Merck Urges Supreme Court to Toss Osteoporosis Drug Lawsuit
BY MATTHEW VADUM
January 7, 2019 Updated: January 7, 2019
Drugmaker Merck and Co. told the Supreme Court that a class-action lawsuit against it over top-selling osteoporosis drug Fosamax should be disallowed because the company informed regulators of potential adverse effects and was rebuffed.
Only eight of the court’s nine justices attended oral arguments on Jan. 7. Justice Ruth Bader Ginsburg, who turns 86 in March, is recovering at home after undergoing surgery for lung cancer on Dec. 21. She left a New York hospital on Christmas Day.
This is the first time Ginsburg, who was appointed by President Bill Clinton in 1993, has ever missed oral arguments as a member of the Supreme Court, including after two prior cancer surgeries. Chief Justice John Roberts said from the bench that Ginsburg would take part in the case at hand, “on the basis of the briefs and transcripts of oral arguments.”
Hundreds of consumers are suing the company, claiming injuries related to their use of Fosamax, sales of which brought Merck a reported $250 million in 2017 in the lucrative bisphosphonates market.
The medication is prescribed to prevent and treat osteoporosis in post-menopausal women. Some women have broken their femur bones while using the bone-strengthening drug.
In response to a question by Justice Sonia Sotomayor, the class-action litigants’ lawyer, David C. Frederick, said Merck consultant Dr. Joseph M. Lane of the Hospital for Special Surgery in New York City, previously complained that the company failed to provide “medically accurate education” to the Food and Drug Administration about fractures suffered by users of the drug.
Frederick said Lane is “the one who had coined the term ‘Fosamax fracture’ because, in all of his years of osteology, he had not encountered these kinds of fractures until he had patients coming to him who were on this drug.”
The patients claim Merck failed to provide sufficient warnings on the drug’s label, but the company, backed by the Trump administration, counters that it alerted the FDA when it discovered Fosamax could adversely affect some users.
The FDA refused the request to add the warning, saying available data didn’t support it. Merck convinced a trial judge to halt the class-action proceeding, but an appellate court reversed and allowed the lawsuits to proceed.
The FDA “thought that it is more dangerous … to put the risk in the label than it is to leave it out,” Justice Stephen Breyer said. “And then they set up a task force and decide[d] they were wrong.”
But the company is liable even if the FDA made a mistake, Frederick said.
“The FDA clearly didn’t have … all of the relevant information, because what the task force finds is that there are about 170 some articles that had been written on this subject. Only five had been given to the FDA, or that—that was evidence that the FDA was aware of.”
Federal law “imposes the duty on the manufacturer, because the manufacturer’s going to be tracking this all over the world,” the lawyer said, adding that in 2006, a Merck employee in Singapore “said I’ve now seen several of these specialized atypical femoral fractures, I think this could be an indication that we need a safety signal.”
Merck attorney Shay Dvoretzky said the law, which assumes that regulators are competent and do their jobs properly, is on the company’s side. The rule applying in this situation “follows from the statutory and regulatory framework governing the FDA’s conduct and from the presumption of regularity.”
“The presumption of regularity, of course, assumes that federal agencies do their jobs correctly. The FDA’s job, in this case, includes protecting the public health by working with manufacturers to revise drug labels when necessary.”
Separately, on the same day, the Supreme Court handed a defeat to Merck by refusing to consider an appeal that may have led to the revival of a $200 million jury verdict in its favor.
Reuters reports that a jury in San Jose, California, had awarded Merck $200 million in 2016 after determining that Gilead Sciences Inc.’s Hepatitis C drugs Sovaldi and Harvoni infringed two of its patents.
A judge later found the patents unenforceable because Merck acted in bad faith. In a similar 2016 case, Merck won a $2.54 billion verdict, reportedly the largest ever in a patent case, but a judge nixed the judgment a year ago, finding Merck’s patent invalid.
The Kenilworth, New Jersey-based company currently has a market capitalization of $196.1 billion.
Supreme Court Considers Rules for Home Foreclosures
BY MATTHEW VADUM
January 8, 2019 Updated: January 8, 2019
In a case that has political overtones as the 2020 presidential contest begins to take shape, lawyers for a Colorado homeowner facing foreclosure under an expedited nonjudicial foreclosure process urged the Supreme Court to extend to him the protections of a federal law governing debt collections.
The case pits left-wing activists and officeholders against banks trying to protect their shareholders when homeowners can’t pay their bills. Politicians such as Sen. Elizabeth Warren (D-Mass.), who filed a brief in the case, say borrowers need more protection.
The legal case concerns Dennis Obduskey, a Colorado resident, who, not long after the 2007 financial crisis, defaulted on his $329,940 home mortgage, according to a summary by CNBC.
After his 2009 default and six fruitless years trying to foreclose on the property, in 2015, Wells Fargo hired a law firm named McCarthy and Holthus to take care of the foreclosure. According to court documents, the home hasn’t been sold.
The court has been asked to decide whether Obduskey may benefit from legal protections that Congress extended to debtors in the 1970s, or whether the foreclosure isn’t covered because it is a home, as opposed to money, that is in legal jeopardy.
The legal issue hinges on the definition of the phrase “debt collector.” The court is expected to decide whether a law firm attempting to foreclose on a property should be considered a debt collector within the meaning of federal law.
At the Supreme Court, justices tangled with legal counsel over semantics, comparing a foreclosure law firm to “repo men” who arrive in the “dead of night.”
The case could affect millions of Americans in the residential property marketplace.
In 2016, about 200,000 homes were foreclosed on in states that allow lenders to foreclose without heading to court. Business groups say these nonjudicial foreclosures are more efficient and fair to borrowers than court proceedings.
The Mortgage Bankers Association and U.S. Chamber of Commerce say that the status quo should be maintained, and argued in a friend-of-the-court brief against adding an “unwarranted layer of complexity in the foreclosure process, thereby harming both lenders and borrowers.”
