U.S. Marshals face contempt of court for refusing to follow a federal judge’s orders and disrupting court proceedings in Aberdeen.
On March 25, Judge Charles Kornmann issued a memo to his Aberdeen courthouse staff asking them all to tell him in writing whether they had gotten their shots for coronavirus or, if not, when and where they had scheduled their vaccinations.
We are not talking about politics or conspiracy theories. We are talking about science and protecting all of us who serve the public here as well as the jurors, lawyers, and parties who come to this building. If you are refusing to take the vaccines, I want to know that so I can decide what further action is required on my part. I hope we will all act in a responsible manner as I am not looking for confrontations [Judge Charles Kornmann, memorandum to Aberdeen courthouse staff, 2021.03.25].
Judge Kornmann was following up on a similar memo from our district’s Chief Judge Roberto Lange. Judge Lange supported Judge Kornmann’s memo with a district-wide staff e-mail on April 1 in response to questions he received from staff. According to Judge Lange every judge in the South Dakota district supports Judge Kornmann’s position on ensuring the safety of their workplace:
First, nothing in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) bars federal judges or the federal judiciary from learning which employees are and are not vaccinated. We researched HIPAA before we modified our juror questionnaire to ask if potential jurors have been or are scheduled to be vaccinated. We have a right, and indeed in my view an obligation in assuring the safety of the workplace, to find out who has and has not been vaccinated. All of the district judges have discussed and agreed that we will have to know who has and has not been vaccinated to decide how we are going to conduct court operations going forward [Judge Roberto Lange, e-mail to South Dakota District Court staff, 2021.04.01].
Judge Lange made clear that South Dakota’s federal judges expect all federal courthouse employees to get their shots:
Second, we have discussed a date by which we expect all employees to be vaccinated and likely end teleworking arrangements. That date probably will be June 1, 2021. That will allow ample time for all to get vaccinated and indeed for any with vaccine hesitancy to observe that the vaccines are indeed safe and effective. For those with vaccine hesitancy, I implore you to talk with your physician or medical provider. I would make myself personally available as well to discuss and address concerns; I surely would like to know if I have overlooked a particular grounds for vaccine hesitancy in sending the Johns Hopkins information an in my prior email. For those with vaccine hesitancy, please know that vaccines have solved polio, rubella, tetanus, measles, rabies, whooping cough, mumps, chickenpox, diphtheria, etc. You likely have had your children vaccinated to enter school, and your pets vaccinated for their well-being. A miniscule [sic] percentage of people with anaphylaxis are excused from being vaccinated for COVID-19, and we will accommodate any such employee in the unlikely event that we have one. Although I do not expect any of you to be so calculating, no one should expect that they can refuse to get vaccinated and thereby continue teleworking; that will not occur [Lange, 2021.04.01].
Judge Lange then told any radical vaccine opponents that maybe they aren’t cut to work for Uncle Sam:
Third, if any of you labor under such extreme views that the federal government is implanting a chip through this vaccine, then you should not work for the federal judiciary and need to find work elsewhere. I truly hope that none of you are so prideful and stubborn that this email steels your resolve not to be vaccinated. But if that is the case, then you have some soul searching to do this Easter season about whether you belong in a team setting such as we have here [Lange, 2021.04.01].
Judge Lange concluded by saying, “Let’s all get vaccinated as soon as possible so that we can all move forward as a team and without this being an issue.”
Alas, the U.S. Marshals aren’t team players. On April 15, U.S. Marshal for the South Dakota District Daniel Mosteller told Judge Kornmann that he and his South Dakota Marshals refuse to give their coronavirus vaccination information:
The C-19 vaccinations were approved by the FDA under an Emergency Use Authorization (EUA). The EUA allows the FDA to authorize unapproved medical products to be used in an emergency. Given the EUA status of the C-19 vaccination, the USMS is not requiring employees to be vaccinated, at this time. Aside from the emergency use status issue, there are addition areas that cause me concern. Compelling individuals to be vaccinated or delving into their rationale/reasoning for not being vaccinated is very problematic. We are encroaching on EEO statuses when it concerns medical information, disabilities, and religious beliefs. As such, at this time, USMS employees will not be providing their respective vaccination status to the Court [U.S. Marshall Daniel C. Mosteller, letter to Judge Charles Kornmann, 2021.04.15].
Judge Lange took this refusal straight to the top of the Marshal Service. On May 4, Judge Lange wrote to the U.S. Marshals’ chief of staff in Washington, John Kilgallon, to make clear that South Dakota’s judges have the authority and the obligation to ask anyone entering their courtrooms whether they’ve been vaccinated for coronavirus:
Guidance from the Administrative Office of U.S. Courts makes clear: “Inquiring whether an employee has ben vaccinated for COVID-19 is not a prohibited disability-related injury.” There is nothing in the Health Insurance Portability and Accountability Act preventing us from learning vaccination status of employees. Indeed, we need to know precisely who among out employees remain unvaccinated to mitigate their risk of contracting the virus and to control the risk they pose to others in the courthouse, including members of the public and other federal employees.
I expect that we can all agree on the following: 1) the COVID-19 vaccine is safe and effective; 2) people who are vaccinated are far less likely to become infected with COVID-19 and become less ill if infected than those who are unvaccinated; 3) the vaccine is readily available to all Deputy U.S. Marshals and court employees; 4) the safest courtroom is one where everyone is fully vaccinated; 5) a report of a COVID-19 positive from someone who works in the courtroom at a minimum disrupts scheduling and working through the backlog of criminal hearings and cases; 6) we in management have a dual responsibility of safety of employees as well as performing our jobs to serve the interests of justice; 7) knowing the vaccination status of an employee is important to formulating and taking precautions, as well as knowing who is at greatest risk to contract and spread the virus; 8) getting people vaccinated is critical in achieving so-called herd immunity and ending this pandemic; and 9) the District Court and U.S. Marshals Service have a shared interest in ensuring the safety of the courtroom and courthouse.
