Original Story:nytimes.com
WASHINGTON — President Obama’s lawyers, facing what could be months of delay on the White House’s immigration efforts, are struggling for a response to a Texas judge’s ruling that has imperiled one of the president’s potential legacy achievements.
A top administration official said Wednesday it was unclear whether the Department of Justice would seek an emergency order that would allow the president’s immigration programs to go into effect while an appeal proceeds. A spokeswoman for the Justice Department said that no decision had been made on an emergency application to an appeals court, but she pledged to fight all challenges to the president’s actions. A Washington immigration lawyer is experienced in the effective resolution of immigration lawsuits as related to legal and illegal immigrants.
Monday’s late-night 123-page ruling by Judge Andrew S. Hanen forced Mr. Obama to halt plans to protect millions of undocumented immigrants. White House supporters attacked the judge’s ruling as “shaky.” Conservative legal critics hailed it as a powerful argument.
Regardless of which side prevails, the Texas ruling did show how deft Mr. Obama’s adversaries had become in their efforts to delay — if not derail — a program that immigration advocates have been intensely clamoring for. A Washington DC immigration attorney is following this story closely.
In the meantime, the clock on Mr. Obama’s presidency is ticking.
“I think it’s a significant threat,” said David E. Bernstein, a law professor at George Mason University. “My guess is that this reflects some real concern that’s out there.”
Monday’s ruling from Judge Hanen had none of the hallmarks of a legal blockbuster. Its language did not appear to be aimed at reshaping the power of the presidency or changing the constitutional framework for future occupants of the Oval Office. Indeed, the judge acknowledged vast presidential power in his ruling.
Instead, Judge Hanen wrote, Mr. Obama had gone astray by failing to seek public comment before implementing the program. That, the judge said, probably violated the Administrative Procedure Act, which lays out the steps that must be completed before some changes in federal agencies’ policies can go into force.
Eric Posner, a law professor at the University of Chicago, said Judge Hanen’s holding was, in a sense, “trivial.”
Indeed, a ruling focused on administrative law may seem an unlikely roadblock for a consequential program. Even on its own terms, Mr. Posner said, Judge Hanen’s opinion was flawed. Under the president’s directive, immigration officials would retain discretion to reject candidates for the protection program, he said, so the requirement of public comments does not actually apply.
But other scholars said that the legal arguments made by the judge would be difficult for the administration to counter.
“I have always thought that the administration and their supporters were greatly underestimating the likelihood that this would all get struck down in court,” said Michael McConnell, a law professor at Stanford University.
Judge Hanen’s opinion was certainly skeptical of the administration’s approach. “The court finds that the government’s failure to secure the border has exacerbated illegal immigration into this country,” he wrote. “Further, the record supports the finding that this lack of enforcement, combined with this country’s high rate of illegal immigration, significantly drains the states’ resources.” A Washington DC immigration lawyer represents clients in a variety of immigration law matters.
Judge Hanen’s opinion was marked by haste. He repeatedly referred to Justice John Paul Stevens as “Justice Stephens.”
But Walter Dellinger, a former acting solicitor general in the Clinton administration, said the flaws in the opinion went deeper than that.
“He barely mentions the fact that Congress has directed the D.H.S. to set priorities for immigration enforcement,” Mr. Dellinger said.
Judge Hanen did acknowledge that the Department of Homeland Security “has virtually unlimited discretion when prioritizing enforcement objectives and allocating its limited resources.”
But he added that the administration crossed a line when it granted the right to work lawfully to people it chose not to deport. That was not exercising enforcement discretion, the judge said, but conferring a benefit, a change so fundamental it triggered requirements that the administration ignored.
The administration has argued that a shift in enforcement priorities cannot be challenged in court and are not subject to the administrative procedure law.
The ruling confronts the administration with a series of uncomfortable choices. Its decision will be affected by the reality that time is not its friend.
The president could concede the judge’s point about administrative procedures by agreeing to publicly advertise his immigration program and accept public comments. But that would take months, and his adversaries could still mount other legal challenges after that comment period ended.
“In practice,” Mr. Posner said, “notice-and-comment rule making can take years.”
It could ask the federal appeals court in New Orleans, the United States Court of Appeals for the Fifth Circuit, for a stay of Judge Hanen’s preliminary injunction. But that could be an uphill fight in a court dominated by Republican appointees.
