Tag Archives: Ninth Circuit

Failure-to-warn not preempted by federal law

The Ninth Circuit (en banc) held that a state-law failure-to-warn was not preempted by the Medical Device Amendments to the Food, Drug, and Cosmetic Act.  The Ninth Circuit explained that the Amendments parallels the state-law claim, and therefore does not preempt, either expressly or impliedly.

What does this mean?  The federal court of appeals made a decision whether a federal court or a state court had jurisdiction over the failure-to-warn claims.  The failure-to-warn state-law claims arise when a medical manufacturer fails to warn the patients or its physicians of known-dangers of the medical device.

The arguments in the lawsuit were rooted on the MDA explicit preemption clause – which provided that federal courts had the power to hear the case exclusively.

So why was that preemption clause irrelevant to this situation?  The Supreme Court had previously ruled, in 3 preemption cases under the MDA, that the MDA does not preempt a state-law claim for violating a state-law duty that parallels a federal-law duty under the MDA.

 

If anything else, this is a very interesting read if you are interested in preemption rationales – express, field, and conflict.

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No Probable Cause vs. 1st and 4th amendment?

This is an interesting decision, allowing the first and fourth amendment claims of Port Militarization Resistance, an anti-war group, to go ahead.

The lawsuit arose when allegedly two civilian U.S. Army employees (Towery and Rudd) spied on the anti-war members and secretly disrupted protests.  The anti-war group was protesting the use of sea ports in Washington State for shipments of military supplies to Iraq and Afghanistan.

The lawsuit alleges defendants befriended the anti-war group and “influenced and directed” tactics to disrupt protests without cause, and that defendants broke into a confidential attorney-client list serve.

The district court dismissed most of the claims, but allowed First and Fourth Amendment allegations against Towery and Rudd to go ahead, despite their motion for qualified immunity.  The Ninth Circuit Court of Appeals affirmed.

The Ninth Court stated,

“It is clearly established that intentionally enabling arrests without probable cause in order to suppress speech violates the First Amendment,” the unsigned and unpublished opinion from Seattle states.

“Plaintiffs have pled a plausible violation of their clearly established First Amendment rights,” the ruling states. “Plaintiffs have alleged that defendants ‘deterred or chilled the plaintiff’s political speech’ and that such deterrence motivated defendants’ conduct.”

via Courthouse News Service.

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California Can Make Cuts To Medi-Cal Health Care Program

The Ninth Circuit held that California could make cuts to the Medi-Cal Health Care program and vacated all injunctions against California.  The opinion can be accessed here.  As the three-judge panel stated,

Medicaid, as a voluntary program, does not create property rights.

In 2011, plaintiffs (a Medi-Cal beneficiary, 5 pharmacies, a pharmacy organization, an independent living center, and a CA association of independent living centers) sued California and the U.S. Dep’t of Health and Human Services to block the cuts under the Medicaid Act.  The district court granted injunctions against California, blocking the enactment of the cuts.  The Ninth Circuit, on appeal, vacated these injunctions.

The Ninth Circuit stated that Chevron U.S.A v. Natural Resources Defense Council requires deference to Sebelius’ interpretation of California’s amendment to its Medicaid plan – called a state plan amendment.  The Ninth Circuit stated,

Considering all the evidence of Chevron-esque delegation in these cases, we hold that the balance tips to the side of deference – both to the secretary’s implicit interpretation that states are not required to follow any specific methodology in submitting SPAs [state plan amendment] and to its explicit determination that the SPAs at issue comply with federal law.

The decision notes that Medicaid “is a colossal undertaking,” with joint funding from the U.S. government and the states.

Congress explicitly granted the secretary authority to determine whether a state’s Medicaid plan complies with federal law.

The secretary understands the [Medicaid] Act and is especially cognizant of the all-important yet sometimes competing interests of efficiency, economy, quality of care, and beneficiary access.

The Ninth Circuit also concluded that plaintiffs’ claims that California violated the supremacy clause was unlikely to prevail under Douglas v. Independent Living Center (2012).  The Court explained,

Even assuming that the supremacy clause provides a private right of action – the secretary has reasonably determined that the state’s reimbursement rates comply with § 30(A) [of the Medicaid Act].

via Courthouse News Service.

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“Show Me Your Papers” Challenges Moves on to the Ninth Circuit

A coalition of civil rights groups has appealed a federal court decision that would allow the most-notorious portion of Arizona’s anti-immigrant law to go into effect.

The appeal, with the U.S. Court of Appeals for the Ninth Circuit, was filed eight days after U.S. District Court Judge Susan Bolton denied a request to block the “show-me-your-papers” provision of the Arizona law, S.B. 1070, from going into effect later this month. The coalition today asked the Ninth Circuit to suspend the provision for the duration of its appeal.

The provision requires police to verify the citizenship or immigration status of people arrested, stopped or detained if there is a reasonable suspicion that they are in the country unlawfully. In June, the Supreme Court confirmed that three other key provisions of S.B. 1070 are unconstitutional, but declined to block section 2B, the “show me your papers” provision. Several other parts of SB 1070 are blocked by separate injunctions issued by the district court.

“The racial profiling provision threatens the civil rights of many communities of color in Arizona. For the growing Asian American and Pacific Islander community in Arizona, this law will cause irreparable harm to families and individuals, making communities less safe,” said Jessica Chia, staff attorney at the Asian American Justice Center. “AAJC will continue to fight against this discriminatory law until the court rightfully strikes it down.”

“The plaintiffs in this case have raised substantial claims against section 2B and the courts should not allow the provision to go into effect without even considering those claims, which is what will happen if the court of appeals denies the request we are filing today,” said Omar Jadwat, senior staff attorney with the ACLU Immigrants’ Rights Project. “As the history of this litigation shows, we are determined to fight SB 1070 and continue to work to preserve all Arizonans’ rights to be free from harassment and profiling.”

The coalition includes the ACLU, the ACLU of Arizona, NILC, MALDEF, the National Day Laborer Organizing Network, the Asian Pacific American Legal Center and the Asian American Justice Center, both members of the Asian American Center for Advancing Justice, as well as the NAACP.

via ImmigrationProf Blog: “Show Me Your Papers” Challenges Moves on to the Ninth Circuit.

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Further Prop. 8 review denied by court of appeals

The Ninth Circuit Court refused on Tuesday to reconsider the decision in February striking down California’s Proposition 8, the voter-approved ban on same-sex marriages in the state.  The Court, however, put the case on hold for at least 90 days to allow the proponents of the ballot measure to seek to appeal to the Supreme Court.  The denial came over the dissents of three judges, who called this a “momentous case” and argued that the divided decision of a three-judge panel had resulted from a “gross misapplication” of a key Supreme Court ruling on gay rights.  One other judge dissented, but did not join the three in their objection.  The combination of orders and separate opinions can be read here.

The ruling will set the stage for a major test in the Supreme Court, although the panel ruling is a narrow one that explicitly avoided deciding whether gays and lesbians have a constitutional right to get married.  The two judges who were in the majority in ruling against Proposition 8 briefly defended the narrowness of their decision in a concurring opinion Tuesday.

After the panel decision, the supporters of the measure had asked the full Circuit Court to reconsider the case en banc.  At the request of an unidentified judge, a vote was taken among the 25 judges eligible to vote on the question, and a majority of 13 would have been required to grant such review.  The final vote thus appeared to be 21-4, because the dissenting member of the panel favored en banc review, but did not join the dissenting opinion by three other judges.

via Further Prop. 8 review denied by court of appeals (FINAL UPDATE) : SCOTUSblog.

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