On November 17, 2008, the U.S. Department of Labor (DOL) published final regulations implementing the 2008 amendments to the Family and Medical Leave Act (FMLA). Employers should act quickly to update their FMLA policies before these regulations take effect on January 16, 2009. Below is a summary of the most significant changes to the FMLA that will take effect early next year.
This new leave entitlement allows eligible employees to take up to 26 weeks of job-protected "military caregiver leave" during a single 12 month period. This leave must be used to care for a covered family member with a serious illness or injury that was incurred in the line of duty while on active duty in the armed forces, National Guard or Reserves. In this context, a "covered family member" means a spouse, child, parent or next of kin who is a "covered servicemember." A covered servicemember is a person who is a member of the armed forces, National Guard or Reserves and is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness incurred in the line of duty on active duty that may render the servicemember medically unfit to perform the duties of the servicemember's office, grade, rank or rating. Former members of the armed forces, National Guard, or Reserves do not fall within the definition of "covered servicemembers." Only current members of the armed forces, National Guard or Reserves, or inpiduals who are on the temporary disability retired list, are included. Employers may request that an employee seeking to take military caregiver leave provide an appropriate certification from the Department of Defense that the covered servicemember's serious injury or illness was incurred in the line of duty while on active duty. An employee's entitlement to military caregiver leave is limited to 26 work weeks of leave within each 12 month period, per covered servicemember, per injury. Thus, an eligible employee may take 26 work weeks of military caregiver leave in different 12 month periods to care for multiple servicemembers or to care for the same service member with a subsequent serious injury or illness. 29 C.F.R § 825.127.
The new regulations state that "electronic posting" of the FMLA notices that covered employers are required to post on their premises may be sufficient to satisfy the FMLA posting requirements in certain circumstances. 29 C.F.R § 825.300(a)(1). Additionally, the new regulations require that where an employer's workforce is comprised of a "significant portion" of workers who are not literate in English, the employer must provide the general FMLA notice in a language in which the employees are literate. 29 C.F.R § 825.300(a)(4). Employers will be required to notify employees who request FMLA leave of their eligibility for leave within five business days, absent extenuating circumstances. 29 C.F.R § 825.300(b)(1). Instead of providing a "preliminary" or "provisional" designation of FMLA leave, employers will be required to provide a written "Rights and Responsibilities" notice to each employee taking FMLA leave that details the specific expectations and obligations of the employee and the consequences of not meeting those terms. 29 C.F.R § 825.300(c). The DOL has issued a new prototype "Notice of Eligibility and Rights & Responsibilities" form (Form WH 381) that may be used for this purpose. Once the employer has received a completed certification or other information sufficient for it to determine whether leave is being taken or requested for an FMLA-qualifying reason, the employer will have five business days, instead of two, to "designate" leave as FMLA leave. 29 C.F.R § 825.300(d). The DOL has issued a new prototype "Designation Notice" form (Form WH 381) that may be used for this purpose.
Noting the disruption caused by the lack of advance notice of an employee's absence, the revised regulations place an increased burden on employees to provide notice of their need for FMLA leave. When an employee becomes aware of a need for FMLA leave less than 30 days in advance, the new regulations specify that the employee's obligation to provide the employer with notice "as soon as practicable" will normally require the employee to provide notice either the same day or the next business day. 29 C.F.R § 825.302. The new regulations also give employers the option of requesting that employees explain why it was not practicable for them to give the full 30 days notice. 29 C.F.R § 825.302(a). When the need for leave is not foreseeable, the new regulations clarify that employees must follow the employer's usual and customary notice and procedural requirements for requesting leave, absent extenuating circumstances. 29 C.F.R § 825.303(a).
Clarification of the Definition of "Serious Health Condition"
The new regulations retain the six definitions of "serious health condition" that were already in effect, and they clarify three issues related to those definitions. First, if an employee is taking leave under the "three consecutive calendar days of incapacity plus two visits to a healthcare provider" definition, the two visits must occur within 30 days of the period of initial incapacity, absent extenuating circumstances. Second, if an employee is taking leave under the "three consecutive calendar days of incapacity plus a regimen of continuing treatment" definition, then the first visit to a health care professional must occur within 7 days of the initial incapacity. 29 C.F.R. § 825.115(a). Finally, the new regulations clarify that "periodic visits to a healthcare provider" for chronic serious health conditions means at least two visits to a healthcare provider per year. 29 C.F.R. § 825.115(c)(1).
The new regulations clarify that employees who take intermittent leave for planned medical treatment that is medically necessary have a statutory obligation to make a "reasonable effort" to schedule the treatment so that it will not unduly disrupt the employer's operations unnecessarily. 29 C.F.R. § 825.203. They also clarify the rule requiring employers to account for intermittent or reduced schedule leave under the FMLA using an increment no greater than the shortest period of time the employer uses to account for other forms of leave, provided it is not greater than one hour. Specifically, the new regulations clarify that, while an employer may account for FMLA leave using shorter time increments than it uses to account for other forms of leave, it may not account for FMLA leave using longer increments than it uses to record other forms of leave. 29 C.F.R. § 825.205(a).
The new regulations clarify that employees who accept "light duty" assignments while recovering from a serious health condition are not considered to be on FMLA leave. Thus, the time eligible employees spend working light duty assignments may not be counted against their 12 weeks of annual job protected FMLA leave or their FMLA reinstatement rights. In a modification of the previous rule, the new regulations state that employees who voluntarily accept light duty assignments that are offered by their employers in lieu of taking FMLA leave will lose their FMLA-based right to reinstatement to their original or an equivalent job if they remain in a light duty assignment at the end of the 12-month leave year period that the employer uses to calculate FMLA leave. 29 C.F.R. § 825.220(d). In its summary of comments on the new regulations, the DOL presents the following example: Where an employer uses a calendar year to calculate FMLA leave, and an employee takes four weeks of FMLA leave and returns in September to a light duty assignment that is not limited in duration and that neither the employer nor the employee chooses to end, the employee has a right to restoration that extends through the end of that calendar year, but no further.
The new regulations allow employers to apply their normal policies for taking paid leave when an employee substitutes paid leave for unpaid FMLA, regardless of the type of paid leave being substituted. Employees who seek to substitute accrued paid leave of any kind for unpaid FMLA leave must comply with the terms and conditions of the employer's normal leave policies. While employers must allow substitution of paid vacation, personal leave, or "paid time off" for any situation covered by the FMLA, employees can be required to follow normal procedures. 29 C.F.R. § 825.207. In its summary of comments on the new regulations, the DOL presents the following example: If an employer's paid personal leave policy requires two days notice for the use of paid personal leave, an employee seeking to substitute paid personal leave for unpaid FMLA leave would need to provide two days notice. This differs significantly from the current regulations, which prohibit employers from imposing any limits on the substitution of paid vacation or personal leave for unpaid FMLA leave.
The new regulations eliminate the previous rule that had required employers who failed to designate FMLA leave properly to offer affected employees an additional 12 weeks of FMLA-protected leave. In the wake of the U.S. Supreme Court's decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002), which found the regulation to be inconsistent with the FMLA's statutory intent, the new regulations eliminate this categorical penalty and clarify that where an employee suffers inpidualized harm because the employer failed to follow the FMLA notice requirements, the employer may be liable. 29 C.F.R. § 825.300(e).
The new regulations change how perfect attendance awards are treated. Employers will now be allowed to deny a "perfect attendance" bonus or other award to an employee who does not have perfect attendance because he or she took FMLA leave. However, for this rule to apply, the employer must treat employees who take non-FMLA leave in the same manner. 29 C.F.R. § 825.215(c)(2).
The regulation discussing the application of the FMLA to joint employers has been modified include a specific reference to Professional Employer Organizations (PEOs), which are companies that contract with employers to perform administrative functions such as payroll, benefits and maintaining employment policies. The revised regulations recognize that PEOs do not enter into joint employment relationships with the employees of client companies when they merely perform administrative functions. However, when PEOs have the right to hire, fire, assign, direct and control their client's employees, depending on the circumstances, this can lead to a determination that the PEO and the client employer are joint employers. The average PEO client has just 17 employees, which is well below the threshold for FMLA coverage, so this new regulation ensures that small companies are not automatically covered by the FMLA simply because they partner with a PEO. 29 C.F.R. § 825.106(b)(2).
