Anthony Weiner has a good day in Congress & Every Republican voted AGAINST funding the Military and Food Safety

H.R. 5987, the Seniors Protection Act of 2010, failed to get a ⅔ majority vote on roll call 611. The supermajority was required because the bill was brought up under a suspension of the rules. A similar bill was defeated in the Senate, S. 3985, when the upper chamber failed to invoke cloture on Record Vote 267.

These measures were designed to provide a modest measure of relief to senior citizens receiving Social Security. There will be no cost of living [COLA] although expenses for seniors continue to rise. H.R. 5987, introduced by North Dakota Democratic Representative Earl Pomeroy, and S. 3985, introduced by Vermont's Independent Senator Bernie Sanders, provide for a onetime payment of $250.00 to seniors.

The vote margin for H.R. 5987 was 254 in favor and 153 against with 27 Members not voting. Twenty-six Republicans voted for this bill while twelve Democrats voted against passage. Had the Democrats held together this bill would have easily passed, 272 votes were needed to satisfy the supermajority requirement.

We may see H.R. 5987 again but I wonder why the Majority's Leadership didn't wait until later in the day to present the measure. The House took up H. Res. 1752 which waives the ⅔ majority requisite; a requirement of clause 6(a) of rule XIII with respect to consideration of certain resolutions reported from the Committee on Rules, and providing for consideration of motions to suspend the rules.

H. Res 1752 passed on roll call 615 by a margin of 215 to 194 with 24 Members not voting. Twenty-seven Democrats opposed this rules change. It will be interesting to see which resolutions are forthcoming under the provisions of H. Res. 1752.

H.R. 6495, the Robert C. Byrd Mine Safety Protection Act of 2010, still required the ⅔ supermajority on roll call 616. It didn't get it. This measure failed by a vote of 214 to 193 with 26 Members not voting. Twenty-seven Democrats voted against the bill which needed 272 votes to satisfy the supermajority requirement.

H.R. 6495 would require operators of underground coal mines, underground metal mines, or other underground mines containing specified concentrations of flammable gasses to improve employee safety measures and comply with new standards regarding employee rights. The CBO reported that the budgetary effect of H.R. 6495 would be a reduction in the deficit of $115 million from fiscal year 2011 through 2020.

New York's fiery Democratic Representative Anthony Weiner's H.R. 4501, the Guarantee of a Legitimate Deal Act, passed the House on roll call vote 620. This bill also required a ⅔ supermajority, and it got it. The margin of victory was 324 in favor to 81 against with 28 Members not voting, 270 was needed for passage. No Democrats voted against H.R. 4501 while 85 Republicans voted for the bill.

I am astonished that Weiner didn't call this the "Glenn Beck Deceptive Gold Advertising Act." Glenn Beck has notoriously served as the huckster in chief for one of the worst gold rip off businesses. This bill defines an "online purchaser of precious metals" as a person who is in the business of purchasing jewelry or other precious metals directly from consumers and maintains a website through which such person solicits such transactions.

The legislation, if passed in the Senate, will make it unlawful for any online purchaser of precious metals to: (1) refine or otherwise permanently destroy an item of jewelry or precious metal before receiving an affirmative acceptance of such purchaser's offer from the consumer to whom the offer was made; (2) fail to promptly return to the consumer any jewelry or other precious metal if the consumer declines the purchase offer; or (3) fail to insure any shipment in an amount equal to either 60% of the melt value or the amount the consumer insured the shipment for.

Violations under this bill will be treated as unfair and deceptive acts or practices under the Federal Trade Commission Act. The Federal Trade Commission [FTC] will be required to enforce this Act as though all applicable terms and provisions of that Act were incorporated into and made a part of this Act.

Each and every House Republican voting in roll call 622 said no to America's troops. H.R. 3082, the Full-Year Continuing Appropriations Act, 2011, was back before the House after passing the Senate with an Amendment. This bill funds America's military. This bill is also the vehicle for passing the Food Safety legislation. The FDA Food Safety Modernization Act, S. 510, is incorporated as Division "D" of H.R. 3082.

H.R. 5281, the Removal Clarification Act of 2010, was back from the Senate with Amendments. This bill clarifies the judicial code about when and how to remove cases from state court to federal court when suit is filed against the United States, a federal agency or officer, or specified others; or a criminal prosecution is commenced in a state court against any of them.

This bill passed the Senate by unanimous consent. It is not controversial, it's just housekeeping. That didn't stop the House from being deeply divided. The bill passed on roll call 625 with 216 in favor and 198 against.

Senator Joe Manchin - He's No Rubberstamp Democrat

West Virginia's new Senator, Joe Manchin, took office November 15th filling the balance of late Senator Robert Byrd. In a year in which dark money. funded by phantom donors, drove up the already high cost of campaigns Senator Manchin's win was of pivotal importance to maintaining a Democratic majority in the United States Senate. Resources were so scarce that the Democratic Senatorial Campaign Committee had to pull resources out of states like Missouri. Robin Carnahan lost to Roy Blunt, one of Washington's most corrupt Members of Congress - ever!!

Here's a look at the Record Votes cast by Senator Manchin since he was sworn into office.

Record Vote Number 249 was a vote on a Motion to Invoke Cloture on the Motion to Proceed to S. 3772, or limit debate, on, the Paycheck Fairness Act. This is a bill to amend the Fair Labor Standards Act of 1938 to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, and for other purposes.

Joe Manchin voted Yea. A three fifths majority is needed to invoke cloture. Sixty votes were needed and there were only 58 votes to invoke cloture. Nebraska's Democratic Senator Ben Nelson voted Nay. All of the Republicans voted Nay except Alaska's Lisa Murkowski who did not vote.

Record Vote Number 250 was a vote on a Motion to Invoke Cloture on the Motion to Proceed to S. 510, the FDA Food Safety Modernization Act. Like the title says, this is a major overhaul of food safety in America. Cloture was invoked by a vote of 74 in favor to 25 against with 1 Senator not voting. Senator Manchin voted to invoke cloture.

Record Vote Number 251was on a Motion to Proceed to S. 510. This measure passed on a vote of 57 in favor to 27 against with 16 Senators not voting.

Record Vote Number 252 was on the Motion to Invoke Cloture on the Harkin Amendment, No. 4715 S. 510. Senator Harkin's Amendment was in the nature of a substitute. Cloture was invoked by a vote of 69 in favor to 26 against with 5 Senators not voting. Senator Manchin voted Yea.