In nonjudicial foreclosure proceedings, the creditor isn’t allowed to collect any amount beyond the value of the property itself. To recover any difference between the value of the mortgage and the value of the property, called a deficiency, the lender has to initiate a separate action in court and obtain a judgment for that amount.
Obduskey’s attorney, Daniel L. Geyser of Dallas, argued that the law firm hired by the lender is a debt collector and must comply with procedural protections in the 1977 Fair Debt Collection Practices Act (FDCPA), which was created to stop debt collectors from using abusive or predatory collection techniques.
“Nonjudicial foreclosures are covered under the Fair Debt Collection Practices Act as a direct or indirect attempt to collect a consumer’s debt,” Geyser told the Supreme Court during oral arguments Jan. 7.
Kannok Shanmugam of Washington, who represents McCarthy and Holthus, said the statute doesn’t apply because, in his view, the law firm isn’t a debt collector. Shanmugam said Congress has long distinguished between those collecting debts and those enforcing security interests.
A federal appellate court seemed to side with Shanmugam. Even though McCarthy and Holthus sent Obduskey a notice identifying itself as a debt collector and demanding payments, that wasn’t considered enough to invoke the FDCPA.
But Justice Brett Kavanaugh challenged Shanmugam.
Kavanaugh suggested the FDCPA may apply to Obduskey and that the law firm involved was indeed a debt collector. “Common sense tells you this is an effort to have you repay the debt,” he said.
“Well, that’s true,” Shanmugam said, “but it’s inherently communicating a message that you need to repay the debt or you’re going to lose the house.”
Chief Justice John Roberts also sparred with Shanmugam.
The FDCPA is “not the way you would have told Congress how to write the statute,” he said. Nor was it the way Geyser would have wanted Congress to write it, Roberts said.
After Roberts said “it certainly is an indirect effort to collect the debt,” Shanmugam admitted the chief justice’s statement “makes it harder for me.”
Justice Elena Kagan said “the grammar of the statute” seemed to say the law firm could either be a debt collector or seeking to enforce a security, but not both. The firm is “paradigmatic” as a collector of a security interest, but it is “a little less odd” to state it isn’t a debt collector.
Justice Sonia Sotomayor seemed to say the law firm could fulfill both roles. “What’s really at issue is the unfair practices,” she said.
The Trump administration sided with the law firm seeking to foreclose on Obduskey’s property, while nine Democratic lawmakers signed onto a friend-of-the-court brief filed in the case supporting the homeowner.
In the brief, the officials outlined what they understood to be Congress’s intent when it created the FDCPA. The most prominent of the signers is Warren, who announced Dec. 31, 2018, that she had formed an exploratory committee for a 2020 presidential run. Another is Rep. Maxine Waters (D-Calif.), the new chairman of the House Financial Services Committee.
The other senators are Sherrod Brown of Ohio, himself a potential presidential candidate, along with Jack Reed and Sheldon Whitehouse of Rhode Island. The other House members are Emanuel Cleaver of Missouri, Stephen Lynch of Massachusetts, and Carolyn Maloney and Nydia Velazquez of New York.
According to the lawmakers, in 1975, Congress approved the FDCPA to deal with “the use of abusive, deceptive, and unfair debt collection practices by many debt collectors” that lead to “personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.”
Congress sought to “eliminate abusive debt collection practices by debt collectors, [and] to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.”
To achieve these objectives, the statute forbids “debt collectors from engaging in deceptive, misleading, harassing, or abusive practices when attempting to collect debts.”
In Obduskey’s case, the question is “whether non-judicial foreclosure—the process by which a trustee or other entity conducting a foreclosure … takes and sells a consumer’s home to fulfill an unpaid home mortgage—constitutes debt collection within the meaning of the statute.”
The language of the law and evidence of congressional intent “make clear that debt collectors engaging in nonjudicial foreclosures, like other debt collectors, must comply with the requirements of the FDCPA,” the lawmakers said in the brief.
Only eight of the court’s nine justices attended oral arguments Jan. 7. Justice Ruth Bader Ginsburg, who turns 86 in March, is convalescing at home after surgeons excised two cancerous growths from a lung on Dec. 21, 2018. Chief Justice Roberts said Ginsburg would take part in the case “on the basis of the briefs and transcripts of oral arguments.”
States Seek Immunity in Other States’ Courts
BY MATTHEW VADUM
January 9, 2019 Updated: January 9, 2019
Backed by 45 other states, California urged the U.S. Supreme Court to overturn a 40-year-old precedent that allows states to be sued in the courts of other states.
Specifically, the court was asked to scuttle Nevada v. Hall, a 1979 ruling that held a state isn’t immune to lawsuits filed in another state’s courts.
Indiana led 44 other states in filing a friend-of-the-court brief urging reversal, arguing the decision “is–and always has been—irreconcilable with the Court’s larger body of sovereign immunity decisions.”
“States all too frequently find themselves the targets of private-plaintiff lawsuits filed in the courts of other States … [which] not only insult the sovereign dignity of defendant States, but also pose the real risk of exposing States to judgments unrestrained by any concern for local fiscal impact.”
The case is the third time at the Supreme Court for inventor Gilbert P. Hyatt, who has been fighting the Franchise Tax Board of California for decades over personal income tax that California claims he owes.
When Hyatt’s tax dispute last came before the Supreme Court in 2016, some observers said the high court appeared ready to resolve the issue, but Justice Antonin Scalia unexpectedly died and the court deadlocked in a 4–4 vote.
In 1992, the technology patent holder filed a California tax return, stating he moved to Nevada in October 1991. The board disputed the state residence change and conducted an intrusive audit that found the Nevada move was a sham. Subsequent audits and millions of dollars in penalties and interest followed. Hyatt challenged the audits within the FTB and those appeals remain pending.
In 2008, a Nevada state jury awarded Hyatt $85 million in damages for emotional distress, $52 million for invasion of privacy, $1 million for fraud, and $250 million in punitive damages. The Nevada Supreme Court affirmed the verdict in part and reversed in part, substantially reducing the damages awarded and determining that the California board was immune from punitive damages.
Nevertheless, California claims it was treated unfairly in the Nevada courts.