With these interests in mind, this Court likely will debar from chambers and courtrooms all its employees who refuse to be vaccinated. The district judges in South Dakota also want to avoid having unvaccinated Deputy U.S. Marshals in the courtrooms [Judge Roberto Lange, letter to John Kilgallon, Chief of Staff to Director of United States Marshal Service, 2021.05.04].
Choosing anti-vaccine stubbornness over public safety and respect for the courts, the Marshals provoked a courtroom confrontation on May 10. Judge Kornmann ordered a deputy Marshal to leave his courtroom when she refused to tell the judge whether she’d been vaccinated:
A deputy marshal from Sioux Falls, on May 10, entered the courtroom with a prisoner in tow. I asked her in the courtroom whether she had been fully vaccinated. She refused to answer and I ordered her to leave the courtroom and not return until I knew the answer to the question. She attempted to take the prisoner from the courtroom and I told her to leave the prisoner where he was, with his attorney, at counsel table, so we could proceed with the hearing. At least one court security officer (fully vaccinated) is at all times in the courtroom. The refusing officer was very discourteous and frankly had to be told she was bordering on contempt of court, whereupon she left and was replace by a part time person under contract with the Marshals Service who told me he was fully vaccinated. We continued with the a.m. hearings [Judge Charles Kornmann, Order to Show Cause, In Re Contempt Sanctions Against Kilgallon, Mosteller, and Houghtaling, 2021.05.19, pp. 4–5].
But when Judge Kornmann turned to the afternoon hearings, he learned the the Marshals had left the Aberdeen courthouse during lunch and removed defendants who were scheduled to appear before Judge Kornmann. In court, Judge Kornmann got Chief Deputy Stephen Houghtaling on the phone to ask what the heck was going on:
THE COURT: Did you order the marshals to remove the prisoners who were here pursuant to a court order?
CHIEF DEPUTY HOUGHTALING: Your Honor, with the exclusion of our deputy from the courtroom, we cannot safely provide the level of security we need for — to proceed with court proceedings. Our policy requires deputy marshals in the courtroom. And I cannot achieve that without — without deputies physically being in the courtroom during court proceedings.
THE COURT: You had a deputy here who was fully vaccinated so I don’t believe that statement.
THE COURT: That’s correct.
CHIEF DEPUTY HOUGHTALING: So with that, Judge, we need to be able to have deputies perform the court security function.
THE COURT: You had a deputy here. And he was in the courtroom and handled the hearing.
CHIEF DEPUTY HOUGHTALING: Are you referring to Mr. Kolb by chance? Scott Kolb?
THE COURT: I don’t know his name, I’m sorry.
THE CLERK: Steve, I believe the reference is to the what I’m going to call as the guard that the Marshals Service uses up here.
CHIEF DEPUTY HOUGHTALING: Yep. So, Judge, Mr. Kolb is a part-time employee of ours. You have probably seen him for some time — he has worked with us for years and years — as long as I’ve been in the District. But he alone does not meet our national policy to staff court proceedings. We can have the deputy marshal in addition to Mr. Kolb, but we cannot just have Mr. Kolb staffing a court proceeding with no deputy marshals. Your Honor.
THE COURT: Let me ask you this. Did you make the decision to order them to remove the prisoners?
CHIEF DEPUTY HOUGHTALING: The Marshals Service made the decision, Your Honor, yes.
THE COURT: Who — who in the Marshals Service did that?
CHIEF DEPUTY HOUGHTALING: It was the U.S. Marshal for the District and I believe in consultation with our headquarters.
THE COURT:Without any consultation with the Court?
CHIEF DEPUTY HOUGHTALING: No, Your Honor. I did attempt to call Ms. Paepke earlier and she advised you were in court. But based on—based on the exclusion, we don’t have much of a choice. We cannot safely move forward with the court proceedings, Judge, at this point.
THE COURT: Are you aware of the fact that the Marshal sent me an email probably two weeks ago inquiring what the policy was and I emailed him back and told him that no employees, including U.S. marshals, who were not vaccinated –fully vaccinated would be in the courtroom or my chambers.
CHIEF DEPUTY HOUGHTALING: I am aware, Judge, yes. The Marshals Service, I could tell you, has taken a position and responded to Chief Judge Lange this morning that the Marshals Service employees do not have to disclose their vaccination status to third parties, including the Court.
That’s the position of the Marshals Service at the national level, which was — which came in response to Judge Lange’s letter that he sent last week, Judge, which I thinkyou’re familiar with.
THE COURT; Yes. Well —
CHIEF DEPUTY HOUGHTALING: So our headquarters responded today with the guidance that Marshals Service personnel do not have to give their vaccination status to third parties, including the federal judiciary.
THE COURT: The Administrative Office of the U.S. Courts says that’s wrong. So I guess we have a direct confrontation between the Marshals Service and the Administrative Office, as well as all of the federal judges in South Dakota [courtroom phone conversation between Judge Charles Kornmann and Deputy Marshal Stephen Houghtaling, transcribed in U.S. District Court of South Dakota, Northern District, Aberdeen, SD, 2021.05.10].
During the call, Judge Kornmann noted that by refusing to produce the defendants for their scheduled court appearances, the Marshals were “tying up a lot of lawyers as well—as well as the court personnel and keeping people in custody longer than they should be probably.” Off the phone, Judge Kornmann said he was open to the idea of having the marshals sit with defendants in a video conference room downstairs to conduct hearings. “I’m not trying to make things difficult for anybody. But I’m going to make sure that the courts run the courts, not the Marshals Service or some bureaucrat from Washington.”
The judge got Houghtaling back on the line to propose the videoconference solution. Houghtaling said he could get the defendants back to the building by the afternoon. But that didn’t change Judge Kornmann’s intent to hold a contempt hearing. On May 19, Judge Kornmann filed contempt sanctions against Chief of Staff Kilgallon, Marshal Mosteller, and Chief Deputy Marshal Houghtaling for disrputing his court’s proceedings on May 10. In his order to show cause, Judge Kornmann says the court’s authority and public health prevail over any claim the marshals may make:
Public health comes first. We are dealing with a disease which is highly infectious, that is easily transmittable indoors, and that can kill those infected. There is no right of any person to thwart this Court’s safety measures to protect court personnel as well as the public. Certainly, no employee of another federal agency has the right to interfere with the Court’s authority or the conduct of criminal and civil court proceedings [Kornmann, Order to Show Cause, 2021.05.19, p. 3].
