Category Archives: Fifth Amendment

January 29, 2021

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With the 117th Congress now fully seated, the private sector is set to face greater scrutiny from the Legislative Branch than it has in a decade, as Democrats regain control of both chambers of Congress and the presidency for the first time since 2010. Democrats are assuming unitary control as a number of hot-button issues involving private sector entities are front and center in the public discoursemany of which are drawing bipartisan interestincluding COVID-19 relief spending, climate change, healthcare and prescription drug costs, cybersecurity breaches, and regulation of big technology companies. And, because Democratic committee chairs are likely to spend significantly less time investigating the Executive Branch under a Biden Administration, additional staff resources will be deployed on the private sector, which should expect the spotlight to be even brighter.

Unlike receiving a civil complaint or compulsory process in an Executive Branch investigation, when a congressional letter or subpoena arrives, targeted organizations may have only a matter of days to consider their response and devise a strategy, and often must do so amid significant media scrutiny and public attention. Congressional investigations often involve public attacks on a companys reputation, which can imperil the goodwill upon which the company has built its business and maintains its competitive advantages. It is therefore crucial that potential targets evaluate their exposure to likely investigations in the 117th Congress, familiarize themselves with how such inquiries unfoldincluding the rules and procedures that govern themand consider potential responses.

To assist possible targets and interested parties in assessing their readiness for responding to a potential congressional investigation, Gibson Dunn presents our view of the new landscape that the 117th Congress will present. We also present a brief overview of how congressional investigations are often conducted, Congress underlying legal authorities to investigate, and various defenses that can be raised in response. In addition, we discuss missteps that subjects of investigations sometimes make when receiving an inquiry, and best practices for how to respond.

As expected when Democrats regained control of the House Chamber in 2019 after eight years of GOP control, numerous private sector industries quickly saw a sharp uptick in congressional scrutiny. Moreover, as we explained in a prior client alert, upon assuming control of the House in the last Congress, Democrats expanded the investigative tools at their disposal in a number of ways. These expanded authorities have been carried over to the 117th Congress, and certain others have been added. Committees will organize over the coming weeks, and additional investigative tools could be added to their arsenals.

Expanding investigative powers: In the rules package for the 117th Congress, Democrats have continued the trend of expanding and strengthening their investigative powers. This includes permitting certain committees to issue subpoenas before the committees are formally organized. Specifically, the House has authorized the Chair of the Committee on Oversight and Reform to issue subpoenas related to the investigation into the accuracy and timing of the 2020 census, and the Chair of the re-authorized Select Subcommittee on the Coronavirus Crisis has the power to issue subpoenas related to its investigation into political interference at the Department of Health and Human Services and Centers for Disease Control and Prevention.

In addition to the strengthened subpoena power, Democrats will maintain broad deposition authority. In the prior Congress, Democrats expanded the Houses deposition authority by permitting staff counsel to conduct depositions and removing the requirement that a member be present during the taking of a deposition. As we previously noted, such broad authority makes it more difficult for minority members to affect, influence, or otherwise hinder investigations to which they are opposed. It is also important to remember that, unlike in the Senate, nearly every House committee chair is empowered to issue a deposition subpoena unilaterally, that is, without the ranking members consent or a committee vote, after mere consultation with the ranking member.

Likely investigative priorities: As for investigative priorities, a wide array of topics is likely to be covered by House committees; however, Democrats have signaled that immediate priorities include investigating issues related to climate change and the ongoing coronavirus pandemic response. To that end, in addition to re-authorizing the House Select Subcommittee on the Coronavirus Crisis, the House also re-authorized the Select Committee on the Climate Crisis. The Subcommittee on the Coronavirus Crisis has been actively investigating various aspects of the pandemic since it was established by the CARES Act; it has a full suite of authorities, including subpoena power, pursuant to its organizing resolution. While much of the Subcommittees focus during the last Congress was on the governments pandemic response, we expect more of the Subcommittees attention will turn to private actors that are involved in the response or recipients of relief funds.

The Select Committee on the Climate Crisis was formed to deliver climate policy recommendations to Congress and was given the jurisdiction to study, make findings, and develop recommendations on policies, strategies, and innovations to tackle the climate crisis.[1] The Committee has the power to hold public hearings in connection with any aspect of its investigative functions.[2] The Committee does not have subpoena power of its own, but it can request that other committees issue subpoenas. The Committee has thus far focused on holding climate policy hearings on topics such as clean energy, industrial emissions, and the health impacts of the climate crisis rather than on conducting investigations. However, the Committee may turn its attention towards the private sectors impact on climate change as the Biden Administration makes climate change a focus of its first term.

House Democrats have authorized another new committee, the Select Committee on Economic Disparity and Fairness in Growth. This Committee has been given broad jurisdiction covering economic fairness, access to education, and workforce development.[3] It is possible this Committee will be interested in a range of private sector industries, including consumer-facing financial institutions, student loan lenders, and credit agencies. Like the Climate Crisis Committee, this committee does not have its own subpoena power and must rely on standing committees to issue subpoenas in support of its investigations. This arrangement makes it unlikely that either of these select committees investigations will involve the issuance of subpoenas unless House Democratic leadership tasks this or the Climate Crisis Committee with a contentious investigation and instructs standing committees to back up the investigation with subpoena authority.

While the Democrats focus is likely to shift to the private sector as the Biden Administration begins its term, there will no doubt be a continued desire to investigate former President Trump and the outgoing administration, particularly in light of the violent events at the Capitol on January 6. To that end, the House Democrats new rules package includes explicit language allowing the House to issue subpoenas to the President, and the Vice President, whether current or former, in a personal or official capacity as well as White House and executive office employees.[4] Additionally, private parties with business connections to President Trump or his organization may continue to face scrutiny.

Democrats will steer the Senates investigative agenda during the 117th Congress after ten years of being in the minority. While Senate committees have yet to organize and publish their rules, it is likely that Democrats will spare little time in getting a number of investigations off the ground, particularly those that complement the Biden Administrations first-100-days policy priorities.

Key committees to watch: Two committees to pay particular attention to will be the Senate Finance Committee and the Senate Committee on Banking, Housing and Urban Affairs. Senator Ron Wyden (D-OR) is expected to become Chairman of the Senate Finance Committee. Senator Wyden has a reputation as an aggressive investigator, and his past work has included investigations into international trade issues, the NRA, tax benefit abuse, and other topics. Recently, Senator Wyden, together with Senator Grassley (R-IA), issued a report illuminating the extensive connections among opioid manufacturers, opioid-related products, and tax-exempt entities. Wyden and Grassley also teamed up last Congress on a two-year investigation into insulin pricing. Companies can expect Senator Wyden to continue to pursue investigations into a wide range of consumer protection issues and other topics.

The Senate Committee on Banking, Housing and Urban Affairs is similarly likely to be active. Senator Sherrod Brown (D-OH) is expected to become Chairman of the Committee and likely will conduct aggressive oversight of the banking industry. Senator Elizabeth Warren (D-MA) may become Chairwoman of the Subcommittee on Financial Institutions and Consumer Protection, or even of a newly-created oversight committee. This would give Senator Warren oversight and investigation authority, including the ability to hold hearings and to issue subpoenas. Senator Warren has long been a proponent of broader regulation of financial institutions, including calling for stricter separation between commercial banks and investment banks and for efforts to expand access to lenders for average Americans.

Another committee to watch is the Commerce, Science, and Transportation Committee, which Senator Maria Cantwell (D-WA) is expected to chair. The panel has a wide set of responsibilities, including overseeing the regulation of technology companies and handling transportation infrastructureboth issues that are likely to demand attention in the new Congress. It also sets policy for research agencies including NSF, the National Oceanic and Atmospheric Administration, and the National Institute of Standards and Technology. Senator Cantwell, a former technology industry executive, has a strong interest in research and climate issues, which could influence the panels work, particularly in light of the Biden Administrations stated commitment to advancing climate change legislation. While Senator Cantwell has historically not been an active investigator, we can expect the Committee to be active in its legislative activities, and it may launch investigations that are ancillary to these legislative activities.

One final investigative body of note is the Senate Permanent Subcommittee on Investigations (PSI), which is a subcommittee of the Senate Homeland Security and Government Affairs Committee. PSI has the responsibility of studying and investigating the efficiency and economy of operations relating to all branches of the government and is also tasked with studying and investigating the compliance or noncompliance with rules, regulations, and laws, investigating all aspects of crime and lawlessness within the United States which have an impact upon or affect the national health, welfare, and safety, including syndicated crime, investment fraud schemes, commodity and security fraud, computer fraud, and the use of offshore banking and corporate facilities to carry out criminal objectives. While it is unclear who will chair PSI at this time, we can expect it to be active in its investigations.. When Democrats last controlled the Senate, former Michigan Senator Carl Levin chaired PSI and launched a series of high profile and wide-ranging investigations of the financial sector. Its likely the next Democratic Chair will follow Levins lead and adopt an aggressive posture. Also worth watching is who will fill former Senator Kamala Harriss seat on PSI.