Hyatt’s lawyer, Erwin Chemerinsky, excoriated California officials during oral arguments Jan. 9.
“They invaded his property rights. They defamed him. They also revealed private information about him to a large audience,” he said.
Reversing Nevada v. Hall was unwarranted, he said. “Nothing has changed since then.”
Justices Weigh In
Attorney Seth P. Waxman, representing the California tax authority, offered a history lesson.
“The participants in the ratification debates disagreed about whether the new constitution would or should subject states to suit in the new courts of the soon-to-be superior sovereign, but they were unanimous in their understanding that states could not be sued in the courts of other states.”
He was challenged by Justice Sonia Sotomayor who said, “It’s nice that they felt that way, but what we know is they didn’t put it in the Constitution.”
Referencing the fact that a large super-majority of the states had signed onto the brief urging reversal, Sotomayor suggested those states were seeking change in the wrong place.
“Why don’t they move to get the Constitution amended if we’re getting it wrong?” she said. “You’re asking us to do their work.”
Justice Brett Kavanaugh added that the Constitution “is a document, in my view, of majestic specificity. It’s got a lot of specific details on very minute things, and this issue, which you say rightly is so important, but then somehow was not mentioned in the text of the Constitution.”
Waxman said that the doctrine of state-sovereign immunity that his client supports “derives from the structure of the original Constitution” and attacked the reasoning underlying Nevada v. Hall. That ruling “represents the only case in state or federal court in the 200 years prior that had ever recognized the ability of one state to compel another state to answer. It cited zero cases.”
Justice Stephen G. Breyer seemed wary of overturning the precedent. “Every time we overrule a case, it’s like a little chink in an armor,” he said, sharing his view that legal uncertainty makes it more difficult for attorneys to offer useful legal advice.
Justice Samuel Alito took the opposite tack, saying the court benefits from keeping an open mind about precedents.
“Do you think that the public would have greater respect for an institution that says, ‘You know, we’re never going to admit we made a mistake; because we said it and we decided it, we’re going to stick to it even if we think it’s wrong,’ or an institution that says, ‘Well, you know, we’re generally going to stick to what we’ve done, but we’re not perfect.’”
Only eight of the court’s nine justices attended the oral arguments. Justice Ruth Bader Ginsburg, 85, is convalescing at home after surgeons excised two cancerous growths from a lung on Dec. 21. It was her third consecutive day of not attending court arguments. Nonetheless, Ginsburg, who has access to the briefs and transcripts of arguments, is expected to take part in the case.
Supreme Court Does Not Stop Climate Change Investigation of Exxon
BY MATTHEW VADUM
January 11, 2019 Updated: January 11, 2019
Exxon Mobil lost a round in the Supreme Court this week in its ongoing battle with an activist official in Massachusetts who claims the company has been concealing evidence about its role in the alleged phenomenon of global warming.
The Supreme Court turned back Exxon Mobil’s request to review the actions of Massachusetts Attorney General Maura Healey. The company claims she has been violating its constitutional rights by leading what amounts to a fishing expedition. Exxon says Healey hopes to discover evidence to use in the state’s investigation that hypothesizes the company covered up information for decades about the role the fossil fuels it sells plays in climate change.
Exxon Mobil’s resistance to handing over documents was backed by 11 Republican state attorneys general who called the Massachusetts probe an “unconstitutional abuse of investigative power” to “promote one side of [the] international public policy debate.”
As is its custom, the court did not explain why it summarily refused the company’s petition for certiorari on Jan. 7.
Exxon asked the Supreme Court a few months ago to stop Healey from pursuing the documents, claiming she should not be permitted to force compliance with a subpoena from a company that does not operate in Massachusetts.
In a case docketed as Exxon Mobile Corp. v. Healey, 18-311, the company asked the Supreme Court to review a decision the Massachusetts Supreme Judicial Court made in the case last April.
In its petition, the company asserted that Massachusetts had no right to demand the documents requested in order to pursue its case and that the Massachusetts high court had no power to authorize the state’s actions. “This case involves a breathtaking assertion of personal jurisdiction over a nonresident defendant,” the company argued in the petition.
“[T]he Massachusetts Supreme Judicial Court compelled compliance with sweeping investigatory requests by the State’s attorney general for decades’ worth of documents concerning petitioner’s knowledge of, and the relationship of petitioner’s products to, climate change.
“It justified that exercise of judicial power based principally on advertisements, despite the attorney general’s admission that the ads at issue did not speak to the subject matter of the investigation and even though the corporation did not even create or approve the vast majority of the ads.”
Healey countered that the Massachusetts court could force the company to comply with the subpoena because it advertises in the state and has licensing agreements with businesses there.
Exxon Mobil surrendered documents to New York and the U.S. Securities Exchange Commission, which ended its investigation into the company last August, but it did not provide documentation to Healey.
Environmentalists claim that the carbon dioxide generated by the consumption of fossil fuels such as petroleum and coal is responsible for climate change, but this theory of manmade global warming has never been proven. Critics say the sun, as opposed to human activity, and other factors are more likely responsible for whatever climate change may be taking place.
Healey, a Democrat, said the Supreme Court’s decision “clears the way for our office to investigate Exxon’s conduct toward consumers and investors.”
“The public deserves answers from this company about what it knew about the impacts of burning fossil fuels, and when,” Healey wrote on Twitter on Jan. 7.
Healey has been demanding internal documents from Exxon Mobil arising out of a probe years ago regarding the company’s messaging, including advertisements, on global warming. Specifically, she asked for internal documents and records about conservative groups such as the Beacon Hill Institute and Americans for Prosperity that have not received money from Exxon Mobil.
Healey began investigating the company in 2016 after former New York Attorney General Eric Schneiderman, a Democrat, began investigating the company’s public and private messaging on global warming.
According to The Daily Caller:
“Schneiderman’s office said its probe was sparked by 2015 reports from InsideClimate News and Columbia University’s journalism school, but court documents later revealed staffers discussed the matter with environmental activists months before officially launching the investigation.”
