Elonis Facebook Threats

This page is a supplement to my case page on Elonis v. United States. It contains an except from the Third Circuit's opinion that includes some of the threats Elonis posted on Facebook. For a summary of the case, click here.

Following the issuance of the state court Protection From Abuse order, Elonis posted several statements on Facebook expressing intent to harm his wife. On November 7 he wrote:

Did you know that it's illegal for me to say I want to kill my wife?
It's illegal.
It's indirect criminal contempt.
It's one of the only sentences that I'm not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife.
I'm not actually saying it.
I'm just letting you know that it's illegal for me to say that.
It's kind of like a public service.
I'm letting you know so that you don't accidently go out and say something like that
Um, what's interesting is that it's very illegal to say I really, really think someone out there should kill my wife.
That's illegal.
Very, very illegal.
But not illegal to say with a mortar launcher.
Because that's its own sentence.
It's an incomplete sentence but it may have nothing to do with the sentence before that. So that's perfectly fine. Perfectly legal.
I also found out that it's incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room.
Insanely illegal.
Ridiculously, wrecklessly, insanely illegal.
Yet even more illegal to show an illustrated diagram.
Exhibit
Insanely illegal.
Ridiculously, horribly felonious.
Cause they will come to my house in the middle of the night and they will lock me up.
Extremely against the law.
Uh, one thing that is technically legal to say is that we have a group that meets Fridays at my parent's house and the password is sic simper tyrannis.

Tara Elonis testified at trial that she took these statements seriously, saying, "I felt like I was being stalked. I felt extremely afraid for mine and my children's and my families' lives." Trial Tr. 97, Oct. 19, 2011. Ms. Elonis further testified that Elonis rarely listened to rap music, and that she had never seen Elonis write rap lyrics during their seven years of marriage. She explained that the lyric form of the statements did not make her take the threats any less seriously.

On November 15 Elonis posted on his Facebook page:

Fold up your PFA and put it in your pocket Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place Me thinks the judge needs an education on true threat jurisprudence
And prison time will add zeroes to my settlement
Which you won't see a lick
Because you suck dog dick in front of children
* * *
And if worse comes to worse
I've got enough explosives to take care of the state police and the sheriff's department
[link: Freedom of Speech, www.wikipedia.org]

This statement was the basis both of Count 2, threats to Elonis's wife, and Count 3, threats to local law enforcement. A post the following day on November 16 involving an elementary school was the basis of Count 4:

That's it, I've had about enough
I'm checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a kindergarten class
The only question is . . . which one?

By this point FBI Agent Denise Stevens was monitoring Elonis's public Facebook postings, because Dorney Park contacted the FBI claiming Elonis had posted threats against Dorney Park and its employees on his Facebook page. After reading these and other Facebook posts by Elonis, Agent Stevens and another FBI agent went to Elonis's house to interview him. When the agents knocked on his door, Elonis's father answered and told the agents Elonis was sleeping. The agents waited several minutes until Elonis came to the door wearing a t-shirt, jeans, and no shoes. Elonis asked the agents if they were law enforcement and asked if he was free to go. After the agents identified themselves and told him he was free to go, Elonis went inside and closed the door. Later that day, Elonis posted the following on Facebook:

You know your shit's ridiculous when you have the FBI knockin' at yo' door
Little Agent Lady stood so close
Took all the strength I had not to turn the bitch ghost
Pull my knife, flick my wrist, and slit her throat Leave her bleedin' from her jugular in the arms of her partner
[laughter]
So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus' waitin' for y'all to handcuff me and pat me down
Touch the detonator in my pocket and we're all goin'
[BOOM!]

A few thoughts on Hobby Lobby and for-profit corporations

One of the most interesting distinctions, and perhaps the most crucial distinction, in the Obamacare contraceptive mandate cases is not whether corporations can "practice" religion, but the differences between a non-profit corporation and a for-profit corporation.* Many opponents of the decision have argued that a corporation cannot practice religion. But this ignores a long-standing understanding of the Religious Freedom Restoration Act. Under RFRA, no one (not even the dissenters on the Supreme Court) questions that a non-profit corporation like a church can practice religion. Non-profit corporations are unambiguously covered by RFRA and the Free Exercise Clause. For if RFRA does not cover a church, then what is it good for?