Judge Kornmann says that Deputy Marshal Houghtaling’s claim that their policy requires two deputies be present with defendants is pretextual hogwash contradicted by past practice:
I do not believe there is or ever was any policy that is consistently followed in Aberdeen by which at least two deputy marshals are in the courtroom for each hearing. A number of years ago, the then Chief Deputy Marshal wanted to hold all hearings, including criminal cases, with only court security officers present. I told him that I wanted at least one deputy in the courtroom for all hearings. They followed that policy for many years. It appears to be a subterfuge to now claim that two deputies must be in the courtroom. If there is or was such a policy, it has rarely been followed here [Kornmann, Order to Show Cause, 2021.05.19, p. 6].
Judge Kornmann also pointedly questions whether the Marshals really give a darn about the safety of the people in the courtroom:
I had always thought that the principle responsibilities [sic] of the Marshals Service was the protection of the federal judiciary. As it stands now, they could well be the most dangerous people in the courtroom in a given case. I do not know the answer to that as I have no information since deputies, with the encouragement and full support of their supervisors, are refusing to tell me whether they have been vaccinated or not [Kornmann, Order to Show Cause, 2021.05.19, pp.6–7].
The Marshals dispute Judge Lange and Kornmann’s citation of Administrative Office support for their vaccine requirement. In a May 10 response to Judge Lange, Chief of Staff Kilgallon says the AO only encourages vaccines and specifically discourages mandates or punishments for failure to vaccinate:
While the Marshals Service strongly encourages our DUSMs and all other employees to be vaccinated, we are not mandating it. This is consistent with other federal employers, as we are not aware of any other federal (or State) department or agency currently requiring its employees to take the COVID-19 vaccine. This is also consistent with the guidance provided by the Administrative Office of the U.S. Courts (“the AO”), which recommends that employees be encouraged to receive the vaccine, but that vaccinations not be mandated or required as a basis for excluding employees from the workplace. The AO has also stated that “any adverse action for violating a vaccination mandate, directive or policy is implicitly an unauthorized and impermissible mandate” [Chief of Staff John Kilgallon, Office of the Director, U.S. Marshals Service, letter to Judge Roberto Lange, 2021.05.10].
News reports and a Montana federal court order subsequent to the Marshals May 10 mutiny indicate the Administrative Office of the U.S. Courts is indeed not recommending vaccine requirements; however, the U.S. Court’s own May 27 blog post makes no such definitive statement and suggests vaccine requirements are up to the district courts. In his Order to Show Cause, Judge Kornmann indicates he is “fully aware of the apparently upcoming advice from the administrative office of the United Courts. I respectfully disagree with their advice.” Judge Kornmann maintains that he, not the Marshals, have the authority to establish rules to protect the people in his courtroom and that by “kidnaping” defendants and preventing them from appearing at their scheduled hearings, the Marshals “interfered with the administration of justice… without regard to the statutory and constitutional rights of the criminal defendants, the busy schedules of attorneys, and the disruption of judicial staff.”
Judge Kornmann has ordered Kilgallon, Mosteller, and Houghtaling to appear in his courtroom on June 14 to answer for their contempt of his court.
p.s.: Interestingly, while Marshal Mosteller claimed that inquiring into employees’ coronavirus vaccination status is “problematic,” Chief of Staff Kilgallon said in his May 10 letter that “approximately 52% of our Deputy U.S. Marshals nationwide are fully vaccinated. In the District of South Dakota approximately 44% of our Deputy U.S. Marshals are fully vaccinated.”
pp.s.: On May 21, Chief Judge Lange issued Standing Order 21-6 exempting fully vaccinated individuals from wearing a mask in common areas of federal courthouses in South Dakota. “Anyone who falsely claims to be fully vaccinated and goes without a mask may be subject to contempt of court proceedings for violating this order.” SO 21-6 also says “A gaiter, bandana, or handkerchief does not qualify as a mask….”
ppp.s.: On May 25, Judge Kornmann issued Standing Order 21-7, a supplement to Judge Lange’s SO 21-6, requiring anyone not fully vaccinated against coronavirus or whose vaccination status is unknown to wear an N-95 mask or a double mask and stay six feet away from all other persons at all times inside the courthouse. SO 21-7 also forbids any such individual from entering “the chambers of the court, library rooms, office of the magistrate, office of the judicial assistant, office of the law clerks, the bathroom adjacent to the copy room, the 4th floor jury room, or the copy room.”
Isn’t nice to know that fully 56% of South Dakota Deputy U.S. Marshalls are NOT fully vaccinated and, obviously, have no intention of being so. Time to hire some new help. At $85,000 a year for a salary (plus federal benefits), we should be able to hire some people who are quite willing to be vaccinated in order to serve us, the people, in a law enforcement capacity.
Hey So Dak Marshall’s, DeSantis has a cruise ship for you.
Good to see some real law and order in South Dakota. Where do these so-called “marshals” get off endangering people like that. If these marshals don’t knuckle under I hope Kornmann puts them in a jail cell with a bunch of Covid-infected inmates. Their attitude will change pronto.
I think all federal, state, county and city employees should have to be vaccinated or wear a mask while on the job. They apparently all want freedom of choice, so there it is. Choose work requirements here or go apply where masks are not required.
PS. hospitals also.
These libbie judges are flirting with the hand that feeds them.
The only way to get real law and order is to fill the judicial benches with “libbie judges.” We’ve had too much coddling of the corporate elite, the wealthy and people who put on a badge and kill people. Trump should have seen the inside of a prison cell thirty years ago. Our country could have been spared the carnage of his four years of misrule.
Libbie judges, common grudz, a Connie like you should do better than that.