Supreme Court Asked How Rules Are Made for Medicare Payments
BY MATTHEW VADUM
January 15, 2019 Updated: January 15, 2019
A Midwestern hospital chain asked the Supreme Court to find that the U.S. Department of Health and Human Services shortchanged it by as much as $4 billion by altering its Medicare hospital reimbursement formula without first conducting a formal notice-and-comment rulemaking process.
Minneapolis-based Allina Health Services, a non-profit health care system that runs 13 hospitals and upwards of 90 clinics in Minnesota and western Wisconsin, is challenging the formula-changing decision that was made in 2013 by the Obama administration. The Trump administration defended that decision during oral arguments before the Supreme Court on Jan. 15.
Allina had asked the Provider Reimbursement Review Board for relief, but the entity said it lacked jurisdiction to hear the case. Allina took the matter to a U.S. district court, eventually losing at the appellate level.
The case, known as Azar, Sec. of H&HS v. Allina Health Services, is important because it affects payments that the Center for Medicare and Medicaid Services (CMS), which is part of HHS, makes to hospitals like those in the Allina chain that disproportionately serve low-income patients. CMS pays out $120 billion every year to cover Medicare inpatient care across the nation.
Although legal observers say any ruling the Supreme Court may make is likely to be limited to Medicare funding rates in effect from 2005 through 2013, the court’s decision may clarify how federal agencies engage in the rulemaking process.
The Supreme Court agreed Sept. 27 to hear the case, which is an appeal of a ruling by the U.S. Court of Appeals for the District of Columbia Circuit.
‘Notice and Comment’
HHS Secretary Alex M. Azar asked the court to review the circuit court ruling that determined his agency ran afoul of the Medicare Act by skipping the notice-and-comment rulemaking process. It’s the administration’s position that the formal rulemaking process wasn’t required by the statute.
The case could have larger ramifications that could “substantially undermine effective administration of the Medicare program” if members of the Supreme Court buy into the legal reasoning advanced by Allina, U.S. Solicitor General Noel J. Francisco argued in a brief.
If CMS were legally bound to carry out a notice-and-comment rulemaking in this case, it could also face the unreasonable burden of having to conduct rulemaking processes frequently in its everyday business, which would be disruptive and counterproductive, Francisco argued.
Allina disagrees. In court documents, it argued the question at hand is “a unique circumstance,” and therefore any impact “would be extremely limited” if the Supreme Court were to affirm the D.C. Circuit Court ruling.
Allina and other hospitals say the Medicare Act required CMS to provide “the public with notice and opportunity for comment” before altering the formula used to calculate reimbursements.
Friend-of-the-court briefs were filed supporting Allina’s position, including by the American Hospital Association, the Federation of American Hospitals, and the Association of American Medical Colleges. The AHA argues the administration is exaggerating the potential impact that affirmance would have on CMS operations.
“Not all CMS policies need to go through notice-and-comment; just those, like the determination here, that substantively alter how providers are paid,” the group stated in its brief.
The trial court sided with the government, finding HHS didn’t contravene the Medicare Act’s procedural requirements because the formula revision arose out of an interpretive rule.
But the D.C. Circuit disagreed, finding “that HHS violated the Medicare Act when it changed its reimbursement adjustment formula without providing notice and opportunity for comment.” The language of the Medicare Act “expressly requires notice-and-comment rulemaking,” the circuit found, adding it was important to respect the will of Congress.
Oral arguments before the Supreme Court on Jan. 15 consisted largely of discussions of the meaning of specific words in the Medicare Act and in other statutes, and abstract, highly technical ruminations about administrative law.
In an animated discussion with Justice Stephen Breyer, attorney Pratik Shah for Allina, suggested that calling something by an inappropriate name doesn’t invalidate it or alter the law. Even in administrative law, “if you call a legislative rule a ham sandwich, that doesn’t get you out of the notice-and-comment requirement.”
“If you called an interpretive rule or a statement of policy, there is an exception for those, but if it’s actually a legislative rule, you have to go through notice-and-comment.”
Shah told the court his client was treated unfairly and arbitrarily by the government.
“That annual prospective payment rulemaking is hundreds of pages long. And the agency already puts everything governing prospective payment systems that has a substantive effect into that rulemaking. In fact, 16 times before this case, it adjusted the treatment of certain categories of days through the prospective payment system rulemaking.”
Justice Neil Gorsuch expressed frustration during the presentation of Deputy Solicitor General Edwin Kneedler, suggesting more than once that he was being evasive.
“Mr. Kneedler, there’s a lot of words there, but I’m not sure there’s an answer to Justice [Elena] Kagan’s question … I’m going to give you an opportunity to try again, because it’s very important to me as well. Aren’t you using the word ‘substantive’ in two different senses?” Gorsuch said.
Only seven of the court’s nine justices attended the oral arguments.
Justice Brett Kavanaugh recused himself because he wrote the decision that forms the basis of this appeal, when he was a judge sitting on the District of Columbia Circuit.
Justice Ruth Bader Ginsburg, 85, is convalescing at home after surgeons excised two cancerous growths from a lung on Dec. 21. It was her second consecutive week of not attending court arguments. Nonetheless, Ginsburg, who has access to the briefs and transcripts of arguments, is expected to take part in the case.
Supreme Court Case About Gravesites Raises Issues of Equal Protection of Property
BY MATTHEW VADUM
January 16, 2019 Updated: January 16, 2019
A township in rural Pennsylvania claimed a forgotten cemetery existed on a woman’s property and, on that basis, demanded she open her property to the public. She contends this order violates her property rights and sued, seeking the opportunity to have relatively speedy redress through access to federal courts.
The Trump administration and Rose Knick, the Pennsylvania property owner, urged the Supreme Court on Jan. 16 to overturn a 34-year-old legal precedent that forces property owners to seek legal redress in state courts after their property is taken, before filing suit in federal courts.
The case, known as Knick v. Township of Scott, Pennsylvania, is on appeal from the Philadelphia-based U.S. Court of Appeals for the Third Circuit. This is the second time that Knick has appeared before the high court seeking vindication of her rights.
