Saturday, April 21, 2012
A sharply divided three-judge panel of the Ninth Circuit ruled earlier this week in Stengel v. Medtronic, Inc. that the plaintiffs' state law failure-to-warn claim based on Medtronic's failure to provide disclosures to the FDA is impliedly preempted under the Medical Device Amendments of 1976 to the Food, Drug and Cosmetic Act.
The ruling deepens a circuit split, aligning the Ninth Circuit with the Eighth, and against the Fifth. It also leaves little, if any, daylight for a state law claim paralleling the MDA in the Ninth Circuit.
The case grows out of Richard and Mary Lou Stengel's claim against Medtronic for damages for injuries from a premarket approved medical device. The Stengels claimed, among other things, that Medtronic failed to report problems with the device; their proposed amended complaint read:
Under federal law and regulation, [Medtronic] was under a continuing duty to monitor the product after premarket approval and to discover and report to the FDA any complaints about the product's performance and any adverse health consequences of which it became aware and that are or may be attributable to the product.
The Stengels filed a state failure-to-warn claim, which paralleled the FDA reporting requirement, in state court, and Medtronic removed to federal court.
The Ninth Circuit ruled that the Stengels' state failure-to-warn claim was impliedly preempted under the MDA under Buckman Co. v. Plaintiffs' Legal Committee (2001). Buckman held that state fraud-on-the-FDA claims were preempted under the FDCA. The majority in Stengel said those claims were the same as the Stengels' claim for preemption purposes:
The Stengels' theory is that if Medtronic had acted wtih reasonable care in complying with the regulations that required it to provide information to the FDA, the FDA would have required Medtronic to warn physicians about the danger of inflammation connected to its pump and Stengel could have avoided the infury caused by the pump. This is precisely the same theory that was rejected in Buckman. The only difference is that, in Buckman, the defendant allegedly misinformed the FDA overtly by providing false information, whereas here the defendant allegedly misinformed the FDA tacitly by failing to report information that it had a duty to report. The policing of such conduct in both instances is committed exclusively to the federal government, and recognizing a state cause of action based on such conduct would conflict with the statutory scheme established by Congress.
Judge Noonan wrote in dissent that the Supreme Court specifically said in Medtronic, Inc. v. Lohr (1996) that state common law duties could parallel the MDA, so long as they were not expressly preempted by the MDA. The Court restated this in Riegel v. Medtronic (2008). Judge Noonan wrote that nothing in Buckman limited this statement, and that Riegel demonstrated its continuing validity.
Although the ruling this week leaves a theoretical opening for a state law claim that parallels the MDA, under the majority's approach it's hard to see what it is.
Friday, April 20, 2012
The animal fighting statute provides "it shall be unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture" and defines an "animal fighting venture" as
any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment . . . .
The Fourth Circuit opinion in Gilbert, however, had "no difficulty concluding that Congress acted within the limitations established by the Commerce Clause in enacting the animal fighting statute." Writing for a unanimous panel, Judge Barbara Milano Keenan stated that there was "a substantial relation to interstate commerce," unlike the statutes invalidated in United States v. Lopez (1995) and United States v. Morrison (2000). Extensively discussing Congressional findings and legislative history, she concluded that "the link between animal fighting ventures and its effect on interstate commerce is not attenuated."
Rather, the link is direct, because animal fighting ventures are inherently commercial enterprises that often involve substantial interstate activity. Thus, in contrast to the statute at issue in Lopez, there is no need to "pile inference upon inference" in order to establish the link between animal fighting and interstate commerce.
In sum, our task is simply to determine, with a presumption of constitutionality in mind, whether there is a rational basis for concluding that the practice of animal fighting, when conducted for "purposes of sport, wagering or entertainment," substantially affects interstate commerce.
The opinion rejected the argument that a defendant required scienter regarding the affect on interstate commerce, an argument that was expanded in the companion case of Lawson.