The DOL also issued several new "prototype" forms that employers may use to comply with the FMLA, including a "Certification of Serious Health Condition – Employee's Own Condition" (Form WH-380-E), a "Certification of Serious Health Condition – Employee's Family Member's Condition" (Form WH-380-F), a "Certification of Qualifying Exigency" (Form WH-384), a "Certification for Serious Injury or Illness of Covered Servicemember" (Form WH-385), a Notice of FMLA Eligibility and Rights and Responsibilities (Form WH-381), and a "Notice to Employee of FMLA Designation" (Form WH-382).


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In admiralty. The case is stated in the opinion.
This is a libel in admiralty in rem, filed on the 23d of July, 1883, in the District Court of the United States for the Southern District of New York by the Providence Washington Insurance Company, of Providence, Rhode Island, and the Security Insurance Company of New Haven, Connecticut, against the steam canal boat Sydney and the canal boat William Worden.
& Co., for such loss against the Sydney and the Worden.
The libel prayed for process against the two boats; for a citation to all persons claiming any right, title, or interest in the same; for the payment of the claim of the libellants, with interest and costs; for the condemnation and sale of the said vessels to pay the same, and for such other an further relief in the premises as in law and justice the libellants might be entitled to receive.
On the 14th of August, 1883, one Charles E. Wager put in a claim to the two vessels as their owner. On the 15th of August, 1883, the district court made an order, on the consent of the proctors for the claimant, that the Sydney be sold by the marshal. The marshal sold the Sydney for $2,100, and he paid that sum to the clerk of the court, after deducting his costs and disbursements, amounting to $166.84. On the 28th of August, 1883, the proctors for the libellants and the claimant agreed that the value of the Worden be fixed at $1,000, in lien of an appraisement, and that a bond to the marshal be given in that amount, which was accordingly done.
established custom existing at Buffalo, whereby common carriers insured themselves against losses under their liability as such for damage and loss to the cargoes shipped on board of their boats.
The case was tried before Judge Brown, in the district court, who dismissed the libel, with costs, giving an opinion which is reported in 23 F. 88.
The libellants appealed to the circuit court, where the case was heard by Judge Wallace, who made a decree reversing the decree of the district court, awarding to the libellants a recovery against both boats for $6,175.89, and $1,420.30 interest, and $656.28 costs in both courts, being an aggregate of $8,252.47, and decreeing that the two boats be condemned therefor. The decree also recited that the Sydney had been sold and the proceeds of the sale, to-wit, $2,100, had been paid by the marshal into the registry of the court, and that the value of the Worden was fixed by consent at $1,000, for which the usual stipulation for value was duly given, and directed that the proceeds of the sale of the Sydney be paid over to the proctor for the libellants, and that the stipulators for the value of the Worden cause the engagement of their stipulation to be performed. The opinion of Judge Wallace is reported in 27 F. 119. He filed the proper findings of fact and conclusions of law. Wager, the claimant, appealed to this Court.
The first question which arises is as to the jurisdiction of this Court, inasmuch as the proceeds of the sale of the Sydney were only $2,100 and the value of the Worden was only $1,000, the aggregate of these two sums not exceeding $5,000. There was no decree against any person in personam for any amount. The only decree was that the Sydney and the Worden be condemned for the $8,252.47.
judgment, on the ground that the statute limiting the appellate jurisdiction of this Court to cases where the matter in dispute, exclusive of costs, exceeded the sum or value of $5,000, had reference to the matter directly in dispute in the particular cause in which the judgment sought to be reviewed had been rendered, and did not permit the court, for the purpose of determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties. It was further said that the court could not add to the value of the matter determined any estimate in money by reason of the probative force of the judgment itself in some subsequent proceeding.
facts in the case of The Enterprise, so that whatever was said by this Court in apparent recognition of the propriety of the decision in the case of The Enterprise must be regarded as obiter dictum, and the views set forth in the opinion in the last-mentioned case, so far as they conflict with the actual rulings of this Court in the cases of Elgin v. Marshall and The Jessie Williamson, Jr., must be regarded as not having had the affirmative approval of this Court.
The principle of the case of Elgin v. Marshall, that the sum or value really in dispute between the parties in the case before this Court as shown by the whole record is the test of its appellate jurisdiction, without regard to the collateral effect of the judgment in another suit between the same or other parties, has since been repeatedly affirmed by this Court, and that case cited and approved. Opelika City v. Daniel, 109 U. S. 108; Bruce v. Manchester & Keene Railroad, 117 U. S. 514; Glbson v. Shufeldt, 122 U. S. 27; Vicksburg &c. Railroad v. Smith, 135 U. S. 195.
The case of The Jessie Williamson, Jr., has been cited with approval by this Court in Bowman v. Chicago & Northwestern Railway, 115 U. S. 611, and Gibson v. Shufeldt, 122 U. S. 27.
It is very clear that if the libel in the present case had been dismissed by the circuit court, the libellants could not have appealed. The right of appeal must be reciprocal, and the statute does not give to one party an advantage over the other party under the same circumstances. Hilton v. Dickinson, 108 U. S. 165; The Jessie Williamson, Jr., 108 U. S. 305, 108 U. S. 311.

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(a) This section implements the Temporary Extended Unemployment Compensation (TEUC) waiver of repayment program by setting out the process that the Agency and Commission shall use to determine whether to waive the repayment and recovery of non-fraudulent overpayments. The terms repayment and recovery will be referred to as repayment in this section, and Temporary Extended Unemployment Compensation overpayment will be referred to as overpayment.
(b) When a decision of the Agency or Commission results in an overpayment, an appealable determination and a request for waiver of repayment of an overpayment are mailed to the claimant.
(c) A claimant may appeal an overpayment determination pursuant to the provisions of Chapter 212 of the Act and the provisions set out in §815.16 of this chapter (relating to Appeals to Appeal Tribunals from Determinations), §815.17 of this chapter (relating to Appeals to the Commission from Decisions), and §815.18 of this chapter (relating to General Rules for Both Appeal Stages).
(d) A claimant's written request for waiver of repayment of an overpayment must be filed within 14 days of the date a request to waive the repayment of an overpayment notification is mailed by the Agency. The waiver request must be filed in accordance with §815.16 (1)(A) of this chapter (relating to Appeals to Appeal Tribunals from Determinations) or mailed to the address on the request form.
(2) the repayment is not contrary to equity and good conscience.
(2) the repayment is contrary to equity and good conscience.
(4) whether, for any other reason, the overpayment resulted directly or indirectly, and partially or totally, from any act or omission of the claimant or of which the claimant had knowledge, and which was erroneous or inaccurate or otherwise wrong.
(3) whether repayment of the TEUC overpayment will cause financial hardship to the claimant.
(i) The Commission has determined that requiring the claimant to repay a TEUC overpayment will cause financial hardship to the claimant, because in order to receive TEUC benefits, the claimant had to have been unemployed for an extended period of time.
(j) A claimant may appeal a denial of a request to waive the repayment of an overpayment pursuant to subsection (c) of this Section.
(k) Hearings under this Section will be conducted in a fair and impartial manner in accordance with the provisions of §815.15 of this chapter (relating to Parties with Appeal Rights), §815.16 of this chapter (relating to Appeals to Appeal Tribunals from Determinations), §815.17 of this chapter (relating to Appeals to the Commission from Decisions), and §815.18 of this chapter (relating to General Rules for Both Appeal Stages), except to the extent that the sections are clearly inapplicable.


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A new species of Bufo is described from the Tagay locality (Irkutsk oblast’, Russia; late Early – early Middle Miocene). The material comprises disarticulated skull and postcranial bones. The described species can be differentiated from the other species of the genus primarily by the lateral depression of prootic and anterior position of the postorbital crest. The new taxon is similar to B. raddei in the ilium morphology and possibly belongs to the same radiation. The described species is the first fossil Bufo from the Early-Middle Miocene of Russia, and one of the oldest in Asia.
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Doe v. Williams – Minor female was sexually assaulted by her maternal grandfather who entered “Guilty” plea in criminal case. Case settled during litigation for $100,000.
Crews v. Holtzclaw – Minor female was sexually assaulted by step-father who entered “Guilty” plea in criminal case. Client awarded $500,000 at bench trial.
Doe v. Davis – Minor female was sexually assaulted by her step-grandfather who entered a “Guilty” plea in criminal case. The perpetrator died while serving his sentence, after which a lawsuit was filed against his estate. Case settled during litigation for $82,500.
Robert v. Fulkerson – Minor boy was routinely molested after cutting grass for a man who was a friend of the boy’s family from church. Case was settled during litigation for a confidential amount.
Doe v. Hinson – Minor female was assaulted by her step-grandfather who entered “Guilty” plea in criminal case. Case settled during litigation for $50,000.
