deportability occurred prior to the date of enactment of the 1952 Act.
At the hearing before a special inquiry officer of the Immigration and Naturalization Service, petitioner did not dispute the fact of his conviction. He did, however, object to the proceedings on the ground that they violated due process and the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001 et seq., 5 U.S.C.A. § 1001, et seq. The hearing officer overruled these objections. Petitioner also contended that the ex post facto cause of the Constitution precluded the retroactive application of the 1952 law to his case. This contention too was rejected by the hearing officer. Petitioner and his counsel were advised of their right to apply to the Attorney General for the discretionary relief of suspension of deportation under § 244(a)(5) of the Act.3 At first they declined to do so, but subsequently they moved to reopen the hearing to apply for such relief. The special inquiry officer denied the motion. On appeal, the Board of Immigration Appeals affirmed the order of deportation. Though no formal application for suspension of deportation under § 244(a)(5) had been filed, the Board considered whether such relief was merited but exercised its discretion against the remission.
Petitioner then brought this action for a writ of habeas corpus, challenging the validity of the deportation order on the grounds, inter alia: (1) that the hearing under § 242(b) of the Act failed to comply with the requirements of the Administrative Procedure Act in that the special inquiry officer was under the supervision and control of officials in the Immigration Service who performed investigative and prosecuting functions; (2) that § 242(b) violated the Due Process Clause of the Fifth Amendment because it failed to provide for a fair and impartial hearing; (3) that on the date of petitioner's arrest the Attorney General made a public statement, which 'was bound to have great effect upon the special inquiry officer,' to the effect that petitioner was an undesirable citizen for whose deportation the proceedings were 'specially designed,' and, further, that in 1952 the Attorney General 'prepared a list of 152 persons (including petitioner) whom he desired to deport'; and (4) that the retroactive application of § 241(a)(11) was unconstitutional as an ex post facto law.
The Government's return to the writ alleged that petitioner's deportation had been conducted in accordance with the Constitution, laws and regulations of the United States. No evidence was introduced by either side save the official Immigration Service record of petitioner's deportation proceedings. The District Court held the deportation order valid and discharged the writ. United States ex rel. Marcello v. Ahrens, 113 F.Supp. 22. The Court of Appeals affirmed. Marcello v. Ahrens, 5 Cir., 212 F.2d 830. Petitioner pursues his four basic objections in this Court, certiorari having been granted to resolve issues having a significant bearing on the administration of our immigration laws. 348 U.S. 805, 75 S.Ct. 39.
Petitioner concedes that § 242(b) of the Immigration Act, authorizing the appointment of a 'special inquiry officer' to preside at the deportation proceedings, does not conflict with the Administrative Procedure Act, since § 7(a) of that Act excepts from its terms officers specially provided for or designated pursuant to other statutes.4 He insists, however, that there are several significant discrepancies between the Acts, and claims that in cases of variance the provisions of the Administrative Procedure Act must govern unless those of the Immigration Act 'shall * * * expressly' negate their application. Administrative Procedure Act, § 12. The discrepancies relied on stem from the 'separation of functions' provision of § 5(c), of the Administrative Procedure Act. To the extent her material, this section separates investigative and prosecuting functions from those of adjudication, expressly providing that hearing officers shall not be responsible to or under the supervision of those engaged in investigation and prosecution. The section also prohibits the hearing officer from participating or advising in the decision of a case, or one factually related thereto, in which he has performed investigative or prosecuting functions. Section 242(b) of the Immigration Act, on the other hand, permits the 'special inquiry officer' to take the dual role of prosecutor and hearing officer—presenting evidence and interrogating witnesses and prohibits him only from hearing cases which he has taken some part in investigating or prosecuting (other than in the permitted dual capacity). An alternative method is permitted by § 242(b), however, under which an additional immigration officer presents the evidence while the special inquiry officer presides. See 8 CFR § 242.53. Special inquiry officers are subject to such supervision as the Attorney General prescribes, 66 Stat. 171, 8 U.S.C. § 1101(b)(4), 8 U.S.C.A. § 1101(b)(4), and at present they are subject to the supervision of district directors of the immigration districts to which they are assigned, as well as higher Service officials, all with enforcement responsibilities of the type proscribed by § 5(c) of the Administrative Procedure Act.
The applicability of the Administrative Procedure Act to deportation proceedings under the Immigration Act of 1917 was considered by this Court in Wong Yang Sung v. McGrath, 1950, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616. We there held, contrary to the prevailing interpretation and practice of the Department of Justice, that deportation hearings were subject to the Act. Six months later, Congress provided in the Supplemental Appropriation Act of 1951, 64 Stat. 1048, that proceedings directed toward the exclusion or expulsion of aliens should not be governed by §§ 5, 7 and 8 of the Administrative Procedure Act. The issue here presented is whether the Congress reversed itself in the 1952 Immigration Act and in effect reinstated the Sung case by making the hearing provisions of the Administrative Procedure Act directly applicable to deportation proceedings. A comparison of the pertinent provisions of the two statutes is perhaps the strongest indication that the Congress had no such intention.
1. Section 242(b) of the Immigration Act begins by enumerating the functions of the special inquiry officer, that he shall administer oaths, receive evidence, etc. A similar though more extensive and detailed provision appears in § 7(b) of the Administrative Procedure Act, but of course this section makes no mention of functions stemming from the special inquiry officer's dual role as prosecutor and judge.