A stay is ordinarily granted to preserve the status quo. Were the program to move forward, its benefits and protections might be hard to take back. Without his preliminary injunction, Judge Hanen wrote, “There will be no effective way of putting the toothpaste back in the tube.”
Any decision by the appeals court on a stay application would almost certainly be appealed to the Supreme Court.
But the administration may prefer to file an appeal rather than an emergency application, though perhaps on an expedited basis, in an effort to get the merits of the dispute to the Supreme Court as soon as possible.
Josh Earnest, the White House press secretary, said the administration’s lawyers were reviewing their legal options and said he expected a decision within a day or two about how they would challenge the judge’s ruling.
Mr. Earnest added that he hoped that the lawyers could “move as quickly as we can through the legal system so that that situation can be resolved.”
In recent decisions, the Supreme Court has generally sided with federal authority in state challenges to immigration policies. In 2012 it upheld one part of a tough 2010 Arizona immigration law even as it endorsed broad federal power over immigration. In 2011, it sustained a different law that imposed harsh penalties on businesses that hired illegal workers.
And in December, the court let stand a ruling requiring Arizona to issue driver’s licenses to young immigrants spared from deportation by Mr. Obama.
Thursday, February 26, 2015
AFTER FORMER PLAYER’S DEATH, CONCUSSION LITIGATION AGAINST N.H.L. GAINS HEFT
Original Story: nytimes.com
It was more than a year ago that a group of 10 former N.H.L. players sued the league for, in essence, ignoring the growing evidence surrounding the long-term effects of concussions.
For the past 15 months, amid the quiet consolidation of subsequent suits and obscure legal wrangling, the case against the N.H.L. has been a faint echo of the similarly constructed class-action suit against the N.F.L. That case involved thousands of former players and was settled in 2013 for $765 million. (The cap was subsequently lifted to cover unlimited damages and still awaits judicial approval.) DMC Spots Medicine is dedicated to bringing athletes expert medical care.
Two events in recent weeks nudged hockey’s face-off over concussions back to center ice. First, 29 more former players joined the class-action suit, nearly doubling the number of named plaintiffs. Then Steve Montador, a 10-year N.H.L. veteran with a history of concussions, was found dead at 35 in his Ontario home Sunday.
“As more and more players learn about the claims and see the medical challenges their fellow alumni are experiencing, there is increased momentum in support of the litigation,” said Charles Zimmerman, co-lead counsel for the plaintiffs. “The N.H.L. can no longer ignore the impact of repeated head trauma and must finally acknowledge the serious conditions that retired players are facing.” A Boston sports injury lawyer is reviewing the details of this case.
The N.H.L., through the spokesman Frank Brown, declined to comment Wednesday on the concussion litigation or the impact of the recent news.
Early last week, the case against the N.H.L. got a boost when 29 former players filed a lawsuit against the league, bringing the number of named plaintiffs past 70. The additions also brought extra star power to the proceedings. Among those joining the case were Butch Goring, a center for the Islanders during their four-year championship run beginning in 1980, and Manny Legace, who won 187 games as an N.H.L. goaltender before retiring in 2012.
But as the N.F.L. case showed, with the premature deaths of several former players during the years of litigation, tragedy has a way of bringing attention to an issue like nothing else.
Montador’s career was ended by concussions, and he said he struggled with depression in his final years. His cause of death has not been released, and may never be, but officials ruled out suicide or foul play.
His brain was donated to scientists, who may find more clues to what caused his problems. If Montador is found to have had chronic traumatic encephalopathy, the degenerative brain disease known commonly as C.T.E. and caused by repetitive hits to the head, he will join a list of hockey players posthumously found to have the affliction, including Bob Probert and Derek Boogaard.
Boogaard died of an accidental overdose of alcohol and prescription painkillers in 2011 at age 28. Within months, the recently retired Wade Belak, 35, and Rick Rypien, 27, were dead of apparent suicides.
All three were considered enforcers, on-ice bodyguards who regularly fought opponents with their bare knuckles in response to threats against teammates. While Montador was rarely defined that way, he engaged in more N.H.L. fights than Boogaard — 66 to 61, according to HockeyFights.com — though Boogaard’s total came in roughly half as many games.
About a month before he died, Montador retained William Gibbs, a lawyer involved in the lawsuit against the N.H.L., with plans to add his name as a plaintiff, Gibbs said.
