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Saturday, July 8, 2017

How to attack an ICE detainer -- a discussion

ICE Attorneys contemplating detainer law...or lack of it.


From a recent question by a fellow practioner -- worth sharing!

FACTS
Client given a 30 sentence in county jail with a 5 consecutive days at beginning and 13 weekends thereafter as per the County Judge's Order. TWO days before his released Martin County Fla Jail notified ICE (they have a detainer agreement) of the client's release. client is now being held him until ICE transfers him to a detention center.

I called the jail and demanded his release but was told by a sgt. that "it is a standing order by all judges" that whenever a detainer is placed by ICE, the detainee's sentence is to be served consecutively (rather than the weekends as per the judge's order) and at the end of it ICE will take him. I asked him where THAT came from and he said they have always done it like that. I asked him again for the law/authority and he told me to check with the judge.

I explained the detainer is good for 48 hrs only. He said they have the detainer and an ICE WARRANT. I asked for a faxed copy and sgt said NO. I called ICE and was told he is not yet processed and no DO has been assigned to case.

QUESTION
Is this true?


First, there are a couple of minor corrections I would point out. The IJ (immigration judge) does not sign a warrant. A warrant has to be signed by a federal or state judge after hearing (or reading) a statement of probable cause to believe a crime has or is occurring, and the warrant address that specific aspect of the crime (different types of warrants, obviously). Because an IJ lacks authority to hold a probable cause determination, they won’t be handing out warrants. It would be great fun if they did…talk about a federal case on its face! It is very rare indeed that any judge issues a warrant to ICE, as a state judge really wouldn’t have standing, and a federal judge rarely has time. It does happen for drug, gang, and trafficking cases, where ICE special units conduct raids. But most practitioners won’t run into this in the normal course of ops, and most of those cases end up in Federal Court anyway. It is more common to see a state police officer, with a state warrant, accompanying ICE officers (joint investigation). But again, that is usually for more severe cases.

Now ICE does issue detainers. A detainer is a demand, based on Federal Law, for a state or local authority to hold an illegal alien until immigration can pick him/her up. It is strictly an internal document, and the Agency jealousy guards them as TOP SECRET. Really, all that is on there is a phone number for a duty ICE agent. Unlike almost every other ICE/EOIR/DHS phone number, they actual answer that line quickly. They get really really mad if you call it. It’s good fun! You should try it sometime (assuming you can get a copy of an ICE detainer doc). The problem with detainers is that a state court has no authority over them (federal admin law), and the jail doesn’t really know what to do with them. BUT..state court does have authority over your fella’s detention. So if the jail holds him beyond 48 hours AFTER his sentence is over, then you have a habeas action and should file it right pronto. That usually makes the jail spit your guy out…but it’s a race between ICE and that hearing. If the jail plays hardball, by the time you’re up in Court, detainee is long gone to ICE hell.

What really got me chuckling was the jail’s unilateral modification of the criminal sentence. While it makes sense (i.e. don’t let a person out of jail who has an ICE detainer), it conflates Federal immigration law (immigration detainer) with speculation (ye olde flight) with a healthy dose of “you can’t change a state judge’s order just because.” Sounds to me like the Warden of the jail has taken immigration consequences into his own hands. Interestin’…

You have a pick of tools to go after the Warden. There’s the ol’ “Show Cause” order which, rarely, has a place in criminal law (outside of probation violations), but is quite tasty in this case. After all, the state is violating the Judge’s order. You can file a writ of mandamus to order the jail to honor the judge’s order. You can file a habeas action (obviously – for detention of your fella outside the bounds of the court order).

You’ll lose on them all, though. It would be great fun to tweek the jail, though! You lose because, ultimately, the jail has authority to modify the nature of the detention, so long as the length of the detention remains unchanged. For example, the jail could put your guy in solitary for violating jail rules. That would not take a court order to effect, even though it changes the nature of the detention. A jail has wide latitude to control the safety and security of its prisoners, and the state. But…you might get lucky!