5. Section 242(b) then sets forth various requirements which are to be included in regulations governing deportation proceedings before the special inquiry officer. The first of these gives the alien the right to reasonable notice of the charges against him and of the time and place at which the proceedings shall be held. A similar requirement appears in § 5(a) of the Administrative Procedure Act.
From the Immigration Act's detailed coverage of the same subject matter dealt with in the hearing provisions of the Administrative Procedure Act, it is clear that Congress was setting up a specialized administrative procedure applicable to deportation hearings, drawing liberally on the analogous provisions of the Administrative Procedure Act and adapting them to the particular needs of the deportation process. The same legislators, Senator McCarran and Congressman Walter, sponsored both the Administrative Procedure Act and the Immigration Act, and the framework of the latter indicates clearly that the Administrative Procedure Act was being used as a model. But it was intended only as a model, and when in this very particularized adaptation there was a departure from the Administrative Procedure Act—based on novel features in the deportation process—surely it was the intention of the Congress to have the deviation apply and not the general model. Were the courts to ignore these provisions and look only to the Administrative Procedure Act, the painstaking efforts detailed above would be completely meaningless. Congress could have accomplished as much simply by stating that there should be a hearing to determine the question of deportability.
Section 242(b) expressly states: 'The procedure (herein prescribed) shall be the sole and exclusive procedure for determining the deportability of an alien under this section.' That this clear and categorical direction was meant to exclude the application of the Administrative Procedure Act is amply demonstrated by the legislative history of the Immigration Act. The original bills included statements to the effect that the § 242(b) procedures were to be exclusive, '(n)otwithstanding any other law, including the (Administrative Procedure Act).' S. 3455, 81st Cong., 2d Sess.; S. 716, 82d Cong., 1st Sess.; H.R. 2379, 82d Cong., 1st Sess. The 'notwithstanding' clause was dropped in later versions of the Act and did not appear in the bills reported out of committee or in the statute as finally enacted. S. 2055, 82d Cong.; H.R. 5678, 82d Cong.; S. 2550, 82d Cong. The deletion is nowhere explained, but it is possible that the phrase was considered unnecessary—and perhaps inappropriate as a description as § 242(b) became more detailed, encompassing in its particularization the greater part of the Administrative Procedure Act's hearing provisions. In the Senate Report accompanying the revised bill, it is stated that § 242(b) sets up special procedures for deportation proceedings, that these are made exclusive, and that the exemption from the Administrative Procedure Act in the Supplemental Appropriation Act of 1951 is repealed because it is 'no longer necessary.' S.Rep. No. 1137, 82d Cong., 2d Sess., p. 28. The House Report is to the same effect, stating that the prescribed deportation proceedings shall be the sole and exclusive procedure, 'notwithstanding the provisions of any other law.' H.R.Rep. No. 1365, 82d Cong., 2d Sess., p. 58. Throughout the debates it is made clear that the Administrative Procedure Act does not apply directly, but that its provisions have been specially adapted to meet the needs of the deportation process. See particularly the detailed statement of Senator McCarran, 98 Cong.Rec. 5625—5626, wherein he recognizes a departure from the 'dual-examiner provisions' of the Administrative Procedure Act, the very section here in issue.
Exemptions from the terms of the Administrative Procedure Act are not lightly to be presumed in view of the statement in § 12 of the Act that modifications must be express, cf. Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591. But we cannot ignore the background of the 1952 immigration legislation, its laborious adaptation of the Administrative Procedure Act to the deportation process, the specific points at which deviations from the Administrative Procedure Act were made, the recognition in the legislative history of this adaptive technique and of the particular deviations, and the direction in the statute that the methods therein prescribed shall be the sole and exclusive procedure for deportation proceedings. Unless we are to require the Congress to employ magical passwords in order to effectuate an exemption from the Administrative Procedure Act, we must hold that the present statute expressly supersedes the hearing provisions of that Act. The Hearing Procedures and Due Process.
As noted above, the only complaint which petitioner can urge concerning the hearing procedures in this case is the objection that the special inquiry officer was subject to the supervision and control of officials in the Immigration Service charged with investigative and prosecuting functions. Petitioner would have us hold that the presence of this relationship so strips the hearing of fairness and impartiality as to make the procedure violative of due process. The contention is without substance when considered against the long-standing practice in deportation proceedings, judicially approved in numerous decisions in the federal courts, and against the special considerations applicable to deportation which the Congress may take into account in exercising its particularly broad discretion in immigration matters.
Considering first the alleged list, it is clear that petitioner has not made out a case of prejudgment. He did not allege that either the inquiry officer or the Board of Immigration Appeals had seen the list, had known of its existence, or had been influenced in their decisions by the inclusion of petitioner's name thereon. In argument before the Board, petitioner stated through counsel that he had 'the feeling—and it's a feeling that's based upon evidence which we will supply—that the real basis for the denial of suspension here was the fact that Marcello was one of these hundred whom the Attorney General had named * * *.' No evidence of this was forthcoming. As to petitioner's charges concerning the Attorney General's 'list,' the record is completely barren.