“Derek’s tragic death, and subsequent C.T.E. findings, began a conversation about the brains of those playing professional hockey,” said Gibbs, from the Chicago law firm of Corboy & Demetrio, which also represents N.F.L. players. “If anything, Steve’s recent death furthers that conversation. And it’s a conversation that’s long overdue.”
Gibbs also represents the Boogaard family in an ongoing wrongful-death lawsuit against the league. The Boogaards have not joined the broader class-action suit. A Milwaukee wrongful death lawyer represents clients in wrongful death claims.
The class-action suit originated in late 2013, shortly after the preliminary N.F.L. settlement, when 10 former players sued the N.H.L. over concussions. Much like the N.F.L. suit, which began small and grew, it alleged that the league did little to address head injuries, profiting from in-game violence amid mounting evidence over the long-term ramifications of concussions. The former players asked for unspecified damages and a jury trial.
Subsequent lawsuits, including one filed by the former star Bernie Nichols and others, were similarly crafted. In August, the cases were transferred and consolidated in United States District Court in Minnesota.
The N.H.L., while arguing that it had done everything it could to promote player health, offered a two-pronged argument for why the case should be dismissed. Like the N.F.L., the league said that the matter was pre-empted by federal labor law because of collective-bargaining agreements with the players’ association. The N.H.L. also said that most complaints had surpassed the statute of limitations.
Judge Susan Richard Nelson heard those arguments in January. A ruling is expected at any time.
In between, though, the number of named plaintiffs nearly doubled and another former player struggling with head injuries has died in a matter of about one week. According to lawyers for the plaintiffs, more than 200 former players have now retained counsel to be included in the case, and roughly 500 have expressed interest and support.
The arc is a familiar one, last seen in the N.F.L. — deaths, lawsuits, more lawsuits and more death. A judge may put a sudden end to it, but hockey’s quiet battle over concussions echoes louder.
It was more than a year ago that a group of 10 former N.H.L. players sued the league for, in essence, ignoring the growing evidence surrounding the long-term effects of concussions.
For the past 15 months, amid the quiet consolidation of subsequent suits and obscure legal wrangling, the case against the N.H.L. has been a faint echo of the similarly constructed class-action suit against the N.F.L. That case involved thousands of former players and was settled in 2013 for $765 million. (The cap was subsequently lifted to cover unlimited damages and still awaits judicial approval.) DMC Spots Medicine is dedicated to bringing athletes expert medical care.
Two events in recent weeks nudged hockey’s face-off over concussions back to center ice. First, 29 more former players joined the class-action suit, nearly doubling the number of named plaintiffs. Then Steve Montador, a 10-year N.H.L. veteran with a history of concussions, was found dead at 35 in his Ontario home Sunday.
“As more and more players learn about the claims and see the medical challenges their fellow alumni are experiencing, there is increased momentum in support of the litigation,” said Charles Zimmerman, co-lead counsel for the plaintiffs. “The N.H.L. can no longer ignore the impact of repeated head trauma and must finally acknowledge the serious conditions that retired players are facing.” A Boston sports injury lawyer is reviewing the details of this case.
The N.H.L., through the spokesman Frank Brown, declined to comment Wednesday on the concussion litigation or the impact of the recent news.
Early last week, the case against the N.H.L. got a boost when 29 former players filed a lawsuit against the league, bringing the number of named plaintiffs past 70. The additions also brought extra star power to the proceedings. Among those joining the case were Butch Goring, a center for the Islanders during their four-year championship run beginning in 1980, and Manny Legace, who won 187 games as an N.H.L. goaltender before retiring in 2012.
But as the N.F.L. case showed, with the premature deaths of several former players during the years of litigation, tragedy has a way of bringing attention to an issue like nothing else.
Montador’s career was ended by concussions, and he said he struggled with depression in his final years. His cause of death has not been released, and may never be, but officials ruled out suicide or foul play.
His brain was donated to scientists, who may find more clues to what caused his problems. If Montador is found to have had chronic traumatic encephalopathy, the degenerative brain disease known commonly as C.T.E. and caused by repetitive hits to the head, he will join a list of hockey players posthumously found to have the affliction, including Bob Probert and Derek Boogaard.
Boogaard died of an accidental overdose of alcohol and prescription painkillers in 2011 at age 28. Within months, the recently retired Wade Belak, 35, and Rick Rypien, 27, were dead of apparent suicides.