Potential Changes to Subpoena and Deposition Authority: We will also be closely watching whether Senate Democrats strengthen their investigative arsenal, particularly when it comes to subpoena and deposition authority. With respect to subpoenas, currently only the Chair of PSI is authorized to issue a subpoena unilaterally, a significant difference with the House where nearly all committee chairs may do so. Because Senate investigations have historically been more bipartisan than those in the House, there has been a longstanding hesitation on both sides to expand unilateral subpoena power. It remains to be seen if that philosophy will continue to hold sway in the 117th Congress.

It is also important to keep a close watch on Senate deposition authority. In the last Congress, seven Senate bodies had authorization to take depositions: (1) Judiciary, (2) Homeland Security and Governmental Affairs (HSGAC), (3) PSI, (4) Aging, (5) Indian Affairs, (6) Ethics, and (7) Intelligence. Of these, HSGAC, PSI, Judiciary, and Aging can subpoena an individual to appear at a deposition. HSGAC, Judiciary, and Aging rules require concurrence of the ranking member or a Committee vote to authorize the issuance of a subpoena, while the Chair of PSI is empowered to issue a subpoena unilaterally. Moreover, staff is expressly authorized to take depositions in each of these committees except in the Indian Affairs and Intelligence Committees. However, heretofore the Senates view is that Senate Rules do not authorize staff depositions pursuant to subpoena. Hence, Senate committees cannot delegate that authority to themselves through committee rules, absent a Senate resolution or a change in Senate rules. It remains to be seen whether and to what extent Democrats may expand these authorities.

As a practical matter, numerous motivations (not always legitimate) often drive a congressional inquiry, including: advancing a chairs political agenda or public profile, exposing alleged criminal wrongdoing or unethical practices, pressuring a company to take certain actions, and responding to public outcry. Recognizing the presence of these underlying objectives and evaluating the political context surrounding an inquiry can therefore be a key component of developing an effective response strategy.

Congresss power to investigate is broadas broad as its legislative authority. The power of inquiry is inherent in Congresss authority to enact and appropriate under the Constitution.[5] And while Congresss investigatory power is not a limitless power to probe any private affair or to conduct law enforcement investigations, but rather must further a valid legislative purpose,[6] the term legislative purpose is understood broadly to include gathering information not only for the purpose of legislating, but also for overseeing governmental matters and informing the public about the workings of government.[7]

Congressional investigations present a number of unique challenges not found in the familiar arenas of civil litigation and Executive Branch investigations. Unlike the relatively controlled environment of a courtroom, congressional investigations often unfold in a hearing room in front of television cameras and on the front pages of major newspapers and social media feeds.

Congress has many investigatory tools at its disposal, including: (1) requests for information; (2) interviews; (3) depositions; (4) hearings; (5) referrals to the Executive Branch for prosecution; and (6) subpoenas for documents and/or testimony. If these methods fail, Congress can use its contempt power in an effort to punish individuals or entities who refuse to comply with subpoenas. It is imperative that targets be familiar with the powers (and limits) of each of the following tools to best chart an effective response:

As noted above, Congress will usually seek voluntary compliance with its requests for information or testimony as an initial matter. If initial requests for voluntary compliance meet with resistance, however, or if time is of the essence, it may compel disclosure of information or testimony through the issuance of a congressional subpoena.[14] Like Congresss power of inquiry, there is no explicit constitutional provision granting Congress the right to issue subpoenas.[15] But the Supreme Court has recognized that the issuance of subpoenas is a legitimate use by Congress of its power to investigate and its use is protected from judicial interference in some respects by the Speech or Debate Clause.[16] Congressional subpoenas are subject to few legal challenges,[17] and there is virtually no pre-enforcement review of a congressional subpoena in most circumstances.[18]

The authority to issue subpoenas is initially governed by the rules of the House and Senate, which delegate further rulemaking to each committee.[19] While nearly every standing committee in the House and Senate has the authority to issue subpoenas, the specific requirements for issuing a subpoena vary by committee. These rules are still being developed by the committees of the 117th Congress, and can take many forms.[20] For example, several House committees authorize the committee chair to issue a subpoena unilaterally and require only that notice be provided to the ranking member. Others, however, require approval of the chair and ranking member, or, upon the ranking members objection, require approval by a majority of the committee.

Failure to comply with a subpoena can result in contempt of Congress. Although Congress does not frequently resort to its contempt power to enforce its subpoenas, it has three potential avenues for seeking to implement its contempt authority.

While potential defenses to congressional investigations are limited, they are important to understandlikely more so now with Democrats taking control of both chambers. The principal defenses are as follows:

As discussed above, a congressional investigation is required generally to relate to a legislative purpose, and must also fall within the scope of legislative matters assigned to the particular committee at issue. In a challenge based on these defenses, the party subject to the investigation must argue that the inquiry does not have a proper legislative purpose, that the investigation has not been properly authorized, or that a specific line of inquiry is not pertinent to an otherwise proper purpose within the committees jurisdiction. Because courts generally interpret legislative purpose broadly, these challenges can be an uphill battle. Nevertheless, this defense should be considered when a committee is pushing the boundaries of its jurisdiction or pursuing an investigation that arguably lacks any legitimate legislative purpose.

Constitutional defenses under the First and Fifth Amendments may be available in certain circumstances. While few of these challenges are ever litigated, these defenses should be carefully evaluated by the subject of a congressional investigation.

When a First Amendment challenge is invoked, a court must engage in a balancing of competing private and public interests at stake in the particular circumstances shown.[34] The critical element in the balancing test is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness.[35] Though the Supreme Court has never relied on the First Amendment to reverse a criminal conviction for contempt of Congress, it has recognized that the First Amendment may restrict Congress in conducting investigations.[36] Courts have also recognized that the First Amendment constrains judicially compelled production of information in certain circumstances.[37] Accordingly, it would be reasonable to contend that the First Amendment limits congressional subpoenas at least to the same extent.

The Fifth Amendments privilege against self-incrimination is available to witnessesbut not entitieswho appear before Congress.[38] The right generally applies only to testimony, and not to the production of documents,[39] unless those documents satisfy a limited exception for testimonial communications.[40] Congress can circumvent this defense by granting transactional immunity to an individual invoking the Fifth Amendment privilege.[41] This allows a witness to testify without the threat of a subsequent criminal prosecution based on the testimony provided. Supreme Court dicta also suggests the Fourth Amendment can be a valid defense in certain circumstances related to the issuance of congressional subpoenas.[42]

Although committees in the House and Senate have taken the position that they are not required to recognize the attorney-client privilege, in practice the committees generally acknowledge the privilege as a valid protection. Moreover, no court has ruled that the attorney-client privilege does not apply to congressional investigations. Committees often require that claims of privilege be logged as they would in a civil litigation setting. In assessing a claim of privilege, committees balance the harm to the witness of disclosure against legislative need, public policy, and congressional duty. Notably, in 2020, the Supreme Court for the first time acknowledged in dicta that the attorney-client privilege is presumed to apply in congressional investigations. In Trump v. Mazars, the Supreme Court stated that recipients [of congressional subpoenas] have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications and governmental communications protected by executive privilege.[43] It remains to be seen if members and committee staffers will take the same view going forward.

The work product doctrine protects documents prepared in anticipation of litigation. Accordingly, it is not clear whether or in what circumstances the doctrine applies to congressional investigations, as committees may argue that their investigations are not necessarily the type of adversarial proceeding required to satisfy the anticipation of litigation requirement.[44]

Successfully navigating a congressional investigation requires a multifaceted mastery of the facts at issue, careful consideration of collateral political events, and crisis communications.

Here are some of the more common mistakes we have observed:

The consequences of inadequate preparation can be disastrous on numerous fronts. A keen understanding of how congressional investigations differ from traditional litigation and even Executive Branch or state agency investigations is therefore vital to effective preparation. The most successful subjects of investigations are those that both seek advice from experienced counsel and employ multidisciplinary teams with expertise in government affairs, media relations, e-discovery, and the key legal and procedural issues.

* * *

Democratic control of both congressional chambers and the White House is certain to usher in a more perilous landscape over the next two years for a wide array of public-facing industry actors, particularly those intertwined with current policy debates and hot button issues. Gibson Dunn lawyers have extensive experience in both running congressional investigations and defending targets of and witnesses in such investigations. If you or your company become the subject of a congressional inquiry, or if you are concerned that such an inquiry may be imminent, please feel free to contact us for assistance.

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[1] H.R. Res. 6, 116th Cong. 104(f)(2)(B) (2019).

[2] Id.

[3] H.R. Res. 8, 117th Cong. 4(g)(2)(B) (2021).

[4] H.R. Res. 8, 117th Cong. 2(m) (2021).

[5] Barenblatt v. United States, 360 U.S. 178, 187 (1957).

[6] See Wilkinson v. United States, 365 U.S. 399, 408-09 (1961); Watkins v. United States, 354 U.S. 178, 199-201 (1957).