Doe v. Rockdale Board of Education (Heritage High School) – ROTC instructor molested 5 female students, the incidents primarily occurred in his office & windowless room at the ROTC building where students, alone with the instructor were fitted for uniforms. The principal was informed by the victims of the incident but did nothing. Case settled on appeal for a confidential amount.
Manning v. Holly Ridge Apartments (Holly Ridge Apartments) – Seven year-old was playing in common area of his apartment complex when another boy attacked him with a broken liquor bottle found on the premises, causing severe laceration to the face. Case settled during litigation for confidential amount.
Duffey v. JMK Corporation (Foxcreek Apartments) – Young female tenant was sexually assaulted and raped in her apartment by an attacker who entered through a kitchen window. Case settled for $750,000.
Hall v. Morton Realty Co. (Simpson Valley Apartments) – Minor tenant was shot in parking lot of his apartment complex by teenager. Case settled (confidential) before trial.


D.C. Law Library - § 47–2831. Vehicles hauling goods from public space.
↪ § 47–2831. Vehicles hauling goods from public space.
§ 47–2832. Repairing of motor vehicles.
§ 47–2831. Vehicles hauling goods from public space.
Owners of vehicles for hire, used in hauling goods, wares, or merchandise, and operating from public space, shall pay a license tax of $25 per annum for each vehicle. Stands for such vehicles upon public space may be established in the manner provided in § 50-2201.03. Licenses issued under this section shall date from April 1st of each year, but may be issued on or after March 15th of such year; provided, however, that all licenses issued for a period prior to April 1, 1940, shall expire on March 31, 1940, and the license fee therefor shall be prorated accordingly.
This section is referenced in § 47-2829.


§30-3E-2. Powers and duties of the boards.
§30-3E-4. License to practice as a physician assistant.
§30-3E-11. Collaboration with physician assistants.
§30-3E-12a. Physician assistant signatory authority.
§30-3E-14. Special volunteer physician assistant license.
§30-3E-15. Summer camp or volunteer endorsement - West Virginia licensee.
§30-3E-16. Summer camp or volunteer endorsement - Out-of-state licensee.
§30-3E-18. Health care facility reporting requirements.
§30-3E-19. Unlawful act and penalty.
(1) "Advance duties" means medical acts that require additional training beyond the basic education program training required for licensure as a physician assistant.
(2) "Alternate collaborating physician" means one or more physicians licensed in this state and designated by the collaborating physician to provide collaboration with a physician assistant in accordance with an authorized practice agreement.
(3) "Approved program" means an educational program for physician assistants approved and accredited by the Accreditation Review Commission on Education for the Physician Assistant or its successor. Prior to 2001, approval and accreditation would have been by either the Committee on Allied Health Education and Accreditation or the Accreditation Review Commission on Education for the Physician Assistant.
(4) "Boards" means the West Virginia Board of Medicine and the West Virginia Board of Osteopathic Medicine.
(5) "Chronic condition" means a condition which lasts three months or more, generally cannot be prevented by vaccines, can be controlled but not cured by medication and does not generally disappear. These conditions include, but are not limited to, arthritis, asthma, cardiovascular disease, cancer, diabetes, epilepsy and seizures and obesity.
(6) "Collaborating physician" means a doctor of medicine, osteopathy or podiatry fully licensed, by the appropriate board in this state, without restriction or limitation, who collaborates with physician assistants.
(7) "Collaboration" means overseeing the activities of, and accepting responsibility for, the medical services rendered by a physician assistant. Constant physical presence of the collaborating physician is not required as long as the collaborating physician and physician assistant are, or can be, easily in contact with one another by telecommunication. Collaboration does not require the personal presence of the collaborating physician at the place or places where services are rendered.
(8) "Endorsement" means a summer camp or volunteer endorsement authorized under this article.
(9) "Health care facility" means any licensed hospital, nursing home, extended care facility, state health or mental institution, clinic or physician’s office.
(10) "Hospital" means a facility licensed pursuant to article five-b, chapter sixteen of this code and any acute-care facility operated by the state government that primarily provides inpatient diagnostic, treatment or rehabilitative services to injured, disabled or sick persons under the supervision of physicians and includes psychiatric hospitals.
(11) "License" means a license issued by either of the boards pursuant to the provisions of this article.
(12) "Licensee" means a person licensed pursuant to the provisions of this article.
(13) "Physician" means a doctor of allopathic or osteopathic medicine who is fully licensed pursuant to the provisions of either article three or article fourteen of this chapter to practice medicine and surgery in this state.
(14) "Physician assistant" means a person who meets the qualifications set forth in this article and is licensed pursuant to this article to practice medicine under collaboration.
(15) "Practice agreement" means a document that is executed between a collaborating physician and a physician assistant pursuant to the provisions of this article, and is filed with and approved by the appropriate licensing board.
(5) Take all other actions necessary and proper to effectuate the purposes of this article.
(10) Any other rules necessary to effectuate the provisions of this article.
(b) The boards may propose emergency rules pursuant to article three, chapter twenty-nine-a of this code to ensure conformity with this article.
(a) A person seeking licensure as a physician assistant shall apply to the Board of Medicine or to the Board of Osteopathic Medicine. The appropriate board shall issue a license to practice as a physician assistant with the collaboration of that board’s licensed physicians or podiatrists.
(10) Has fulfilled any other requirement specified by the appropriate board.
(c) A board may deny an application for a physician assistant license to any applicant determined to be unqualified by the board.
(a) A temporary license may be issued by the boards to a person applying for a license under this article, if the person meets all of the qualifications for a license but is awaiting the next scheduled meeting of the board for action upon his or her application.
(b) The temporary license expires six months after issuance or after the board acts, whichever is earlier.
(3) An attestation that all continuing education requirements for the reporting period have been met.
(b) If a licensee fails to timely renew his or her license, then the license automatically expires.
(4) An attestation that all continuing education requirements have been met.
(b) If a license automatically expires and more than one year has passed since the automatic expiration, then an applicant shall apply for a new license.
(a) A physician assistant may not practice independent of a collaborating physician.
(3) Receive written authorization from the appropriate licensing board to commence practicing as a physician assistant pursuant to the practice agreement.
(2) The activities delegated to a physician assistant are consistent with sound medical practice and will protect the health and safety of the patient.
(d) A collaborating physician may enter into practice agreements with up to five full-time physician assistants at any one time. A physician is prohibited from being a collaborating or alternate collaborating physician to more than five physician assistants at any one time. However, a physician practicing medicine in an emergency department of a hospital or a physician who collaborating with a physician assistant who is employed by or on behalf of a hospital may collaborate with up to five physician assistants per shift if the physician has an authorized practice agreement in place with the physician assistant or the physician has been properly authorized as an alternate collaborating physician for each physician assistant.
(8) Any other information required by the boards.
(2) Request additional information from the collaborating physician and/or the physician assistant to evaluate the delegation of duties and advanced duties.
(3) Each advanced duty to be delegated to the physician assistant is reviewed and approved within a process approved by the governing body of the health care facility or ambulatory surgical facility before the physician assistant performs the advanced duties.
(d) If a licensing board declines to authorize a practice agreement or any proposed delegated act incorporated therein, the board shall provide the collaborating physician and the physician assistant with written notice. A physician assistant who receives notice that the board has not authorized a practice agreement or a delegated act shall not practice under the agreement or perform the delegated act.
(e) If a practice agreement is terminated, then a physician assistant shall notify the appropriate licensing board in writing within ten days of the termination. Failure to provide timely notice of the termination constitutes unprofessional conduct and disciplinary proceedings may be instituted by the appropriate licensing board.
(C) Only delegates those medical acts that have been authorized by the practice agreement and are within the scope of practice of both the primary collaborating physician and the alternate collaborating physician.
(3) Collaborating with the physician assistant in the care and treatment of a patient in a health care facility.
(c) A health care facility is only legally responsible for the actions or omissions of a physician assistant when the physician assistant is employed by or on behalf of the facility. Credentialed medical facility staff and attending physicians of a hospital who provide direction to or utilize physician assistants employed by or on behalf of the hospital are considered alternate collaborating physicians.
(4) Consistent with the laws of this state and rules of the boards.
(b) This article does not authorize a physician assistant to perform any specific function or duty delegated by this code to those persons licensed as chiropractors, dentists, dental hygienists, optometrists or pharmacists, or certified as nurse anesthetists.
(4) Utility company forms requiring maintenance of utilities regardless of ability to pay.
(b) A physician assistant may not sign a certificate of merit for a medical malpractice claim against a physician.
