The Intra-Party Fight Among the Democratic Candidates Is Necessary and Healthy

NEIL H. BUCHANAN

UF law professor and economist Neil H. Buchanan explains why the Democratic presidential candidates attacking each other over policy differences and other issues rather than unifying to oppose President Trump in the general election. Buchanan argues that, perhaps illogically, the infighting is essential and a healthy part of the process.

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Wojcicki v. SCANA Corporation

Court: US Court of Appeals for the Fourth Circuit

Docket: 17-2045

Opinion Date: January 14, 2020

Judge: Stephanie Dawn Thacker

Areas of Law: Government & Administrative Law

The Fourth Circuit affirmed the district court's dismissal of appellant's qui tam action under the False Claims Act, because a pro se plaintiff cannot represent the Government's interest in a qui tam suit. Likewise, the court affirmed the district court's denial of appellant's motion for reconsideration of its dismissal order. In this case, appellant alleged that appellees violated the Act by filing false claims under the South Carolina Base Load Review Act in order to receive permission to increase electric energy rates to cover costs of construction of two nuclear units. After filing the complaint, appellant failed to retain counsel and to provide summonses necessary for service of the complaint on the United States Attorney General and United States Attorney for the District Court of South Carolina.

General Land Office of the State of Texas v. United States Department of the Interior

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-50178

Opinion Date: January 15, 2020

Judge: Carolyn Dineen King

Areas of Law: Environmental Law, Government & Administrative Law

The General Land Office challenged both the Service's listing of the Golden-Cheeked Warbler as an endangered species in 1990 and, about 26 years later, the Service's denial of a petition seeking to delist the Warbler. The Fifth Circuit held that the General Land Office's challenge to the Service's decision to list was untimely. The court held that the Service did not violate the National Environmental Policy Act or its implementing regulations when it declined to delist the Warbler, and thus the district court correctly granted the Service's motion to dismiss. However, the court agreed with the General Land Office that the Service applied the incorrect heightened standard when reviewing the delisting petition. Therefore, the court held that the Service's decision denying the delisting petition was arbitrary and capricious, and vacated the decision, remanding for further proceedings. Accordingly, the court affirmed in part, reversed in part, vacated in part, and remanded.

Joiner v. United States

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-10202

Opinion Date: January 10, 2020

Judge: James C. Ho

Areas of Law: Government & Administrative Law, Personal Injury

The Fifth Circuit affirmed the district court's dismissal, based on lack of subject matter jurisdiction, of plaintiff's action under the Federal Tort Claims Act (FTCA) and the Anti-Terrorism Act (ATA). Plaintiff, a security guard, was shot in the leg while on duty by a pair of Islamic terrorists. The court held that plaintiff failed to satisfy the first prong of the discretionary function analysis, because he failed to point to a specific, nondiscretionary function or duty that prescribes a specific course of action for an agency or employee. The court also held that plaintiff waived his argument that a certain gun sale contravened the FBI's express policy prohibiting the sale of firearms to suspected terrorists, because plaintiff failed to adequately brief the issue. Likewise, plaintiff's argument regarding the law enforcement proviso was waived. The court declined to adopt the state created danger doctrine to overcome the FTCA's discretionary function exception; held that the district court properly dismissed the ATA claims for lack of subject matter jurisdiction; and held that the district court did not abuse its discretion by barring additional discovery.

Palm Valley Health Care, Inc. v. Azar

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-41067

Opinion Date: January 15, 2020

Judge: Costa

Areas of Law: Government & Administrative Law, Health Law

The Fifth Circuit affirmed HHS's decision that extrapolating the Medicare underpayment rate to all claims paid over the relevant time period resulted in a repayment demand of more than $12 million. The court held that the district court correctly rejected Palm Valley's due process claim; Palm Valley failed to exhaust its challenge to the "homebound" standard and thus the court could not consider the issue; substantial evidence supported HHS's determination that many beneficiaries were not homebound; and there was no error in the extrapolation methodology.

