30 March 2015

Garrett Epps is Right (and Wrong) on Indiana's RFRA

Indiana Gov. Mike Pence
In his latest article at the Atlantic, Professor Garrett Epps highlights two key differences between Indiana's recently-passed state RFRA law and the federal RFRA law. The first distinction is that Indiana's law provides explicit protection for for-profit businesses. The second distinction is that Indiana's RFRA provides a defense for claims against private lawsuits where the government isn't a party. Professor Epps is right that these two differences do not exist within the text of the federal RFRA law (or most state RFRA laws). But a cursory examination of these two issues shows that Professor Epps is wrong when he asserts that these differences are significant.

First, whatever one may think of RFRA protection for for-profit businesses prior to Hobby Lobby, that case is now the "law of the land" and its protection is effectively written into law. Epps suggest that, pre-Hobby Lobby, many believe this idea was "outlandish," but that's beside the point post-Hobby Lobby (I think it was perfectly reasonable, but we can agree to disagree here). So while the federal RFRA law does not contain the same language as Indiana's RFRA law, the end result is precisely the same. Any federal court ruling on a RFRA claim today would rule with the understanding that for-profit businesses are protected by RFRA. It is disingenuous to suggest that this provision is a significant difference from the federal law since Hobby Lobby. As to the states, Epps can point to only two (Louisiana and Pennsylvania) that specifically exclude for-profit businesses. It is not unreasonable to believe that other states may fall in line with the majority of the federal circuits. Absent court decisions (beyond the singular Elane Photography) that specifically exclude for-profit businesses, it is a difficult leap to suggest this distinction is significantly different. Based on the lack of state RFRA cases regarding private parties, this distinction (as it applies to state RFRAs) is most generously described as undetermined rather than significantly different.

Second, Epps focuses on the language in Indiana's RFRA which provides RFRA protection "regardless of whether the state or any other governmental entity is a party to the proceeding." He then claims that "[n]either the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language." Again, this is a true statement, but it excludes important context. As Josh Blackman has pointed out, of the six federal Circuits that have ruled on the issue, four of them have held that the federal RFRA law may be used as a defense in a private lawsuit. Within these four Circuits (the Second, Eighth, Ninth, and D.C. Circuit), RFRA is a defense in a private lawsuit, just as it would be under Indiana's state RFRA. To be sure, the Supreme Court has not ruled on whether the federal RFRA extends to private party lawsuits. Blackman also points out that the Justice Department under Attorney General Eric Holder wrote that it believed Wheaton College (a private party) could use RFRA as a defense to a lawsuit by one of it's employees (another private party). Given that the majority of circuits that have ruled on the issue have ruled this way, consistent with the Justice Department's apparent position on the issue, it is puzzling for Professor Epps to exclude this information in his article.

Professor Epps points to two reasons why Indiana's RFRA law is significantly different from the federal RFRA, but these distinctions start to fade away once you take a closer look.

25 March 2015

Law in Plain English: Alabama Redistricting Cases

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogAlabama Legislative Black Caucus v. Alabama (consolidated with Alabama Democratic Conference v. Alabama)

Argument: Nov 12 2014 (Aud.)

Background: After the 2000 Census, the Democrat-controlled Legislature in Alabama adopted districts that favored its partisan interests. When Republicans challenged the district lines adopted after the 2000 Census, they targeted the systematic underpopulation of the majority-black districts, but State officials and Democratic leaders successfully defended the population deviations as “the product of the Democratic Legislators’ partisan political objective to design Senate and House plans that would preserve their respective Democratic majorities.” The partisan gerrymander that protected Democratic control of the Legislature collapsed in 2010 when Republicans gained supermajority control of both houses of the Legislature, which then adopted new redistricting acts based on the 2010 Census. The Republican-controlled Legislature adopted district lines with smaller deviations in population equality, which upended the partisan gerrymander adopted by the Democrat-controlled Legislature after the 2000 Census. The Alabama Legislative Black Caucus alleged that the purpose and effect of the new districts is to dilute and isolate the strength of black voters, in violation of section 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments. The Alabama Democratic Conference alleged that the purpose and effect of the new districts is to dilute the opportunities for minority voters to participate in the political process and that the new districts are products of racial gerrymandering. A three-judge panel for the Middle District of Alabama dismissed the claims of the plaintiffs and ruled in favor of the state, finding that he plaintiffs failed to provide sufficient evidence of vote dilution, invidious discrimination, or racial gerrymandering. 