(a) While practicing, a physician assistant shall wear a name tag that identifies him or her as a physician assistant.
(b) A physician assistant shall keep his or her license and current practice agreement available for inspection at his or her primary place of practice.
(2) Wishes to donate his or her expertise for the medical care and treatment of indigent and needy patients in the clinical setting of clinics organized, in whole or in part, for the delivery of health care services without charge.
(3) The initial license shall be issued for the remainder of the licensing period.
(c) The special volunteer physician assistant license shall be renewed consistent with the appropriate licensing board’s other licensing requirements.
(4) The physician assistant agrees to continue to participate in continuing education as required by the appropriate licensing board for the special volunteer physician assistant license.
(e) A physician assistant and his or her collaborating physician who render medical service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge, under a special volunteer physician assistant license, without payment or compensation or the expectation or promise of payment or compensation, are immune from liability for any civil action arising out of any act or omission resulting from the rendering of the medical service at the clinic unless the act or omission was the result of the physician assistant’s and his or her collaborating physician’s gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there shall be a written agreement between the physician assistant and the clinic pursuant to which the physician assistant shall provide voluntary uncompensated medical services under the control of the clinic to patients of the clinic before the rendering of any services by the physician assistant at the clinic. Any clinic entering into a written agreement is required to maintain liability coverage of not less than $1 million per occurrence.
(f) Notwithstanding the provisions of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of a physician assistant rendering voluntary medical services at or for the clinic under a special volunteer physician assistant license.
(g) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure under this article, except the fee requirements.
(h) Nothing in this section may be construed as requiring the appropriate licensing board to issue a special volunteer physician assistant license to any physician assistant whose license is or has been subject to any disciplinary action or to any physician assistant who has surrendered a physician assistant license or caused his or her license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a physician assistant license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a physician assistant license.
(i) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physician assistant covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing the policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of the policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a physician assistant who holds a special volunteer physician assistant license.
(C) The physician assistant will not prescribe any controlled substances or legend drugs as part of his or her practice at the summer camp or public or community event.
(b) A physician assistant may only receive one summer camp or volunteer endorsement annually. The endorsement is active for one specifically designated period annually, which period cannot exceed three weeks.
(c) A fee cannot be assessed for the endorsement if the physician assistant is volunteering his or her services without compensation or remuneration.
(7) Has fulfilled any other requirements specified by the appropriate board.
(a) All hearings and procedures related to denial of a license, and all complaints, investigations, hearings and procedures regarding a physician assistant license and the discipline accorded thereto, shall be in accordance with the processes and procedures set forth in articles three and/or fourteen of this chapter, depending on which board licenses the physician assistant.
(b) The boards may impose the same discipline, restrictions and/or limitations upon the license of a physician assistant as they are authorized to impose upon physicians and/or podiatrists.
(c) The boards shall direct to the appropriate licensing board a complaint against a physician assistant, a collaborating physician and/or an alternate collaborating physician.
(d) In the event that independent complaint processes are warranted by the boards with respect to the professional conduct of a physician assistant or a collaborating and/or alternate collaborating physician, the boards are authorized to work cooperatively and to disclose to one another information which may assist the recipient appropriate licensing board in its disciplinary process. The determination of what information, if any, to disclose shall be at the discretion of the disclosing board.
(e) A physician assistant licensed under this article may not be disciplined for providing expedited partner therapy in accordance with article four-f, chapter sixteen of this code.
(a) A health care facility shall report, in writing, to the appropriate licensing board within sixty days after the completion of the facility's formal disciplinary procedure or after the commencement and conclusion of any resulting legal action against a licensee.
(3) The formal disciplinary action taken against the physician assistant by the facility relating to professional ethics, medical incompetence, medical malpractice, moral turpitude or drug or alcohol abuse.
(c) A health care facility does not need to report temporary suspensions for failure to maintain records on a timely basis or for failure to attend staff or section meetings.
It is unlawful for any physician assistant to represent to any person that he or she is a physician, surgeon or podiatrist. A person who violates this section is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than two years, or be fined not more than $2,000, or both fined and imprisoned.


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Livent Inc. (Receiver of) v. Deloitte & Touche - acting for Livent in substantial auditors' negligence claims at trial, court of appeal and Supreme Court of Canada.
British American Tobacco PLC in the C$10B action being brought by the Province of Alberta for recoupment of tobacco related health care costs pursuant to the Alberta Crown’s Right of Recovery Act.
Veolia Water Technologies, Inc. in its C$500M litigation with K+S Potash Canada General Partnership and Aecon Mining Construction Services surrounding the alleged failure of several crystallizer vessels manufactured by Veolia and installed at the K+S mine facility.
Home Capital Group Inc. in a proceeding by the Ontario Securities Commission and related securities class action alleging failure to comply with public disclosure obligations.
The TDL Group Corp. (Tim Hortons) in a successful summary judgment application against a franchisee for recovery of significant unpaid amounts owed to TDL.
Coburn and Watson’s Metropolitan Home v. Bank of America Corporation et al. – acting for CIBC in defence of a set of class actions brought against several banks and credit card companies in British Columbia, Ontario, Quebec, Alberta, and Saskatchewan alleging anti-competitive conduct with respect to fees paid by merchants for the acceptance of credit cards.
BP Canada in its C$1B litigation against Aux Sable Canada relating to a twenty year product supply agreement for natural gas and NGLs transported on the Alliance Pipeline.
Commissioner of Competition v. HarperCollins Publishers, LLC – defending the respondents to an application by the Commissioner of Competition before the Competition Tribunal alleging unlawful competitor collaboration in the market for e-books in Canada.
Altius Minerals Corporation in the defence of a C$1.6B claim relating to a coal lease option agreement.
Hudson’s Bay Company in a case brought by the Commissioner of Competition to the Competition Tribunal regarding marketing practices, alleging a breach by Hudson’s Bay of the “ordinary selling price provisions” of the Competition Act with respect to the advertising of the sale of mattresses.
Ontario Energy Board (OEB) in appeal to the Supreme Court of Canada restoring OEB’s decision to disallow rate recovery by Ontario Power Generation of C$145M in collective bargaining related costs.
Medtronic Inc., in relation to Covidien pelvic mesh, in the cross-Canada class actions (including in Ontario, Quebec, Alberta and Saskatchewan) and individual litigation.
Reference re Senate Reform – representing the Dean of the Canadian Senate in an historic reference regarding the constitutionality of proposals for Senate reform.
ARC Financial Corp. in litigation against Composite Technologies Inc. relating to allegations of misuse of confidential information relating to the manufacture of flexible composite pipe.
Ernst & Young et al v. Essar Global Fund Limited et al – acting for Algoma in oppression remedy proceedings against Algoma's affilliates.
ONOC Inc. v. United Hydrocarbon International Corp. – claim for lost opportunity in relation to oil and gas concessions in the Republic of Chad.
Eliot Shore v. Avid Life Media Inc. – defending Avid Life Media in class action relating to alleged privacy breach in connection with the hacking of the AshleyMadison.com website.
Osisko Mining Corporation in its challenge before the court of Goldcorp Inc.’s hostile take-over bid and in the ensuing C$3.9B sale to white knight Yamana Gold Inc. and Agnico-Eagle Mines Limited.
SNC-Lavalin Inc. v. ArcelorMittal Exploitation Minière Canada et al. v. BBA Inc. et al. - defending SNC-Lavalin Inc. in the matter of a C$533M counterclaim for allegedly grossly negligent EPCM services rendered in the context of a brownfield mining project in Northern Quebec.
Richard James Goodwin, et al. v. British Columbia (Superintendent of Motor Vehicles), et al., (Supreme Court of Canada) - co-counsel for the Insurance Bureau of Canada as intervener on the case dealing with the constitutionality of provincial road side breathalyzer laws.
8811571 Canada Inc. v. Procureur Général du Québec et als. – acting for La Caisse de Dépôt et Placement du Québec, the province’s largest institutional investor in connection to a constitutional challenge regarding a C$6B public transit infrastructure project.
Hydro-Québec v. Churchill Falls (Labrador) Corp. - as co-counsel for the owner of a 5428 MW hydro power plant in lawsuits involving the modification of the multi-billion dollars Churchill Falls electricity contract (Supreme Court of Canada) and the interpretation of the renewal terms of the contract (Québec Court of Appeal).
Alstom Grid (now GE), and its insurer Axa/Intact with respect to losses sustained in connection with the work performed under a contract entered into with RioTintoAlcan for the supply and installation of the sub-station of RTA’s new technology AP60 Aluminium Smelter in Arvida.

