The “When” of Chevron: The Missed Opportunity of County of Maui

SAMUEL ESTREICHER, DANIEL FOLSOM

NYU law professor Samuel Estreicher and rising 3L Daniel Folsom comment on the U.S. Supreme Court’s recent decision in County of Maui v. Hawaii Wildlife Fund, in which the Court interpreted a provision of the Clean Water. Estreicher and Folsom argue that the case presented an opportunity to clarify the murky question of when the Chevron doctrine applies, yet the Court avoided answering that question.

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The Unnecessary Protection of Qualified Immunity

JOANNA C. SCHWARTZ, SETH STOUGHTON

UCLA law professor Joanna C. Schwartz and South Carolina law professor Seth W. Stoughton address some of the arguments commonly asserted to support qualified immunity, the doctrine that shields police officers from civil liability for constitutional violations. Schwartz and Stoughton argue that eliminating qualified immunity should not affect police decision-making and that existing Supreme Court doctrine gives police officers plenty of leeway to make mistakes without violating the Constitution. Because qualified immunity applies only to unreasonable actions by police officers, eliminating or substantially restricting it should not a chilling effect on police officers’ ability or willingness to respond to critical incidents.

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Ruckelshaus v. Cowan

Docket: 19-2770

Opinion Date: June 26, 2020

Judge: Barrett

Areas of Law: Civil Procedure, Legal Ethics, Professional Malpractice & Ethics, Trusts & Estates

Their father set up a trust for the benefit of Elizabeth and Thomas, giving the siblings equal interests; if either died without children, the other would receive the remainder of the deceased sibling’s share. Thomas approached Elizabeth after their father's death, wanting to leave a portion of his share to his wife, Polly. In 1998, Elizabeth retained the defendants to terminate the trust; the representation letter made no mention of a life estate for Polly or a subsequent remainder interest for Elizabeth. The settlement agreement did not mention Polly or a life estate, nor did it restrict what either sibling could do with the trust funds. The agreement contained a liability release and stated that it was the only agreement among the parties. In 1999, Elizabeth signed the agreement and the petition to dissolve the trust. In 2000, the probate court granted the petition. Elizabeth and Thomas each received more than a million dollars. Thomas died in 2009 without children; his will devised his assets to Polly. When Polly died in 2015, she left her estate to her children. Elizabeth filed a malpractice claim. The Seventh Circuit affirmed summary judgment for the defendants, holding that the two-year Indiana statute of limitations began running no later than 2000 and that if Elizabeth had practiced ordinary diligence, she could have discovered then that her wishes had not been followed.

Balsewicz v. Pawlyk

Docket: 19-3062

Opinion Date: June 26, 2020

Judge: KANNE

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Wisconsin Department of Corrections policy requires that transgender prisoners taking cross-gender hormones, like Balsewicz, shower separately from inmates who are not transgender or intersex. Balsewicz complained that inmates who were not transgender or intersex were allowed to shower with those who were and identified Rivers as one of those inmates, believing Rivers falsely claimed to be transgender to receive single-cell housing. Rivers and Balsewicz were in a shower house with other inmates. Rivers made threats. Balsewicz reported the incident to Sergeant Pawlyk and repeatedly asked Pawlyk to report her concerns for her personal safety. Other inmates witnessed this interaction. Pawlyk took no action. Two days later, when Rivers and Balsewicz were leaving a dining hall, Rivers without any provocation or warning, punched Balsewicz multiple times in the head. Balsewicz collapsed, lost consciousness, and experienced dizziness and numbness in her face. Balsewicz filed suit against Pawlyk under 42 U.S.C. 1983. The Seventh Circuit reversed summary judgment favoring Pawlyk. When a prison official knows that an inmate faces a substantial risk of serious harm, the Eighth Amendment requires that official to take reasonable measures to abate the risk. A reasonable juror could conclude that the threat Balsewicz reported would not expire once the inmates left the shower and that Pawlyk knew Balsewicz faced an ongoing risk of serious harm. Pawlyk is not entitled to qualified immunity.

Purtue v. Wisconsin Department of Corrections

Docket: 19-2706

Opinion Date: June 26, 2020

Judge: Barrett

Areas of Law: Civil Rights, Labor & Employment Law

Purtue, a Dodge Correctional Institution officer, reported that inmate Reddick had thrown an empty box from his cell, hitting her. Reddick was taken to segregation. A video recording showed the box flying out of Reddick’s cell but the box didn’t fly toward Purtue nor strike her. Work Rule 6 prohibits correctional officers from falsifying records or knowingly giving false information to prison authorities. Reddick stated that he and Purtue had quarreled earlier and that he threw the box out of frustration but purposefully directed it away from Purtue. Purtue reiterated that the box had hit her. After watching the video, Purtue agreed that the box had not hit her but maintained that something else hit her. The investigators doubted that story because on the video Purtue did not react. The warden decided to skip progressive discipline and immediately terminate Purtue’s employment. Executive Directive #2 classifies “[l]ying or providing false information” as “Serious Acts of Misconduct” that may result in termination. Other officials agreed with that recommendation. A memorandum identified comparators for Purtue—one man and two women—all of whom were fired for lying or falsifying records. Purtue filed suit, alleging sex discrimination under Title VII and 42 U.S.C. 1983. The Seventh Circuit affirmed summary judgment for the defendants. The investigation accurately summarized Purtue’s conduct. Purtue’s expert testimony was speculative and offered nothing more than his opinion that termination was unwise but not necessarily pretextual. Although there were gender disparities in a statistical report, those disparities revealed little about Purtue's dismissal.

