Biden v. Missouri

Issues

Can the Centers for Medicare and Medicaid Services continue to temporarily enforce a mandate requiring health care workers at Medicare- and Medicaid-certified facilities to be fully vaccinated against COVID-19 notwithstanding a district court injunction prohibiting the rule’s enforcement?

This case asks the Supreme Court to grant a stay of a district court injunction that currently blocks the Biden Administration from enforcing a mandate requiring certain healthcare workers to be fully vaccinated against COVID-19. The Biden Administration argues that the Supreme Court should issue a stay because the mandate is statutorily authorized, and its enforcement is in the public interest. The State of Missouri and nine other states (collectively “Missouri”) counter that the Supreme Court should reject the Biden Administration’s application for a stay and maintain enjoinment of the mandate throughout the pending litigation. The outcome of this case has significant implications for the Biden Administration’s pandemic-related authority and the role that the Supreme Court will play in either upholding or invalidating such authority.

Questions as Framed for the Court by the Parties

Whether the Supreme Court should issue a stay of the injunction issued by the United States District Court for the Eastern District of Missouri blocking a federal rule that requires all health care workers at facilities that participate in Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption.  

On November 5, 2021, the Centers for Medicare and Medicaid Services’ (“CMS”), an agency within the Department of Health and Human Services (“HHS”), promulgated 86 Fed. Reg.

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United States v. Taylor

Issues

Does attempted robbery under the Hobbs Act qualify as a “crime of violence” under a federal law that imposes a mandatory minimum sentence of five years for using a gun during a crime of violence?

This case asks the Supreme Court to determine whether attempted robbery under the Hobbs Act qualifies as a “crime of violence” under a federal statute that imposes a mandatory minimum sentence of five years for using a gun during a crime of violence. The United States argues that the Hobbs Act treats an attempted and a completed robbery no differently for the purposes of determining a crime of violence; moreover, even if the attempted use of physical force does not cover attempted robbery, the threatened use of such force does include attempted Hobbs Act robbery. In response, Justin Taylor argues that an attempted Hobbs Act robbery is not a crime of violence, because it does not require an act that would constitute the attempted use or threatened use of force. The outcome of this case has important implications for consistency in the application of law and proportionality in the sentencing system.

Questions as Framed for the Court by the Parties

Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).

In 2003, respondent Justin Taylor (“Taylor”) agreed to sell marijuana to Martin Sylvester (“Sylvester”). United States v. Taylor at 205. He then conspired with an unnamed co-conspirator to steal Sylvester’s money instead. Id.

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CVS Pharmacy, Inc. v. Doe

Issues

Does Section 504 of the Rehabilitation Act’s prohibition on discrimination based on disability provide a cause of action for plaintiffs who allege that a neutral policy disproportionately burdened them?

This case would have asked the Court to determine whether Section 504 of the Rehabilitation Act, which prohibits discrimination based on disability, provides a cause of action for disparate impact claims. Numerous John Does use CVS Pharmacy’s prescription plan for medication to treat HIV/AIDS, which only allows drugs to be dispensed through mail or CVS pharmacies. These John Does sued, arguing that this plan had a disparate impact on individuals living with HIV/AIDS and meaningfully impacted their health. Petitioners CVS Pharmacy et al. contend that claims under Section 504, which is incorporated in Section 1557 of the Affordable Care Act, require evidence of discriminatory intent or differential treatment. Respondents John Doe, et al., argue that Section 504 provides for disparate impact claims. Although this case will no longer be argued in front of the Court, due to an agreement for dismissal by the parties, the case could have had implications for the administration of health insurance and pharmacy benefits programs, and the risk of litigation.

Questions as Framed for the Court by the Parties

Whether Section 504 of the Rehabilitation Act of 1973 — and by extension Section 1557 of the Patient Protection and Affordable Care Act, which incorporates the “enforcement mechanisms” of other federal antidiscrimination statutes — provides a disparate-impact cause of action for plaintiffs alleging disability discrimination.

Petitioners, CVS Pharmacy, Inc., Caremark L.L.C. and Caremark California Specialty Pharmacy, L.L.C., (collectively “CVS”) are all affiliates of CVS Health Corporation. Doe v. CVS Pharmacy, at 1207. Respondents John Doe et al. (“Does”) are enrolled in CVS’s prescription benefit plan for medication to treat HIV/AIDS.

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Carson v. Makin

Issues

Can a state restrict students’ access to a state-sponsored financial assistance program when the aid would fund attending private religious schools with religious teaching?

This case asks the Supreme Court to balance state public school funding schemes and First Amendment religious freedoms. Maine enacted a law for School Administrative Units without public secondary schools that allows them to provide tuition assistance for students to attend approved, nonsectarian private schools. Carson, Gillis, and Nelson (collectively “Carson”) contend that the nonsectarian requirement constitutes religious discrimination in violation of the Free Exercise Clause of the First Amendment. Makin, in her official capacity as the Commissioner of the Maine Department of Education, counters that Maine’s public school funding scheme is permissible because its purpose of funding secular public education implicates only religious “use” and not religious “status.” The outcome of this case has heavy implications for religious freedom, state school funding schemes, and accessibility to schooling.

