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CIVIL PRACTICE Abortion providers can’t sue health care officials Abortion providers lack standing to sue public health care officials to challenge an Oklahoma statute regarding injuries resulting from minors’ abortions, the 10th U.S. Circuit Court of Appeals held on July 20. Nova Health Systems v. Gandy, No. 02-5094. An Oklahoma statute makes abortion providers liable for subsequent medical costs that may be required because of an abortion performed on a minor without parental consent or knowledge. Nova Health Services, an abortion provider, brought an action for injunctive and declaratory relief from the statute against various officials who oversee public health care facilities in the state. The officials had not attempted to recover any costs from Nova under the challenged statute. An Oklahoma federal court held that there was a justiciable case or controversy and entered summary judgment against the defendants, finding that the statute imposed an unconstitutional burden on a woman’s ability to have an abortion and was excessively vague. The 10th Circuit reversed, holding Nova to be lacking in standing to bring the suit because it had not shown that the injury it may have suffered due to the challenged law was caused by these particular defendants or that it would be redressed by a judgment against them. The court said a party “may not attack a tort statute in federal court simply by naming as a defendant anyone who might someday have a cause of action under the challenged law,” therefore it is not constitutionally permissible for the federal courts to decide the issues. Full text of the decision CRIMINAL PRACTICE Courts lack jurisdiction over Pollard’s clemency Federal courts lack jurisdiction to order the production of classified documents to aid Jonathan Pollard, who pleaded guilty to spying against the United States on behalf of Israel, in his attempt to obtain clemency from the president, the U.S. Circuit Court for the District of Columbia held on July 22. U.S. v. Pollard, No. 01-3103. In 1986, Jonathan Pollard, a U.S. Navy employee, admitted that the government of Israel had paid him to spy on the United States. Although, in a plea agreement, prosecutors agreed not to seek a life sentence, a district court, nevertheless, sentenced him to life in prison. Pollard sought to withdraw his guilty plea under 28 U.S.C. 2255, arguing ineffective assistance of counsel and violations by prosecutors of the terms of the plea agreement through their effectively seeking life imprisonment at sentencing. Pollard’s two motions were rejected on various grounds. In addition, Pollard sought a court order giving his attorney access to classified pre-sentencing documents. A district court denied Pollard’s motion, holding, inter alia, that his attorney did not have a “need to know” under Justice Department regulations governing classified materials because, for purposes of clemency, the president already had access to the materials. Vacating the district court’s denial of Pollard’s classified-documents motion, the D.C. Circuit held that, instead, the motion must be dismissed because the federal courts had no jurisdiction over Pollard’s clemency proceeding. The court said, “Clemency, over which neither Congress nor the courts share any constitutional authority, is more properly the exclusive province of the Executive. As stated by Judge Learned Hand, “[i]t is a matter of grace, over which courts have no review.” Full text of the decision Border patrol stop needs just reasonable suspicion Border patrol officers need only have a reasonable suspicion to conduct a roving stop of a driver suspected of illegal immigrant smuggling, even though the driver’s observable conduct was entirely legal, the 2d U.S. Circuit Court of Appeals ruled on July 19. United States v. Singh, No. 04-3324. Border Patrol agents near the Canadian border in New York, were conducting a roving patrol one evening, when they saw a black Lincoln town car with only one occupant driving slowly tapping its brake lights three times-a signal that officers had seen being used to alert illegal immigrants that a car was waiting to pick them up. The officers also knew that the car was registered to a man named “Singh” from Long Island, N.Y. Shortly after officers received word that a motion sensor detected a border crossing nearby, the car drove in the direction of the crossing. When it returned, agents stopped the car and found four Pakistani nationals without valid immigration papers. The driver, Avtar Singh, was charged with transporting illegal aliens. Singh filed a motion to suppress, which was denied, and was convicted. The 2d Circuit affirmed, finding the roving border stop to be constitutionally sound. Even though Singh’s observable conduct was entirely legal, it also served to form a reasonable suspicion, based on the officers’ past experience and totality of the circumstances, that Singh, as the driver of the car, was there to transport illegal aliens to New York City. Full text of the decision LABOR LAW Return to work rule can’t be stricter than FMLA A collective bargaining unit’s return-to-work regulations cannot be more stringent than those mandated by the Family and Medical Leave Act (FMLA), the 7th U.S. Circuit Court of Appeals held on July 19. Harrell v. U.S. Postal Service, No. 03-4204. Rodney Harrell, an employee of the U.S. Postal Service and member of a collective bargaining unit, fell ill, left work, and submitted a certificate from his doctor. Subsequently, with a doctor’s note certifying as to his fitness, he tried to return but was told he had first to submit more documents from his physician or be examined by the postal service contract physician. He refused, and was fired. Harrell sued, alleging that the postal service had violated the FMLA, 29 U.S.C. 2601, et seq. An Illinois federal court granted summary judgment to the postal service. The 7th Circuit reversed in part and affirmed in part, holding that the postal service may not rely on its own return-to-work regulations, as incorporated into a valid collective bargaining agreement, to impose requirements on employees that are more burdensome than the return-to-work provisions of the FMLA, i.e., a simple statement from the employee’s health care provider that that he is able to work, which need not specify diagnosis, prognosis, treatment and medication. The FMLA, however, does not forbid a “more stringent fit-for-duty examination once the employee has returned from FMLA