All three were considered enforcers, on-ice bodyguards who regularly fought opponents with their bare knuckles in response to threats against teammates. While Montador was rarely defined that way, he engaged in more N.H.L. fights than Boogaard — 66 to 61, according to HockeyFights.com — though Boogaard’s total came in roughly half as many games.
About a month before he died, Montador retained William Gibbs, a lawyer involved in the lawsuit against the N.H.L., with plans to add his name as a plaintiff, Gibbs said.
“Derek’s tragic death, and subsequent C.T.E. findings, began a conversation about the brains of those playing professional hockey,” said Gibbs, from the Chicago law firm of Corboy & Demetrio, which also represents N.F.L. players. “If anything, Steve’s recent death furthers that conversation. And it’s a conversation that’s long overdue.”
Gibbs also represents the Boogaard family in an ongoing wrongful-death lawsuit against the league. The Boogaards have not joined the broader class-action suit. A Milwaukee wrongful death lawyer represents clients in wrongful death claims.
The class-action suit originated in late 2013, shortly after the preliminary N.F.L. settlement, when 10 former players sued the N.H.L. over concussions. Much like the N.F.L. suit, which began small and grew, it alleged that the league did little to address head injuries, profiting from in-game violence amid mounting evidence over the long-term ramifications of concussions. The former players asked for unspecified damages and a jury trial.
Subsequent lawsuits, including one filed by the former star Bernie Nichols and others, were similarly crafted. In August, the cases were transferred and consolidated in United States District Court in Minnesota.
The N.H.L., while arguing that it had done everything it could to promote player health, offered a two-pronged argument for why the case should be dismissed. Like the N.F.L., the league said that the matter was pre-empted by federal labor law because of collective-bargaining agreements with the players’ association. The N.H.L. also said that most complaints had surpassed the statute of limitations.
Judge Susan Richard Nelson heard those arguments in January. A ruling is expected at any time.
In between, though, the number of named plaintiffs nearly doubled and another former player struggling with head injuries has died in a matter of about one week. According to lawyers for the plaintiffs, more than 200 former players have now retained counsel to be included in the case, and roughly 500 have expressed interest and support.
The arc is a familiar one, last seen in the N.F.L. — deaths, lawsuits, more lawsuits and more death. A judge may put a sudden end to it, but hockey’s quiet battle over concussions echoes louder.
DON’T BLOCK TEACHERS FROM RIGHT TO WORK
Original Story: detroitnews.com
A group of Taylor teachers prevailed in their challenge of a 10-year security agreement that prevented them from exercising their right-to-work freedoms. The Michigan Employment Relations Commission made the call and got it right. A Boston employment lawyer is following this story closely.
The Taylor teachers union was not the only labor group that tried to skirt right to work before the law went into effect in March 2013. But it did stand out for crafting one of the longer contracts.
At least 145 school districts, including some of Michigan’s largest, passed contracts that extended years into the future, delaying the full impact of the law aimed at giving workers a choice on union membership. A Detroit labor lawyer provides professional legal counsel and extensive experience in many aspects of labor and employment law.
The labor commission ruled last week that the Taylor Federation of Teachers and the Taylor School District had committed an unfair labor practice when they signed off on the decade-long security agreement. Under the pact, teachers could not opt out of the union until it expired.
In the Taylor case, the labor commission stated, “Imposing a lengthy financial burden on bargaining unit members, to avoid the application of a state law for 10 years, is arbitrary, indifferent and reckless.”
While this ruling only applies to the Taylor teachers, it should be seen as good news for teachers in other districts locked into long contracts.
The three teachers from Taylor —Nancy Rhatigan, Rebecca Metz and Angela Steffke —sued the school district and union.
The Mackinac Center Legal Foundation represented the teachers, who claimed it was unreasonable for the security clause to extend more than five years beyond the collective bargaining agreement.
The security clause forced teachers to keep paying the union dues until 2023, and allowed the district to fire teachers for not paying.
The commission’s ruling is the latest setback for teacher unions trying to thwart the right-to-work law. A Boston employment lawyer assists clients with employment law matters.
Earlier this month, the Michigan Court of Claims dismissed a lawsuit filed by the Michigan Education Association, along with other union plaintiffs who argued the Legislature violated the state’s Open Meetings Act when it passed right to work in December 2012.