[7] Michael D. Bopp, Gustav W. Eyler, & Scott M. Richardson, Trouble Ahead, Trouble Behind: Executive Branch Enforcement of Congressional Investigations, 25 Corn. J. of Law & Pub. Policy 453, 456 (2015).

[8] Id.

[9] See H.R. Res. 6, 116th Cong. 103(a)(1) (2019).

[10] See The Power to Investigate: Table of Authorities of House and Senate Committees for the 116th Congress, https://www.gibsondunn.com/wp-content/uploads/2019/07/Power-to-Investigate-Table-of-Authorities-House-and-Senate-Committees-116th-Congress-07.2019.pdf. Consistent with past practice, Gibson Dunn will release a client alert outlining the specific subpoena rules for each committee in the 117th Congress as soon as they become available.

[11] See 165 Cong. Rec. H1216 (Jan. 25, 2019) (statement of Rep. McGovern).

[12] Bopp, supra note 7, at 457.

[13] Id. at 456-57.

[14] Id. at 457.

[15] Id.

[16] Eastland v. U.S. Servicemens Fund, 421 U.S. 491, 504-05 (1975).

[17] Bopp, supra note 7, at 458.

[18] Id. at 459. The principal exception to this general rule arises when a congressional subpoena is directed to a custodian of records owned by a third party. In those circumstances, the Speech or Debate Clause does not bar judicial challenges brought by the third party seeking to enjoin the custodian from complying with the subpoena, and courts have reviewed the validity of the subpoena. See, e.g., Trump v. Mazars, 140 S. Ct. 2019 (2020); Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34 (D.D.C. 2018).

[19] Id. at 458.

[20] Gibson Dunn will detail these rules when they are finalized in an upcoming publication.

[21] Bopp, supra note 7, at 460 (citing Anderson v. Dunn, 19 U.S. 204, 228 (1821)).

[22] Id.

[23] Id. at 466.

[24] Id. at 461.

[25] See 2 U.S.C. 192 and 194.

[26] Bopp, supra note 7, at 462.

[27] See 2 U.S.C. 194.

[28] Bopp, supra note 7, at 467.

[29] See 2 U.S.C. 288b(b), 288d.

[30] Bopp, supra note 7, at 465. However, the law on this point is currently unsettled after a panel of the U.S. Court of Appeals for the D.C. Circuit ruled in August of 2020 that the House may not seek civil enforcement of a subpoena absent statutory authority. Committee on the Judiciary of the United States House of Representatives v. McGahn, No. 19-5331 (D.C. Cir. 2020). The ruling is currently being considered en banc.

[31] Id.

[32] See 165 Cong. Rec. H30 (Jan. 3, 2019) (If a Committee determines that one or more of its duly issued subpoenas has not been complied with and that civil enforcement is necessary, the BLAG, pursuant to House Rule II(8)(b), may authorize the House Office of General Counsel to initiate civil litigation on behalf of this Committee to enforce the Committees subpoena(s) in federal district court.) (statement of Rep. McGovern); House Rule II.8(b) (the Bipartisan Legal Advisory Group speaks for, and articulates the institutional position of, the House in all litigation matters).

[33] See H. Res. 430 (116th Cong.) (a vote of [BLAG] to authorize litigation . . . is the equivalent of a vote of the full House of Representatives); Br. for House Committee at 33, Committee on Ways and Means, United States House of Representatives v. U.S. Dept of the Treasury, No. 1:19-cv-01974 (D.D.C. 2019) (stating BLAG authorized suit by House Ways & Means Committee to obtain President Trumps tax returns pursuant to 26 U.S.C. 6103(f)).

[34] Barenblatt, 360 U.S. 109, 126 (1959).

[35] Id.

[36] See id. at 126-7.

[37] See, e.g., Perry v. Schwarzenegger, 91 F.3d 1147, 1173 (9th Cir. 2009).

[38] See Quinn v. United States, 349 U.S. 155, 163 (1955).

[39] See Fisher v. United States, 425 U.S. 391, 409 (1976).

[40] See United States v. Doe, 465 U.S. 605, 611 (1984).

[41] See 18 U.S.C. 6002; Kastigar v. United States, 406 U.S. 441 (1972).

[42] Watkins, 354 U.S. at 188.

[43] See Trump v. Mazars USA, LLP (591 U.S. ___ (2020)).

[44] See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir. 1997).

The following Gibson Dunn attorneys assisted in preparing this client update: Michael D. Bopp, Thomas G. Hungar, Roscoe Jones Jr., Alexander W. Mooney, Rebecca Rubin and Jillian N. Katterhagen.

Gibson, Dunn & Crutchers lawyers areavailable to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work or the following lawyers in the firms Congressional Investigations group in Washington, D.C.:

Michael D.Bopp Chair, Congressional Investigations Group (+1 202-955-8256, mbopp@gibsondunn.com)Thomas G. Hungar (+1 202-887-3784, thungar@gibsondunn.com)Roscoe Jones, Jr. (+1 202-887-3530, rjones@gibsondunn.com)

2020 Gibson, Dunn & Crutcher LLP

Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

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Congressional Investigations in the 117th Congress: Choppy Waters Ahead for the Private Sector? - Gibson Dunn

2020 saw the courts continuing to play an important role in health policy with several notable lawsuits related to the Affordable Care Act (ACA). Several other Trump administration policies were challenged, including Medicare payment policies, price transparency, how the Medicaid program can change and whether Medicaid beneficiaries can sue over curtailed benefits, and immigration changes affecting access to programs like Medicaid. In 2021, the courts will continue to play an important role.

Texas v. United States.The U.S. Supreme Court held oral arguments concerning this most consequential challenge to the ACA on Nov. 20, 2020. The courts decision is expected in the spring. In this case, a group of Republican-controlled states and two Texas residents argue that the entire ACA became unconstitutional when Congress eliminated the penalty for individuals who fail to obtain health insurance. In Oct. 2020, a divided three-judge panel of the 5th U.S. Circuit Court of Appeals issued a ruling stating the individual mandate was unconstitutional because it can no longer be justified as a tax since Congress set the penalty at 0. However, the panel also remanded the case to the lower court to determine what portions of the ACA are or are not severable from the individual mandate.

Another 17 states, led by California, were permitted by the trial court to intervene in the case and defend the ACA(the state intervener-defendants). Subsequently, the 5thCircuit allowed four more states to intervene in the case on appeal, bringing the total number of states defending the ACA in the case to 21. This coalition of Democratic attorneys general asked the U.S. Supreme Court to take up the case and not wait for the Texas court to rule on whether some or all of the ACA provisions are so intertwined with the individual mandate that they, too, must be deemed unconstitutional. The court agreed to do so.

Risk corridors.On April 27, 2020, the Supreme Court ruled in favor, 8-1, of commercial health insurers arguing that they are owed $12 billion under the ACAs risk corridor program. The risk corridor program was designed to compensate insurers who lost money in the early years of the exchanges, but congressional Republicans blocked CMS from making most of the promised payments.

Association health plans.One lawsuit challenged the Trump administrations expansion of association health plans (AHP) through a Department of Labor rule that sought to make it easier for small employers to band together and offer plans that do not have to comply with ACA consumer protections. A panel of the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in November 2019.

On July 22, 2020, two employers brought parallel litigation in Texas, asking for a declaratory judgment that their health coverage arrangement is a single-employer self-insured group health plan (and thus exempt from most ACA rules). The employers had requested an advisory opinion from the Department of Labor, which concluded that the arrangement did not qualify as a single-employer group health plan. Briefing was completed in late April of 2020.

On Aug. 3, 2020, the District Court for the Southern District of New York gave its opinion in favor of New York State, ruling that the Department of Labor too broadly defined the term healthcare worker, and exceeded its authority as a result. The Court ruled that the Labor Departments definition was not in line with what Congress intended in enacting the Families First Coronavirus Response Act (FFCRA) and, as a result, could lead to non-clinical employees or medical practice affiliates being excluded from the FFCRA protections.

In oral arguments on the appeal held Nov. 14, 2020, the Court of Appeals for the District of Columbia Circuit was interested in narrowing the ruling, establishing whether the Department of Labors (DOL) new definition was reasonable. On Jan. 28, 2021 the Department of Justice (DOJ) requested a 60-day abeyance to give time for the Biden Administration to review the issues in the case and determine how to proceed.

Short-term plans.Similar to the association health plan case, this case involved the Trump administrations expansion of short-term, limited-duration plans, which also need not comply with ACA protections.

On July 22, 2020, a divided panel of the DC Circuit upheld the short-term plan rule in July 2020, concluding that the governments interpretation was entitled to deference and was neither inconsistent with nor impermissible under the ACA or HIPAA. The lead plaintiff, the Association for Community Affiliated Plans, suggested that it would ask for en banc review by a full panel of judges on the DC Circuit.