Nor does petitioner fare better in seeking to base prejudgment on the unfavorable publicity accompanying his arrest. He introduced newspaper clippings into evidence to show the adverse local publicity and alleged that this publicity must have had a 'great effect' upon the special inquiry officer. But the record indicates clearly that petitioner's case could not possibly have been prejudiced in the hearing before the inquiry officer. On the question of petitioner's deportability, the sole issue decided by him, the hearing officer merely applied the statute to the undisputed facts. Petitioner admitted that he was deportable under the Immigration Act of 1952 if the Act could constitutionally base deportation on his 1938 marihuana conviction. And the hearing officer could be expected in any event to take the law as Congress enacted it. In view of this Court's decisions on the ex post facto objection, the only ground of attack, he could do nothing else. Petitioner waived the only issue on which prejudgment was possible when he declined to apply for discretionary relief at the proper time. See 8 CFR § 242.54(d).
The Board of Immigration Appeals considered the availability of discretionary relief, but as to these officials there was not even an allegation by petitioner that they had known of the unfavorable publicity or had been influenced by it. Indeed, there is every indication that the Board had not prejudged the case, since it considered the question of suspending deportation on the merits although not bound to do so in view of petitioner's waiver below. The Board denied the requested relief, giving reasons. It is not for us in this proceeding to pass on the factors relied on by the Board in reaching its conclusion. It is sufficient to observe that all had basis in the record and that none stemmed from any sort of dictation by the Attorney General.
Finally, we note that, even as to his claim relating to adverse publicity, petitioner introduced no evidence other than the newspaper clippings. Surely on this meager showing the district judge was warranted in finding—as he did—that the special inquiry officer, the only official mentioned in petitioner's pleadings, was not controlled in his decision by superiors in the Department of Justice. The decision of the district judge cannot be set aside as clearly erroneous. Accordingly, we hold that under our Accardi decisions petitioner has failed to make out a case for a new hearing. Ex Post Facto.
Petitioner's last objection stems from the fact that his conviction under the Marihuana Tax Act was not ground for deportation at the time he committed the offense, and that he was not forewarned of all the consequences of his criminal conduct. It is urged that we depart from our recent decisions holding that the prohibition of the ex post facto clause does not apply to deportation, and strike down as unconstitutional the retroactive application of the new grounds for deportation in § 241(a)(11) of the Immigration and Nationality Act of 1952. We perceive no special reasons, however, for overturning our precedents on this matter, and adhere to our decisions in Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911, and Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586.
A fair hearing necessarily includes an impartial tribunal. Petitioner claims that the circumstances here deprived him of that kind of tribunal. The officer who conducted the hearings, decided the case and made recommendations for deportation was connected with the Immigration and Naturalization Service. This hearing officer was subject to the supervision, direction and control of the Attorney General and his subordinate supervisory officers of the Immigration Service who perform investigative and prosecutorial functions. Thus the hearing officer adjudicated the very case against petitioner which the hearing officer's superiors initiated and prosecuted. Petitioner's argument is that requiring him to have his cause adjudicated by such a subordinate of the prosecutors deprives him of due process. This due process challenge cannot be lightly dismissed, but I find it unnecessary to rest my dissent on a determination of that question. For Congress in the Administrative Procedure Act2 has barred hearing officers from adjudicating cases under the circumstances here, and I think that Act is applicable to this case.
Section 5(c) of the Administrative Procedure Act forbids hearing officers covered by the Act to conduct hearings if they are 'responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency.' In 1950 we held in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, that deportation proceedings must be conducted as required by § 5. Congress, however, later in 1950, put a rider on an appropriation bill providing that 'Proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7, and 8 of the Administrative Procedure Act.'3 Were this express modification of the Procedure Act still in effect, we would have to reach the constitutional question raised by petitioner. But this appropriation rider was repealed in the 1952 Immigration and Nationality Act.4 The result of this repeal was to leave § 5(c) of the Administrative Procedure Act applicable to immigration cases unless, as the Government contends, other provisions of the 1952 Immigration Act made the Procedure Act inapplicable. I think this contention of the Government should not be sustained.
Section 12 of the Administrative Procedure Act provides that 'No subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly.' The 1950 appropriation rider was an express modification of the prior Procedure Act, but unlike the Court I find no such express modification in the 1952 Immigration Act. Indeed that Act's legislative sponsors disclaimed any purpose to bring about even an implied modification.
Both the Procedure Act and the 1952 Immigration Act were sponsored by Senator McCarran and Representative Walter. Their original proposals which finally evolved into the 1952 Act did expressly provide that the Procedure Act should not control proceedings under the Immigration Act. The provision was that 'Notwithstanding any other law, including the Act of June 11, 1946 (the Administrative Procedure Act), the proceedings so prescribed shall be the sole and exclusive procedure for determining the deportability of an alien who is in the United States'.5 Hearings on these proposals brought strong protests from some organizations, including the American Bar Association, against the provision making the Administrative Procedure Act inapplicable to deportation proceedings.6 Afterwards the sponsors of the immigration measures introduced new bills which significantly omitted from that provision the words 'Notwithstanding any other law, including the Act of June 11, 1946 (the Administrative Procedure Act).' Consequently when the bill finally passed there was no language which 'expressly' superseded or modified the binding requirement of § 5(c) of the Administrative Procedure Act.