Saginaw County. v. STAT Emergency Medical Services, Inc.

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-1424

Opinion Date: January 10, 2020

Judge: Jeffrey S. Sutton

Areas of Law: Antitrust & Trade Regulation, Civil Procedure, Constitutional Law, Government & Administrative Law, Government Contracts

Saginaw County has nearly 200,000 residents. A single company, Mobile Medical, has provided the county’s ambulance services since 2009. The county guaranteed Mobile the exclusive right to operate within its borders; Mobile pledged to serve all eight of Saginaw County’s cities and incorporated villages and its 27 rural townships. In 2011, STAT, a competing ambulance company, entered the Saginaw market, providing patient-transport services for an insurer as part of a contract that covered six Michigan counties. A municipality, dissatisfied with Mobile’s response times and fees, hired STAT. When Saginaw County proposed to extend Mobilel’s contract in 2013, STAT objected, arguing that the arrangement violated state law, federal antitrust law, and the Fourteenth Amendment. The county approved Mobile's new contract and enacted an ordinance that codified the exclusivity arrangement but never enforced the ordinance. STAT continued to insist that Michigan law permitted it to offer ambulance services. Saginaw County sought a federal declaratory judgment that Michigan law authorizes the exclusive contract and that it does not violate federal antitrust laws or the U.S. Constitution by prohibiting STAT from operating in the county. The Sixth Circuit affirmed the dismissal of the claim for lack of jurisdiction. The county failed to establish an actual or imminent injury. Federal courts have the power to tell parties what the law is, not what it might be in potential enforcement actions.

Prater v. Saul

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2263

Opinion Date: January 15, 2020

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Public Benefits

Prater was denied Social Security Disability Insurance benefits when she was 47-years-old and weighed about 400 pounds at 64 inches tall. X-rays showed mild-to-moderate degenerative joint disease in her feet and knees and degenerative disc disease in her spine. She was diabetic and had a history of gout. Prater stated that at her last job she experienced pain and fatigue “all the time.” None of her treating physicians indicated that she must alternate between sitting and standing. A vocational expert testified that a hypothetical individual with Prater's vocational background, education, and age, limited to sedentary work with restrictions on lifting, carrying, climbing, driving, and more, who could stand and walk no more than two hours of an eight-hour day and would need to change positions during the day but could remain in place for at least 30 minutes, whether sitting or standing, could not do any of Prater’s past jobs but could perform other jobs available in the national economy. The ALJ concluded that Prater was not disabled, finding that she had the residual functional capacity (RFC) to perform sedentary work with numerous restrictions; that her statements about the intensity, persistence, and limiting effects of her symptoms were “not entirely consistent” with the evidence; and that, although Prater was morbidly obese, “her physical examination was otherwise unremarkable.” The Appeals Council, the district court, and the Seventh Circuit upheld the decision. The sit/stand limitation in the RFC assessment is not too vague. The ALJ’s finding that she could sit and stand for 30 minutes at a time does not lack medical support; the ALJ did not improperly discredit her testimony that she could remain in position for only 20 minutes.

Planned Parenthood of Greater Washington and North Idaho v. United States Department of Health & Human Services

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-35920

Opinion Date: January 10, 2020

Judge: Ronald Murray Gould

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

Planned Parenthood filed suit against HHS, alleging that the agency's 2018 Funding Opportunity Announcements (FOAs) for funding programs to combat teen pregnancy were contrary to the law as required in their appropriation, the Teen Pregnancy Prevention Program (TPPP), which is the relevant part of the 2018 Consolidated Appropriations Act. The Ninth Circuit reversed the district court's dismissal of the action, holding that Planned Parenthood had standing under the competitor standing doctrine and that the case is not moot because it satisfies the capable of repetition, yet evading review exception to mootness. The panel explained that Planned Parenthood could reasonably expect to be subject to the same injury again, and the injury was inherently shorter than the normal life of litigation. The panel exercised its discretion to reach two issues in the first instance. First, the panel held that the 2018 Tier 1 FOA was contrary to law, because the 2018 Tier 1 FOA's direction that grant applicants address and replicate each of the elements of the TAC or the SMARTool, contradicts the TPPP's direction that Tier 1 grants go only to applicants whose programs are proven effective. Second, the panel held that the 2018 Tier 2 FOA was not contrary to the TPPP on its face. The panel remanded the case to the district court for further proceedings.