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Correct calculation of the federal sentencing guidelines for a multi-count case can be tedious, but failure to proceed carefully can result in costly errors. This issue has come up recently in one case in which I were assisting a defense attorney prior to sentencing, in another where I had the direct appeal, and in a third as a ground for resentencing under 2255.
When multiple counts form a single “group” under the guidelines (Chapter 3D), there is a tendency in preparing Pre-Sentence Investigation Reports (PSIs or PSRs) to assume mistakenly that only a single calculation of offense level is needed for the entire group. In fact, it is often necessary to calculate each count separately. Indulging in the shortcut of doing only one calculation for the group, rather than a separate calculation for each count, can result in an higher level being erroneously assigned to the group. The error involves the somewhat complex interrelationship among various Sentencing Guidelines concepts.
Adjustments under the guidelines must not be applied to the case overall, but rather to particular counts. Under the guideline instructions, most adjustment issues must be assessed with respect to each separate count, before grouping. USSG §1B1.1(c); see also §3D1.3, applic. note 1 (adjustments under Ch. 3, parts A, B, and C apply count-by-count, prior to grouping). See United States v. Eng, 14 F.3d 165, 170-71 (2d Cir. 1994); United States v. Seligsohn, 981 F.2d 1418, 1426 (3d Cir. 1992). This general rule stands in contrast to the adjustment for acceptance of responsibility under USSG §3E1.1, which under USSG §1B1.1(e) is made after grouping.
For example, there may be “vulnerable victims” of one kind of offense in the case (a fraud count, for example), but not of another (such as a money laundering count). Or the defendant may have an “aggravating role” under one count (such as a drug conspiracy), but not another (such as related tax evasion). Each of those adjustments, and most others, must be applied on a count by count basis, unless the conduct involved in one count happens to qualify as “relevant conduct” under §1B1.3(a) in rating the other count. Only in the latter situation will the adjustments for one count carry over to another.
Take the case in which my client was convicted on several counts each of mail fraud and money laundering. Under USSG §3D1.2(c) all counts fell into a single group, because the fraud counted in a specific offense characteristic in the money laundering calculation. The PSI applied four separate two-point enhancements—vulnerable victim, leadership, abuse of trust, and obstruction of justice—to the money laundering counts’ Level 25, thus reaching Level 33 and a guideline range of 135-168 months. None of those adjustments even arguably applied to the facts of the money laundering conduct, only to the underlying fraud scheme, which carried a Level 20 before adjustments.
The PSI had compared 25 with 20, to decide that the money laundering level controlled the group, then added the 8 points from the four adjustments. Instead, the 8 points should have been added to the fraud count level of 20, for a 28. This level would then control the group, because it is higher than the unenhanced Level 25 on the money laundering. Result: a range of 78 to 97 months, some 4-1/2 to 6 years shorter.
Such mistakes are probably quite common and may be costing many defendants unnecessary time in prison. With the help of alert counsel and timely objections, these errors can be pointed out and corrected in most cases. If a defendant has been incorrectly sentenced under this rule, he may appeal, or, if it is too late, file a 2255 motion.
Plea agreements waiving appellate rights are not uncommon, and may be appropriate where the waiver is knowing and intelligent. As an added measure of protection, the Eleventh Circuit has recently refused to enforce such a provision where the judge taking the plea did not personally question the defendant ensure that the waiver was knowing and intelligent. United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993). The law in the Ninth Circuit is, unfortunately, not so enlightened. In a similar case, the Ninth Circuit recently upheld the waiver, and dismissed the appeal. United States v. DeSantiago-Martinez,—F.3d—, 1992 WL 684874 (9th Cir. 1994). Nevertheless, even defendants who have waived their right to appeal, may still find relief through 2255 motions to vacate sentence. United States v. Pruitt, 32 F.3d 431 (9th Cir. 1994) (waiver of appeal does not preclude 2255 motion).
The Guidelines suggest that a downward departure may be appropriate in a reverse sting where the government sells a controlled substance at substantially below market value (thus increasing the offense level by artificially permitting the defendant to purchase a greater amount of controlled substance). §2D1.1. (App. Note 17). Nevertheless, Courts have been reluctant to find sentencing entrapment on this, or any other, basis. The Ninth Circuit’s recent decision in United States v. Staufer, —F.3d—, 1994 WL 583998 (9th Cir. 1994) is therefore a welcome addition to this body of law. In that case, the defendant succumbed to pressure by an informant to sell twice as much LSD as he had offered to sell—a much larger quantity than he had ever sold before. The Court remanded for the sentencing court to consider a downward departure on this basis.
In fraud cases, the Guideline base offense level is determined by the loss suffered by the victims. In complex business frauds, the measure of that loss is often complicated by losses which are related to the fraud, but which were not caused directly by it.
United States v. Daddona, 34 F.3d 163 (3d Cir. 1994), for example, involved frauds concerning performance bonds. When contractors backed out of the project, the mortgagee took over, and spent $1.5 million to complete the venture. The district court found this to be the loss to the victims—but the Third Circuit reversed. Since the mortgagee was not listed as an obligee under the bonds, the Court found that its loss was not a direct result of the fraud—it would never have been entitled to collect on the bonds. The Court remanded for resentencing.
In United States v. Harper, 32 F.3d 1387 (9th Cir. 1994), the defendant purchased victims’ homes for fair market value, falsely telling them that they would be released from their mortgages (which exceeded the selling price). The defendant then rented out the homes, collecting $160,000 rent. The district court found the loss to be the value of the homes ($6 million) plus the rents collected. The Ninth Circuit reversed. The fraud did not cause the $6 million loss since the homeowners received fair market value. Their only loss was the rents the defendant’s fraud prevented them from receiving.
The right of criminal defendants to attorneys free from conflicts of interest is one of the prime guarantees of the Sixth Amendment. The Ninth Circuit has ruled that that guarantee is threatened when an attorney’s fee is paid by an unknown third party. Given the possibility that the fee could have been paid by an unindicted co-conspirator, the Court in Quintero v. United States, 33 F.3d 1133, (9th Cir. 1994) (per curiam), noted that the attorney’s advice not to accept a plea agreement could have been influenced by a conflict of interest—i.e., a desire to protect the individual paying her fee. The Court reversed the denial of the 2255 motion to vacate sentence and remanded for a hearing.
It is well known that an entrapment defense is available to defendants who, although unpredisposed to commit crimes, are nevertheless pressured into it by government agents or informants. What is less well known is that there are limits beyond which the government may not tread in setting up stings. Outrageous government conduct may result in the dismissal of an indictment—even where a defendant is predisposed to commit the crime. In United States v. Solorio,—F.3d—, 63 USLW 2190, 1994 WL 509047 (9th Cir. 1994), the Ninth Circuit found the fact that the government informant was paid on a contingent-fee basis to be so outrageous as to violate his Due Process rights, and dismissed the indictment .
On October 14, 1994, the Sentencing Commission published three amendments. One immediately implements the recent Crime Bill provision which authorizes district courts, to impose sentences below otherwise mandatory minimum sentences for certain non-violent first offenders. I discussed this important develop at length in my last issue.
The second affects the way base offense levels are calculated under the Career Offender guideline ( §4B1.1). Under that guideline, the higher the “Offense Statutory Maximum,” the higher the guideline offense level. The amendment (which is to be applied retroactively) makes it clear that “Offense Statutory Maximum” refers to the maximum sentence without any enhancement for prior offenses. The third amendment makes retroactive an earlier amendment which beginning November 1, 1991, created lower offense levels for crimes involving various precursor chemicals or laboratory equipment possessed or manufactured with intent to manufacture a controlled substance. Prisoners sentenced under earlier versions of these Guidelines should explore whether the now retroactive amendments might make a difference for them. If it would, they should consider filing motions for reduced sentences pursuant to 18 U.S.C. §3582(c)(2).
The recent Crime Bill offers a potential benefit to prisoners who are the primary caretakers of young children. The bill authorizes the Attorney General to select “eligible prisoners” to live in special, separate community correctional facilities with their children under seven years of age. “Eligible prisoners” are primary caretaker parents serving prison terms of less than seven years (or who have not yet been sentenced, but face a maximum term of less than seven years), and have no history of violent behavior or child abuse. Congress has authorized a mere $360,000 to be appropriated annually for the federal end of this program beginning in fiscal year 1996. There is, unfortunately, no guarantee that Congress will actually appropriate any money for this program.