The court said the temporary closure of the Capitol building, which the unions fought, was handled correctly.
And a decision last fall from an administrative law judge with the Michigan Employment Relations Commission tossed out a rule the MEA had imposed that only allowed teachers to leave the union during the month of August. A Memphis employment lawyer is reviewing the details of this case.
The decision only applies to teachers working under contracts approved after March 2013.
Union officials had used the August provision to bully teachers into paying dues longer than they wished.
Unions will have to look beyond blocking right to work to hold on to their members.
A group of Taylor teachers prevailed in their challenge of a 10-year security agreement that prevented them from exercising their right-to-work freedoms. The Michigan Employment Relations Commission made the call and got it right. A Boston employment lawyer is following this story closely.
The Taylor teachers union was not the only labor group that tried to skirt right to work before the law went into effect in March 2013. But it did stand out for crafting one of the longer contracts.
At least 145 school districts, including some of Michigan’s largest, passed contracts that extended years into the future, delaying the full impact of the law aimed at giving workers a choice on union membership. A Detroit labor lawyer provides professional legal counsel and extensive experience in many aspects of labor and employment law.
The labor commission ruled last week that the Taylor Federation of Teachers and the Taylor School District had committed an unfair labor practice when they signed off on the decade-long security agreement. Under the pact, teachers could not opt out of the union until it expired.
In the Taylor case, the labor commission stated, “Imposing a lengthy financial burden on bargaining unit members, to avoid the application of a state law for 10 years, is arbitrary, indifferent and reckless.”
While this ruling only applies to the Taylor teachers, it should be seen as good news for teachers in other districts locked into long contracts.
The three teachers from Taylor —Nancy Rhatigan, Rebecca Metz and Angela Steffke —sued the school district and union.
The Mackinac Center Legal Foundation represented the teachers, who claimed it was unreasonable for the security clause to extend more than five years beyond the collective bargaining agreement.
The security clause forced teachers to keep paying the union dues until 2023, and allowed the district to fire teachers for not paying.
The commission’s ruling is the latest setback for teacher unions trying to thwart the right-to-work law. A Boston employment lawyer assists clients with employment law matters.
Earlier this month, the Michigan Court of Claims dismissed a lawsuit filed by the Michigan Education Association, along with other union plaintiffs who argued the Legislature violated the state’s Open Meetings Act when it passed right to work in December 2012.
The court said the temporary closure of the Capitol building, which the unions fought, was handled correctly.
And a decision last fall from an administrative law judge with the Michigan Employment Relations Commission tossed out a rule the MEA had imposed that only allowed teachers to leave the union during the month of August. A Memphis employment lawyer is reviewing the details of this case.
The decision only applies to teachers working under contracts approved after March 2013.
Union officials had used the August provision to bully teachers into paying dues longer than they wished.
Unions will have to look beyond blocking right to work to hold on to their members.
Tuesday, February 10, 2015
BERMAN: ONE NURSE'S GUTSY EFFORT TO PROTECT PATIENTS
Original Story: detroitnews.com
In the spring of 2010, Angela Swantek interviewed for a job with Dr. Farid Fata.
She was an oncology nurse, a spirited force who plays hockey on a travel team; he was a Sloan-Kettering-trained oncologist and hematologist who would eventually become notorious for a scheme U.S. Attorney Barbara McQuade calls "the most egregious case of Medicare fraud we have seen." An Atlanta whistleblower lawyer represents clients involved in qui tam actions and protects them against retaliation.
Swantek, who was interviewed one day and then returned a day later to shadow a nurse on her rounds, was shocked by what she observed at Fata's office: A drug that was supposed to be injected in five minutes was administered as a one-hour IV drip from a bag. Another drug, Neulasta, was given on the same day as chemotherapy, although protocol is for it to be given 24 hours later. Swantek, a registered nurse who was back in college completing a four-year nursing degree, had worked at the area's top cancer centers, from Beaumont to Karmanos, and she had never seen cancer protocols and procedures so disregarded. A Mt Clemens medical malpractice lawyer represents clients injured as a result of medical negligence.
She turned down the job, she says, and walked out of the office before lunch "in a huff."
"The assumption was that I'd stay beyond lunch, but I left before. I couldn't stand to be there one more minute. I literally was horrified."
What Swantek did next substantiates her outrage and her courage.