(Nor is RFRA part of some ridiculous notion of a "war on women" by Republicans: The Religious Freedom Restoration Act was introduced in the House by then-Representative Chuck Schumer (D-NY) and 169 other co-sponsors, and passed by a voice vote. It passed the Senate by 97-3. President Clinton signed it into law. It was backed by the New York Times. It was primarily designed to protect Native American religions from the federal government.)

Rather, you must be able to make a principled distinction as to why a non-profit corporation like a church can practice religion, but that a for-profit corporation like Hobby Lobby or Conestoga Wood Specialties or Mardel cannot. In my opinion, the dissent tries but fails to do this in a convincing way. The Dictionary Act, a federal law codified at 1 U.S.C. § 1, states that

In determining the meaning of any Act of Congress, unless the context indicates otherwise—

...

the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals....

(Yes, you read that right: since 1947, federal law says that anytime another law refers to "person" it includes corporations).

The dissent argues that "the context indicates otherwise," but this is not convincing. The only defining difference is profit, but "that dog don't hunt." Making profit is not mutually exclusive with practicing religion.   It is not, as the dissent suggests, that "religious exemptions had never been extended to any entity operating in 'the commercial, profit-making world,'" but rather that RFRA, when combined with the Dictionary Act, makes no such distinction. The dissent, in my opinion, must do better than this.

Good and smart people can disagree about the scope of RFRA, as evidenced by the 5-4 vote in this case. But when you try to argue that corporations cannot practice religion, without understanding that non-profit corporations are already unambiguously protected in this regard, you start to look foolish. To start to convince me, find a principled distinction between a non-profit corporation and a for-profit corporation that goes beyond the profit motive.

* A reminder: It is important to note the distinction that the holding in this case does not apply to all corporations, just those that are defined as closely-held. The IRS defines a closely-held corporation as one in which more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and is not a personal service corporation.

Law in Plain English: Obamacare contraceptive mandate 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.

SCOTUSblog: Burwell v. Hobby Lobby Stores, Inc. (consolidated with Conestoga Wood Specialties Corp. v. Burwell)

Argument: Mar 25 2014 (Aud.)

Discussion: Hobby Lobby and Mardel (a craft store chain and a Christian bookstore chain, respectively) and Conestoga Wood Specialties (a manufacturer of wood cabinets) brought actions challenging an Affordable Care Act regulation that requires them to provide certain contraceptive services as a part of their employer-sponsored health care plan. Among these services are drugs and devices that the employers believe to be abortifacients, the use of which is contrary to their faith. The employers grounded their claims in the Free Exercise Clause of the First Amendment, and the Religious Freedom Restoration Act (RFRA), a federal law aimed at preventing laws that substantially burden a person's free exercise of their religion. The Tenth Circuit ruled that Hobby Lobby and Mardel were "Persons Exercising Religion" Under RFRA, and thus entitled to bring their claims. On the other hand, the Third Circuit ruled that for-profit, secular corporations like Conestoga Wood Specialties could not engage in religious exercise, and as a result, were not entitled to protection under the Free Exercise Clause of the First Amendment and the RFRA.

Issue: The question before the Court in Hobby Lobby is whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.

The question before the Court in Conestoga Wood Specialties is whether the religious owners of a family business, or their closely held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage mandate of the Affordable Care Act.

Holding: In a 5-4 decision, the Supreme Court ruled that, as applied to closely held corporations, the HHS regulations implementing the contraception mandate violate the RFRA. It is important to note the distinction that the holding in this case does not apply to all corporations, just those that are defined as closely-held. The IRS defines a closely-held corporation as one in which more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and is not a personal service corporation.

Law in Plain English: Bond 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.

SCOTUSblog: Bond v. United States

Argument: Nov 5 2013 (Aud.)

Did you know? Bond v. United States is one of very
few cases that have been to the Supreme Court twice.

