Kennedy v. Braidwood Management, Inc.

Issues

Does the structure of the U.S. Preventive Services Task Force violate the Constitution's appointments clause by failing to put principal officers through Senate confirmation, and if so, can this defect be cured by severing the offending provisions?

This case concerns whether certain government task forces can issue binding recommendations without violating the Appointments Clause of the Constitution. The Health and Human Services (“HHS”) Department Preventative Services Task Force (“Task Force”), currently appointed by the HHS Secretary without the confirmation of the Senate, offers binding recommendations concerning mandatory coverage by employer insurance for certain preventative treatments under the Affordable Care Act. Braidwood Management contends that these recommendations by the Task Force are illegitimate because the members were not appointed by the President and confirmed by the Senate as principal officers. HHS Secretary Robert F. Kennedy Jr. argues that the current appointment procedures suffice since the Task Force is composed of inferior officers who can be reviewed and fired at-will by the HHS Secretary. This case has wide-ranging implications, from potentially altering the structure of mandated healthcare under the ACA’s insurance to affecting the long-established method by which task forces, advisory bodies, and administrative panels must be appointed.

Questions as Framed for the Court by the Parties

Whether the U.S. Court of Appeals for the Fifth Circuit erred in holding that the structure of the U.S. Preventive Services Task Force violates the Constitution's Appointments Clause and in declining to sever the statutory provision that it found to unduly insulate the Task Force from the Health & Human Services Secretary’s supervision.

The Patient Protection and Affordable Care Act ("ACA"), requires private health insurance companies to cover certain types of preventive care services. Braidwood Mgmt. v.

Acknowledgments

The authors would like to thank Professor Michael Dorf for his insights into this case.

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Mahmoud v. Taylor

Issues

Does a public school burden a family’s religious exercise when it requires elementary school children to participate in instruction on gender and sexuality, against the family’s religious convictions, without notice or opportunity to opt out?

This case asks whether a public school violates the Free Exercise Clause when it includes books containing LGBTQ characters in its curriculum and does not allow families to exempt their children’s exposure to such books on religious grounds. Petitioners argue that their children’s exposure to books that contain LGBTQ characters and themes burdens their religious exercise and that their claims should be examined under strict scrutiny, a rigorous standard of review. Respondents counter that free exercise claims must be supported by evidence of coercion, not mere exposure to ideas that go against one’s religion, and that their actions need only meet a rational basis standard of review. This case holds major implications for the future of LGBTQ education and the scope of religious and parental rights.

Questions as Framed for the Court by the Parties

Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.

The Free Exercise Clause of the First Amendment states that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” Mahmoud v.

Acknowledgments

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

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Parrish v. United States

Issues

When a court grants a motion to reopen the time to file a notice of appeal pursuant to 28 U.S.C. § 2107(c) and Federal Rule of Appellate Procedure (“FRAP”) 4(a)(6) — and that motion itself could have functioned as a notice of appeal — must a litigant file an additional notice of appeal within 14 days?

This case asks the Supreme Court to decide whether a motion to reopen the window to file a notice of appeal can itself constitute a premature, yet permissible notice of appeal filed within the reopened window should that motion be granted. If yes, a litigant who, for good reason, fails to file a notice of appeal within the standard 30­–day deadline will often only have to make one filing in order to successfully appeal nonetheless. If no, that litigant will have to first seek leave to appeal and then, if that leave is granted, file a notice of appeal within 14 days. Donte Parrish argues that the forgiving purpose of late-appeal provisions and common sense plainly dictate that because a motion to reopen that puts the opposing party on notice of appeal functions as a notice of appeal, such a motion should later be treated as a notice of appeal filed if that motion is granted. The United States — the opposing party in this case — agrees. But the Court of Appeals for the Fourth Circuit disagreed, and Michael Huston, an attorney appointed by the Supreme Court to defend that ruling, argues that regardless of whether Parrish’s position is reasonable or not, caselaw and statute reject it. The outcome of this case will resolve a split between the Courts of Appeals and determine the proper to balance to be struck between protecting pro se litigants and ensuring that procedural law functions predictably.