She filed an official complaint with state regulators on April 14, 2010, enumerating some violations and expressing the need for an investigation. "I feel this physician is doing his patients more harm than good," she wrote on the official allegation form, including her name, cellphone number, address and willingness to testify if necessary. "Patients are being harmed." A Milwaukee medical malpractice lawyer helps clients with medical malpractice claims that are often defined as the failure of a medical professional to follow the accepted standards of practice in his or her profession.
It wasn't easy for her to take this action. In her two-decade career as a nurse, she'd never filed a complaint, had never even thought about doing so. As in all professions, calling out a colleague or a superior — a doctor — is not something to be taken lightly.
Her decision-making process became the topic of an assigned college paper she wrote that spring, describing her "ethical dilemma" in a seven-page paper for the online Chamberlain College of Nursing.
"I wanted to report him but felt unsure and uneasy about turning in a physician ... no one likes to be labeled a rat," she wrote in the college paper. "I owed it to the patients to save them in some way from continuing to be harmed. ...
"I hope there is some action taken."
She took the risk — and waited for the state's next move. And waited.
A year later, on May 13, 2011, Swantek, 45, received a letter from the department of licensing and regulatory affairs saying that "violations of the public health code could not be established." The investigation was closed. Although Swantek had witnessed what she says were numerous health code and medical procedural violations within a few hours, the state had not substantiated them. A Chicago medical malpractice lawyer is following this story closely.
Other than telling her the investigation was closed, the state didn't contact her, she says.
"I would remember, I promise you," she said in an interview at her Royal Oak home. The state says an investigation was conducted, and that Swantek was interviewed on Aug. 26, 2010. In response to a Freedom of Information Act request from The Detroit News last week, the state released a document attesting to an "interview in for typing," but cited privacy rules under the public health code that prevent the release of any supporting detail about the extent of the investigation or any interview with Swantek.
Stephen Gobbo, deputy director of LARA, who was not involved with the investigation in 2010, said last week, "I can tell you unequivocally that interviews were conducted (with Swantek) and ... the licensee, Dr. Fata."
The statute protects Fata, now a convicted felon who pleaded guilty to administering unnecessary treatment and who has already lost his license. It prevents Swantek, the complainant, from seeing how the state responded to her complaint. And it shields the state Bureau of Health Professions, which was merged into the Bureau of Health Care Services in 2013, and moved from the Department of Community Health to the Department of Licensing and Regulatory Affairs (LARA), from any public scrutiny.
"It is very rare that you see a medical professional making such an accusation against another medical professional," says Donna Mackenzie, a Berkley malpractice lawyer who represents some of Fata's former patients. "The state had a responsibility to perform a meaningful investigation in response to this very serious accusation."
"According to the criminal complaint against Dr. Fata, the federal investigators uncovered more during 2 days of investigation than the state apparently did over an entire year."
Two years after Swantek filed her allegation form, in a completely separate action, the FBI raided Fata's office, an event that led to his indictment in August 2013, and his decision to plead guilty to 16 counts of fraud and conspiracy last September.
Over those two years, Fata's patients continued to receive chemotherapy treatments they imagined were helping them but were, in many cases, literally poisoning them. He used IV drips instead of injections because he could bill Medicare more for longer treatments. As he would later admit in federal court, in response to specific counts: "I knew it was medically unnecessary."
On the day his office was raided, friends of Swantek's called to tell her that Fata had been arrested. She wept.
As Fata awaits his May sentencing, in a cell somewhere in Michigan, Angela Swantek doesn't have the satisfaction of knowing that she helped lock up Michigan's medical version of stock swindler Bernie Madoff. She didn't play a role in the FBI investigation, which had no connection to her complaint or state officials. Still intensely interested in the case, she reviews records of Fata patients pro bono, as lawyers prepare civil suits against him.
Angela Swantek's handwritten complaint form attests to one nurse's gutsy effort to protect victims — vulnerable men and women with cancer — from a physician who was more interested in payment than healing. "He treated them like commodities," says Swantek. Although her effort to alert the state didn't ultimately make a difference in Fata's case, it should have.
In the spring of 2010, Angela Swantek interviewed for a job with Dr. Farid Fata.