Background: Bond, an employee of the chemical manufacturer Rohm and Haas, learned that her friend Myrlinda Haynes was pregnant and that Bond's own husband was the baby's father. Bond stole chemicals from work and bought others over the Internet and then applied them to Haynes's mailbox, car door handles, and house doorknob. She was charged and convicted of violating the Chemical Weapons Convention Implementation Act of 1998, which implements the 1993 Chemical Weapons Convention. The Third Circuit affirmed.

Issue: The questions before the Court are 1) whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland ("If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government").

Holding: In a 9-0 decision, the Supreme Court ruled that Section 229 of the Act does not reach Bond's simple assault. The Court did not interpret the scope of the international weapons treaty at issue. State laws are sufficient to prosecute an assault like the one in this case. There is no indication in the federal law that Congress intended to abandon its traditional reluctance to define as a federal crime conduct controlled as criminal by the states.

Law in Plain English: United States v. Auernheimer

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.

Case: United States v. Andrew Auernheimer

Argument: Mar 13, 2014 (Aud.)

Background: Andrew Auernheimer ("Weev") was convicted of violating the Computer Fraud and Abuse Act (CFAA) by collecting the email addresses of iPad customers through an "account slurper" program.

Issues: (1) Did Auernheimer and Spitler access a computer “without authorization” under 18 U.S.C. § 1030(a)(2)(C)?

(2) If Auernheimer was properly convicted of a conspiracy to violate the CFAA, was that conspiracy a misdemeanor or a felony?

(3) Did Auernheimer violate the identity theft statute, 18 U.S.C. § 1028(a)(7)?

(4) Was venue proper in the District of New Jersey?

(5) Do AT&T’s costs in mailing a letter to its customers support an eight-level upward adjustment under the United States Sentencing Guidelines? 

Holding: The Third Circuit ruled that trying Auernheimer in New Jersey, where no elements of the crime occurred, denied Auernheimer’s substantial right to be tried in the place where his alleged crime was committed. As a result, it reversed the decision of the District Court and vacated his conviction. Weev was released on Friday night to the custody of his lawyer, Tor Ekeland.

It is important to note that the Third Circuit did not rule on the CFAA in this case. Venue is a threshold issue; by deciding the venue was improper, the District Court never had jurisdiction to hear the case. Venue is a procedural matter that doesn't go to the substance of the underlying charges. That is why it is possible that Weev could likely be charged again without violating double jeopardy, see i.e., Haney v. Burgess, 799 F.2d 661 (11th Cir. 1986) (retrial of a defendant whose conviction was reversed because of improper venue does not violate double jeopardy).

Date	Proceedings and Orders
Jan 13 2011	Criminal Complaint
Jun 22 2011	Plea Agreement with Daniel Spitler
Aug 16 2012	Superseding Indictment
Sep 21 2012	Memorandum of Law in Support of Defendant's Motion's to Dismiss
Oct 5 2012	Brief in Opposition to Defendant's Motion to Dismiss
Nov 20 2012	Trial Verdict
Dec 3 2012	Memorandum of Law in Support of Defendant's Motion for a Judgment of Acquittal Under Federal Rule of Criminal Procedure 29
Mar 17 2013	Defendant's Sentencing Memorandum
Mar 19 2013	Judgment
Jul 1 2013	Appellant's Opening Brief
Jul 8 2013	Amicus Brief of Mozilla Foundation, Computer Scientists, and Security and Privacy Experts
Jul 8 2013	Amicus Brief of Security Researchers
Jul 8 2013	Amicus Brief of Digital Media Law Project
Jul 8 2013	Amicus Brief of National Association of Criminal Defense Lawyers
Aug 5 2013	United States’ Motion for a Word Limit Extension to 26,500 Words and A Stay of the Briefing Schedule
Aug 5 2013	Opposition to United States' Motion for A Word Limit Extension to 26,500 Words and Stay of Briefing Schedule
Aug 6 2013	Reply To Appellant’s Opposition To United States’ Motion For A Word Limit Extension And Stay of Briefing Schedule
Sep 20 2013	Brief of Appellee (United States)

Obamacare is headed back to the Supreme Court--and here's why it's a big deal

UPDATE: My case page is here.

