COVID-19 Lays Bare the Cruelty of Neoliberalism

JOSEPH MARGULIES

Cornell law professor Joseph Margulies observes how the COVID-19 pandemic is exposing the cruel folly of neoliberal governance. Margulies points out that neoliberalism—the idea that social problems are better solved by the private sector than by government—has brought millions of Americans to the edge of financial and physical ruin, and COVID-19 will push them over. He argues that now more than ever, we must be communitarians rather than individualists.

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Wise v. Wilkie

Docket: 19-60194

Opinion Date: April 3, 2020

Judge: Don R. Willett

Areas of Law: Civil Procedure, Contracts

Plaintiff filed suit against the Secretary of Veterans Affairs, alleging disability discrimination and retaliation in violation of the Rehabilitation Act. At issue in this appeal is the enforceability of the parties' settlement agreement. The Fifth Circuit held that the district court properly exercised jurisdiction to decide the motions to enforce and subsequent motion for reconsideration; the district court did not err in concluding that the settlement agreement does not allow plaintiff to receive $150,000 because she has not elected disability retirement; and the district court must hold an evidentiary hearing to determine whether the settlement agreement is enforceable. Accordingly, the court vacated and remanded for the district court to consider whether the settlement is valid and enforceable, or whether a mutual mistake warrants rescinding it.

Hoffman v. Houston Society for the Prevention of Cruelty to Animals

Dockets: 19-20513, 19-20515

Opinion Date: April 3, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure

The Fifth Circuit withdrew its earlier opinion and substituted the following opinion. The court affirmed the district court's dismissal of plaintiff and his wife's suit against the HSPCA, as well as Texas county and state officials, for unlawful search and seizure under 42 U.S.C. 1983. The court also affirmed the dismissal of plaintiff's adversary proceeding against the HSPCA alleging fraudulent transfer under 11 U.S.C. 542, 548, and 550. The district court correctly held that the statute of limitations barred plaintiff's section 1983 claims against both the HSPCA and Texas county and state officials. Because there was a valid, final judgment from the state court proceedings, the district court properly dismissed Hoffman's adversary claims under collateral estoppel.

Freedom From Religion Foundation, Inc. v. Abbott

Docket: 18-50610

Opinion Date: April 3, 2020

Judge: Stephen Andrew Higginson

Areas of Law: Civil Rights, Constitutional Law

After the district court concluded that the Governor and Director violated FFRF's First Amendment rights by requiring FFRF to take down a Bill of Rights nativity exhibit at the Capitol, the Governor and Director appealed. The Fifth Circuit held that the district court had jurisdiction to entertain this suit where FFRF sought prospective relief, and there was, and still is, a live controversy between the parties. However, the court held that the district court did not have jurisdiction to enter a retrospective declaratory judgment. Accordingly, the court vacated and remanded for the district court to consider FFRF's request for injunctive relief and enter appropriate prospective relief for FFRF. The court also reversed the district court's grant of summary judgment on FFRF's unbridled discretion claims, clarified the appropriate application of the unbridled discretion doctrine in the context of a limited public forum, and remanded for the district court to apply that standard in the first instance.

Avelar-Oliva v. Barr

Docket: 18-60421

Opinion Date: April 3, 2020

Judge: Kurt D. Engelhardt

Areas of Law: Immigration Law

The Fifth Circuit denied the petition for review of the BIA's final order dismissing petitioner's appeal from the IJ's denial of her claims for asylum, withholding of removal, and Convention Against Torture (CAT) relief. The court held that the BIA and the IJ did not err in considering petitioner's credible fear interview when determining her lack of credibility; the court lacked jurisdiction to review petitioner's challenge to the standard of review applied by the BIA in upholding the IJ's adverse credibility determination; to the extent petitioner asserts that the BIA must rely on all of the IJ's findings in support of an adverse credibility determination, she points to no authority to support this proposition; and, considering the totality of the circumstances, no factfinder was compelled to conclude that petitioner was credible.

EEOC v. Vantage Energy Services, Inc.

Docket: 19-20541

Opinion Date: April 3, 2020

Judge: Per Curiam

Areas of Law: Labor & Employment Law

After the EEOC brought an enforcement action against Vantage on behalf of an employee, Vantage moved to dismiss based on the EEOC's failure to exhaust administrative remedies. In a one-sentence judgment, the district court agreed and dismissed. The Fifth Circuit reversed, holding that the EEOC intake questionnaire was sufficient as a charge and, although verified outside of the filing period, was "timely" by virtue of the relation-back regulation. The court noted that the dilatory response of the employee's counsel to the EEOC's months-long requests to file his client's verified charge was inexcusable, and counsel should never ignore applicable Americans with Disabilities law and regulations. Furthermore, the Supreme Court's decision in Edelman v. Lynchburg College, 535 U.S. 106, 113, 118, 122 S. Ct. 1145, 1149, 1152 (2002), and Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402, 128 S. Ct. 1147, 1158 (2008), were designed to accomplish fair and efficient resolution of discrimination complaints filed more often than not by pro se individuals.

Fraser v. Patrick O'Connor & Assoc.

Docket: 18-20687

Opinion Date: April 3, 2020

Judge: Jennifer Walker Elrod

Areas of Law: Labor & Employment Law

The Fifth Circuit affirmed the district court's judgment in favor of plaintiffs, property tax consultant employees, holding that plaintiffs were not exempt employees under the Fair Labor Standards Act (FLSA) because the firm pointed to no job responsibility carried out by a property tax consultant that related in any way to the management or general business operations of the company or its customers. The court also held that the fluctuating-workweek method did not apply in this case, because the preponderance of the evidence supports the conclusion that there was no mutual agreement between plaintiffs and the firm that plaintiffs would be paid a fixed weekly salary regardless of the number of hours worked.