So being in favor of law and order makes one a libbie?
grudz “These libbie judges are flirting with the hand that feeds them.” SD is a right to work state – no cause needed. You’re fired.
So the little suckass US Marshalls are trying to show a little defiance after choosing a job that makes them, by definition, suckass?
“South Dakota Contrary” on full display.
– Under recent guidance from the U.S. Equal Employment Opportunity Commission (EEOC), employers have the legal right to make such a requirement. It’s not a new concept. The federal workplace watchdog has allowed companies to mandate flu and other vaccines but allowed employees to claim exemptions where appropriate.
https://www.npr.org › 2021/05/28
Employers Can (Mostly) Require Vaccines For Workers Returning To …
waste if time and money. People just claim religion and don’t have to get vaccinated. State employees I know haven’t got vac and prob won’t, state doesn’t enforce it. The feds can try to, but postal workers in area claim they are not getting the shot??? Right to work state may open up some federal jobs??!
Recapping … Chief of Staff Kilgallon knows which and how many of his staff of Marshals has been vaccinated but refuses to relay that information to a Federal Magistrate, upon that judge’s demand.
Then, Chief of Staff Kilgallon calls the magistrate a “third party” to the proceedings happening within the judge’s own courtroom.
I.M.O. – Chief of Staff Kilgallon, Marshal Mosteller, and Chief Deputy Marshal Houghtaling had best bring their toothbrushes and vaseline when they appear before the judge on June 10.
Well…contempt of Court is serious business….Marshalls have been ordered to get vaccinated by a federal judge…Marshalls are members of the Court….they must abide by the direction of their chief, in this case, the federal judge. It’s just basic “Law and Order”.
Or what, Mr. Blundt? The libbie judge will order the bailiff to drag the offenders off to a vaccination station? Oh wait, who are the bailiffs again?
disclaimer: grudznick is fully vaccinated and sports the tattoo showing it. grudznick is of the ilk that wants surreptitious vaccinators to be sneaking about poking people in the buttocks.
No, grudz, the Marshalls will have to sit in the crow bar hotel until they agree to be vaccinated or supply their vaccination record to the Judge.Who will take them to jail if, as you imply, they are the bailiffs (I believe there are separate bailiffs in federal court).They will have to go voluntarily or be taken into custody by federal authorities which would include the FBI or, in a extreme case, the National Guard.Contempt of Court is a serious charge.
Actually, T, Judge Kornmann appears to be ready for an argument about religious exemptions. In his order to show cause, he mentions BWC v. Williams, in which the Eighth Circuit in March ruled in favor of a school district that disenrolled children of families that refused to sign a form required to obtain a religious exemption from immunizations. Kornmann also cites Prince v. Massachusetts 1944: “[N]either rights of religion nor rights of parenthood are beyond limitation…. Thus, (a parent) cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”
Porter, Judge Lange wrote back to Kilgallon and expressed a similar curiosity about how he obtained that data. the contempt case docket does not contain any reply yet from Kilgallon.
The main function of police is to protect and serve. In defying Judge Kornmann, the Marshals are doing neither. Instead, they are hinting that they are part of the right-wing effort to co-opt the police and use their authority to overthrow the rule of law and the proper separation of powers.
Supposed law and order folks, not really following law and order
“Kornmann also cites Prince v. Massachusetts 1944: “[N]either rights of religion nor rights of parenthood are beyond limitation…. Thus, (a parent) cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” –CAH
Wondering why this argument wasn’t brought into public discourse earlier on during the pandemic if it wasn’t. Or if it was, what the Noem or other pig-headed in loco parentis governor rebuttal was.
What we have brewing here is a clear violation of disability discrimination laws which prohibit such inquiries and discrimination of people based off their medical status.
For all those clamoring for blood of these Marshals, you have failed to look before you leap. Their vaccine status is protected medical
Information and the US Marshals are not permitted to release it and the judge is not permitted to ask it.
Look up the case law with the EEOC.
https://www.law.cornell.edu/uscode/text/42/12112
Sorry, Disgusted Dakotan, it’s the other way around. There are people with disabilities who are much more in danger from people who aren’t vaccinated, who don’t wear masks, etc. For example, Downs Syndrome folks are particularly susceptible to respiratory diseases, and Covid brings 5-10 times greater death rate for them than for non-Down folks. They also may have difficulty with vaccines, which makes it all the more important for the general population to be vaccinated. Down Syndrome folks work in many service industries in such jobs and grocery store baggers. Many are out of work until Covid is under control, and we are fooling ourselves if we think it is under control now. Vaccination ought to be mandatory for those who have no medical issues to protect those who do have those issues.
I appreciate Disgusted Dakotan’s reference to the statutory scheme apparently relied on by those objecting to the disclosure of vacination status. A review of the statute cited raises a couple questions about whether it applies in the case of the U.S. Marshals.
First, the statute’s prohibitions limit only “covered entities,” which according to the link in the statute are defined as “an employer, employment agency, labor organization, or joint labor-management committee.” Are the marshals and deputies employed by the federal courts or the District Judge? If not, the statute apparently would not apply here. I know the Judges are responsible for choosing clerks and support staff but to the best of my knowledge (and I certainly could be mistaken) the U.S. Marshals are not hired by or employed by the judiicary.
Second, the statute specifically prohibits discrimination “against a qualified individual on the basis of disability.” And the statute explains “The prohibition against discrimination as referred to in subsection (a) shall include medical examinations and inquiries.” For existing employees, the statute provides:
This raises the question whether a failure to obtain a vacination constitutes a “disability” within the meaning of the statute and whether an inquiry about vacination constitutes a “medical examination.” Again, to the best of my knowledge the term “disability” has a more limited meaning than refusal or failure to obtain a vacination. Likewise, the term “medical examination” seems more limited than a mere inquiry whether an individual has obtained a vacination.
Perhaps Disgusted Dakotan will share his or her views on these questions. On the surface, however, it appears that the interaction between our federal judges and the U.S. Marshal’s office is outsiide the scope of this particular statute.