As I noted the other day, the the Supreme Court granted cert in two cases (Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius) challenging the Obamacare contraceptive mandate.

The Affordable Care Act contains a regulation that requires employers to provide certain contraceptive services as a part of their employer-sponsored health care plan. To be clear, these employers are not challenging the provision of all contraceptives--just some of them. Among these contraceptive services in question are drugs and devices that the plaintiffs believe to be abortifacients, the use of which is contrary to their faith.

It is true that, as a practical matter, these cases will not likely have a huge impact on Obamacare itself--at stake is one small provision of the law, not the individual mandate at the center of NFIB v. Sebelius. Rather, what makes these cases a big deal is nexus of Obamacare and Citizens United, the case in which the Supreme Court held that the First Amendment prohibits the government from restricting political independent expenditures by corporations, associations, or labor unions. While corporations have had some personhood rights at early as the 19th century, the public perception of corporate personhood rights is strongly tied to the unpopular Citizens United decision. Furthermore, the Supreme Court is poised to expand Citizens United when it rules in McCutcheon v. FEC.

As a result, the combination of an unpopular Citizens United decision (potentially expanded by McCutcheon) with the controversial Obamacare contraceptive mandate is a high profile mix of politics and religion--sure to be a big deal when the decision comes down (quite possible a 5-4 decision the last week of June).

Law in Plain English: Mount Holly v. Mt. Holly Gardens Citizens in Action, 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.

SCOTUSblog: Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc.

Argument: Dec 4 2013

Background: Mount Holly Township proposed a redevelopment plan that would eliminate the existing homes in its Gardens neighborhood, occupied predominantly by low-income residents, and replace them with significantly more expensive housing units. Mt. Holly Gardens Citizens in Action (an association of Gardens residents) filed a lawsuit suit against the Township alleging violations of the Fair Housing Act (among other claims). The FHA makes it unlawful to "refuse to sell or rent...or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." Under current Third Circuit precedent, the FHA can be violated by either intentional discrimination or if a practice has a disparate impact on a protected class. In order to evaluate disparate impact claims (which do not require proof of discriminatory intent), courts will look at whether it disproportionately burdened a particular racial group so as to cause a disparate impact. The District Court ruled that there was no prima facie case of discrimination under the FHA and that, even if there was, the Residents had not shown how an alternative course of action would have had a lesser impact. The Third Circuit reversed, finding that evidence submitted by the Residents was sufficient to establish a prima facie case.

Issue: The question before the Court is whether disparate impact claims are cognizable under the Fair Housing Act.

Holding: N/A. The parties settled before oral arguments. See the press release here.

Court decisions and misleading journalism

I have repeatedly warned against the use of RT as a legitimate news source. Their headlines are link bait and often do not match the content of the article. Yet I see people link to it all the time.

Given this background, I tend to avoid even going to RT unless I'm looking to evaluate their poor journalistic habits. Such is the case with this article from last fall: Feds seize gold coins worth $80 mln from Pennsylvania family:

A federal judge has upheld a verdict that strips a Pennsylvania family of their grandfather [Israel Switt]’s gold coins — worth an estimated $80 million — and has ordered ownership transferred to the US government.

The article goes on to suggest what might have happened, according to the family:

Switt’s descendants, the Langbords, thought the coins had been gifted to their grandfather years earlier by Mint cashier George McCann and took the coins to the Mint to have their authenticity verified, but the government quickly took hold of the items and refused to relinquish the find to the family. The Langbords responded with a lawsuit that ended last year in a victory for the feds. 

The jury and the judge didn't see it that way: 

Because the government ordered the destruction of their entire supply of coins decades earlier, the court found that Switt’s family was illegally in possession of the stash. Even though they may had been presented to the dealer by a Philadelphia Mint staffer, Judge Davis agrees with last year’s ruling that Mr. McCann broke the law.