Record Vote Number 253 was on a Motion to Suspend Rule XXII Re: Senator Johanns Amendment. No. 4702. Senator Johanns' Amendment sought to repeal the expansion of information reporting requirements for payments of $600 or more to corporations, or at least that's what the Senate blurb says. If you read Amendment 4702 you learn this is an early attempt to begin dismantling Health Care Reform. Johann's Amendment wants to repeal Section 9006 of the Patient Protection and Affordable Care Act, and the amendments made thereby, and the Internal Revenue Code of 1986 shall be applied as if such section, and amendments, had never been enacted. Section 9006 requires businesses that pay any amount greater than $600 during the year to corporate and non-corporate providers of property and services to file an information report with each provider and with the IRS. Information reporting is already required on payments for services to non-corporate providers. all businesses will have to issue 1099 tax forms not just to contractors but to any individual or corporation from which they buy more than $600 in goods or services in a tax year. Currently forms 1099 need only be issued to individuals, not corporations.

Under a suspension of the rules a supermajority of ⅔ is required. This measure failed by a vote of 61in favor to 35 against with 4 Senators not voting. 64 votes were required. Senator Manchin, and 17 other Democratic Senators voted to repeal § 9006.

Record Vote 254 was on a Motion to Suspend Rule XXII Re: Baucus Amendment No. 4713, to S. 510. This was a second attempt to gut § 9006. This amendment failed by a vote of 44 in favor to 53 against with 3 Senators not voting.

Record Vote 255 was on a Motion to Suspend Rule XXII Re: Coburn Amendment. No. 4697 to S. 510. That amendment sought to establish an Earmark Moratorium for the period of fiscal years 2011 through 2013. This amendment failed on a vote of 39 in favor and 56 against with 5 Senators not voting. Senator Manchin voted Nay.

Record Vote 256 was on a vote on a Motion to Suspend Rule XXII Re: Coburn Amendment. No. 4696 to S. 510. In this case Senator Coburn's Amendment is in the nature of a substitute, to modernize Federal food safety efforts without placing unnecessary burdens on food producers, increasing food prices, or saddling taxpayers with additional debt. This amendment was rejected on a vote of 36 in favor and 62 against with 2 Senators not voting. Senator Manchin voted Nay.

Record Vote 257 was on Passage of S. 510 as amended. The bill passed on a vote of 73 in favor 25 against and 2 Senators not voting. Senator Manchin voted Yea.

Record Vote 258 was on a Motion to Invoke Cloture on Motion to Concur in the House Amendment to Senate Amendment With Amendment No. 4727 to H.R. 4853. This was the Senate's version of the Middle Class Tax Cut. The motion failed on a vote of 53 in favor and 36 against with 11 Senators not voting. Senator Manchin voted Nay. Four other Democratic Senators voted Nay. Had all the Democratic Senators voted Yea the measure would have still failed. No Republicans stood up for America's Middle Class in the Senate.

Record Vote 259 was on a Motion to Invoke Cloture on Amendment No. 4728. This was the compromise proposed by Senate Democrats on the Middle Class Tax Cut which raised the threshold from $250,000 of reportable earned income to $1,000,000. The motion failed on a vote of 53 in favor and 37 against with 10 Senators not voting. Senator Manchin voted Yea. Once again no Republicans stood up for America's Middle Class in the Senate.

Record Vote 260 was on a Motion to Disaggregate the Articles of Impeachment Against Judge Thomas G. Porteous. Recall that impeachments begin in the House of Representatives they are in the nature of charges not unlike indictments. In this case the Articles of Impeachment, four of them, are listed in H. Res. 1031, a resolution impeaching G. Thomas Porteous, Jr., judge of the United States District Court for the Eastern District of Louisiana, for high crimes and misdemeanors.

This motion failed by a vote of 94 negative votes to 0 votes in favor, with 6 Senators not voting. Senator Manchin voted Nay.

Record Vote 261 was on the question of Guilty or Not Guilty (Article I, Articles of Impeachment v. Judge G. Thomas Porteous ). This Article of Impeachment alleges engaged in a pattern of conduct that is incompatible with the trust and confidence placed in him as a Federal judge by accepting cash and other things of values from attorneys with cases being tried in his courtroom.

Judge Porteous was found guilty on a vote of 96 to 0 with 4 Senators not voting. Senator Manchin voted to find Judge Porteous guilty.

Record Vote 262 was on the was on the question of Guilty or Not Guilty (Article II, Articles of Impeachment v. Judge G. Thomas Porteous ). Article II alleged that Judge Porteous engaged in a corrupt relationship with bail bondsman Louis M. Marcotte, III, and his sister Lori Marcotte.

As part of this corrupt relationship, Judge Porteous solicited and accepted numerous things of value, including meals, trips, home repairs, and car repairs, for his personal use and benefit, while at the same time taking official actions that benefitted the Marcottes.

These official actions by Judge Porteous included, while on the State bench, setting, reducing, and splitting bonds as requested by the Marcottes, and improperly setting aside or expunging felony convictions for two Marcotte employees (in one case after Judge Porteous had been confirmed by the Senate but before being sworn in as a Federal judge).

In addition, both while on the State bench and on the Federal bench, Judge Porteous used the power and prestige of his office to assist the Marcottes in forming relationships with State judicial officers and individuals important to the Marcottes' business. As Judge Porteous well knew and understood, Louis Marcotte also made false statements to the Federal Bureau of Investigation in an effort to assist Judge Porteous in being appointed to the Federal bench.

Judge Porteous was found guilty by the Senate on a vote of 69 guilty votes to 27 not guilty votes with 4 Senators not voting. Senator Manchin voted not guilty.

Record Vote 263 was on the was on the question of Guilty or Not Guilty (Article III, Articles of Impeachment v. Judge G. Thomas Porteous ). Article III alleged that while a Federal judge in the United States District Court for the Eastern District of Louisiana, G. Thomas Porteous, Jr., engaged in a pattern of conduct inconsistent with the trust and confidence placed in him as a Federal judge by knowingly and intentionally making material false statements and representations under penalty of perjury related to his personal bankruptcy filing and by repeatedly violating a court order in his bankruptcy case. Judge Porteous did so by -- (1) using a false name and a post office box address to conceal his identity as the debtor in the case; (2) concealing assets; (3) concealing preferential payments to certain creditors; (4) concealing gambling losses and other gambling debts; and (5) incurring new debts while the case was pending, in violation of the bankruptcy court's order.

Judge Porteous was found guilty by the Senate on a vote of 88 guilty votes to 8 not guilty votes, with 4 Senators not voting. Senator Manchin voted not guilty.

Record Vote 264 was on the was on the question of Guilty or Not Guilty (Article IV, Articles of Impeachment v. Judge G. Thomas Porteous ). Article IV alleged that Porteous knowingly made material false statements about his past to both the United States Senate and to the Federal Bureau of Investigation in order to obtain the office of United States District Court Judge.