The Trump administration supports Knick and sent U.S. Solicitor General Noel Francisco in person to represent it during oral arguments. Teresa Ficken Sachs represented Scott Township, Pennsylvania, where Knick resides.
The case was previously argued Oct. 3, before Associate Justice Brett Kavanaugh was confirmed to the court and when there were only eight justices, making a 4-4 split a distinct possibility. Kavanaugh was sworn in as a justice Oct. 6. The court restored the case to its calendar on Nov. 2 and, on Nov. 28, ordered it be re-argued. Re-argument allows all nine justices to weigh in on this important property-rights case.
Knick ended up in court because authorities in Scott Township, in the eastern part of the Keystone State, enacted an unusual law defining cemeteries as including suspected gravesites on private property. The legislation forces private property owners whose land is claimed to contain a private cemetery to open the area to the public.
In 2013, the local government claimed some stones it found on Knick’s 90-acre farm were gravestones and declared her property a “cemetery.” She was ordered to open her property to the public or face fines of $600 per day.
Searches of hundreds of years of property records located no evidence of gravesites on the property, according to Pacific Legal Foundation, which is representing her.
Knick sued, claiming a violation of her Fifth Amendment rights and asserting that her property had been unconstitutionally taken by the township. A federal court refused her claim, citing Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, a Supreme Court ruling from 1985.
That decision forces property owners to sue in state courts before filing in federal courts, and, according to her lawyers, fails to place property rights on an equal footing with other rights such as free speech and due process.
Solicitor General’s Case
Solicitor General Francisco told the court that the administration doesn’t accept all of the arguments advanced by Knick, but does reject the conclusion of the Williamson County ruling that “a Section 1983 action [under the Civil Rights Act of 1871] is not available to redress the deprivation of the right to just compensation.”
That statute was enacted during post-Civil War Reconstruction, a period when trust of state governments and their courts was at a low ebb, leading some of the justices to ask if federal courts today were somehow better than state courts.
Francisco dodged the question. “We think it’s [i.e. the statute] available to redress all constitutional rights, including that one,” he said.
“And the right to just compensation is one that vests the moment the property is taken. That’s why a property owner is entitled to interest, dating back to the moment of a taking.”
Under questioning by Justice Elena Kagan, Francisco said, “there’s simply nothing in the Fifth Amendment that says you have to go to state court before you go to federal court.”
Kagan asked Francisco: “Is there any other area in our law generally where somebody can go to court under 1983, under anything else, and say I’ve been deprived of a constitutional right before a constitutional violation has occurred?”
Francisco replied that such a thing can be done under the Tucker Act, a federal statute in which the United States waives its sovereign immunity in certain kinds of lawsuits.
Plaintiff’s Attorney’s Explanation
On the courthouse steps following the oral argument, Knick’s lawyer, J. David Breemer, senior attorney with the Pacific Legal Foundation, explained his understanding of the case, in an exclusive interview with The Epoch Times.
“The primary issue is when the government takes your private property, invades it for instance, as in this case, for public access, a trail, do you have a right to go into court and ask for just compensation at the time it invades you or do you have to go through a series of procedural hurdles that are unique to only property owners and which treat them as different, second-class constitutional citizens?
“Normally, when the government injures you, if you have a constitutional right that’s harmed, you can immediately go to a federal court to protect your right, but you can’t in the property context. You have to go through the state-law process and that harms you because it delays your relief, it’s expensive, and you oftentimes lose by attrition.
“Our constitutional rights are only as good as the court’s willingness to protect them. So if you, as a property owner, can’t get a court to hear your claim that your property’s been taken, your right is diminished. It’s a paper right. It’s what’s happened in this case, that property owners can’t go to a federal court and they often can’t get a speedy hearing in a state court so they often can’t protect and vindicate their Fifth Amendment rights. That’s what the case is about.
“What the court said in Williamson County in 1985, which is at issue here, is that when the government invades your property, we cannot consider it to be an uncompensated invasion until you go through a state court process … but they said it’s part of the Constitution.
“But that conflicts with what the court has said since 1884, which is if they invade your property and don’t pay you right then, is when you have a constitutional right of violation to claim. So this case is about whether we should go back to the traditional and simpler rule that works, that the time of the taking, the time of the invasion is the time when you can go to the court and ask for compensation, rather than having to go through a secondary, two-year, three-year-long process.”
Only eight of the court’s nine justices attended the oral arguments.
Justice Ruth Bader Ginsburg, 85, is recovering at home after surgeons excised two cancerous growths from a lung on Dec. 21. It was her second consecutive week of not attending court arguments. Nonetheless, Ginsburg, who has access to the briefs and transcripts of arguments, is expected to take part in the case.
Supreme Court Lifts Injunction on Ban of Transgenders in Military
BY MATTHEW VADUM
January 22, 2019 Updated: January 23, 2019
The Supreme Court agreed Jan. 22 to hear arguments regarding the Trump administration’s partial ban on transgendered individuals serving in the armed forces, while at the same time, it lifted a lower court’s injunctions preventing the policy from coming into effect.
The ban was unveiled by President Donald Trump in July 2017. Jim Mattis, the secretary of defense at the time, then developed a more detailed policy. Critics of transgenders serving in the military say their unique personal situations are a distraction that lessens the effectiveness of the military as a fighting force.
Speaking on behalf of the U.S. Department of Defense (DOD), Lt. Col. Carla Gleason told CNN:
“It is critical that DOD be permitted to implement personnel policies that it determines are necessary to ensure the most lethal and combat effective fighting force in the world. DOD’s proposed policy is based on professional military judgment and will ensure that the U.S. Armed Forces remain the most lethal and combat effective fighting force in the world.”
The policy wouldn’t actually prevent all transgendered persons from working for the Department of Defense, according to Nicole Russell of The Washington Examiner.
The prohibition “is not exactly a ban on transgender people but a ban that places parameters around mental health so that those fighting in our armed forces can prioritize national security,” Russell writes. The ban affects individuals “diagnosed with gender dysphoria—a very specific, serious psychological condition that affects one’s mind and trickles down to behavior. Often individuals with gender dysphoria want to transition to the opposite sex.”