As previously pointed out the Sung case held that § 5(c) of the Administrative Procedure Act did apply to deportation cases.
Other statements in the discussions of the 1952 Act may look in a different direction from the statements just quoted. But whatever was said, no language in the 1952 Immigration Act expressly authorizes deportation cases to be heard, contrary to the Administrative Procedure Act, by hearing officers who are the dependent subordinates of the immigration agency's prosecutorial staff. The idea of letting a prosecutor judge the very case he prosecutes or supervise and control the job of the judge before whom his case is presented is wholly inconsistent with our concepts of justice. It was this principle on which Congress presumably acted in passing the Procedure Act. Only the other day we had pointed out to us an instance in which the immigration authorities had relieved an immigration hearing officer from his duties because they believed that the hearing officer had failed adequately to present available derogatory information against an alien.10 It is hard to defend the fairness of a practice that subjects judges to the power and control of prosecutors. Human nature has not put an impassable barrier between subjection and subserviency, particularly when job security is at stake. That Congress was aware of this is shown by the Procedure Act, and we should not construe the Immigration Act on a contrary assumption.
The Constitution places a ban on all ex post facto laws. There are no qualifications or exceptions. Article I, § 9, applicable to the Federal Government, speaks in absolute terms: 'No * * * ex post facto Law shall be passed.'1 The prohibition is the same whether a citizen or an alien is the victim. So far as ex post facto laws are concerned, the prohibition is all-inclusive and complete.
There is a school of thought that the Ex Post Facto Clause includes all retroactive legislation, civil as well as criminal. See Crosskey, Politics and the Constitution, Vol. I, c. XI; Vol. II, p. 1053. Mr. Justice Johnson took that view, maintaining that a restriction of the Clause to criminal acts was unwarranted. See Ogden v. Saunders, 12 Wheat. 213, 271, 286, 6 L.Ed. 606; Satterlee v. Matthewson, 2 Pet. 380, 416, 681, 7 L.Ed. 458 (Appendix). The Court, however, has stated over and again since Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648, that the Ex Post Facto Clause applies only in criminal cases. See Carpenter v. Commonwealth, 17 How. 456, 463, 15 L.Ed. 127; Johannessen v. United States, 225 U.S. 227, 242, 32 S.Ct. 613, 617, 56 L.Ed. 1066; Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978; Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549.
At the same time, there was a parallel development in the field of ex post facto legislation. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87, 138—139, 3 L.Ed. 162, refused to construe the Ex Post Facto Clause narrowly and restrict it to criminal prosecutions. The Fletcher case held that property rights that had vested could not be displaced by legislative fiat. That liberal view persisted. It was given dramatic application in post-Civil War days. The leading cases are Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356, and Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, where the right to practice a person's profession was sought to be taken away, in the first case by a State, in the second by the Federal Government, for acts which carried no such penalty when they were committed. The essence of those proceedings was the revocation of a license. Yet the Court held them to be violative of the Ex Post Facto Clauses because they were 'punishment' for acts carrying no such sanctions when done.
66 Stat. 204, 8 U.S.C. § 1251(a)(11), 8 U.S.C.A. § 1251(a)(11).
66 Stat. 208, 8 U.S.C. § 1251(d), 8 U.S.C.A. § 1251(d).
66 Stat. 214, 8 U.S.C. § 1254(a)(5), 8 U.S.C.A. § 1254(a)(5).
'Attorney General James P. McGranery announced today that Carlos Marcello of Miami, Florida, and Jefferson Parish, Louisiana, has been arrested on a deportation warrant by the Immigation and Naturalization Service.
'The arrest in New Orleans was the first major deportation move undertaken since the new Immigration and Nationality Act became effective December 24, 1952. The action was another step in the Attorney General's program of denaturalization and/or deportation of undesirable persons of foreign birth who are engaged in racketeering or other criminal activities.
'Marcello, born February 6, 1910, in Tunis, Africa, entered the United States for permanent residence October 7, 1910, at New Orleans.
'He allegedly is engaged in large-scale slot machine operations and other gambling activities in Louisiana.
'The deportation warrant was based on his conviction in 1938 for violation of the Marijuana Act. Such a conviction is a deportable offense under the new Immigration and Nationality Act.
'The action follows lengthy investigations by both the Federal Bureau of Investigation and the Immigration and Naturalization Service. His conviction under the Marijuana Act was one of only two in his checkered career. The other case in which he was convicted was under Louisiana State law, the conviction being for assault and robbery, and on May 13, 1930, he was sentenced to serve a term of 9 to 14 years in the Louisiana State Penitentiary. The Governor of Louisiana gave him a full pardon for this crime July 16, 1935.
Japanese Immigrant Case, Yamataya v. Fisher, 189 U.S. 86, 100—101, 23 S.Ct. 611, 614, 47 L.Ed. 721; Wong Yang Sung v. McGrath, 339 U.S. 33, 49—51, 70 S.Ct. 445, 453—454, 94 L.Ed. 616.
60 Stat. 237, 5 U.S.C. §§ 1001—1011, 5 U.S.C.A. §§ 1001 1011.
66 Stat. 166, 8 U.S.C. § 1101 et seq., 8 U.S.C.A. § 1101 et seq.
Joint hearings before the Subcommittees of the Committees on the Judiciary S. 716, H.R. 2379, H.R. 2816, 82d Cong., 1st Sess. 526—537, 591, 691—692, 739.