Do you have a problem with how the Government has treated you? Call us! We're happy to discuss your case, and see if you have a claim. We can be reached at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax (VA), Resiterstown (MD), and Washington (DC)
www.hanoverlawpc.com
Central Office: 2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Wednesday, July 5, 2017

Check writing, Forgery, Uttering and what comes next (criminal law)

Original image at https://www.thebalance.com/how-to-check-a-check-315428


Recently, a question was asked on a law bulletin board regarding criminal culpability. While I answered the question on the Board, I think the question is a good one to share, given the frequency of client requests that are very similar.

I used my deceased father’s old checks when trying to purchase something at the store. The checks all had his name on them already (i.e. signed), but were blank. The cashier refused the check, and I left. I was stopped at the exit to the store and accused of forgery and uttering. If the checks didn’t actually get processed (i.e. no purchase was made), why am I under investigation/charged? I did it on accident

First, it is important to dispel a couple of common fallacies. Number one – it is almost inconceivable that a person would grab the wrong check, and then try to pay for something with it, when clearly, it was already signed by someone else. It is really important when discussing legal issues that (a) you DO NOT discuss anything with anyone other than a lawyer, and (2) you do NOT make up stories that make no sense. Although the story MAY make sense to you, it makes no sense to anyone in the legal field, and will almost certainly lead to charges.

What should you say when stopped by someone who questions you about an issue that could clearly be illegal? You are (a) very polite, (b) firm that you do not wish to discuss the matter without an attorney, (c) unwilling to allow any search or access to anything in your possession unless arrested or ordered by a judge (warrant). Sounds similar to Miranda warnings? They should! Although at first this may sound like you are being difficult, an could lead to further complication and charges – this is NOT the case. It is never wrong to politely decline to provide information other than your name, address where you live, and basic contact information. You only hurt yourself when you go beyond this. Most cases are lost because of what the client says. Remember this!

In your specific instance, you have three charges. Utterance – that is the attempt to circulate a document bearing false seals or signatures; forgery – that is the application of a seal or signature without the consent or knowledge of the owner; attempted fraud (bad check) – you drafted, or caused to be drafted, a check that you knew, or had reason to know, was not legitimate. You submitted that check for goods or service. All three of these are serious charges, and in the case of forgery and utterance, are felonies.

The most common defense to these types of charges is (a) consent or (b) mistake. Mistake is NOT the type mentioned in the question. “It was an accident” is no defense. However, if the mistake is that you understood you had consent, when in fact you did not, and your reliance on that understanding was reasonable, you may be able to mitigate or even stop the charges. Consent would also be clearly a defense – if the check owner indicated the check was drafted with their approval, and they authenticate the signature, then there is no forgery, utterance, or fraud. However, be careful! If you signed someone’s name, and then after the fact they consent, at the time of the drafting, it was still a forgery. A minor technicality, but important when forming the defense.

Do you need help with a criminal matter? Contact us! We have considerable experience in the VA, DC, MD area. We would be glad to meet with you for a free consult. Talk to us BEFORE you speak to the police.

Hanover Law, PC
Offices in Fairfax, VA, Resiterstown, MD, and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Tuesday, April 18, 2017

Does your client have a right to see the evidence against him? (Criminal)

Part of the job of a good defense attorney is to fight. Not random gestures aimed at demons and ghosts, but rather concerted efforts to prevent our clients from being trampled by the well intentioned bootheels of the prosecutorial beasties. A recent example of this bears sharing, as others may be faced with the same nonesense, and the case law provided here should help.

Does your client have a right to view the evidence against him/her? The succinct answer is -- yes! In our current case, an individual was charged with child sexual abuse. The child in question gave a video interview. While counsel and our expert were permitted to review the material, the client was expressly excluded from reviewing the interviews; in fact, the defense could not ever discuss the interviews with him!

There is no legal basis for barring access to accusatory material in child sexual assault cases. This, however, is not always true in all cases. Certain national defense cases, and child pornography cases are both examples where the government can, by statute, prevent client access to materials involved in the case. However, these carve outs are rare, and the presumption should be that, under due process considerations, the client may view, discuss, and make notes about any allegations stated against him, and further, may discuss the same freely with his attorney.