Judge Porteous was found guilty by the Senate on a vote of 90 guilty votes to 6 not guilty votes, with 4 Senators not voting. Senator Manchin voted guilty.

Record Vote 265 was on the Motion to Forever Disqualify G. Thomas Porteous, Jr. to Hold and Enjoy Any Office of Honor, Trust, or Profit Under the United States. The motion was agreed to by a vote of 94 Yeas to 2 Nays with 4 Senators not voting. Senator Manchin voted Yea.

Record Vote 266 was on Motion to Invoke Cloture on the Motion to Proceed to S. 3991, the Public Safety Employer-Employee Cooperation Act of 2010. This is a bill to amend the Fair Labor Standards Act of 1938 to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, and for other purposes. The cloture motion was rejected by a vote of 58 Yeas to 41 Nays with 1 Senator not voting. Senator Manchin voted Yea.

Record Vote 267 was on a Motion to Invoke Cloture on the Motion to Proceed to S. 3985, the Emergency Senior Citizens Relief Act of 2010. In lieu of a cost of living adjustment [COLA] this bill provides for an emergency offset by sending each Social Security recipient a check for $250. The motion was rejected by a vote of 53 Years to 45 Nays with 2 Senators not voting.

Record Vote 268 was on Motion to Table the Motion to Proceed to S. 3992 the Senate's version of the DREAM Act; a bill to authorize the cancellation of removal and adjustment of status of certain alien students who are long-term United States residents and who entered the United States as children and for other purposes. The Senate Tabled the Dream Act, meaning it will not be considered, by a vote of 59 in favor to 40 opposed with 1 Senator not voting. Senator Manchin voted to table the bill.

Record Vote 269 was on a Motion to Invoke Cloture on the Motion to Proceed to H.R. 847, the James Zadroga 9/11 Health and Compensation Act of 2010 . This is the bill making provisions for the emergency responders on 9/11. Cloture on the Motion to Proceed was rejected by a vote of 57 in favor to 42 against with 1 Senator not voting. Senator Manchin voted Yea.

Record Vote 270 was Upon Reconsideration, a Motion to Invoke Cloture on the Motion to Proceed to S. 3454, the National Defense Authorization Act for Fiscal Year 2011. For the first time in 48 years a defense authorization bill is being held up in the Senate. This House version of this bill, H. R. 5136, contains language repealing the Don't Ask Don't Tell policy of excluding gays and lesbians from military service.

The motion to invoke cloture was rejected by a vote of 57 in favor to 40 opposed with 3 Senators not voting. Senator Manchin was the only Democratic Senator voting against invoking cloture.

Record Vote 271 was on a Motion to Table the Motion to Refer the House Message on H.R. 4853 to the Committee on Finance. Senator Reid wanted to send the bill to the Finance Committee so they could come back with Senate Amendment 4729. That amendment was tabled by Record Vote 271. The Amendment sought to study the impact of any delay in extending tax cuts to middle income Americans with incomes up to $250,000.

The Motion to Table was Agreed to by a vote of 65 in favor and 11 opposed with 24 Senators not voting. Senator Manchin voted in favor of tabling the amendment.

Joe Manchin looks like he's trying to figure this deal out. He missed badly on the Middle Class Tax Cut and Don't Ask Don't Tell. Nevertheless those issues didn't get torpedoed by him. The truth is that it is going to take 60 votes to do business in the Senate. Right now Senate Republicans are holding American hostage. That's obstinance not governance. 

Los Angeles County v. Humphries, 42 U.S.C. § 1983, & When is Municipal Liability Triggered?

Los Angeles County, California v. Humphries, Case Number 09-350, was handed down by the Supreme Court November 30th. The question before the Court is whether Monell’s “policy or custom” requirement applies only to claims for damages but not to claims for prospective relief. See, Monell v. New York City Dept. of Social Services, 436 U. S. 658, 694.

The Humphries, respondents, were accused of child abuse in California. Their names were added to a registry, the Child Abuse Central Index created pursuant to The California Child Abuse and Neglect Reporting Act, Cal. Penal Code Ann. §11164 et seq., (Index), automatically for a period of ten years.

Here's the wrinkle. The Humphries were exonerated. California failed to have a way for the wrongfully accused to be removed from the Index. The Humphries filed suit under 42 U.S.C. §1983, seeking monetary damages, an injunction, and a declaration that public officials and petitioner Los Angeles County had deprived them of their constitutional rights by failing to create a mechanism through which they could contest inclusion in the Index.

The District Court for the Central District of California granted summary judgment to all of the defendants/petitioners on the ground that California had not deprived plaintiffs/respondents of a constitutionally protected “liberty” interest. The Humphries appealed to the Ninth Circuit Court of Appeals.

The Ninth Circuit reversed holding that the Humphries were entitled, under the Fourteenth Amendment, with notice and a hearing. The Humphries were entitled to declaratory relief. The court also held that respondents were prevailing parties entitled to attorney’s fees, including $60,000 from the county.

Los Angeles County objected, falling back on Monell, said they were a "municipality" and therefore only liable if its “policy or custom” caused the deprivation of a plaintiff’s federal right. It was the State of California's liability, Los Angeles County was saying, not theirs.

The Ninth Circuit, said it might be the County's responsibility to create a procedure for the Humphries to contest inclusion in the Index. Since that issue is not clearly in the record on appeal the matter is remanded to the District Court to determine the County's liability under Monell. The appellate court found no reason to remand with respect to the issue of the County's liability for the award of attorney's fees. The Ninth Circuit having found, inter alia, that respondents did prevail against the county on their claim for declaratory relief because Monell did not apply to prospective relief claims.

In this case the Supreme Court held that Monell’s “policy or custom” requirement applies in §1983 cases irrespective of whether the relief sought is monetary or prospective. The case is reversed and remanded.

This is, oddly enough, another case dealing with what the law considers to be a "person". In Monroe v. Pape the Court held that municipalities were not “person[s]” under §1983 on the provision’s legislative history, particularly Congress’ rejection of the so-called Sherman amendment, which would have made municipalities liable for damages done by private persons “ riotously and tumultuously assembled. ” The Court in Monell overruled Monroe, after reexamining this legislative history in Monell. The Monell Court concluded that Congress had rejected the Sherman amendment, not because it would have imposed liability on municipalities, but because it would have imposed such liability solely based on the acts of others. The Court, overruling Monroe, held that municipalities were “persons” under §1983. As such they are amenable to suit.

The Monell Court ruled that the municipality cannot be sued because of the acts of others, but remains liable for carrying out governmental policy or custom which results in injury otherwise actionable under law.