Cost-sharing reductions (CSR).Litigation occurred over the ACAs cost-sharing reduction program, which was intended to compensate insurers for setting low deductibles and copayments on the exchanges. In 2017, the Trump administration decided to stop making the CSR payments, prompting numerous lawsuits from insurers. The insurers have won various lower-court rulings, and a consolidated group of the lawsuits was on appeal at the U.S. Court of Appeals for the Federal Circuit. Oral arguments were held Jan. 9, 2020

The CSR litigation raised legal issues similar to those posed by the risk corridor case at the Supreme Court because both involve government payments to insurance companies that were intended by the drafters of the ACA but subsequently revoked.

On Aug. 17, 2020, a three-judge panel of the Court of Appeals for the Federal Circuit issued two decisions for Sanford Health Plan v. United States and Community Health Choice v. United States. The Court concluded that under Section 1402 of the ACA, insurers are entitled to unpaid cost-sharing reductions (CSRs).

The Federal Circuit agreed with the lower courts that Section 1402 imposes an unambiguous obligation on the federal government to make CSR payments to insurers and that this obligation is enforceable for damages. The three-judge panel limited the amount of unpaid CSRs that insurers can recover based on premium loading.

Contraceptive mandate.On July 22, 2020, the U.S. Supreme Court issued a 7-2 decision in Little Sisters of the Poor v. Pennsylvania, upholding the Trump Administrations rules that allow religious and moral exemptions to the ACAs contraceptive mandate. The Court vacated the prior nationwide injunction by a federal judge in Pennsylvania and remanded the case to the lower courts. Directly after that, the Court separately remanded an appeal of a similar injunction by a California federal judge from the Ninth Circuit Court of Appeals. Although the Trump administration, Little Sisters of the Poor, and the March for Life Education and Defense Fund had separately appealed the Ninth Circuit decision before, the Court had not taken action on those appeals while Little Sisters was pending and quickly remanded those challenges.

Nondiscrimination provisions.The Supreme Court heard Bostock v. Clayton Country, Georgia, a lawsuit over the Trump administrations efforts to weaken some of the ACAs nondiscrimination provisions, codified in Section 1557 of the law. HHS was finalizing regulatory changes expected to roll back Obama-era protections for groups such as transgender people, gay and lesbian people, and people who have terminated a pregnancy. The final rule led to a legal challenge.

On July 22, 2020, the Trump administration issued its new final rule in June 2020 to implement Section 1557. There is a new round of litigation over the final rule on Section 1557. There were at least five lawsuits challenging the rule, which include coalitions of plaintiffs arguing that the rule should be invalidated. Each lawsuit asks the court to vacate the Trump administrations rule in its entirety and prevent HHS from implementing or enforcing its provisions. They argued that the 2020 rule violates the Administrative Procedure Act (APA) as arbitrary and capricious and contrary to law. They also argued that the rule exceeds HHSs statutory authority and violates the Fifth Amendment.

On June 15, 2020, the Supreme Court ruled in Bostock v. Clayton County, and found that discrimination based on gender encompasses sexual orientation and gender identity in the context of employment. Based on that decision, two federal courts have issued nationwide preliminary injunctions blocking the Trump administration from implementing parts of the final rule.

A New York court blocked the implementation of provisions excluding sex stereotyping from the definition of sex discrimination. After the plaintiffs requested clarification of the preliminary injunction order, the court directed the plaintiffs to submit a list of provisions of the 2020 rule, beyond the definition of gender discrimination, that can be kept despite the Supreme Courts Bostock decision for the courts consideration.

The D.C. court blocked the implementation of provisions excluding gender stereotyping from the definition of sex discrimination as well as provisions incorporating a blanket religious freedom exemption from claims of sex discrimination. Several other legal challenges are pending.

Take care clause.This broad-based lawsuit, Columbus et al. v. Trump, was brought by a group of cities argues that the Trump administration violated the Constitution by sabotaging the ACA. The lawsuit said President Trumps various administration actions weakening the ACA conflict with the Constitutions requirement that the president take care that the laws be faithfully executed. The case was filed in 2018 and went to the federal district court in Maryland.

In April 2020, the district court held that the lawsuit could proceed under the Administrative Procedure Act (APA) but not the Take Care Clause of the Constitution. The plaintiffs did not appeal that ruling to the Fourth Circuit and will instead turn to their claims that major provisions of the 2019 payment rule violate the APA.

The most prominent legal issue in Medicaid during the Trump administration was the fight over work requirements. On Dec. 4, 2020, Supreme Court granted Arkansas and Trump administration petitions for certiorari in Arkansas v. Gresham and Azar v. Gresham. The Court will hear the case in early 2021.

CMS advocated for work requirements to be included in Section 1115 waivers. As waivers including work requirements were approved, opponents responded with lawsuits challenging those waivers. District of Columbia District Court Judge James Boasberg repeatedly sided with the opponents of work requirements ordering Arkansas to suspend its work requirement program and blocking the policy from taking effect in Kentucky and New Hampshire.

Other lawsuits challenged the policy in Indiana and Michigan. Boasbergs rulings against work requirements were on appeal at the D.C. Circuit, which heard oral arguments in October 2020. The D.C. Circuit considered the case on an expedited schedule.

On July 22, 2020, the Supreme Court heard Gresham v. Azar. The District Court for the District of Columbia set aside state Medicaid waivers with work requirements. That decision was affirmed by a unanimous panel of the Court of Appeals for the District of Columbia in a decision written by Judge David Sentelle. The attorney general of Arkansas and the Trump administration filed cert petitions on July 13, 2020

Beneficiaries right to sue.Another policy tested in the courts is the extent to which beneficiaries have a right to sue state officials to challenge state actions that curtail Medicaid benefits. The ability to bring such lawsuits in federal court has long been viewed as an important safeguard for beneficiaries, but in recent years, some courts have expressed doubt about the legal theories underlying such lawsuits.

The U.S. Supreme Court declined to weigh in on the issue in 2018. However, currently pending at the 5th Circuit is a lawsuit brought by beneficiaries challenging Texas attempt to remove abortion providers from its Medicaid program. The ruling could extend far beyond the abortion context and help clarify the authority of beneficiaries to sue over a wide range of allegedly unlawful coverage policies by states.

In Medicare, CMS took part in over two controversial payment policies that the agency says will bring down costs but hospitals describe as illegal. Continuing to fight both policies is a priority for the hospital industry in 2021.

340B cuts.One lawsuit challenges the agencys 2018 and 2019 reimbursement cuts for drugs in the 340B drug discount program. Hospitals argued that the agency does not have the authority to make those cuts, and a federal district judge agreed. Oral arguments were heard in Nov. 2019.

On July 31, 2020, the Court of Appeals for the District of Columbia Circuit overturned the 2018 district court decision that found the Department of Health and Human Services (HHS) exceeded its statutory authority when it reduced 2018 and 2019 Medicare payment rates by 30% for many of the hospitals in the 340B Drug-Pricing Program.

In December, 2020, the American Hospital Association, joined by four other national hospital groups and hospital pharmacists representing participants in the 340B drug pricing program, filed afederal lawsuitagainst the Department of Health and Human Services over the departments failure to enforce program requirements and halt drug company actions that undermine the program including limiting the 340b program through contract pharmacies.

The groups are joined in the lawsuit by three 340B hospitals serving patient communities in need that have been harmed by the companies refusals to provide discounts on prescription drugs dispensed at community-based pharmacies, as required by the 340B program.

Site neutrality.American Hospital Association et al. v. Azar, challenged CMS site-neutral policy, which cut payments for outpatient clinic visits at certain off-campus hospital facilities in 2019. Under the policy, the agency reimbursed hospitals for those visits at a rate equivalent to the cost of such services provided in doctors offices under the physician fee schedule. In September 2019, a judge from the District Court for the District of Columbia said CMS lacked authority to make the cuts and vacated them. As with the 340B reimbursement cuts, the litigation did not stop CMS from going ahead with phasing in the cuts in its 2020 outpatient rule.

On July 17, 2020, the Court of Appeals for the District of Columbia Circuit reversed the district court to uphold the 2019 Medicare payment rule expanding outpatient siteneutral payment policies to apply to all hospital outpatient clinic visits, i.e., even at longstanding off-campus provider-based hospital departments (PBDs). The decision by the Court of Appeals allowed the Expanded Site-Neutral Policy to stand, unless reversed by the Supreme Court.

CMS faces drug and hospital industry-led legal challenges to two final rules issued last year that require drug companies and hospitals to disclose more information about pricing. Both challenges are based on the First Amendment.

Drug prices.A drug-pricing rule, issued in May 2019 by the U.S. Food and Drug Administration (FDA), required pharmaceutical companies to include the list prices of their drugs in television advertising, which led to the lawsuit Merck & Co. Inc. et al. v. U.S. Department of Health and Human Services et al. On June 16, 2020, a three-judge panel from the D.C. Circuit Court backed a lower court's decision that the Department of Health and Human Services (HHS) overstepped its regulatory authority. The case is on appeal at the D.C. Circuit.