Some transgendered individuals can still serve in the military and receive medical care if their gender dysphoria diagnosis was rendered before the policy took effect. Some service members who received the diagnosis after joining the military are allowed to remain provided they stay healthy and avoid sex-transitioning, Russell explains.
The Supreme Court’s decision to review the case culminated in a 5–4 vote, with liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan voting to reject the review request. Ginsburg, 85, is recovering at home after surgeons excised two cancerous growths from a lung on Dec. 21. Chief Justice John Roberts, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh voted to hear the federal government’s appeal.
Although some of the justices voting to hear the case may not be totally committed to upholding the transgender policy, it seems unlikely they would dive into such politically fraught and controversial jurisprudential waters if their goal was merely to allow lower court rulings blocking the policy to remain in effect. Rejecting the petition for certiorari would have accomplished the same goal.
Interestingly, the Supreme Court did not stay the administration’s transgender policy while the case proceeds. In fact, the high court stayed injunctions issued by the lower court in the paired proceedings, Trump v. Karnoski and Trump v. Stockman, that purported to prevent the policy from being enacted.
When lower courts issued injunctions preventing the policy from taking effect, the administration leap-frogged the case directly to the Supreme Court instead of following the usual judicial appeal route, arguing the policy was vital for U.S. national security and needed to be implemented immediately while various legal challenges to it worked their way through lower courts.
While the Supreme Court’s ruling here has no value as legal precedent, it is an implicit rejection of the tendency in recent years for lower courts to arrogate to themselves the power to set national policy by vetoing presidential actions. In earlier days, it was thought that when courts deemed it necessary to issue injunctions to provide immediate emergency relief to litigants, those injunctions ought to be limited somehow, affecting only the parties involved or the jurisdictions, states, or judicial circuits in which the litigation was taking place.
But U.S. district judges today frequently enjoin federal policies that reach well beyond their home jurisdictions. A phalanx of federal judges blocked Trump’s travel ban by way or “national” or “universal” injunctions that prevented residents of terrorism-plagued countries from visiting the United States. Judges similarly attacked Trump’s crackdown on so-called sanctuary cities and on the Deferred Action for Childhood Arrivals (DACA) program that President Barack Obama created by executive action.
Lawmakers are acutely aware of the growing problem of unelected federal judges taking it upon themselves to veto presidential actions by issuing nationwide injunctions that reach far beyond the confines of a particular case.
In the previous Congress, then-House Judiciary Committee Chairman Bob Goodlatte (R-Va.) promoted the proposed Injunctive Authority Clarification Act of 2018 in an effort to restore the traditional understanding that a federal court’s injunctive power extends only to the protection of the parties before it.
Then-U.S. Attorney General Jeff Sessions directed federal prosecutors to try to curb these so-called “non-party” injunctions that allow judges to function as lawmakers.
Conservatives have long complained that left-leaning judges use their powers to advance left-wing policies after Democrats lose at the ballot box. Thus, Democratic Party policies still end up getting enacted even when they are rejected by the voters. Nationwide injunctions issued by politicized judges are especially problematic, conservatives argue, because they allow one judge to bring federal government operations to a halt.
A date for oral arguments in the transgender policy case has not yet been scheduled by the Supreme Court.
Supreme Court Green-lights NYC Gun Law Appeal
BY MATTHEW VADUM
January 24, 2019 Updated: January 24, 2019
The Supreme Court has decided to take up a gun rights case for the first time in nine years, this time a challenge to New York City’s law that prevents lawful gun permit holders from transporting their unloaded, locked up weapons outside the city limits.
The city residents who launched the original lawsuit wanted to practice shooting at target ranges outside the city or transport their firearms to second homes elsewhere in the state, but the city wouldn’t let them do what they wanted with their property.
Members of the pro-Second Amendment majority on the Supreme Court may be looking to flex their muscles.
The fact that the high court decided Jan. 22 to grant certiorari, or review, in the case obviously does not guarantee the court will overturn the New York City law, but it seems to suggest that the originalist, pro-gun rights justices who form a majority on the court are seriously considering reining in the law.
There is also no indication from the Supreme Court’s order list posted online that any of the court’s nine justices dissented from the decision to hear the case known as New York State Rifle and Pistol Association v. City of New York, file number 18-280.
Former U.S. Solicitor General Paul Clement, a veteran of Second Amendment battles, has urged the high court to expand on the constitutional gun rights it articulated in District of Columbia v. Heller (2010), which protects an individual’s right to possess a firearm, and McDonald v. Chicago (2012) which holds the right of an individual to “keep and bear arms” is constitutionally incorporated, or made applicable, to the states.
Clement said the Big Apple case “is a perfect vehicle to reaffirm that those decisions and the constitutional text have consequences.” Seventeen states back the case and have urged the Supreme Court to overturn the New York City law.
The decision to hear the case comes after the court turned back various challenges to state gun laws in the last few years.
In June 2016, the court refused to hear a challenge to the classification of various firearms as “assault weapons” by New York and Connecticut. In November 2017 the court declined to hear a challenge to Maryland’s assault weapons ban.
In February 2018 the court refused to take up a challenge to California’s 10-day waiting period for gun purchases, prompting a stiff rebuke from Justice Clarence Thomas who voted to hear the case. Thomas noted that California had the second-longest waiting period in the nation and it privileged peace officers and special permit holders by exempting them from the wait.
Quite apart from the New York City law, gun rights are under heavy assault in New York state, argued conservative journalist Charles C.W. Cooke.
“As part of a sweeping set of gun control proposals that are currently under consideration in New York State,” Cooke said, “a Brooklyn-based state representative named Kevin Parker has proposed a measure that, if enacted into law, would require anyone in New York applying for a handgun to hand over their social media username and password to the police.”
Americans need to pay attention to the proposal law because, “If New York passes this measure, it will essentially have nullified the Second Amendment within its borders.”
New York City has some of the most draconian gun laws in the nation.