In this case the Court rejects the bifurcation of equitable remedies from monetary damages to say when the municipality's immunity under Monell applies. The Court found the respondent's argument against Los Angeles County without merit.

Nothing in §1983 suggests that the causation requirement should change with the form of relief sought. In fact, the text suggests the opposite when it provides that a person who meets §1983’s elements “shall be liable . . . in an action at law, suit in equity, or other proper proceeding for redress.”

“[L]local governing bodies . . . can be sued directly under§1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes” a policy or custom, citing Monell.

To find the “policy or custom” requirement inapplicable in prospective relief cases would also undermine Monell’s logic. For whether an action or omission is a municipality’s “own” has to do with the nature of the action or omission, not with the nature of the relief that is later sought in court.

Breyer writes: "In sum, in Monell the Court held that “a municipality cannot be held liable” solely for the acts of others, e.g., “solely because it employs a tortfeasor.” ... But the municipality may be held liable “when execution of a government’s policy or custom . . . inflicts the injury.”

On remand the question may be whether the Humphries have a protected liberty interest in being able to remove their names from the Index.  Or should the Humphries have joined the State of California as plaintiffs?

Associate Justice Breyer wrote the opinion of the Court in which all members, other than Associate Justice Kagan, joined. Associate Justice Kagan did not participate in any part of the consideration or decision of this case.

42 U.S.C. § 1983

“Every person who, under color of any [state] statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any . . . other per-son . . . to the deprivation of any rights . . . secured by the Constitution and laws [of the United States], shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

THE HOUSE IS GETTING READY TO GET BUSY. COMING UP - 1. H. RES. 1752, WAIVING THE "SAME DAY" REQUIREMENT WHICH TRIGGERS ⅔ SUPERMAJORITY VOTES; SENATE AMENDMENTS TO H.R. 5281; 2. THE DREAM [DEVELOPMENT, RELIEF, AND EDUCATION FOR ALIEN MINORS]ACT, 3. H.R. 3082. THE MILITARY CONSTRUCTION AND VETERANS AFFAIRS AND RELATED AGENCIES APPROPRIATIONS ACT OF 2010

It is obvious the House intends to finish the lame duck session of the 111th Congress on a strong note. They are preparing to waive the "same day: requirement which says if a bill is introduced on a given day, and it is brought to a vote on that same day, then it takes a ⅔ supermajority to pass the bill. Time is running out and the House leadership wants to get the business out the door.

H. Res. 1752 has three major provisions. First this will waive clause 6(a) which requires the ⅔ vote on same day bills considered under suspension of the rules. Second it applies the waiver through the legislative day of December 18th. Finally it provides that the Speaker or her designee will consult with the Minority Leader or his designee on matters for consideration by the House under H. Res. 1752. The House is planning to clear the decks and unload the ship. It ought to be an interesting few days.

The DREAM ACT is about to be appended to H.R. 5281, the REMOVAL CLARIFICATION ACT OF 2010. Removal is a legal term of art that says the lawsuit will be removed from one court and placed with another court which has superior jurisdiction. H.R. 5281 provides for the removal of cases from state courts to federal courts under two circumstances. First, any civil action against the United States or a federal agency or officer, or other persons specified by law. Second, in criminal prosecutions commenced in a state court against any of the persons or entities described above.

The DREAM Act is a whole different ball of wax. Several versions of the DREAM Act have been introduced, they are: H.R.6327, H.R.1751, H.R.6497, S.729, S.3827, S.3962, S.3963, and S.3992.

You can read the complete version of the DREAM ACT at the House Rules Committee website: http://www.rules.house.gov/111/rule/dream.pdf, it is on the second page of the pdf.

The proposed provisions apply to children brought to the United States when they were 15 years old or younger and sets a ceiling on those persons now being no more than 29 years old. These persons will be given conditional nonimmigrant status, which sounds like a societal version of equitable adoption. That means we are going to treat them like our own kids. They are excluded from excluded from receiving government subsidies to participate in the health insurance exchanges created by the Affordable Care Act. They cannot get Pell Grants.

They can get benefits by participating, that includes federal work study and student loans as well as social insurance programs to which they have contributed, as this would require them to earn or repay the money they need for their education.

Good behavior is required. Conditional nonimmigrant status must be terminated if the participant fails to continue to meet the conditions for receiving that status, including having good moral character, keeping a clean criminal record, and staying self-sufficient. If they join the military they must be discharged honorably.

After 10 years in conditional status, the Dream Act then gives this limited group of individuals the chance to earn lawful permanent resident status, but only if the applicant meets additional standards such as having paid taxes; having demonstrated the ability to read, write, and speak English and demonstrates knowledge and understanding of the fundamentals of the history, principles, and form of government of the United States.

H.R. 3082 passed the House on July 10, 2010 by a vote of 415 to 3, that was roll call vote 529. It cleared the Senate on November 17, 2009 by a vote of 100 to 0, that was Record Vote Number 348. The Senate insisted on its Amendments and the bill went to conference.

The House is accepting the bill as amended by the Senate and adding the following Amendment.

"The House amendment freezes FY 2011 discretionary appropriations at the FY 2010 level; providing $45.9 billion less than the President requested for the year. Within that ceiling, the resolution adjusts funding between programs and accounts to deal with current demands and workloads and avoid furloughs. Overall, the resolution includes $513 billion for the Department of Defense, $4.9 billion above 2010; $75.2 billion for military construction and veterans, $1.4 billion below 2010; and $501.4 billion for all other appropriations, $3.5 billion below 2010. It also includes $159 billion for the war, as the President requested; prohibits funding for Congressional earmarks; freezes non-military Federal pay for two years, as requested by the President; and allows fee funded programs to continue to be financed from fees.

The FDA Food Safety and Modernization Act grants the Food and Drug Administration authorities it needs to better oversee the safety of the nation’s food supply. The bill includes expanded authority for FDA to inspect records relating to food, and requires FDA to increase inspections of high-risk food facilities. In addition, it provides for the creation of a more accurate registry of all food facilities serving American consumers, improved traceability of the history of food in the event of a foodborne illness outbreak, certification of certain foreign food imports as meeting all food safety requirements, and protection for whistleblowers that bring attention to important food safety information.

The Senate recently passed the Food Safety and Modernization Act with one major problem. Parts of that bill, as originated and passed in the Senate, raise revenue. All bills which raise revenue must originate in the House of Representatives. That is a Constitutional provision found in Article I § 7.