Shaughnessy v. U.S. ex rel. Accardi, 349 U.S. 284, 75 S.Ct. 748 (dissenting opinion).
'No State shall * * * pass any * * * ex post facto Law * * *.' Art. I, § 10.
In Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549, the Act in question provided that aliens in certain classes (including those convicted under specified statutes) should be deported if the Secretary of Labor found those aliens to be undesirable residents of the United States. Thus the primary basis for deportation was a finding by the appropriate administrative official that an alien was presently an undesirable resident. In Bugajewitz v. Adams, 228 U.S. 585, 33 S.Ct. 607, 57 L.Ed. 978, the Court stated with regard to the alien to be deported, '* * * we must take it, at least, that she is a prostitute now', and concluded that, with regard to her, it was 'not necessary to construe the statute as having any retrospective effect.' Id., 228 U.S. at pages 590, 591, 33 S.Ct. at page 608.
Johannessen v. United States, 225 U.S. 227, 32 S.Ct. 613, 56 L.Ed. 1066, involved an attempt to cancel a certificate of citizenship on the ground it had been fraudulently and illegally procured. The Court pointed out that the Act did not impose a new penalty on the wrongdoer but merely provided a method for depriving him of a privilege 'that was never rightfully his.' Id., 225 U.S. at pages 242—243, 32 S.Ct. at page 617.


24 HOUR FITNESS USA, INC. v. 24/7 TRIBECA FITNESS, LLC.
24 HOUR FITNESS USA, INC.v.24/7 TRIBECA FITNESS, LLC.
No. 03 Civ. 4069 (RLE).
Plaintiff 24 Hour Fitness USA, LLC ("24 Hour Fitness") owns and operates a chain of fitness clubs throughout the United States. In 1996, plaintiff began using the name 24 HOUR FITNESS in connection with its health and fitness facilities. On January 20, 1998, plaintiff registered the name with the United States Patent and Trademark Office ("PTO"). On June 4, 2003, plaintiff commenced this action against 24/7 Tribeca Fitness, LLC ("24/7 Fitness"), 24/7 Gym, LLC ("24/7 Gym"), Peter Williams Enterprises, Incorporated ("Williams Enterprises"), and Peter Williams ("Williams"), alleging that defendants' use of the name 24/7 FITNESS CLUB constituted trademark infringement and unfair competition. On August 27, 2003, the parties consented to have all proceedings before the undersigned pursuant to 28 U.S.C. § 636(c). On August 26, 2004, defendants moved for summary judgment. On August 30, 2004, plaintiff cross-moved for summary judgment on plaintiff's cause of action. For the reasons set forth below, plaintiff's and defendants' motions are DENIED.
Plaintiff began using the name 24 HOUR FITNESS in connection with its fitness facilities in August of 1996. Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment of Trademark Infringement and Related Unfair Competition Claims ("Pl. Mem.") at 2. On January 20, 1998, plaintiff registered the name with the PTO under registration number 2,130,895. Id. Since then, plaintiff has expanded substantially, and currently owns and operates approximately 310 health and fitness clubs throughout the United States. Id. at 1. Plaintiff offers various types of fitness clubs under a family of 24 HOUR FITNESS marks, including 24 HOUR FITNESS EXPRESS clubs, 24 HOUR FITNESS SPORTS clubs, and 24 HOUR FITNESS MAGIC JOHNSON SPORTS CLUBS. Id. at 2, 5. The PTO has issued plaintiff seventeen registrations incorporating the 24 HOUR and 24 HOUR FITNESS marks for use in connection with its health and fitness products and services. Id. at 2. Additionally, plaintiff has spent over $100 million advertising its mark and various health-related products and services, including in-club signs, billboards, direct mail, broadcast and electronic media, and placement on merchandise and literature. Id. at 1, 3-4. Plaintiff indicates that it plans to expand its business to New York, but, to date, it has opened no 24 Hour Fitness clubs in this state. Id. at 1.
Defendants 24/7 Fitness and 24/7 own and operate two fitness clubs in Manhattan. Defendants' Local Rule 56.1 Statement of Material Facts ("Def. 56.1") at ¶ 9. One club is located in lower Manhattan at Chambers Street, the other is at West 14th Street. Id. at ¶¶ 15, 18. In September 2001, Williams and non-party Wahday Washington became limited partners in defendant 24/7 Fitness, which owns the Chambers Street facility. Id. at ¶ 18. In September 2002, Williams, through the 24/7 Gym, became the sole shareholder of the 14th Street gym. Id. at ¶ 19. The 14th Street gym began operating under the name 24/7 FITNESS CLUB in or around April 2001. Id. at ¶ 22. The Chambers Street facility had begun using the name in or around February 2001. Id. Defendants did not register the name with the PTO for either location. Pl. Mem. at 3.
On or about July 8, 2002, plaintiff sent defendants a cease and desist letter demanding that defendants discontinue the use of the name 24/7 FITNESS CLUB. Def 56.1 at ¶ 23. On or about August 2, 2002, plaintiff sent a second cease and desist letter. Id. at ¶ 24. Defendants continued to use the name 24/7 FITNESS. Defendants contend that they had no knowledge of plaintiff at the time they adopted the name 24/7 FITNESS CLUB for their health and fitness facilities. Id. at ¶ 28.
