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Rule 68 does not moot case

In Emily Diaz v. First Am. Home Buyers Protection Corp., No. 11-57239 (9th Cir. Oct. 4, 2013), the 9th Circuit Court of Appeals ruled that an offer of judgment (Rule 68) did not make a plaintiff’s case moot.  This is an important case because it provides guidance when considering when to file summary judgment when a Rule 68 offer has been made.

Rule 68 is when a party offers opposing party a judgment for full satisfaction that the opposing party could recover at trial.  In this case, First American offered $7,019.32 plus costs.  Diaz, the plaintiff, declined this offer.  Thereby the issue was whether offering the money made the lawsuit moot.

The 9th Circuit Court of Appeals held that the First American’s offer, even if it fully satisfied the plaintiff’s claim, did not make the case moot.  When reaching this conclusion the 9th Circuit cited Kagan’s dissent in Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528-29 (2013).

‘[A] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’ By those measures, an unaccepted offer of judgment cannot moot a case.   When a plaintiff rejects such an offer – however good the terms – her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer – like any unaccepted contract offer – is a legal nullity, with no operative effect.”

Id. at 1536 (citation omitted).

via Courthouse News Service.

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Prop. 8: official proponents of Prop 8 could not appeal

The Supreme Court decided Hollingsworth v. Perry, No. 12-144 (2013), holding that petitioners did not have standing to appeal Proposition 8.

As background, California granted same-sex marriages.  However, this was later reversed through Proposition 8.  Under Proposition 8, California Constitution was changed to define marriage as a union between a man and a woman.  The California Supreme Court held that Proposition 8 left the rights of same-sex couples largely undisturbed, reserving only the official designation of the term marriage for the union of opposite-sex couples.

The parties in this lawsuit help explain the Supreme Court’s decision.  Respondents (Plaintiffs), two same-sex couples who wished to marry, filed a lawsuit in federal court. Defendants (including the Governor, Attorney General, and other officials) did not decent the law.  Nevertheless, Defendants continued to enforce the law.

Petitioners, who appealed, were official proponents of Proposition 8.  Petitioners, instead of Defendants, defended Proposition 8.  The District Court then held that Proposition 8 was unconstitutional.    Petitioners (not Defendants) appealed.

Now the question is: do these Petitioners have standing in order to be involved in this case?  The California Supreme Court held that Petitioners were authorized to appear and assert the state’s interest in the validity of Proposition 8.  The Ninth Circuit then affirmed the District Court’s decision, ruling that Proposition 8 was unconstitutional.

The Supreme Court ruled that Petitioners did not have standing.  First of all, when Proposition 8 was ruled unconstitutional two things happened: Respondents (Plaintiffs) no longer had an injury to redress because they won; and Defendants chose not to appeal.

Petitioners did not have a personal and individual injury.  There was no “direct stake” in the outcome of the appeal.  In other words, they were pushing a generalized grievance.  Consequently, Petitioners could not appeal.

The Supreme Court explained,

No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their] advocacy,” that is not a “particularized” interest sufficient to create a case or controversy under Article III.

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DOMA is unconstitutional

The Supreme Court opinion on United States v. Windsor, No. 12-307 (2013) held that DOMA was unconstitutional under the Fifth Amendment when it failed to recognize same-sex marriage federally.

It is important to note that the reasoning behind this ruling was based on the fact that there are States which granted same-sex marriage but were not recognized federally.  By failing to recognize those same-sex marriages, the government was discriminating against same-sex married couples.  In doing so, same-sex married couples were deprived of the benefits and responsibilities of over 1,000 federal laws.  Including protections under criminal law and provide financial harm to children of same-sex couples.

The Supreme Court noted that the State’s authority to regulate marriages was being squashed by the federal government.  Based on precedent, “[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.”  “The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.'” (italics added).

Instead of respecting the State’s authority to regulate marriages, DOMA’s purpose was to “impose a disadvantage, a separate status, and so a sigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Given that DOMA’s purpose was to impose restrictions and disabilities, the Supreme Court stated that “[b]y doing so [DOMA] violates basic due process and equal protection principles.”

The Supreme Court found that

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.  The principal purpose is to impose inequality, not for other reasons like governmental efficiency….

DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.  By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.

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The Voting Rights Act

The Supreme Court ruled on Northwest Austin Municipal Utility District No. 1 NAMUDNO v. Holder, No. 08-322 (2013), answering the question of the whether a district (not the state) could seek the bailout provision under the Voting Rights Act.

The decision of the Supreme Court is important here because it did not rule on the issue of whether the Voting Rights Act was constitutional.

Instead, the Supreme Court ruled that the district could use the “bailout” provision under the Voting Rights Act, even if the state could not.  In holding this, the Supreme Court explained that the district fell under the definition of a “State of political subdivision,” and thereby could use the “bailout” provision.

Generally, the Voting Rights Act requires certain states to get pre-clearance before making any changes to elections.  One of these states includes Texas.  However, there is a provision (“bailout”) that states that the state can seek a declaratory judgment from a three-judge panel District Court in Washington, D.C.  42 USC 1973(b)(a)(1), 1973c(a).  The bailout provision requires:

  • The state has not used any forbidden voting test for the last 10 years;
  • The state has not been subject to a valid objection under the Voting Rights Act section 5;
  • The state has not been found liable for other rights act violations; and
  • The state has engaged in constructive efforts to eliminate intimidation and harassment of voters.

The Voting Rights Act only authorizes a bailout suit by a State or political subdivision.  42 USC 19873b(a)(1)(A).

Here, the government argued that under the statutory definition of the bailout provision, a district could not seek a bailout provision.  The Act provided that a “‘political subdivision’ shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.” Section 14(c)(2).  The government argued that because the district was not a county or parish and did not conduct its own voter registration, the district was not covered under the Act.

However, the Supreme Court disagreed.  Citing previous Supreme Court cases, the Supreme Court stated the definition of a “political subdivision” must be broad and not limited to the statutory definition.  The Supreme Court explained,

Our decisions have already established that the statutory definition in [section] 14(c)(2) does not apply to every use of the term “political subdivision” in the Act.  We have, for example, concluded that the definition does not apply to the pre clearance obligation of [section] 5.

There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of [section] 5 because it did not itself register voters and hence was not a political subdivision as the term is defined in [section] 14(c)(2) of the Act… [O]nce a State has been designed for coverage, [section] 14(c)(2)’s definition of political subdivision has no operative significance in determining the reach of [section] 5.

(markings in original).  Taking a broad approach, the Supreme Court ruled that a district was a political subdivision.

In addition, the Supreme Court noted that the 1982 amendments provided that even if the state could not bailout, a political subdivision might be able to assuming it met the bailout requirements.

via We gave you a chance: Today’s Shelby County decision in Plain English : SCOTUSblog.

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Federal funding restrictions and the First Amendment

Generally, it is well-known that under the Spending Clause of the Constitution if you want federal funding, you have to abide by the conditions/limitations imposed by the government.  For instance, you could receive a federal grant as long as you submit X reports to the government every month.  And generally, if you are opposed to these policies/conditions, you always have the option of declining the grant.

Think, for example, of the grant offered to States if they adopt the federal Affordable Care Act Medicaid extensions.  Some States have agreed to expand, while others have rejected the expansion.  The States that choose to expand will receive monetary aid, while the rejecting States will not. See the May 29, 2013 image here.

The Supreme Court has highlights a new twist.  In Agency for Int’l Devep. v. Alliance for Open Society Int’l, No. 12-10 (2013), the Supreme Court has held that in some situations these restrictions run foul of the First Amendment – Freedom of Speech.

The Alliance for Open Society case deals with a organization receiving federal funds to combat AIDS/HIV.  As a condition for this federal funding, the government required the organization to adopt policies against prostitution and sex trafficking.

Justice Roberts pointed to how the court has interpreted the First Amendment.  Pursuant to the Freedom of Speech, the government is prohibited from telling people what they must say.  See, e.g., Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 US 47, 61.  Consequently, the Supreme Court held that the requirement violated the First Amendment.

The question for the Supreme Court then focused on whether the government can still impose that requirement as a condition for receipt of federal funding.  The Supreme Court explained,

As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds….

