August 18, 2008
Iowa Supreme Court Rejects, um, Creative Workers Compensation Interpretation
I love lawyers who are creative, even when they go one step beyond.
Iowa Code section 85.38(2) relates to the issue of employer credits when payments are made by a group health plan. This provision provides, in relevant part: "In the event the employee with a disability shall receive
any benefits, including medical, surgical, or hospital benefits, under any group plan covering nonoccupational
disability contributed to wholly or partially by the employer . . . then the amounts so paid to the employee from the group plan shall be credited to or against any compensation payments. . . .” Iowa Code § 85.38(2).
Suppose Plaintiff is injured and can't work, so uses COBRA to get health insurance under Group Plan A. She pays the premiums herself. She receives benefits from Plan A. Suppose the employer also pays premiums to Group Plan A -- for all its other employees, but not the Plaintiff. Read literally the employer is entitled to get a credit for the amounts the plan pays Plaintiff...
Not so, say the Iowa Supreme Court, in Midwest Ambulance Serv. v. Ruud, __ N.W.2d __ (Iowa 2008). Interesting case that can be read as purposive or to avoid absurd results.
August 16, 2008
Thoughtful Essay on Hamdan, Military Commissions, Etc.
The statutory issues were discussed long ago here, but this essay I found quite interesting, though it's not so much about statutory interpretation as about broader issues and the meaning of war, punishment, and the difference between criminal and military law. Call it a Saturday morning diversion.
August 15, 2008
Split on Meaning of "materiality" under False Claims Act
In U.S. v. Bourseau, 531 F.3d 1159 (9th Cir. 2008), the court affirmed convictions of defendants under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733. Title 31 U.S.C. § 3729(a)(7), the reverse false claims provision of the FCA, punishes anyone who “knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government.” Interestingly, the statute does not contain a requirement of materiality, but because of the legislative history of the act, it has been read into it. And, courts split on what that implied element means:
The Supreme Court has stated that "[i]n general, a false statement is material if it has 'a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed.' " Neder v. United States, 527 U.S. 1, 16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Yet, circuit courts are split on how to measure materiality in the context of the FCA. See Medshares Mgmt. Group, Inc., 400 F.3d at 445. The Fourth and Sixth Circuits have adopted a "natural tendency test" for materiality, which focuses on the potential effect of the false statement when it is made rather than on the false statement's actual effect after it is discovered. Id. The Eighth Circuit has adopted a more restrictive "outcome materiality test," which requires a showing that the defendant's actions (1) had "the purpose and effect of causing the United States to pay out money it is not obligated to pay," or (2) "intentionally deprive[d] the United States of money it is lawfully due." Id. (citing Costner v. URS Consultants, 153 F.3d 667, 677 (8th Cir.1998)). We agree with the Fourth and Sixth Circuits that the natural tendency test is the appropriate measure for materiality because it is more consistent with the plain meaning of the FCA. Id. Applying the natural tendency test to this case...
August 14, 2008
Recent Decision of First Impression On Michigan Property and Child Support Law
In Walters v. Leech, __ N.W.2d __ (Mich. App. July 22, 2008), the court analyzed an interesting property law/tax law question involving whether a child support lien could be asserted against real property owned by the plaintiff and spouse as a tenancy by the entirety. The statute at issue provided:
The amount of past due support that accrues under a judgment as provided in [MCL 552.6032] or under the law of another state constitutes a lien in favor of the recipient of support against the real and personal property of a payer.
The question the court faced was whether property owned under a tenancy by the entirety -- which essentially presents an undivided interest by both spouses -- was "property of a payer." The court held it was not, basing its decision on in pari materia and under the presumption that legislatures know the common law when enacting statutes.
I'm guessing that this presents an enormous loophole in the ability to enforce child support liens. Interesting case.
August 13, 2008
Are Dogs "Livestock"?
This isn't a straight up statutory interpretation case, but rather one involving an easement, but the court relies heavily on the fact that statutes differ in their definitions of "livestock" in holding that whether dogs were "livestock" in terms of an easement presented a question of fact for the jury. Thanks to Professor Brian Slocum for this one! It's U.S. v. Park, __ F.3d __ (9th Cir. Aug. 8, 2008).
