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Court access update october 2010

Court access update october 2010. Rochelle Bobroff, Directing Attorney Sergio Eduardo Munoz, Staff Attorney Federal Rights Project. National Senior Citizens Law Center www.nsclc.org. Overview of topics. Preemption Sovereign Immunity and Ex parte Young Qualified Immunity Attorneys’ Fees

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Court access update october 2010

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  1. Court access updateoctober 2010 Rochelle Bobroff, Directing Attorney Sergio Eduardo Munoz, Staff Attorney Federal Rights Project National Senior Citizens Law Center www.nsclc.org

  2. Overview of topics • Preemption • Sovereign Immunity and Ex parte Young • Qualified Immunity • Attorneys’ Fees • Preliminary Injunctions Post-Winter • Pleading Standards After Twombly/Iqbal • Gross and Its Ramifications for Other Laws • Health Care Reform Litigation • Clear Notice Requirement for Spending Clause Statutes • Third-Party Beneficiary Claims • Enforcement of Statutory Civil Rights Law • Enforcement of Consent Decrees • Arbitration • Constitutional Civil Rights and Civil Liberties

  3. PREEMPTION

  4. Preemption cause of action • Implied cause of action under the Supremacy Clause • No attorneys’ fees or damages • Conflict preemption (not express or field preemption) • Bobroff, Section 1983 and Preemption: Alternative Means of Court Access to Enforce Safety-Net Statutes, 10 Loy. U. J. Pub. Int. L. 27 (2008)

  5. Petitions for Certiorari by California in five Ninth Circuit medicaid cases • Independent Living Center v. Maxwell-Jolly, 572 F.3d 644 (9th Cir. 2009) • California Pharmacists v. Maxwell-Jolly, 596 F.3d 1098 (9th Cir. 2010) • Dominguez v. Schwarzenegger, 596 F.3d 1087 (9th Cir. 2010) • Independent Living Center v. Maxwell-Jolly, 374 Fed.Appx. 690 (9th Cir. 2010) • Santa Rosa Memorial Hospital v. Maxwell-Jolly, 2010 WL 2124276 (9th Cir. 2010) • Supreme Court has asked for views of Solicitor General • Amicus brief in support of California filed by 22 states • Merits focus on whether the budget cuts violated the Medicaid Act’s requirement that state funds allocated to Medi-Cal must be sufficient to ensure necessary and sufficient quality care and services

  6. Environmental preemption • Wilderness Society v. Kane County, 581 F.3d 1198 (10th Cir. 2009) • Rehearing en banc granted, has been briefed and argued • Original panel upheld preemption claim in environmental case • Dissent argued should not permit preemption claim

  7. Presumption against Preemption • Some conservative Justices disparage presumption, permit businesses to evade state consumer protection and tort law based on broadly defined obstacle preemption • Altria Group, Inc. v. Good, 129 S.Ct. 538 (2008), 5:4 opinion written by Stevens, reinvigorates presumption

  8. Presumption Against Preemption applied so no preemption on merits • Holk v. Snapple Beverage Corp., 575 F.3d 329 (3rd Cir. August 12, 2009), applies presumption and holds NJ consumer protection law not preempted by informal statements of FDA • Barrientos v. 1801-1825 Morton LLC, 583 F. 3d 1197 (9th Cir. 2009), applies presumption and holds no preemption of local law protecting tenants by HUD regulation • Mensing v. Wyeth, Inc., 588 F.3d 603 (8th Cir. 2009), applies presumption and holds no preemption of state tort law by federal Food, Drug, & Cosmetic Act. Petition for Certiorari filed. • National Meat Ass'n v. Brown, 599 F.3d 1093 (9th Cir. 2010), applies presumption and reads federal preemption provision narrowly. Holds Federal Meat Inspection Act did not expressly or impliedly preempt California ban on the slaughter of nonambulatory animals. Petition for Certiorari filed.

  9. Preemption viewed narrowly so no preemption on merits • Mason v. SmithKline Beecham Corp., 596 F.3d 387 (7th Cir. 2010) did not address presumption. • Applied Wyeth v. Levine, 129 S.Ct. 1187 (2009)(another 5:4 decision written by Stevens), which rejected preemption of state common law action for damages regarding failure to warn in drug labeling. Mason similarly rejected a drug company’s attempt to use preemption as a shield against state failure-to-warn claims.