Issue: The questions before the Court are (1) whether Alabama's legislative redistricting plans unconstitutionally classify black voters by race by intentionally packing them in districts designed to maintain supermajority percentages produced when 2010 census data are applied to the 2001 majority-black districts; and (2) whether Alabama’s effort to redraw the lines of each majority-black district to have the same black population as it would have using 2010 census data as applied to the former district lines, when combined with the state's new goal of significantly reducing population deviation among districts, amounted to an unconstitutional racial quota and racial gerrymandering that is subject to strict scrutiny and that was not justified by the putative interest of complying with the non-retrogression aspect of Section 5 of the Voting Rights Act; and whether these plaintiffs have standing to bring such a constitutional claim.

Holding: In a 5-4 decision, the Supreme Court ruled that the District Court’s analysis of the racial gerrymandering claim as referring to the State “as a whole,” rather than district-by-district, was legally erroneous; that the District Court also erred in deciding that the Conference lacked standing; and that the District Court also did not properly calculate “predominance” in its alternative holding that “[r]ace was not the predominant motivating factor” in the creation of any of the challenged districts. Finally, the Court concluded that the District Court’s final alternative holding—that “the [challenged] Districts would satisfy strict scrutiny”—rests upon a misperception of the law. Section 5 does not require a covered jurisdiction to maintain a particular numerical minority percentage. It requires the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice. The Court explained that the District Court and the legislature both asked the wrong question with respect to narrow tailoring. They asked how to maintain the present minority percentages in majority-minority districts, instead of asking the extent to which they must preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice. As a result, the decision of the District Court was vacated and the case was remanded.

Law in Plain English: Young v. United Parcel Service

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogYoung v. United Parcel Service

Argument: Dec 3 2014 (Aud.)

Background: Peggy Sue Young was a part-time "air driver" for UPS, responsible for picking up and delivering packages that arrived by air carrier the previous night. During a leave of absence, Young became pregnant and left a doctor's note with her supervisor that she should not lift more than twenty pounds during the first twenty weeks of her pregnancy and not more than ten pounds thereafter. UPS's occupational health manager, Carolyn Martin, informed Young that UPS policy prevented Young from working while she was under the 20 pound restriction. Martin also determined that Young was ineligible for light duty assignment because light duty was only permitted for those with on-the-job injuries (as opposed to off-the-job injuries), those accommodated under the Americans with Disabilities Act (ADA) (federal courts have largely held that pregnancy is not a "disability" under the ADA), and those who had lost their Department of Transportation (DOT) certification, but not for pregnancy. Young filed a charge with the Equal Opportunity Employment Commission (EEOC), which issued Young a right to sue letter. Young then filed suit, alleging, among other things, that UPS's policy violated the Pregnancy Discrimination Act (PDA). The district court concluded that Young had not shown direct evidence of discrimination. Likewise, she failed to establish a prima facie case of sex discrimination. The Fourth Circuit affirmed. The panel reasoned that the text of the PDA was placed in the definitions section of Title VII; and as a result, it does not create a "distinct and independent cause of action" that would otherwise cause pregnancy to be treated more favorably than any other basis, including non-pregnancy-related sex discrimination covered by Title VII. A policy that treats pregnant and non-pregnant workers alike complied with the PDA. Even though UPS's policy might have been "insufficiently charitable," a lack of charity itself did not rise to discriminatory animus directed at pregnant employees.

Issue: The question before the Court are whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are "similar in their ability or inability to work."

Holding: In a 6-3 decision, the Supreme Court ruled that an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying accommodation.

24 March 2015

Law in Plain English: Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogOmnicare, Inc. v. Laborers District Council Construction Industry Pension Fund

Argument: Nov 3 2014 (Aud.)