A distinction is needed here. Common sense indicates that if the defendant is dangerous, or could pose a threat to the witness making the statement or the evidence being displayed, precautions and safeguards must be used. Generally, the government will produce a "protective order" which limits the use and access to sensitive materials produced under the Brady or Jenks doctrines. This should be narrowly constructed to allow maximum defense access, while ensuring safety and a return of materials at the conclusion of the case. At no time should the defense agree to review materials in the presence of the prosecution unless statutorily required or so ordered by the Court. Always fight this. Allowing the government to view those parts of the materials that the defense finds important, and note what areas you are concentrating on, represents a serious breach in trial preparation confidentiality, and can severely weaken the defense case.

What action do you take when the government will not cooperated? File a motion to compel production of relevant materials. I am including draft language with this post. It is geared towards the District of Columbia rules. However, these rules are largely based on Maryland and Federal procedural rules, so they have considerably broader application.

Example wording:
LEGAL BASIS
a. This motion is brought under Superior Court Rules of Criminal Procedure 16(d)(2) which states:
(2) Failure to Comply. If a party fails to comply with this rule, the court may:
(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the undisclosed evidence; or
(D) enter any other order that is just under the circumstances.


Superior Court Rules of Juvenile Proceedings 16(d)(2) is identical in scope to the Criminal rule.

b. In this instance, the Government has taken an untenable position, and thereby denied the Defendant a right to see, hear, and understand the evidence presented against him. The case at bar is entirely dependent on the testimony of the alleged victim and her brother. It is alleged to have occurred over a period of time (unspecified), and includes multiple acts which the Defendant has denied, to the extent he is aware of what was said.

c. The witness’ interviews are impeachment evidence challenging the witness’s credibility. Such evidence generally falls within the Brady rule. See, Giglio v. United States, 405 U.S. 154 (1972); Lewis v. United States, 408 A.2d 303, 307 (D.C. 1979). The importance of impeachment evidence was noted in Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (plurality opinion), where the Court remanded for the trial court to reexamine Confidential records for materiality.

d. Note that a subpoena cannot be issued for CDC records pursuant to D.C. Code § 4-1301.52; relief in this instance requires a Court order. Disclosure of medical or psychological records, certain juvenile records, and other confidential records will only be ordered by the court if the defendant can make a “proffer adequate to overcome [the] privacy interest” of the subject of those records. See, Hammon v. United States, 695 A.2d 97, 106 (D.C. 1997). The Defense submits the following proffer in regards to CAC records in this case:
• (A) The outcome of the proceeding probably would be different if the requested information and records were not disclosed. Without disclosure of the allegations, a proper defense cannot be had. Further, the witnesses’ statements are absolutely contradicted by the complainant’s father, and the complainant’s uncle, who both state that CLIENT was never left alone with the complaining witness overnight or otherwise. Additionally, no time frames were provided by the Government in its petition, or in the PD-163/Gerstein. Unable to place the timeframe or context of the allegations is a severe restriction to the defense. If the child provide information that would identify alleged events or timeframes, the defense is entitled to know this under the Brady doctrine.
• (B) The CAC is the only source of the requested information and records. The interview were done by Safe Shore’s social workers. These records only exist with the Government, and the CAC is a Government agency not subject to subpoena.
• (C) The requested information and records would be subject to disclosure in the proceeding if they were in the possession of the government. Pursuant to Brady, and Jenks, these documents and interviews are discoverable, and are in the possession of the Government. Arguably, denial of Defense access constitutes a violation of the confrontation clause and the due process clause of the Constitution; this material is testimonial in nature, and it forms the basis of CLIENT arrest and petition.
• (D) Disclosure of the requested information and records would not violate any other applicable law, rule, or regulation. The Defense is unaware of any law that prohibits the disclosure of complaining witness testimony. e. The court has an obligation to ensure that the mandates of the due process protections of the Brady doctrine are followed. In Boyd v. United States, the court held that the trial court had an obligation to assure that the government properly discloses Brady to the defense. 908 A.2d 39 (D.C. 2006).


f. The “prosecution must disclose exculpatory material ‘at such time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case.’” Edelen v. United States, 627 A.2d 968, 970 (D.C. 1993) (quoting United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir 1976)). The Government does not get to dictate to the Defense how or when it will share these interviews. We need these to properly execute the Defense.

g. Additionally, our expert is unable to review the interviews and subsequently discuss and interview CLIENT with the material learned under the Government’s proposed order. This acts to severely restrict the defense and the ability to develop a cogent theory.


