The Ninth Circuit reversed the district court’s grant of summary judgment in favor of the defendant, the Department of Education. The plaintiff’s challenged a federal regulation under No Child Left Behind Act (NCLB) which permitted teachers who participated in alternative route teacher training programs, but have not yet obtained full State certification, to be characterized as “highly qualified teachers” under NCLB. (Alternative routes to certification refers to non-traditional programs that are typically designed for people who already hold at least a bachelor’s degree in a field other than education).
The “highly qualified teachers” designation is important for State compliance with NCLB. NCBLA provides funds to states and schools under several sections – on appeal was Title I funds, which supplement the educational needs of disadvantaged students (Slip Opinion pg. 5; see also 20 U.S.C. §§6301 et seq.). A central premise of NCLB is good teachers – defined by Congress as “highly qualified” teachers; the goal by the end of 2005-2006 school years was to have only “highly qualified” teachers instruct core academic classes in school districts receiving Title I funds (Id. § 6319(a)(2)). NCLB contains a lengthy definition of “highly qualified teacher” (see 20 U.S.C. § 7801(23)(A)(i) and 34 C.F.R. § 200.56).
Plaintiffs challenged language in CFR § 200.56. Specifically they objected to characterizing as “highly qualified teacher” an alternative route teacher who has not yet obtained full state certification, but who merely “demonstrates satisfactory progress toward full certification[.]” (pg. 9, quoting § 200.56(a)(2)(ii)(A)(4) (emphasis in original). The California regulations on the issue “mimic[ed] the federal regulation challenged[.]” (pg. 12).
The reason for the challenge of the CFR was it allowed teachers without full certification to teach. Plaintiffs contend that the CFR (upon which the 2004 California regulations were based) allowed a “disproportionate number of interns to teach in minority and low-income schools in California” in violation of NCLB (pg. 12).
The court applied the Chevron framework to analyze the CFR (see Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). The first question under the Chevron framework is to ask “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” (Id. at 842-843). The court determined that the intent of Congress was clear leaving the analysis at the first question (pg. 14).
The court found the CFR inconsistent with the intent of Congress in NCLB. The court stated the “precise question at issue” is the difference between the meaning of “has obtained” full State certification in the statute, 20 U.S.C. § 7801(23), and the meaning of “demonstrates satisfactory progress toward” full State certification in the regulation, 34 C.F.R. § 200.56(a)(2)(ii) (pg. 16). The analysis pitted language in the NCLB against language in the CFR interpreting NCLB.
Focused on this language the court held that by including in the definition an alternative route teacher who merely “demonstrates satisfactory progress toward” the requisite of “full state certification” the education secretary’s regulation impermissibly expanded the definition of “highly qualified teacher.”
Discussed above was only the majority opinion (look later for an analysis of the dissent). The opinion opens a new area of law at a timely moment in our nation. It also raises a thorny question for California on how to comply with NCLB and how to fill the teacher shortage without expanding the budget.
Berry v. Asture (Ninth Circuit; No. 09-35421)
The Ninth Circuit reversed a Tacoma district court’s affirmation of an ALJ’s dismissal of a veteran’s disability claim. Daniel Berry, a military veteran, filed a claim for disability insurance benefits under 42 U.S.C. § 423 and supplemental security income benefits under 42 U.S.C. § 1382. His claim was denied by the ALJ who concluded that whether Berry could pass a drug test was irrelevant to the determination of disability under sections 423 and 1382.
Berry worked for about 14 years as a military communications and computer supervisor and 6 years as a courier driver (Slip Opinion pg. 3). He left his job in 2000 and sough treatment for low back pain and an abnormal gait. The VA determined that Berry was entitled to “individual unemployability” based on his inability to pass a drug test due to his pain medications. Berry applied for social security disability in 2005; the SSA denied his claim. Berry sought review and at a 2007 hearing the ALJ concluded that the Dictionary of Occupational Titles didn’t mention drug testing as a requirement for his previous work as a courier. The ALJ therefore found that because Berry could return to his past relevant work as a courier he was not disabled. The district court affirmed the ALJ’s findings and conclusion.