Background: Omnicare is the nation's largest provider of pharmaceutical care services for the elderly and other residents of long-term care facilities in the United States and Canada. A group of investors filed a lawsuit against Omnicare alleging, among other things, that Omnicare made material misstatements and/or omissions in a Registration Statement filed with the Securities and Exchanges Commission in connection with a public stock offering, in violation of § 11 of the Securities Act of 1933. The district court found that the plaintiffs had failed to meet the heightened pleading standard under Federal Rule of Civil Procedure 9(b). Furthermore, district court found that the plaintiffs had not sufficiently pleaded the defendants' knowledge of falsity. As a result, the claim was dismissed. The Sixth Circuit reversed, holding that § 11 provides for strict liability, and as a result, the defendants' knowledge is not relevant to the claim. Therefore, the plaintiffs should not have been required to plead knowledge in connection with the claim. It is sufficient enough that the plaintiffs plead that the defendants' statement is objectively false.

Issue: The question before the Court was whether, for purposes of a claim under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, a plaintiff may plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or must the plaintiff also allege that the statement was subjectively false – requiring allegations that the speaker’s actual opinion was different from the one expressed – as the Second, Third, and Ninth Circuits have held.

Holding: In a 9-0 decision, the Supreme Court ruled that a statement of opinion does not constitute an “untrue statement of...fact” simply because the stated opinion ultimately proves incorrect. Because a statement of opinion admits the possibility of error, such a statement remains true—and thus is not an “untrue statement of...fact”—even if the opinion turns out to have been wrong. Nevertheless, opinion statements are not wholly immune from liability. A statement of opinion thus qualifies as an “untrue statement of...fact” if that fact is untrue—i.e., if the opinion expressed was not sincerely held. If a registration statement omits material facts about the issuer’s inquiry into, or knowledge concerning, a statement of opinion, and if those facts conflict with what a reasonable investor, reading the statement fairly and in context, would take from the statement itself, then §11’s omissions clause creates liability. For purposes of §11’s omissions clause, whether a statement is “misleading” is an objective inquiry that depends on a reasonable investor’s perspective.

Law in Plain English: B&B Hardware, Inc. v. Hargis Industries, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogB&B Hardware, Inc. v. Hargis Industries, Inc.

Argument: Dec 2 2014 (Aud.)

Background: In 2007, the Trademark Trial and Appeal Board (TTAB) denied Hargis' application for registration of its "Sealtite" mark for a line of self-drilling and self-taping screws that are commonly used in the construction of metal buildings. The TTAB determined that there was a likelihood of confusion with B&B Hardware's "Sealtight" mark for fasteners that is used predominantly in the aerospace industry. B&B later brought trademark infringement and unfair competition claims against Hargis, and argued that the TTAB's decision should be given preclusive effect on the question of likelihood of confusion. Alternatively, B&B attempted to admit the TTAB decision into evidence. Hargis filed counterclaims for false advertising and false designation of origin. The jury rejected B&B's trademark infringement and unfair competition claims. Hargis prevailed on its counterclaims. The district court also awarded Hargis attorney fees, holding that B&B's conduct of willfully and deliberately manufacturing evidence to support its trademark infringement claim made the case an exceptional one appropriate under the Lanham Act. The Eighth Circuit affirmed, finding that the TTAB, in denying registration, did not decide the same likelihood-of-confusion issues presented to the district court. Additionally, the panel ruled that admitting the TTAB' s decision into evidence would be confusing and misleading to the jury because the TTAB applied its factors and analyzed the evidence in a manner significantly different than the jury would be required to do in an infringement action.

Issue: The questions before the Court are (1) whether the Trademark Trial and Appeal Board’s finding of a likelihood of confusion precludes respondent from relitigating that issue in infringement litigation, in which likelihood of confusion is an element; and (2) whether, if issue preclusion does not apply, the district court was obliged to defer to the Board’s finding of a likelihood of confusion absent strong evidence to rebut it.

Holding: In a 7-2 decision, the Supreme Court ruled that so long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the TTAB are materially thesame as those before a district court, issue preclusion should apply.

21 March 2015

Law in Plain English: Rodriguez v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogRodriguez v. United States

Argument: Jan 21 2015 (Aud.)