Questions as Framed for the Court by the Parties

Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.

Maine’s constitution mandates the state legislature to require towns to provide “support and maintenance” of public schools at the towns’ own expenses. Carson v. Makin at 25. To do so, the legislature divided the state into 260 school administrative units (“SAUs”) and required that each SAU “make suitable provisions” to maintain and support public schools. Id. Less than half of the SAUs contain a public secondary school. Id.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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Hughes v. Northwestern University

Issues

Whether allegations that an employer 403(b) retirement plan charged excessive fees when lower cost investment products and services were available are sufficient to bring a claim for a breach of fiduciary duty under ERISA?

This case asks the Supreme Court to determine the standard to bring a claim that applies to a breach of fiduciary duty under the Employment Retirement Income Security Act (“ERISA”) for allegations of excessive investment fees and recordkeeping fees. April Hughes and other employees at Northwestern University brought suit, claiming Northwestern’s breach of fiduciary duty in ERISA retirement plans, pointing to a large investment option menu and higher-than-average fees. In particular, petitioner April Hughes and others argue that an ERISA’s fiduciary duty of care stems from trust law, and that Northwestern’s imprudent investment and recordkeeping decisions caused excessive fees and breached their duty of care. Respondent Northwestern University answers that context-specific scrutiny is the proper standard for fiduciary duty under ERISA, and that its plan’s cost reflects its prudent investment and recordkeeping decisions. The outcome of this case will impact those people that participate in savings programs that are offered by their employers and the employers themselves, as well the fiduciary duties of said employers, the rights of the beneficiaries, and the available investment options of the beneficiaries. 

Questions as Framed for the Court by the Parties

Whether allegations that a defined-contribution retirement plan paid or charged its  participants fees that substantially exceeded fees for  alternative available investment products or services are sufficient to state a claim against plan fiduciaries for breach of the duty of prudence under the Employee Retirement Income Security Act of 1974?

April Hughes, Laura Divane, and others (collectively referred to as “Hughes”), employees at Northwestern University (“Northwestern”), entered into defined contribution plans, administered and developed by their employer Northwestern, under the Employee Retirement Income Security Act (“ERISA”). Divane, et al. v. Northwestern University, et al. at 983.

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Patel v. Garland

Issues

Under the Immigration and Nationality Act, when can a federal court review a decision that a noncitizen was not eligible to request relief from removal proceedings?

This case asks the Supreme Court to determine whether 8 U.S.C. § 1252(a)(2)(B)(i) allows a federal court to review decisions by an executive agency holding that a noncitizen was not eligible for relief from removal. The Eleventh Circuit claimed judicial review of such decisions was barred by 8 U.S.C. § 1252(a)(2)(B)(i) and declined to review a Board of Immigration Appeals decision, which held that because Petitioner Pankajkumar Patel (“Patel”) had previously made a false statement to a federal agency, he was not eligible for such relief. Patel appealed, arguing that 8 U.S.C. § 1252(a)(2)(B)(i) merely bars judicial review of decisions to grant relief, not the prerequisite eligibility decisions. Respondent Attorney General Merrick Garland (“Garland”) interprets the provision to bar judicial review of any discretionary decision, including some eligibility decisions, although he agrees that the Eleventh Circuit erred in holding that 8 U.S.C. § 1252(a)(2)(B)(i) prohibits judicial review of Patel’s particular eligibility decision. This case has important implications for the future of immigration law and procedure, the status of noncitizens in the United States, and the jurisdiction of federal courts.

Questions as Framed for the Court by the Parties

Whether 8 U.S.C. 1252(a)(2)(B)(i) preserves the jurisdiction of federal courts to review a non-discretionary determination that a noncitizen is ineligible for certain types of discretionary relief from removal.

Patel came to the United States from India with his family in 1992. Patel v. Att’y Gen. (“Patel I”) at 1322. Patel entered the country unlawfully in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Under this statute, the government must either admit or parole foreign citizens upon entry.

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Shinn v. Ramirez

Issues

Are habeas claimants who raise an ineffective assistance of trial counsel claim in federal habeas proceedings despite having failed to raise such a claim at the state court level, as allowed under the Martinez exception, then permitted to develop evidence to support these claims despite 28 U.S.C. § 2254(e)(2)’s bar on such federal evidentiary development?