Fifth Circuit Applies Louisiana Statutory Directives in Case of First Impression
In Bernhard Mechanical Contractors, Inc. v. St. Paul Companies, 2008 WL 3244145 (5th Cir. Aug. 8 2008), the court gave a first impression interpretation of La. Rev. Stat. 9:5606, which is essentially a statute of limitations for claims against insurance agents, known as a "peremption" period under Louisiana law. Specifically, it stated that any action against "any insurance agent, broker, solicitor, or other similar licensee" had to be filed within a year; the claim against the insurer was filed more than a year after the agent's wrongful action.
The court held that the statute did not apply to claims against the insurer for whom the agent worked, even though liability was imputed to the insurance company under agency law. In reaching its conclusion, the court relied on Lousiana Civil Code Article 9, which requires courts to apply the language of the statute if clear (which raises a question about Erie -- is statutory interpretation a procedural, or substantive issue, an issue discussed elswhere in this blog), but nonetheless also applied case law holding that peremption statutes should be construed against finding a claim barred. Applying these principles, the court held that "other licensee" clearly did not include insurers, because of ejusdem generis and also because other Louisiana statutes made clear distinctions between insurers and their agents.
What's surprising to me is that, despite the fact that this is a case of first impression, and the court reversed a grant of summary judgment to the insurer, it held that the decision was non-precedential.
July 24, 2008
Amicus Brief of Linguistics Professors
This is of interest, an amicus brief filed on behalf of no party by a group of linguistics professors in the U.S. Supreme Court, available here. This is from the brief in U.S. v. Hayes, filed by Neal Goldfarb at Tighe Patton Armstrong (thanks for posting it!):
Even though interpreting written texts is central to
the legal process, legal education typically pays little or
no attention to how language works or to methodologies
for analyzing disputes about language, the assumption
apparently being that by the time people reach law
school, they already have the necessary knowledge and
skill. Because using and understanding language seems
as natural as breathing, we take language for granted,
and most of us do not realize that what we were taught
in high school merely scratches the surface.
Additional materials are available here.
I'm on vacation, so posts will be sparse.
July 14, 2008
Circuit Splits and Matters of First Impression
Some odds and ends.
In City of Fort Worth v. Abbott, __ S.W.3d __ (Tex. App. -- Austin, 2008 no pet. h.) the Austin Court of appeals interpreted for the first time Texas's statute concerning its DNA database and the right to privacy of those who submitted DNA information as victims or to be excluded as subjects of a crime.
The Wisconsin Court of Appeals issued a decision addressing the weight to be given to an agency interpretation of a statute that was "very nearly" a matter of first impression in Michels Pipline Constr. v. Labor and Indus. Rev. Comm'n, 750 N.W.2d 485 (Wisc. App. 2008).
A few circuit splits on interpretation that are developing include a recent Sixth Circuit decision, U.S. v. Parrett, __ F.3d __ (6th Cir. 2008). Not only did the court find appellate jurisdiction based upon the Cohen collateral order exception to the final judgment rule, the court furthered a split as to the meaning of 21 U.S.C. § 853, which relates to forfeiture of substituted assets in criminal proceedings.
July 13, 2008
Wisconsin Supreme Court on Deference to Agency Interpretation of Statutes Compared to Rules
This is an interesting decision for anyone interested in Chevron deference type issues, Wisconsin Dept. of Revenue v. Menasha, __ N.W.3d __ (Wis. 2008), available here. What is interesting is that the concurring judge agreed that the standard of review was the "key" to the appeal, and the Chief Judge of the court dissented on that same point. Interesting debate.
July 09, 2008
Ninth Circuit Issues First Impression of 18 USC 1028(a)(6)
A fellow stores his gun with the border guards along with the Canadian border, as they do as a courtesy for law enforcement officers who are heading to Canada. Problem was, he wasn't a law enforcement officer, but used a fake ID, but a fake ID that, he argued, didn't clearly indicate it was issued by the US Government. Based upon the purpose and text of the statute, the Ninth Circuit affirmed his conviction in U.S. v. Fuller, __ F.3d __ (9th Cir. July 8, 2008), available here.
July 03, 2008
Does "Collision" Require More than a Car Collide with the Road?