United States v. Wade

Docket: 19-2061

Opinion Date: June 26, 2020

Judge: Daniel Anthony Manion

Areas of Law: Criminal Law

To impress a woman he wanted to date (Bishop), Wade wore a badge and a holstered gun, discussed investigating a suspect, and left a business card that claimed Wade was a DEA special agent. The card had a hand-written note indicating that Bishop should go out with Wade. She reported Wade’s interactions. The police opened a stalking investigation. Wade was indicted for impersonating a federal employee and acting as such, 18 U.S.C. 912. The government successfully moved to preclude Wade from claiming his romantic motivation negated his culpability. During closing argument, defense counsel nonetheless stated: “Although [Wade] might be a hopeless romantic, he’s not a criminal.” The judge also ruled against Wade’s proposed jury instructions that would have required the jury to find Wade acted to cause Bishop to follow some course she would not have pursued but for the deceitful conduct. The instruction actually given required the jury to find that Wade falsely assumed or pretended to be a DEA officer or employee and as such committed some overt act involving an assertion of claimed authority derived from that office. The Seventh Circuit affirmed Wade’s conviction. Wade’s alleged romantic intent does not negate the scienter requirement; his motivation has no bearing on whether he knew he was not a DEA agent. The only effect the romantic-motivation argument could have had was to cause the jury to conclude Wade’s crime was not serious or harmful, leading to jury nullification.

Jaxson v. Saul

Dockets: 19-3011, 19-3125

Opinion Date: June 26, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Government & Administrative Law, Public Benefits

Daugherty, an ALJ hearing disability-benefits applications for the Social Security Administration, took bribes. Conn, who represented many claimants, paid Daugherty $400 per favorable decision; Conn received $5,000 or more per case out of the benefits that Daugherty awarded. Four physicians, including Huffnagle, submitted evaluations to support Daugherty’s decisions, even if the applicant failed to appear for examination. Conn and Daugherty pleaded guilty to federal felonies. One of the physicians was convicted. Huffnagle died. The total cost of benefits granted by Daugherty exceeds $500 million. Following an investigation, a notice under 42 U.S.C. 1320a–8(l), set in motion a process for redetermination of the benefits awarded in connection with the scheme. In a suit under 42 U.S.C. 405(g), 1383(c)(3), Jaxson claimed that the ALJ who presided over his redetermination should have considered Huffnagle’s report but declined to do so only because an internal claims-processing manual and ruling say that an ALJ cannot accept evidence that the Inspector General found is likely a product of fraud. The Seventh Circuit affirmed a ruling in favor of Jaxson. Jaxson may have a hard time persuading an ALJ that there is not even “reason to believe” that Huffnagle’s report is fraudulent but he is entitled to try; 42 U.S.C. 405(b)(1), requires a “reasonable notice and opportunity for a hearing”, and “hearing” means a procedure at which both sides can present views on potentially dispositive matters.

Dijamco v. Wolf

Docket: 19-2689

Opinion Date: June 26, 2020

Judge: Scudder

Areas of Law: Immigration Law

Dijamco’s mother, a U.S. green card holder, filed a visa petition on Dijamco’s behalf in 1992. Though the petition received approval, Congress restricts the number issued each year. After four years of waiting in the Philippines, Dijamco had not received a visa; she used fraudulent papers to enter the U.S. In 2005, a visa became available, allowing Dijamco to seek a green card. USCIS denied Dijamco’s application. While her administrative appeal was pending, Dijamco’s mother died, which automatically revoked Dijamco’s visa petition. USCIS dismissed her appeal based on changed circumstances. Dijamco attempted to revive her visa petition. The day after USCIS denied her request for humanitarian reinstatement, Congress enacted an amendment, providing that the death of the petitioning family member did not automatically preclude a beneficiary from receiving a visa, 8 U.S.C. 1154. The agency determined that the amendment did not apply and stated that it would not exercise its equitable discretion to reopen Dijamco's adjustment-of-status application because she entered the country fraudulently. DHS has not taken action to compel her removal, which would have provided a pathway for judicial review. The Seventh Circuit concluded that the district court lacked subject matter jurisdiction to consider any of Dijamco’s claims. The Administrative Procedure Act’s general provision authorizing judicial review of final agency actions yields to immigration-specific limitations. USCIS exercised unreviewable discretion in revoking Dijamco’s petition and refusing to reinstate it.

Morales v. Barr

Docket: 19-1999

Opinion Date: June 26, 2020

Judge: Barrett

Areas of Law: Immigration Law

Morales, a citizen of Mexico, entered the U.S. without inspection as a child. As an adult shooting victim, he petitioned for U nonimmigrant status, a special visa for victims of certain crimes, 8 U.S.C. 1101(a)(15)(U). While his petition was pending, he was charged as removable under 8 U.S.C. 1182(a)(6)(A)(i) as a noncitizen present in the U.S. without being admitted and under section 1182(a)(2)(A)(i)(II) for a 2014 conviction for possession of marijuana. Morales cited his pending U visa petition as a defense to removal. The immigration judge agreed to waive both grounds of inadmissibility to allow him to pursue the U visa petition but later ordered Morales removed as charged on those same grounds. The Seventh Circuit remanded to the BIA. The court rejected an argument that the I’s initial waiver of both grounds of inadmissibility precluded their use as grounds for an order of removal; Morales’s position would effectively turn the inadmissibility waiver into a substitute for the U visa itself. Morales had, however, asked the IJ to continue or administratively close his case instead of ordering removal. The IJ entered the removal order based on the conclusion that those alternative procedures were inappropriate, and the BIA affirmed on the same basis. Those alternatives were wrongly rejected.