We have learned from a reliable source that in response to the Crime Bill’s provision authorizing a one-year sentence reduction for inmates who complete an intensive drug treatment program, the BOP will be establishing such programs at all institutions that have residential drug treatment program. Prisoners who have a substance abuse problem will be screened, and if verified will be placed on a waiting list based on their release dates. The less time a prisoner has to serve, the more likely he or she will be placed into the program. The program is likely to begin in March.
Attorneys representing deportable aliens should be consider moving for downward departures where their clients’ status results in harsher punishment. For example, an alien’s deportable status may occasionally preclude him from a lower security prison, or from certain early release programs. See United States v. Smith, 27 F.2d 649 (D.C. Cir. 1994) (holding that such departures may be appropriate, and remanding to the district court for further consideration).
The Seventh Circuit is encouraging defendants with “relatively short sentences” either to apply for bail pending appeal or to move to have their appeals handled on an expedited basis. The Court noted that without such extraordinary measures, defendants with light sentences are likely to serve their terms of imprisonment before their appeals are decided. v. Jackson, 32 F.3d 1101 (7th Cir. 1994).
The Guidelines assign dramatically different base offense levels to the quantity of methamphetamine in a case, depending on whether the substance is “Methamphetamine,” “Methamphetamine (actual),” or “L-Methamphetamine”—with L-meth being treated the most leniently. While several courts have wrestled with the issues resulting from these distinctions, the most recent entry in the fray is perhaps the most thorough and well-reasoned. In United States v. Boguez 1994 WL 715048 (3d Cir., Dec. 28, 1994), The Third Circuit held that “Methamphetamine (actual)” refers to the amount of pure D-meth contained in a mixture (the Court noted that meth is virtually never completely pure). Most important, the Court held that the burden is on the government to prove that quantity. Where there is sufficient evidence to determine the quantity of pure D-meth, the guideline for “Methamphetamine (actual)” is to be used if it is greater than the entire weight of the mixture. The Court also found the district court’s failure to determine whether the mixture in question contained L- or D-meth to be plain error (correctable on appeal even though the issue was not raised at sentencing, and remanded for resentencing. The decision implies that if the government is unable to prove (either through chemical tests or circumstantial means) that the substance contains D-meth, that the defendant must be resentenced based on the more favorable L-meth guideline.
As everyone is aware by now, Congress recently amended 18 U.S.C. §3559 to provide mandatory life sentences for defendants convicted of serious violent felonies who have two prior convictions for serious violent felonies or one prior conviction for a serious violent felony and one prior conviction for a serious drug offense. Practitioners should be aware that the technical requirements of this law are rigorous and complex. For example, before the mandatory life term applies, the government must file an information pursuant to 21 U.S.C. §851(a). Additionally, crimes a defendant commits prior to being convicted of an earlier qualifying offense do not count towards the three strikes.


GWENDOLYN M. HORTH individually and in her official capacity as the Chairwoman of the Indiana Parole Board, Defendant.
For the reasons explained below, Defendant Gwendolyn M. Horth's motion to dismiss, Dkt. No. 19, is granted.
Ms. Horth seeks dismissal of the claims against her pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing the sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in favor of the plaintiff. See Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir. 2011). The Court will not accept legal conclusions or conclusory allegations as sufficient to state a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must plausibly state an entitlement to relief “to a degree that rises above the speculative level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012).
The following facts are not necessarily objectively true, but as required when reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts alleged in the Complaint, and draws all possible inferences in Mr. Holleman's favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.”).
Plaintiff Robert L. Holleman brought this action pursuant to 42 U.S.C. § 1983 against members of the Indiana Parole Board. He alleged that the Board violated his due process right to present documentary evidence at his parole hearing on November 12, 2017. Specifically, he alleges he brought a psychiatric report to the video hearing that he wished to have faxed to the Parole Board members for their consideration, but it was not provided to them and thus they did not consider it. He sought injunctive relief - namely, a new parole board hearing under certain conditions.
The Court screened Mr. Holleman's complaint on November 15, 2017 and allowed his due process claim for injunctive relief to proceed against Gwendolyn Horth in her official capacity as Chair of the Indiana Parole Board. Dkt. No. 4.
Ms. Horth argues that there is no due process right associated with parole hearings. Because there is no due process right, she argues that the action must be dismissed for failure to state a claim upon which relief can be granted. She further argues that the Court should decline supplemental jurisdiction over any state law claim, and, in any case, any state law claim is precluded by the Eleventh Amendment. Mr. Holleman did not file a response and the time to do so has passed.
A prisoner has no federal constitutional right to be released before the expiration of his sentence. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). Moreover, under Indiana statutes, “a prisoner has neither a liberty nor a property interest in his application for parole.” Huggins v. Isenbarger, 798 F.2d 203, 206 (7th Cir. 1986); Averhart v. Tutsie, 618 F.2d 479, 482 (7th Cir. 1980) (“we hold that Indiana state prisoners do not have a protectible interest in being paroled”); see also Hendrix v. Borkowski, 927 F.2d 607 (7th Cir. 1991) (“This court has concluded that the Indiana parole scheme creates neither a liberty nor property interest in an application for parole.”) (citing Huggins). When no recognized liberty or property interest has been taken, the confining authority “is free to use any procedures it chooses, or no procedures at all.” Montgomery v. Anderson, 262 F.3d 641, 644 (7th Cir. 2001).
Mr. Holleman's sole federal claim is that the Board violated his due process right to present documentary evidence at his parole hearing. Because he has no due process right associated with the parole hearing, his claim must be dismissed for failure to state a claim.
Mr. Holleman also stated that the Indiana Parole Board violated Indiana Code 11-13-3-3(i), which states that “[t]he hearing prescribed by this section may be conducted in an informal manner without regard to rules of evidence. In connection with the hearing, however: … (3) the person being considered may appear, speak in the person's own behalf, and present documentary evidence.” To the extent Mr. Holleman is alleging a state law claim in connection to the Indiana Parole Board's alleged violation of this statute, at this early stage of litigation, the Court declines to exercise supplemental jurisdiction having already dismissed all claims over which it has original jurisdiction. See Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009); 28 U.S.C. § 1367(c); see also Wright v. Associated Ins. Companies Inc., 29 F.3d 1244, 1251 (7th Cir. 1994) (“In the usual case in which all federal claims are dismissed before trial, the balance of these factors will point to declining to exercise jurisdiction over any remaining pendent state-law claims rather than resolving them on the merits.”).


The Supreme Court’s end-of-Term decision upholding Donald Trump’s Muslim travel ban prompted a blistering dissent from Justice Sotomayor and Justice Ginsberg equating the Court’s acceptance of the Muslim ban with its acquiescence in Korematsu v. United States to the World War II internment of over 120,000 adults and children of Japanese descent, about 70,000 of whom were American citizens. In response, the majority in the Muslim ban case -- Trump v. Hawaii -- insisted Korematsu “has nothing to do with this case.” Spurred perhaps by the attack from Justices Sotomayor and Ginsberg, the Trump majority further claimed to condemn and renounce Korematsu, an act many welcomed.
In truth, the Supreme Court’s treatment of the Muslim ban bears alarming parallels to its treatment of the Japanese internment. And an examination of Korematsu and of two other lesser-known Supreme Court cases dealing with the internment regime highlights the dangerous opening the Trump ruling creates for ever-more draconian measures driven by Trump’s open animus towards Muslims and others. Finally, given the reality of the Muslim ban ruling, the Supreme Court’s claimed disavowal of Korematsu rings hollow.
While many know of Korematsu, it was but one of three Supreme Court decisions on the Japanese internment regime the federal government created following the attack on Pearl Harbor in December 1941. Taken together, those cases reveal a Supreme Court unwilling to exercise its constitutional responsibility to confront naked discrimination. More significantly for contemporary purposes, they illustrate a mode of decisionmaking that highlights the dangers of the Muslim travel ban ruling.
to prescribe military areas in such places and of such extent as [they] may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.
One month later Congress enacted legislation making it a federal crime not to comply with an order issued under Executive Order 9066 and authorizing fines up to $5,000 and prison sentences up to one year.
Pursuant to Executive Order 9066, Lt. General J.L. DeWitt, the military commander with authority over the western United States, issued a series of ancestry-based restrictions, starting with curfews, then evacuation orders, and, ultimately, internment. These escalating restrictions were the subject of the three separate Supreme Court decisions.