This case asks the Supreme Court whether a provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) bars a federal court from allowing habeas petitioners that fall under Martinez’s procedural-default exception to submit evidence beyond the state record in support of their claims. Petitioners David Shinn and Walter Hensley contend that expanding Martinez’s narrow procedural-default exception risks providing a free pass to federal courts that will incentivize forum-shopping, encourage the withholding of evidence, undermine state sovereignty, and contravene the purpose of AEDPA, which is to limit access to federal evidentiary review. Respondents David Martinez Ramirez and Barry Lee Jones respond that barring evidentiary development in federal court places prisoners in an absurd Catch-22 wherein their procedural defaults are excused due to ineffective counsel and yet they are barred from correcting the deficiencies in their state record due to that same counsel’s negligence. This case implicates federalism concerns over the depth of federal review of state criminal and habeas proceedings and the strength of the Sixth Amendment right to counsel, particularly for indigent, innocent, and mentally ill defendants.      

Questions as Framed for the Court by the Parties

Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

Barry Lee Jones

Acknowledgments

The authors would like to thank Professor John H. Blume for his guidance and insights into this case.

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Becerra v. Empire Health Foundation

Issues

Did the Secretary of the Health and Human Services permissibly include in a hospital’s Medicare reimbursement calculation all the days that a hospital treated patients who satisfied the requirements to be entitled to Medicare Part A benefits, regardless of whether Medicare paid the hospital for those particular days?

This case asks the Supreme Court to determine whether an agency had the authority to interpret the Medicare statute and change the calculation of payments distributed to hospitals that serve low-income patients who receive Medicare benefits. Petitioner Xavier Becerra, the Secretary of Health and Human Services, argues that the Department of Health and Human Services properly followed the procedural and substantive requirements of the Administrative Procedure Act when implementing its interpretation of the meaning of “entitled to” Medicare benefits in effecting a new calculation for determining two different pools of low-income patients. Respondent Empire Health Foundation counters that the agency’s rule causes a severe undercount of the low-income patient pool, causing those hospitals that serve indigent patients to receive a significantly lower reimbursement amount. The outcome of this case has important implications for the distribution of Medicaid funding and the extension of deference to government agencies’ reasonable interpretations of legislation.

Questions as Framed for the Court by the Parties

Whether, for purposes of calculating additional payment for hospitals that serve a “significantly disproportionate number of low-income patients,” the secretary of health and human services has permissibly included in a hospital’s Medicare fraction all of the hospital’s patient days of individuals who satisfy the requirements to be entitled to Medicare Part A benefits, regardless of whether Medicare paid the hospital for those particular days.

The Medicare program currently provides additional payments, known as the disproportionate-share-hospital (“DSH”) adjustment, to hospitals that treat a significantly higher number of low-in

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Cummings v. Premier Rehab Keller, P.L.L.C.

Issues

Are damages for emotional distress available under the Rehabilitation Act and the Affordable Care Act?

This case asks the Supreme Court to consider whether compensatory damages are available for emotional distress in victims of discrimination cases. Jane Cummings (“Cummings”) is deaf and legally blind, and she requested an ASL interpreter for physical therapy sessions. Premier Rehab Keller, P.L.L.C. (“Premier”) denied Cummings’ request for an ASL interpreter. Petitioner Cummings argues that under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, compensatory damages are available for emotional distress. Respondent Premier counters that emotional distress damages are not appropriate remedies under the Rehabilitation Act and Affordable Care Act. The outcome of this case has important implications for victims of discrimination as well as for federal funding recipients.

Questions as Framed for the Court by the Parties

Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress.

In October 2016, Petitioner Jane Cummings contacted Respondent Premier Rehab Keller, P.L.L.C. (“Premier”) seeking physical therapy services. Cummings v. Premier Rehab Keller, P.L.L.C. at 674. Cummings was born deaf and legally blind, and she primarily communicates through American Sign Language (“ASL”) due to her difficulties speaking, reading, and writing in English.

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Dobbs v. Jackson Women’s Health Organization

Issues

Are all pre-viability prohibitions on elective abortions unconstitutional?

This case asks the Supreme Court to determine whether Mississippi’s ban on all elective abortions after fifteen weeks of pregnancy is constitutional. Petitioner Thomas Dobbs argues that the Court should overturn the precedent establishing a constitutional right to pre-viability abortions—Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey—or alternatively, reject viability as a measuring tool. In response, Respondent Women’s Health Center contends that the Court should uphold the constitutional right to abortion because there is no compelling reason to overrule the previous abortion precedents finding such a right. The Court’s decision on this case has serious implications for the rights of women, the role of religion in law-making, and stare decisis.

Questions as Framed for the Court by the Parties

Whether all pre-viability prohibitions on elective abortions are unconstitutional or not?

In 2018, Mississippi passed the Gestational Age Act (“HB 1510”), which prohibits abortions after 15 weeks, except for in cases of medical emergency or severe fetal abnormality. Jackson Women's Health Org. v. Dobbs at 269.

Acknowledgments

The authors would like to thank Professor Sheri Lynn Johnson for her insights into this case.

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