Background: A Nebraska K-9 police officer stopped Dennys Rodriguez's vehicle for veering onto the shoulder of the highway. The officer gathered Rodriguez’s license, registration, and proof of insurance, and returned to his vehicle to complete a records check. He returned to the vehicle and issued a written warning. The officer then asked for permission to walk his dog around Rodriguez’s vehicle. When Rodriguez refused consent, the officer instructed him to exit the vehicle. Rodriguez then exited the vehicle and stood in front of the patrol car while they waited for a second officer to arrive. A few minutes later, a deputy sheriff arrived, and a minute later, Struble walked the dog around the outside of Rodriguez’s car. The dog alerted to the presence of drugs halfway through the second pass, approximately twenty or thirty seconds later. All told, seven or eight minutes had passed from the time the officer had issued the written warning until the dog indicated the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine. Rodriguez was charged with possessing with intent to distribute methamphetamine. The district court denied Rodriguez’s motion to suppress the evidence, holding that the delay caused by the dog sniff did not violate Rodriguez’s Fourth Amendment right to be free from unreasonable seizures. The Eighth Circuit affirmed, finding that the seven- or eight-minute delay was reasonable because the officer waited for a second officer to arrive to ensure his safety, and that the the delay was a de minimis intrusion on Rodriguez's personal liberty.

Issue: The question before the Court is whether an officer may extend an already completed traffic stop for a canine sniff without reasonable suspicion or other lawful justification.

Holding: TBD

17 March 2015

Law in Plain English: Armstrong v. Exceptional Child Center, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogArmstrong v. Exceptional Child Center, Inc.

Argument: Jan 20 2015 (Aud.)

Background: Section 30(A) of the Medicaid Act requires that state Medicaid plans contain procedures to ensure that reimbursement rates for healthcare providers “are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers” to meet the need for care and services in the geographic area. The Ninth Circuit has interpreted Section 30(A) to require that reimbursement rates bear a reasonable relationship to provider costs. Where rates fail to “substantially reimburse providers their costs,” there must be some justification other than “purely budgetary reasons.”  Richard Armstrong, the Director of Idaho's Department of Health and Welfare, conducted yearly cost studies between 2006 and 2009, developed a new rate setting methodology, and recommended substantial increases in reimbursement rates for supported living services based on the cost study results; but did not implement the proposed rate changes because the Idaho legislature did not appropriate the necessary funds. The district court ruled in favor of the Medicaid providers, and the Ninth Circuit affirmed.

Issue: The question before the Court is whether the Supremacy Clause gives Medicaid providers a private right of action to enforce 42 U.S.C. § 1396a(a)(30)(A) against a state where Congress chose not to create enforceable rights under that statute.

Holding: TBD

Law in Plain English: Wellness International Network, Limited v. Sharif

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogWellness International Network, Limited v. Sharif

Argument: Jan 14 2015 (Aud.)

Background: Richard Shariff was slapped with a judgment in excess of $650,000 as a sanction for his failure to engage in discovery. As a result, Sharif filed for Chapter 7 bankruptcy. Wellness International Network (WIN), one of his bankruptcy creditors, sought to prevent discharge of Sharif’s debts under 11 U.S.C. § 727, and sought a declaratory judgment that a trust of which Sharif was trustee was in fact Sharif’s alter ego. Sharif continued his evasive and dilatory tactics, failing to respond to WIN’s and the bankruptcy trustee’s discovery requests. The bankruptcy court ordered Sharif to comply with the discovery requests and warned him that failure to do so would result in a default judgment. Sharif tendered some discovery but his responses fell far short of full compliance. After a hearing, the bankruptcy judge issued an opinion and order entering default judgment in WIN’s favor and subsequently awarded attorney’s fees to WIN. On appeal, Shariff filed a supplementary motion based on the claim that a bankruptcy judge did not have the authority to enter final judgment under Stern v. Marshall, but had failed to make this argument in his earlier motions. The district judge denied both motions as untimely, holding that a Stern objection to a bankruptcy judge’s authority to enter final judgment is waivable and that Sharif’s failure to raise it earlier constituted waiver. The Seventh Circuit reversed on the Stern objection, finding that a constitutional objection based on Stern is not waivable because it implicates separation‐of‐powers principles. Additionally, the court held that that the bankruptcy judge lacked constitutional authority to enter a final judgment on the alter‐ego claim. The court affirmed the remainder of the judgment, holding that the bankruptcy judge had constitutional authority to enter final judgment on the first four counts of the adversary complaint, each of which were objections to the discharge of Sharif’s debts. Additionally, the court held that that the entry of default judgment and awarding of fees were proper sanctions under the circumstances.