The first – and pivotal – decision was Hirabayashi v. United States, issued in June 1943. Gordon Hirabayashi was an American-born citizen whose Japanese parents had immigrated to the United States and never afterwards returned to Japan. Gordon grew up in Seattle, attended public schools, and was a senior at the University of Washington when arrested in May 1942. He had never been to Japan and had no association with anyone living there.
Shortly before Hirabayashi’s arrest, DeWitt imposed overnight curfews covering Seattle and other areas that singled out people by ancestry and encompassed one group of American citizens: those of Japanese descent. Hirabayashi was convicted of violating the curfew order and separately of violating an order that required him to evacuate and report to a “Civil Control Station” in Seattle, which would lead to internment. He was sentenced to concurrent 3-month prison sentences.
In upholding Hirabayashi’s conviction, the Supreme Court started with the nearly invisible but momentous step of refusing to consider the constitutionality of the failure-to-evacuate conviction, reasoning that it need not do so because Hirabayashi had been sentenced to identical concurrent prison terms on each charge, meaning the Court could uphold the sentence so long as it could sustain the curfew charge alone. This allowed the Court to issue its foundational ruling on the Japanese internment regime scrutinizing a relatively benign overnight curfew while avoiding the much more dangerous acts of forced evacuation and internment.
Like every military control of the population of a dangerous zone in war time, it necessarily involves some infringement of individual liberty, just as does the police establishment of fire lines during a fire, or the confinement of people to their houses during an air raid alarm—neither of which could be thought to be an infringement of constitutional right.
With Hirabayashi, the die had been cast when the Supreme Court faced Fred Korematsu. Born in Oakland in 1919 to Japanese parents who had immigrated to the United States in 1905, Korematsu was arrested in San Leandro, California in May 1942 and charged with violating a DeWitt order requiring all persons of Japanese descent to evacuate the area that included San Leandro and to report to an “assembly center.” As had Hirabayashi, Korematsu challenged the constitutionality of the singling out of citizens of Japanese descent. In doing so, he argued the Court had to confront race-based detention in assessing the evacuation order, as it was undisputed the evacuation orders were part of a coordinated system of forcibly relocating those of Japanese descent to internment camps.
Having averted its attention away from race-based internment, the Supreme Court dispensed with the challenge to the evacuation order by invoking Hirabayashi. Though that case involved the far less onerous requirement an overnight curfew, the Court treated it as dispositive of Korematsu’s challenge to the constitutionality of orders requiring tens of thousands of American citizens to abandon their homes, communities, and livelihoods: “In light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did.” Three Justices strongly dissented sounding the alarm that the Court had gone far beyond Hirabayashi, but it was too late.
Finally, there is Ex Parte Endo, the case that actually addressed detention of an American citizen of Japanese descent. Born and raised in the United States, 23-year-old Mitsuye Endo was forcibly evacuated from Sacramento and detained at an internment camp in June 1942. The government conceded she was “a loyal and law-abiding citizen” but insisted it was free to detain her. In a decision issued the same day as Korematsu, the Supreme Court ordered Endo’s release.
As dramatic and surprising as this outcome might seem given Hirabayashi and Korematsu, Endo did not herald a willingness by the Supreme Court to confront the constitutionality of race-based detention. To the contrary, as in Korematsu, the Court refused to consider the constitutional issue, resorting instead to a tortured analysis to interpret Executive Order 9066 and the subsequent congressional enactment as not authorizing detention. More importantly still, by the time the Supreme Court issued Endo, the military itself had concluded detention was no longer needed and had publicly announced the day before the ruling that it would release Japanese-Americans. In ruling as it did in Endo, the Supreme Court did not halt internment but rather was operating in the comfortable confines of a course the military already had charted.
Flash forward nearly 75 years to five weeks ago, when the Supreme Court in Trump v. Hawaii upheld the ban on citizens of a group of predominantly Muslim countries from entering the United States, a ban instituted in conjunction with a long series of public statements by candidate and then President Trump declaring his intention to bar Muslims from this country. In sustaining the ban, the Court emphasized the extreme deference due the President with respect to the admission of foreign nationals to the United States; held that given such deference exclusion orders were subject only to the most minimal “rational basis” scrutiny if neutral on their face; and held that, notwithstanding Trump’s numerous public statements, the proclamation announcing the ban suggested an “independent justification” for the ban.
Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. . . .
The Court’s effort to distance itself from Korematsu suffers from two major flaws. First, while excluding people from entering the United States is a far cry from “concentration camps,” it is important to recall that the Supreme Court’s internment rulings started with the relatively benign issue of an overnight curfew, and it was the acceptance of that measure in Hirabayashi that the Court used to foreclose the more draconian measures at issue in Korematsu. One can readily envision the Court’s analysis in accepting the travel ban in Trump next being used to foreclose challenges to far more restrictive but “facially neutral” measures emanating Trump’s open animus towards Muslims or other groups.
Even more alarming is the Court’s insistence on characterizing the Muslim travel ban as involving a “facially neutral” policy, in supposed contrast to the race-based Japanese internment regime. Yet, in both instances the Supreme Court ignored an ugly reality staring it in the face. In the internment cases, the Court chose to disregard the reality that tens of thousands of American citizens of Japanese descent were confined to detention camps at the very time it refused to address the constitutionality of detention in those cases. And in Trump the Court chose to disregard the reality that the Muslim travel ban was the product of Trump’s hostility to Muslims, as evidenced by his many declarations that he intended to single out Muslims for discriminatory treatment and even a statement by one of his close advisors that Trump had directed him to craft a Muslim ban that would appear on the surface to be neutral so as to survive judicial scrutiny. To turn away from these realities is a dangerous abdication of the judiciary’s critical role in our constitutional scheme.
The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—has no place in law under the Constitution.
 Act of Congress of March 21, 1942, 56 Stat. 173, 18 U.S.C. § 97a.
 In a separate summary order issued the same day as Hirabayashi and simply citing it, the Court upheld a second curfew conviction in Yasui v. United States, 320 U.S. 115 (1943).
 L. Davies, “Ban on Japanese Lifted on Coast,” N.Y. Times, Dec. 18, 1944, at A1.


Although we affirm the district court's order in all respects, we stress that Argentina--like all foreign sovereigns--is entitled to a degree of grace and comity. Cf. Republic of Austria v. Altmann, 541 U.S. 677, 689 (2004). These considerations are of particular weight when it comes to a foreign sovereign’s diplomatic and military affairs. Accordingly, we urge the district court to closely consider Argentina’s sovereign interests in managing discovery, and to prioritize discovery of those documents that are unlikely to prove invasive of sovereign dignity.
Despite the adverse outcome for Argentina, the reasoning of the appellate court provides a useful introduction into the various immunity issues arising in the post-judgment discovery process. Argentina had raised objections based on the Foreign Sovereign Immunities Act as well the two Vienna conventions on diplomatic and consular immunity of 1961 and 1963 and on international law. The court addressed these claims from several perspectives, including information held by third parties affiliated with, or independent of, Argentina, military assets and inviolable documents. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.
Just as sovereign states enjoy immunity through the Foreign Sovereign Immunities Act, so do certain international organizations of which the United States is a member. Under the International Organizations Immunity Act, codified in 22 U.S.C. §288, immunity and privileges are provided to public international organizations in which the U.S. participates under a treaty or an Act of Congress. In addition to other exceptions to the FSIA, if a sovereign state expressly waives its immunity in contracts or other in another manner, a district court can establish jurisdiction. An international organization's waiver of immunity would also warrant jurisdiction in a U.S. court.
Relying upon this exception, the plaintiff in Nyambal v. International Monetary Fund filed suit against the IMF for assault and false imprisonment after an incident at the IMF's Bank-Fund Staff Credit Union. The plaintiff had been recently terminated after alleging corruption within the IMF.
In its decision of November 25, 2014, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court's granting of jurisdictional discovery. The granting of discovery against an immune defendant allowed the Court collateral review of the case. Despite the plaintiff’s request for the Court to revisit and narrow the scope of the IOIA immunity in Atkinson v. Inter-American Development Bank, the Court refused, citing Atkinson's explicit ruling that international organizations share the same immunity as foreign sovereigns, unless it is waived.
In its amended complaint, the plaintiff relied upon a subclause of the IMF's Articles of Agreement with the Credit Union, claiming that it purportedly waived the IMF's immunity. The Court begged to differ, noting that discovery in a case with an immune party can be called only when specific facts require verification; the IMF's discovery production of the Articles of Agreement demonstrated the explicit non-waiver of immunity -- and the inapplicability of the subclause.