Hospital prices and transparency.The hospital transparency rule, issued in November 2019 by CMS, required hospitals to publish the confidential rates they negotiate with private insurers. The hospital industry sued, arguing the rule is highly burdensome and violates hospitals free speech. The district judge presiding over the case set an expedited schedule to review it.

In late June 2020, the district court upheld the Trump administrations rule to require hospitals to publicly disclose negotiated rates and prices of certain shoppable items and services. The rule was promulgated under Section 2718(e) of the Public Health Service Act, a provision of the ACA known as the medical loss ratio provision. Hospitals challenged the rule, arguing that the government exceeded its authority, that the rule violates the First Amendment, and that the rule is arbitrary and capricious. The American Hospital Association, the lead plaintiff, quickly appealed to the decision to the DC Circuit. However, on December 29, 2020, the Court of Appeals for the District of Columbia upheld the district courts ruling and rejected the American Hospital Association (AHA) and other hospital groups challenge of the hospital price transparency rule.

AHA had filed for an emergency motion to block the rule from going into effect on Jan. 1, 2021, but that motion was rejected.

Immigrants and health insurance.Two immigration policies finalized in 2019 have health law consequences. The public charge rule, issued in August 2019 by the Department of Homeland Security, and an executive proclamation on immigration, issued in October 2019, have led to two lawsuits.

The public charge rule makes it harder for legal immigrants who receive certain forms of public assistance, including Medicaid, to remain in the country and become permanent U.S. residents. The proclamation requires new immigrants seeking entry into the country to demonstrate that they will be able to obtain health insurance, not including subsidized ACA plans or Medicaid.

On Aug. 5, 2020, a Fourth Circuit panel ruled 2-1 in favor of the Trump administration policy and reversed the nationwide injunction of the policy issued by a federal judge in Maryland.

On Jan. 11, 2020, the U.S. Court of Appeals for the Fourth Circuit was the only federal appeals court to allow the rule to proceed.

The full panel of judges is scheduled to review the August 2020 decision the week of Feb. 8, 2021.

Conscience rule.The rule, issued in May 2019 by the HHS Office of Civil Rights, expands the ability of medical professionals to refuse to provide care based on religious or moral objections. On Jan. 11, 2021, the Ninth Circuit is scheduled to hear arguments Feb. 8, 2021 over the legality of a rule that lets anyone involved in the delivery of health care to deny patients care based on their religious and moral beliefs.

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The Courts and Healthcare Policy | McGuireWoods Consulting - JDSupra - JD Supra

The Los Angeles County Sheriffs Department (LASD) chose to keep the names of the deputies involved in the October 16 shooting of 25-year-old Fred Williams III in Willowbrook under wraps at the medical examiners inquest last Thursday.

No explanation was given for the decision during the proceedings, but KPCCs Frank Stoltze reports that LASD has claimed it is motivated by a credible threat of violence against the deputy.

Such a claim is deeply suspect for a number of reasons, not least of which includes LASDs overt hostility to both the inquest process and transparency, more generally. But in practical terms, it meant that the inquest would yield little to nothing in the way of new information. Both the shooter and his partner pleaded the Fifth to protect themselves against self-incrimination and their statements and related case information were sealed from public view. Similarly, Detectives John OBrien (seen below, in front of a Blue Lives Matter flag) and Christopher Dimmitt both effectively invoked the Fifth in spirit, claiming that answering any questions would compromise the integrity of the ongoing investigation into Williams shooting by requiring them to disclose information from the sealed files. [Find my live tweets/recap of the inquest here.]

But the goal of the medical examiners inquest was not to determine guilt, as retired Judge Candace Cooper reminded those tuning in Thursday. Instead, she said, it was to determine the manner and mode of death: natural causes, accident (which can include unintentional human conduct), suicide, or death at the hands of another, other than by accident (which does not address question of whether it was justified).

Her disclaimer seemed intended to preempt criticism of the process, given the disappointment that followed the November 30 inquest into the shooting death of 18-year-old Andrs Guardado. Guardado had been killed after deputies Miguel Vega and Chris Hernndez said he looked at them, produced a handgun, and then ran down the driveway of the Gardena auto body shop he was working at. Vega briefly chased Guardado (seen here) before confronting him, ordering him to get on the ground, and then firing six times, hitting Guardado five times in the back.

The findings in that case released just after 5 p.m. on January 15 (the Friday of a three-day weekend) to bury them told people what they already knew. Namely, that the medical cause of Guardados death was multiple gunshot wounds and that the manner of death was by the hands of another person other than by accident.

Key issues casewatchers had at least hoped to see addressed such as the significant discrepancy between deputy Miguel Vegas claims of how and why he shot Guardado and what the autopsy showed to be physically possible had fallen outside of the scope of the inquiry.

So had larger questions about LASDs efforts to paint Guardado as dangerous (via a lengthy press briefing touching on illegal activity at the shop and unrelated shooting incidents) and about the heavy-handedness with which youth in the area are policed (especially in light of the kidnapping, taunting, terrorizing, and threatening of a young skateboarder that eventually led to both Vega and his partner Chris Hernndez being relieved of duty).

All of which signaled to Williams family and friends that the inquest would do little to assist them in their quest for answers or in holding LASD accountable.

Still the process can be said to have some value, both in keeping the names of the victims of police violence alive and in underscoring in a very public way just how difficult it is to exact any kind of transparency from law enforcement in these matters. Early on in the Guardado case, for example, Sheriff Alex Villanueva put a security hold on the autopsy, claiming its release would jeopardize the integrity of the investigation. Then, at the inquest last November, the detectives also hid behind the Fifth Amendment, despite the fact that, as investigators, there was no risk of self-incrimination. Meanwhile, the actual shooter Vega had elected to be out of the country during the first inquest L.A. was holding in over thirty years.

_______

If there was anything noteworthy about the Williams inquest last Thursday, it was that the Critical Incident Video LASD released, which included some of the deputys body camera footage, was played during the proceedings to enter it into the record.

LASD only began rolling out body cams in earnest on October 1st. Williams was killed two weeks later, making this the first such incident captured by LASD on a body cam.

Given that LASD had essentially opted not to participate in the inquest, that footage and the narrative included in the video provided the only detailed version of events from the Sheriffs perspective that the public would hear that day.

That that version also went unchallenged may not be a problem with regard to the specific determination that Judge Cooper is tasked with making, but it is deeply problematic in light of LASDs claims about Williams actions and intentions.

More generally, the extent to which law enforcement has treated being armed, being a threat, and actively intending or seeking to do harm to officers as interchangeable when it comes to Black and brown youth and men is what has allowed them to successfully argue time and again that an officers fear for their life justified a shooting. This is especially true in cases where gang activity is prevalent (e.g. around Mona Park) and someones gang affiliation or presence at a known gang hangout can be used as further support for the claim that the suspect intended to harm to an officer.

In Williams case, LASD offers up what appears to be his mugshot, the prior felony convictions for burglary that (although nonviolent) prevented him from being able to own a gun, his current parole status, and images of the weapon he was carrying all before the body cam footage of the deputys encounter with him is ever played.

At one notable juncture, the video even zooms in on a screengrab of Williams whom the narrator refers to as William throughout holding the gun, which LASD has circled in red. As the viewer is left to take in this frozen image for a full fourteen seconds, the narrator intones, As the deputy rounded the corner, he encountered William, gun in hand, on top of the shed, and a deputy-involved shooting occurred.

Gun in hand is meant to communicate that Williams posed an immediate and deadly threat.

Once the body cam footage is finally played at about 7:23 minutes in, however, we instead see what appears to be a man who was fleeing to avoid jail time for a gun charge Williams had just gotten home after serving time on the burglary charge and who carried the gun so it wouldnt drop out of his sweatpants as he jumped off a roof. We do not see someone who wanted to hurt either the family he ran past in the yard or the deputy.

Just two minutes earlier, Williams had been hanging out in the parking lot at Mona Park with friends and neighbors.

According to what witnesses told the L.A. Times, when LASD pulled up, people in the group assumed the deputies were there to harass them, prompting more than one person to take off. Williams, realizing that deputies had either had spotted the gun on him or were likely to engage him and find it, began running towards 122nd.

In his flight, he followed the trajectory of the yellow line seen below exiting the parking lot, running down the driveway and into the back yard of a nearby home, climbing up on a shed, and jumping over a fence (at the X) into the adjacent property. One deputy tracked him in the vehicle while the other chased him on foot (green arrow).

As he runs, it is clear that he is struggling to keep the gun from slipping out of his elastic waistband.

LASD used the screengrab with the red circle (top left, below) in the critical incident video to show that Williams was indeed armed something observers had initially questioned and point out where he was carrying the gun.

As Williams continues to run toward the back of the house, however, he appears to be struggling to keep it from slipping out of his waistband. He can be seen tugging at it as he comes down the driveway, and appears to try to shield it from the family as he shuffles past them.

He doesnt lift his hands from his waistband until he gets around the last corner, slows down, and moves to climb up on the shed.