leave, so long as any such examination is job-related and consistent with business necessity.” Full text of the decision LEGAL PROFESSION Out-of-state attorney’s bankruptcy work is OK A Michigan attorney did not engage in unauthorized practice of law by completing a debt reaffirmation form, providing a debtor with a notice, or communicating on his firm letterhead with a debtor in a Massachusetts bankruptcy proceeding, the Massachusetts Supreme Judicial Court held on July 22. In re Chimko, No. SJC-3103. Darryl Chimko was an attorney representing Household Finance, a creditor of Antonio Lucas, a debtor in a Chapter 7 bankruptcy proceeding in a Massachusetts federal court. Chimko was licensed in Michigan, but not in Massachusetts. During the course of Lucas’ bankruptcy, Chimko contacted Lucas and the court using his firm letterhead, which identified him as an attorney, and communicated with Lucas regarding the reaffirmation of the debt on Lucas’ residence. A bankruptcy judge sanctioned Chimko for misrepresentation and unauthorized practice of law. A Massachusetts federal court affirmed, but certified the question of unauthorized practice of law to the Massachusetts high court. The Massachusetts Supreme Judicial Court held that Chimko had not engaged in the unauthorized practice of law. The court said that Chimko’s actions did “not involve either rendering legal advice to or soliciting Massachusetts clients, or even engaging in a legal contest in a Massachusetts forum on behalf of an out-of-state client. Rather, these services involve ensuring the timely filing, processing, and tracking of routine forms with the Bankruptcy Court in Massachusetts, on a temporary basis, related to work for a client in another jurisdiction where the attorney was licensed to practice law.” Full text of the decision Attorney-client privilege doesn’t affect employees In an investigation where Time Warner Inc. had waived its attorney-client privilege, its employees’ conversations with the company’s outside counsel were not privileged, the 4th U.S. Circuit Court of Appeals held on July 18. In re Grand Jury Subpoena, nos. 04-4410; 04-4411; 04-4673. Prior to an investigation by the Securities and Exchange Commission, Time Warner Inc., known at the time as AOL Time Warner, retained outside counsel to investigate the company’s business dealings with PurchasePro Inc. During the course of this investigation, outside counsel interviewed Time Warner employees. Afterward, Time Warner in-house counsel cautioned one of the employees that the lawyers represented the company, not the employees, but that the lawyers could also represent the employees provided there was not a conflict. When a grand jury subpoenaed documents related to the conversations, Time Warner waived its privilege and agreed to produce the documents, but the employees moved to quash the subpoenas, arguing that they were privileged. A district court denied two employees’ motions, holding that they had failed to show they were clients of the attorneys. Affirming, the 4th Circuit agreed that the privilege rested with the company and didn’t cover the employees. Noting what the lawyers told the employees about their relationship, the court said, “As the district court noted, ‘we can represent you’ is distinct from ‘we do represent you.’ If there was any evidence that the investigating attorneys had said, ‘we do represent you,’ then the outcome of this appeal might be different.” Full text of the decision TORTS Air carrier’s poor safety rating isn’t defamatory Publication of an air carrier’s unfavorable safety rating does not constitute defamation, the 8th U.S. Circuit Court of Appeals ruled on July 21. Aviation Charter Inc. v. Aviation Research Group/US, No. 04-3040. Aviation Research Group/US (ARGUS) publishes safety ratings of air charter service providers based on research collected from public databases. ARGUS assigns carriers one of four ratings: Platinum, Gold, Silver and Does Not Qualify (DNQ), which is the lowest rating. ARGUS assigned the DNQ rating to Aviation Charter Inc. in 2001. After the crash of an Aviation Charter plane that killed Senator Paul Wellstone and seven others, the Minneapolis Star Tribune published an article referring to ARGUS’ poor safety report on Aviation Charter. The carrier brought a defamation suit against ARGUS. A Minnesota federal court granted ARGUS’ motion for summary judgment. The 8th Circuit affirmed, finding that the comparative rating made by ARGUS was not “sufficiently factual to be susceptible of being proved true or false.” The court asserted that it was a subjective interpretation of data that led to a subjective conclusion about aviation safety. While ARGUS relied on objectively verifiable data from public databases, its analysts subjectively interpreted the data based on their own methodology. Full text of the decision No recovery under FELA for third-party peril Under the federal Employers’ Liability Act (FELA), a railway worker cannot recover damages for emotional damages suffered while witnessing someone else be killed by a train, the 6th U.S. Circuit Court of Appeals ruled on July 19 in a matter of first impression. Lukowski v. CSX Transportation Inc., No. 04-4141. James Lukowski, a train conductor, and Lester Blauvelt, an engineer, were working on a CSX train when it crashed into a pickup truck that tried to cross an unguarded crossing. The driver was killed, and both CSX employees saw the man’s body. Tests performed later revealed that the driver had a blood alcohol level of 0.095 (the legal limit at the time was 0.1). After the accident, neither worker was able to return to work because of the trauma he had suffered. The men sued, under FELA, the estate of the driver of the pickup, John D. Reese, claiming that his negligence caused their emotional injuries, as well as CSX for its failure to maintain vegetation and trees along the right-of-way, which obstructed their view of the crossing until it was too late to stop the train. The district court granted CSX’s summary judgment motion, finding that the plaintiffs’ claims were not covered by FELA. The 6th Circuit affirmed. A plaintiff who is within the “zone of danger” cannot recover damages under FELA for emotional distress suffered as a result of witnessing a third-party’s peril. To recover emotional distress damages under FELA, the plaintiff must demonstrate that his emotional injury results from a fear for his own physical safety. Full text of the decision

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