In Lawson, the defendants/appellants added to the Commerce Clause argument an argument pursuant to the Fifth Amendment's equal protection component. The focus was on the varying scienter requirements depending upon state law. Under the animal fighting statute, if a defendant lives in a jurisdiction where gamefowl fighting is legal under the laws of that jurisdiction, the government must prove as an additional element of the offense that the defendant knew that at least one bird in the fighting venture traveled in interstate or foreign commerce. In contrast, if a defendant lives in a jurisdiction that prohibits gamefowl fighting, the government need only prove that the defendant sponsored or exhibited an animal in an animal fighting venture, irrespective whether the bird traveled in interstate or foreign commerce.
In an opinion again authored by Judge Keenan, the panel applied rational basis scrutiny and found that the classification amongst residents of various states was rationally related to a legitimate purpose. Although, as Judge Keenan noted, "cockfighting is illegal in all 50 States and the District of Columbia," it is legal in several United States territories such as Guam and Puerto Rico. The increased statutory burden for prosecutions in "states" (including territories) merely reflects "the decision of Congress to accommodate principles of federalism, a concern that unquestionably is a legitimate governmental interest."
Although not successful on the facial constitutional attack to the statute, the court did rule in Lawson that there were reversible errors in the trial. The panel concluded that the government has failed to demonstrate that a juror’s misconduct did not affect the verdict with respect to the violations of the animal fighting statute and vacated the defendants’ convictions for violating the animal fighting statute, while upholding other convictions.
These companion cases are carefully reasoned and nicely structured, with solid yet relatively concise analysis. They take the Commerce Clause and equal protection arguments seriously, even if they are ultimately rejected.
[image: "Cock-fighting Match" by John Kay, circa 1826, via]
Near Wall Street, and thus near "Occupy Wall Street," is the National Memorial Federal Hall. As the National Park Service describes it, Federal Hall is "The Birthplace of American Government":
Here on Wall Street, George Washington took the oath of office as our first President, and this site was home to the first Congress, Supreme Court, and Executive Branch offices. The current structure, a Customs House, later served as part of the US Sub-Treasury. Now, the building serves as a museum and memorial to our first President and the beginnings of the United States of America.
A new (and perhaps temporary) addition to Federal Hall is a dedicated "1st Amendment Rights Area," on the lower left hand side of the diagram below:
As Timothy Zick noted several years ago, "governments have begun to partition and segment expressive venues. The state, through spatial tactics, is actively creating distinct, tactical places for expressive activity. Spatial tactics are giving rise to what we might consider particular architectures of place." Zick's 2008 book Speech Out of Doors is a terrific discussion of this type of free speech "zoning."
The en banc Ninth Circuit this week in Gonzalez v. Arizona overturned Arizona's requirement that prospective voters in Arizona provide proof of U.S. citizenship in order to register. But the court also upheld the state's requirement that registered voters show ID to cast a ballot at the polls.
The case is the latest ruling on Arizona's many attempts to clamp down on illegal immigration--just a week before the Supreme Court will hear arguments on Wednesday on S.B. 1070. It's also the latest ruling on the many attempts in the states to tighten registration and voting requirements. The case suggests that states may face difficulties in tightening registration requirements for federal elections, even if they have flexibility in enacting voter ID laws at the polls. (The Supreme Court rejected a Fourteenth Amendment Equal Protection challenge to Indiana's voter ID law in 2008 in Crawford v. Marion County. Under Crawford, voter ID laws are subject merely to a balancing test--at least unless plaintiffs can show that a particular voter ID law creates a much more significant barrier to voting than the plaintiffs demonstrated in Crawford.)
The Ninth Circuit ruled that Arizona's registration provision conflicted with the National Voter Registration Act of 1993, and that the NVRA superceded Arizona's registration provision. The NVRA prescribes three ways that states can register voters for federal elections: application with an application for a driver's license; mail application using a federal form designed by the Eelection Assistance Commission; and in-person registration. The NVRA also requires states to create a combined driver's license and voter registration form, and it delegates to the EAC the creation of a nationally uniform Federal Form for mail and in-person registration for federal elections. (The key language: the NVRA says that states must "accept and use" the Federal Form developed by the EAC.) States may (but are not required to) create their own forms for federal elections, so long as those forms meet NVRA criteria. (State forms do not replace the Federal Form; the Federal Form is still required.)