  10. Presumption Against Preemption APPLIED but still FIND PREEMPTION • Chae v. SLM Corporation, 593 F.3d 936 (9th Cir. 2010), applies presumption and holds Federal Higher Education Act preempted consumer protection claims under California law. Although education policy is normally a field within state powers, Congress clearly intended to implement a uniform regulatory scheme for student loans and the ensuing conflict preempted state law. Petition for Certiorari filed. • United States v. Arizona, 703 F.Supp.2d 980 (D.Ariz. July 28, 2010), granted the United States a preliminary injunction barring the enforcement of several provisions of the State of Arizona’s controversial new immigration law, holding these provisions are likely preempted by federal law

  11. Presumption Against Preemption REJECTED • Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742 (10th Cir. 2010), rejects presumption in immigration case, “an area where there has been a history of significant federal presence.” Upholds preliminary injunction against Oklahoma statute penalizing businesses that hire undocumented workers, finding state law likely preempted by federal law. • Norfolk Southern Ry. Co. v. City Of Alexandria, 608 F.3d 150 (4th Cir. 2010), rejects presumption due to history of federal regulation of railroad operations. Holds local ordinance passed pursuant to state police powers, which regulated the offloading of ethanol from railcars, preempted by the Interstate Commerce Commission Termination Act.

  12. Preemption of state law claims by medicare statute • Uhm v. Humana, Inc., 2010 WL 3385546 (9th Cir. 2010). Upon rehearing, panel once again holds that Medicare preemption provision precludes state law claims • DOJ, under President Obama, filed brief supporting broad reading of preemption

  13. procedural preemption case • Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 130 S.Ct. 1431 (2010) • Court rules 5:4 (not usual line up) that New York State law, which prohibits class actions seeking penalties or statutory minimum damages, preempted by Federal Rule of Civil Procedure (“FRCP”) 23(b) in case heard in federal court under diversity jurisdiction • Scalia’s plurality decision ignores presumption against preemption • Stevens’ concurrence notes that Scalia ignores presumption, but reaches same conclusion • Both Scalia’s plurality and Stevens’ concurrence agreed that the state law was essentially procedural, and therefore preempted by the Federal Rules

  14. jurisdictional preemption case • Haywood v. Drown, 129 S.Ct. 2108 (2009) • Court held 5:4 (Stevens wrote opinion, with Kennedy as swing vote) that a state may not exclude a class of claims under § 1983 from its state courts when those courts entertain analogous claims based on state law • New York law divesting courts of jurisdiction over § 1983 claims against prison officials, and permitting only limited suits against the state itself, is “effectively an immunity statute cloaked in jurisdictional garb,” and violates the Supremacy Clause.

  15. SOVEREIGN IMMUNITY ANDEX PARTE YOUNG

  16. Application of ex parte young to suits by p&A organizations • Va. Office for Protection & Advocacy v. Reinhard, 568 F.3d 110 (4th Cir. 2009) • Sovereign immunity bars federal courts from hearing "intramural" disputes • Suit between Virginia Office of Protection and Advocacy—a quasi-independent state protection and advocacy (P&A) agency—and state health officials is such an intramural dispute. • Court rejected VOPA’s argument that its federal suit fell under the Ex parte Young exception to sovereign immunity, because it sought prospective relief against state officials to end an ongoing violation of federal law; the court said that this would be an inappropriate “extension” of Ex Parte Young • Certiorari Granted.

  17. Application of ex parte young to suits by p&A organizations • Indiana Protection and Advocacy Services v. Indiana Family and Social Services Admin., 603 F.3d 365 (7th Cir. 2010) (en banc) • Protection and Advocacy organizations were specifically authorized and insulated by Congress to operate as independent and federally funded checks upon states’ treatment of the mentally ill- suit is not intramural. Therefore, their ability to advocate against the state in the courts was entirely consistent with Ex Parte Young. • Implied rights of action: Court found an implied private right of action for P & As to enforce the Protection and Advocacy for Individuals with Mental Illness Act. The text and structure clearly “expressed [Congress’] intent to create a legally enforceable right of access to patient records,” and not just “vague benefits or privileges.” • Petition for Certiorari filed.

