Many a breakfaster has squirmed when faced with runny yolks. But the 5th U.S. Circuit Court of Appeals has overturned a federal administrative trial court and determined that Elgin Nursing and Rehabilitation Center did not violate certain safety requirements by distributing undercooked eggs to residents. In a May 17 opinion in Elgin Nursing Rehabilitation Center v. U.S. Department of Human Services, 5th Circuit Judge Jerry E. Smith describes how Texas Department of Aging and Disability investigators visiting the Elgin institution three years ago "observed two breakfast plates with egg yolk ‘smeared around the plate’ " and concluded that, since the eggs were unpasteurized and soft cooked, they could lead to "serious illness and even death" when eaten. The opinion notes that the regulators therefore "found Elgin to be in noncompliance" with 42 C.F.R. §483.35(i), which requires facilities such as Elgin to serve food in a "sanitary" manner, and the trial court agreed. But Smith, quoting in part a 1986 decision from the D.C. U.S. Circuit Court of Appeals, states: "Allowing an agency to apply its own interpretation to an otherwise vague regulation in the context of an enforcement proceeding would unfairly surprise the sanctioned party and ‘seriously undermine the principle that agencies should provide regulated parties ‘fair warning of the conduct [a regulation] prohibits or requires.’ " Chief Judge Carl E. Stewart and Senior Judge Jacques L. Wiener Jr. joined the opinion. Juliann Panagos and Michael Seale, shareholders in the Houston office of Crain Caton & James in Houston who represent Elgin Nursing and Rehabilitation Center, welcomed the ruling. Seale says his client’s rights were vindicated. Panagos notes that now their client faces no risk of losing its ability to serve patients covered by Medicaid. She notes that the judges on the 5th Circuit panel told them their case was "most fun" of all they heard on the day of its oral arguments. Edmond Dante Anderson III, an attorney in the Office of General Counsel of the U.S. Department of Health and Human Services who represents the regulators, did not immediately return a call seeking comment.
Civic Duty for Former FLOTUS
If you noticed a bit more commotion in Dallas’ civil courthouse than usual on May 28, that’s because former first lady Laura Bush was called for jury service at the George Allen Courts Building. On a busy Tuesday after a three-day Memorial Day weekend, Bush had a better than good chance of being sent up from the central jury room to wait it out on a venire panel in a trial court — which is exactly what happened, says Gena Slaughter, who presides over the 191st District Court and handles jury service administrative matters for Dallas’ civil courthouse. "At the request of her security, she was not in the central jury room downstairs. We set her up in my jury room," Slaughter says. "She was very nice and very gracious. I explained voir dire to her and what happened next." Bush was eventually sent up to the 192nd District Court, where she was seated with a venire panel being considered for a car wreck case, but she was dismissed after a lawyer used a pre-emptory strike on the former FLOTUS. Overall, the process seemed to go smoothly, except for a few people who were not expecting to run into a flock of Secret Service agents outside Slaughter’s courtroom. "There were a lot of people with guns in my hallway," says Slaughter, who consulted with Bush’ security detail last week about her jury service. "One of my interns forgot she was coming in, and he was a little shell-shocked."
After Gen. William K. Suter retires later this year as clerk of the U.S. Supreme Court, he may write a book about his 22-year, second career at the court. But Suter, speaking to a small group on May 24 at South Texas College of Law in Houston, said his book won’t be a gossipy, secrets-revealing book like "The Brethren: Inside the Supreme Court," the 1979 book written by Bob Woodward and Scott Armstrong. "It won’t be the book you want to read," Suter said during the hour-long "Suter & Guter: An Informal Chat" with South Texas Dean Donald J. Guter. Suter, who took the job as clerk in 1991 after retiring from the U.S. Army, plans to retire from the court on Aug. 31. While in the army, he was acting judge advocate general. Suter took a number of questions from the audience but avoided much discussion of sitting Supreme Court justices. When asked to identify the justice who most impressed him, Suter talked about a judge who preceded his tenure, Louis Powell. But Suter wasn’t coy when asked to identify some of the lawyers who most impressed him during oral arguments before the court. Suter said he could easily make a list of 10 to 15 lawyers. However, he said these four former U.S. solicitors general are among the really, really good: Seth Waxman, a partner in Wilmer Cutler Pickering Hale and Dorr in Washington, D.C.; Ken Starr, president of Baylor University in Waco; Ted Olson, a partner in Gibson, Dunn & Crutcher in Washington, D.C.; and Paul Clement, a partner in Bancroft in Washington, D.C.