Thank you for sharing!

Your article was successfully shared with the contacts you provided.
ADMINISTRATIVE LAW Final decision includes denial of review request A final decision of the commissioner of Social Security includes the appeals council’s denial of a request for review, the 5th U.S. Circuit Court of Appeals determined on March 31. Higginbotham v. Barnhart, No. 04-10197. After the Social Security Administration denied Charles Higginbotham’s application for Social Security insurance benefits, he was granted a hearing before an administrative law judge. The ALJ denied his claim because he could not sustain a claim of total disability. While Higginbotham’s request for a review by the appeals council was pending, he submitted a medical-source statement by his treating physician concluding that he suffered a complete loss of ability to perform regular employment activity. Despite the statement, the appeals council also denied Higginbotham’s claim. A Texas federal court affirmed the appeals council’s denial after having refused to consider the new evidence of the doctor’s statement. The 5th Circuit vacated and remanded. The Social Security Act, 42 U.S.C. 405(g), states that courts may review “any final decision of the Commissioner of Social Security.” While the act does not define “final decision,” the regulations include denial of review by the appeals council as part of the commissioner’s final decision. 20 C.F.R. 416.1400(a)(5) provides that “[w]hen you have completed the steps of the administrative review process . . . we will have made our final decision. If you are dissatisfied with our final decision, you may request judicial review by filing an action in a Federal district court.” Full text of the decision BANKRUPTCY Minn. home exemption covers out-of-state home Minnesota’s homestead exemption may be applied to a residence located outside of the state, the 8th U.S. Circuit Court of Appeals ruled on March 31. In re Drenttel, No. 04-2335. Bradley and Mary Drenttel lived in Minnesota until June 2003. At that time, they sold their Minnesota home and bought a home in Arizona. The following month they filed for Chapter 7 bankruptcy in Minnesota. The bankruptcy trustee objected to the Drenttels’ claim that the Arizona property was exempt from their bankruptcy estate under Minnesota’s statutory homestead exemption. The bankruptcy court affirmed. The Bankruptcy Appellate Panel reversed. The 8th Circuit affirmed. Minn. Stat. �� 510.01 and 510.02 allow an exemption of up to $200,000 for a house owned and occupied by a debtor as the debtor’s dwelling place, together with the land upon which it is situated. The policy behind Minnesota’s homestead exemption is to protect the debtor’s family and reduce the need for state services. Finding that the location of the home was irrelevant, the court said that allowing the exemption for the Arizona home is consistent with the policy behind the statute. Full text of the decision CIVIL PRACTICE IDEA actions allow for recovery of expert’s fees A prevailing plaintiff in an Individual With Disabilities Education Act (IDEA) action may recover expert fees under the act’s fee-shifting provisions, the 2d U.S. Circuit Court of Appeals ruled on March 29 in an issue of first impression. Murphy v. Arlington Central School Dist. Bd. of Ed., No. 03-7850. Acting pro se, Pearl and Theodore Murphy successfully sued the Arlington, N.Y., school system in an IDEA suit, requiring the school district to pay for their son’s tuition at a private school. After the case was affirmed on appeal, the Murphys filed an application to have the school district pay a $29,350 fee for an educational consultant. The district opposed the application, finding fault with the consultant’s qualifications, record keeping and daily rate of charge. A New York court allowed for $8,650 of the consultant’s fees, refusing to award fees for work the consultant performed that was similar to an attorney’s work. The 2d Circuit affirmed. Although “costs” is a term of art that generally does not include expert fees in civil rights fee-shifting statutes, the court found that Congress intended to authorize the reimbursement of expert fees in IDEA actions. Nonetheless, applications for fees cannot be approved unless they’re accompanied by contemporaneously maintained records. The records in this case were not adequate, but the court refused to apply the new rule retroactively and affirmed the award of fees to the Murphys. Full text of the decision CRIMINAL PRACTICE ‘Hearing’ right is not a right to an oral argument The right to a “hearing” does not mean the right to oral argument, the Utah Supreme Court held on March 29. Perez-Llamas v. Utah Court of Appeals, No. 20041136. Luis Perez-Llamas unsuccessfully moved to suppress certain evidence in the drug case against him and entered a conditional guilty plea. Upon being sentenced, Perez-Llamas filed an application for a certificate of probable