Wednesday, December 30, 2020

U.S. Army National Guard Reservist Wins Case of Employment Discrimination Against Jeweler Harry Winston


Department of Justice
Office of Public Affairs
Wednesday, December 30, 2020
Justice Department Secures Relief for U.S. Army National Guard Reservist on Employment Discrimination Claim Against Luxury Jeweler Harry Winston
The Justice Department and the U.S. Attorney’s Office for the Southern District of Texas announced today that they resolved a claim that luxury jeweler Harry Winston Inc. violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) by refusing to offer full-time employment to U.S. Army National Guard Reservist John A. Walker because of his military service obligations.
“Discrimination against members of the National Guard or Reserve because of their service to our country is intolerable, violates the Uniformed Services Employment and Reemployment Rights Act, and the Department of Justice will not stand for it,” said Assistant Attorney General Eric S. Dreiband of the Civil Rights Division. “We honor all service members for their service to our nation, and this settlement signals the Justice Department’s ongoing commitment in protecting the rights of our men and women in uniform.”
“Our soldiers, sailors, airmen, and Marines fight for us. Fighting for their legal rights is the least we can do,” said U.S. Attorney Ryan K. Patrick for the Southern District of Texas. “All service members, including members of the National Guard and Reserve, need to know that employers cannot discriminate against them based on their military service obligations. This settlement sends a strong message to employers that the U.S. Attorney’s Office will protect the rights of our service members.”
In December 2017, reservist Walker applied for a job with Harry Winston, Inc., which denied his application. Walker alleged that Harry Winston, Inc. refused to hire him because of his military service obligations. Under the terms of the settlement, Harry Winston, Inc. has agreed to fully compensate Walker for his back-pay and non-wage damages.
Congress enacted USERRA to encourage non-career service in the uniformed services by reducing employment disadvantages; to minimize the disruption to the lives of persons performing military service, their employers and others by providing for the prompt reemployment of such persons upon their completion of such service; and to prohibit discrimination against persons because of their service in the uniformed services or if they pursue a claim under USERRA.
The U.S. Department of Labor (DOL) referred this matter following an investigation by their Veterans’ Employment and Training ServiceTraining Service. The U.S. Attorney’s Office for the Southern District of Texas and the Employment Litigation Section of the Department of Justice’s Civil Rights Division handled the case and work collaboratively with the DOL to protect the jobs and benefits of military members.
This investigation was led by Assistant U.S. Attorneys Keith Edward Wyatt and Annalisa Cravens and Paralegal Specialist Raymond Babauta of the Southern District of Texas, along with Assistant Director Andrew Braniff of the Department of Justice’s Servicemembers and Veterans Initiative and Senior Trial Attorney Alicia Johnson of the Civil Rights Division’s Employment Litigation Section.
Servicemembers Initiative
Civil Rights
Civil Rights Division
Civil Rights - Employment Litigation Section
USAO - Texas, Southern
Press Release Number:

Sunday, December 27, 2020

COVID-19 Vaccine Distribution Chain Threatened By Cyber Attackers


Cyber Attackers Threaten COVID-19 Vaccine Distribution Chain

Jason G. Weiss, Peter Baldwin, Faegre Drinker, December 8, 2020

As COVID-19 vaccine approvals and eventual distribution kicks into high gear, there has been a corresponding – and not particularly surprising – increase in cyber threat activity targeting both vaccine producers and other companies involved in the vaccine distribution chain. Most notably, “cold chain” companies responsible for safely storing and transporting the vaccines have been targeted. The problem has become so severe that both the Federal Bureau of Investigation (FBI) and the Department ofHomeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) recently issued a joint security alert on December 3, 2020, highlighting the risk to the coronavirus vaccine distribution chain.

The alert from the FBI and CISA follows on the heels of an international security alert issued by Interpol warning that there may be an onslaught of all types of criminal activity linked to the COVID-19 vaccine by organized crime. On December 2, 2020, Interpol issued an “Orange Notice” outlining   potential criminal activity against COVID-19 cold chain transporters and highlighting the risks associated with online fraud linked to “advertising, selling and administering fake vaccines.”  Interpol warned that, as COVID-19 vaccines get closer to approval and distribution, it will be critical to “ensure the safety of the supply chain and identifying illicit websites and fake products.” Interpol also advised member nations to warn the public about cyber threats associated with websites purporting to offer information about vaccines. Notably, Interpol found that, after reviewing over 3,000 websites of online pharmacies suspected of selling illicit medicines and medical devices, “around 1,700 contained cyber threats, especially phishing and spamming malware.”

The threat alert released by the FBI and CISA   included information provided by the IBM Security X-Force threat intelligence task force, which is dedicated to monitoring COVID-19 cyber threats. For example, the IBM intelligence report highlighted a recent global phishing campaign targeting organizations associated with the COVID-19 vaccine distribution chain, which targeted many leading COVID-19 vaccine producers. As part of this campaign, cyber threat actors sent spear-phishing emails directly to executives involved in sales, procurement, IT, and finance positions at pharmaceutical companies involved in developing vaccines. In addition, the cyber threat actors sent phishing emails in “Requests for Quotations” to COVID-19 vaccine executives throughout the world. The emails contained malicious HTML attachments in order to conduct “credential harvesting” attacks and steal login and passwords for many of the victim’s accounts.

