Federal Circuit Slaps Hand of Congress Away From Judges’ Wallets

After any Supreme Court ruling, inevitable accusations of judicial politicking ensue.  The focus on the identities of the voters often obscures the legal analysis behind the vote.  However, this public discourse also underscores the fact that, in theory at least, we believe that adjudicators should be unbiased.  What is law if not fair, and what is fairness without dispassionate adjudicators?

The founding fathers, aware of the danger of a corrupt judiciary, explicitly enshrined the notion of judicial independence in the Constitution, mandating that judicial compensation “shall not be diminished during their continuance in office.” U.S. Const. Art. III §1.  The thought was the congressional and executive branches should not be able to leverage the judiciary by threatening its compensation.  Additionally, reasonable compensation attracts talented lawyers to the bench, thereby improving the administration of justice.  So long as that compensation is maintained, judges will not be tempted to leave the bench–where subsequent private practice could be threatened by one’s previous judicial decisions, or vice versa. Continue reading “Federal Circuit Slaps Hand of Congress Away From Judges’ Wallets”

Supreme Court Hears Challenge to Electronic Surveillance

The Supreme Court heard oral arguments today in Clapper v. Amnesty International, a case that will decide whether a group of American lawyers have standing to challenge the 2008 law that expanded the authority of the U.S. government to engage in electronic surveillance of overseas aliens suspected of terrorism.  Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs fear that the government will end up overhearing some of their conversations with those foreigners who are being targeted.  The nine justices appeared to be closely divided on whether such fears are sufficient to support the plaintiffs’ standing claims.

In asking the Court to uphold their standing, the plaintiffs assert that if they are not permitted to challenge the surveillance law, then no one will be able to do so.  They may well be correct in that assertion, but that is immaterial. If no potential plaintiff can demonstrate that he has been injured by the law, the courts have no reason to examine claims that the law might infringe on someone else’s constitutional rights.  Of course, nothing prevents the plaintiffs from raising their concerns with appropriate officials in the Executive Branch and Congress, the branches of government with primary responsibility for national security matters.

The 2008 law is an outgrowth of the revelation by The New York Times in 2005 that the Bush Administration had adopted a Terrorist Surveillance Program (TSP), under which the overseas communications of suspected terrorists were being monitored.  Some critics charged that the TSP violated the requirements of the Foreign Intelligence Surveillance Act (FISA), a 1978 congressional statute that sought to regulate the use of electronic surveillance for national security purposes.  In response, Congress amended FISA in 2008 to establish a supplemental procedure whereby the Government could obtain judicial approval to engage in the sorts of overseas electronic surveillance undertaken pursuant to the TSP.

On the day that the amendments were enacted, several lawyers and several organizations (represented by the ACLU) filed a lawsuit seeking an injunction against the conduct of surveillance pursuant to the new law, the FISA Amendments Act (FAA).  They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles.  Named as defendants are several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA).  The federal appeals court in New York held that the plaintiffs had standing to challenge the FAA; in June, the U.S. Supreme Court agreed to review that decision. Continue reading “Supreme Court Hears Challenge to Electronic Surveillance”

Finger on the Pulse: From Our Blogroll and Beyond

  • Be careful what you confess to the SEC, say several former SEC enforcement officials (On the Case)
  • Tort reformers take aim at “merger tax” imposed by securities class action lawyers (D&O Diary)
  • How does a Supreme Court case on FCC and indecency affect FDA-regulated entities? Read on . .  (Drug & Device Law)
  • “The strongest deterrent against corporate wrongdoing is the prospect of prison time,” so says DOJ-Criminal Division head (and former WLF author) Lanny Breuer (FCPA Professor)
  • Coming to America?: Italian high court permits cellphone causes cancer lawsuit to proceed (Product Liability Monitor)
  • New York likely to continue ceding jobs, economic growth to Pennsylvania, other states by continuing ban on hydraulic fracturing (RegBlog)
  • Has there really been a software “patent litigation explosion”? (Truth on the Market)
  • DOJ-Antitrust reportedly investigating tech company “abuse” of standards-essential patents (Foss Patents)

Update: San Francisco Seeks Rehearing of 9th Circuit Loss on Cellphone Warnings

Cross-posted at Forbes.com’s WLF contributor site


To find out what it means to the City by the Bay, read the request for rehearing en banc City Attorney Dennis Herrera filed October 19 with the U.S. Court of Appeals for the Ninth Circuit. The request seeks a full-circuit reconsideration of a Ninth Circuit panel’s September 10 per curiam, unpublished, three-page ruling on the city’s cell phone warning ordinance. As we noted in a previous Legal Pulse post, the panel reversed the District Court and held that a law requiring retailers to inform customers that cell phones may cause cancer violated retailers’ First Amendment rights.

