Circuit Court of Appeals rules that hearsay testimony is admissible to support the issuance of a preliminary injunctionMullins v. City of New York, USCA, 2nd Circuit, 08-1839-cv, Decided November 11, 2010 The Circuit Court of Appeals affirmed a District Court ruling enjoining the City of New York and the New York City Police Department from investigating and disciplining a New York City police officer based upon testimony or participation in a pending lawsuit, concluding that hearsay testimony is admissible to support the issuance of a preliminary injunction, and the district court did not abuse its discretion in granting preliminary injunctive relief based in part on such evidence. About 4300 current and former New York City police sergeants sued the City, claiming "systematic violations of their overtime rights under the Fair Labor Standards Act of 1938 ("FLSA").* One plaintiff, Sergeant Paul Capotosto, Citywide Secretary of the Sergeants Benevolent Association, testified at the preliminary injunction hearing, reciting at least a dozen phone calls he received from worried plaintiffs in the lawsuit, who expressed concern to him that the NYPD was retaliating against them for their participation in the lawsuit. Another plaintiff, Sergeant Edward Scott, alleged that his retirement was "administratively deferred" pending resolution of an unspecified "disciplinary matter" some months later. It subsequently "came to light that [Scott] was under investigation for testimony he had given during his deposition." Sergeant Scott stated that, at the time, "I believed that if I withdrew from this FLSA lawsuit, the City would close its investigation into my deposition testimony." The Circuit court ruled that the district court did not abuse its discretion in finding either that Mullins, the named plaintiff in the action, is likely to succeed on the merits of their FLSA retaliation claim, or that Mullins established that irreparable harm is likely to flow from the putative FLSA violation absent injunctive relief and dismissed the Department's arguments, concluding "that they are without merit." * This case may renew the question "Do federal courts have jurisdiction to consider alleged violations of the FLSA in actions brought against state and local governments?" A decision by the U.S. Supreme Court holds that the federal courts have no authority to enforce the FLSA on non-federal governments under the 11th Amendment, which limits federal judicial power ["the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State"]. The development of the jurisdiction of federal courts to consider alleged violations of the FLSA involving State and local governments is somewhat convoluted. In 1996 the U.S. Supreme Court ruled that Congress cannot expand the authority of the judiciary beyond the constraints of the Eleventh Amendment by adopting laws pursuant to the Indian Commerce Clause. [Seminole Tribe v Florida, 116 S. Ct. 1114]. This decision profoundly affected FLSA issues because the Fair Labor Standards Act was enacted by Congress pursuant the Interstate Commerce Clause, which the Supreme Court said was indistinguishable from the Indian Commerce Clause. The Supreme Court next indicated it was overruling its decision in Pennsylvania v Union Gas, 491 US 1, an "Interstate Commerce Clause case," on the grounds that it had been "wrongly decided." Following the Seminole ruling, a number of federal courts decided that federal courts lack power to enforce the provisions of the FLSA in a law suit against a State or a political subdivision of that State. Distinguishing between the State as the employer and political subdivisions of the State as the employer, however, the Supreme Court may have signaled a retreat from this expansive view. In a footnote in the Auer v Robbins, 519 U.S. 452, the Supreme Court commented that insofar as the Eleventh Amendment is implicated, a board of municipal police commissioners "does not share the immunity of the State of Missouri". According to the Supreme Court's footnote in Auer, Congress may exercise its regulation of interstate commerce only to the extent that it does not frustrate the rights of the States, in contrast to the rights of political subdivisions of a State, as set out in the Eleventh Amendment. In enacting FLSA, Congress defined the term "employer" to include a "public agency." It further defined a "public agency" as … the government of a state or a political subdivision thereof; any agency of … a State; or any interstate governmental agency." Another complication: In deciding National League of Cities v Usery, 426 U.S. 833, the U.S. Supreme Court held that the Fair Labor Standards Act did not apply to public employers, only to later declare that the Equal Pay Act, which is part of the Fair Labor Standards Act, did apply to public employers even if its minimum wage and overtime provisions did not. The Court said that the Equal Pay Act was applicable in cases arising out of claims of discrimination between wages paid men and those paid women for performing essentially the same job, i.e., it was not enforced pursuant to Congress' authority to regulate interstate commerce pursunt to the Commerce Clause but rather under the 14th Amendment. Later still, the Supreme Court distinguished between "traditional" and "non-traditional" governmental functions insofar as FLSA was concerned. "Traditional governmental functions" are usually considered to be those involving health, education, welfare and the exercise of police powers by the state whereby in Garcia v San Antonio Metropolitan Transit Authority, 53 LW 413, the Supreme Court said that the Fair Labor Standards Act applied to public employees engaged in "non-traditional" governmental functions, in this instance the operation of a public transit system. The Mullins decision is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/doc/08-1839-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a875d9d0-1216-45a4-b3f8-c8858fc68469/1/hilite/ NYPPL
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