As a summary in the court file notes, the city forbids residents from possessing a handgun without a license, and the only license the city makes available to most residents allows holders to possess a handgun only in their home or in transit to one of seven shooting ranges within the city.
This means permit holders are not allowed to transport a handgun to any place outside the city’s limits—even when the handgun is unloaded and locked in a container separate from its ammunition, and even when the owner seeks to transport it to a shooting range outside the city or to a second home in order to use it for self-defense.
Although the city claims the oppressive transport ban promotes public safety by limiting handguns on city streets, it has provided no actual evidence the regulation contributes to public safety, according to the summary.
“Moreover, even if there were such a risk, the City’s restriction poses greater safety risks by encouraging residents who are leaving town to leave their handguns behind in vacant homes, and it serves only to increase the frequency of handgun transport within city limits by forcing many residents to use an in city range rather than more convenient ranges elsewhere,” the summary stated.
A date for oral arguments in the gun rights case has not yet been scheduled by the Supreme Court.
Crusading Hong Kong Cardinal Receives US Award for Pro-Religious Freedom, Anti-Chinese Communist, Activism
BY MATTHEW VADUM
January 29, 2019 Updated: January 29, 2019
WASHINGTON—Honoring years of campaigning against Chinese Communist repression of religious freedom, the Washington-based Victims of Communism Memorial Foundation presented Roman Catholic Cardinal Joseph Zen Ze-kiun with a prestigious award for his heroic activism.
The bishop emeritus of Hong Kong received the foundation’s highest honor, the Truman-Reagan Medal of Freedom, at a Capitol Hill ceremony Jan. 28.
The medal is bestowed annually on “those individuals and institutions that have demonstrated a life-long commitment to freedom and democracy and opposition to communism and all other forms of tyranny,” according to the foundation, an educational and human-rights nonprofit organization. The late pope, Saint John Paul II, whose bold stand against world communism helped to topple the Soviet Union, was a past recipient of the medal.
Marion Smith, the foundation’s executive director, said Zen has “given voice to those denied religious liberty and has opposed the collusion of the Vatican and Chinese Communist Party on the matter of ecclesiastical appointments.”
Hong Kong Autonomy
The 87-year-old cleric said he was worried about the future of Hong Kong because the autonomy that Beijing promised to protect is slipping away.
Although “true” Marxism no longer exists in mainland China, “the atheist persecutor dictatorship remains,” and is cracking down on religion throughout the country, including in Hong Kong, whose preexisting rights and freedoms Beijing vowed to respect for at least 50 years in 1997, when the United Kingdom ceded the territory to China.
“Of the promised high degree of autonomy, very little remains,” Zen said. “We are soon to become just one of the cities in China.”
“I want to remember many of those heroes who are suffering at this moment in China or Hong Kong for voicing their claim for respect of their dignity, for freedom, and for democracy—those well-known and those anonymous heroes.”
Beijing seeks to subordinate all churches to Communist Party control and employs officials whose job is to oversee those religious institutions. The Chinese regime openly interferes in the affairs of that nation’s estimated 12 million Catholics and has arrested and persecuted church officials. Zen has been a leading critic of this policy.
In the fall, the Vatican and the ruling Communist Party reportedly signed a provisional deal allowing Beijing to effectively appoint a limited number of bishops, a move that has been criticized by that nation’s Christians, who warn that it will only encourage more officially-sanctioned religious repression.
In September last year, Zen described the pact as “a complete surrender” by the Vatican, as well as an “incredible betrayal” of the Catholic faith.
U.S. Rep. Chris Smith (R-N.J.), the co-chairman of the Victims of Communism Memorial Foundation, wrote in a Washington Post op-ed in December 2018 that China’s Communist Party is now engaged in “the most comprehensive attempt to manipulate and control—or destroy—religious communities since Chairman Mao Zedong made the eradication of religion a goal of his disastrous Cultural Revolution half a century ago.”
Zen told reporters Jan. 28 that he’s wary of the agreement, which suggests the Catholic Church in Hong Kong “will need a blessing from Beijing” to name bishops. “This suggests Hong Kong’s ‘one country, two systems’ principle is about to disappear,” he said.
“I hope the Vatican will stand their ground and appoint a bishop who can truly lead our diocese and protect our religious life.”
Zen said he is praying for Pope Francis, whom he met with at the Vatican earlier this month, to do the right thing. The Holy See hasn’t answered his letters, in which he objected to the pact about appointing bishops, he said.
“They’re making their own judgment on matters that I disagree with,” he said. “We Catholics are praying for [the pope]. With God’s blessings, we pray he won’t make mistakes.”
In an interview with The Epoch Times at the awards ceremony, Rep. Smith explained why the cardinal deserved to be honored.
“Cardinal Zen, for years, even before he became the bishop of Hong Kong, has been a tremendous leader for all faiths believing that religious freedom is a fundamentally recognized human right, which China has agreed to. He has spoken out on behalf of everyone, not just Catholics, and I think that makes a difference. We are all in this together.
“The repression that has been unleashed … has crushed so many people’s lives, not just through murder and through torture and long jail sentences, but their hopes and aspirations are thwarted because of this dictatorship.
“I think Cardinal Zen inspires all of us, people inside of China, as well as outside, to do more on behalf of religious freedom.”
A representative of the Falun Gong (also known as Falun Dafa) spiritual practice, which Zen has defended, said the cardinal deserves the award.
“Cardinal Zen is known to be a very righteous and outspoken figure in Hong Kong,” said Kan Hung-cheung of the Hong Kong Association of Falun Dafa.
Kan recalled how Zen spoke up when the Chinese regime began its persecution of Falun Gong in mainland China in 1999. The regime’s propaganda initially had an effect on Hong Kong’s population, and Falun Gong practitioners faced a hostile environment. Nonetheless, Zen defended them.
“When [the Chinese Communist Party] started the persecution of Falun Gong in 1999, the then-Bishop Zen came up to defend the universal values of truthfulness-compassion-forbearance [the core principles of Falun Gong] and the freedom of religion of Falun Gong, and strongly objected to and criticized the Hong Kong government on the intended suppression.”