On June 4, 2003, plaintiff commenced the present action, alleging that defendants' use of the name 24/7 FITNESS CLUB infringed on plaintiff's trademark in violation of the Lanham Act, and constituted unfair competition under New York General Business Law because defendants' name was confusingly similar to plaintiff's mark. Def 56.1 at ¶ 25. Plaintiff also moved for a preliminary injunction to stop defendants' use of the name 24/7 FITNESS CLUB and the internet address 247 fitnessclub.com. Id. at ¶ 26. Defendants took down the website and stated that they did not plan to re-inittate the site. Id. at ¶ 27. On August 14, 2003, District Judge Swain denied plaintiff's motion for a preliminary injunction. Id. at ¶ 29. On August 27, 2003, the parties consented to jurisdiction by this Court for all purposes. On July 19, 2004, plaintiff amended its complaint, and defendants answered on August 18, 2004.
On August 26, 2004, defendants moved for summary judgment to dismiss plaintiff's claim, alleging that plaintiff's 24 HOUR FITNESS mark was not legally protectable because it was a "merely descriptive" phase that non-distinctively described a fitness club that did not close and because plaintiff could not demonstrate a likelihood of consumer confusion between plaintiff's mark and defendants' name. See generally Defendants' Brief in Support of Defendants' Motion for Summary Judgment to Dismiss Plaintiff's Complaint ("Def. Mot."). On August 30, 2004, plaintiff cross-moved for summary judgment against defendants, alleging trademark infringement and unfair competition.
In evaluating a motion under Federal Rule of Civil Procedure 56, the Court reviews the "pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, "to determine if there exists a genuine issue of material fact to preclude the moving party from a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A nonmoving party cannot rely on conclusory allegations or speculation, and "may not rest on the pleadings[,] but must further set forth specific facts in the affidavits, depositions, answers to interrogatories, or admissions showing a genuine issue exists for trial." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). A genuine issue exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Furthermore, summary judgment is properly denied in a trademark litigation when there are disputes over "facts that might affect the outcome of the suit under the governing law," Lois Sportswear, U.S.A., Inc. v. Levi Strauss Co., 799 F.2d 867, 876 (2d Cir. 1986), such as facts that pertain to "whether [consumer] confusion [with regard to the parties' trademarks] is likely." Cadbury Beverage v. Cott Corp., 73 F.3d 474, 478 (2d Cir. 1996).
There are two main issues of material fact in dispute with respect to plaintiff's and defendants' summary judgment motions: 1) is plaintiff's registered trademark 24 HOUR FITNESS legally protectable; and 2) is there a likelihood of consumer confusion between plaintiff's mark and defendants' 24/7 FITNESS CLUB name.
With regard to the first issue, plaintiff correctly argues that federally registered trademarks are prima facie evidence of a mark's validity. Pl. Mem. at 9; 15 U.S.C.A. § 115(a). However, this does not preclude defendants from asserting "any legal or equitable defense or defect . . . which might have been asserted if such mark had not been registered," including a defense, as alleged here, that the mark is weak and merely descriptive. 15 U.S.C.A. § 1115(a); Abercrombie Fitch Co. v. Hunting World Inc., 537 F.2d 4, 9 (2d Cir. 1976). Considering the parties' opposing positions, a dispute of material fact clearly exists with respect to whether plaintiff's mark is legally protectable. Accordingly, summary judgment on this issue is DENIED.
Turning to the second issue, plaintiff asserts that defendants' should be barred from using the 24/7 FITNESS name because there is a high likelihood of confusion between defendants' name and plaintiff's 24 HOUR FITNESS mark. Pl. Mem. at 10-24. Plaintiff has presented factual evidence, including a consumer survey and witness accounts, to demonstrate that actual confusion existed between the names. Pl.Mem. at 14, 18-20. Defendants, for their part, have submitted exhibits to demonstrate lack of confusion. Def. Opp. at 25; Def. Mot. at 6-21: Def. Mot. Exhibits A-M. It is clear that there exists a material fact in dispute with respect to whether there is a likelihood of confusion between plaintiff's mark and defendants' name. Accordingly, summary judgment on this issue is DENIED.
There are material facts in dispute regarding whether plaintiff's trademark is legally protectable and whether there is a likelihood of consumer confusion between the parties' names. Accordingly, plaintiff's and defendants' motions for summary judgment are DENIED.


There are a variety of California and federal laws that require employers to allow an employee to take a “leave of absence” from employment. Leave of absence laws are generally focused on protecting the right of employees to pursue protected activities, including seeking treatment for protected ailments, and thereafter return to work. These laws often provide harsh penalties to employers that do not allow an employee to take a leave of absence and/or to make attempts to have the employee return to work.
This article will discuss and compare certain leaves of absence requirements set forth in the Family Medical Leave Act (FMLA), the California Family Rights Act (CFRA) and the disability/medical condition laws pursuant to California’s Government Code.