The IBM security intelligence report recommends the following defenses to help combat cyber threats against the COVID-19 distribution chain:

·         Create and test incident response plans

·         Share and ingest threat intelligence

·         Assess your third party ecosystem and assess potential risks

·         Apply a zero-trust approach to your security strategy

·         Use multifactor authentication (MFA) across your organization

·         Conduct regular email security educational training

·         Use Endpoint Protection and Response

Given the proliferation of cyber-attacks against vaccine producers and the COVID-19 vaccine distribution chain, organizations involved in vaccine development or distribution should carefully review and study the recent threat alert from the FBI and CISA. Finally, in these turbulent times, it is critical that everyone remain vigilant of the threats surrounding the entire COVID-19 vaccine distribution chain.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.

Cybersecurity and Critical Infrastructure

Two Federal Courts Uphold Coronavirus-Related Restrictions on Abortion Clinics


Federal Courts Uphold Texas, Arkansas Abortion Orders AmidCOVID-19

Two federal circuit courts this week upheld coronavirus-related restrictions on abortion clinics in Texas and Arkansas, offering some legal victories in the larger national debate over whether abortion is an essential medical procedure.

On Wednesday, a three-judge panel of the U.S. Eighth Circuit Court of Appeals ruled 2-1 that Federal District Judge Kristine Baker in Little Rock, Arkansas, erred in granting a preliminary injunction against Republican Gov. Asa Hutchinson’s order prohibiting surgical abortions during the pandemic. The Arkansas victory will be of short effect, however, as the state prepares to open up for elective medical procedures next week.

Meanwhile, a U.S. Fifth Circuit panel, in a 2-1 ruling Monday, allows Texas to restrict medication abortions during the crisis. A week ago, the Fifth Circuit ruled that Texas could prohibit surgical abortions because of public health concerns during the COVID-19 pandemic, turning back a lower court ruling, while delaying a ruling on medication abortions.

In Arkansas, questions quickly swirled Wednesday as Gov. Hutchinson, feeling pressure from hospitals and medical practices trying to avoid layoffs, announced the state would seek to open up for elective medical procedures as early as Monday, provided certain public health requirements are met. One of those requirements is that medical patients be tested for coronavirus 48 hours in advance of being treated for an elective procedure.

Jerry Cox, president of Little Rock-based Family Council, says although the federal court ruling victory will only be effective until Monday, the governor’s order on the Little Rock Family Planning Clinic, the state’s only surgical abortion provider, and the subsequent ruling plowed some important ground for future cases. Planned Parenthood had joined with the clinic to challenge the governor’s order.

“The ruling by the Eighth Circuit yesterday was a huge pro-life victory,” Cox said, “and here’s why: It allowed the governor’s cease and desist order to stand, which means the clinic had to stop doing surgical abortions; and two, they severely slapped the hand of a federal judge here in Little Rock named Kristine Baker, and she has been very prone to rule in a pro-choice direction. … I think the court is sending a very strong message to her that she is out of bounds.” Baker was an Obama appointee.

Cox also mentioned that a group of pro-life legislators visited the Little Rock abortion clinic after the governor’s order and prayed as a group outside, which he said was unprecedented and drew significant attention to the clinic. “The exposing of evil that has been done has been a huge benefit,” Cox said. “The clinic may get back to business as usual, but they have lost big-time in the court of public opinion.”

In Texas, meanwhile, the Fifth Circuit’s ruling vindicates pro-life GOP Gov. Greg Abbott’s contention that abortions, whether medication abortions or surgical abortions, don’t rise to the level of a medically necessary procedure.

Trump appointee Kyle Duncan cast the deciding vote in the 2-1 decision, something abortion proponents were quick to note.

The court agreed with the state that a shortage of personal protective equipment (PPE) was a valid reason to disallow abortion procedures, even those using medication methods. The judges opined that abortion proponents had failed to show that PPE wouldn’t be necessary to at least examine women seeking medication abortions.

Conservative group Texas Values reports that because of Abbott’s executive order, “an estimated 1,800 babies’ lives at least have been saved from abortion to date. On average, abortionists perform 144 abortions per day in Texas.”

Photo: Rex Wholster/Alamy Stock Photo

Betsy Combier,
Editor, ADVOCATZ Blog
Editor, NYC Rubber Room Reporter
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Wednesday, November 18, 2020

Alexandria Ocasio-Cortez Wants To Start an "Enemies List" of Trump Supporters To Punish Them


President Donald Trump participates in a Veterans Day wreath-laying ceremony at the Tomb of the Unknown Soldier
at Arlington National Cemetery in Arlington, Va., Wednesday, Nov. 11, 2020. (AP Photo/Patrick Semansky)

FOR IMMEDIATE RELEASE:                                       CONTACT: Will Hadden

November 18, 2020, Shirley & McVicker Public Affairs
CFTR Denounces AOC’s Proposed Un-American “Enemies List” of Trump Supporters, Threatens Litigation
Democrats Open Themselves to Lawsuits if Innocent Americans Lose Jobs for Exercising their First Amendment Rights
Washington, D.C. – Citizens for the Republic, the political action committee founded by President Ronald Reagan, harshly denounced Rep. Alexandria Ocasio-Cortez for recently proposing the creation of a list of “Trump sycophants” to show their “complicity” with Trump should he leave office. Ocasio-Cortez’s alarming proposal comes at the same time that a group of Democratic staffers launched a website called the “Trump Accountability Project,” to blacklist former Trump staffers looking to find jobs next year.
“What Congresswoman Ocasio-Cortez and the operatives behind the Trump Accountability Project are proposing is, at its core, antithetical to every value enshrined in our First Amendment. This is America, and in America we do not penalize citizens for how they choose to vote or who they choose to work for in government. We do not take revenge on political adversaries and we certainly do not ‘make lists.’ Such behavior is no better than the targeted political violence carried out by common despots in places like Cuba and Venezuela,” CFTR said in a statement today.
If any Americans who make it onto this list are refused a job opportunity or lose their current jobs as a result, Congresswoman Ocasio-Cortez and her vengeful cohorts may face legal action from those same Americans. Their blind quest for retribution resulting in the loss of business or other similar opportunities may constitute legally as tortious interference with business opportunities and expectations, depending on the facts.
“If the Congresswoman and those with her attitude insist on continuing this dangerous course, they should remember that innocent people will be hurt emotionally and financially. They should know their actions have consequences. If they want to play with fire, they can expect to be called to account in court by those of us who still believe in freedom of choice.”
To reach a spokesperson from Citizens for the Republic, please contact Will Hadden at or call 703.739.5920

Dems' 'accountability project' aimed at 'canceling' Trump loyalists shuts down
- The Washington Times - Thursday, November 12, 2020

The Trump Accountability Project (TAP) was short-lived in its plan to blacklist Trump loyalists.