Zen has helped to ameliorate the repression suffered by Falun Gong practitioners. “We very much appreciate his support of us in so many years,” Kan said.
Zen said that receiving the Truman-Reagan Medal of Freedom will give his fellow Chinese Catholics hope.
Zen was asked by The Epoch Times if his receipt of the award would have an impact on religious freedom in China and Hong Kong.
“Sure,” Zen replied, “because I got everybody to promise to pray for us and I hope you get informed and always be concerned. That’s important for us, because we need the support of everyone.”
California Parents Sue to Block ‘Inclusivity’ Instruction in Schools
BY MATTHEW VADUM
January 30, 2019 Updated: January 31, 2019
Concerned parents in Santa Barbara, California, have filed a federal lawsuit against a radical activist group and their local school board over taxpayer-funded “inclusivity” instruction. They characterize these sessions as public-school indoctrination that falsely portrays America, depicting the nation as a cruel, oppressive, and racist country.
The lawsuit, filed in federal court last month, was initiated by Fair Education Santa Barbara, a new nonprofit created by parents of children enrolled in the Santa Barbara Unified School District (SBUSD).
The school district and a left-wing nonprofit called Just Communities Central Coast (JCCC) are named as defendants in the lawsuit. According to its most recent publicly available IRS filing, JCCC, created in 2008, had gross revenues of $629,479 and employed eight staffers along with 43 volunteers in 2016.
The nonprofit says its teachings are aimed at closing what it characterizes as an achievement gap between Latino and white students. Critics counter that the group is attempting to radicalize students and encourage them to become political activists who see the world through the Marxist lens of race, sex, and class.
They add that the group teaches students and teachers that white people in the United States routinely oppress non-whites, men oppress women, Christians oppress non-Christians, heterosexuals oppress gays, and the wealthy oppress the poor.
According to attorney Eric Early, who is representing the parents, the lawsuit aims to halt what he calls a “creeping, social justice warrior, alt-left takeover of the Santa Barbara Unified School District.”
The lawsuit “is doing its best to stop this outfit, Just Communities Central Coast, from continuing to indoctrinate the teachers and young, vulnerable minds of the district with Alinskyist training and beliefs,” Early told The Epoch Times.
The late Saul Alinsky was a community-organizing guru who wrote the influential book on leftist tactics known as “Rules for Radicals,” which urged agitators to “rub raw the sores of discontent” to force “radical social change.” Both Barack Obama and Hillary Clinton acknowledge that Alinsky’s teachings inspired them.
“The bottom line is it’s time to stop the far-left indoctrination of the district’s teachers and students, and it’s time to bring to light what’s really going on in these classrooms to parents who had no idea before this came to light,” Early said.
Complaint: Violating Constitution and Civil Rights Act
The complaint filed in the lawsuit claims that “under the guise of promoting so-called ‘unconscious bias’ and ‘inclusivity’ instruction, JCCC’s actual curriculum and practices are overtly and intentionally anti-Caucasian, anti-male, and anti-Christian.”
According to training materials used by Just Communities, the United States is a profoundly racist country. White people enjoy a special “privilege” because they are white and gain “unearned access to resources that enhance one’s chances of getting what one needs or influencing others in order to lead a safe, productive, fulfilling life.”
“Oppression based on notions of race is pervasive in U.S. society and many other societies and hurts us all, although in different and distinct ways,” the material also states.
The legal complaint states the Santa Barbara school board has “wholeheartedly supported and promoted JCCC’s discriminatory program” and has doled out more than $1 million to it since 2013.
On Sept. 11, 2018, the school board “considered contracting with JCCC for [an] additional 4 years at a cost to the taxpayers of more than $1.7 million,” the complaint says. On Oct. 8, 2018, the board “renewed its contract with JCCC for another year at a cost to the taxpayers of nearly $300,000.”
SBUSD is violating the U.S. Constitution and Title VI of the Civil Rights Act of 1964 “as they discriminate on the basis of … race” by “intentionally supporting, promoting and implementing JCCC’s programming in SBUSD’s schools with knowledge of its racially discriminatory content and application, which has created a racially hostile educational environment for many teachers and students.”
Fair Education Santa Barbara wants the court to terminate Just Communities’ contract with the school district.
Just Communities: Systems, Not People
Jarrod Schwartz, executive director of Just Communities, hasn’t responded to The Epoch Times’ requests for comment as of press time.
But Schwartz previously denied the substance of the allegations against his group in December, according to the Santa Barbara Independent.
“It’s not who we are, not what we do,” Schwartz was quoted as saying.
“The work is not about blame or guilt.
“We’re very intentional about not saying people are oppressors. It’s systems that are unequal.”
A recent controversy at Santa Barbara City College suggests Santa Barbara’s education sector has become a hotbed of radicalism.
Santa Barbara City College adjunct professor Celeste Barber appeared on “Fox & Friends” with co-host Steve Doocy on Jan. 30 to recount how she was heckled and mocked at a Jan. 24 meeting of the college’s board of trustees. Attendees tried to shout down Barber, who is a member of Fair Education Santa Barbara, when she spoke out against the board’s ban on reciting the Pledge of Allegiance during meetings.
SBCC board President Robert Miller previously told Barber by email on Jan. 21 that the pledge was banned because it contains the phrase “one nation under God” and because it is “steeped in expressions of nativism and white nationalism.”
Barber told Doocy: “There is nothing white nationalist about the Pledge of Allegiance. There’s no reference to race, to gender to ethnicity. It’s all inclusive. That’s why school children around the country, thousands of them, recite it every day because it includes everybody who lives in this country.”
Apparently, public pressure forced SBCC to temporarily abandon the pledge ban. The college announced on Facebook the day before Barber’s television appearance that the pledge “will be recited” at board meetings “until some future date when the matter may be reconsidered by the Board.”
Early says he’s disgusted by what is happening in education circles in Santa Barbara.
“It’s unbelievable what is going on in Santa Barbara, and now, the public at large is getting to see this,” he said. “It’s outrageous what has been going on there.”