FMLA generally allows employees to take a twelve (12) workweek leave of absence per year to attend to the employee’s serious health condition, the serious health condition of certain family members, the birth of a child or the adoption of a child. Under FMLA, non-key employees must be reinstated to the same or equivalent position. California Family Rights Act CFRA is very similar to the FMLA, but differs in a few ways. Notably, the CFRA does not include disabilities due to pregnancy, childbirth or related conditions. Both FMLA and CFRA laws only apply to employers that have 50 or more employees within a 75 mile radius and an employee must meet certain employment requirements.
Many small businesses do not have fifty employees within a seventy-five mile radius. These small employers typically do not understand that their employees may still qualify for a leave of absence. In fact, the leave of absence requirements that exist for small employers is arguably more burdensome than the requirements set forth in FMLA/CFRA.
In California, businesses with five (5) or more employees must comply with California’s tough discrimination laws pursuant to the Fair Employment and Housing Act (FEHA). In many ways, the rights granted to employees pursuant to FEHA extend way beyond the rights afforded by FMLA/CFRA.
In California, FEHA protects employees with medical conditions and disabilities. A disability is a physical or mental condition that limits a major life activity. Government Code § 12926 et seq. Disabilities include short-term or temporary conditions and include conditions that merely make a major activity “difficult”. Government Code § 12926(m)(1)(B)(ii). California deems “working” a “major life activity”. Government Code § 12926.1(c). California also protects employees when the employer “perceives” that the employee has a protected physical or mental condition. Government Code § 12926.1(d)(3).
As stated, California disability/medical condition laws protect employees that work for employers with only five (5) employees. Like FMLA, FEHA requires employers to provide a reasonable accommodation to employees with a disability unless doing so would produce an undue burden on the employer. Government Code § 12940(m). And also like FMLA, FEHA states that a finite “leave of absence” may be a reasonable accommodation. Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, at 263. This begs the question as to what qualifies as a “reasonable accommodation”. Unfortunately, FEHA does not provide a length of time that an employer must keep a position open while an employee is on leave. Is it reasonable for a small employer to hold a position open for 1, 2 or 6 months? How about one year?
Businesses across California are getting sued by former employees who claim that the business did not provide a long enough leave of absence to recover from their disability/medical condition. Such lawsuits can often be very expensive and time consuming and may be avoided by seeking the advice of experienced counsel. In the event your business is experiencing issues related to an employee disability or medical condition, it is important to seek the advice of an experienced attorney.


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Maleewong, K., Anutariya, C., & Wuwongse, V. (2011). Enabling Intelligence in Web-based Collaborative Knowledge Management System. International Journal of Systems and Service-Oriented Engineering (IJSSOE).
Maleewong, K., Anutariya, C., & Wuwongse, V. (2010). Analyzing Community Deliberation and Achieving Consensual Knowledge in SAM. International Journal of Organizational and Collective Intelligence (IJOCI).
Maleewong, K. (2016). An Analysis of Influential Users for Predicting the Popularity of News Tweets. To be appeared in the 14th Pacific Rim International Conference on Artificial Intelligence. Phuket, Thailand: Springer.
Maleewong, K. (2016). Predicting Quality-Assured Consensual Answers in Community-Based Question Answering Systems. To be appeared in the 12th International Conference on Computing and Information Technology. Khon Kaen, Thailand: Springer.
Maleewong, K., Anutariya, C., & Wuwongse, V. (2011). Automatically Discovering Quality-Assured Consensual Knowledge in Social Web. ACM International Conference on Ubiquitous Information Management and Communication (ICUIMC 2011). Seoul, South Korea: ACM press.
Maleewong, K., Anutariya, C., & Wuwongse, V. (2010). Is Vote Effective?: An Empirical Study of Community Deliberation in Social Webs. International Symposium on Web Intelligent Systems & Services (WISS 2010). Hongkong, China: Springer.
Maleewong, K., Ungrangsi, R., Anutariya, C. (2010). Enhancing Social Semantic Content Creation with SAM. International Conference on Computer Science and Software Engineering (pp.210-215). Bangkok, Thailand: IEEE press.
Maleewong, K., Anutariya, C., & Wuwongse, V. (2009). A Semantic Argumentation Approach to Collaborative Ontology Engineering. International Conference on Information Integration and Web-based Applications & Services (iiWAS’10). Kuala Lumpur, MalaySia: ACM press.
Maleewong, K., Anutariya, C., and Wuwongse, V. (2009). SAM: Semantic Argumentation based Model for Collaborative Knowledge Creation and Sharing System. To appear in Proceedings of the first International Conference on Computational Collective Intelligence (ICCCI’09), Wroclaw, Poland: Springer.
Maleewong, K., Anutariya, C., and Wuwongse, V. (2008). A Collective Intelligence Approach to Collaborative Knowledge Creation. Proceedings of the International Conference on Semantics, Knowledge, and Grid (SKG’08), Beijing, China: IEEE press.
Maleewong, K., Sumsiripong, E., Ungrangsi, R., and Anutariya, C. (2008) Semantic Social Network Applications. Proceedings International Joint Conference in Computer Science and Software Engineering 2008 (pp.258-263) Kanchanaburi, Thailand: IEEE press.

matches: V. V. V. V. V. V. V.