San Francisco urged the Ninth Circuit to

order rehearing en banc to give this important constitutional issue the treatment it deserves, to give San Francisco’s democratically elected policymakers the respect they deserve, and to provide jurisdictions in the circuit with the guidance they deserve.” (our emphasis)

The same city which two years ago banned Happy Meals feels righteous about their progressive, precautionary cell phone warning. The Board of Supervisors jumped ahead of California and the federal government, neither of which has felt the need to warn consumers about the alleged risks. The World Health Organization had classified RF Energy—which cell phones emit—as a “possible carcinogen,” and that was good enough for San Francisco. So of course the city felt dissed by the appeals court’s cursory dismissal. Continue reading “Update: San Francisco Seeks Rehearing of 9th Circuit Loss on Cellphone Warnings”

Four Takeaways from Sixth Circuit Ruling on False Claims Act Liability

Cross-posted at WLF’s Forbes.com contributor site

Federal and state governments are clearly “feeling their oats” in the area of False Claims Act (FCA) enforcement. FCA enforcement has never been more lucrative, with recoveries doubling to $9 billion over the last year. A large bulk of that profit has come from settlements, meaning that prosecutors’ theories and tactics face no judicial scrutiny. Big profits + little oversight = aggressive pursuit of increasingly novel FCA claims.

Challenges to government’s FCA theories and positive outcomes are increasingly few and far between, so we will actively assess and promote them whenever they arise. The U.S. Court of Appeals for the Sixth Circuit’s October 5 U.S. ex rel Williams v. Renal Care Group opinion firmly rejected federal efforts to expand key aspects of the FCA and offers some important lessons for FCA targets.

Background. The Justice Department intervened in a FCA qui tam action against a kidney dialysis provider (RCG), which had a wholly-owned subsidiary to offer dialysis equipment for home care. RCG created this subsidiary to take advantage of a particular method of Medicare reimbursement. The qui tam relator, and subsequently DOJ, argued that RCG’s creation of a subsidiary was a knowingly false and fraudulent attempt to claim federal Medicare reimbursement. A district court agreed, granting DOJ’s summary judgment motion and imposing nearly $83 million in fines. On appeal, the Sixth Circuit reversed the lower court and remanded the case. The unanimous decision provides four important takeaways: Continue reading “Four Takeaways from Sixth Circuit Ruling on False Claims Act Liability”

Compliant Media Plays Its Role in Activists’ War on Food

Cross-posted at WLF’s Forbes.com contributor page

Public relations demonization is an essential part of a healthy anti-business activist’s diet. Demonization is playing a key role in the expanding war on “Big Food” and consumer choice, which is why Washington Legal Foundation included it as a key “food group” in our issue ad, reproduced here. We also devote an entire section of our Eating Away Our Freedoms website to PR demonization.

Such PR tactics work best when reporters and editors suspend disbelief and present activists’ spin with little or no attention to opposing views. We saw a troubling example of this recently in a series of stories about how school districts in several states are trying to ban a snack food. These stories subtly advanced the pipe dream of every trial lawyer and nanny state activist: that some foods are “addictive.” Continue reading “Compliant Media Plays Its Role in Activists’ War on Food”

Judges Help Lawyers Circumvent SCOTUS Generic Drug Preemption Ruling

Guest Commentary

by Kelly Day Savage, Sedgwick LLP*

Many commentators (including this one) correctly predicted that savvy plaintiffs and sympathetic courts would create exceptions to the Supreme Court’s decision in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011)– that state-law tort claims against manufacturers of generic drugs based on insufficient product warnings are preempted by federal law–to permit plaintiffs to recover damages in otherwise barred actions.

In Whitener v. PLIVA, Inc., No. 10-1552, 2012 WL 3948797, at *4 (E.D. La. Sept. 10, 2012), the Federal District Court for the Eastern District of Louisiana created yet another legal loophole by permitting “a state-law tort claim based on alleged promotion of metoclopramide [the generic version of Reglan] for off-label purposes in violation of federal law” to escape preemption on defendants’ motion to dismiss. Continue reading “Judges Help Lawyers Circumvent SCOTUS Generic Drug Preemption Ruling”