Knowing Williams had a weapon, the deputy chasing him on foot appears to be concerned about being ambushed as he came around the corner. He is seen raising his weapon and can be heard shouting Hands! as he reaches the end of the first building and begins to head into the back yard.

Williams has already climbed up on the shed at that point, however, and does not come into the deputys view until the deputy rounds another corner and gets to the back end of the property.

In the full sequence of twelve photos below, which represent about a second and a halfs worth of time (timestamps 17:30:24 and 17:30:25), we see Williams has his back to the deputy from the very outset when his left arm and shoulder first come into view (1st image; atop the shed, center) and the deputy is just beginning to raise his weapon again.

Williams remains angled away from the deputy throughout the entirety of the encounter, never even fully turning his head to focus on the deputy. Given that there was no camera on the shed, it is not clear when Williams took the gun out of his waistband, but it appears he did so as he prepared to jump from the roof, which is when it is first seen in his hand (the seventh image in the sequence below).

As the deputy raises his arms up and out of the camera view (below), we get a clearer look at Williams. We can see that he is wholly intent on figuring out a way to get over the fence, into the next yard, and away from that property (which is largely fenced in by the same high structure) while evading the deputys partner (who was circling the block in the patrol vehicle to cut off Williams escape).

The transition he has to make between the roof and the fence, the height of the fence itself, and the eight(ish)-foot drop to the ground appear to intimidate him; he doesnt just throw himself off the roof. Instead he edges closer to the fence, bends down, and reaches out to grab the fence with his left hand, seeking to vault himself over it.

He remains physically turned away from the deputy throughout this sequence. Although he appears to glance in the deputys direction when he first hears him yell Hey!, his focus is on moving away from the deputy.

It is at this moment the moment that he reaches for the fence with his left hand and moves to vault himself over it that we finally see the gun in his right hand (below; the LASD screengrab is included for reference).

It is also the moment the deputy claims the gun was pointed at him, telling dispatch afterwards, He jumped the fence right before he pointed the 417 [firearm] at me. The coroners investigator Lianna Darabedyan confirmed this is what she had heard from him as well, adding in that the deputy had told her Williams had also turned toward him when pointing his weapon at him.

But examining the footage in sequence, it is clear that Williams is looking down at the fence and the ground throughout and that we only see his right arm (and the gun) because of how he lifts it up to stabilize himself as he vaults. To launch himself over the fence and away from the deputy, he has to grip the edge of a thin sheet of (what appears to be) metal and put his full weight on his left arm (seen in the second frame).

To have pointed the weapon at the deputy at this moment, he would have had to swing his right arm across his body in the opposite direction to the one he is headed in while in midair (in the third and fourth frames below). Doing so would have thrown him off balance, at the very least, and likely caused him to twist in the air. Aiming at the deputy would also have required him to at least turn his head in that direction, and probably his torso, as well neither of which happens here.

Instead, he vaults, left hand still supporting his weight on the fence and right arm still out for balance. The deputy shouts at him to put his hands up as Williams begins to drop out of view. The gun is still all the way over on Williams far side (it can be seen sticking out from behind his right thigh in the penultimate frame).

The deputy fires eight times in quick succession, hitting Williams once in his upper left back, perforating his left lung and his aorta.

Williams later died at the scene.

_______

Once Judge Cooper has finished reviewing the testimony and the sealed statements from the deputies involved in the shooting, she will likely issue the same findings she did in the Guardado case. And given that she saw no need to push LASD on its abuse of the Fifth Amendment in that case, it is unlikely she will try to hold LASD accountable for its intransigence here, either.

Meanwhile, the Sheriffs internal investigation is ongoing. When completed, it will be turned over to the Justice System Integrity Division of the District Attorneys Office, which will determine whether the force used was within the law. Then the case will go back to the Internal Affairs Bureau, which will complete an administrative investigation of the incident before passing it on to LASDs Executive Force Review Committee. That committee will evaluate the deputies performance and determine whether the tactics and use of force were within policy.

While officer-involved shootings were almost always found to be within policy during former D.A. Jackie Laceys tenure, officers tactics were occasionally found wanting by either LASD or LAPD. When that happened, as it did in the case of Keith Bursey, who was shot in the back by LAPD officer Charles Kumlander in 2016 during an investigative stop at Brynhurst and Slauson, the officers in question might be recommended for tactical debrief and extensive retraining, as Kumlander and his partner were. And like Kumlander and his partner, they rarely face other consequences for an in policy killing, even if the tactical lapses played a role in how a victim ended up dead.

The election of George Gascn to D.A. this past November and his promise to revisit some of these cases offered the families of the victims of police violence hope that there might finally be some semblance of justice for their loved ones. Or, at the very least, some accountability.

But what they also want is some reassurance that these processes will work to prevent other families from experiencing this kind of loss going forward. In our next story in this series, we will engage that question by way of unpacking some of the more complex cases, like Burseys, to see what they tell us about the way lower-income Black and brown communities are policed.

In the meanwhile, find the critical incident video from Fred Williams case here. See the live-tweet/recap thread I did on the inquest here. See the live-tweet/recap thread of the Andrs Guardado inquest here and a discussion of the inquest findings here. The findings from the Guardado inquest can be found here or here.

Find me on twitter, @sahrasulaiman, or email me at sahra@streetsblog.org.

_______

Related stories

Other stories on the intersection of repressive policing, disenfranchisement, and trauma in the public space

The impact of trauma:

How under/overpolicing in a community can fuel violence and force youth to fend for themselves

Racial Profiling

Incorporating these issues into planning processes

Other readings on the legacy of redlining

Link:
LASD Won't Name Deputies Involved in Killing of Fred Williams III at Otherwise Uninformative Inquest - Streetsblog Los Angeles

The smartphone maker is the latest Chinese company butting heads with the US over claims of ties to Beijing.

Chinese smartphone maker Xiaomi is suing the US over its inclusion on a blacklist of Chinese companies.

Xiaomi, which is one of the worlds largest smartphone makers, was last month placed on a record of companies that the US deemed to have links to the Chinese military a claim the company denies.

This bars American investors from holding shares in the company, subject to an executive order signed by former US president Donald Trump in November. Nine other companies were designated as Communist Chinese military companies or CCMCs.

In its lawsuit filed last Friday (29 January) against the US Department of Defense and the US Treasury, Xiaomi said Trumps designation was unlawful and presented no evidence.

[By] failing to provide Xiaomi with notice of, or an opportunity to challenge, the basis for the designation, defendants have deprived Xiaomi of due process of law, in violation of the Fifth Amendment, the lawsuit said.

Defendants designation of Xiaomi as a CCMC is arbitrary and capricious because, among other things, defendants failed to articulate a reasonable explanation for their decision.

Xiaomi claimed that the designation will damage the companys ability to raise funds, sell products, and attract and retain US employees as some may hold shares in the company.

Under the order, US investors will no longer be able to buy shares in Xiaomi, which is listed in Hong Kong, from March of this year and existing shareholders must divest by January 2022.

The company denied that is owned or controlled by, or otherwise affiliated with the Chinese government or military.

The tiff between Xiaomi and the US bears similarities to the long-running feud between the US and Huawei. The Chinese telecoms equipment maker repeatedly denied allegations by the Trump administration that it is linked to Beijing and is a national security threat.

While Trump has left office, there are no immediate signs of the US-China tech tensions abating just yet. The Biden administrations nominee for commerce secretary, Gina Raimondo, said she would protect US telecom networks from Chinese companies but stopped short of committing to retaining Huawei on blacklists. She is expected to be voted in on Wednesday.

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Xiaomi sues the US government over military blacklisting Just now - Siliconrepublic.com

At the beginning of 2020 the Supreme Court appeared poised to take on multiple patent cases, but a series ofcertdenials resulted in only one decision from the High Court in 2020. The Supreme Court avoided entering the Section 101 debate by denyingcertiorarifor a number relevant patent cases includingAthena Diagnostics Inc. v. Mayo Collaborative Services, LLC,No. 19-430 (2020) (IP Update, Vol. 22, No. 2) andChamberlain Group, Inc. v. One World Techs., Inc., No. 19-1299 (2019) (IP Update, Jan. 2020). The Court also deniedcertin various cases relating to whether the America Invents Act (AIA) violates the Takings Clause of the Fifth Amendment, includingCollabo Innovations v. Sony Corp.No. 19-601 (2019) (IP Law Year in Review 2019).

The only patent decision to come from the Supreme Court in 2020 wasThryv, Inc. v. Click-to-Call Techs., LP, 590 US ___ (2020), in which the Court held that 35 USC 314(d) precludes judicial review of the Patent Trial and Appeals Boards (PTAB)application of 315(b)s one-year time bar. The Court largely reiterated its reasoning inCuozzo Speed Techs., LLC v. Lee, 579 US ___ (2016) (IP Update,Vol. 19, No. 7) stating that because the 315(b) time bar is closely tied to the application and interpretation of statutes related to the institution determination, a party may not appeal the PTABs application of the one-year time bar of 315(b). In a lengthy dissent, Justice Neil Gorsuch argued that 314(d)s prohibition on appeal applied only to the subsections under this section of 314, as explicitly stated in the text of the statute, especially given the strong presumption

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2020 at the Supreme Court - Lexology

So its Super Bowl Week. Super Bowl LV, to be exact.