On the other hand, if the courts are a “covered entity” under Disgusted Dakota’s cited statute perhaps the Judge’s inquiry whether a non-vacinated person has a medical condition preventing a vacination would constitute a prohibited inquiry about whether that person has a disability.
“Or what….?” You are obviously disregarding the rule of law; that the US is a nation of laws, when you propose “the hand that feeds them” can ignore the rule of law. Trump too, believes he and his family and organization are above the law. So do the many red neck militias Noem enables, and that embed themselves like ticks, in publicly financed “protect and serve” police and sheriff’s offices.
They think it is the law of the gun. Like our janitor, who prefers Putin over our experienced president, who, as said has some 40+ years in government.
Yes, mixed-up grdz, it took the Guard and FBI to take the Capitol building *back* from the thousands of Republican anarchists when police, sabotaged and under-equipped but still fighting to save Congress, were overwhelmed both from withIN and without.
Remember where you stood when AIM took-over BIA in DC? You were just like our racist 45th president who couldn’t swallow the people taking a knee in protest of police brutality.
The anarchist Marshall’s Service leadership, likely Trump abettors and holdovers, remind of Lawyer Duffy’s impertinence to Federal Judge Battey during the notorious dinosaur theft from Indian Country. Judges unfortunately can be asses without needed regulation,
Politics. Dirty red neck politics. Despite that, 75-85% vaccination rates are what is necessary to stop the pandemic. Boosters will be our future.
Unless Steve Bannon’s/Stephen Miller’s vision and a swelling pandemic are victorious. It all boils down to racism. BLM painted it yellow!!
The judge doesn’t care if you have had the vaccine and don’t want to tell him you have.
The judge doesn’t care if you’ve not had the vaccine and don’t want to tell him you’ve not.
The judge says if you want to work in his courtroom THEN you have to prove you’ve had the vaccine.
So, if you want to work it’s your choice.
Disclose your vaccine record and work or don’t disclose and go on sick leave, until it’s all gone.
Donald Pay, your opinion on this matter is duly noted; however, it is irrelevant to the law at hand. The caselaw is well-established in these circumstances. If the US marshals know which employees have been vaccinated, it is illegal to disclose that to the judge. United States code explicitly protects employees medical information is confidential and protected irregardless if they have any type of underlying disability.
But you don’t need to take my word for it, as there is ample caselaw to cite regarding medical information being protected. Additionally, the EEOC provides explicit cautions and guidance in regards to the fact the medical information is explicitly protected underneath the American with disabilities act and the rehabilitation act.
https://casetext.com/analysis/improper-disclosure-of-medical-records-found-1
https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-211
Disgusted …
First of all, irregardless in a nonsensical word.
Second, EEOC made an updated ruling recently on this issue.
– Under recent guidance from the U.S. Equal Employment Opportunity Commission (EEOC), employers have the legal right to make a vaccine disclosure requirement. It’s not a new concept. The federal workplace watchdog has long allowed companies to mandate flu and other vaccines.
https://www.npr.org › 2021/05/28
Disgusted Dakotan (I think you’re more contrary than disgusted but label yourself however you choose.)
-Here’s a piece from the National Law Review that says the same thing.
-If you read Cory’s post, you’ll see where the judge has already addressed the false disability claims that might be used by marshals, grasping at straws to get around the law.
-Law says an employer can, and has been able to for a long time, force you to be vaccinated to work in that employers business.
https://www.natlawreview.com/article/eeoc-says-employers-may-mandate-covid-19-vaccinations-subject-to-limitations
I note first that Disgusted Dakotan’s (DD) first new link to “improper-disclosure” had nothing to do with any vacine or vacine disclosure.
And, second, DD’s second new link to the EEOC “discussion letter” link also had nothing to do with a vacine disclosure. Moreover, that letter ended with an interesting quote not mentioned by DD: “Please note that this is an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC.”
Not surprisingly, you all turned a blind eye and intentionally missed the salient points. Fact: receiving a vaccine, and the record there of, is a medical record. Fact: cited US code makes it explicitly illegal for the US marshals to disclose such medical records of their personnel.
Scary the zeal and aggressiveness displayed here of people who want to force others to undergo medical treatment against their wishes and against their own privacy. Reminds one of other times in history when such use of force was employed by socialists.
Curious? Will you all be moving to defund the US marshals or will you be sending police to enforce your views on mandatory vaccines for them at gunpoint…
DD: Shoot 1st, questions later….
Or, raid the Capitol, hang Pence first, questions later … because you are mad about the “China Virus” and the freedumbs Trump twittered about.
RELATED:
Washington, D.C. (May 26, 2021)—Rep. Jamie Raskin, the Chairman of the Subcommittee on Civil Rights and Civil Liberties, sent a letter to… Department of Homeland Security (DHS), requesting information about how DHS evaluated the dangers associated with militia violent extremists prior to militia groups’ involvement in the January 6, 2021, insurrection at the U.S. Capitol, and what information DHS shared with the public ahead of the attack. The letter comes ahead of today’s Subcommittee hearing examining the role of militia groups in the current rise of violent right-wing extremism
Leslie, Funny how triggered big authoritarian government lovers get when people don’t meekly get on the cattle cars. But please, carry-on your wacky conversation with yourself… I am sure one of your voices will answer you
Socialists? You little twerp. You wouldn’t know a socialist if you went back to High School and graduated.
I see you on Power’s Rag and you’re just as off the beam when you slither over here.
DD
So let me get this straight; you are comparing the treatment of those refusing vaccination or even disclosure of ones vaccination status with the extermination of the Jewish people by Nazi Germany?
The cattle cars reference is what I am basing this upon. Please tell me I’m wrong.
DD still claims: “Fact: cited US code makes it explicitly illegal for the US marshals to disclose such medical records of their personnel,” yet DD has failed to identify any specific language in a single statute in the US code supporting his claim. While DD did link 42 U.S. Code § 12112, DD has not indicated what language in that statute DD thinks supports his claim and has failed to address the statute’s disability requirements. As pointed out earlier, there simply seems to be no “explicit” language in that statute supporting DD’s claim.