Someone linked to the article on Facebook and the comments were almost entirely from people who were outraged that the government would do such a thing. The horror! Well, maybe not. After reading through the judge's opinion, it was pretty clear to me that no one else commenting on the article had actually done the same. Not surprisingly, RT did not link to the ruling; the facts of the case might (read: would) have undermined their sensationalist story.

What really happened? The evidence strongly supports the idea that the Mint cashier George McCann illegally conspired with Switt, a coin dealer, to steal the coins from the Mint. None of the coins were ever made available to the public; there was no evidence that these particular coins were gifted; the jury did not believe that Ms. Langbord "discovered" the coins. In fact, the evidence suggested that the Langbords knew for quite a while about their provenance. Additionally, the article does not even mention a detailed Secret Service investigation which made it pretty clear what had happened.

Read the first sentence of the article again: "A federal judge has upheld a verdict that strips a Pennsylvania family of their grandfather’s gold coins..." Except when you steal coins, they never belong to you. Ownership is not transferred when the coins are returned to their lawful owner. This is worse than confusing; it is blatantly misleading. RT knows that 99/100 readers will never go find the court's opinion (much less have access to it); as a result, they can get away with it.

I suppose one might say, in RT's defense, that perhaps the author (unnamed, of course) is not legally trained and perhaps misunderstood the decision. I doubt it. If you (presumably, most of you reading this are not lawyers) even just briefly skim through the decision below, I suspect you'd come out on the same side as me. I suspect, based upon the last sentence of the article, that the author never actually read the court's opinion and just used the ABCNews.com story as their primary reference.

(A side note: I have said repeatedly that when reporting on court cases, journalists should, at a minimum, list the name of the case as it is styled by the court; and preferably, link to the text of the decision. Sadly, this does not happen often. For your benefit, I have posted the text of the judge's ruling below.)

The other day, a friend of mine asked me about a particular news outlet (not RT) and whether it was legitimate news, or "enternewsment" (his word). My answer was that he should treat it suspiciously like any other news source. RT, on the other hand, deserves much less than a presumption of suspicion. It's garbage.

Langbord v US Dept of the Treasury

The Supreme Court's extreme deference to arbitration

In today's decision in Oxford Health Plans LLC v. Sutter, the Supreme Court defined the standard by which an award of arbitration must be challenged (all citations omitted):

“It is not enough . . . to show that the [arbitrator] committed an error—or even a serious error.” Because the parties “bargained for the arbitrator’s construction of their agreement,” an arbitral decision “even arguably construing or applying the contract” must stand, regardless of a court’s view of its (de)merits. Only if “the arbitrator act[s] outside the scope of his contractually delegated authority”—issuing an award that “simply reflect[s] [his] own notions of [economic] justice” rather than “draw[ing] its essence from the contract”—may a court overturn his determination. So the sole question for us is whether the arbitrator (even arguably) interpreted the parties’ contract, not whether he got its meaning right or wrong.

That's some extreme deference right there.

Law in Plain English: Oxford Health Plans LLC v. Sutter

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.

Oxford Health Plans LLC v. Sutter

Dr. Sutter and Oxford Health Plans are parties to a Primary Care Physician Agreement. According to the agreement, disputes are to be handled by arbitration. Several years into the agreement, Sutter accused Oxfort of improperly denying, underpaying, and delaying reimbursement of physicians' claims for the provision of medical services. He filed a class action suit, but the New Jersey Superior Court granted Oxford's motion to compel arbitration. The arbitrator found that the agreement permitted class arbitration. The District Court and the Third Circuit agreed. The question before the Court was whether the arbitrator acts within his powers under the Federal Arbitration Act  or exceeds those powers by determining that parties affirmatively agreed to authorize class arbitration based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract. In a unanimous decision, the Supreme Court ruled that the arbitrator’s decision survived the limited judicial review allowed by the FAA; and that he did not exceed his powers. As a result, Sutter's class action suit will not go forward and he must submit to arbitration. The practical impact of this decision is that the Supreme Court continues to give a wide amount of deference to arbitration and arbitrator's decisions.

Law in Plain English: PPL Corp. and Subsidiaries v. Commissioner of Internal Revenue

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.