Shouldnt be that big of deal in Chicago, because the Bears have missed the cut LIII times.

But I did run across an item of interest to people who follow the so-called Monsters of the Midway.

While decluttering the basementbecause, what else are you gonna do in a pandemic?I discovered two aging spiral notebooks.

Across the top of each, it simply said: ``4th Period A.A.

The Fourth Period Athletic Association!

I had completely forgotten.

The FPAA was a league for lunch-time football players at a high school in suburban Chicago. The league culminated in the Dixie Cup championship game.

It was played at the Deerfield High School cafeteria with little triangles that were flicked or pushed across the table. If a portion of the triangle was hanging over the edge of the table when it stopped, that was a touchdown.

Field goals and extra points were kicked by holding the triangle on its edge. and flicking it into the air through flesh-and-blood crossbars that were made by your opponent, who held his index fingers together and his thumbs in the air.

Or something like that. It was a long time agoaround the time when Richard Nixon and Hubert Humphrey were jousting for the presidencylong before Nixon was whistled for too many men at the Watergate.

One thing bothers me. I have no idea how a field goal fit into our game. Why would you kick a field goal? Its kind of fun to do. But is it harder to hang the triangle/football over the edge of the table from a distance? All these years later, I have no idea. And I dont have a suitable table handy to test the theory.

This mystery is not explained in the surviving rules that are contained in these faded notebooks, along with entire seasons of scores, standings and the signatures of the players.

The rules dont really explain how ``the ball is advanced. I cant imagine that there were first downs.

The rules are exceptionally detailed, though, regarding the length and time of the game.

For example, Section 1.2 says, ``The game shall be terminated when:

``Section 1.21 One team scores 100 pts. Hence, The first person to 100 wins.

Hence? Really?

Or ``Section 1.22: The clock strikes 11:34.

Fourth period must have been awfully early for lunch. More like brunch.

Or ``Section 1.23. A teacher tells you to terminate (the game).

Apparently, our civil disobedience was confined to protesting Vietnam.

Section 2 is devoted to The Ball

``Section 2.1 The Ball shall be a triangle, preferably made out of notebook paper.

Section 2.2 Each ball (triangle) must:

2.23 Have three sides, none of which exceeds 4 inches or are less than 1 inch.

A three-sided triangle? No controversy there.

2.24 Be approved by both teams.

Apparently, there were a lot of disputes about The Ball, or triangle, that were resolved in the second season. In the second notebook, Section 2, The Ball, simply says, ``The ball shall be an official league ball.

These balls apparently were precious. In one of the notebooks in my basement, I found an envelope containing three of them. In perfect condition.

And then, there is a Fifth Amendment, which states: ``Each team will be given an official ball. The home team shall supply the ball for the game. Teams keep the ball themselves or keep it in the official FPAA envelope safe. If the home team does not have its official ball at game time, the result will be an automatic forfeit. If a ball is lost during a game, the visiting team ball shall be put in play. If the visitors do not have their ball, they will automatically forfeit.

The Sixth Amendment, I suspect, also addressed another controversy: ``Fingers must be closed when the ball is pushed.

I can imagine the sniping that must have gone on before these amendments were adopted.

The first season, there were eight teams in the FPAA, divided into two divisions, the Central and the Coastal. Remember that long-ago time in the NFL?

I have no idea how the teams were assigned, but it must have been some kind of a lottery. I was Chicago, which Im sure I liked, in Season One. On the other hand, in Season Two, I was Los Angeles. So go figure.

I only have first names from Season One. In the Coastal were Tom (Baltimore Colts), John U. (Atlanta Falcons), John E. (San Francisco 49ers) and Ed (L.A. Rams). Besides me and the beloved Chicago Bears, the Central had Kirk (Detroit Lions), Jack (Green Bay Packers) and Bruce (Minnesota Vikings).

If I had to guess, I would say John Unger, Jack Strichman and Ed Karlin competed in that pioneering season. Bruce Homer and Tom Gottlieb also are possible, but I am drawing a blank on Kirk and John E.

I mention these names in hopes of bringing everyone together for a reunionat the Hupmobile showroom in Canton, Ohio.

In Season Two, the FPAA expanded to 10 teamsthe original eight plus the New York Giants and the St. Louis Cardinals.

I am the only one who played in both seasons. I will attribute that to the vagaries of staggered lunch hours rather than any disinterest in flipping a triangle across a lunchroom table and calling it football.

In Season Two, we traded our two Johns for a pair of Als, Al Z. and Al F. And I have last names for eight players because everyone except the ``expansion teamssigned a pledge to ``abide by the rules. That would beDale (New York) and Jim (St. Louis).

The Original Eight were Cregg Wennstrom (Minnesota), Alan Feldman (San Francisco), Blair Neller (Baltimore), Marc Minkus (Detroit), Howie Fleishman (Chicago), Roger Brook (Green Bay), Al Zucker.(Atlanta) and me (L.A.).

If any of you guys are out there, Hupmobile!

As for results, the notebooks show that in Season One, my Bears had the best regular-season record (20-8), edging Kirks Lions (19-9). But Eds Rams (15-10), who won the Coastal Division, prevailed in the playoffs, beating me 100-95 in a thriller to win the Dixie Cup.

In Season Two, my Rams had the best record (23-4), but lost in the Dixie Cup final to Howies Bears, who had a modest 13-14 regular season but got hot in the playoffs to bring the Dixie Cup to Chicago.

I have no record of a Season Three, so I assume the FPAA folded after just two seasons. Deerfield might have had an open campus by senior year, removing the need and opportunity for Triangle Football.

The notebook says there was an All-Star during Season One. Its a shame that cant be found on Youtube.

But the burning question that remains after so many years is this: Under what circumstances is it wise to kick the field goal in Triangle Football?

Hence, the first person who can answer that shall receive an official FPAA football. Um, triangle.

@@@

If you like sports history with an extra bit of drama, check out Herb's 1908 Cubs novel, The Run Dont Count. Excerpts and other information at facebook/therundontcount. Its available in paperback and Kindle at Amazon.com.

The rest is here:
FPAA Remembered: In Triangle Football, the Dixie Cup Was the Ultimate Game - Bama Maven

Brad Petrishen|Telegram & Gazette

WORCESTER A former Rutland police officer serving 28 years in jail on two rape convictions has been denied a bid for a retrial he requested in November.

Jason D. Briddon, who was 40 when sentenced on the second of two rape convictions in 2012, would not have prevailed had his wife been asked to testify as an alibi, a judge ruled, because she would not have testified on account of perjury concerns.

It took two trials for a jury to convict Briddon in his second rape case, which centered on allegations Briddon raped a woman he met at a bar in 2007.

Briddons wife had testified as his alibi in the first trial thatended in mistrial but by the second trial, the two were in a contentious divorce, and Briddons lawyer, David R. Yannetti, elected not to call her.

Briddon argued Yannettis decision was a mistake, noting that he didnt bother to reach out to the wife to see whether she would, again, testify as an alibi at the second trial.

The state appeals court agreed, and ordered Worcester Superior Court Judge Daniel M. Wrenn to determine whether the wifes testimony might have proved helpful.

In a Jan. 26 ruling he wrote after hearing from the wife in a closed-door hearing, Wrenn said the woman would not have testified at a second trial because of perjury concerns.

Had (she) been subpoenaed to testify at the (second) trial as an alibi witness she would have invoked her fifth amendment privilege based on her concern of facing potential perjury charges with regard to her testimony at the first trial, Wrenn wrote.

The woman had testified at the first trial that Briddon had come home around 3 a.m. the night in question, which conflicted with the time frame the rape victim had detailed.

Wrenn also noted that because the wife had testified untruthfully at the first trial, his lawyer would have been precluded from introducing that testimony at the second trial in 2012 if he was aware it was untruthful.

Briddons 2012 conviction led to an 18-to-20-year sentence from Judge John S. McCann, who remarked at the time that Briddon took an oath "to protect society and not to rape one of its citizens.

That sentence is to run after a separate, 10-to-12-year sentence Briddon received in 2010 after being found guilty of beating and raping a prostitute in 2008.

Briddon worked as a part-time police officer in Rutland for about three years, and was employed there at the time of the 2008 rape, records show.

Read the original here:
Former Rutland cop denied new rape trial after ex-wife, citing perjury concern, declines to provide alibi - Worcester Telegram

by Dennis Crouch

Christy, Inc. v. US (Supreme Court 2021)

This is a super interesting patent-as-property case. In 2018, Christy filed a class-action lawsuit asserting that the cancellation of its patent via Inter Partes Review was taking subject to the due process requirements of the Constitution as well as the Fifth Amendment requirement of Just Compensation.

nor shall private property be taken for public use, without just compensation.