She was an oncology nurse, a spirited force who plays hockey on a travel team; he was a Sloan-Kettering-trained oncologist and hematologist who would eventually become notorious for a scheme U.S. Attorney Barbara McQuade calls "the most egregious case of Medicare fraud we have seen." An Atlanta whistleblower lawyer represents clients involved in qui tam actions and protects them against retaliation.
Swantek, who was interviewed one day and then returned a day later to shadow a nurse on her rounds, was shocked by what she observed at Fata's office: A drug that was supposed to be injected in five minutes was administered as a one-hour IV drip from a bag. Another drug, Neulasta, was given on the same day as chemotherapy, although protocol is for it to be given 24 hours later. Swantek, a registered nurse who was back in college completing a four-year nursing degree, had worked at the area's top cancer centers, from Beaumont to Karmanos, and she had never seen cancer protocols and procedures so disregarded. A Mt Clemens medical malpractice lawyer represents clients injured as a result of medical negligence.
She turned down the job, she says, and walked out of the office before lunch "in a huff."
"The assumption was that I'd stay beyond lunch, but I left before. I couldn't stand to be there one more minute. I literally was horrified."
What Swantek did next substantiates her outrage and her courage.
She filed an official complaint with state regulators on April 14, 2010, enumerating some violations and expressing the need for an investigation. "I feel this physician is doing his patients more harm than good," she wrote on the official allegation form, including her name, cellphone number, address and willingness to testify if necessary. "Patients are being harmed." A Milwaukee medical malpractice lawyer helps clients with medical malpractice claims that are often defined as the failure of a medical professional to follow the accepted standards of practice in his or her profession.
It wasn't easy for her to take this action. In her two-decade career as a nurse, she'd never filed a complaint, had never even thought about doing so. As in all professions, calling out a colleague or a superior — a doctor — is not something to be taken lightly.
Her decision-making process became the topic of an assigned college paper she wrote that spring, describing her "ethical dilemma" in a seven-page paper for the online Chamberlain College of Nursing.
"I wanted to report him but felt unsure and uneasy about turning in a physician ... no one likes to be labeled a rat," she wrote in the college paper. "I owed it to the patients to save them in some way from continuing to be harmed. ...
"I hope there is some action taken."
She took the risk — and waited for the state's next move. And waited.
A year later, on May 13, 2011, Swantek, 45, received a letter from the department of licensing and regulatory affairs saying that "violations of the public health code could not be established." The investigation was closed. Although Swantek had witnessed what she says were numerous health code and medical procedural violations within a few hours, the state had not substantiated them. A Chicago medical malpractice lawyer is following this story closely.
Other than telling her the investigation was closed, the state didn't contact her, she says.
"I would remember, I promise you," she said in an interview at her Royal Oak home. The state says an investigation was conducted, and that Swantek was interviewed on Aug. 26, 2010. In response to a Freedom of Information Act request from The Detroit News last week, the state released a document attesting to an "interview in for typing," but cited privacy rules under the public health code that prevent the release of any supporting detail about the extent of the investigation or any interview with Swantek.
Stephen Gobbo, deputy director of LARA, who was not involved with the investigation in 2010, said last week, "I can tell you unequivocally that interviews were conducted (with Swantek) and ... the licensee, Dr. Fata."
The statute protects Fata, now a convicted felon who pleaded guilty to administering unnecessary treatment and who has already lost his license. It prevents Swantek, the complainant, from seeing how the state responded to her complaint. And it shields the state Bureau of Health Professions, which was merged into the Bureau of Health Care Services in 2013, and moved from the Department of Community Health to the Department of Licensing and Regulatory Affairs (LARA), from any public scrutiny.
"It is very rare that you see a medical professional making such an accusation against another medical professional," says Donna Mackenzie, a Berkley malpractice lawyer who represents some of Fata's former patients. "The state had a responsibility to perform a meaningful investigation in response to this very serious accusation."
"According to the criminal complaint against Dr. Fata, the federal investigators uncovered more during 2 days of investigation than the state apparently did over an entire year."
Two years after Swantek filed her allegation form, in a completely separate action, the FBI raided Fata's office, an event that led to his indictment in August 2013, and his decision to plead guilty to 16 counts of fraud and conspiracy last September.
Over those two years, Fata's patients continued to receive chemotherapy treatments they imagined were helping them but were, in many cases, literally poisoning them. He used IV drips instead of injections because he could bill Medicare more for longer treatments. As he would later admit in federal court, in response to specific counts: "I knew it was medically unnecessary."