At the same time, however, we have held that the Government “‘may not deny a benefit to a person on the basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit.'”… In some cases, a funding condition can result in an unconstitutional burden on First Amendment rights.

This is a fine line being followed by the Supreme Court.  The Supreme Court distinguished cases where the government infringes the Freedom of Speech with cases where Congress is merely deciding not to subsidize certain actions/scenarios/circumstances.

The Supreme Court explains these different scenarios as follows:

We explained that Congress can, without offending the Constitution, selectively fund certain programs to address an issue of public concern, without funding alternative ways of addressing the same problem.  In Title X, Congress had defined the federal program to encourage only particular family planning methods.  The challenged regulations were simply “designed to ensure that the limits of the federal program are observed,” and “that public funds [are] spent for the purposes for which they were authorized…

The regulations governed only the scope of the grantee’s Title V projects, leaving it “unfettered in its other activities.”  … The TitleX grantee can continue to . . . engage in abortion advocacy; it simply is required to conduct those activities through programs that are separate and independent from the project that receives Title X funds.” … Because the regulations did not “prohibit[] the recipient from engaging in the protected conduct outside the scope of the federally funded program,” they did not run afoul of the First Amendment.

(italics and marks in original).

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No citizenship proof for voters

The Supreme Court decided Arizona v. Inter Tribal Council of Arizona, where the Supreme Court ruled that federal law preempted Arizona’s law.  In other words, it held that Arizona’s requirement of proof of citizenship was in conflict with the National Voter Registration Act.  Thereby, that requirement was rejected.

Arizona’s law required registered voters to show proof of citizenship.  Under Arizona’s law, a person must be a citizen to be eligible to vote.  This case concerned only how Arizona was trying to enforce that qualification.  In 2004, Arizona voters passed Proposition 200, which provided that voters must “present proof of citizenship when they register to vote and to present identification when they vote on election day.”  If an individual does not provide “satisfactory” proof of citizenship, then the application must be rejected.

The issue here is how this citizenship-proof law and the National Voting Registration Act work together.  The Voter Registration Act required that states must “accept and use” the Federal Form.  The Voter Registration Act provided that a state shall “ensure that any eligible applicant is registered to vote in an election… if the valid voter registration form of the applicant is post-marked.” (italics in original).

Although the Voter Registration Act provides that states can create their own state-specific voter-registration forms, the Voting Registration Act also places a backstop.  The Supreme Court explained that,

No matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.

Based on this language, the Supreme Court rejected Arizona’s arguments.  If Arizona, or any other state, could demand Federal Form applicants additional pieces of information, “the Federal Form ceases to perform any meaningful function, and would be a feeble means of ‘increas[ing] the number of eligible citizens who register to vote in elections for Federal Office.” (quotations and marks in original).

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Gene patents: Sup.Ct. provides a guide

Some time ago, I posted about a case about patenting genes.  In Ass’n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 (2013), Myriad was trying to patent genes.  Their argument, in summary, was that because they isolated a gene, they had the right to patent it.  The question is really whether it is a product of nature or manmade.  Here, the Supreme Court stated some DNA genes could not be patented, while another was.

The decision explained under what circumstances DNA can be patented and cannot be patented.  The DNA (BRCA1 and BRCA2) in this case involved genes which can involve mutations that increase the likelihood of breast cancer.  Regarding these genes, the Supreme Court ruled against the patent because it held that merely isolating the DNA gene does not make the DNA segment patent eligible.

The Supreme Court explained that Myriad isolated the gene and identified its precise location and genetic sequence.  Myriad did not create or alter the genetic information encoded in the genes (BRCA1 and BRCA2).  In addition, the Supreme Court noted that a new nonnatural occurring molecule is not created by isolating the DNA.  The patent focused on the information contained in the genetic sequence.  If another where to use the process, the same molecules in the genetic sequence would be seen.

However, the case also discussed a different synthetic gene, which the Supreme Court ruled could be patented.  Myriad created cDNA molecule by removing the introns from the DNA sequence.  The creation of cDNA resulted in a exons-only molecule.