The SSA’s regulations (a sequential evaluation for assessing disability claims described in 20 C.F.R. 404.1520) explain that “if you can still do your past relevant work, we will find that you are not disabled” 20 C.F.R. § 404.1520(a)(4)(iv). To make this determination the SSA compares its “assessment of your residual functional capacity with the physical and mental demands of your past relevant work.” Id. § 404.1560(b); see also id. § 404.1520(f) (same). Applying this standard the ALJ and district court found the drug screening merely a hiring practice relevant to whether Berry could obtain his past work but not relevant to whether he could perform it (pg. 5).
The Ninth Circuit rejected what it described as a “restricted readings of the law” (Id.). The court held that a “mandatory requirement that employers cannot hire people with a certain level of pain medication in their blood is in essence a physical demand of the job” (Id.). The court further focused on language under § 423(d)(2)(A), which states that an individual is disabled “only if his physical or mental impairment [is] of such severity that he is . . . unable to do his previous work [or] engage in any other kind of substantial gainful work . . . regardless of . . . whether he would be hired if he applied for work.” (pg. 6) The court concluded that the “language excluding consideration of whether a claimant who sought work would in fact be hired cannot be construed to include a hiring practice that is directly tied to the claimant’s disability.” (pg. 6). Any other reading the court cautioned would defeat the entire statutory scheme.
The main issue of disability hearings is often the extent of physical impairment. The court on these facts equates pain medication in the blood stream as an impairment to performing the job, which makes sense, why else would employers screen for drugs? This reading of the law appears more common sense then novel. It’s also nice to find a case that comes after a final determination of the merits and not on summary judgment.
Berry worked for about 14 years as a military communications and computer supervisor and 6 years as a courier driver (Slip Opinion pg. 3). He left his job in 2000 and sough treatment for low back pain and an abnormal gait. The VA determined that Berry was entitled to “individual unemployability” based on his inability to pass a drug test due to his pain medications. Berry applied for social security disability in 2005; the SSA denied his claim. Berry sought review and at a 2007 hearing the ALJ concluded that the Dictionary of Occupational Titles didn’t mention drug testing as a requirement for his previous work as a courier. The ALJ therefore found that because Berry could return to his past relevant work as a courier he was not disabled. The district court affirmed the ALJ’s findings and conclusion.
The SSA’s regulations (a sequential evaluation for assessing disability claims described in 20 C.F.R. 404.1520) explain that “if you can still do your past relevant work, we will find that you are not disabled” 20 C.F.R. § 404.1520(a)(4)(iv). To make this determination the SSA compares its “assessment of your residual functional capacity with the physical and mental demands of your past relevant work.” Id. § 404.1560(b); see also id. § 404.1520(f) (same). Applying this standard the ALJ and district court found the drug screening merely a hiring practice relevant to whether Berry could obtain his past work but not relevant to whether he could perform it (pg. 5).
The Ninth Circuit rejected what it described as a “restricted readings of the law” (Id.). The court held that a “mandatory requirement that employers cannot hire people with a certain level of pain medication in their blood is in essence a physical demand of the job” (Id.). The court further focused on language under § 423(d)(2)(A), which states that an individual is disabled “only if his physical or mental impairment [is] of such severity that he is . . . unable to do his previous work [or] engage in any other kind of substantial gainful work . . . regardless of . . . whether he would be hired if he applied for work.” (pg. 6) The court concluded that the “language excluding consideration of whether a claimant who sought work would in fact be hired cannot be construed to include a hiring practice that is directly tied to the claimant’s disability.” (pg. 6). Any other reading the court cautioned would defeat the entire statutory scheme.
The main issue of disability hearings is often the extent of physical impairment. The court on these facts equates pain medication in the blood stream as an impairment to performing the job, which makes sense, why else would employers screen for drugs? This reading of the law appears more common sense then novel. It’s also nice to find a case that comes after a final determination of the merits and not on summary judgment.
Timely Topic - Video Taping Police
Found this blog entry from Wise Law Blog after reading a local news story about a witness recording an accident.