  18. qualified immunity

  19. The harlow test • Immunity from civil damages for discretionary action of officials, if: • “Conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” • Harlow v. Fitzgerald, 457 U.S. 800 (1982).

  20. Fourth Amendment violation • al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) • No absolute or qualified immunity for former Attorney General Ashcroft for alleged abuses that were clear constitutional violations • Cannot hold someone as a material witness unless it is necessary to secure person’s testimony in a criminal proceeding and a subpoena is insufficient • Fourth Amendment and the Federal Material Witness Statute claims were plausible under Iqbal. • Rehearing en banc denied. • Petition for Certiorari filed.

  21. fourth amendment violation • Bryan v. McPherson, 608 F.3d 614 (9th Cir. 2010) • A police officer was denied qualified immunity when he used a taser on the plaintiff during a traffic stop. • The court ruled that the use was clearly an “excessive” violation of Fourth Amendment rights and an obviously impermissible way to detain a possibly mentally ill person

  22. Eighth amendment violation • Nelson v. Correctional Medical Services, 583 F.3d 522 (8th Cir. 2009) (en banc) • Shackling a woman prisoner while she was giving birth was a clear violation of the Eighth Amendment • The Eighth Circuit denied qualified immunity for the prison guard, but upheld qualified immunity for the Director as he was not shown to be aware of the violation or manifest “deliberate indifference”

  23. No first amendment violation • Weise v. Casper, 593 F.3d 1163 (10th Cir. 2010) • 10th Circuit narrowly granted qualified immunity to White House staff who ejected silent attendees from a Presidential event, due to a bumper sticker on Plaintiffs’ car that read “No More Blood for Oil” • Government officials had not violated any clearly established constitutional right, because no “specific authority instructs this court (let alone a reasonable public official) how to treat the ejection of a silent attendee from an official speech based on the attendee’s protected expression outside the speech area” • Petition for Certiorari filed.

  24. ATTORNEYS’ FEES

  25. Enhanced fees for performance disfavored • Perdue v. Kenny A., 130 S.Ct. 1662 (2010) (J. Alito, 5-4) • Enhanced attorney’s fees for “quality performance” are disfavored • An enhancement must be based on “specific evidence” why the normal lodestar calculations are insufficient. Examples: proof that the lodestar did not reflect true market value for the attorneys’ actual service during the case, the case required “an extraordinary outlay of expenses and the litigation [was] exceptionally protracted,” or there was an “exceptional delay in the payment of fees.” • Justice Alito’s majority opinion warned of “subjective” trial judges and “windfalls” to civil rights attorneys “paid in effect by state and local taxpayers.”

  26. EAJA fees go to litigants first • Astrue v. Ratliff, 130 S.Ct. 2521 (2010) • 9:0 opinion • Attorneys’ fees awards under Equal Access to Justice Act are directly payable to the prevailing litigants, not the attorneys. As such, these fee awards are susceptible to the U.S. Treasury Department’s authority to offset debts owed to the Government by litigants, before they are transferred to the attorneys.

  27. Fee shifting allowed for nominal award • Jama v. Esmor Correctional Services, Inc., 577 F.3d 169 (3d Cir. 2009) • Fee-shifting can be proper in the event of nominal awards • The court read Farrar v. Hobby, 506 U.S. 103 (1992), to allow for fee-shifting if the legal issue had “significance” or “accomplished a public goal.” • The First, Fourth, Eighth, Ninth, and Tenth Circuits have also utilized this “degree of success” reasoning.

  28. Review of merits of awarded Fees inappropriate for mooted claims • Center for. Biological Diversity v. Marina Point Development Co., 566 F.3d 794 (9th Cir. 2009) • Reinstated an attorneys’ fees award in an environmental case, holding that the court of appeals cannot review the merits of a mooted claim in deciding whether fees were proper • The court suggested that this may lead to questionable results, but that there is no principled basis for delving into the merits of moot claims.