 

Exons-only molecules are not naturally occurring.  Both parties agreed that cDNA differs from natural DNA in that the non-coding regions have been removed.  Even though the nucleotide sequence of cDNA is dictated by nature, the Supreme Court held:

the lab technician unquestionably creates something new when cDNA is made.  cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA form which it was derived.  As a result, cDNA is not a “product from nature” and is patent eligible under s101, except insofar as very short series of DNA may have no intervening introns to remove when creating cDNA.  In that situation, a short strand of cDNA may be indistinguishable from natural DNA.

(italics added).  Consequently, the Supreme Court held that cDNA was patentable.

So what does this mean?  When genes are not altered or created, the gene is not patentable.  When a company isolates the DNA to figure out where it is in the gene and its sequence, the company is not creating a new DNA or altering the DNA.

So how can a gene be altered or created?  When the technician is creating a cDNA sequence from mRNA results in an exons-only molecule that is not naturally occurring.

via Details on Association for Molecular Pathology v. Myriad Genetics, Inc. : SCOTUSblog.

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Non-Citizens and Deportation for Convicted Crimes

Moncrieffe v. Holder, 11-702 (2013) is an interesting Supreme Court decision.

The Immigration and Nationality Act (“INA”), 8 USC 1101, provides that a non-citizen who has been convicted of an aggravated felony may be deported from the US.  As way of background, ordinarily, a non-citizen when facing deportation, may ask for discretionary forms of relief and cancellation of the removal.  The exception is for aggravated felonies.

This case comes because among the crimes that are classified as aggravated felonies are illicit drug trafficking offenses.  The issue the Supreme Court addressed is whether this category includes state criminal statutes that extends to the social sharing of a small amount of marijuana.

In a 7-2 vote, the Supreme Court rejected the government’s position. The court explained that if a state crime of marijuana distribution does not closely match the federal crime of distribution, in a direct comparison of what each covers, it is not an “aggravated felony.”

In this case, the non-citizen came to the US legally in 1984.  In a traffic stop, the police found 1.3 grams of marijuana.  The non-citizen pled guilty to the charge of possession with the intent to distribute.  Under Georgia statute, this violation may be punishable up to 5 years.  Given this, the government alleged this was an aggravated felony.

The Supreme Court rejected this argument because it held the generically defined federal crime is “any federal punishable under the Controlled Substances Act.” 18 USC 924(c)(2).  “[N]ot just any offense ‘under the CSA’.”

The Supreme Court further explained,

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as ‘illicit trafficking in a controlled substance,’ and thus an ‘aggravated felony.’  Once again we hold that the Government’s approach defies ‘the commonsense conception’ of these terms….

Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, ‘does not fit easily into the ‘every day understanding’ of ‘trafficking,” which ordinarily… means some sort of commercial dealing.’…

Nor is it sensible that a state statute that criminalizes conducted that the CSA treats as a misdemeanor should be designated an ‘aggravated felony.’  We hold that it may not be.

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Generic and Branded Drugs

This is an interesting case that the Supreme Court will hear today.  Does a branded drug maker, faced with a potential competitor who makes generic drugs, act illegally if it pays money to the competitor in a deal that postpones the sale of the generic drug for a period of years?

The FTC says it is unlawful, while the generic and branded drug makers disagree.

So why does this matter?  Everyone knows that generic drugs are cheaper than branded drugs.  As the NY Times reported, “73 percent of consumer spending” is spent on branded drugs.  When a generic drug, which costs about 15% of the branded drug cost, enters the market, branded drug makers lose about 90% of their profits.

In FTC v. Actavis, Inc., the 11th Circuit Court of Appeals held companies holding the patent to the branded drug could make those payments to the generic drug maker.  In this case, the generic drug maker challenged the patent of the branded drug maker in court.  Both drug makers came to a settlement, whereby the generic would get some payment as long as the branded drug maker could continue to sell its branded drug exclusively for a time period.

In sum, the 11th Circuit reasoned, “absent sham litigation or fraud” when the anticompetitive effects of a patent fell within that scope, there is no antitrust claim. Further, since there was a settlement, the 11th Circuit stated that it would be hard to predict what the effect would have been.  And since the settlement was with one generic drug maker, this did not impact other generic drug makers from selling the generic version of the drug.

Now, the Supreme Court has to decide on this issue.

via Generic-Brand Name Drug Case Goes to Supreme Court – NYTimes.com.

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