Walker v. Corizon Health

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-3070

Opinion Date: January 14, 2020

Judge: Michael R. Murphy

Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law, Health Law, Medical Malpractice

Marques Davis was an inmate at the Hutchinson Correctional Facility (“HCF”) from June 2016 until his death in April 2017. During the course of his confinement, Davis suffered from constant neurological symptoms, the cause of which went untreated by HCF medical personnel. When he eventually died from Granulomatous Meningoencephalitis, Davis’s estate (“the Estate”) brought federal and state law claims against Corizon Health, Inc. and numerous health care professionals who interacted with Davis during his incarceration. One such medical professional, Dr. Sohaib Mohiuddin, filed a qualified-immunity-based motion to dismiss the Estate’s 42 U.S.C. 1983 claim. The district court denied the motion, concluding the complaint set out a clearly established violation of Davis’s right to be free from deliberate indifference to the need for serious medical care. Mohiuddin appealed, arguing the district court erred in determining the complaint’s conclusory and collective allegations stated a valid Eighth Amendment claim as to him. Upon de novo review, the Tenth Circuit concluded the complaint did not state a valid deliberate indifference claim as to Mohiuddin. Thus, it reversed the denial of Mohiuddin’s motion to dismiss and remanded the matter to the district court for further proceedings.

American Anti-Vivisection Society v. United States Department of Agriculture

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 19-5015

Opinion Date: January 10, 2020

Judge: David S. Tatel

Areas of Law: Animal / Dog Law, Government & Administrative Law

The DC Circuit reversed the district court's grant of the USDA's motion to dismiss, based on failure to state a claim, an action brought under the Administrative Procedure Act (APA) by two animal-rights groups, alleging that the agency's failure to issue standards governing the humane handling and care of birds not bred for use in research amounted to arbitrary and capricious action. The court held that the Coalition has alleged facts sufficient to establish Article III standing, and thus the court need not consider whether the Anti-Vivisection Society too has standing. On the merits, the court held that the Coalition has adequately alleged that USDA has failed to take a discrete agency action that it is required to take. In this case, the Animal Welfare Act was amended eighteen years ago to require USDA to issue standards governing the humane treatment, not of animals generally, but of animals as a defined category of creatures including birds not bred for use in research. USDA has conceded that its general animal-welfare standards are inadequate to ensure the humane treatment of birds, and USDA has yet to fulfill its statutory responsibility to issue standards regarding the humane treatment of birds. Because the issue of whether such action has been unreasonably delayed has been unbriefed, the court remanded for the district court to consider it in the first instance.

City of Huntington Beach v. Becerra

Court: California Courts of Appeal

Docket: G057013(Fourth Appellate District)