"Yes, according to a fun Hawaii Supreme Court case, State v. Bayly, 185 P.3d 186 (Haw. 2008), available here, which begins:
Because the evidence adduced regarding the alleged "collision" is not in dispute, the question whether a "collision" occurred is a pure question of law. Specifically, at issue in this case is whether contact between the bottom of a truck and the surface on which the vehicle sits -- be it a road or a parking lot -- constitutes a "collision." More broadly, the basic issue is whether a "collision" occurs when some part of a vehicle contacts only the road itself.
The court reversed the appellate court's holding that evidence of a collision between the bottom of Bayly's truck and the concrete parking lot surface was enough.
A nice fun case.
June 30, 2008
Citing Hamdan, Federal Circuit Heavily Relies on Leg History
This is an obscure issue-- whether the Contract Disputes Act abrogated claim preclusion doctrine. In Phillips/May Corporation v. U.S., 524 F.3d 1264 (Fed. Cir. 2008). The court's analysis begins::Phillips argues that claim preclusion does not apply here because the Contract Disputes Act of 1978, Pub. L. No. 95-563, 92 Stat. 2383 (“CDA”), specifically permits a claimant to split claims arising from the same contract between an agency board of contract appeals and the Court of Federal Claims. The CDA allows contractors a choice of forum for their appeals:41 U.S.C. § 609(a)(1). Phillips argues that section 609(a)(1) allows a contractor to choose the appellate forum for each of its claims, and that a court may not interfere with the contractor’s choice. In support of this view, Phillips urges that section 609(d) of the act specifically contemplates the splitting of claims between the Court of Federal Claims and the agency boards because it provides for, but does not require, consolidation of such separate proceedings. Section 609(d) provides[I]n lieu of appealing the decision of the contracting officer . . . to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary.
If two or more suits arising from one contract are filed in the United States Court of Federal Claims and one or more agency boards, for the convenience of parties or witnesses or in the interest of justice, the United States Court of Federal Claims may order the consolidation of such suits in that court or transfer any suits to or among the agency boards involved.
Id. § 609(d). Admittedly, the statute is somewhat ambiguous as to whether it permits (1) the filing of all claims arising from a single contract in separate fora, or (2) only claims that do not arise from the same transactional facts. We have not previously addressed this question. However, the history of the CDA makes clear that the statute is not designed to alter the usual rules of res judicata.
June 29, 2008
Federal Interpretation Impact on State Law
The language of Iowa‟s civil rights act for the 180 day period to raise a violation is modeled after the federal statute, which requires that a charge be filed within 180 days “after the alleged unlawful employment practice occurred.” 42 U.S.C. 2000e-5(e)(1) (2000). Iowa Code section 216.15(12) requires that a complaint be filed within 180 days “after the alleged discriminatory or unfair practice occurred.” Suppose an employee is told that a renewable contract won't be renewed; does the 180 days run from the day she's told that, or the day the contract is not renewed?
It's the earlier, according to Woomert v. Iowa Civil Rights Comm'n, available here. It discusses the impact of federal interpretations on state law, and adopts the federal approach, and so held her claim time-barred.
It's interesting when these modeling statutes are given the same interpretation as later decisions of the federal courts, as opposed to earlier ones. Not sure I'd agree that it automatically follows that a legislature in 1980 had in mind an interpretation adopted in 1990, in other words...
June 19, 2008
Slaughtering Hogs; Slaughtering Statutes?
There's an interesting decision, not yet posted on the judge's web page, styled In re Knudsen, 2008 WL 2413155 (N.D. Iowa 2008). It presents a question of first impression under BAPCPA, and specifically the meaning of the 2005 amendment to 11 U.S.C. § 1222(a)(2)(A). The opinion begins:
Can family farmers, who liquidated their slaughter hogs to convert their farming operation from a farrow-to-finish hog operation to a custom hog-raising operation, obtain the benefits of an amendment to 11 U.S.C. § 1222(a)(2) under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. No. 109-8, 119 Stat. 23, that would allow the taxes generated by the sale of their slaughter hogs to be treated as an unsecured claim against their bankruptcy estate subject to discharge? This and other questions are raised on cross-appeals by the family farmers and the United States, on behalf of the Internal Revenue Service, from an order of the bankruptcy court denying confirmation of the family farmers' Chapter 12 plan for reorganization. Few-or no-courts have passed on the questions presented here, so that the court finds itself writing on a nearly clean slate, guided by statutory language, legislative history, and bankruptcy policy.
