Latest 14 Cases This Week: Waskul v. Washtenaw County Community Mental Health (6th Cir.), Common Cause Indiana v. Lawson (7th Cir.), Phong Lam v. ...

The Supreme Court Limbers Up to Aid and Abet Trump’s Coup

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan describes how the U.S. Supreme Court is readying itself to declare Trump the winner of the election. Professor Buchanan points out that no court acting in good faith would apply the text of the Constitution or existing Supreme Court precedents in a way that would allow any of this scheme to see the light of day, but based on what Justice Kavanaugh has written and what Justice Gorsuch strongly suggests, the Court might not even have that minimum amount of good faith.

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If the Challengers Prevail on the Merits of the ACA California v. Texas Case, What is the Appropriate Remedy and What Effect Should the Ruling Have on the Entirety of the ACA? Part Four in a Series

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this fourth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider what the appropriate remedy should be if the challengers prevail on the merits of the case. The authors explain why enjoining the 2017 amendment, which zeroed out the potential tax penalty for failure to maintain the specified health insurance coverage, is a more appropriate remedy than striking down the entire ACA.

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The U.S. Supreme Court Cannot Determine the Election Result

AUSTIN SARAT, DANIEL B. EDELMAN

Amherst College Associate Provost Austin Sarat and attorney Daniel B. Edelman argue that there is nothing the Supreme Court can do to prevent governors from certifying slates of electors that actually reflect the vote of the people in their states. Sarat and Edelman explain why Bush v Gore is both inapplicable, and by its own terms, never supposed to be used as precedent.

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Waskul v. Washtenaw County Community Mental Health

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-1400

Opinion Date: October 29, 2020

Judge: Eric L. Clay

Areas of Law: Government & Administrative Law, Health Law, Public Benefits

Community Mental Health modified the methodology through which it allocated funding to individuals with disabilities receiving community living support services under a Medicaid waiver received by Michigan. Individuals receiving those services, together Advocacy, challenged that methodology as violating the Medicaid Act, 42 U.S.C. 1396a(a)(8), (a)(10)(A), (a)(10)(B), 1396n(c)(2)(A) and (C); Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12132; section 504 of the Rehabilitation Act, 29 U.S.C. 794; the Michigan Mental Health Code; and the terms of Michigan’s Medicaid Habilitation Supports Waiver and the contracts implementing it. The district court dismissed the claims in full. The Sixth Circuit reversed, first holding that the plaintiffs have standing, that the defendants are not entitled to Eleventh Amendment immunity, that the plaintiffs were not required to exhaust their administrative remedies provided by the state under the Medicaid Act, and that the plaintiffs have a private right of action under sections 1396a(a)(8) and (a)(10). The plaintiffs’ allegations suffice to state plausible claims that they are being denied sufficient necessary medical services; that feasible alternatives that provide them a meaningful choice between institutionalized and at-home or community-based care exist and are not being ensured; and that they face a serious risk of institutionalization.

Common Cause Indiana v. Lawson

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-2877

Opinion Date: October 23, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Election Law, Government & Administrative Law

Indiana law provides that state’s election polls open at 6 a.m. and close at 6 p.m. In 2019, Indiana enacted amendments: only a county election board has standing in an Indiana court to request the extension of the hours and only if the board’s members unanimously vote to file suit, IND. CODE 3- 11.7-7-2. Before a court may extend the poll hours, several findings must be made, including that the polls were substantially delayed in opening or subsequently closed during normal polling hours and any extension must be limited to not more than the duration of time the polls were closed and only for those polls whose opening was delayed. Common Cause challenged the amendments as burdening the fundamental right to vote, divesting state courts of jurisdiction to hear federal claims in violation of the Supremacy Clause, and depriving voters of procedural due process. On September 22, 2020, the district court granted a preliminary injunction. The Seventh Circuit reversed. Indiana may enforce the statutes as written. The court noted that no decision of the Supreme Court or any court of appeals has held that the Constitution requires a state to provide a private right of action to enforce any state law. To the extent that federal law will require Indiana to provide such an extension, voters can invoke their federal rights under 42 U.S.C. 1983. The amendments do not place a burden on the right to vote,

Phong Lam v. United States

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-16243

Opinion Date: October 28, 2020

Judge: C. Ashley Royal

Areas of Law: Government & Administrative Law, Personal Injury

The Ninth Circuit affirmed the district court's dismissal of plaintiff's action under the Federal Tort Claims Act (FTCA), alleging that the U.S. Army Corps of Engineers negligently failed to cut down a tree at the Lake Mendocino recreation area that crashed into plaintiff's tent and smashed his leg. The panel held that the discretionary function exception applies in this case because plaintiff has not shown any specific mandatory duties, has not defeated the Gaubert presumption, and has not negated the evidence of discretion for policy judgments. After outlining Supreme Court precedent for the Berkovitz/Gaubert test and its Ninth Circuit progeny, the panel applied this precedent to the plain language of the policies that controlled the actions of the forest ranger and the Corps' employees at Lake Mendocino. In doing so, the panel concluded that the policies allow for discretion and that they are susceptible to the policy analysis the discretionary function exception was designed to protect.