It announced Thursday on its sparse website that “the project will no longer be active.”

Conservatives ridiculed backers of presumptive President-elect Joseph R. Biden’s for launching a campaign to cancel people who worked for President Trump by denying them post-government employment. On social media, Trump supporters invoked the names of Stalin, Mao and Pol Pot, men who brutally suppressed opponents.

Neither the website nor its Twitter page disclosed its organizers. But former Obama and Clinton officials urged liberals to join.

Hari Sevugan, former spokesman for the Barack Obama campaign, was one of those.

Sunday, November 15, 2020

Manhattan's Mental Health Court Doesn't Help Everyone Who Needs It

Luis Reyes is pictured on October 30, 2020 in Manhattan, New York. 
(Barry Williams/for New York Daily News)


"It’s a cruel world, and I’m better off dead:' Manhattan Mental Health Court offers lifeline to those with serious mental illness — but they have to get in

By NY Daily News, November 14, 2020

Luis Reyes was 16 when he first tried to end his life.

It was 2002 and Reyes was doing time at Rikers Island for entering an apartment with friends and swiping several items. The arrest had come just a few months after an unrelated event, where he’d been held at gunpoint near his Washington Heights home because a group of men mistook him for an accomplice in a failed drug deal.

The holdup flipped a switch in Reyes.

Flashbacks triggered panic attacks but the nightmares were worse, he said, the men swelling to the size of giants in his dreams. He began cutting himself and would space out in school. His mother sent him to a therapist, but the paranoia persisted. He turned to cocaine to keep himself from remembering.

The charges he faced for the theft — second-degree burglary, a violent felony — put him in jail, where his thoughts took a dark turn.

“I tried to hang [myself],” Reyes, now 35, told the Daily News during an Aug. 26 call from Rikers, where he landed again 19 years after that first suicide attempt. "Many times I thought there was something wrong with me, so I’d try to take my life. [People would say,] ‘Oh, he’s bipolar, oh he has schizophrenia.’ It was overwhelming.

My bad thoughts kept coming and coming…and I didn’t know if I was a bad guy or a good guy. What I felt was it’s a cruel world, and I’m better off dead.”

Reyes — who spoke to The News several times while at Rikers in recent months and once from Bellevue Hospital, where he had been treated for epileptic seizures he suffered in jail — was behind bars until mid-October for a technical parole violation in a separate case. 

His public defender, Thalia Karny, of New York County Defender Services, had repeatedly asked the Manhattan District Attorney’s Office to consider Reyes for mental health court — a specialized court that connects people in need of emotional, psychological and pharmaceutical support to the counselors and physicians who can treat them and guide them toward possible alternatives to incarceration.

Karny provided about 800 pages of Reyes’ medical records going back more than a decade detailing suicide attempts, depression, his substance abuse disorder, schizophrenia, and a traumatic brain injury from a car accident when he was 16, around the time his seizures started.

But the lead assistant district attorney on the case and his bureau chief denied multiple requests to screen Reyes — a missed opportunity for him to get the care he desperately needs, Karny said.

Only a handful of cases ever make it to Manhattan Mental Health Court, according to data provided by the district attorney — and that was before COVID-19 ground the city to a halt. On Friday, after tentatively opening some courtrooms for trials and hearings over the summer, the Office of Court Administration once again shut down most in-person proceedings, citing a recent surge in the virus.

Even pre-COVID, the mental health court moved at a plodding pace. In 2018, the office received 74 requests for referral. Of those, prosecutors consented to refer 43 cases — about 58% — and declined to refer the rest. In 2019, the office got 136 requests. They consented to 46 cases — about 34% — and declined to refer the remaining 90.

The office referred three cases this year before the court shut down in mid-March because of the coronavirus pandemic. Twelve cases were not referred to mental health court, though two of those were referred to another diversion court. Thirty-five are pending.

A New York County Defender Services report of 41 cases involving 29 clients from January 2016 to Sept. 20 found the average wait time from arraignment to get into mental health court is 286 days, with one taking as long as 743. Once in court, the cases tend to last between 18 to 24 months.

The specialized services offered in mental health court — a collective effort between the DA’s Special Litigation Bureau, the judge, lawyers, and services provided through the organization CASES — should be afforded to even more people, some public defenders say, without as many barriers to entry.

“I asked them a bazillion times why they didn’t offer [Reyes] a proffer,” said Karny, referring to a request to screen him. “I would tell the judge, I’m not giving up on mental health court. But guess what? I have to give up because it’s up to [the DA]. And that’s a huge thing. It’s up to prosecutors and it shouldn’t be up to them.”

Manhattan Mental Health Court — one of five mental health courts in the city — started in 2011, according to New York County Defender Services mental health attorney specialist Katherine Bajuk, a champion of this diversion court and the services it provides.