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short forms: dyud, giyud 1. with adjectives: without doubt. Sukù giyud siya nímu, She’s sure to be mad at you; 2a. with verbs: make it a point to (do). Úha giyud, Be sure to hit him on the head; 2b. (so-and-so) will happen for sure, can’t help but happen. Ang talawan, bísag ilútan, mudágan giyud, A coward, even if he is agitated, will be sure to run away; 2c. na — (so-and-so) happened at last. Salámat, nakapangíhì na giyud ku, Thank heavens. At last I’ve had a chance to urinate; 2d. ra — (so-and-so) will happen despite anything. Hingpatyan ku ra giyud nang bastúsa, I’ll kill that s.o.b. one of these days for sure; 3a. walà — never. Wà giyud ku masáyud ánà, I never knew that; 3b. dílì — never will (do). Dì giyud ku maglúib nímu, I’ll never betray you. sa dílì pa — certainly before (so-and-so) happens. Bángun sa dílì pa gayud mubanagbánag, Be sure to wake up before daybreak; 4. with nouns, pronouns: it is, was (pronoun) without a doubt. Siya giyud ang kinagwapahan, She is the prettiest; 5. with adjectives: it is (adjective) without a doubt. Lamì giyud kaáyu, It was really delicious, without a doubt; 6. with forms meaning ‘there is (are), there always be ... for sure’. Dúna giyuy táwung kulukuyun, There always will be foolish people; 7. with numerals: (numeral) for sure. Tulu man giyuy íyang gikaun, He ate three whole pieces; 8. with words referring to a place: right at the place. Náa giyud mi sa publasiyun, We are right in town; 9. with interrogatives: exactly [who, when, where, etc.]. Kanus-a man giyud ka gíkan? Exactly when are you leaving? 10. with words referring to time: exactly at (such-and-such) a time. Alas dús giyud tu paglínug, The earthquake was exactly at two o’clock. Karun pa giyud siya muabut, He just arrived a moment ago. Pagkamatay giyud ni Hisus, mingíub ang kalibútan, At the moment Jesus died the world was plunged into darkness; 11. — lang for no reason except that that’s the way it is. ‘Ngánung ingnun nímu ánag pahimútang?’—‘Gayud lang,’ ‘Why did you set it up like that?’—‘I just did, that’s all.’ ngánu — why did it have to be? Ngánu ba giyung gipakatáwu kung bungì? Why did I have to be born a harelip? mau — that’s the way it is. Mau giyud nang pubri. Mag-antus, That’s the way it is when you’re poor. You suffer.
a. inferior in quality or workmanship. Gáyun kaáyung pagkatahì ang ímung karsúnis, Your pants are very poorly tailored; v. be of inferior quality, do something poorly.
v. get the chance to do something Nakagayun kug haluk níya, I got a chance to kiss her. pa- v. manage, make something not quite suited to the job work, anyway. Naglísud ku kay nagpagayun ku áring daut nga makina, I’m having a hard time. I am trying to make this defective engine run. hi- v. have the chance, time to do something Musulat ku nímu kun makahigayun, I’ll write you when I have the time to; n. 1. time, chance. Wà kuy higayun pagtan-aw ug sini, I don’t have time to go to the movies; 2. chance, opportunity. Lihíru ka man giyud. Tagái sad kug higayun nga makadaug, You’re so good at it. Give me a chance to win, too; 3. time, instance. Dúnay mga higayun nga pangulbaan ku, There are times when I get so anxious; 4. time, event. Ang maung higayun gitambúngan sa mga dagkù sa lungsud, The said event was attended by the important people in the town. hi-(←) v. be well-situated in a job, dwelling place, etc. Dì na mi mulálin kay nahigáyun na mi dinhi, We won’t move because we are well-situated here. pahi-(←), pahi- v. 1. arrange to have someone put in a job. Ikapahigáyun ka dáyug trabáhu kay paryinti mu ang bús, It can easily be arranged for you to get a job because you are a relative of the boss’s. 2. make arrangements for the proper performance of something Ang punirarya ray mupahigáyun sa paglubung, The funeral parlor will take charge of the burial; 3. give someone a chance. Ákù únang gipahigayunan siya, apan kun muusab, ákù siyang kastigúhun, I’m giving him a chance this time, but if he does it again, I’ll punish him; 4. see pa-. kahigayúnan opportunity. Ang kahigayúnan kas-a rang mutuktuk sa pultahan, Opportunity knocks only once. ti-, pati- see tigayun.
v. propel a boat from the stern with a scull. Gayúngi ang búti arun muirug tag diyútay, Scull the lifeboat so we move forward a bit. Gayúngun ta lang nang gilay-úna, Let’s just go that distance by sculling. — nang — words said as one takes a baby in the lap standing and letting him lean back and forth. (→) n. scull. gayunggayung n. name of a folk dance.
1. see -un; 2. see i-.
see agi, 1, 1a, 1b, 1c.
v. stamp the foot heavily on something Giáki ang uk-uk, Stamp on the cockroach.
n. fight characterized by a furious exchange of blows; v. have a furious exchange of blows. Ang duha ka buksidur naggib-antik sa katapúsang hugnà, The two boxers had a furious exchange of blows in the last round.
v. nick a saw or blade. Gáhì kaáyung magíbang ang sundang, The machete won’t easily break. (→) n. nick on the blade of a sharp instrument, broken serration in a saw.

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