  29. No fees for Private settlement • Bill M. ex rel. William M. v. Nebraska Dept. of Health and Human Services Finance and Support,570 F.3d 1001 (8th Cir. 2009) • No attorneys’ fees: Plaintiff settled with the State and the district court did not make a determination on the quality of the agreement, incorporate its terms into the order of dismissal, or retain jurisdiction. • The order had been specifically constructed to avoid a judicial imprimatur, thus denying Plaintiffs the required status of prevailing party necessary to trigger federal fee-shifting.

  30. “Order of settlement” allows fees • Perez v. Westchester County Dept. of Corrections, 587 F.3d 143 (2d Cir. 2009) • Required the Westchester County of Corrections to pay Plaintiffs’ attorneys’ fees, rejecting their contention that an “Order of Settlement, Release and Stipulation of Discontinuance” did not create “prevailing parties” nor constitute sufficient judicial involvement to merit fee-shifting under 42 U.S.C. § 1988(b). • Rejected Defendant’s argument that a lack of a consent decree was significant.

  31. Fees allowed for monitoring compliance with decree • Prison Legal News v. Schwarzenegger, 608 F.3d 446 (9th Cir. 2010) • Attorneys can recover fees for monitoring defendant’s compliance with a settlement agreement. • In Keith v. Volpe, 833 F.2d 850 (9th Cir. 1987), the Ninth Circuit held that a party can recover attorneys’ fees for monitoring compliance with a consent decree, even if that monitoring does not result in judicially sanctioned relief. The appellate court noted that this conclusion was at odds with that of the Seventh Circuit, which interpreted the rejection of the catalyst theory in Buckhannon v. West Virginia, 532 U.S. 598 (2001), as preclusive of allowing fees for monitoring that only brings about compliance and not a new judgment or order. • The Ninth Circuit expressly split with the Seventh Circuit’s view of Buckhannon, and reaffirmed Keith as good law.

  32. PRELIMINARY INJUNCTIONS POST-WINTER

  33. Winter v. natural resources defense council, inc., 129 s.ct. 365 (2008). • Ginsburg’s dissent sought to minimize the majority’s discussion of the irreparable harm standard, which seemed to require a likelihood of irreparable harm, alongside a likelihood of success on the merits and a balance of equities and the public interest. She stated that: “Flexibility is a hallmark of equity jurisdiction. Consistent with equity's character, courts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief. Instead, courts have evaluated claims for equitable relief on a ‘sliding scale,’ sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high. This Court has never rejected that formulation, and I do not believe it does so today.”

  34. new Four-Part winter test? • Real Truth v. Federal Election Commission, 575 F.3d 342 (4th Cir. 2009), vacated on other grounds. • Explicitly rejected the “sliding scale” approach and held plaintiff must now make a “clear showing” of each of the following: “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” • Confusion in the district courts, see e.g. Gray Panthers v. Schwarzenegger, 2009 WL 2880555 (N.D.Cal. 2009); Incantalupo v. Lawrence Union Free School Dist. No. 15, 2009 WL 2766705 (E.D.N.Y. 2009).

  35. “sliding scale” survives winter • Alliance for Wild Rockies v. Cottrell, 613 F.3d 960 (9th Cir. 2010) • Holds that Preliminary Injunction on the Basis of “Serious Questions Going to Merits” Still Viable, if other Winter factors still met • The Ninth Circuit clarified its standard for a preliminary injunction and held that the “sliding scale” approach survives Winter.

  36. PLEADING STANDARDS AFTER TWOMBLY/IQBAL

  37. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) • J. Kennedy, 5-4 • Pleadings in civil complaints must meet a standard of “plausibility” in order to survive a motion to dismiss for failure to state a claim.