cause, which the trial court denied. He then filed an application on appeal with the intermediate appellate court, to which the state responded in writing. That court denied the application, holding that Perez-Llamas had failed to meet the substantive criteria. He then petitioned for an order directing the court of appeals to provide him with a hearing pursuant to Fed. R. Crim. P. 27(e), which provides essentially an expedited procedure for determining a convicted defendant’s eligibility for release on bail pending resolution of the appeal. The Utah Supreme Court denied the petition, holding that the appellate court had already provided a “hearing” within the context of the relevant rules. Perez-Llamas contended that the rule requires an “oral” hearing, either in the form of argument on the merits of the petition or a full evidentiary review. The court said “oral argument is a tool . . . not an independent due process right,” and an opportunity to be heard does “not always mean a party’s voice must be orally transmitted to the ear of a judge.” Rather, it refers to a “meaningful opportunity to submit relevant information and persuasive legal reasoning to the court.” Full text of the decision EMPLOYMENT Employees can’t be made to take a polygraph test An employer violated the Employee Polygraph Protection Act (EPPA) when it asked that its employees take a polygraph test, the 11th U.S. Circuit Court of Appeals ruled on March 29. Polkey v. Transtecs Corp., No. 04-14949. Sabrina Polkey was a mailroom supervisor at Transtecs Corp., a Department of Defense contractor. One day, Polkey discovered 14 opened and undelivered Christmas cards in a wastebasket. After Polkey informed her supervisor, Transtecs arranged for polygraph testing for all the employees who worked in the mailroom and asked each of them voluntarily to submit to the testing. After testing of the first employee indicated that he was likely the one responsible for mail tampering, the other employees refused to take the test, fearing they would be inaccurately implicated. Polkey was fired less than one week later for an apparently unrelated reason. A Florida federal district court granted summary judgment to Polkey on her claim that Transtecs’ request that she take a polygraph test violated EPPA, 29 U.S.C. 2002(1). Transtecs appealed, claiming that its polygraph request fell within two of EPPA’s exemptions: the national defense and ongoing-investigation exemptions. The 11th Circuit affirmed. EPPA makes it unlawful for a covered employer to “directly or indirectly require, request, suggest, or cause any employee . . . to take or submit to any lie detector test.” The court held that the national defense exemption extends only to the federal government, not to defense contractors, and that the second exemption also did not apply because, at the time Transtecs made its second polygraph request, the company lacked reasonable suspicion as to her involvement in the mail incident. Full text of the decision EVIDENCE OSHA’s surprise public street inspection is OK The fourth amendment does not call for suppression of evidence from a surprise Occupational Safety and Health Administration (OSHA) inspection of a work site on a public street, the 7th U.S. Circuit Court of Appeals held on March 28. Lakeland Enterprises of Rhinelander Inc. v. Chao, No. 03-3697. Lakeland, a contractor, was engaged in an excavation project on a public street in Wisconsin when Chad Greenwood, an OSHA compliance officer, happened by. He saw a worker in the trench, which contained neither a ladder nor a trench box (to prop up walls to prevent collapse). Greenwood videotaped the scene and took some measurements and samples. Lakeland was cited for willful violation of a regulation that requires certain cave-in protections for workers in trenches. Lakeland said the evidence from the inspection should have been suppressed because there was no warrant. An administrative law judge held that Lakeland had no privacy right because the road was public and Lakeland waived any Fourth Amendment claim by failing to object to the inspection. The 7th Circuit denied the petition for review. Saying it is an open question in the circuit whether the exclusionary rule applies to OSHA civil enforcement proceedings, the court said that the issue did not have to be resolved in this case, because the site was a public street, at which Lakeland had no reasonable expectation of privacy. The court further agreed with the administrative law judge that Lakeland’s failure to object to the inspection constituted consent or waiver. Full text of the decision GOVERNMENT Eleventh Amendment no bar to escheat recovery A district court erred in dismissing a suit by two individuals seeking to recover stock escheated to the state of California, because the 11th Amendment to the U.S. Constitution does not bar an attempt to recover the stock from the state, the 9th U.S. Circuit Court of Appeals held on