Note that you must show a compelling reason that the material is relevant and needed, and you must argue that such material must be provided timely to allow for the defense.

The next secton deals with painting the government in a bad light. You must show that the State has refused to provide the material, despite best efforts to coordinate. Usually this happens when the protective order constrains release of the material to anyone except those enumerated in the protective order itself, and the propsoed order lacks your client as an individual who can see the material.

GOVERNMENT’S RESPONSE
a. When Defense Counsel expressed a desire to review the material outside the presence of the Prosecution, Government’s Counsel responded:
I can agree to the protective order as it is currently written , for the reasons I forwarded to you on Monday. And again, you are welcome to come to our offices to review the video. See, Exhibit 3.

b. This comports with earlier Government statements indicating that the videos could only be reviewed in the Prosecutor’s office. Such coercive measures by the Government impinge on the Defense’s freedom of interference in the development of the case at bar, and are impermissible. See, Khaalis v. United States, 408 A.2d 313 (D.C. 1979) citing to Gregory v. United States, 125 U.S.App.D.C. 140, 143, 369 F.2d 185, 188 (1966) (a prosecutor's actions which "effectively [deny] defense counsel access to the [government] witnesses except in his presence" violate due process), after remand, 133 U.S.App.D.C. 317, 410 F.2d 1016, cert. denied, 396 U.S. 865, 90 S. Ct. 143, 24 L. Ed. 2d 119 (1969).

More specifically in Gregory at 188-189:
The current tendency in the criminal law is in the direction of discovery of the facts before trial and elimination of surprise at trial. A related development in the criminal law is the requirement that the prosecution not frustrate the defense in the preparation of its case. Information favorable to the defense must be made available to the defense. Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Reversals of convictions for suppression of such evidence, and even for mere failure to disclose, have become commonplace.


In further discussing the balance between Government access to information, pre-trial, and the Defense access to the same information, United States v. Shrake characterized Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208 (1973), as holding that rules about pretrial discovery in criminal prosecutions must apply to prosecutors as well as to defendants. “Access provided to private experts retained by the prosecution must be provided to private experts retained by the defense.” 515 F.3d 743, 747 (7th Cir. Wis. 2008).

United States v. Hitselberger, 991 F. Supp. 2d 91, 99-100 (D.D.C. 2013) discussed the obligation of the Government in discovery matters. [Referring to] Wardius v. Oregon, the Supreme Court held that liberal systems of discovery generally comported with the protections afforded to defendants under the Due Process Clause because allowing both parties the "maximum possible amount of information with which to prepare their cases...reduce[s]...surprise at trial" and would best serve the "ends of justice." 412 U.S. 470, 472 - 474, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973). The Court however places one important limitation on broad discovery rules: criminal defendants must be afforded reciprocal discovery rights. Id. at 472.


Finally, bring home the punch by showing that there is no legally defensible reason to prohibit access. Then...end the motion and get out!

By denying the Defense access to review, deconstruct, develop cross examination questions, and debate the evidence in the possession of the Government (in this case, the interviews), the Government is allowing its experts (the CAC licensed social workers) to freely investigate the case and the facts surrounding the case, without restriction, while prohibiting the defense such freedom.

Unlike a child pornography case, or a classified information case, there are no specific statutes at play, in the case at bar, that would prohibit the Government from providing the requested information. No justification has been given for making the discovery material “attorney eyes-only” or as to why [CLIENT] should be prohibited from viewing the same.

NOW THEREFORE, Your Defendant requests this Honorable Court grant the following relief:
a. Compel the Government to modify the protective order to include the following language (or similar, at the discretion of the Court), and immediately after execution, deliver the materials to the Defense.
“The Defendant (Respondent) will be permitted to view the material in the presence of defense counsel only; further, no copies of the materials, or transcripts of the same, shall be provided to Defendant (Respondent).”

b. Compel the Government to provide all statements made by CLIENT, and to provide a copy of any DVD or recorded medium related to the same.
c. In the alternative to (a) above, permit the Defense expert to interview both children and ask such questions as are appropriate for the full and complete investigation of allegations raised in this case.