Bajuk said part of the problem is some lawyers don’t know to refer their cases to mental health court — and if they do, they don’t always follow the specific procedure required for consideration. Some prosecutors, she said, also don’t flag cases for the DA’s special litigation unit.

“The more experienced [prosecutors], they know [what to do]. I’ve had DAs come into mental health court with me on client cases…and they advocate just as hard as we do,” she said. "We need more people like that getting assigned to these cases from go.”

To be a candidate for mental health court, a person has to be 18, have a serious mental illness, must be charged with a felony — including violent felonies — and must be capable of entering a voluntary plea and gets the blessing from the DA’s special litigation unit.

Reyes has picked up several other charges over the years, including a second-degree burglary charge in 2013 and a second-degree burglary charge in 2019. Both are considered violent felonies even though Reyes never had a weapon and never physically harmed anyone.

Karny says mental health court is no longer an option for Reyes — but had he gotten in, he likely would have had fewer run-ins with the law and better mental health treatment.

“After careful consideration of this case, the defendant’s criminal history and status as a persistent violent felony offender, and his failure to follow-through with programming in the past, we declined to refer him to Manhattan Mental Health Court," Manhattan District Attorney Spokeswoman Emily Tuttle said in a statement.

On a recent October day in Lower Manhattan, Karny stood with Reyes, who was bundled in a heavy, high-collar oatmeal knit sweater to stave off the fall chill. As she spoke, Reyes gave her a gentle smile, eyes creasing through his thick dark frames, his green hair catching the autumn light. With mental health court out of reach, Reyes faces an uncertain future — but he still has faith in Karny.

“I have the best lawyer,” he said softly, minutes before he walked away with her, a cup of coffee in hand.

Monday, September 21, 2020

Judicial Watch Sues State of Illinois For Failing To Allow Public Access To Voter Roll Data


                                  Tom Fitton, President of Judicial Watch

Judicial Watch Sues State of Illinois for Refusing to Disclose Voter Roll Data in Violation of Federal Law

Judicial Watch Analysis Finds Dirty Voting Rolls in State
(Washington, DC) – Judicial Watch announced today that it filed a lawsuit against the state of Illinois, the Illinois State Board of Elections, and its director for failing to allow public access to its voter roll data in violation of the federal National Voter Registration Act of 1993 (NVRA).
State officials refused to allow the non-profit Illinois Conservative Union and three lawfully registered Illinois voters to obtain a copy of the state’s voter registration list, despite their lawful request for those records under federal law. Judicial Watch filed the lawsuit on their behalf in the United States District Court in the Northern District of Illinois (Illinois Conservative Union et al v. Illinois et al. (No. 1:20-cv-05542)).
Federal law provides that states “shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.” 
On July 24, 2019, the Illinois Conservative Union sent a public records request under this provision to the Illinois State Board of Elections, requesting information about the maintenance of voter rolls, including the most recent voter registration list for Illinois. The request noted that the records “would be used solely for purposes intended by federal law, namely, to ensure the accuracy and currency of the official list of eligible voters,” the complaint said.
The State Board of Elections denied the request, claiming that only political committees or governmental bodies may receive copies of records. The State Board did allow a few Illinois Conservative Union members to travel to Springfield, Illinois during working hours and afforded them the opportunity to review Illinois’ millions of voter records one at a time on a computer terminal, with no ability to sort or organize records. By this lawsuit the Illinois Conservative Union seeks meaningful access to the records it requested. 
As several federal courts have recognized, the public records provisions of the National Voter Registration Act were intended to enhance the ability of private groups to monitor whether states are removing ineligible voters from their voter rolls. In April, a federal court in Maryland noted that organizations “such as Judicial Watch” have “the resources and expertise that few individuals can marshal. By excluding these organizations from access to voter registration lists,” the purpose of the federal law is undermined. That court ordered Maryland to produce complete voter registration records requested by Judicial Watch. 
In Illinois, Judicial Watch’s research found that 14 out of 102 counties (14% of all counties) have more registered voters than citizens over 18, while Illinois as a whole has 660,000 inactive registrants.
“This lawsuit aims to open up Illinois voting records so private groups can tell whether they are dirty,” said Judicial Watch President Tom Fitton. “Illinois voters and citizens have a right to review election rolls under federal law and Illinois’ refusal to make them available suggests the state knows the rolls are a mess and won’t stand the light of the day.”
Judicial Watch is a national leader for cleaner elections.
Earlier this year, Judicial Watch sued Pennsylvania and North Carolina for failing to make reasonable efforts to remove ineligible voters from their rolls as required by federal law. The lawsuits allege that the two states have nearly 2 million extra names on voter registration rolls.
In 2018, the Supreme Court upheld a voter-roll cleanup program that resulted from a Judicial Watch settlement of a federal lawsuit with Ohio. California settled a National Voter Registration Act lawsuit with Judicial Watch and last year began the process of removing up to 1.6 million inactive names from Los Angeles County’s voter rolls. Kentucky also began a cleanup of hundreds of thousands of old registrations last year after it entered into a consent decree to end another Judicial Watch lawsuit.
Judicial Watch’s 2019 study found 378 counties nationwide that had more voter registrations than citizens old enough to vote, i.e., counties where registration rates exceed 100%. These 378 counties combined had about 2.5 million registrations over the 100%-registered mark.
Judicial Watch Attorney Robert Popper is the director of Judicial Watch’s election integrity initiative. Judicial Watch is being assisted by attorney David J. Shestokas of Orland Park, Illinois.

Tuesday, September 15, 2020

Former Judge Andrew Napolitano Files Libel Suit Against Accuser


                                                         Andrew Napolitano

Fox News Analyst Andrew Napolitano Files Libel Lawsuit Against Sexual Assault Accuser

The lawsuit was filed by law firms Clare Locke and Cole Schotz.