June 18, 2008
A Tax Statute Construed by Supremes in Split
As a matter of policy, I don't have the faintest idea what this case is about: Florida Dept. of Rev. v. Piccadilly Cafeterias, Inc., 2008 WL 2404077 (June 16, 2008). But the statutory interpretation issues are cool. I'll write more about it later, below...
June 16, 2008
Tid Bits and Follow-ups
Florida Supreme Court Balancing Whistle Blower Rights and Religious Freedoms. Interesting oral argument just took place Thursday in a case involving the alleged firing of a secretary from a Catholic school for complaining that her supervisor assaulted her. An article on it is here.
The CAFA "not less than 7 days" Appellate Rule Split Continues. Section 1453(c)(1) provides that “a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order.” As written, it requires appellants to wait 7 days, then gives them forever to appeal. The courts split with some holding "less" is "more" while others saying "less" means "less." The Seventh Circuit noted the split but in Spivey v. Vertrue is here, held "less" means "less." Easterbrook wrote in part:
That Congress has written a deadline imprecisely, or even perversely, is not a sufficient reason to disregard the enacted language. So the Supreme Court held in Dodd v. United States, 545 U.S. 353 (2005), and United States v. Locke, 471 U.S. 84 (1985). See also, e.g., Lamie v. United States Trustee, 540 U.S. 526, 533–39 (2004). Turning “less” into “more” would be a feat more closely associated with the mutating commandments on the barn’s wall in Animal Farm than with sincere interpretation. (Ludwig Mies van der Rohe, the architect who designed the courthouse in which the Seventh Circuit sits, adopted “less is more” as his motto, but this credo of Bauhaus design did no violence to any enacted text.)
Gitmo - In Case You're Living in a Cave
June 09, 2008
Technology and Constitutions. Related to a post below, a New York court addressed whether state use of GPS data violated a motorist's constitutional right to privacy. According to this article, two to one, the majority held it didn't, with the majority reasoning that the information -- location of the car -- was no different than the information that could have been obtained by simply watching. The dissent pointed out the difference in quality of the information. Stay tuned.
Law Jobs in Decline. For 3 months in a row now, according to this article. Perhaps that's actually good news. Maybe we can redirect some bright talent to doing, rather than arguing? Not meaning to wax political, but I am so hopeful we get someone elected who puts in place an "Apollo Program" to get us away from petroleum. I'm not holding my breath; I am crossing my fingers.
Virginia Anti-Spam Statute Under Constitutional Attack. After affirming his conviction, the Virginia Supreme Court has allowed additional briefing on an over-breadth challenge. The article is here.
Legislative Reforms Slow Oklahoma Supreme Court Caseload. An interesting piece here about the impact of various legislative reforms, as well as the rise of ADR, on the court's caseload.
June 06, 2008
Impact of Statutory Interpretation on Innovation
This is an extremely interesting piece, and I found it on line: D. Gordon Smith & Masako Ueda, Law & Entrepreneurship: Do Courts Matter, published in an Ohio States Law School journal, and on-line in pdf here. It is quite interesting, even though the statutory interpretation part is about 2/3 the way in, I suggest reading from the start.
It raises an issue I hadn't focused too much on, but I've been asked about and thought about now and again: should statutes be interpreted in light of technological change? For example, if a statute talks about "intercepting" an electronic communication, should we read that in light of technology as it was, or as it is? A common law example would be conversion: courts still struggle with whether the "old" rule that there had to be tangible property taken, and the fact that most value today is intangible. In that area, you see courts taking a "textualist" approach, if you will, to common law cases and limiting the law to tangible property, while others take a much more "purposive" view, and expand the tort to even purely intangible property.
Interesting read. It would be interesting to compare those conversion cases with the cases they are talking about, as they're parallel in many ways.
June 02, 2008
Tid Bits: Supreme Court News
Judge Thomas's Story About Yale Called into Doubt. There's a fascinating piece here about how some question Thomas's story that he could not get a job upon graduating from Yale due to its affirmative action program. It does seem hard to believe, but I wasn't much aware of what was happening in 1974, as I was about 12.
Supremes Interpret Money Laundering Statute. There's an article here, and a unanimous case is here, and a 5-4 case is here. The 5-4 decision made strange bedfellows and adversaries, and is somewhat interesting.
Supremes interpret Equal Access to Justice Act. The case is here.