The NVRA says that the Federal Form "may require only such identifying information . . . as is necessary to enable the [state] to assess the eligibility of the applicant." It also says that the Federal Form must include an "attestation that the applicant meets [citizenship requirements]." Under the NVRA, the EAC created a Federal Form that asks "Are you a ctiizen of the United States of America?" The Form says that an applicant should not complete the form if he or she answered no.
While neither the NVRA nor the EAC Federal Form requires proof of citizenship (beyond the attestation), Arizona's Proposition 200 does. It says that "[t]he county recorder shall reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship." (Arizona's requirement applies to both the Federal Form and to the state form. The EAC earlier rejected Arizona's proposal to modify the Federal Form consistent with Prop 200.) Arizona's Prop 200 thus goes beyond and adds to the requirements of the NVRA and the EAC Federal Form.
The court ruled that the additional ID requirement in Arizona's Prop 200 conflicted with the NVRA and the EAC Federal Form. It sais that the NVRA doesn't give states room to add to the Federal Form--exactly what Prop 200 sought to do. And because Congress enacted the NVRA under the Elections Clause, the NVRA trumps Arizona's law. The Elections Clause says that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." The court ruled that a valid enactment under the Elections Clause, like the NVRA, preempts conflicting state law, with no presumption against preemption (as in more traditional preemption cases, under the Supremacy Clause, because the Elections Clause does not require the same kind of balancing of federalism concerns).
But while the court ruled the registration provision unconstitutional, it upheld the voter ID provision against challenges under Section 2 of the Voting Rights Act, the 24th Amendment, and the Fourteenth Amendment Equal Protection Clause. As to the Section 2 challenge, the court said that the plaintiffs failed to produce evidence showing that "Latinos' ability or inability to obtain or possess identification for voting purposes . . . resulted in Latinos having less opportunity to participate in the political process and to elect representatives of their choice." As to the constitutional challenges, the court applied a Crawford-like balancing analysis and upheld the law.
Chief Judge Kozinski wrote in concurrence that "this is a difficult and perplexing case," and that the "statutory language we must apply is readily susceptible to the interpretation of the majority, but also that of the dissent." He concurred in full, even though he dissented in the prior three-judge panel. (He explains why on page 4196.)
Judge Berzon, joined by Judge Murguia, concurred but suggested that the plaintiffs could make out a Section 2 case against voter ID, but that under the current record they didn't.
Judge Pregerson concurred and wrote that the plaintiffs did make out a Section 2 case against voter ID.
Judge Rawlinson, joined by Judge Smith, concurred on voter ID, but dissented on the registration requirement.
April 20, 2012 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, News, Opinion Analysis, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)
Thursday, April 19, 2012
A unanimous Supreme Court ruled yesterday in Mohamad v. Palestinian Authority that the Torture Victim Protection Act applies only to natural persons, not organizations. The ruling means that torture victims cannot bring claims under the TVPA against anyone (or anything) other than an individual, natural person--and thus ensures that plaintiffs can use the TVPA in only a very narrow category of cases. That's because torture victims often cannot identify their individual torturers, although they can identify the organization with which their torturers are affiliated.
Azzam Rahim's relatives filed this claim under the TVPA against the Palestinian Authority, alleging that the Palestinian Authority imprisoned, tortured, and killed Rahim.
Justice Sotomayor wrote for the Court that the term "individual" in the TVPA meant only a natural person, not an organization like the Palestinian Authority. The TVPA says,
An individual who, under actual or apparent authority, or color of law, of any foreign nation --
(1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or
(2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.