March 29. Taylor v. Westly, No. 02-02407. Chris Taylor, a former Intel Corp. employee, and Nancy Pepple-Gonsalves, a former Trans World Airlines (TWA) employee, sued California’s state controller, alleging that their employer-paid stock was unlawfully escheated to the state as “unclaimed property” because they had not cashed dividend checks, responded to proxy notices or otherwise communicated with Intel or TWA for three years. As required by California law, Intel and TWA issued duplicate shareholder certificates to the state, and the state sold the stock. Taylor and Pepple-Gonsalves argued that their companies knew or could have easily discovered their whereabouts, and that the state had failed to follow proper notice procedures. A district court dismissed the suit, holding that, under the 11th Amendment, it lacked jurisdiction. Reversing, the 9th Circuit distinguished between escheated property and permanently escheated property in California, holding that the suit was not barred because the stocks had not escheated permanently. The court said, “The State of California’s sovereign immunity applies to the state’s money. Money that the state holds in custody for the benefit of private individuals is not the state’s money, any more than towed cars are the state’s cars. Thus, where a permanent escheat determination has not yet been made, the state’s Eleventh Amendment immunity from suit against it for damages payable from its treasury has no application to escheated property and sales proceeds from escheated property.” Full text of the decision INSURANCE LAW Fla. law calling for billing in 30 days constitutional A Florida law mandating that certain medical service providers bill insurance companies within 30 days or forfeit their right to collect did not violate the U.S. Constitution, the Florida Supreme Court held on March 31. Warren v. State Farm Mut. Ins. Co., No. SC02-285. As part of its Motor Vehicle No Fault Law, the state of Florida passed Fla. Stat. ch. 627.736(5)(b), which provided that nonhospital medical providers failing to bill insurance companies for services within 30 days forfeited their right to collect from the provider or the patient. Dan Warren and his physician, Jack Rotstein, sued State Farm Mutual Insurance Co. after State Farm, citing the 30-day limit, refused to pay for Rotstein’s treatment of Warren. A trial court held for Warren and Rotstein, holding that the statute was unconstitutional, but an intermediate appellate court reversed. Warren and Rotstein appealed, arguing that the law violated the constitutional requirements of equal protection, due process and access to the courts. Affirming, the Florida Supreme Court rejected all three arguments, noting that, because there was no fundamental right or suspect class involved, it applied a rational basis standard. On the equal protection issue, the court held that there was no constitutional problem with treating individual physicians such as Rotstein differently from hospital billers. Noting the differences in the treatment of hospitals, ambulances and other providers, the court said that mandating different billing requirements “rationally related to this legitimate state purpose, and the classifications within the statute are reasonably designed to achieve that purpose.” Full text of the decision INTERNATIONAL LAW Palestine not a ‘state’ for sovereign immunity ends Palestine is not a “state,” so the Palestine Liberation Organization (PLO) and the Palestinian Authority (P.A.) have no sovereign immunity, the 1st U.S. Circuit Court of Appeals held on March 31. Ungar v. Palestine Liberation Organization, No. 04-2079. Members of the Hamas Islamic Resistance Movement shot two U.S. citizens to death in Israel. An Israeli court convicted four Hamas members. The administrator of the deceased’s estates filed suit under the Anti-Terrorism Act, 18 U.S.C. 2331-2338, against the P.A. and the PLO. A Rhode Island federal court rejected the defendants’ claim that the case should be dismissed because it hinges on a nonjusticiable political question, and because they enjoy sovereign immunity. After the defendants failed to answer the amended complaint and refused to participate in discovery, default judgments were entered against the P.A. and PLO in amounts exceeding $116 million each. The 1st Circuit affirmed, holding that the case is justiciable, that the P.A. and PLO have not established sovereign immunity and that their strategic litigation choices undercut their arguments as to the sequencing of the litigation. There was previously no controlling precedent in the 1st Circuit as to the essential attributes of statehood in this context, but, here, “the defendants have not carried their burden of showing that Palestine satisfied the requirements for statehood under the applicable principles of international law at any point in time.” Full text of the decision

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.