At this point it seems that DD is finding it challenging to rationally suport or defend the claim and has decided to resort to trolling and insults rather than offering any rational justification for the claim.
Bearcreekbat,
You being to obtuse to understand the case law or statute which explicitly states ALL personnel’s
Medical records and information, not just qualified disabled employees, is confidential and protected, and that the US Marshals would be in explicit violation of the ADA of the disclosed this confidential medical information to these third party judges, doesn’t make me negligent.
But for those that don’t understand the explicit verbiage of the cited statute..
Here’s a quick reference for you from the EEOC enforcement guidance: “The ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination (including medical information from voluntary health or wellness programs (9)), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.(10)
B. Disability-Related Inquiries and Medical Examinations of Employees
The ADA states, in relevant part:
A covered entity(11) shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.(12)
This statutory language makes clear that the ADA’s restrictions on inquiries and examinations apply to all employees, not just those with disabilities. Unlike other provisions of the ADA which are limited to qualified individuals with disabilities,(13) the use of the term “employee” in this provision reflects Congress’s intent to cover a broader class of individuals and to prevent employers from asking questions and conducting medical examinations that serve no legitimate purpose.(14)”
For those that are a little slow and uninformed, and thought the statute only dealt with qualified disabled employees? Read the last paragraph twice and let it sink in. Protection of medical information of ALL employees is covered. The Marshals are prohibited by statute from releasing employees’ medical information to these judges 😉
DD’s reference to the EEOC materials is interesting but there are much more timely and relevant updated EEOC directives that must be acknowledged at:
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
These directives deal specifically with COVID 19 issues and beginning at section K they specifically identify permitted and prohibited vaccination requirements and disclosures. One provision in particular seems to directly support the actions of the judges in requiring U.S.Marshals and their deputies to be vaccinated before coming into the courtroom, or disclose the reasons for failing to obtain the vaccination:
There is a great deal of additional material on this site that likely sheds even more light on the issue. Since this information is from the very EEOC source identified by DD, perhaps it will ameliorate DD’s concerns and put to rest any contention that the judges have violated the rights of the U.S. Marshal or deputies.
Doesn’t an FOI act request allow this material to be released?
Beercreekbat,
You have a problem conflating situational facts to meet your authoritarian big government loving tendencies.
Fact:The judge is an external entity to the US Marshals.
Fact: Medical records of vaccination are protected confidential information that the US Marshals can only share with those internal to their organization.
Fact: The US Marshals are withholding this information out of rightful concern they would be violating the law prohibiting releasing medical
Information.
Fact: You and the rest of your kind have no right to these public servants’ protected medical records. The EEOC even limits information of the health danger on positive virus testing, positive vaccine information is not a health danger and non vaccination information is a remote argument if such:
“B.5. Suppose a manager learns that an employee has COVID-19, or has symptoms associated with the disease. The manager knows she must report it but is worried about violating ADA confidentiality. What should she do? (9/8/20; adapted from 3/27/20 Webinar Question 5)
The ADA requires that an employer keep all medical information about employees confidential, even if that information is not about a disability. Clearly, the information that an employee has symptoms of, or a diagnosis of, COVID-19, is medical information. But the fact that this is medical information does not prevent the manager from reporting to appropriate employer officials so that they can take actions consistent with guidance from the CDC and other public health authorities.
The question is really what information to report: is it the fact that an employee—unnamed—has symptoms of COVID-19 or a diagnosis, or is it the identity of that employee? Who in the organization needs to know the identity of the employee will depend on each workplace and why a specific official needs this information. Employers should make every effort to limit the number of people who get to know the name of the employee.
The ADA does not interfere with a designated representative of the employer interviewing the employee to get a list of people with whom the employee possibly had contact through the workplace, so that the employer can then take action to notify those who may have come into contact with the employee, without revealing the employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice and does not violate the ADA’s prohibition of disclosure of confidential medical information. For small employers, coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity. Also, all employer officials who are designated as needing to know the identity of an employee should be specifically instructed that they must maintain the confidentiality of this information. Employers may want to plan in advance what supervisors and managers should do if this situation arises and determine who will be responsible for receiving information and taking next steps.“
None of your bloviating changes those facts 😉
Contrary to the uninformed opinions above indicating such statutorily protected confidential medical information should be publicly disclosed at the whim of authoritarian bureaucrats, no, such information is explicitly not subject to a FOIA disclosure:
https://www.foia.gov/faq.html
Exemption 3: Information that is prohibited from disclosure by another federal law.
Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
Well…Mr. Disgusted…Your points regarding policy statements effecting employment are well taken BUT A Contempt of Court citation is a serious criminal charge enforced by the federal court and will override any policy statements…if the Marshalls persist, the Marshalls are going to the crow bar hotel until they comply with the judge’s order.
Looks like DD is wrong about FOIA….
2. 5 U.S.C. § 552a(b)(2) (required FOIA disclosure)
“required under section 552 of this title.”
Comment:
The point of this exception is that the Privacy Act never prohibits a disclosure that the Freedom of Information Act actually requires. See News-Press v. DHS, 489 F.3d 1173, 1189 (11th Cir. 2007) (“The net effect of the interaction between the two statutes is that where the FOIA requires disclosure, the Privacy Act will not stand in its way, but where the FOIA would permit withholding under an exemption, the Privacy Act makes such withholding mandatory upon the agency.”); Greentree v. U.S. Customs Serv., 674 F.2d 74, 79 (D.C. Cir. 1982) (stating subsection (b)(2) “represents a Congressional mandate that the Privacy Act not be used as a barrier to FOIA access”). See also Sikes v. United States, 987 F. Supp. 2d 1355, 1372 n. 14 (S.D. Ga. 2013) (finding that because the FOIA required disclosure of list of names of individuals invited to a ceremony at which a Navy officer was sworn in as Chief of Naval Operations, the Privacy Act did not bar disclosure); Woods v. DOJ, 968 F. Supp. 2d 115, 120-21 (D.D.C. 2013) (reviewing subsection (b)(2) and finding that “defendant properly considered plaintiff’s request in light of the FOIA, [and thus] any issue arising under the Privacy Act is essentially moot”); Plunkett v. DOJ, 924 F. Supp. 2d 289, 306-07 (D.D.C. 2013) (“[T]he Privacy Act does not bar disclosure of documents that are otherwise required to be disclosed under the FOIA . . . and defendant properly reviewed and released responsive records under the FOIA”).