Christy also argued that the payment of USPTO maintenance fees, without refund, constitutes an illegal exaction. The Court of Federal Claims rejected Christys argument as did the Court of Appeals for the Federal Circuit.

Now, Christy has the case up to the Supreme Court with the following two questions:

Petitioner Christy, Inc. obtained a patent after following all the steps and rules and paying all of the fees demanded of it. Upon trying to assert its property rights embodied in the patent against an accused infringer, the Government invalidated the patent during Inter Partes Review (IPR) initiated by the accused infringer because it had allegedly been mistakenly issued. Christy, Inc. received no compensation for its property nor return of the fees it paid. In that context, the Questions Presented are:

1) When a duly-issued patent is invalidated through a post-grant review process (such as an IPR), must compensation be paid under the Takings Clause?

2) When a duly-issued patent is invalidated through a post-grant review process (such as an IPR), should the issuance and maintenance fees that were demanded by the government by mistake be returned?

[Christy-v-USPTO_Petition4Cert].

The Federal Circuit offered a very low quality opinion on the issues here. In particular, the Federal Circuit simply stated that it was bound by a prior decision holding that cancellation of patent claims in [an] inter partes review cannot be a taking under the Fifth Amendment. The prior decision is Golden v. U.S., 955 F.3d 981 (Fed. Cir. 2020) where Larry Golden represented himself pro se. In that decision, the court also did not explain its decision but rather simply cited to another prior case,Celgene Corp. v. Peter, 931 F.3d 1342 (Fed. Cir. 2019). In Celgene, the court likewise did not examine the issue of takings, but rather cited to its older decision of Joy Technologies, Inc. v. Manbeck, 959 F.2d 226 (Fed. Cir. 1992) andPatlex Corp. v. Mossinghoff, 758 F.2d 594 (Fed. Cir. 1985). However, neither of these cases addressed the takings clause they focused instead on alleged violation of due process. So, as is often the case, the trail Federal Circuit self-citation leads nowhere.

I dont expect the patentee to prevail in this case, but that will only be based upon the Supreme Courts rejection of its own prior statements.

A patent for an invention is as much property as a patent for land. The right rests on the same foundation and is surrounded and protected by the same sanctions. Consolidated Fruit-Jar Co. v. Wright, 94 U.S. 92, 96 (1877).

Briefing in the case will continue through the spring.

= = =

U.S. Patent No. 7,082,640

The rest is here:
Are Patents Free for the Taking; or Does the Law Require Just Compensation? - Patently-O

On January 27, 2021, the U.S. Court of International Trade (CIT) issued an opinion in which it dismissed all but one claim challenging on various grounds a proclamation by former President Donald Trump (Proclamation 9980) that imposed 25% tariffs on, inter alia, various imported products made of steel pursuant to Section 232 of the Trade Expansion Act of 1962. However, the CIT will continue to consider the claim that President Trump implemented additional and new duties on certain steel derivative products after the statutory time period for such action had lapsed.

PrimeSource Building Products, Inc., a U.S. importer of various steel derivative products, filed a complaint (subsequently amended) in the CIT on February 4, 2020, arguing that President Trumps Proclamation 9980 was unlawful and unconstitutional. See Update of February 14, 2020. On March 20, 2020, the U.S. Department of Justice (DOJ) filed a motion to dismiss the complaint, arguing that the new tariffs did not violate the Section 232 procedural requirements or PrimeSources right to due process. See Update of March 31, 2020.

In its January 27, 2021 order, the CIT dismissed PrimeSources claims that: (i) the imposition of Section 232 duties on the derivative products was procedurally deficient; (ii) the secretary of commerce violated all of the Section 232 statutory provisions; (iii) PrimeSource was deprived of its Fifth Amendment due process constitutional rights; and (iv) Section 232 is unconstitutional as it unlawfully delegates legislative authority from Congress to the president.

The CIT did not dismiss PrimeSources claim that Proclamation 9980 was issued 638 days after the transmittal of the Section 232 steel investigation report to the president (well after the 105 days set forth in 19 U.S.C. 1862(c)(1)) and is thus null and void. Despite DOJ arguing that the president has the authority to modify Section 232 tariffs at any time to protect national security (including adjusting imports of articles not addressed in Proclamation 9705 that the president designated as derivatives of identified steel articles), the CIT found that this claim rests upon a plain meaning interpretation of the statute. The opinion states that DOJs flexible reading of [19 U.S.C. 1862(c)(1)] would require us to interpret the action taken by Proclamation 9980 and that taken by Proclamation 9705 as parts of the same action, which presents several interpretive problems. The opinion concludes that there is no flexible reading of [19 U.S.C. 1862(c)(1)] Section 232(c)(1) that suffices to allow the President to adjust, through new tariffs, imports of derivatives of previously-affected articles outside of the time limits Congress imposed, and the appellate decisions on which defendants rely do not lend support to any such reading.

The parties now have until February 26, 2021, to file a joint schedule that will govern the briefing and hearing schedule for the remaining unresolved factual issues of this claim.

More:
CIT Dismisses All but One Claim in Section 232 Steel Tariff Dispute - Lexology

The Los Angeles County Department of Medical Examiner-Coroner held its second inquest in nearly 30 years Thursday to provide a public examination of the death of Fred William, III, who was shot to death while running from LA County Sheriffs Department deputies in Willowbrook last year.

Deputy medical examiner Dr. Vadim Poukens, M.D., who conducted the autopsy, testified that William was shot once, and the wound would have been fatal within one hour.

Was Mr. Williams back to the deputy when he was shot?, asked Deputy County Counsel Joseph Langton.

Yes, said Dr. Poukens.

William, 25, was killed Oct. 16, 2020 after deputies said they noticed him holding a gun while standing with a group of people and the deputies began to chase him.

The Sheriffs Department initially said William had pointed a gun at a deputy, and released video recordings and information in late October in which the deputy was recorded in radio traffic saying William had, pointed 417 at me, using the Sheriffs radio code for a person armed with a gun.

The Sheriffs Department has not released the names of the deputies involved in the chase and shooting, as is typically required by state and case law, citing unspecified threats to the deputies.

The retired judge presiding over the inquest, Justice Candace Cooper, said Thursday she had received a written request from the Sheriffs Department to keep the deputies names secret and said she would do that.

The deputy who fired the shots was issued a subpoena to testify at the inquest but he did not appear, citing his 5th Amendment privilege against self incrimination, Cooper said.

The Sheriffs homicide detective responsible for the William investigation, John OBrien, appeared briefly and testified that he arrived at the scene, but then declined to answer any questions about the case.

It kind of puts us in a bad spot, OBrien said while appearing via video conference seated in front of a thin blue line style American flag, and explained that he could not discuss his findings so far.

The investigation is open and ongoing, he said, and was quickly excused. OBriens partner, Det. Christopher Dimmitt, also declined to testify about his findings and was excused.

Both detectives cited a section of the California Evidence Code that allows government agencies to keep some information confidential.

Coroners office investigator Lianna Darabedyan, who examined William at the scene of the shooting, testified that deputies told her on the night of the shooting that William had turned and, pointed a weapon at the deputy.

Darabedyan said a gun had been removed from the scene before she examined the body, and reported that there were eight cartridge casings at the scene, indicating the firing deputy had likely pulled the trigger eight times.

Body worn video recordings made public by the Sheriffs Department in October showed William on top of a shed holding a handgun during a foot chase, and William father, Fred William, Jr., told reporters the video shows his son was shot in the back.

There was never a gun pointed, in the deputys direction, he said.

An LA County Fire Department paramedic testified at the inquest Thursday that he and other firefighters performed CPR and other lifesaving measures for 20 minutes before William, III was pronounced dead.

I conferred with the other firefighters there, that there was nothing else we could do, said firefighter-paramedic Richard Johnson.

The edited video presentation created by the Sheriffs Department, first made public in October, was played during the hearing. It included segments edited from the deputies body worn video camera and security camera recordings.

At the conclusion of the inquest retired Judge Candace Cooper will determine the cause and manner of Williams death.

In November, 2020 the Medical Examiner-Coroner held an inquest to examine the death of Andres Guardado, 18, who was killed by deputies near an auto shop on West Redondo Beach Blvd. in June, 2020.

The inquest concluded with the same findings as the autopsy examination of Guardado: that hed been shot in the back five times.

The deputy who fired the shots, Miguel Vega, did not attend the inquest and said in a letter from his attorney that were he present he would have refused to answer questions by asserting his Fifth Amendment privilege against self-incrimination.

Several other Sheriffs employees, including the homicide detectives assigned to investigate the case, also asserted the Fifth Amendment privilege when they were questioned about the facts of the case.

Both inquests were prompted by members of the Board of Supervisors who complained the Sheriffs Department has been resistant to public oversight and has not been forthcoming with details about the killings.

Here is the original post:
Inquest: Man Killed by Deputies in Willowbrook Was Shot in the Back - NBC Southern California