It's an interesting question, one that seems to pit freedom of speech and state police powers against one another.
It's an interesting question, one that seems to pit freedom of speech and state police powers against one another.
Powell’s Books v. Kroger – (Ninth Circuit; No. 09-35153)
The Ninth Circuit issued its opinion in Powell’s Books et al. v Kroger et al. The court held that a pair of Oregon statutes intended to stop child sexual abuse in its early stages were facially overbroad and criminalized a substantial amount of constitutionally protected speech (slip opinion pg. 11). The statutes in question were the “furnishing” statute (ORS § 167.054), which criminalized providing children under the age of 13 with sexually explicit material, and the “luring” statute (ORS § 167.057) which criminalized providing minors under the age of 18 with visual, verbal, or narrative descriptions of sexual conduct for the purpose of sexually arousing the minor or the furnisher, or inducing the minor to engage in sexual conduct. The state argued that sections 054 and 057 were aimed at the sharing of “hardcore pornography or material that is obscene to minors alone” (pg. 12).
The court decided the case on the basis of the statute’s overbreadth and applied a three part test. The first prong focused on the scope of the statute (United States v. Williams, 553 U.S. 285, 293 (2008)), the second focused on whether the statutes criminalized a “substantial amount” of expressive activity (Williams at 297). Finally the court considered whether the statute was “readily susceptible” to a limiting construction that would render it constitutional. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 397 (1988).
The court found the scope of the statutes went beyond hardcore pornography. It held that the
Under the second prong the court used a rational basis test. It stated the framework under rational basis allows a prohibition on speech where the legislature finds “that exposure to material condemned by the statute is harmful to minors” (Ginsberg v. New York, 390 U.S. 629, 641 (1968)) even if the material is not obscene to adults (Am. Booksellers Found. v. Dean, 342 F.3d 96, 101 (2d Cir. 2003)). Otherwise speech that is neither obscene to youth nor subject to “some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. Jacksonville, 422 U.S. 205, 213-14 (1975). Under this framework the court held that sections 054 and 057 swept up material that “taken as a whole” had serious “literary, artistic, political, or scientific value for minors” (pg. 23).
The court found no reasonable limiting construction. Limited by the prohibition on “insert[ing] missing terms into the statute” (Foti v. City of Menlo Park, 146 F.3d 629, 639 (9th Cir. 1998); see also Frink, 653 P.2d at 557-58) and against “rewrite[ing] a state law to conform it to constitutional requirements” (Am. Booksellers, 484 U.S. at 397) the court held it couldn’t save the statute. The court addressed the argument by the state that it wouldn’t bring prosecutions against individual business like Powell’s Books (pg. 26). The court held that it “may not uphold the statutes merely because the state promises to treat them as properly limited.” (pg. 26).
The case relies on a well established framework for First Amendment overbreadth analysis. The case best stands as an example for legislative clarity in crafting restrictions on speech.
The court decided the case on the basis of the statute’s overbreadth and applied a three part test. The first prong focused on the scope of the statute (United States v. Williams, 553 U.S. 285, 293 (2008)), the second focused on whether the statutes criminalized a “substantial amount” of expressive activity (Williams at 297). Finally the court considered whether the statute was “readily susceptible” to a limiting construction that would render it constitutional. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 397 (1988).
The court found the scope of the statutes went beyond hardcore pornography. It held that the
“text and context show that the statutes cover far more than what might qualify as hardcore pornography. The statutory text makes no mention of “hardcore pornography,” but rather refers to “sexually explicit material” and a “visual representation or explicit verbal description or narrative account of sexual conduct.” (pg. 17).
Under the second prong the court used a rational basis test. It stated the framework under rational basis allows a prohibition on speech where the legislature finds “that exposure to material condemned by the statute is harmful to minors” (Ginsberg v. New York, 390 U.S. 629, 641 (1968)) even if the material is not obscene to adults (Am. Booksellers Found. v. Dean, 342 F.3d 96, 101 (2d Cir. 2003)). Otherwise speech that is neither obscene to youth nor subject to “some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. Jacksonville, 422 U.S. 205, 213-14 (1975). Under this framework the court held that sections 054 and 057 swept up material that “taken as a whole” had serious “literary, artistic, political, or scientific value for minors” (pg. 23).