  38. Retroactivity applies to iqbal • Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) • The Ninth Circuit gave leave to plaintiff to amend their complaint alleging viewpoint discrimination on the part of the former President’s Secret Service retinue. • The original complaint, filed before the Supreme Court decided Twombly or Iqbal, was considered by the appellate court to raise only the possibility of a First Amendment violation but did not establish the probability of one, as required by Iqbal

  39. Iqbal is not an examination of the merits • Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) • Third Circuit criticized the lower court for mixing the Twombly/Iqbal standards with the merits. Although Twombly/Iqbal requires pleadings to be “plausible,” the district court went beyond this heightened threshold and raised its examination of allegations to an evaluation of their veracity. • Employment discrimination action brought under the ADA and the Rehabilitation Act (RA)

  40. Iqbal does not require evaluation of believability or liklihood • Swanson v. Citibank, N.A., 2010 WL 2977297 (7th Cir. 2010) • Reversing in part a dismissal for failure to state a claim, the Seventh Circuit held that Twombly/Iqbal “does not imply that the district court should decide whose version to believe, or which version is more likely than not.” • Judge Posner dissented in part and argued the entire lawsuit should be dismissed as “implausible,” pursuant to Twombly/Iqbal. • But see Smith v. Duffey, 576 F.3d 336 (7th Cir. 2009) (J. Posner remarked that both Twombly and Iqbal may be limited to relatively complex cases where the consequences of pre-trial discovery are significant).

  41. GROSS and its RAMIFICATIONS for other laws

  42. Gross v. FBL Financial Servs. Inc, 129 S.Ct. 2343 (2009) (J. Thomas, 5-4) • Mixed-motive claims are never permissible under the Age Discrimination in Employment Act (ADEA); burden is on the plaintiff to show that age was the sole reason for an adverse employment action • Possible new rule of statutory construction that could apply beyond ADEA: When Congress amends one law, does it intend the opposite effect to apply to similar but unamended laws?

  43. Circuit split: Does Gross apply beyond ADEA? • 7th Circuit: YES. Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009), rehearing en banc denied, Petition for Certiorari denied; Waters v. City of Chicago, 580 F.3d 575 (7th Cir. 2009) • Unless a statute “provides otherwise,” the Supreme Court’s recent prohibition on mixed-motive analyses applies to all questions of causation under federal law. • See e.g. Serwatka v.Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010) • All claims under the ADA must allege and prove that disability discrimination was the sole, or determinative, factor for the adverse employment decision.

  44. Circuit split: Does Gross apply beyond ADEA? • 3d Circuit: MAYBE. Brown v. J. Kaz, Inc., 581 F.3d 175 (3d Cir. 2009) • The concurrence argued that if it was not for circuit precedent, he would consider Gross to require a reevaluation of mixed motive analyses of race discrimination under § 1981.

  45. Circuit split: Does Gross apply beyond ADEA? • 5th Circuit: NO. Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010) • The Fifth Circuit declined to interpret Gross as applicable to “all suits under federal law” and held that mixed-motive instructions for juries in Title VII retaliation cases survive

  46. HEALTH CARE REFORM LITIGATION (CHALLENGES TO THE PATIENT PROTECTION AND AFFORDABLE CARE ACT)

  47. Cuccinelli v. Sebelius, 702 F.Supp. 2d 598 (E.D.Va. 2010). • District Court denied a motion to dismiss the Commonwealth of Virginia’s lawsuit that alleges the “individual mandate” of the Patient Protection and Affordable Care Act (“PPACA”) is unconstitutional under the Commerce, Necessary and Proper, and Tax Clauses.

  48. Clear Notice Requirement for SPENDING CLAUSE CHALLENGES

  49. Forrest Grove School District v. T.A., 129 S.Ct. 2484 (2009) • School district alleged Individuals with Disabilities Education Act (IDEA) did not provide states with adequate notice that they had to pay for private school tuition • Court held 6:3 (Stevens) that IDEA requirement to provide free appropriate public education provided ample notice, combined with prior S.Ct. opinion • Distinguished Arlington Central School District Bd. of Ed. v. Murphy, 548 U.S. 291 (2008).

  50. School Dist. of City of Pontiac v. Secretary of U.S. Dept. of Educ., 584 F.3d 253 (6th Cir. 2009) (en banc) • School district sought ruling that it did not have to spend money to comply with No Child Left Behind Act (NCLB) which prohibits unfunded mandates • Court addressed whether states had notice that if they took federal funds, they would have to pay for costs of Act not covered by federal funds • Court was deadlocked, half of en banc court held states did not have clear notice as required for Spending Clause statute; other half disagreed • Original district court order dismissing lawsuit stands • Certioraridenied.

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