Do you need help crafting a proper proposed protective order for criminal information shared with the defense? Need help with a serious criminal case? Let us assist you! We've been handling felony cases for years, and would be glad to chat about your case and the situation you are facing. You can reach us at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

The difference between "credible fear" and "reasonable fear" interviews by ICE/DHS

From time to time we run into this question -- what is the difference between there two types of interviews? A recent question asked on an immigration board, to which we belong, is typical:
I have a detained client who received a positive reasonable fear determination. I checked the law, and I cannot find anything that states his bond eligibility. Anyone have any information on this?

ANSWER: A reasonable fear determination (as opposed to a credible fear determination) is the term used by DHS/ICE when the detained individual has a prior removal order that is not extinguished (still active). Although this was not mentioned in the above scenario, judging from the term used ("reaosnable fear"), I would guess that is the case. If it is, the judge lacks the authority to issue a bond.

The controlling provisions for bond/custody re-determination hearings are found at INA §236; 8 CFR §1003.19 and 1236.1. The bond hearing is separate and apart from the removal hearings pursuant to 8 CFR §1003.19(d).

The kicker is here: The immigration judge has no authority to review custody determinations if the alien has an administratively final order of removal or deportation. INA § 241; 8 C.F.R. § 1236.1(d)(1); Matter of Valles, 21 I&N Dec. 769, 771 (BIA 1997); Matter of Uluocha, 20 I&N Dec. 133, 134 (BIA 1989); Matter of Sio, 18 I&N Dec. 176, 177 (BIA 1981); Matter of Vea, 18 I&N Dec. 171, 173 (BIA 1981).

It should be noted that because a credible fear determination stems from an aliens status as "arriving," immigration judges also lack authority to grant bond to individuals who have a positive credible fear determination, whether or not ICE/DHS grants them parole or bond.

Do you have an immigration question? Call us! We can help. We are experienced in both immigration court defense, and forms based business and family adjustments. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Sunday, April 2, 2017

Drug use and the I-485


Section 3 of the I-485 -- asking about drugs.


I had a chance to help a fellow practitioner the other day, and I thought I would share his question so others might benefit, too!
You do a ton of litigation, and I also know you are helpful to newer practitioners. I'm a newer practitioner, so I hope you don't mind me asking a question about AOS. My question is about the I-485 question in Part 3.C.1.a. "Have you ever, in or outside the United States: a. Knowingly committed...a drug-related offense for which you have not been arrested." I am trying to figure out how it comports with INA 212(a)(2)(i)(II). That section deals with inadmissibility relating to "admits committing acts which constitute the essential elements of" a drug-related offense." Are these two related?

This all comes about because of a client's discussion with me. If a client tells you they used drugs, do you think you are obligated to check "Yes" to Part 3.C.1.a.? Or do you think "Yes" requires something more than just your knowledge the client used drugs?

Your question fits into the general category or “once the cat is out of the bag (to the lawyer), am I obligated to do something about it?” The answer is…sometimes.

Generally, in order for you to take action on what you client says, it needs to be clearly and unequivocally a violation of some rule or law. And even then, you are not obligated to disclose it; rather you cannot sign or submit something that you know contains a material misstatement. The distinction is important. What the client chooses to say at, say a interview, or open Court, is up to the client. However, you cannot submit, under your signature, or as a proffer, something you know to be false.

To bring this back to your question – merely using drugs may or may not be illegal back in this person’s home country. You are not a lawyer (presumably) from his/her home country, so you can’t say for certain whether his/her action rises to the level of requiring a “yes” answer to 3.C.1. By the way, 3.C.1 is absolutely NOT the same as INA 212(a)(2)(i)(II). 3.C.1 has a “knowing” requirement that is absent in 212(a)(2)(i)(II) – and that is a significant difference in the criminal world.

Again, back to your question – unless the individual indicated, “yes, I have knowingly committed a drug offense in my home country” the answer would be – “I can’t say whether that is a drug offense in your home country, as I don’t practice law there. You can answer this question “No” if you believe it is not an offense, or you can contact a lawyer in your home country to get information on whether this is an offense or not.”

As a practical matter, unless he was arrested, or charged, there won’t be a record of anything. The risk here is minimal (in terms of USCIS learning of his prior drug use, absent an arrest or conviction). Now, if you have a dummy for a client who intends to blurt out that they like to smoke weed and do crack back in Fez – well, all bets are off.