Thus, if an agency is in receipt of a FOIA request for information about an individual that is contained in a system of records and that is not properly withholdable under any FOIA exemption, then it follows that the agency is “required under Section 552 of this title” to disclose the information to the FOIA requester. This would be a required subsection (b)(2) disclosure. However, if a FOIA exemption – typically, Exemption 6 or Exemption 7(C) – applies to a Privacy Act-protected record, the Privacy Act prohibits an agency from making a “discretionary” FOIA release because that disclosure would not be “required” by the FOIA within the meaning of subsection (b)(2). See, e.g., DOD v. FLRA, 510 U.S. 487, 502 (1994); Big Ridge, Inc. v. Fed. Mine Safety and Health Review Comm’n, 715 F.3d 631, 651 (7th Cir. 2013); Navy v. FLRA, 975 F.2d 348, 354-56 (7th Cir. 1992); DOD v. FLRA, 964 F.2d 26, 30 n.6 (D.C. Cir. 1992); Andrews v. VA, 838 F.2d 418, 422-24 & n.8 (10th Cir. 1988); Akmal v. United States, No. C12-1499, 2014 WL 906231, at *3 (W.D. Wash. Mar. 7, 2014); Citizens for Responsibility and Ethics in Washington v. Nat’l Indian Gaming Comm’n, 467 F. Supp. 2d 40, 54-55 (D.D.C. 2006); Robbins v. HHS, No. 1:95-cv-3258, slip op. at 2-9 (N.D. Ga. Aug. 13, 1996), aff’d, No. 96-9000 (11th Cir. July 8, 1997); Kassel v. VA, 709 F. Supp. 1194, 1199-1200 (D.N.H. 1989); Howard v. Marsh, 654 F. Supp. 853, 855-56 (E.D. Mo. 1986); Fla. Med. Ass’n v. HEW, 479 F. Supp. 1291, 1305-07 (M.D. Fla. 1979); Providence Journal Co. v. FBI, 460 F. Supp. 762, 767 (D.R.I. 1978), rev’d on other grounds, 602 F.2d 1010 (1st Cir. 1979); Phila. Newspapers, Inc. v. DOJ, 405 F. Supp. 8, 10 (E.D. Pa. 1975); see also OMB Guidelines, 40 Fed. Reg. 28,948, 28,954 (July 9, 1975), available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/implementation_guidelines.pdf.
This discussion with DD appears focused on a factor that is inconsistent Cory’s article – whether the court can require the U.S. Marshal’s office as an “employer” to disclose whether an deputy has been vaccinated.
But if that was the issue then the a new EEOC guideline (linked in my earlier comment), which both DD and I each missed in our earlier posts, specifically states that employers are not to disclose whether their employees have been vaccinated, thus DD’s claim on this point is entirely correct –
I took a second look at Cory’s article, however, and as best I can tell the judges have not directed the Marshal’s office to disclose whether a deputy has been vaccinated. Instead, in their efforts to maintain a safe courtroom the judges are asking all individuals that intend to enter the courtroom, including US Marshals and deputies, but not their employer, whether that individual has been vaccinated. So the issue of whether the U.S. Marshal’s office can disclose an employee’s vaccination record is simply irrelevant. The issue is whether the court can require individuals, including deputies and U.S. Marshals, to disclose their own personal vaccination status, and numerous EEOC guidelines seem to permit this inquiry.
According to Cory’s article the U.S. Marshal’s office has taken a position that none of the employees need comply with the requirement:
So, bottom line is that DD is correct that an employer may not be required to disclose an employees vacicination history, but that is not what the judges appear to have required.
And as an aside, simply trying to learn about and understand the legal implications of a situation, such as the judges’ and marshals’ actions in this case, doesn’t mean that someone is conflating, blotivating, being obtuse, an authoritarian government lover, turning a blind eye, wacky, desiring to force others to undergo medical treatment against their wishes and against their own privacy, a socialist, planning to defund the US marshals, or enforcing personal views on mandatory vaccines at gunpoint. But being able to explore these issues on Cory’s blog is a rare and appreciated opportunity. Identifying incorrect statements and analysis made in the comments, or by Cory and folks quoted in the stories, may even be helpful to those readers and commentors that keep an open mind.
Mike from Iowa,
Your concocted straw man not with any standing, the discussion at hand has been the protected confidential status of medical information under the AMERICANS WITH DISABILITIES & REHABILITATION ACTS, which explicitly prohibit the disclosure of employees medical
Information. But please, send a FOIA request demanding their protected medical information and share their denial. It will be good for a laugh.
Beercreekbat,
That is exactly what the judge is demanding, semantics not withstanding. But let’s take this further, what next will you say is okay? What about A judge that prohibits HIV positive or other infectious ailments? Mental health issues such as gender dysphoria, Etc, etc..
DD, wah, wah.
Mike from Iowa, your concession, not surprisingly, lacks Eloquence or class And remains consistent with your previous posts. Bravo on your consistency.
DD, I think you misunderstand what I am saying. I am not saying the policy “is okay,” I am saying that it appears to comply with existing law, which is a reality neither you nor I can control. Thus, your statements that the judge’s action violate the law apparently are mistaken, regardless of my opinion or what you apparently would like the law to be.
As for semantics, the assertion that a question to an employee about his vaccination status is “exactly” the same thing as asking his employer about that status likewise is without a basis in any of the laws you and I have quoted and/or linked.
If you are interested in my opinion about whether these laws are “okay” I would be happy to share them with you. For now I am trying to explore reality and what the controlling laws actually say or require actual statements rather than my viewpoint or opinion.