Thorne v. United States Department of State

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-17606

Opinion Date: October 26, 2020

Judge: Eugene E. Siler

Areas of Law: Government & Administrative Law

The Ninth Circuit affirmed the district court's order denying plaintiffs' motion for a preliminary injunction seeking to force the government to abide by procedural protections before debarring plaintiffs under 22 C.F.R. 127.7 from engaging in their business. Plaintiffs are exporters and resellers of United States armaments. Specifically, plaintiffs claim that they have been completely prohibited from engaging in all International Traffic in Arms Regulations (ITAR) and Arms Export Control Act (AECA) activities without being afforded the requisite procedural protections. The panel held that plaintiffs have insufficiently pleaded facts and submitted evidence to support their assertion that they have been de facto debarred. In this case, the entirety of plaintiffs' action, including its request for a preliminary injunction, rests on two presuppositions—that they have been de facto debarred and that the DDTC has improperly imposed a presumption of denial on their license applications. However, plaintiffs have not sufficiently established that either of these things happened. Therefore, the district court did not abuse its discretion in denying plaintiffs' motion for a preliminary injunction.

Scalia v. Wynnewood Refining

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-9533

Opinion Date: October 27, 2020

Judge: Moritz

Areas of Law: Business Law, Government & Administrative Law, Labor & Employment Law

After a boiler exploded at a refinery, the Occupational Safety and Health Administration (OSHA) cited the refinery’s owner, Wynnewood Refining Co., LLC, for violating 29 C.F.R. section 1910.119, which set forth requirements for the management of highly hazardous chemicals. The Occupational Safety and Health Review Commission (the Commission) upheld the violations, noting that the refinery had previously violated section 1910.119, but the prior violations occurred before Wynnewood LLC owned the refinery, and therefore occurred under a different employer. Accordingly, the Commission did not classify the violations as “repeat violations” under 29 U.S.C. 666(a), which permitted increased penalties for “employer[s] who willfully or repeatedly violate” the regulation. Wynnewood appealed the Commission’s order, arguing that section 1910.119 did not apply to the boiler that exploded. The Tenth Circuit found section 1910.119’s plain text unambiguously applied to the boiler, and affirmed that portion of the Commission’s order upholding the violations. The U.S. Secretary of Labor also appealed the Commission's order, arguing the Commission erred by failing to characterize the violations as repeat violations. To this, the Tenth Circuit agreed Wynnewood was not the same employer as the refinery's previous owner, thus affirming that portion of the Commission's order relating to the repeat violations.

Corcamore, LLC v. SFM, LLC

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1526

Opinion Date: October 27, 2020

Judge: Jimmie V. Reyna

Areas of Law: Government & Administrative Law, Intellectual Property, Trademark

SFM owns the federal registration for SPROUTS for use in connection with grocery store services. The SPROUTS mark was first used in commerce not later than April 2002. Corcamore owns a federal trademark registration for SPROUT for use in connection with vending machine services, claiming a first use date of May 2008. Corcamore’s SPROUT mark is used on a cashless payment card, an associated customer loyalty program, and a website for customers. SFM filed a petition with the Trademark Trial and Appeal Board to cancel Corcamore’s registration. Corcamore argued that SFM lacked standing. The Board determined that the Supreme Court’s Lexmark decision was not applicable; Lexmark was limited to civil actions for false advertising (15 U.S.C. 1125(a)) and does not extend to cancellation of registered marks (section 1064). The court concluded that SFM had standing because it sufficiently alleged a real interest in the proceeding and a reasonable belief of damage. Corcamore informed SFM’s counsel that it would bring “procedural maneuvers,” then proceeded to file motions in violation of Board orders, to refuse to cooperate with discovery, and to disregard Board-imposed sanctions. The Board granted SFM default judgment, citing 37 C.F.R. 2.120(h) and its inherent authority to control its docket. The Board concluded that a lesser sanction would be inappropriate because Corcamore had already violated sanctions and had engaged in willful, bad-faith tactics, consistent with its “procedural maneuvers” letter, taxing Board resources. The Federal Circuit affirmed. SFM was entitled to maintain a petition for cancellation of trademark registrations. The Board did not abuse its discretion in imposing default judgment.