The Court examined the plain language of the statute and other similar statutory provisions that distinguish between an "individual" (as a natural person) and an organizational entity of some kind and concluded that "individual" means only a natural person. The Court also rejected the plaintiffs' arguments based on legislative history and the need for a judicial remedy.
The ruling limits TVPA remedies for torture victims, because victims often cannot identify their individual torturers (although they can identify the organization with which their torturers are affiliated). (The Court cited evidence from the legislative history that suggests Congress intended that the Act apply only narrowly, in few cases.)
Congress, of course, can change the TVPA to cover organizations and corporations. As the Court noted, "[t]here are no doubt valid arguments for such an extension."
This case is related to another torture case now before the Court, Kiobel v. Royal Dutch Petroleum. In that case, the plaintiffs filed a claim under the Alien Tort Statute (not the TVPA) against a corporation for human rights abuses in another country. The original issue was whether the ATS applied against corporations--an issue similar to the question in Mohamad, but under a different statute. The Court, however, ordered reargument next term on the question whether the ATS applies to actions outside the United States. The new question adds another layer to the case and provides another basis on which the Court could deny relief to the plaintiffs. If so, the Court will have interpreted two important human-rights-protecting statutes narrowly and thus significantly limited judicial remedies for torture victims in U.S. courts.
Again, though: Congress could change all this.
The inimitable Linda Greenhouse has a provocative column entitled "Women's Work" which takes up the continuing relevance of gender politics - - - and a gender divide - - - on the Supreme Court. Her subject is the Court's 5-4 opinion last month in Coleman v. Court of Appeals of Maryland.
Coleman's consitutional issue involved the Eleventh Amendment, which may at first blush seem an odd grounding for gender equality, until one recalls cases such as Nevada Department of Human Resources v. Hibbs (2003). As Greenhouse reminds us, Rehnquist's opinion for the majority in Hibbs was rather suprising. Not only did it reverse the Court's trend to "diss Congress" (as Ruth Colker and James Brudney so evocatively phrased it in their terrific 2001 article), but also construed Congressional intent in the Family Medical Leave Act (FMLA) as addressing “the pervasive sex-role stereotype that caring for family members is women’s work.”
Greenhouse states she'd "love to know" how Rehnquist would have decided Coleman, involving the self-care provision of FMLA. She criticizes Kennedy's opinion for the Court as ignoring the legislative history that Ginsburg so meticulously discussed in the dissent and that was central to Hibbs. (Of course, one might also recall that Kennedy also dissented in Hibbs).
And, while we are used to thinking about a "liberal" v. "conservative" split on the Court, Greenhouse highlights another split: "the three women, along with the highly evolved Justice Stephen G. Breyer, were on one side – the losing side – while the remaining five men were in the majority."
One of those five men in the majority is Alito, who one might recall, replaced Justice O'Connor. O'Connor joined the majority in Hibbs, so perhaps it is reasonable to believe that she would have joined Ginsburg's view regarding the importance of sex-role stereotyping in the FMLA, extended to the self-care provision.
But one might also recall that before Justice Alito, there was nominee Harriet Miers. One wonders how she might have voted.
[image: WWII government poster via]
April 19, 2012 in Courts and Judging, Current Affairs, Disability, Eleventh Amendment, Family, Federalism, Fourth Amendment, Gender, Recent Cases, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 18, 2012
Loyola University Chicago School of Law is organizing the Third Annual Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, November 2 and end midday on Saturday, November 3, 2012.
This is the third annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Unless we are overwhelmed, we hope to be able to schedule presentations for all who submit. In this way, we will provide a forum for the vetting of ideas, invaluable opportunities for informed critiques, and networking opportunities. Presentations will be grouped by subject matter.
The Loyola Constitutional Law Colloquium is aimed at Constitutional Law, Legal History, Political Science, and Philosophy scholars teaching at the university, law school, and graduate levels on matters of constitutional law. We welcome applications from full-time, part-time, and adjunct faculty members, as well as post-doctoral fellows from academic discipline related to the study of constitutional issues (anthropology, history, law, literary criticism, philosophy political science, sociology, etc.).