Four days after he was hit with a decades-old sexual assault lawsuit, Fox News analyst Andrew Napolitano fired back with a libel suit against his accuser.

Napolitano filed the libel suit in the District of New Jersey, and is seeking to transfer the sexual assault case from the Southern District of New York to the Garden State. Napolitano said his accuser, Charles Corbishley, made up the sexual assault story and is trying to extort him.

Napolitano is represented in the libel suit by boutique law firm Clare Locke. That firm convinced the U.S. Court of Appeals for the Second Circuit to reopen Sarah Palin’s libel suit against the New York Times last year. Napolitano has also retained Hackensack firm Cole Schotz.

Napolitano said in his suit that he never had any sexual contact or a private meeting with Corbishley. Napolitano, who was a Superior Court judge in Bergen County when the alleged assault took place in 1988, denied a claim that a now-deceased criminal defense lawyer set up an arrangement in which Corbishley received leniency in exchange for sex.

Corbishley claims he was facing criminal charges when his attorney, Robert Hollis, instructed him to go Napolitano’s home with a snow shovel. Corbishley followed the instructions and was greeted at the home by Napolitano, who instructed him to shovel the driveway. Later, the suit claimed, Napolitano came outside and sexually assaulted Corbishley, who was 20 years old at the time.

But Napolitano’s suit said he did not live in a house with a driveway and a backyard at that time, and instead lived on the 26th floor of a condominium in Hackensack.

“Even though he knew the accusations were demonstrably false, Defendant, both directly and through his attorneys, repeated his fabricated claims by publicizing the scandalous and false sexual assault allegations to numerous media outlets in an attempt to garner publicity for himself and his suit to coerce and oppress Former Judge Napolitano in furtherance of his extortionate scheme,” Napolitano’s suit claims.

Thomas Clare of Clare Locke said in an email, “Mr. Corbishley filed his lawsuit in the wrong venue. In addition to the defamation complaint we filed against Mr. Corbishley today in New Jersey, we also filed today a motion to transfer Mr. Corbishley’s improperly filed New York lawsuit to New Jersey. The courts will take up these threshold jurisdictional issues, and we look forward to vindicating Judge Napolitano in the proper venue.”

Jon Norinsberg, an attorney for Corbishley, called Napolitano’s suit “patently baseless and completely improper. There is already a pending lawsuit in the Southern District of New York dealing with the identical issues. The filing of a second lawsuit, in a different federal forum, violates the ‘first-filed’ rule and warrants complete dismissal.”

In addition, Norinsberg said Napolitano’s claims against Corbishley are “outrageous and completely false. We look forward to exposing the truth of what really happened between Judge Napolitano and Mr. Corbishley, and fully vindicating Mr. Corbishley’s rights in a court of law.”

Fox News analyst Judge Andrew Napolitano accused of sexually abusing man in 1980s who faced arson charge in his court

Saturday, September 12, 2020

US Department of Health and Human Services Stopped From Implementing Rule Removing Anti-Discrimination Provisions in ACA for LGBTQ+ Patients

 Department of Health and Human Services’ LGBTQ+ Discrimination Rule Blocked by Eastern District of New York

Tuesday, September 8, 2020

On August 17, 2020, the Eastern District of New York granted the Plaintiffs’ request for a stay and a preliminary injunction precluding the U.S. Department of Health and Human Services (HHS) from implementing a recently issued final agency rule that would remove anti-discrimination provisions presently provided under the Affordable Care Act (ACA) for LGBTQ+ patients. (Walker v. Azar, E.D.N.Y., No. 1:20-cv-02834, Order 08/17/20). The Human Rights Campaign challenged the HHS rule on behalf of two transgender women, who sought a nationwide injunction to prevent its implementation. U.S. District Judge Frederic Block granted the request for a stay and preliminary injunction the day before the rule was to go into effect.

Announced in June, HHS’s proposed final rule struck language from existing ACA regulations that afforded protection from discrimination to individuals on the basis of “sex stereotyping, or gender identity.” Those ACA regulations define sex stereotyping as “stereotypical notions of gender, including expectations of how an individual represents or communicates gender to others, such as behavior, clothing, hairstyles, activities, voice, mannerisms or body characteristics.” HHS’s proposed new final rule sought to impose a narrower definition of “on the basis of sex,” arguing the ACA did not provide discrimination protection for patients based on a medical provider’s “stereotypical notions of masculinity and femininity.” If this new HHS rule were to go into effect, it would effectively remove gender identity and sex stereotyping from the ACA’s anti-discrimination protections, which themselves are grounded in Title IX of the Education Amendments of 1972.

In enjoining implementation of HHS’s new rule, the Walker Court noted that the rule ignored the Supreme Court’s recent decision in Bostock v. Clayton Cty. Ga., 140 S. Ct. 1731 (2020), which was issued three days before HHS’s new final rule was to take effect. This omission was conspicuous because, in Bostock, the Supreme Court held that discrimination “on the basis of sex” encompasses biased treatment predicated on gender identity or sexual orientation. Although Bostock focused on the definition of “sex” under Title VII of the Civil Rights Act, both HHS and the Court acknowledged the applicability of this decision to Title IX given that “Title VII case law often informed Title IX case law with respect to the meaning of discrimination ‘on the basis of sex.’” The Walker Court thus concluded that HHS’s rule contravened Bostock insofar as it removed protections the Supreme Court expressly recognized.