Opinion Date: January 10, 2020

Judge: Richard D. Fybel

Areas of Law: Constitutional Law, Government & Administrative Law

The City of Huntington Beach filed a petition for writ of mandamus and a complaint for declaratory relief to “invalidate the unconstitutional mandates of the [CVA] that impermissibly strip the City’s constitutionally protected Charter authority with respect to local 'municipal affairs.’” Each cause of action alleged the CVA unconstitutionally violated the City’s authority to conduct municipal affairs guaranteed under article XI, section 5 of the California Constitution by mandating how the City operates its police force. The City also prayed for a declaration that the CVA is unconstitutional and preempted by article XI, section 5 of the California Constitution. The trial court granted the City’s petition for writ of mandamus and a peremptory writ of mandate was issued ordering the Attorney General to refrain from enforcing Government Code section 7284.6 against the City. In a statement of decision, the court found: (1) the “constitution, regulation and government” of a police force was a “quintessential municipal affair under [Section] 5(a)”; (2) the “constitution, regulation and government” of a police force was “a municipal prerogative” protected by Section 5(b); and (3) “there was no 'statewide concern’ justifying the state[’]s regulation of a Charter City’s police force.” The issue before the Court of Appeal was whether charter cities were exempt from compliance with Government Code section 7284.6 on the ground it infringed the authority of charter cities under article XI, section 5(b) of the California Constitution to create, regulate, and govern city police forces. The Court held section 7284.6 was constitutional as applied to charter cities because it addressed matters of statewide concern - including public safety and health, effective policing, and protection of constitutional rights - was reasonably related to resolution of those statewide concerns, and was narrowly tailored to avoid unnecessary interference in local government. Because the trial court concluded otherwise, and granted a petition for writ of mandamus brought by the City, the Court of Appeal reversed with directions to deny the writ petition and enter judgment in favor of the Attorney General.

In re Ballot Title #74, & No.

Court: Colorado Supreme Court

Citation: 2020 CO 5

Opinion Date: January 13, 2020

Judge: Hart

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

In April 2019, Monica Colbert and Juliet Sebold sought to have titles set for eight ballot initiatives. Each of the proposed initiatives was designed to create an “Expanded Learning Opportunities Program” for Colorado children, but each included a different funding mechanism. The Title Board held a hearing on the eight initiatives; it declined to set titles for two, Initiatives #74 and #75, after concluding that both proposed initiatives contained multiple subjects in violation of the Colorado Constitution. The Colorado Supreme Court was asked, in its original jurisdiction, whether a statement in section 1-40-107(1)(c), C.R.S. (2019), that “[t]he decision of the title board on any motion for rehearing shall be final, except as provided in subsection (2) of this section, and no further motion for rehearing may be filed or considered by the title board” – meant what it said. The Court responded, “yes”: Section 1-40-107 contemplated only a single Title Board rehearing on a proposed initiative title. The Court therefore affirmed the decision of the Title Board declining to consider a motion for a second rehearing on Proposed Initiative 2019–2020 #74 and Proposed Initiative 2019–2020 #75.

In re Midway Pro Bowl Relocation Benefits Claim

Court: Minnesota Supreme Court

Docket: A19-0237

Opinion Date: January 15, 2020

Judge: G. Barry Anderson

Areas of Law: Civil Procedure, Government & Administrative Law

The Supreme Court affirmed the decision of the court of appeals denying the City of Saint Paul's motion to discharge Respondent's petition for a writ of certiorari on the basis that Respondent failed to serve the petition on the agency, as required by Minn. Stat. 14.64, within the thirty-day deadline set forth in Minn. Stat. 14.63, holding that the thirty-day deadline in section 14.63 does not apply to the service requirement imposed by section 14.64. Respondent sought relocation benefits under the Minnesota Uniform Relocation Act after its lease of a bowling alley was prematurely terminated due to construction. The City denied the request, and an administrative law judge denied Respondent's claim. Respondent filed a petition for a writ of certiorari and served the petition on the City within thirty days of receiving the decision. The City sought to discharge the writ and dismiss the appeal based on untimely service. The court of appeals denied relief. The Supreme Court affirmed, holding that judicial review under the Administrative Procedure Act is invoked by compliance with the provisions of section 14.63, and the thirty-day deadline in section 14.63 does not apply to the service requirement imposed by section 14.64.