LEAGALIZED LOAN SHARK QC HOLDINGS HAS BEEN GREASING THE SKIDS IN CONGRESS WITH CASH EXTRACTED PAINFULLY FROM THE WORKING POOR

QC Holdings spent a lot of money in Campaign 2010. They spread their blood money among both political parties. Democratic Members of Congress should immediately return this tainted cash. QC Holdings owns and operated the legalized loan sharking businesses that cash pay day loans. They charge exorbitant interest rates. An excellent perspective of legalized loan sharking and role We The People are now playing in the Poverty Industry in these post-bailout times was written by Don McNay and published on the Huffington Post. You should give it a good read, http://www.huffingtonpost.com/don-mcnay/wall-street-and-legalized_b_669787.html.

Who Got The Money Painfully Extracted from the Working Poor?

The Center for Responsive Politics' OpenSecrets.org lists the following persons as getting sizeable contributions from QC Holdings.

1. Representative Alcee L. Hastings [D-FL] took $2,000 from the QC Holdings Inc., PAC. Hastings serves on the Rules Committee and the Permanent Select Committee on Intelligence

2. Representative Baron Hill [D-IN] took $2,000 from the QC Holdings Inc., PAC. Hill serves on the Joint Economic Committee, the Committee on Energy and Commerce, and the Committee on Science and Technology.

3. Representative Debbie Wasserman Schultz [D-FL] took $6,000 from the QC Holdings Inc., PAC. Wasserman Schultz serves on the Committee on Appropriations and the Joint Committee on the Library.

4. Representative Travis W Childers [D-MS] took $3,000 from the QC Holdings Inc., PAC. He serves on the House Committees for Agriculture and Financial Services.

5. Representative Lynn Jenkins [R-KS], this is the person who fails to represent my district. Jenkins took $17,500 from QC Holdings. $12,500 from individuals associated with QC Holdings and $5,000 from the QC Holdings Inc., PAC. She serves on the House Financial Services Committee and its Subcommittees on Capital Markets, Insurance, and Government Sponsored Enterprises and Housing and Community Opportunity.

6. Representative-elect Tim Huelskamp [R-KS] took $4,500 from the QC Holdings Inc., PAC.

7. Representative Carolyn B Maloney [D-NY] took $4,000 from the QC Holdings Inc., PAC. She serves on the House's Joint Economic Committee, the Committee on Financial Services, the Committee on Oversight and Government Reform, and the following Subcommittees: Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), Domestic Monetary Policy and Technology (Financial Services), Financial Institutions and Consumer Credit (Financial Services), Information Policy, Census, and National Archives (Oversight and Government Reform), National Security and Foreign Affairs (Oversight and Government Reform).

8. Representative Walt Minnick [D-ID] took $4,000 from the QC Holdings PAC. He serves on the House Committees on Agriculture and Financial Services and these Subcommittees: Rural Development, Biotechnology, Specialty Crops, and Foreign Agriculture (Agriculture), Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), Conservation, Credit, Energy, and Research (Agriculture), Financial Institutions and Consumer Credit (Financial Services), Livestock, Dairy, and Poultry (Agriculture).

9. Representative Heath Shuler [D-NC] took $6,000 from the QC Holdings PAC. Shuler serves on the House Committees for Small Business and Transportation and Infrastructure and the Subcommittees on Economic Development, Public Buildings, and Emergency Management, (Transportation and Infrastructure), Highways and Transit (Transportation and Infrastructure), Investigations and Oversight (Small Business), Rural Development, Entrepreneurship and Trade (Small Business).

10. Representative John Salazar [D-CO] took $4,000 from the QC Holdings Inc., PAC. He serves on the Committee on Appropriations and the Select Committee on Energy Independence and Global Warming.

11. Representative Edolphus Towns [D-NY] took $4,000 from the QC Holdings Inc., PAC. He serves on the Committee on Oversight and Government Reform.

12. Representative Mike Ross [D-AR]took $3,000 from the QC Holdings Inc., PAC. He serves on the following House Committees: the Committee on Energy and Commerce and the Committee on Foreign Affairs. He serves on these Subcommittees: Asia, the Pacific, and the Global Environment (Foreign Affairs), Energy and Environment (Energy and Commerce), Health (Energy and Commerce), Oversight and Investigations (Energy and Commerce), The Middle East and South Asia (Foreign Affairs).

13. James A Barnett [R-KS] lost the primary contest to Tim Huelskamp, he took $3,000 from the QC Holdings PAC.

14. Representative Jim Matheson [D-UT] took $2,500 from the QC Holdings Inc., PAC. He serves on the Committees on Energy and Commerce and Science and Technology. He serves on these Subcommittees: Commerce, Trade, and Consumer Protection (Energy and Commerce), Energy and Environment (Science and Technology), Energy and Environment (Energy and Commerce), Health (Energy and Commerce).

15. Representative William L Clay Jr [D-MO] took $2,400 from the QC Holdings Inc., PAC. He serves on the House Committees for Financial Services, the Committee on Oversight and Government Reform, and these Subcommittees: Domestic Monetary Policy and Technology (Financial Services), Federal Workforce, Postal Service, and the District of Columbia (Oversight and Government Reform), Financial Institutions and Consumer Credit (Financial Services), Housing and Community Opportunity (Financial Services), Information Policy, Census, and National Archives (Oversight and Government Reform).

16. Republican David Lloyd Thomas, who lost to Republican Representative-elect Trey Gowdy in the race for South Carolina's 4th District.

17. Representative Spencer Bachus [R-AL] took $2,000 took $2,400 from the QC Holdings Inc., PAC. He serves on the House Financial Services Committee.

18. Representative Lincoln Davis [D-TN] took $2,000 from the QC Holdings Inc., PAC. He serves on these House Committees: the Committee on Foreign Affairs and the Committee on the Judiciary. He serves on these Subcommittees: Crime, Terrorism, and Homeland Security (Judiciary), Europe (Foreign Affairs), International Organizations, Human Rights, and Oversight (Foreign Affairs), The Middle East and South Asia (Foreign Affairs).

19. Representative Ted Deutch [D-FL] took $2,000 from the QC Holdings Inc., PAC. He serves on the House Committees for Foreign Affairs and the Judiciary. He serves on the Subcommittees for Crime, Terrorism, and Homeland Security (Judiciary), Europe (Foreign Affairs), International Organizations, Human Rights, and Oversight (Foreign Affairs), and The Middle East and South Asia (Foreign Affairs).

20. Representative Brad Sherman [D-CA] took $2,000 from the QC Holdings Inc., PAC. He serves on these House Committees: the Committee on Financial Services and the Committee on Foreign Affairs. He serves on these Subcommittees: •Asia, the Pacific, and the Global Environment (Foreign Affairs), Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), Domestic Monetary Policy and Technology (Financial Services), Financial Institutions and Consumer Credit (Financial Services), Terrorism, Nonproliferation, and Trade (Foreign Affairs), and The Middle East and South Asia (Foreign Affairs).