Blankenship et al. v. City of Irondale

Court: Supreme Court of Alabama

Dockets: 1180777, 1180752

Opinion Date: October 23, 2020

Judge: Mitchell

Areas of Law: Government & Administrative Law, Labor & Employment Law, Tax Law

The Jefferson County, Alabama Board of Education ("the Board") and several of its employees sought to avoid the application of an occupational tax imposed by the City of Irondale ("City"). The Board and its employees argued that public-school employees were exempt from the occupational tax because, they contended they provided an essential government service. "But the importance of a state employee's role, even a role as important as a public-school employee, does not remove that employee's obligation to pay a duly owed occupational tax." The Alabama Supreme Court affirmed the trial court's judgment in favor of the City.

American Honda Motor Co. v. Walther

Court: Arkansas Supreme Court

Citation: 2020 Ark. 349

Opinion Date: October 29, 2020

Judge: Karen R. Baker

Areas of Law: Government & Administrative Law, Tax Law

The Supreme Court affirmed the order of the circuit court granting summary judgment in favor of the director of the Arkansas Department of Finance and Administration (DFA) and dismissing American Honda Motor Company's challenge to the DFA's denial of its request for a corporate tax refund, holding that the circuit court correctly granted summary judgment in favor of DFA. American Honda filed an action for judicial relief under the Arkansas Tax Procedure Act, Ark. Code Ann. 26-18-101 et seq., challenging DFA's decision to deny its request for a corporate tax refund. The circuit court granted summary judgment in favor of DFA. The Supreme Court affirmed, holding (1) judicial review of DFA's statutory interpretation of the Tax Procedure Act is de novo; and (2) while the circuit court improperly gave great deference to DFA's interpretation of the Tax Procedure Act, the circuit court correctly granted summary judgment in favor of DFA.

Carroll v. Commission on Teacher Credentialing

Court: California Courts of Appeal

Docket: C083250(Third Appellate District)

Opinion Date: October 23, 2020

Judge: Harry E. Hull, Jr.

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

Plaintiff Kathleen Carroll sued her former employer, defendant California Commission on Teacher Credentialing (Commission), for terminating her employment in retaliation for her reporting Commission mismanagement to the state auditor. Prior to bringing this action, plaintiff appealed her termination to the State Personnel Board (Board), claiming the Commission fired her in retaliation for her whistleblower activities. She also filed a separate whistleblower retaliation complaint with the Board. The Board denied her claims. After the Commission removed the matter to federal court, the district court dismissed the section 1983 claim and remanded the matter to state court. A jury found for plaintiff and awarded her substantial damages. The Commission appealed, contending: (1) the district court’s judgment was res judicata as to this action; (2) the Board’s decisions collaterally estopped this action; (3) the trial court abused its discretion in evidentiary matters by (a) permitting plaintiff’s counsel to question witnesses on and asking the jury to draw negative inferences from the Commission’s exercise of the attorney-client privilege, (b) denying the admission of the Board’s findings and decisions, (c) denying the admission of after-acquired evidence, and (d) denying the admission of evidence mitigating plaintiff’s emotional distress; and (4) the damages award was unlawful in numerous respects. Although the district court’s judgment was not res judicata and the Board’s decisions did not collaterally estop this action, the Court of Appeal reversed, finding the trial court committed prejudicial error when it allowed plaintiff’s counsel to question witnesses on and ask the jury to draw negative inferences from the defendants’ exercise of the attorney-client privilege and did not timely instruct the jury with the mandatory curative instruction provided in Evidence Code section 913. Because judgment was reversed on this ground, the Court did not address the Commission’s other claims of error.

Deiro v. L.A. County Civil Service Commission

Court: California Courts of Appeal

Docket: B296926(Second Appellate District)

Opinion Date: October 29, 2020

Judge: Elizabeth A. Grimes

Areas of Law: Government & Administrative Law, Labor & Employment Law

The Court of Appeal affirmed the trial court's denial of a writ of mandate to compel the Civil Service Commission to complete a deputy sheriff's administrative appeal. The court held that a deputy sheriff who has obtained and continues to receive service-connected disability retirement benefits is no longer an employee of the county, and thus his appeal to the Civil Service Commission of his discharge by the Los Angeles Sheriff's Department, filed before his disability retirement, is no longer viable. The court held that the Commission has no authority to order reinstatement or any other relief to a retired person whose future status as an employee is not at issue.