Ventas Realty Limited Partnership v. City of Dover

Court: New Hampshire Supreme Court

Docket: 2018-0680

Opinion Date: January 10, 2020

Judge: Gary E. Hicks

Areas of Law: Civil Procedure, Government & Administrative Law, Real Estate & Property Law, Tax Law

Plaintiff Ventas Realty Limited Partnership (Ventas), appealed a superior court order denying its request for an abatement of the real estate taxes it paid defendant City of Dover (City), for the 2014 tax year. The subject real estate consists of a 5.15-acre site containing a skilled nursing facility serving both short-term and long-term patients, two garages, and a parking lot. At issue was the City’s April 1, 2014 assessment of the real estate at a value of $4,308,500. Ventas alleged that it timely applied to the City for an abatement of its 2014 taxes. The City presumably denied or failed to act upon the request, and Ventas, thereafter, petitioned the superior court for an abatement pursuant to RSA 76:17 (Supp. 2018), alleging that the City had unlawfully taxed the property in excess of its fair market value. Expert witnesses for both sides opined the property’s highest and best use was as a skilled nursing facility. The experts also agreed that the most reliable method for determining the property’s fair market value was the income capitalization method, although the City’s expert also completed analyses under the sales comparison and cost approaches. Both experts examined the same comparable properties and they also used similar definitions of “fair market value.” The main difference between the approaches of the two experts is that the City's expert used both market projections and the property’s actual income and expenses from 2012, 2013, and 2014 to forecast the property’s future net income, while Ventas' expert did not. Ventas' expert used the property’s actual income and expenses for the 11 months before the April 1, 2014 valuation date, without any market-based adjustments. Despite their different approaches, the experts gave similar estimates of the property’s projected gross income for tax year 2014. The experts differed greatly in their estimates of the property’s projected gross operating expenses for tax year 2014. All of Ventas’ arguments faulted the trial court for finding the City's expert's valuations more credible than its own expert's valuations. The New Hampshire found the trial court made numerous, specific findings which were supported by the record as to why it rejected Ventas' expert's appraisal. Accordingly, the Supreme Court upheld the trial court’s determination that Ventas' expert's appraisal failed to meet Ventas’ burden of proof.

Friends of Columbia Gorge v. Energy Fac. Siting Coun.

Court: Oregon Supreme Court

Docket: S066993

Opinion Date: January 16, 2020

Judge: Thomas A. Balmer

Areas of Law: Construction Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

In Friends of Columbia Gorge v. Energy Fac. Siting Coun., 365 Or 371, 446 P3d 53 (2019), the Oregon Supreme Court held that the Energy Facility Siting Council had failed to substantially comply with a procedural requirement when it amended rules governing how it processes requests for amendment (RFAs) to site certificates that the council issued. The Court therefore held that the rules were invalid. In response to that decision, the council adopted temporary rules governing the RFA process. Petitioners contended that those temporary rules were also invalid. According to petitioners, the rules were invalid because the council failed to prepare a statement of its findings justifying the use of temporary rules. Petitioners also maintained that the council’s rules exceed the 180-day limit on temporary rules or otherwise improperly operated retroactively. After review, the Supreme Court disagreed with petitioners’ arguments and concluded the temporary rules were valid.

Armstrong v. Longview Farms, LLP

Court: South Dakota Supreme Court

Citation: 2020 S.D. 1

Opinion Date: January 15, 2020

Judge: Salter

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

The Supreme Court affirmed the order of the circuit court affirming the decision of the Department of Labor determining that Appellant's knee surgery and related treatment were not compensable, holding that the Department did not err when it concluded that Appellant's work-related injury, in combination with his preexisting condition, did not remain a major contributing cause of his disability, impairment, or need for treatment. Appellant injured his left knee while working for Appellee. Appellee denied liability for Appellant's total knee replacement surgery and post-operative treatment. The Department found the work-related injury neither contributed independently nor was a major contributing cause of Appellant's need for surgery. The circuit court affirmed. The Supreme Court affirmed, holding that Appellant failed to prove causation under either S.D. Codified Laws 62-1-1(7)(b) or S.D. Codified Laws 62-1-1(7)(c).

In re C.L.S.