21. Representative Bill Foster, [D-IL] took $2,000 from the QC Holdings Inc., PAC. He serves on the House Committees on Financial Services and Oversight and Government Reform. He serves on these Subcommittees: Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), Domestic Policy (Oversight and Government Reform), Financial Institutions and Consumer Credit (Financial Services), and National Security and Foreign Affairs (Oversight and Government Reform).

22. Representative Pete Sessions [R-TX] $2,000 from the QC Holdings Inc., PAC. He Serves on the House Rules Committee and the Subcommittee on Rules and Organization of the House (Rules).

23. Representative Scott Garrett [R-NJ] took $2,000 from the QC Holdings Inc., PAC. He Serves on the Committees on the Budget and Financial Services. He is on theses Subcommittees: Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), Financial Institutions and Consumer Credit (Financial Services).

24. Representative Mark Schauer [D-MI] took $2,000 from the QC Holdings Inc., PAC. He serves on the Committees for Agriculture and Transportation and Infrastructure. His Subcommittee assignments are: Aviation (Transportation and Infrastructure), Conservation, Credit, Energy, and Research (Agriculture), Highways and Transit (Transportation and Infrastructure), and Railroads, Pipelines, and Hazardous Materials (Transportation and Infrastructure).

25. Representative Deborah Halvorson [D-IL] took $2,000 from the QC Holdings Inc., PAC. She serves on these Committees: the Committee on Agriculture, the Committee on Small Business, and the Committee on Veterans' Affairs. She serves on these Subcommittees: Conservation, Credit, Energy, and Research (Agriculture), Contracting and Technology (Small Business), Disability Assistance and Memorial Affairs (Veteran's Affairs), Finance and Tax (Small Business), General Farm Commodities and Risk Management (Agriculture), and •Health (Veteran's Affairs).

26. Representative Ed Royce [R-CA] took $2,000 from the QC Holdings Inc., PAC. He serves on these Committees: Committees: Financial Services and Foreign Affairs. His Subcommittees assignments are: Asia, the Pacific, and the Global Environment (Foreign Affairs), Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), Financial Institutions and Consumer Credit (Financial Services), International Monetary Policy and Trade (Financial Services), Terrorism, Nonproliferation, and Trade (Foreign Affairs), and The Middle East and South Asia (Foreign Affairs).

27. Representative Stephanie Herseth Sandlin [D-SD] took $2,000 from the QC Holdings Inc., PAC. She serves on these Committees: Agriculture, Natural Resources, the Select Committee on Energy Independence and Global Warming, and Veterans' Affairs. She is on these Subcommittees: Conservation, Credit, Energy, and Research (Agriculture), Economic Opportunity (Veteran's Affairs), General Farm Commodities and Risk Management (Agriculture), and National Parks, Forests and Public Lands (Natural Resources).

28. Representative Peter Roskam [R-IL] took $2,000 from the QC Holdings Inc., PAC. He serves on the Committee on Ways and Means. He is on these Subcommittees: Income Security and Family Support (Ways and Means), Oversight (Ways and Means), and the Select Revenue Measures (Ways and Means).

29. Representative Paul E Kanjorski [D-PA] took $2,000 from the QC Holdings Inc., PAC. He serves on these Committees: Financial Services and Oversight and Government Reform. He serves on these Subcommittees: Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), Financial Institutions and Consumer Credit (Financial Services), Government Management, Organization, and Procurement (Oversight and Government Reform), and Housing and Community Opportunity (Financial Services).

30. Representative Gary Peters [D-MI] took $2,000 from the QC Holdings Inc., PAC. He serves on these Committees: Financial Services and Science and Technology. He serves on these Subcommittees: Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), International Monetary Policy and Trade (Financial Services), and Technology and Innovation (Science and Technology).

31. Representative Suzanne Kosmas [D-FL] took $2,000 from the QC Holdings Inc., PAC. She serves on these Committees: Financial Services and Science and Technology. She serves on these Subcommittees: Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), Domestic Monetary Policy and Technology (Financial Services), and Space and Aeronautics (Science and Technology).

32. Representative Patrick J Murphy [D-PA] took $2,000 from the QC Holdings Inc., PAC. He serves on these Committees: Committee on Appropriations and the Permanent Select Committee on Intelligence. He serves on these Subcommittees: Commerce, Justice, Science, and Related Agencies (Appropriations), Energy and Water Development, and Related Agencies (Appropriations), Intelligence Community Management (HIG), Legislative Branch (Appropriations), Oversight and Investigations (HIG), and Technical and Tactical Intelligence (HIG).

33. Representative Frank M Kratovil Jr [D-MD] took $2,000 from the QC Holdings Inc., PAC. He serves on these Committees: Agriculture, Armed Services, and Natural Resources. He serves on these Subcommittees: Air and Land Forces (Armed Services), Conservation, Credit, Energy, and Research (Agriculture), Horticulture and Organic Agriculture (Agriculture), Insular Affairs, Oceans and Wildlife (Natural Resources), Livestock, Dairy, and Poultry (Agriculture), and Readiness (Armed Services).

34. Representative Gregory W Meeks [D-NY] took $2,000 from the QC Holdings Inc., PAC. He serves on these Committees: Financial Services and Foreign Affairs. He serves on these Subcommittees: Africa and Global Health (Foreign Affairs), Asia, the Pacific, and the Global Environment (Foreign Affairs), Domestic Monetary Policy and Technology (Financial Services), Financial Institutions and Consumer Credit (Financial Services), International Monetary Policy and Trade (Financial Services), and The Western Hemisphere (Foreign Affairs).

35. Representative Patrick McHenry [R-NC] took $2,000 from the QC Holdings Inc., PAC. He serves on these Committees: Budget, Financial Services, and the Committee on Oversight and Government Reform. He serves on these Subcommittees: Financial Institutions and Consumer Credit (Financial Services), •Information Policy, Census, and National Archives (Oversight and Government Reform), National Security and Foreign Affairs (Oversight and Government Reform), and Oversight and Investigations (Financial Services).

36. Star Parker [R-CA] took $2,000 from the QC Holdings Inc., PAC. She ran unsuccessfully against Democratic Representative Laura Richardson in the California 37th District race.

37. Representative Rob Wittman [R-VA] took $1,000 from the QC Holdings Inc., PAC. He serves on these Committees: Armed Services and Natural Resources. He serves on these Subcommittees: Insular Affairs, Oceans and Wildlife (Natural Resources), National Parks, Forests and Public Lands (Natural Resources), Oversight and Investigations (Armed Services) Readiness (Armed Services), and Seapower and Expeditionary Forces (Armed Services).