The court found no reasonable limiting construction. Limited by the prohibition on “insert[ing] missing terms into the statute” (Foti v. City of Menlo Park, 146 F.3d 629, 639 (9th Cir. 1998); see also Frink, 653 P.2d at 557-58) and against “rewrite[ing] a state law to conform it to constitutional requirements” (Am. Booksellers, 484 U.S. at 397) the court held it couldn’t save the statute. The court addressed the argument by the state that it wouldn’t bring prosecutions against individual business like Powell’s Books (pg. 26). The court held that it “may not uphold the statutes merely because the state promises to treat them as properly limited.” (pg. 26).
The case relies on a well established framework for First Amendment overbreadth analysis. The case best stands as an example for legislative clarity in crafting restrictions on speech.
Alday v. Raytheon Company (Ninth Circuit; No. 08-16984)
The Ninth Circuit yesterday in Alday v. Raytheon affirmed a summary judgment order in favor of a class of retirees from Raytheon which required Raytheon to continue to pay insurance premiums. Since 1972 Raytheon and its predecessor Hughes Missile Systems paid insurance premium of healthcare coverage for early retirees and their dependents until age 65. This was done according to a series of collective bargaining agreements (CBAs). In 2004 Raytheon changed its policies and limits its contributions to premiums for this class of retirees and began charging the plaintiffs monthly payments for their healthcare. Naturally the retirees sued for breach of the CBAs and also alleged violations of the Labor Management Relations Act (29
U.S.C. § 185) and Employee Retirement Income Security (ERISA, 29 U.S.C. § 1132).
The district court granted the plaintiffs motion for summary judgment. The district court concluded that the CBAs obligated Raytheon to continue to pay the premiums. The appeals court described the dispute as a matter of contract interpretation.” The CBAs contained an express duration. In subsequent ERISA plans Raytheon reserved rights to itself to terminate the payments. The court however found repeated statements where “Raytheon expressly agreed to continue to pay premiums for medical insurance for the plaintiffs until retirees and their spouses became 65 years of age” (Slip Opinion pg. 15). The court held that Raytheon’s agreements therefore survived the expiration of the CBAs and couldn’t be unilaterally terminated by Raytheon using the rights it had reserved.
In a separate order Raytheon moved for judgment on the pleadings. The plaintiffs sought punitive and extra contractual damages, which the district court found them not entitled to. The Ninth Circuit stated that it didn’t need to determine whether the exceptions for such damages existed because the plaintiffs failed to alleged sufficient facts supporting their claim (pg. 15).
The court is rather run of the mill contracts interpretation opinion. It presents no new law.
U.S.C. § 185) and Employee Retirement Income Security (ERISA, 29 U.S.C. § 1132).
The district court granted the plaintiffs motion for summary judgment. The district court concluded that the CBAs obligated Raytheon to continue to pay the premiums. The appeals court described the dispute as a matter of contract interpretation.” The CBAs contained an express duration. In subsequent ERISA plans Raytheon reserved rights to itself to terminate the payments. The court however found repeated statements where “Raytheon expressly agreed to continue to pay premiums for medical insurance for the plaintiffs until retirees and their spouses became 65 years of age” (Slip Opinion pg. 15). The court held that Raytheon’s agreements therefore survived the expiration of the CBAs and couldn’t be unilaterally terminated by Raytheon using the rights it had reserved.
In a separate order Raytheon moved for judgment on the pleadings. The plaintiffs sought punitive and extra contractual damages, which the district court found them not entitled to. The Ninth Circuit stated that it didn’t need to determine whether the exceptions for such damages existed because the plaintiffs failed to alleged sufficient facts supporting their claim (pg. 15).
The court is rather run of the mill contracts interpretation opinion. It presents no new law.