Court: Vermont Supreme Court

Citation: 2020 VT 1

Opinion Date: January 10, 2020

Judge: Carroll

Areas of Law: Family Law, Government & Administrative Law

Parents appeal the termination of their parental rights to son C.L.S. C.L.S. was born in February 2018. During mother’s last trimester of pregnancy, hospital staff reported to the Department for Children and Families (DCF) that mother had repeatedly tested positive for illicit unprescribed substances. She missed numerous prenatal and medication-assisted-treatment appointments during her pregnancy. She declined inpatient treatment or a referral to a substance-abuse clinic. Parents were unmarried but lived together prior to C.L.S.’s birth. At birth, C.L.S. weighed less than five pounds, had an underdeveloped esophagus, and was in withdrawal from having illegal drugs in his system. He initially required a feeding tube. Mother tested positive for numerous unprescribed illegal drugs. DCF took C.L.S into custody on an emergency basis on the day he was born and filed a petition alleging that C.L.S. was a child in need of care or supervision (CHINS). A temporary care hearing began the following day. The parents denied that C.L.S. was CHINS, sought a conditional order giving custody to father, and requested a contested temporary care hearing. The court continued custody with DCF but permitted parents to have unsupervised contact with C.L.S. while he remained in the hospital. C.L.S. was subsequently discharged to a foster home and father filed a motion requesting parent-child contact and unsupervised visitation. In September 2018, after a contested hearing, the court issued a disposition order continuing DCF custody and adopted a case plan calling for concurrent goals of reunification with either parent or adoption. Neither party appealed the disposition order. In January 2019, the State filed petitions to terminate mother’s and father’s parental rights. On appeal, neither parent challenged the court’s findings or conclusions in the termination order. Rather, they asserted the court committed various errors at the temporary care hearings that required reversal of the merits determination and subsequent disposition orders. Finding no abuse of discretion, the Vermont Supreme Court affirmed termination.

Ass'n of Wash. Bus. v. Dep't of Ecology

Court: Washington Supreme Court

Docket: 95885-8

Opinion Date: January 16, 2020

Judge: Debra Stephens

Areas of Law: Business Law, Civil Procedure, Environmental Law, Government & Administrative Law

At issue was the promulgation of a novel rule by the Washington Department of Ecology addressing climate change. Specifically, the Washington Supreme Court was asked to determine whether the Washington Clean Air Act granted the Department broad authority to establish and enforce greenhouse gas emission standards for businesses and utilities that did not directly emit greenhouse gases, but whose products ultimately did. The Department claimed and exercised such authority in promulgating the rule at issue. The Supreme Court held that by its plain language and structure, the Act limited the applicability of emissions standards to actual emitters. "Ecology's attempt to expand the scope of emission standards to regulate nonemitters therefore exceeds the regulatory authority granted by the Legislature." The Court invalidated the Rule to the extent that it exceeded the Department's regulatory authority, while recognizing the Department could continue to enforce the Rule in its authorized applications to actual emitters.

Lowe's Home Ctrs., LLC v. Dep't of Revenue

Court: Washington Supreme Court

Docket: 96383-5

Opinion Date: January 16, 2020

Judge: Barbara Madsen

Areas of Law: Business Law, Civil Procedure, Government & Administrative Law, Tax Law

Lowe's Home Centers sought reimbursement of state sales taxes and Business and Occupation ("B&O") taxes from the Washington Department of Revenue ("DOR") because it contracted with banks to offer private-label credit cards to its customers, and agreed to repay the banks for losses it sustained when customers defaulted on their accounts. RCW 82.08.050 provided that a seller must collect and remit sales taxes to the State; for sellers unable to recoup sales taxes from buyers, RCW 82.08.037(1) provided that sellers could claim a deduction "for sales taxes previously paid on bad debts." In a split decision, the Court of Appeals affirmed the trial court's denial of reimbursement. After its review, the Washington Supreme Court held that although banks were involved in the credit transaction, Lowe's was still the seller burdened with the loss from its customers' defaults, including their nonpayment of the sales taxes. Accordingly, the Supreme Court reversed the Court of Appeals.