38. Gilbert Cedillo [D-CA] took $1,500 from the QC Holdings Inc., PAC. He lost in the primary to Democratic Representative Judy Chu from California's 32nd District.

39. Representative Yvette Clarke [D-NY] took $1,500 from the QC Holdings Inc., PAC. She serves on these Committees: Education and Labor, Homeland Security, and Small Business. She serves on these Subcommittees: Contracting and Technology (Small Business), Emerging Threats, Cybersecurity, and Science and Technology (HHM), Health, Employment, Labor and Pensions (Education and Labor), Healthy Families and Communities (Education and Labor), Intelligence, Information Sharing, and Terrorism Risk Assessment (HHM), Rural Development, and Entrepreneurship and Trade (Small Business).

40. Representative Jackie Speier took $1000 from the QC Holdings Inc., PAC. She serves on these Committees: Financial Services, Oversight and Government Reform, and the Select Committee on Energy Independence and Global Warming. She serves on these Subcommittees: Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), Financial Institutions and Consumer Credit (Financial Services). Government Management, Organization, and Procurement (Oversight and Government Reform), Oversight and Investigations (Financial Services).

41. Representative Jean Schmidt [R-OH] took $1000 from the QC Holdings Inc., PAC. She serves on these Committees: Agriculture and Transportation and Infrastructure. She serves on these Subcommittees: Aviation (Transportation and Infrastructure), Conservation, Credit, Energy, and Research (Agriculture), Department Operations, Oversight, Nutrition, and Forestry (Agriculture), Highways and Transit (Transportation and Infrastructure), Horticulture and Organic Agriculture (Agriculture), and Railroads, Pipelines, and Hazardous Materials (Transportation and Infrastructure).

42. Representative Ron Klein [D-FL] took $1000 from the QC Holdings Inc., PAC. He serves on these Committees: Financial Services and Foreign Affairs. He serves on these Subcommittees: Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), Financial Institutions and Consumer Credit (Financial Services), Oversight and Investigations (Financial Services), Terrorism, Nonproliferation, and Trade (Foreign Affairs), The Middle East and South Asia (Foreign Affairs), and The Western Hemisphere (Foreign Affairs).

43. Representative Dennis Cardoza [D-CA] took $1000 from the QC Holdings Inc., PAC. He serves on these Committees: Agriculture and Rules. He serves on these Subcommittees: Horticulture and Organic Agriculture (Agriculture), Legislative and Budget Process (Rules), and Livestock, Dairy, and Poultry (Agriculture).

44. Representative Danny Davis [D-IL] took $1000 from the QC Holdings Inc., PAC. He serves on these Committees: Oversight and Government Reform and Ways and Means. He serves on these Subcommittees: Federal Workforce, Postal Service, and the District of Columbia (Oversight and Government Reform), Income Security and Family Support (Ways and Means), Information Policy, Census, and National Archives (Oversight and Government Reform), and Oversight (Ways and Means).

45. Representative Kevin McCarthy [R-CA] took $500 from the QC Holdings Inc., PAC. He serves on these Committees: Office of the Chief Deputy Republican Whip, Financial Services, House Administration, and the Joint Committee on Printing. He serves on these Subcommittees: Capital Markets, Insurance, and Government Sponsored Enterprises (Financial Services), Elections (HHA), and Financial Institutions and Consumer Credit (Financial Services).

46. Last but not least is Republican Representative-elect Kevin Yoder [R-KS] who took $10,000 from the QC Holdings PAC.

No Democrat should accept money from a predatory lender. Democrats support the working poor and cannot be seen to be taking money from those whose businesses leach vitality from the remnants of America's Middle Class.

Data was supplied by the Center for Responsive Politics' OpenSecrets.org at http://www.opensecrets.org/pacs/pacgot.php?cycle=2010&cmte=C00411769

WAL-MART v. DUKES, THE SUPREME COURT IS RECONCILING RULE 23 (CLASS ACTIONS)

Yesterday the Supreme Court issued an Order in the case of Wal-Mart Stores, Inc., Petitioner v. Betty Dukes, et al. This case is the largest employment class action case in history.

The Court limited the parties in the case to the first question presented by the petitioner in their Petition for Certiorari. That question is: "Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances." In addition the Court asked the parties to brief and argue "[w]hether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a)."

Proceedings Below

This case began in June, 2001 when Betty Dukes filed a pro se complaint against Wal-Mart in the United States District Court for the Northern District of California in San Francisco, California. The plaintiff's central claim is that "thousands of local managers intentionally discriminated against women in making millions of individualized, allegedly subjective pay and promotion decisions. They seek "billions" in back pay and punitive damages under Title VII." Quote taken from Wal-Mart's Petition for Rehearing En Banc before the Ninth Circuit Court of Appeals.

Title VII refers to Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex and national origin.

At the trial level the district court certified a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure. This is a class of over 1.5 million women, employed over a five-year period at approximately 3,400 Wal-Mart stores. The plaintiffs claimed that Wal-Mart discriminated against women by paying them less than Wal-Mart paid men for performing the same work and women received fewer in store promotions leading to management than did male employees.

The trial court created a separate opt-out class encompassing the same employees for punitive damages. That means class members who did not want a share of any punitive damages, if any, could opt-out of receiving their share of such damages. Remember that punitive damages in civil law are similar to criminal sanctions in the penal code. Each are designed to deter future harmful conduct by those who would commit the offending acts in the future.

Even though the class is extremely large, the claims it presents are not. The class is seeking only pay and promotion and those claims are limited to Title VII. The Plaintiffs want injunctive and declaratory relief for the class, lost pay and punitive damages, but did not seek compensatory damages. The Ninth Circuit affirmed the District Court.

The first question the Court wants to look at is the issue of certifying monetary damages under Rule 23(b)(2). That is "(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole;"

The Second question the Court has directed the parties to present is whether Rule 23(b)(2) is consistent with consistent with Rule 23(a). That is "(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Rule 23(a) is the threshold applicable to all class action suits.

When you read Rule 23 you will not find any provision certifying monetary damages. Those issue are subordinate to issues of law. Title VII claims give rise to monetary damages. A class action certified pursuant to 23(b)(2) provides for equitable relief under Title VII. The Court is asking whether that limits the Title VII relief to the damages in equity or whether the provisions of Rule 23(a) permit monetary damages because the parties' Title VII claims  are, to the class, common questions of law; the Title VII claims of the named plaintiffs are typical to the class; and are those Title VII claims of the class being fairly and adequately protected by the representative parties.