Issue: The questions before the Court are (1) whether the presence of a subsidiary state property law issue in a 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor’s possession is property of the bankruptcy estate means that such action does not “stem[] from the bankruptcy itself” and therefore, that a bankruptcy court does not have the constitutional authority to enter a final order deciding that action; and (2) whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III.

Holding: TBD

Law in Plain English: Mellouili v. Holder

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogMellouli v. Holder

Argument: Jan 14 2015 (Aud.)

Background: Moones Mellouli, a citizen of Tunisia and a lawful permanent resident of the United States, pleaded guilty in July 2010 to violating a Kansas misdemeanor drug paraphernalia statute. Mellouli had been stopped for DUI and police found four Aderrall pills in his sock; the sock was the "drug paraphernalia." The Board of Immigration Appeals (BIA) found that he was removable because his conviction was a conviction “relating to a controlled substance” within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i). Mellouli argued that he was not removable because the state court record of conviction did not identify the controlled substance underlying his state paraphernalia conviction, and therefore the government failed to prove that the conviction related to a federal controlled substance, as § 1227(a)(2)(B)(i) requires. The Eighth Circuit denied his petition, finding that there was a nearly complete overlap between the definition of controlled substance in 21 U.S.C. § 802 and in the statutes of States such as Kansas that adopted the Uniform Controlled Substances Act. It was therefore reasonable for the BIA to conclude that any drug paraphernalia conviction in these States was, categorically, a violation of a law “relating to a controlled substance” within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i).

Issue: The question before the Court is whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

Holding: TBD

16 March 2015

Law in Plain English: Same Sex Marriage Cases

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblogObergefell v. Hodges (consolidated with Tanco v. Haslam, DeBoer v. Snyder, Bourke v. Beshear)

Argument: Apr 28 2014 (Aud.)


Background: James Obergefell and John Arthur are from Ohio, and were married in Maryland. When Arthur died, Ohio would not list Obergefell as his spouse on their death certificates. Obergefell sought an injunction to require the State to list him as a spouse on the certificate. The district court concluded that the Fourteenth Amendment protects a fundamental right to keep existing marital relationships intact, and that the State failed to justify its law under heightened scrutiny. The court likewise concluded that classifications based on sexual orientation deserve heightened scrutiny under equal protection, and that Ohio failed to justify its refusal to recognize the couples’ existing marriages. Even under rational basis review, the court added, the State came up short. The Sixth Circuit reversed, finding that the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment does not require States to expand the definition of marriage to include same-sex couples. Further, the court found that the Constitution does prohibit a State from denying recognition to same-sex marriages conducted in other States.

Issue: The questions before the Court: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Holding: TBD

14 March 2015

2015 Eagles projected 53-man roster (March version)


The Eagles roster will undoubtedly undergo a number of changes between now and September due to free agency, trades, the draft, and injuries. A half dozen or more names could change. But if the team had to pare its current roster to 53 right now, based on players that the team currently controls, what would that roster look like? Here's my first look.

QB (3): Bradford, Sanchez, Barkley
RB (4): Murray, Mathews, Sproles, Polk
WR (5): Matthews, Huff, Cooper, Smith, Maehl, Murphy
TE (3): Celek, Ertz, Burton
C (2): Kelce, Molk
G (4): Mathis, Barbre, Tobin, Kelly
T (4): Peters, Johnson, Gardner

DL (7): Thorton, Logan, Cox, Curry, Allen, Hart, Bair
LB (9): Alonso, Barwin, Kendricks, Ryans, Graham, Smith, Braman, Acho, Jones
CB (5): Maxwell, Thurmond, Boykin, Carroll, Watkins
S: (4) Jenkins, Wolff, Maragos, Prosinski

P: Jones
PK: Parkey
LS: Dorenbos

The three areas that I expect the Eagles to target in the early rounds of the draft are WR, CB, and S.