Do you have an immigration question? Ask us! We're happy to help. We've handled immigration defense and filing for many years -- and we're glad to bring our expertise to bear for your case. 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Sunday, February 12, 2017

FLSA law suits - settlements that get approved



We recently handled an FLSA (Fair Labor Standards Act) lawsuit in the Eastern District of Virginia (VA Federal Court). After a bit of back and forth, we agreed on a settlement. I wanted to post a couple of pointers on how to handle FLSA settlement actions, as they are not the same as traditional civil action settlements. Because the requirements of the FLSA are statutory (defined at 29 USC 201 through 219), in order to settle a suit already filed with the Court, a judge must approve the settlement and ensure it satisfies the statutory requirements in order to constitute an effective "end" to the lawsuit. If the settlement agreement does not comport with the code, it will be denied.

Requirements of a Court Approved Settlement Agreement


Note: the rules governing FLSA settlements are strictly enforced by the Court. If you do it incorrectly, you run the risk of (a) having the settlement denied by the judge, and/or (b) the settlement will not preclude a subsequent lawsuit on exactly the same grounds. It can and does happen. And a prior settlement, not approved by the Court, will not stop a subsequent lawsuit on the exact same issue. There are some limited exceptions, but they are not strong, and not followed by most circuits.

Non-Court Approved Settlements


A settlement that is not submitted for approval by a Court is called a "private settlement" and is given no effect when there is a "bona fide dispute" regarding hours and wages most circuits. The Circuit Court in Florida stated it succinctly:
"[A]n employer undertakes the private resolution of an FLSA dispute at his peril. If the employer pays the employee in full, including all wages owed and liquidated damages, the employee retains no uncompensated FLSA claim and the peril dissipates. However, if the employer extracts a compromise, the release of an FLSA claim approved by neither the Department of Labor nor the district court remains unenforceable." Dees v. Hydradry, Inc., 706 F. Supp. 2d 1277, 1237-38 (M.D. Fla. 2010).

See also, Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982) which held the 29 USC 216 controls settlements on this type of case, and allows only Court approved or Department of Labor approved cases. Note that there was an opposite holding in the 5th circuit under Martin v. Spring Break ’83 Productions, L.L.C., 688 F.3d 247 (5th Cir. 2012). According to the Fifth Circuit, private settlements are enforceable if they provide all benefits that the employee would be entitled to under FLSA litigation because there is “little danger of employees being disadvantaged by unequal bargaining power.”

Three parts of a Court Approved Settlement Agreement


  1. You need the actual settlement agreement. The controlling case for FLSA settlement agreements, and what must be in them, can be found at Dorian Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015). This case makes clear that the only thing that may be settled in the agreement are the specific allegations of hours and work time during the period of the complaint. A settlement agreement MAY NOT settle all potential past and future claims, as that would put the settlement agreement in direct conflict with federal law on the matter of wages and hours. The term of art is "narrowly tailored" to address the specific period addressed in the complaint. As a matter of law, the look back period is limited to 2 years from the date of the filing of an FLSA lawsuit. You can wave the three year "intentional act" look back by agreement of the parties (however, the two year is always permitted, and therefore cannot be waived).

    A settlement agreement must demonstrate that the parties have reviewed all wage and hour claims during the given time frame, and that the employer has provided all time records so that the employee can confirm the time and hours worked. Absent an agreement that full disclosure has been made (or that the parties agree that it has been made), the Court cannot determine if (a) there is a bone fide dispute as to hours, (b) if the resolution is fair and fully resolves the conflict. See, Dorian Cheeks above. To demonstrate this, you must always include the punch records or time records with any proposed settlement, and both sides must sign-off indicating that they have received and reviewed the records.

    To ensure that the settlement is fair, when the employees are not represented by counsel, a cooling period must be provided. A copy of the settlement, along with time records, and any other documents, must be provided, and a minimum of 72 hours given for the employees to review the agreement, or withdraw their consent, if already signed.