The Court may be considering a modification to Rule 23 to better clarify which monetary damages can be awarded by class action law suits. This case is far from over.

UNITED STATES CODE ANNOTATED

Rule 23. Class Actions

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

(c) Determining by Order Whether to Certify a Class Action; Appointing Class Counsel; Notice and Membership in Class; Judgment; Multiple Classes and Subclasses. (1)(A) When a person sues or is sued as a representative of a class, the court must--at an early practicable time--determine by order whether to certify the action as a class action. (B) An order certifying a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).

(C) An order under Rule 23(c)(1) may be altered or amended before final judgment.

(2)(A) For any class certified under Rule 23(b)(1) or (2), the court may direct appropriate notice to the class.

(B) For any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable

effort. The notice must concisely and clearly state in plain, easily understood language: . the nature of the action,

. the definition of the class certified,

. the class claims, issues, or defenses,

. that a class member may enter an appearance through counsel if the member so desires,

. that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and

. the binding effect of a class judgment on class members under Rule 23(c)(3).

(3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

(4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

(d) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders: (1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time.

(e) Settlement, Voluntary Dismissal, or Compromise.

(1)(A) The court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class.

(B) The court must direct notice in a reasonable manner to all class members who would be bound by a proposed settlement, voluntary dismissal, or compromise.

(C) The court may approve a settlement, voluntary dismissal, or compromise that would bind class members only after a hearing and on finding that the settlement, voluntary dismissal, or compromise is fair, reasonable, and adequate.

(2) The parties seeking approval of a settlement, voluntary dismissal, or compromise under Rule 23(e)(1) must file a statement identifying any agreement made in connection with the proposed settlement, voluntary dismissal, or compromise.

(3) In an action previously certified as a class action under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.

(4)(A) Any class member may object to a proposed settlement, voluntary dismissal, or compromise that requires court approval under Rule 23(e)(1)(A).

(B) An objection made under Rule 23(e)(4)(A) may be withdrawn only with the court's approval.

(f) Appeals. A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.

(g) Class Counsel.

(1) Appointing Class Counsel.

(A) Unless a statute provides otherwise, a court that certifies a class must appoint class counsel.

(B) An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.

(C) In appointing class counsel, the court (i) must consider:

. the work counsel has done in identifying or investigating potential claims in the action,

. counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action,

. counsel's knowledge of the applicable law, and

. the resources counsel will commit to representing the class;

(ii) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;

(iii) may direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs; and

(iv) may make further orders in connection with the appointment.

(2) Appointment Procedure.

(A) The court may designate interim counsel to act on behalf of the putative class before determining whether to certify the action as a class action.

(B) When there is one applicant for appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1)(B) and

(C). If more than one adequate applicant seeks appointment as class counsel, the court must appoint the applicant best able to represent the interests of the class.

(C) The order appointing class counsel may include provisions about the award of attorney fees or nontaxable costs under Rule 23(h).

(h) Attorney Fees Award. In an action certified as a class action, the court may award reasonable attorney fees and nontaxable costs authorized by law or by agreement of the parties as follows:

(1) Motion for Award of Attorney Fees. A claim for an award of attorney fees and nontaxable costs must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision, at a time set by the court. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.

(2) Objections to Motion. A class member, or a party from whom payment is sought, may object to the motion.

(3) Hearing and Findings. The court may hold a hearing and must find the facts and state its conclusions of law on the motion under Rule 52(a).

(4) Reference to Special Master or Magistrate Judge. The court may refer issues related to the amount of the award to a special master or to a magistrate judge as provided in Rule 54(d)(2)(D).

Will Democratic Representative-elect Cedric Richmond be a Superstar?

New Orleans' Democratic Representative-elect Cedric Richmond

Cedric Richmond, the Democratic Representative-elect from New Orleans [Louisiana's 2nd Congressional District], is either a scoundrel or a superstar. Those who dislike Richmond dislike him with a white hot intensity. NOLA.com, the web presence of New Orleans' famous Times Picayune newspaper, gives him favorable reviews.

Representative-elect Richmond caught my attention because he is the first Democrat in the current season, when I began paying attention to these things, who is having a Debt Retirement Party.

It's not that I am against retiring debt. Put the debt on display, we have campaign finance reports filed with the FEC and we have OpenSecrets.org compiling that data. If you're going to haul off and have a fundraiser to retire your debt, then show us the debt. Richmond qualifies by showing debt.

Richmond is reporting that his campaign raised $894,227, spent $772,099, has cash on hand in the amount of $120,026. Richmond shows debt of $170,631. See, http://www.opensecrets.org/politicians/summary.php?cid=N00030184&newMem=Y

This fundraiser is scheduled for Zea's Restaurant in New Orleans. It will be a lunch on December 7th, according to the Sunlight Foundations's Party Time. http://politicalpartytime.org/party/24076/#invite. That's refreshing, a politician having a fundraiser in his own district. Zea's of course is a Louisiana treasure with locations throughout the state and in Alabama and Texas.

It looks like the Political Development Group is managing the event for Richmond. The Political Development Group has filled the niche for other Democrats including Missouri's Russ Carnahan, New Mexico's Marin Heinrich, and Colorado's cartwheel turning Ed Perlmutter. Perlmutter was supposed to be in a squeaker with Republican Ryan Frazier in Campaign 2010. Upon winning decisively, Perlmutter celebrated with cartwheels.

The suggested contributions for lunch a Zea's with Representative-elect Richmond seem standard $5000 for a Host, $2,500 for a Sponsor, and $500 for a Guest. The checks are to be made payable to the Richmond for Congress Committee and sent to Political Development Group's D.C. address.

One note about the Political Development Group. They seem to have their eye on the ball. What's left of campaign finance law sets limits on how much a person can legally give a candidate for a given election cycle. PDG keeps it clean by directing contributors to the General Election Debt. Nice clean accounting keeps everyone out of trouble. Good job PDG.

Richmond defeated one term Republican Joseph Cao. Democratic Representative Charlie Melancon was bested by Republican Senator David Vitter, proving that Republicans don't give a rat's petunia about family values. The Melancon seat, Louisiana's 3rd District went to Republican Jeff Landry. Cedric Richmond is the lone Democrat in the Louisiana delegation.

Richmond is the only Democratic candidate in Campaign 2010 for whom President Obama cut a television commercial. Richmond, who plays basketball, will be an important asset for New Orleans with his inside track to the White House.

Richmond goes to Washington with legislative experience under his belt in Baton Rouge. You can make odds that Richmond, who lambasted Cao for being a back bencher will make his presence known on the Hill.