U.S. v. Pineda-Moreno - Appealing to the Supreme Court
I was delighted to hear on the radio this Friday that Pineda-Moreno will appeal the Ninth Circuit's ruling handed down a couple of weeks ago. As outlined in my earlier blog post - the majority affirmed the district court's ruling, which held the Fourth Amendment allowed police to enter Pineda-Moreno's driveway and install a GPS tracking unit under his SUV without a warrant. His attorney plans to rely on the dissenting opinion in his appeal.
This case is likely to be heard by the Supremes because it presents a novel question of how the Fourth Amendment grows with technology. The use of GPS presents a new question of privacy not unlike the thermal imaging technology presented in Kyllo v. US (533 U.S. 27 (2001)). How the case will come out of the Supreme Court is out of my realm of guessing. I do know that the dissenting opinion is well reasoned and quite compelling. If enough justices are persuaded by it then Pineda-Moreno stands a good chance of a favorable result.
This case is likely to be heard by the Supremes because it presents a novel question of how the Fourth Amendment grows with technology. The use of GPS presents a new question of privacy not unlike the thermal imaging technology presented in Kyllo v. US (533 U.S. 27 (2001)). How the case will come out of the Supreme Court is out of my realm of guessing. I do know that the dissenting opinion is well reasoned and quite compelling. If enough justices are persuaded by it then Pineda-Moreno stands a good chance of a favorable result.
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Mt. Hawley Ins. – Remand or Remain?
The Ninth Circuit issued its opinion in Atlantic National Trust v. Mt. Hawley Ins. The court held that it lacked appellate jurisdiction to review a federal district court order remanding a case to state court based on a ground colorably characterized as a “defect” for purposes of 28 U.S.C. § 1447(c).
In October 2008 a fire caused $10million in damage to buildings owned by Lebanon Hardboard LLC. Atlantic National Trust and Tritalent Funding Group loaned Lebanon money and retained a security interest in the buildings. The secured parties required that Lebanon maintain fire insurance on the property and assign all insurance proceeds to the respective secured parties. At the time of the fire Lebanon had submitted an application for fire insurance to agents of Mt. Hawley Insurance, which had issued an insurance binder but not the actual policy before the fire. The binder failed to assign or mention Atlantic and Tritalent as payees.
In the suit that followed Atlantic filed a complaint against Mt. Hawley, its agents, Lebanon and Tritalent in Oregon state court. Atlantic gave Mt. Hawley and Lebanon courtesy copies of the complaint but didn’t serve them. Mt. Hawley filed a motion to remove to federal court, which Lebanon and Tritalent along with Atlantic later moved to remand back to state court.
In deciding whether the court could exercise appellate review the court used a two part test. The first part asks whether the remand order is based on grounds enumerated in § 1447(c). Next the court, under Supreme Court precedent in Powerex v. Reliant Energy Servs., Inc., 551 U.S. 224
(2007), determines whether the grounds that form the basis of the remand order are “colorable.” Only if a trial judge “exceeded his statutorily defined power” by remanding “a properly removed case on grounds that he had no authority to consider” can an appellate court exercise jurisdiction over the appeal (Slip Opinion pg. 7, citing Thermtron Prods. Inc. v. Hermansdorfer, 423 U.S. 336, 351 (1976)). The court found the district court based its order on a violation of the unanimity rule and this ground was both enumerated under § 1447(c) and colorable (i.e. wasn’t based on as docket congestion or abstention) (pg. 13,14).
The court’s opinion doesn’t create any new law. In fact it goes out of its way in the final pargarphs to make clear that some of Mt. Hawley’s arguments present unsettled law that the court doesn’t need to reach to decide whether it had jurisdiction (pg. 16). The opinion does serve as a great model for the framework to analyze a remand order under § 1447(c).
In October 2008 a fire caused $10million in damage to buildings owned by Lebanon Hardboard LLC. Atlantic National Trust and Tritalent Funding Group loaned Lebanon money and retained a security interest in the buildings. The secured parties required that Lebanon maintain fire insurance on the property and assign all insurance proceeds to the respective secured parties. At the time of the fire Lebanon had submitted an application for fire insurance to agents of Mt. Hawley Insurance, which had issued an insurance binder but not the actual policy before the fire. The binder failed to assign or mention Atlantic and Tritalent as payees.