Questions as Framed for the Court by the Parties

Whether a litigant who files a notice of appeal after the ordinary appeal period under 28 U.S.C. § 2107(a)-(b) expires must file a second, duplicative notice after the appeal period is reopened under subsection (c) of the statute and Federal Rule of Appellate Procedure 4.

Under 28 U.S.

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Beklagter gegen Kläger; Österreichischer Oberster Gerichtshof; Entscheidung vom 22. März 2023 - 7 Ob 38/23y (surveillance)

Applicant v. Respondent; Austrian Supreme Court (Oberster Gerichtshof); decision dated March 22, 2023 - 7 Ob 38/23y

The systematic and covert technical surveillance of a spouse’s highly personal area of life, resulting in psychological stress, justifies the issuance of a temporary injunction against the spouse pursuant to Section 382c and Section 382d Execution Order (Exekutionsordnung - EO).

Nachbar gegen Nachbar; Österreichischer Oberster Gerichtshofs; Entscheidung vom 15. Dezember 2015 - 8Ob129/15a (stalking, damages)

Neighbor v. Neighbor; Austrian Supreme Court (Oberster Gerichtshof); decision dated December 15, 2015 – 8Ob129/15a

In the event of significant violations of privacy, the persistently persecuted person can assert a claim for compensation against the stalker for the personal injury suffered as a result of the stalking. The assessment of the amount of compensation is a case-by-case decision and only unlawful if the Court of Appeal exceeded its discretionary authority.

Facts of the Case

Arbeitnehmer gegen Arbeitgeber; Österreichischer Oberster Gerichtshof; Entscheidung vom 26. Mai 2014 - 8 ObA 55/13s (reporting workplace sexual harassment)

Employee v. Employer; Austrian Supreme Court (Oberster Gerichtshof); decision dated May 26, 2014– 8 ObA 55/13s

According to the court's decision, the employer bears the burden of proof for the grounds for termination and dismissal asserted by the employer. If the employer bases termination on the possibility that the employee falsely accused her superior of sexual harassment, the employer must prove that the employee knowingly made false accusations, thus providing a valid reason for termination.

Facts of the Case

§ 382b und § 382e Exekutionsordnung – in Kraft getreten am 1. Juli 2021 (protection from violence in homes)

Section 382b and Section 382e Execution Order (Exekutionsordnung) entered into force on July 1, 2021. According to this provision, the person at risk can apply to the court for a temporary injunction to enforce a prohibition on entering the home for more than two weeks.

§ 38a Sicherheitspolizeigesetz – in Kraft getreten am 1. September 2021 (Security Police Act)

Section 38a Security Police Act (Sicherheitspolizeigesetz), which entered into force on September 1, 2021, states that in the event of (imminent) domestic violence, the police can order the person posing the danger to leave the apartment/house where the person at risk resides (removal order) and prohibit them from returning for two weeks (ban on entry). The assessment of the danger, and therefore the decision whether to issue a removal order and/or impose a ban on entry, is the sole responsibility of the police.

§ 49 Österreichisches Ehegesetz (EheG) Scheidung wegen Verschuldens (Eheverfehlungen) – in Kraft getreten am 1. Januar 2000 (marital misconduct)

Section 49 of the Austrian Marriage Act (Ehegesetz), Divorce due to fault (marital misconduct), entered into force on January 1, 2000.

Section 49 lists marital misconduct as grounds for divorce. According to this, a spouse can demand a divorce if the other has culpably caused a deep breakdown of the marriage through serious marital misconduct or dishonorable, immoral conduct, making the restoration of cohabitation unreasonable. Serious misconduct applies, for example, if one spouse has used physical violence or committed adultery.

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