    Note, that the parties can agree to alter the punch records to comport to what was "actually" worked, allowing both sides to negotiate and settle on a reasonable amount. The requirement is only that all time records during the period were considered, and that the parties each reviewed and agree to the record as amended. Any changes should be initialed by each side, indicating agreement specifically to a change in hours on a given day. Precision is critical so that the Court can determine the degree of understanding and consent to the settlement by each party.

    Remember, also, that in FLSA litigation, the employee will receive 2x the amount of the missing pay, as a statutory payment -- so if the employee should have been paid 100 hours of OT, but instead was paid 100 hours of straight time, they would be due 100 x (2 x base pay). The two times multiplies is statutory and cannot be waived in a settlement agreement. If you wish to control the amount paid, both parties must agree to a change in the hours, not the pay rate. Never change the pay rate.
  2. You must include a joint motion to dismiss the action with prejudice. The wording of this motion (and memorandum, if you don't combine the motion with a memorandum) follows a present format. See the attached document. Change as needed to fit your circumstances. NOTE! It is critical that you include that if payment of attorney fees is part of the settlement, the attorney fees were reasonably earned. Included a list of attorney hours unless it is $5000 or below (in which case, the Court generally will accept representation of counsel). Additionally, be sure to include that any additional attorney fees, over the amount paid in settlement (if any), are the responsibility of the party that incurred them. This should be part of the settlement, and expressly spelled out in the motion as well as the final order (see below).
  3. Finally, you include a proposed order that contains the specific wording needed to dismiss the suit an give effect to the settlement. See attached. Note, you include that attorney fees not paid in the settlement are expressly the responsibility of the respective party.


Do you have a question about employment litigation? Call us! We can help -- both in the defense of your business, or in the defense of your rights as an employee. We know the law, and we understand how to get things done! 1-800-579-9864 or admin@hanoverlawpc.com.



Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com

Thursday, January 26, 2017

Asking for forgiveness from the IRS -- Form 843



With tax season rolling around, we've received numerous questions regarding how to avoid paying penalties. Usually, we ask that clients come to us before the IRS wants to nail them, however, when you've made a boo-boo, or there is a mistake that needs correcting (or you just got caught cheating), sometimes the right answer can be found in form 843 -- Abatement of fees/costs/penalties. That's a fancy terms for waiving or lowering bad-boy penalties charged by the IRS.

Two criteria really make form 843 work well. First, if you filed to extend your tax paying deadline, and you let the IRS know there was an issue before you were late, you can almost always successfully ask for abatement (i.e. drop them penalties, b**ches...) Secondly, if the fault was not your own. For example, if you jointly filed, but your spouse didn't provide you with a W2, or an employer reported different numbers. Those would reasons. Additionally, we occasionally run into issue regarding pre-tax HSA spending (that's medical payments from your health savings account). If you don't file the correct forms, all the pre-paid tax credits are charged back to you, and any deductions from the account are not tax deductible. Oops! Correct the forms, and file and 843 to waive the penalty (if needed).

Be aware that in both instance above, timely filing of your taxes is critical. Although the IRS requires you to submit your estimated tax payment with the request for an extension, even if you do not, you have a good argument that you let them know what was going on. Communication is key. Finally, talk to a tax lawyer about form 843. No matter how good TurboTax or H&R Block is with tax processing, only a lawyer can give you legal advice about how to get out of an, "oops, I screwed up!" situation.

Finally, you MUST file a Form 864 if you intend to challenge your right to a refund or abatement in Court. Tax Court will NOT consider an abatement request that was not raised at an administrative hearing, or with an appeals officer. Giamelli v. Commissioner, 129 T.C. 107, 115 (2007). See also, Day v. Commissioner, T.C. Memo. 2014-215 (holding that an interest abatement claim was not properly raised in a CDP hearing where the taxpayer failed to follow advice to file Form 843 and provide other information in the CDP hearing). T.C. is an abbreviation for "tax court."

Do you have a tax question? We do taxes for business and individuals. We can help you find legal tax shelters, defend against audits, and even file 843's on your behalf! Never speak to the IRS without representation, and never respond to a proposed tax "correction" letter without consulting us first. Very important!. You may reach us at 1-800-579-9864 or Admin@HanoverLawPC.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
Charlet Herr, Practice Manager
1-800-579-9864
admin@hanoverlawpc.com