In the suit that followed Atlantic filed a complaint against Mt. Hawley, its agents, Lebanon and Tritalent in Oregon state court. Atlantic gave Mt. Hawley and Lebanon courtesy copies of the complaint but didn’t serve them. Mt. Hawley filed a motion to remove to federal court, which Lebanon and Tritalent along with Atlantic later moved to remand back to state court.
In deciding whether the court could exercise appellate review the court used a two part test. The first part asks whether the remand order is based on grounds enumerated in § 1447(c). Next the court, under Supreme Court precedent in Powerex v. Reliant Energy Servs., Inc., 551 U.S. 224
(2007), determines whether the grounds that form the basis of the remand order are “colorable.” Only if a trial judge “exceeded his statutorily defined power” by remanding “a properly removed case on grounds that he had no authority to consider” can an appellate court exercise jurisdiction over the appeal (Slip Opinion pg. 7, citing Thermtron Prods. Inc. v. Hermansdorfer, 423 U.S. 336, 351 (1976)). The court found the district court based its order on a violation of the unanimity rule and this ground was both enumerated under § 1447(c) and colorable (i.e. wasn’t based on as docket congestion or abstention) (pg. 13,14).
The court’s opinion doesn’t create any new law. In fact it goes out of its way in the final pargarphs to make clear that some of Mt. Hawley’s arguments present unsettled law that the court doesn’t need to reach to decide whether it had jurisdiction (pg. 16). The opinion does serve as a great model for the framework to analyze a remand order under § 1447(c).
Nader and Ballot Access in Hawaii
The Ninth Circuit today affirmed a Hawaii district court’s grant of summary judgment in favor of the Elections Commissioner who denied Independent Candidates for President Ralph Nader and Michael Peroutka access to Hawaii’s ballot for the 2004 presidential election. Nader and Peroutka appealed the ruling arguing that Hawaii’s ballot access laws violated the Equal Protection Clause and/or the First and Fourteenth Amendments. The Hawaiian framework requires either a certain number of signatures or filing a petition 170 days before a primary to form a “qualified party” in order to be on the ballot.
The court quickly rejected the appeal. Under its first amendment analysis the court found that “[t]he Constitution (U.S. Const. Art. I, § 4, cl. 1) provides that States may prescribe‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives,’” and the Supreme Court has recognized that States retain the “power to regulate their own elections.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (slip opinion pg. 5). The court found that under this authority states can apply some restrictions to ballot access but will only apply strict scrutiny where the “magnitude of the asserted injury” warranted such review. It held that strict scrutiny did not apply to the plaintiff’s because the burden placed was de minimis.
The court also summarily dismissed the equal protection argument, calling it “unpersuasive” under existing authority. The opinion doesn’t make much new law. It largely relies on Supreme Court authority and its own factual analysis in determining how onerous the Hawaiian framework is. Third party candidates aren’t barred from the ballot, but in the future are reminded to follow the framework and not rely on the courts.
The court quickly rejected the appeal. Under its first amendment analysis the court found that “[t]he Constitution (U.S. Const. Art. I, § 4, cl. 1) provides that States may prescribe‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives,’” and the Supreme Court has recognized that States retain the “power to regulate their own elections.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (slip opinion pg. 5). The court found that under this authority states can apply some restrictions to ballot access but will only apply strict scrutiny where the “magnitude of the asserted injury” warranted such review. It held that strict scrutiny did not apply to the plaintiff’s because the burden placed was de minimis.
The court also summarily dismissed the equal protection argument, calling it “unpersuasive” under existing authority. The opinion doesn’t make much new law. It largely relies on Supreme Court authority and its own factual analysis in determining how onerous the Hawaiian framework is. Third party candidates aren’t barred from the ballot, but in the future are reminded to follow the framework and not rely on the courts.
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