PPL Corp. and Subsidiaries v. Commissioner of Internal Revenue

One of PPL's British subsidiaries was subject to a one-time windfall tax in the United Kingdom. When PPL paid the tax, it claimed a foreign tax credit pursuant to section 901(b)(1) of the Internal Revenue Code, which applies to "income, war profits, and excess profits." The Tax Court found for PPL, but the Third Circuit reversed. The question before the Court was whether, in determining the creditability of the foreign windfall tax, courts should employ a formalistic approach that looks solely at the form of the foreign tax statute and ignores how the tax actually operates, or should employ a substance-based approach that considers factors such as the practical operation and intended effect of the foreign tax. In a unanimous decision, the Supreme Court ruled that the UK tax was creditable under section 901 because its "predominant character" was that of an excess profits tax. As a result, PPL (and other companies similarly situated) can take advantage of the foreign tax credit. The practical impact of this decision is that in determining the creditability of the foreign taxes, courts should look not to the way a foreign government characterizes its tax but how the tax would appear if it was enacted in the United States.

Law in Plain English: U.S. Airways, Inc. v. McCutchen

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.

U.S. Airways, Inc. v. McCutchen

McCutchen was a U.S. Airways employee injured in a car accident. The company's health plan paid nearly $67,000 in medical expenses from his injuries. McCutchen then sued the driver who caused the accident and received about $66,000 ($10,000 from the other driver's insurance and $100,000 from his own insurance, minus attorney's fees). U.S. Airways then sought reimbursement of the $67,000 they had paid in medical expenses, citing language in the company's health plan that required reimbursement under those circumstances. McCutchen refused to pay and U.S. Airways sued under the Employee Retirement Income Security Act (ERISA), which allows U.S. Airways to "obtain other appropriate equitable relief" in accordance with their health plan. The District Court ruled in favor of U.S. Airways, but the Third Circuit reversed, finding that fully reimbursing U.S. Airways would be inappropriate and inequitable (since U.S. Airways would be receiving more than they paid out; and since they hadn't contributed to the cost of obtaining the third party recovery). The question before the Court was whether ERISA authorized courts to use equitable principles to rewrite the health plan's contractual language and refuse to order participants like McCutchen to reimburse their plan for benefits paid, even where the plan’s terms gave it an absolute right to full reimbursement. In a 5-4 decision, the Supreme Court ruled that equitable principles cannot overrule the clear terms of the plan. However, the Court also ruled that equitable rules could help in understanding some ambiguity reimbursement provision. As a result, U.S. Airways could recover for medical bills, but not for attorney's fees. The four dissenters agreed that U.S. Airways should have been able to recover, but would have reversed the Third Circuit and allowed the full reimbursement. The practical impact of this decision is that employers will be able to get reimbursed for expenses paid out for injured employers (potentially to include attorney's fees), but only when those terms are clearly expressed.

Law in Plain English: Genesis HealthCare Corp. v. Symczyk

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.

Genesis HealthCare Corp. v. Symczyk

Symczyk was an employee of a nursing home owned by Genesis HealthCare. Their policy was to deduct 30 minutes of pay for a lunch break, but Symczyk and others often worked through their breaks. Symczyk brought a "collective action" (similar to, but not, a class action) lawsuit under the Fair Labor Standards Act (FLSA), alleging that she and others were entitled to be paid for the time they worked through her lunch breaks. Genesis offered to pay $7,500 for unpaid wages (which was everything that Symczyk had asked for), but she did not respond. The question before the Court was whether the case became moot, and beyond the judicial power of Article III, when the lone plaintiff received an offer from the defendants to satisfy all of the plaintiff's claims. In a 5-4 decision, the Supreme Court ruled that once Genesis has offered to pay everything she had asked for, she no longer had any personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness. As a result, her suit was appropriately dismissed by the Third Circuit. The practical impact of this decision on a larger scale is that when a defendant offers everything the plaintiff asks for, there may not be anything left for the courts to decide (although the Court didn't technically rule on this issue).