In finding the Plaintiffs were likely to succeed on the merits of their claim (a necessary element to entry of a preliminary injunction), the Walker Court expressly noted that the Supreme Court issued its Bostock decision three days before the proposed rule was set to take effect, but HHS chose not to revisit its new proposed rule in response to the decision. This led the Walker Court to hold Plaintiffs were likely to establish HHS’s decision was arbitrary and capricious in light of the agency’s failure to revisit its proposed Rule when Bostock was decided. Per the Walker Court, “[t]he timing might […] suggest to a cynic that the agency pushed ahead specifically to avoid having to address an adverse decision, [b]ut whether by design or bureaucratic inertia, the fact remains that HHS finalized the 2020 Rules without addressing the impact of the Supreme Court’s decision in Bostock.”

Walker deals a clear blow to HHS’s effort to exclude gender identity from the protections afforded under the ACA.  It remains to be seen whether the HHS will accept the decision, seek to amend the rule to account expressly for Bostock, or appeal. In the meantime, the rule is on hold.

Tuesday, September 1, 2020

Aleksandr Pikus is Sentenced To 156 Months in Prison For Money-Laundering and Health Care Scheme

Aleksandr Pikus

Department of Justice
Office of Public Affairs
Monday, August 31, 2020

Head of New York Medical Clinics Sentenced to 156 Months in Prison for Multimillion-Dollar Money Laundering and Health Care Kickbacks Scheme

A Brooklyn man was sentenced to 156 months in prison today for his role in a vast multimillion-dollar health care kickback and money laundering conspiracy, the Department of Justice announced today.

Aleksandr Pikus, 45, of Brooklyn, New York, was sentenced by U.S. District Judge Ann M. Donnelly of the Eastern District of New York. Judge Donnelly also ordered Pikus to pay $39.4 million in restitution and to forfeit $2,614,233. On Nov. 15, 2019, after a two-week trial, Pikus was convicted by a jury of one count of conspiracy to commit money laundering, two counts of money laundering, one count of conspiracy to pay and receive health care kickbacks and one count of conspiracy to defraud the United States by obstructing the IRS.

“For nearly a decade, Aleksandr Pikus stole millions of dollars from the federal Medicare and Medicaid programs in a major healthcare kickback, money laundering and tax fraud scheme,” said Acting Assistant Attorney General Brian C. Rabbitt of the Justice Department’s Criminal Division. “This significant sentence holds Pikus accountable for his leadership role in this scheme and reflects the Department’s commitment to protecting our valuable federal healthcare programs and their beneficiaries from this kind of fraud.”

“The defendant’s key role in an elaborate scheme to steal and conceal tens of millions of dollars from the Medicare and Medicaid programs, was staggering in scope and deserving of the significant punishment he received today,” stated Acting U.S. Attorney DuCharme. “This office takes very seriously its obligation to protect government funds that provide vital medical coverage counted upon by individuals and families who qualify because of their low income, disability or advanced years.”

“Pikus was the kingpin running a massive money laundering and kickback health care fraud syndicate,” said Scott J. Lampert, Special Agent in Charge for the Office of Inspector General of the U.S. Department of Health and Human Services. “Now, like others who plot to steal from government health programs, he is paying a heavy price for his crimes. Along with our law enforcement partners, we will continue to root out individuals who steal vital taxpayer-provided health funds.”

“The defendant’s greed and desire for money drove him to perpetrate crimes against our healthcare system and prey upon the vulnerable in our society.,” stated IRS-CI Special Agent in Charge Larsen. “Justice has been served and IRS-CI will continue to work alongside our counterparts to uncover these schemes to hold these criminals accountable for their actions.”

According to evidence presented at trial, Pikus and his co-conspirators perpetrated a scheme through a series of medical clinics in Brooklyn and Queens over the course of nearly a decade, which clinics employed doctors, physical and occupational therapists, and other medical professionals who were enrolled in the Medicare and Medicaid programs. In return for illegal kickbacks, Pikus referred beneficiaries to these health care providers, who submitted claims to the Medicare and Medicaid programs.

Pikus and his co-conspirators then laundered a substantial portion of the proceeds of these claims through companies he controlled, including by cashing checks at several New York City check-cashing businesses. Pikus then failed to report that cash income to the IRS. Instead, Pikus used the cash to enrich himself and others and to pay kickbacks to patient recruiters, who, in turn, paid beneficiaries to receive treatment at the medical clinics. The evidence further established that Pikus and his co-conspirators used sham shell companies and fake invoices to conceal their illegal activities.

More than 25 other individuals have pleaded guilty to or been convicted of participating in the scheme, including physicians, physical and occupational therapists, ambulette drivers, and the owners of several of the shell companies used to launder the stolen money.

This case was investigated by the HHS-OIG and IRS-CI, and was brought as part of the Medicare Fraud Strike Force, under the supervision of the Criminal Division’s Fraud Section and the U.S. Attorney’s Office for the Eastern District of New York. Assistant Chief A. Brendan Stewart and Trial Attorneys Sarah Wilson Rocha and Andrew Estes of the Fraud Section are prosecuting the case.

The Fraud Section leads the Medicare Fraud Strike Force, which is part of a joint initiative between the Department of Justice and HHS to focus their efforts to prevent and deter fraud and enforce current anti-fraud laws around the country. Since its inception in March 2007, the Medicare Fraud Strike Force, which maintains 15 strike forces operating in 24 districts, has charged more than 4,200 defendants who have collectively billed the Medicare program for approximately $19 billion. In addition, the U.S. Department of Health and Human Services Centers for Medicare & Medicaid Services, working in conjunction with the HHS-OIG, are taking steps to increase accountability and decrease the presence of fraudulent providers.