Terry v. Dorothy

Court: Iowa Supreme Court

Docket: 18-1545

Opinion Date: October 23, 2020

Judge: Brent R. Appel

Areas of Law: Contracts, Government & Administrative Law, Labor & Employment Law, Personal Injury

The Supreme Court affirmed the ruling of the district court dismissing an employee's gross negligence claim against a coemployee, holding that settlement documents submitted to and approved by the workers' compensation commissioner extinguished the employee's gross negligence claim. Plaintiff, an employee of Lutheran Services in Iowa (LSI) was attacked by one of LSI's clients, causing injuries. Plaintiff filed a workers' compensation claim against LSI and its workers' compensation carrier. The parties settled, and the two settlement documents were approved by the Iowa Workers' Compensation Commissioner. Plaintiff subsequently filed a petition in district court seeking to recover damages from Defendant, Plaintiff's supervisor when he worked at LSI, on a theory of gross negligence. Defendant moved to dismiss the action, relying on release language in the settlement documents. The district court granted summary judgment for Defendant on both contract and statutory grounds. The court of appeals reversed, concluding that a settlement with the commissioner did not release a common law claim of gross negligence against a coemployee. The Supreme Court vacated the court of appeals' judgment and affirmed the district court's summary judgment, holding that the district court properly ruled that, as a matter of contract, the language in the terms of settlement extinguished Plaintiff's gross negligence claim.

Montgomery County v. Cochran & Bowen

Court: Maryland Court of Appeals

Docket: 69/19

Opinion Date: October 26, 2020

Judge: Shirley M. Watts

Areas of Law: Government & Administrative Law, Labor & Employment Law, Personal Injury

In this workers' compensation action, the Court of Appeals held that the Workers' Compensation Commission did not err in calculating the deduction of decibels from Claimants' total average hearing losses under Md. Code Ann., Lab. & Empl. (LE) 9-650(b)(3) by counting the number of years between each firefighter's fiftieth birthday and the dates that they each retired from employment with Montgomery County, Maryland. Anthony Cochran and Andrew Bowen, former firefighters, developed hearing loss, and Bowen also developed tinnitus. Both men filed a claim under LE 9-505. The Commission awarded compensation to both claimants, finding that each had sustained hearing loss arising in and out of the course of their employment and that Bowen had sustained tinnitus arising in and out of the course of his employment. The Court of Special Appeals held that the Commission correctly calculated the deduction set forth in LE 9-650(b)(3) but erred in awarding permanent partial disability benefits to Bowen for tinnitus. The Court of Appeals affirmed in part and reversed in part, holding (1) the Commission properly calculated the deduction set forth in LE 9-650(b)(3) by counting the number of years between each man's fiftieth birthday and the date of retirement; and (2) the Court of Special Appeals erred in reversing the Commission's decision as to tinnitus.

Tapia v. Leslie

Court: Minnesota Supreme Court

Docket: A19-0627

Opinion Date: October 21, 2020

Judge: Lorie Skjerven Gildea

Areas of Law: Government & Administrative Law

The Supreme Court reversed the opinion of the court of appeals affirming the judgment of the district court denying Appellant's petition for a writ of mandamus to order the Dakota County Sheriff to issue Defendant a permit to carry a firearm, holding that Appellant satisfied all the requirements for a writ of mandamus. In 1998, Appellant was adjudicated delinquent for theft of a motor vehicle. In 2014, the Legislature removed that offense from the definition of "crime of violence" in Minn. Stat. 624.712, subd. 5. In 2017, Appellant applied to the Dakota County Sheriff's Office for a permit to carry a firearm. The Sheriff issued Appellant a permit. When the Sheriff learned of Appellant's 1998 juvenile adjudication, however, he voided Appellant's permit. Appellant petitioned for a writ of mandamus directing the sheriff to issue a permit. The district court denied the petition. The court of appeals affirmed. The Supreme Court reversed and issued a writ of prohibition, holding that the 2014 amendment applied to Defendant, and therefore, Defendant was entitled to a permit.

Bay Point Properties, Inc. v. Mississippi Transportation Commission

Court: Supreme Court of Mississippi

Citation: 2019-CA-00862-SCT

Opinion Date: October 29, 2020

Judge: Josiah D. Coleman

Areas of Law: Civil Procedure, Government & Administrative Law, Zoning, Planning & Land Use

The case originated from an action brought by Bay Point Properties, Inc. against the Mississippi Transportation Commission in which Bay Point sought damages resulting from inverse condemnation. After the verdict, Bay Point filed a motion requesting attorneys’ fees, costs, and expenses. The trial court awarded $500 in nominal damages and denied Bay Point’s request for attorneys’ fees, costs, and expenses. Finding no reversible error, the Mississippi Supreme Court affirmed the trial court's judgment.