 |
|
|
|
November 2004 
Vol. 10 No. 6 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer
Use the Newsletter Link to request a free e-mail subscription to the newsletter.
The Ninth Circuit has ruled that the "cetacean community" does not have standing to challenge the Navy's use of low frequency sonar. Although the Constitution would not bar such standing, Congress has not clearly expressed an intent to confer such standing.
Attorney Lanny Sinkin filed suit in the Hawaii District Court on behalf of the the "cetacean community," which he described as all the world's whales, porpoises and dolphins. He alleged that the Navy's use of low frequency sonar harmed the cetaceans by causing tissue damage and by disrupting biologically important behaviors. The Ninth Circuit affirmed the district court's dismissal of the lawsuit for lack of standing.
There is nothing in the United States Constitution that limits standing to humans. After noting that animals have many legal rights under federal and state law, the court ruled that the cetaceans have Article III standing. The question was whether any of the statutes the cetaceans' lawyer invoked had actually conferred such standing.
None of the statutes -- the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Administrative Procedure Act -- expressly conferred such standing. If Congress had intended the extraordinary step of authorizing animals to sue in their own right, it could, and should, have said so plainly.
Cetacean Community v. Bush, 2004 WL 2348373 (9th Cir. Oct. 20, 2004).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The California Supreme Court has ruled that the Tort Claims Act does not limit a claimant to the precise legal theories stated in his notice of claim. So long as his claim gives notice of his cause of action and enough factual detail for an adequate investigation, he may assert additional theories in his lawsuit.
Jerry Stockett was fired from his job as the general manager of a joint powers insurance authority. The committee that approved his termination refused to disclose the reasons for its action. He filed a notice of claim asserting that the authority has wrongfully terminated himin violation of public policy, for supporting another employee's sexual harassment complaint, and for opposing the selection of an insurer without competitive bidding.
A jury subsequently awarded him $4.5 million in his wrongful termination lawsuit. The trial court allowed the jury to consider three possible wrongful termination theories -- (1) retaliation for disclosing a conflict of interest, (2) retaliation for opposing sexual harassment, and (3) retaliation for exercising his free speech rights by telling an industry newsletter that his employer's insurer was selling insurance below cost.
The Tort Claims Act requires that any potential plaintiff file a notice of claim with a public entity before bringing a lawsuit. The notice of claim must state the date, place and other circumstances that give rise to the claim, and a general description of the damages suffered. The purpose of the notice requirement is to give the public entity enough information to conduct an adequate investigation.
Although Stockett's notice of claim did not describe his conflict of interest or free speech theories, it stated his cause of action -- wrongful termination -- and gave the Authority sufficient information to investigate. That fulfilled the purpose of the Tort Claims Act.
Stockett v. Association of California Water Agencies Joint Powers Insurance Authority, Case No. S108220 (Cal. Sup. Ct. Nov. 1, 2004).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The Ninth Circuit has ruled that the Labor Management Relations Act does not bar an employer from agreeing to pay salary and benefits to a full- time union representative. Although the representative did no production work for the employer, the employer exercised sufficient control over the terms and conditions of his employment to satisfy an exception to the LMRA's prohibition on employer payments to union representatives.
BF Goodrich's agreement with Local 964 provided for Goodrich to continue paying the chief shop steward his company salary and benefits while working primarily on the investigation and prosecution of union grievances.
The LMRA prohibits employers from paying anything of value to union representatives, except to a representative who is also an employee of the employer, "as compensation for, or by reason of, his service as an employee." Although the exception does not apply just because the steward continued on Goodrich's payroll, there were enough other factors to establish that the pay was compensation for his service as an employee.
The steward's work served the company's interests, because the grievance process promotes peaceful resolution of labor disputes. Further, while acting for the union, the steward remained under the direct and immediate supervision of the employer. Unlike union representatives who work out of a union office or hiring hall, the chief shop steward worked on Goodrich's premises, where the company controlled his workweek. The personnel department had to approve overtime, sick leave and vacation days. The union did not determine his work assignments.
International Association of Machinists and Aerospace Workers v. BF Goodrich Aerospace Aerostructures Group, Case No. 03-55085 (9th Cir. Nov. 1, 2004).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The Fifth District Court of Appeal in Fresno has ruled that Government Code section 31725 requires a public employer to give backpay to an employee returning from a disability leave. The section applies to employees who apply for disabilty retirement, but do not receive it.
John Stephens worked for the Tulare County Sheriff's Department as a floor officer at the county jail. He returned to work after a work-related injury to his thumb, but his workers' compensation claim resulted in a finding that he could not return to his usual job. The Sheriff's Department concluded that it had no modified work assignment that would satisfy his work restrictions, and directed him to stay off work until he could return with no restrictions.
The County Retirement Board denied his application for a service-connected disability retirement. After the Superior Court denied his writ petition challenging that decision, the Sheriff's Department reinstated him to his job, but without backpay.
Section 31725 requires a public employer to reinstate an employee whose disability retirement application was denied with backpay, if the employer "dismissed" the employee "for disability". Although the Sheriff's Department argued that it had not "dismissed" Stephens, but merely placed him off work until his restrictions were lifted or he would accept a lesser job, the court ruled that the Department effectively dismissed Stephens by placing him on an involuntary medical leave.
Stephens v. County of Tulare, Case No. F044123 (Cal. Ct. App. Oct. 29, 2004).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
Subsequent treatment of decisions reported on in earlier issues:
Auburn Woods Homeowners Assn. v. FEHC (October 2004 issue), now reported at 121 Cal. App. 4th 1578 (2004), petition for review filed (Oct. 4, 2004).
C&C Construction, Inc. v. Sacramento Municipal Utility District (October 2004 issue), now reported at 122 Cal. App. 4th 284 (2004).
California Fair Employment and Housing Commission v. Gemini Aluminum Corp. (October 2004 issue), now reported at 122 Cal. App. 4th 1004 (2004), rehearing denied (Oct. 19, 2004).
Caloroso v. Hathaway (October 2004 issue), now reported at 122 Cal. App. 4th 922 (2004).
Grace v. eBay, Inc. (August 2004 issue), review granted (Oct. 13, 2004). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
Copyright © 2004 Calvin House. Appellate Counsellor® and Appellate Decisions Noted® are registered marks used in commerce by Calvin House since 1995. All rights to those marks are claimed. |
Calvin House |