Sunday, August 30, 2020

Florida Teachers Win Lawsuit Over Schools Reopening

Leon County Judge Charles Dodson is charged with overseeing the lawsuit challenging the constitutionality of Florida's school reopening order. [ 2nd Judicial Circuit of Florida ]
School reopening lawsuit: Judge rules in favor of Florida teachers
, August 24, 2020

The Florida Department of Education quickly appealed the ruling, which called the state's actions unconstitutional.

Leon County Circuit Judge Charles Dodson ruled in favor of Florida’s statewide teachers union Monday, saying Department of Education officials “essentially ignored the requirement of school safety” when they ordered campuses to reopen for face-to-face classes this month.
Dodson also found that the department’s order, issued July 6, trampled on school boards’ constitutional authority to operate their own school systems.

“The districts have no meaningful alternative,” Dodson wrote. “If an individual school district chooses safety, that is, delaying the start of schools until it individually determines it is safe to do so for its county, it risks losing state funding, even though every student is being taught.”
Taryn Fenske, a spokeswoman for the Department of Education, said the state had filed its appeal before the close of business Monday. Education commissioner Richard Corcoran said he was “100 percent confident” the state will win.
The lawsuit was filed by the Florida Education Association, a labor organization representing about 145,000 teachers across the state.

“This fight has been, and will continue to be, about giving every parent, every teacher and every student a choice, regardless of what educational option they choose,” Corcoran said in a statement. “If you are one of the 1.6 million students who have chosen to return to the classroom, a parent, or a classroom teacher that wanted to educate their student in person, we strongly encourage you to call the Florida Education Association and tell them to drop this frivolous lawsuit.”
Through questioning during Friday’s closing arguments, Dodson hinted that he was interested in a solution that did not have school districts facing a monetary hit for taking actions that they deemed in the best safety interest of their students and staff.

“An injunction in this case will allow local school boards to make safety determinations for the reopening of schools without financial penalty,” he wrote. “This is what the local school boards were elected to do.”
He ruled that the order would become constitutional if the unconstitutional portions were deleted, as the plaintiffs’ lawyers argued during their closing comments. So he struck out the order language relating to a required date to begin in-person classes, mandatory reopening plans and provisions that in recent weeks have tied districts’ reopening decisions to state funding.
The judge used Hillsborough County’s experience as a primary example in the case. The Hillsborough School Board voted 5-2 to delay reopening its classrooms by four weeks, relying on the advice of several local health experts.

When informed of that move, Corcoran deemed the district’s action as violating the reopening order and warned officials they could lose up to $23 million monthly if they did not make changes. After trying to reach a compromise, the district changed direction without a School Board vote and announced it would reopen campuses Aug. 31 — three weeks earlier than planned.
Students began their classes online on Monday.
The district “had no real choice,” Dodson wrote. The state, he found “arbitrarily prioritized reopening schools statewide in August over safety and the advice of health experts; and all school districts complied in order to avoid a drastic loss of State funding.”

Hillsborough School Board member Tamara Shamburger, who testified for the plaintiffs, said she was excited about the ruling and pleased the judge recognized the importance of local decision making in these matters. She anticipated the board, which meets Tuesday, will revisit the situation.
“Our vote is still our vote, which is to delay the first four weeks,” Shamburger said, noting no action had been taken to overturn that decision. “I absolutely believe that ... we must have this conversation.”
The Pinellas County School Board, which opened both in-person and remote classes on Monday, also meets on Tuesday, where it, too, could discuss the ruling and its role in reopening.
Board chairwoman Carol Cook said she was thrilled the judge ruled in favor of local control of schools. But she had her doubts about changing direction on the school year.
“So far, I’m hearing that things went well” on the first day, Cook said. “I would have to really give it some serious thought whether we want to throw everybody back into disarray.”
Pasco County School Board vice chairman Allen Altman did not anticipate any change in his district, where about 60 percent of students returned to campuses for classes on Monday.
“I’ve talked to several school leaders today and they all say that opening went great,” Altman said via text message. “They reported that students, parents and school staff were all excited to be back.”

Ron Meyer, one of the union’s attorneys, said that the judge’s order would allow districts act as they see fit. They could delay reopening buildings without financial penalty, for example, if local officials decided to do so based on the advice of health experts.
It still could be a dicey move, though, he noted.
That’s because the state’s appeal triggers an automatic stay of the ruling. The plaintiffs likely will seek an order overturning the automatic stay, Meyer said.
If the stay remains in effect, it’s as if the judge’s order does not exist. If the stay is removed, then the order stands.
Florida Education Association president Fed Ingram called on Corcoran and Gov. Ron DeSantis not to appeal the case.
“Let’s work together,” Ingram said during a video news conference Monday. “We can do this together.”
The judge issued his order after two full days of testimony, and two hours for closing arguments. The lawyers representing the state presented witnesses to back the contention that children do not pass COVID-19 to adults, which the plaintiffs called “fallacious,” and that the risks of keeping schools closed are more detrimental than opening them.
They further argued that teacher plaintiffs in the case, who said they were faced with returning to unsafe work conditions or quitting, had no legal injury. They said teachers could file grievances against their districts through their contracts to fight such decisions.

But the defense lawyers also acknowledged that the districts did face stiff financial penalties if they didn’t comply with the reopening order. They suggested that, since no school boards were party to the suit, they were not coerced into adopting the plans, which they weren’t forced to submit.
Dodson disagreed with that assessment, suggesting they were financially bullied into compliance, which he said is unconstitutional. He further noted that the order’s provision allowing boards to seek advice and orders from health department officials to remain closed was “essentially meaningless,” though it sounded good.