Law in Plain English: Comcast v. Behrend

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.

Comcast v. Behrend

Several Comcast subscribers filed a class action lawsuit against Comcast alleging that Comcast violated the Sherman Anti-trust Act by "clustering." The suit alleged that Comcast made illegal swap agreements to concentrate, or "cluster," operations in particular regions. For example, Comcast bought Adelphia's Philadelphia operations (to increase their share of subscribers from 24% to nearly 70% in the region) and in return sold their operations in Palm Beach, Florida and Los Angeles, California, to Adelphia to allow Adelphia to cluster their operations in those regions. The question before the Court was whether the District Court should have certified the class action without resolving whether the subscribers has introduced admissible evidence, including expert testimony, to show that their case was susceptible to awarding damages on a class-wide basis. In a 5-4 decision, the Supreme Court ruled that the District Court improperly certified the class. To meet the requirements for a class action, the subscribers must show that “the questions of law or fact common to class members predominate over any questions affecting only individual members." In other words, the plaintiff's damages model needed to show damages on a classwide basis. To do so, the court may need to inquire into the substance ("merits") of the plaintiff's claims, and how their alleged damages were actually related to their alleged injury. In this case, the District Court failed to do this. As a result, the class would not be certified. The practical impact of this decision is that it makes it more difficult to certify class actions in certain circumstances because the plaintiffs will have to introduce sufficient evidence to link their theory of damages to their claimed injury.

Law in Plain English: Millbrook 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.

For an earlier discussion of sovereign immunity in relation to this case, see here. For an earlier discussion of sovereign immunity related to other cases, see here.

Millbrook v. United States

Millbrook is a prisoner that alleged he was sexually assaulted by corrections officers. He filed suit under the Federal Tort Claims Act, which waives the Government’s sovereign immunity from tort suits, including those based on certain intentional torts committed by federal law enforcement officers "who [are] empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." This section is  referred to as the "law enforcement proviso." The question before the Court was whether the FTCA waived sovereign immunity for the intentional torts of prison guards when they were acting within the scope of their employment but were not actually exercising authority to "execute searches, to seize evidence, or to make arrests for violations of Federal law." In a unanimous opinion, the Supreme Court ruled that the waiver of sovereign immunity effected by the law enforcement proviso extended to acts or omissions of law enforcement officers that arose within the scope of their employment, regardless of whether the officers were engaged in investigative or law enforcement activity, or were executing a search, seizing evidence, or making an arrest. As a result, Millbrook's suit can go forward. The practical impact of this decision is that prisoners will be able to bring claims against prison guards or other law enforcement officers for any conduct that arises within the scope of their employment, regardless of whether it was investigative or law enforcement activity, or executing a search, seizing evidence, or making an arrest.

2011 predictions update

Everyone makes predictions for the upcoming year, but how many people go back and actually score themselves?

1. The Supreme Court will reverse the Ninth Circuit in Wal-Mart v. Dukes.
TRUE

2. Judge Roger Vinson of the U.S. District Court for the Northern District of Florida will find the health care reform law to be unconstitutional.
TRUE

3. The FCC will approve new net neutrality rules (that will probably happen in the next week or so), but the federal courts will find that this oversteps their authority (again).
PARTIALLY TRUE (case is still pending)

4. At least one politician (state legislator or above) will resign when a video of their misconduct goes viral.
Thankfully, we didn't get video of Weiner's weiner, but he did resign. PARTIALLY TRUE

5. North Korea's Kim Jong-il will die and his son, Kim Jong-un, will take over.
TRUE and TRUE

6. At least one Philadelphia sports team will make it to the Super Bowl, NHL Finals, or World Series.
FALSE (unfortunately)

7. Patriots' QB Tom Brady will win the NFL MVP and Eagles' QB Michael Vick will finish second.
TRUE (Note: Brady was unanimous; there was no second place)

8. Baltimore (BWI) will record less than 30 inches of snowfall this winter (please)
TRUE (I think the official number was 18-19 inches)

9. I will get accepted to law school (please) and actually go this time!
FALSE (long story)

10. Stuxnet's creator(s) will be revealed (total guess).
FALSE

And one more for the road that I am most certain of:

DEFCON19 will be canceled.
Always TRUE

Top ten update

With the news this morning that Wal-Mart succeeded at the Supreme Court in having the Dukes class action suit dismissed, it's time to update the top ten predictions for 2011. Here's a look back at the predictions with updates:


1. The Supreme Court will reverse the Ninth Circuit in Wal-Mart v. Dukes. YES

2. Judge Roger Vinson of the U.S. District Court for the Northern District of Florida will find the health care reform law to be unconstitutional. YES

3. The FCC will approve new net neutrality rules (that will probably happen in the next week or so), but the federal courts will find that this oversteps their authority (again). YES and NO

4. At least one politician (state legislator or above) will resign when a video of their misconduct goes viral.  YES and NO (Chris Lee and Anthony Weiner have both resigned, but over pictures and not video)

5. North Korea's Kim Jong-il will die and his son, Kim Jong-un, will take over. NO

6. At least one Philadelphia sports team will make it to the Super Bowl, NHL Finals, or World Series. NO (only the Phillies are left)

7. Patriots' QB Tom Brady will win the NFL MVP and Eagles' QB Michael Vick will finish second. YES (Brady was unanimous)

8. Baltimore (BWI) will record less than 30 inches of snowfall this winter (please) YES (14.4 inches)

9. I will get accepted to law school (please) and actually go this time! NO (wait-listed, blah!)

10. Stuxnet's creator(s) will be revealed (total guess). NO


And of course, the bonus prediction: DEFCON19 will be canceled. YES :-)

Some thoughts about 2011

I'm not big on predictions, mostly because people make ambiguous ones that are difficult to judge.  So here's my attempt at a handful of predictions for 2011 that should be easily distinguishable with a yes or no answer:

1. The Supreme Court will reverse the Ninth Circuit in Wal-Mart v. Dukes.

2. Judge Roger Vinson of the U.S. District Court for the Northern District of Florida will find the health care reform law to be unconstitutional.

3. The FCC will approve new net neutrality rules (that will probably happen in the next week or so), but the federal courts will find that this oversteps their authority (again).

4. At least one politician (state legislator or above) will resign when a video of their misconduct goes viral.

5. North Korea's Kim Jong-il will die and his son, Kim Jong-un, will take over.

6. At least one Philadelphia sports team will make it to the Super Bowl, NHL Finals, or World Series.

7. Patriots' QB Tom Brady will win the NFL MVP and Eagles' QB Michael Vick will finish second.

8. Baltimore (BWI) will record less than 30 inches of snowfall this winter (please)

9. I will get accepted to law school (please) and actually go this time!

10. Stuxnet's creator(s) will be revealed (total guess).

And one more for the road that I am most certain of:

DEFCON19 will be canceled.

On the constitutionality of airport searches

If you're wondering what the courts have said about the constitutionality of airport searches, you'd probably end up where I did; still looking.  It turns out the the Supreme Court has never ruled on the constitutionality of such searches, although there have been some related rulings.

It turns out that the most relevant case is one from the U.S. Court of Appeals for the Ninth Circuit (United States of America v. Daniel Kuualoha Aukai) which ruled that:

We have held that airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are “conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.”

And because "the Supreme Court has repeatedly upheld the constitutionality of so-called “administrative searches,.” it is reasonable to assume that the Supreme Court would find these searches constitutional, generally.

The caveat to this decision:

Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless.  A particular airport security screening search is constitutionally reasonable provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [][and] that it is confined in good faith to that purpose.”

So the key to the current set of procedures, in regards to the full-body scanners and enhanced pat-downs, is whether or not these tools are "more extensive" or "more intensive than necessary under the circumstances."

It seems to me that you could argue that in some specific cases, the procedures used by the TSA may have crossed this line (and in fact, they've more-or-less admitted this is the case in some cases); but there might be some difficulty arguing that these procedures in general cross the line (especially with the current Court).

Here is the text of the decision in its entirety:

United States of America v. Daniel Kuualoha Aukai