Latest 2 Cases: United States v. Driscoll (Criminal Law), Shawnee Tribe v. Mnuchin (Government & Administrative Law)

NYC’s Mandatory Collective Bargaining Agreements in Fast-Food Shops?

SAMUEL ESTREICHER, ZACHARY FASMAN

NYU law professor Samuel Estreicher and adjunct professor Zachary Fasman comment on two bills passed by the New York City Council that would mandate detailed and extensive labor protections for fast-food workers in New York City. Professors Estreicher and Fasman praise the intent behind the laws but explain why the City Council is not the place where binding agreements governing private workplaces in the City should be enacted.

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United States v. Driscoll

Docket: 19-3074

Opinion Date: January 5, 2021

Judge: Wilkins

Areas of Law: Criminal Law, White Collar Crime

ESPN published an article about Driscoll, the former president of a nonprofit organization, indicating that a former employee planned to file an IRS whistleblower complaint that might lead to charges of embezzlement and fraud against Driscoll. The following month, Driscoll participated in a child custody hearing against her ex-husband. Valdini, an IRS criminal investigator, watched testimony by a cousin of Driscoll’s ex-husband who was also the IRS whistleblower, and from Driscoll, telling Driscoll that he was a member of the public. Valdini had lunch with Driscoll’s ex-husband, who offered to aid in the criminal investigation. Driscoll was indicted for fraud and tax evasion. Defense counsel asked the court to authorize discovery on whether the government had used a civil “audit” process to gather information for Driscoll’s criminal case. In reply to the government's opposition, Driscoll raised the custody hearing for the first time. The court denied her motion. At trial, Valdini’s conduct at the child-custody hearing was revealed. Government counsel, previously unaware of Valdini’s lunch outing, disclosed Valdini’s actions to the court, which held an evidentiary hearing. Driscoll unsuccessfully moved for a mistrial or dismissal, arguing that Valdini’s presence at the child-custody hearing violated her right against self-incrimination and that the government violated Brady by failing to disclose Valdini’s conduct. The D.C. Circuit vacated Driscoll’s convictions, finding that the court’s anti-deadlock jury instructions likely coerced a unanimous verdict. The court found no prejudice on the Brady claim and did not address Driscoll’s pretrial discovery or Fifth Amendment arguments.

Shawnee Tribe v. Mnuchin

Docket: 20-5286

Opinion Date: January 5, 2021

Judge: David S. Tatel

Areas of Law: Government & Administrative Law, Native American Law

The Oklahoma Shawnee Tribe challenged the allocation of funds under the Coronavirus Aid, Relief, and Economic Security Act, 42 U.S.C. 801(a)(1). Of the $150 billion appropriated, the Act reserved $8 billion for “Tribal governments.” The amount paid to a Tribal government is determined by the Secretary of the Treasury “based on increased expenditures of each such Tribal government . . . relative to aggregate expenditures in fiscal year 2019 by the Tribal government." Rather than using the enrollment numbers submitted by the tribes, the Secretary relied on tribal population data used by HUD in connection with the Indian Housing Block Grant program.” That data does not reflect actual enrollment. The Secretary’s decision to use IHBG data had an unfortunate impact on the Shawnee Tribe, which had over $6.6 million in expenditures in 2019, and “incurred significant medical and public health expenses in responding to the devastation resulting from the COVID-19 pandemic.” It received $100,000. The district court, finding the allocation of funds under the Act unreviewable, dismissed the case. The D.C. Circuit reversed, with directions to enter a preliminary injunction promptly. By requiring that the allocations be “based on increased expenditures,” Congress has not left the Secretary with “unbounded” discretion. The court noted that the Secretary acknowledged that the IHBG data was inadequate as a proxy for increased expenditures in some cases but did not seek alternative information for the 25 tribes with no IHBG population.