“Plaintiffs presented convincing evidence that state health officials were instructed not to provide an opinion on the reopening of schools,” Dodson wrote. “Defendants reduced the constitutional guarantee of a safe education to an empty promise, in violation of the Florida Constitution.”
Randi Weingarten, AFT President
Battle over COVID-19 school openings goes to the courts

Teachers unions are waging court fights across the country aimed at unwinding what they say are unsafe and politically motivated timetables for reopening schools that risk exposing personnel to the coronavirus pandemic.
State officials eager to ramp up brick-and-mortar operations are facing lawsuits from Florida to Texas to Iowa over reopening plans as well as access to the COVID-19 infection data needed to monitor the rate of spread within school communities. 
At the same time, lawsuits are flying from the opposition direction: Parents in several states, including New York, Massachusetts and Oregon, dissatisfied with web-based teaching alternatives, are suing to force state officials to reopen physical schools sooner as courts are increasingly called upon to referee the fight over education in the age of coronavirus.
“A legal storm is brewing as safety and social distancing requirements for a physical return to school begin to take shape around the country,” Maria Ferguson, executive director of the Center on Education Policy at George Washington University, wrote on the education website The 74.
As millions of students prepare for the first day of school — whether in-person, remote or a hybrid of the two — the fight over the reopening physical school buildings is likely to intensify.
The debate over in-person K-12 instruction planning is inseparably tied to the issues of child care needs and parents’ ability to return to the workforce to help revive the struggling economy, all of which is playing out against the backdrop of a fast-approaching November election in a country that has seen nearly 6 million cases and more than 181,000 deaths from COVID-19.
Perhaps the highest-profile legal battle is taking place in the courts of Florida, where Republican Gov. Ron DeSantis signed off last month on an emergency order over school reopenings.
Under the order, most Florida school districts would be required to hold in-person classes five days a week by the end of August or risk losing funding. President Trump, who counts DeSantis as a close ally, has also threatened to cut off federal funding for schools if they do not resume in-person learning this fall.
The Florida policy prompted a lawsuit from the Florida Education Association (FEA), a statewide teachers union, and several other plaintiffs in favor of a more cautious return to in-person teaching.
“Public schools are not designed for COVID safety, and indeed, the government has recognized that they are high-contact environments,” said Kendall Coffey, the lead plaintiff’s attorney in the Florida case, who likened prematurely opened schools to “disease factories” and called the Florida policy “financial bullying.”
“There are any number of issues, in terms of hallway sizes, the flow of students in and out of classrooms, ventilation, even how many students go into the bathroom,” he told The Hill. “There are many elements that are virtually impossible to guarantee when you're dealing with children in large amounts.”
On Aug. 24, a Florida judge ruled in favor of the union and temporarily halted the statewide order. In his decision, Judge Charles Dodson struck down the order’s unconstitutional provisions and blasted DeSantis for having “essentially ignored” the state's constitutional requirement that schools be operated safely.
“The districts have no meaningful alternative,” wrote Dodson, of Leon County. “If an individual school district chooses safety, that is, delaying the start of schools until it individually determines it is safe to do so for its county, it risks losing state funding, even though every student is being taught.”
A Florida appeals court agreed to temporarily halt Judge Dodson’s order from taking effect while DeSantis appeals.
The state contends that the benefit of in-person instruction outweighs the health risks associated with reopening brick-and-mortar schools. Some Florida school officials have also declined to disclose incidents of positive COVID-19 cases to school communities, citing the need for patient privacy. 
Attorneys for Florida have also argued in hearings that courts should not substitute their judgment for that of policymakers who have balanced all the equities and decided a prompt in-person reopening is the best policy.
Randi Weingarten, president of the American Federation of Teachers (AFT), one of the largest teachers unions in the country, said Florida has its priorities backward.
“What their arguments show is that they don’t care about human life,” Weingarten told The Hill.
According to Weingarten, internal AFT polling in June showed that about 3 in 4 teachers said they would be comfortable returning to the classroom if guidelines from the Centers for Disease Control and Prevention (CDC) were implemented in schools.
But she predicts that attitudes among teachers have shifted dramatically in past months as the Trump administration has failed to adequately manage the virus to ensure schools can be reopened safely.
“We're polling right now,” she said. “And my hunch is that just like the public polls, it's totally flipped.”
The AFT is backing lawsuits in Florida, New Mexico and Texas. Before schools can reopen safely — for what Weingarten calls “the biggest move indoors that the nation has done since March” — the group says local positivity rates should be below 3 percent and schools should have visibility into daily transmission rates. 
The union is also pushing for protocols that involve testing, contact tracing and isolation and implement best practices from the CDC for things such as ventilation, cleaning, physical distancing, mask-wearing and other safeguards.
As teachers unions make their case in court, parents in at least five states have filed lawsuits of their own to accelerate school reopenings.
A nonprofit litigation group called the Center for American Liberty, co-founded by lawyer and GOP official Harmeet Dhillon, is backing one such suit in California. Democratic Gov. Gavin Newsom’s restrictions on in-person school openings in the Golden State will affect an estimated 80 percent of K-12 students.
“The effects of this ham-handed policy are as predictable as they are tragic,” the lawsuit filed in a federal court in California states. “Hundreds of thousands of students will essentially drop out of school, whether because they lack the technological resources to engage with ‘online learning’ or because their parents cannot assist them.”
The litigation raises concerns about everything from school closures exacerbating the achievement gap and disproportionately harming special needs students and those without convenient internet access to challenges over the constitutional validity of government health orders.
Weingarten, of AFT, said it’s important to remember that despite seemingly irreconcilable differences over the policy details, all parties want to see schools reopen as soon as it’s safe to do so.
“None of us believes that remote is a substitute,” she said. “It's a supplement.”