Application Procedure: The registration and abstract submission deadline is May 31, 2012. Conference organizers will select abstracts on a rolling basis.
Registration at: http://www.luc.edu/law/conlawcolloquium/2012_conference/
Tuesday, April 17, 2012
A unanimous Supreme Court ruled on Tuesday in Filarsky v. Delia that a private person temporarily hired by the government to perform an internal investigation may seek qualified immunity from a civil rights suit arising out of his investigation. The ruling sends the case back to the lower courts to determine whether the private person, Filarsky, is actually immune under qualified immunity principles.
The case arose out of a strangely aggressive investigation of a relatively minor incident. Delia, a City of Rialto (Cal.) firefighter, missed work after becoming ill on the job. When the City became suspicious (after someone saw Delia buying building supplies) it initiated an internal investigation and hired Filarsky, a private attorney, to conduct it. As part of the investigation, Filarsky asked Delia to allow fire department officials to enter Delia's home to take a look at the unused building materials. When Delia refused, Filarsky ordered him to bring the materials out of his home for the officials to see.
Delia sued the City, the fire department, City officials, and Filarsky for civil rights violations under Section 1983. The lower courts granted qualified immunity to all individual defendants, but the Ninth Circuit ruled that Filarsky didn't qualify--because he was a private attorney, not a City employee.
Chief Justice Roberts wrote for a unanimous Court. He applied the familiar test--looking to the general principles at common law in 1871, when Congress passed Section 1983, and the reasons that the Court has extended immunity under Section 1983 suits--and concluded that Filarsky could claim qualified immunity.
Chief Justice Roberts wrote that lines between government employment and private practice weren't so clear for attorneys in 1871, and that private attorneys often performed government functions, and vice versa. As a result, "it should come as no surprise that the common law did not draw a distinction between public servants and private individuals engaged in public service in according protection to those carrying out government responsibilities." Op. at 8. And "[i]ndeed, examples of individuals receiving immunity for actions taken while engaged in public service on a temporary or occasional basis are as varied as the reach of government itself." Op. at 10. Moreover, the principal reason for qualified immunity, avoiding "unwanted timidity" in performance of public duties, applied equally to Filarsky. Thus, Chief Justice Roberts wrote, Filarsky could claim qualified immunity.
Justice Ginsburg wrote a concurrence, emphasizing that the lower courts now have to determine whether Filarsky's conduct violated a "clearly established" right--and therefore whether he's actually immune. Justice Sotomayor wrote a concurrence, saying that this case doesn't mean that all private individuals working temporarily for the government may claim qualified immunity, or that they all may not. According to Justice Sotomayor, "[t]he point is simply that such cases should be decided as they arise, as is our longstanding practice in the field of immunity law."
Judge James E. Boasberg (D.D.C.) yesterday denied the plaintiffs' motion for a preliminary injunction in their facial First Amendment challenge against the federal ban on contractor donations to candidates for federal office, political committees, and parties in connection with federal elections.
The case, Wagner v. FEC, arose out of three federal contractors' claims that the so-called pay-to-play ban violates free speech. The contractors refiled their claim in federal district court after they agreed to abandon their expedited en banc review at the D.C. Circuit (permitted under the FECA). They argued that the ban violates the First Amendment and Fifth Amendment equal protection and sought a preliminary injunction.
Judge Boasberg denied the injunction, ruling that they lacked a likelihood of success on the merits of either claim.
