Senate Secrecy: Can the Votes of Senators on President Trump’s Impeachment be Withheld from the Voting Public?

VIKRAM DAVID AMAR, JASON MAZZONE

Illinois law dean Vikram David Amar and professor Jason Mazzone evaluate the suggestion made by some that the votes of senators on President Trump’s impeachment can and should be private. Amar and Mazzone argue that while the text of the Constitution alone does not foreclose secrecy, structural, prudential, and logistical considerations strongly disfavor a secret vote on the matter.

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Kemper Corporate Services, Inc. v. Computer Sciences Corp.

Docket: 18-11276

Opinion Date: January 10, 2020

Judge: Leslie H. Southwick

Areas of Law: Arbitration & Mediation

The Fifth Circuit affirmed the district court's confirmation of an arbitral award over the objection that the arbitrator had exceeded his authority. In the final award, the arbitrator found that CSC breached the Exceed Agreement and concluded that Kemper was entitled to damages. The magistrate judge recommended that the award be confirmed and the district court adopted the magistrate judge's report and recommendations. The court held that the final award was subject to a very deferential review where the arbitrator did not exceed the scope of his contractual authority by classifying and awarding damages to Kemper. The court also held that the arbitrator did arguably construe the parties' contract, and the arbitral award must stand.

Escribano v. Travis County

Docket: 19-50236

Opinion Date: January 10, 2020

Judge: Costa

Areas of Law: Civil Procedure, Labor & Employment Law

Plaintiffs, six Travis County Sheriff's Office detectives, filed suit alleging that they were entitled to overtime pay under the Fair Labor Standards Act (FLSA). The county argued that plaintiffs were exempt as both executive and highly-compensated employees. The district court granted judgment for plaintiffs. Then the district court later ruled as a matter of law that plaintiffs were paid a salary, vacated the jury's finding on the first requirement of the exemptions, and granted plaintiffs' request for a new trial. Plaintiffs sought reconsideration, contending that they had conditionally asked for a new trial on the management issue, an element of the executive exemption and first-responder exception, not on the office-work issue, which is part of the highly-compensated-employee exemption. Plaintiffs then moved for reentry of judgment in their favor. Because plaintiffs did not want a new trial, the district court entered a final judgment. Rejecting the parties' jurisdictional challenges, the Fifth Circuit affirmed and held that it had appellate jurisdiction. The court also held that plaintiffs' failure to challenge the timeliness of the Rule 50(b) motion in the district court means that they have forfeited that objection, and the district court had jurisdiction to decide the motion for judgment as a matter of law. The court explained that a new trial was needed to answer the additional questions about whether plaintiffs were exempt and, by prevailing on a Rule 50(b) motion, the county did not somehow lose its right to assert its defenses. On the merits, the court held that the district court properly held as a matter of law that the county paid plaintiffs on a salary basis. Although the ruling did not fully resolve whether plaintiffs were entitled to overtime pay, the court stated that years of litigation never answered that ultimate question.

United States v. Stockman

Docket: 18-20780

Opinion Date: January 10, 2020

Judge: E. Grady Jolly

Areas of Law: Criminal Law, White Collar Crime

The Fifth Circuit affirmed defendant's convictions on twenty-three felony counts related to his role in schemes to defraud philanthropists, using their money to finance his personal life and political career. Defendant served two nonconsecutive terms in the United States House of Representatives. The court held that the district court's jury instructions were not erroneous; it was not plain error for the district court to define 501(c)(3) and 501(c)(4) organizations in the charge, and defendant was not entitled to an instruction on good faith; the district court did not err by denying defendant's motions for judgment of acquittal under Rule 29; the government provided ample evidence that defendant fraudulently devised, and implemented, a scheme to deprive two donors of their money and property, thus allowing the jury to rationally find him guilty of mail fraud, wire fraud, and money laundering; and the Federal Election Campaign Act's contribution limits apply to coordinated spending on political communications, irrespective of whether those communications contain magic words of express advocacy.

United States v. Ross

Docket: 18-20496

Opinion Date: January 10, 2020

Judge: Rhesa Hawkins Barksdale

Areas of Law: Criminal Law

The Fifth Circuit rejected defendant's contentions that 18 U.S.C. 2252A, receipt of child pornography, is unconstitutional because possession and receipt of child pornography are logically inseparable; both section 2252A's legislative history and Sentencing Commission materials recognize their inseparability; prosecutors may arbitrarily decide to charge defendants, for indistinguishable conduct, under the more-severely-punished receipt offense instead of the less severely-punished possession offense; and such prosecutorial control over the ultimate sentence violates the separation of powers. The court also rejected defendant's alternative argument that USSG 2G2.2 is unconstitutional because it violates the separation-of-powers doctrine and invites arbitrary enforcement and application. Accordingly, the court affirmed the district court's denial of defendant's motion to dismiss.

Joiner v. United States

Docket: 19-10202

Opinion Date: January 10, 2020

Judge: James C. Ho

Areas of Law: Government & Administrative Law, Personal Injury

The Fifth Circuit affirmed the district court's dismissal, based on lack of subject matter jurisdiction, of plaintiff's action under the Federal Tort Claims Act (FTCA) and the Anti-Terrorism Act (ATA). Plaintiff, a security guard, was shot in the leg while on duty by a pair of Islamic terrorists. The court held that plaintiff failed to satisfy the first prong of the discretionary function analysis, because he failed to point to a specific, nondiscretionary function or duty that prescribes a specific course of action for an agency or employee. The court also held that plaintiff waived his argument that a certain gun sale contravened the FBI's express policy prohibiting the sale of firearms to suspected terrorists, because plaintiff failed to adequately brief the issue. Likewise, plaintiff's argument regarding the law enforcement proviso was waived. The court declined to adopt the state created danger doctrine to overcome the FTCA's discretionary function exception; held that the district court properly dismissed the ATA claims for lack of subject matter jurisdiction; and held that the district court did not abuse its discretion by barring additional discovery.

Hobbs v. Petroplex Pipe and Construction, Inc.

Docket: 19-50350

Opinion Date: January 10, 2020

Judge: E. Grady Jolly

Areas of Law: Labor & Employment Law

Plaintiffs filed suit against their former employer, Petroplex, alleging claims for overtime pay under the Fair Labor Standards Act. Plaintiffs were former pipe welders for Petroplex and they claimed that they worked more than forty hours per week for the company without overtime pay. At issue on appeal was whether plaintiffs were considered employees or independent contractors. The Fifth Circuit affirmed the district court's judgment in favor of plaintiffs, holding that plaintiffs were employees instead of independent contractors. The court held that the district court did not clearly err by determining that the control, investment, opportunity for profit and loss, and permanency Silk factors all weighed in favor of employee status.