The Court also rejected the plaintiff's alternative argument that the contract between the IMF and its Credit Union created a framework for the IMF to waive its immunity. Just as with the FSIA, an examination of IMF's immunity must not only demonstrate an explicit and express waiver, but the plaintiff must allege specific facts as to the waiver of immunity -- none of which were fulfilled in this case. -- Camila Ryder, Legal Assistant, Berliner Corcoran & Rowe LLP, Washington, DC.
TVPA, ATS and Comity: No Case in the U.S.
An attack by the Columbian air force on a village led to a complaint in California, pitting villagers against two U.S. companies, but the United States Court of Appeals for the Ninth Circuit in San Francisco rejected the case with an 88-page long set of opinions. In Mujica v. Airscan Inc., it examined claims under the Torture Victims Protection Act, the Alien Tort Statute and comity under Californian law. On November 12, 2014, the court published its decision and a dissenting opinion.
The TVPA claim fails under Mohamad v. Palestinian Authority because the defendants are corporations. The ATS claim fails under Kiobel v. Royal Dutch Petroleum Co.. Finally, the State Department's statement of interest sways the comity decision against proceedings in the United States. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.
Then corrupt, now clean: Damages?
According to the U.S. Court of Appeals for the Second Circuit, a sovereign entity cannot separate itself from its past government or leaders, even if the government committed illegal acts or violated international law.
In its decision on September 18, 2014, the Court affirmed the district court ruling in Republic of Iraq v. ABB AG that Iraq was equally at fault as the defendants in the alleged conspiracy to corrupt a United Nations humanitarian program created during the Hussein Regime.
Iraq had sought recovery from various business entities under the Racketeer Influenced and Corrupt Organizations Act, 18 USC §1961, the Foreign Corrupt Practices Act, 15 USC §78, and also state common law. The Court determined that RICO was inapplicable to extraterritorial actions, and that the FCPA does not provide private parties right of action.
Iraq's complaint stated that Hussein and Iraqi ministry officials orchestrated the exploitation of funds from the UN Oil-for-Food Program that were meant to provide humanitarian aid to the Iraqi people. It posited that certain corporations conspired with the Regime, while others were coerced by Hussein. Despite Iraq's argument that the Hussein-led government was illegitimate and that its actions were detrimental to the Iraqi people, the Court determined that the actions of a government are representative of its sovereign entity. Although the district court suggested the obvious distinctions between state and government, a sovereign cannot skirt responsibility for the acts committed by past, albeit corrupt, governmental leaders.
For a prior report on the case in German, see Kochinke, Erst korrupt, dann so sauber: Irak, Schadensersatz für vormals bestechlichen Staat?, German American Law Journal--US-Recht auf Deutsch, Sept. 19, 2014. -- Camila Ryder, Legal Assistant, Berliner Corcoran & Rowe LLP, Washington, DC.
Fresh off the United States Supreme Court decision in Republic of Argentina v. NML Capital, Ltd., see No Discovery Immunity Under FSIA, the United States Court of Appeals for the Second Circuit in New York City held on September 9, 2014 that a foreign sovereign state's assets around the world are not immune from discovery, even if a majority of the assets in question are considered outside of the commercial activity exception to the Foreign Sovereign Immunities Act, Export-Import Bank of the Republic of China v. Grenada.
In the Southern District Court of New York, Export-Import Bank had sought a $21 million judgment in defaulted loans made to Grenada, based on Grenada's waiver of immunity in loan documents between the two entities. Any property of Grenada used for commercial activity within the U.S. is no longer immune from attachment, according to FSIA. Yet even a sovereign state's waiver of immunity does not always result in a favorable judgment for the other party.
The Second Circuit affirmed the District Court's decision that the two sets of funds in question were immune. Following Argentina v. NML, though, the FSIA does not afford Grenada immunity from discovery of its assets. The Court questions a subset of funds that passed through the International Air Transport Association, which has operations in the United States. Export-Import Bank can now further its efforts in the district court to determine whether any Grenadian property face attachment. If funds are used at any point within the U.S., Export-Import Bank could possibly execute a judgment in their favor.
While both Argentina and Grenada waived immunity in their respective contracts, Argentina took legislative action to avoid payment to particular creditors, while Grenada has defaulted on payments to many of their bondholders. The Second Circuit's ruling allows the District Court jurisdiction to search all foreign assets of Grenada -- an act that could affect foreign relations with the United States. While the Supreme Court's opinion in Argentina suggested that possibility, Justice Antonin Scalia pointed to other foreign statutes that could hinder a lower court's granting of discovery. -- Camila Ryder, Legal Assistant, Berliner Corcoran & Rowe LLP, Washington, DC.
In Art Law: S.D.N.Y on Picasso’s Madame Soler and Bavaria's Sovereign Immunity -- Update, the German Dispute Resolution Journal explained and discussed, in English, a June 27, 2014 ruling in the United States District Court for the Southern District of New York. The July 28, 2014 contribution by Michael Schulz of Frankfurt University provides links and analysis, in particular of the immunity of the Free State of Bavaria under the Foreign Sovereign Immunities Act. The facts in Schoeps v. Freistaat Bayern are distinguishable from arts cases involving expropriation because the defendant state purchased the art at issue and did not expropriate it. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.
Foreign nations enjoy some immunities under the Foreign Sovereign Immunities Act but there are limitations. On June 16, 2014, the Supreme Court of the United States in Washington clarified that discovery immunity for global assets of a foreign state does not exist in the context of the execution of a judgment against the state: Republic of Argentina v. NML Capital, Ltd..
The case involved bonds which by their nature are contracts and, in this case, included immunity waivers which permitted the bondholder to litigate. While the FSIA provides immunity of a foreign state's assets in the United States, discovery may be had in American courts to identify assets held globally into which execution may be permitted under foreign rules, the court held.
The issue for lawyers advising foreign sovereign immunities in contract matters, then, becomes one of drafting the jurisdictional, choice of law as well a mediation and arbitration provisions to limit discovery in ways that are compatible with the new decision. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.
Three hot topics of international private law in relation to U.S. litigation against a foreign government lead to a useful decision in the matter GDG Acquisitions LLC v. Government of Belize decided by the United States Court of Appeals for the Eleventh Circuit on April 22, 2014.
The dispute involves lease payments owed by the defendant government under an agreement that provided for litigation in Florida. The defendant claimed immunity but lost because of a waiver in the agreement. Its motion for dismissal on forum non convenience grounds succeeded in the district court, but failed on appeal because the lower court had not considered the precedent set by the U.S. Supreme Court in Atlantic Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Texas on December 3, 2013: If the parties agree on a forum, their decision becomes an important factor in balancing the competing interests.
The decision mostly relies on a probably influential discussion by the court of the principle of international comity. The court explores both prospective international comity, and retrospective international comity which applies to past conduct, for example a decision rendered by a foreign court submitted for enforcement to a court in the United States. The applicable principle in this case is prospective international comity, which is rare.
Examples are the German foundation cases involving mass reparations, as in Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1238 (11th Cir. 2004), and the Indian Bhopal mass disaster cases. In both scenarios, the foreign nations had established overwhelming interests in the resolution of these matters under their legal systems and had taken appropriate action to implement such policies.
The mere interest of a foreign government to have simple lease payments adjudicated in its own courts do not rise to a similar level, the Atlanta court determined. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.
In its April 11, 2014 dismissal of a complaint against an embassy, the United States District Court for the District of Columbia reiterates the requirement of strict adherence to the service of process rules for service on an embassy under section 1608(a) of the Foreign Sovereign Immunities Act. The matter Barot v. Embassy of Zambia is an instructive example of the application of the law and the futility of almost correct attempts made in good faith to effectuate service. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.
An arbitration clause in a bilateral investment treaty is to be read, according to the Supreme Court of the United States in the matter BG Group plc v. Republic of Argentina, decided on March 5, 2014, like a contract for purposes of determining that a dispute belongs to the arbitral tribunal. Argentina had challenged arbitral jurisdiction under the treaty between the United States and herself on the basis that the arbitration clause required a domestic proceeding before the courts in that country.
The arbitration tribunal agreed that the condition existed, but also that Argentina had precluded an meaningful review by changing its laws. The Supreme Court held that this determination was properly within the domain of the tribunal as a threshold matter.
The tribunal's conclusion that Argentina's actions made it absurd and unreasonable to read [the treaty] to require an investor in BG Group's position to bring its grievance in a domestic court deserves deference, the court reasoned in its 45-page ruling. Its treatment of treaties builds on that developed and continually strenghthened in recent years for domestic contracts. -- Clemens Kochinke, partner, Berliner, Corcoran & Rowe LLP, Washington, DC.