Bearcreekbat,
You are either missing some salient facts or ignoring them. US Marshals are NOT employees of this judge. So no, the US Marshals disclosing protected medical information of their employees to this judge is absolutely NOT amongst the allowable disclosures exceptions of the statute. You also mischaracterize my position. The judge is asking the US Marshals to violate the ADA restrictions on confidential medical information. If they do, they do so in contravention of the explicit prohibitions from doing so.
Again, US Marshals are NOT employees of these judges. Attempting to ascertain the protected medical information of these US Marshals by requiring them to disclose who is safe to be in court under their edicts, does not alleviate the US Marshals restrictions from identifying and sharing their employees protected medical information or disclosing it.
If things were as Cut and dried simple as you initially, and others continue to assert, the US Marshals wouldn’t be so apprehensive about complying. The reality is the ADA statutes tie their hands and the case law has been absolute on awarding damages for disclosing information outside of the restrictions.
The fact remains, the statute explicitly restrict disclosure of employees protected confidential medical information. That is the law. Equivocations not with standing.
The judges desire to have the US Marshals violate the ADA is not law and would not even be considered a violation by itself unless it’s determined these judges are defacto members of the US Marshals employment. As my examples already pointed out, their demands are not supportable when considered with demanding disclosures of other medical ailments that can be argued are public safety concerns.
In the real world, it’s pretty clear. I had to deal with ADA and HIPPA disclosure of medical information in my work life. Both laws allow for disclosure of medical information with the written permission of the person. The permission must be renewed annually. The person may volunteer any information. If some medical clearance is required for the job (eg., drug test for truck drivers) that information can be shared with an employer, but generally just a specific piece of information, not your medical record. The information requested must be in some way related to the safe performance of the job. For example, restaurants in Madison, WI, require employees to disclose if they have diarrhea, as that could be due to a food borne disease that is passed on to customers. Those employees are asked to do other jobs not associated with food or are told to come back when the condition improves. In my job, people who were severely sick with certain diseases or had broken a leg, for example, had to have been cleared by a doctor to work. That had to be shared with the employer.
I assume a judge is responsible for the health of himself or herself as well as the folks working in the court system, the attorneys, the various litigants, witnesses etc., although he or she might not be technically an employer. At the beginning of the pandemic my daughter’s friend was working on immigration cases in the Twin Cities, and this issue came up regarding whether to hold court at all. They very soon cancelled hearings to protect all involved.
DD, one of the facts I pointed out in my very first comment on this story was that: “the U.S. Marshals are not hired by or employed by the judiciary.” Thus, we are on the same page as to that fact.
Next, in a recent comment I also pointed out that I found a provision of the EEOC directive stating: “employers are not to disclose whether their employees have been vaccinated” and I explicitly acknowledged “DD’s claim on this point is entirely correct.” Thus, we are also on the same page as to that fact.
Last, I pointed out statements Cory quoted from a judge and other sources, that explicitly indicated the judges were not asking the “employer” of the Marshal and deputies to disclose any information about their employees. Rather, the judges were asking individual employees of the Marshal’s office personally whether they were vaccinated or had a reason not to be vaccinated as a precondition to permitting that individual to enter the courtroom.
I have seen no law that states a person who discloses medical information about themselves violates any law, and since that was what the judges asked an individual deputy, not his employer, to disclose, the judges were not asking that individual deputy to violate the ADA.
To summarize then, the deputies are not employees of the courts thus no ADA provision governing conduct of an employer limits what questions a court can ask the deputies. The judges are asking for personal medical infornmation from the individual deputies, not their employer, which means the judges are not asking the employer to violate the ADA by disclosing information about employees.
I have yet to see reference to any law that prohibits a judge from asking an individual questions about vaccinations. Finally, I have seen no reference to any law that prohibits a judge from excluding anyone the judge deems to be dangerous from entering the courtroom, including individual deputies that refuse to disclose their personal vaccination status. And I acknowledge there may indeed be such laws that that I am unaware of.
Cops need to get their poop in a group, get off their high horses, and get their shots. They need to get their heads around the fact that they don’t get to override the orders of the Judiciary Branch. We need less of the police state and more of the rule of law as properly written by the Legislative Branch and interpreted by the Judicial Branch.
The ADA is as irrelevant here as HIPAA. The judge has near absolute control of his courtroom. He’s not threatening the marshals’ employment; he’s just saying, if I don’t know that you’re vaccinated, you’re not coming in this courtroom and exposing the people within to a public health risk.
Why is the chief judge of the district not the one engaging with the Marshals? Why are they allowing a part time judge in Senior status to create this issue? What does the judge’s superiors have to say about his behavior? The marshals don’t work for the court. They support the court, but the court has no supervisory authority over them. The judge lied when he said the guard had been permitted to handle prisoners by himself in the courtroom. Guards are hired as an additional body to assist in court but their rules require 2 in the court with in custody defendants. Court Security officers are specifically prohibited by the marshals contracts from handling prisoners as well. This judge needs to have been retired and removed. Term limits for federal judges is clearly needed. If the vaccines work, the judge is protected. The old story goes, “What is the difference between a federal judge and God?…… God doesn’t think he’s a judge.
Because the author of this one sided story has a clear agenda, it might be useful to read an alternative opinion from the media.
https://www.theblaze.com/op-ed/horowitz-leftist-judge-attacks-us-marshals-for-not-disclosing-vaccination-status-holds-them-in-contempt
Our founders understood the power of a judicial order and wanted to ensure that the force behind its implementation was left in the hands of a separate branch of government. A president is elected by the people through the states, and Congress is governed by 535 individuals in a bicameral arrangement. They all stand for election. Federal judges are life-tenured and do not stand for re-election. The founders didn’t want a single unelected federal judge to simply rule by fiat, which is why the U.S. Marshals, a part of the executive branch, ultimately serve as the police force for the judiciary. When a judge is out of line, it’s up to the attorney general, and ultimately the president, to decide whether to give effect to a judicial order.