Judge Boasberg applied "closely drawn" scrutiny, not strict scrutiny, to the ban and ruled that it served a sufficiently important interest and was closely drawn to achieve that interest. As to the interest, Judge Boasberg wrote that "[t]here can thus be no doubt that preventing 'pay-to-play' deals or pressure on contractors to give--or the appearance that either is occurring--is sufficiently important to warrant restrictions on political contributions by federal contractors." As to "closely drawn," Judge Boasberg looked to the history of the ban:
When Congress first enacted the ban on political contributions by federal contractors, it was responding to a recent history of corruption. As just discussed, the ban was originally passed in 1940 on the heels of the "campaign-book racket," in which those seeking government contracts were effectively required to buy copies of the Democratic campaign book at highly inflated prices in order to secure government business. In the wake of this scandal, it was eminently reasonable for the legislature to ban contributions by federal contractors. Doing so would not only insulate prospective contractors from pressure to give money to politicians, but it would also help ensure a merit-based system of awarding contracts and "reassure citizens that its politicians are acting on their behalf and not on behalf of the highest bidder." Because . . . Congress reacted to recent scandals in imposing the ban on contractor contributions, its restrictions are more easily characterized as closely drawn. . . .
An absence of [current] corruption does not necessarily mean, however, that the ban is no longer needed. It could simply be an indication that the ban is working.
Op. at 11-12. Judge Boasberg also looked to the contractors' other ways of expressing political support and association as a factor suggesting that the ban is a good fit for the government end. (Note that the ban allows contracting corporations to donate by way of their PAC.)
As to equal protection, Judge Boasberg ruled that intermediate scrutiny applied, and that the contractors did not demonstrate a likelihood of success in comparing their ban to FECA treatment of government employees, contracting corporation officers or PACs, or sole proprietor contractors--all of whom may contribute. Judge Boasberg said that these others did not raise the same kind of problems that contracting corporations raised, and that these retained their own distinct identity (and could contribute under their distinct identity).
Monday, April 16, 2012
Judge Barbara Jones has dismissed the complaint a New York City police officer challenging adverse employment actions because of his criticisms of police quotas in her opinion in Matthews v. City of New York. The Complaint alleged that the 42nd Precinct in New York City had a quota system responsible for unjustified stops, arrests, and summonses.
According to the Complaint, Matthews brought the policy to the attention of commanding officers on several occasions, after which he was subject to retaliation. Obviously, this raises the specter of Garcetti v. Ceballos, decided by the Court in 2006. But for judges in the Second Circuit, it also implicates Jackler v. Byrne, in which the court decided that Jackler, once a probationary police officer in Middletown, New York, may proceed with his suit claiming his termination was in retaliation for his exercise of his First Amendment rights. Jackler witnessed officers assault a suspect; he was subject to repeated attempts to force him to withdraw the truthful report he had filed and to submit one that was false. Jackler arguably conflicts with Bowie v. Maddox from the DC Circuit; the United States Supreme Court declined petitions for certiorari in both cases earlier this year.
In Matthews, Judge Jones stated that there was no dispute that Matthews’ speech involved a matter of public concern, citing Jackler v. Byrne for the proposition that police malfeasance implicates matters of public concern. But, the judge continued, the remaining question was whether Matthews spoke as a citizen, rather than as an employee. In concluding that Matthews spoke as an employee, she reasoned that his complaints to his supervisors were consistent with his “core duties” as a police officer- to legally and ethically search, arrest, issue summonses, and to “police.”
She distinguished Jackler, albeit not very convincingly, by reasoning that Jackler did not rely upon a “civilian analogue.” Instead, she reasoned that it is merely true that when an employee engages in citizen speech there is a civilian analogue. Since Matthews was speaking pursuant to his duties, there was no true civilian analogue. Concomitantly, no First Amendment protection.
[image: NY Municipal Police 1873 via]
Sunday, April 15, 2012
Einer Elhauge (Harvard) writes in The New Republic that the Founders supported health insurance mandates in his piece If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?--and that therefore so should the Court.
According to Elhauge, the Founders supported health insurance mandates twice. Here's what he has to say:
In 1790, the very first Congress--which incidentally included 20 framers--passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That's right, the father of our country had no difficulty imposing a health insurance mandate. . . .
[L]ater, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That's right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.
Moreover, Elhauge argues that because the founders approved of health insurance mandates, they must certainly be proper (as in Necessary and Proper) in the PPACA.