On the day his office was raided, friends of Swantek's called to tell her that Fata had been arrested. She wept.
As Fata awaits his May sentencing, in a cell somewhere in Michigan, Angela Swantek doesn't have the satisfaction of knowing that she helped lock up Michigan's medical version of stock swindler Bernie Madoff. She didn't play a role in the FBI investigation, which had no connection to her complaint or state officials. Still intensely interested in the case, she reviews records of Fata patients pro bono, as lawyers prepare civil suits against him.
Angela Swantek's handwritten complaint form attests to one nurse's gutsy effort to protect victims — vulnerable men and women with cancer — from a physician who was more interested in payment than healing. "He treated them like commodities," says Swantek. Although her effort to alert the state didn't ultimately make a difference in Fata's case, it should have.
ROBIN WILLIAMS' ESTATE PLAN: GOOD, BUT NOT GREAT
Original Story: cnbc.com
Robin Williams was a world-class comic who made millions and tried to take good financial care of his children, yet his estate planning talents may have not matched his comedic genius. A Big Rapids living trust lawyer assists clients with estate planning and other issues pertaining to elder law.
The Oscar-winning actor was found dead on August 11 in what police are calling an apparent suicide. The 63-year-old had battled substance abuse problems for decades and had recently checked into a rehab facility.
It is quite possible, experts say, that Williams did not leave a will—though that may not be a bad thing.
"It's very likely he used a revocable trust. A lot of our California clients" take that approach, said Daniel Rubin, a partner at Moses & Singer specializing in trusts and estates. A Rochester estate planning lawyer works with clients to formulate confidential, tax efficient, custom tailored domestic and international trusts, business succession plans and wealth management plans.
Rubin explained that because the probate process tends to be a lengthy one in California, wealthy people there—and elsewhere—often opt to create a revocable living trust instead of a will. They make themselves the trustee, and in the trust documents indicate how they want their assets distributed. Then when they die, the assets are allocated without any public review.
Williams did, however, leave money in a trust for his three children, according to TMZ, unlike Philip Seymour Hoffman or James Gandolfini. A Philadelphia trusts and estates lawyer is following this story closely.
Williams' publicist stated several days after the actor's death that that trust is no longer part of Willams' estate plan.
But experts say the kind of trust Williams had in effect at one point could have been structured much more effectively.
The trust assets were reported to be structured so they would be distributed to Williams' children in three increments: at age 21, 25, and 30. But those may not be the optimal times for the kids to receive large sums of money, experts say.
Trust provisions like these are "fairly common, but far from ideal—especially because I would have to assume that his estate would be quite large," said David Mendels, director of planning at Creative Financial Concepts, a financial planning firm in New York. "Thus one third could easily be millions of dollars, which is quite a lot of responsibility to drop on a 21 year old."
Many wealthy people worry that leaving too much money to children at a relatively young age will destroy their motivation, or worse.
There are other concerns with fixed distribution times, Mendels said. What if a child is getting divorced at 30, and suddenly comes into substantial assets that then have to be divided? Or what if a child is at risk for a lawsuit, and losing would mean handing over the assets?
Rubin said the more modern way of structuring a trust for children is to give them responsibility for appointing the trustee at a certain age. That way they can, if they choose, appoint someone who will let them draw down assets—or they can choose to leave the assets in the trust, where they are not vulnerable to a lawsuit or a divorce settlement. A Charleston trusts and estates lawyer is experienced in the effective resolution of estate lawsuits and claims.
"He definitely thought about his estate planning and did something smart, but not as smart as it could have been," Rubin said.
Estimates of the value of Williams' estate vary widely. He said in a 2013 interview that he was selling his Napa estate because he couldn't afford it anymore, and he was returning to television work for the money.
Still, the website celebritynetworth.com pegs his net worth at $50 million, and Williams' Napa ranch is currently on the market for $29.9 million.
Odds are, with assets like that, Williams' children can expect a large amount of money to flow their way. It just may not arrive when they want it.
Robin Williams was a world-class comic who made millions and tried to take good financial care of his children, yet his estate planning talents may have not matched his comedic genius. A Big Rapids living trust lawyer assists clients with estate planning and other issues pertaining to elder law.
The Oscar-winning actor was found dead on August 11 in what police are calling an apparent suicide. The 63-year-old had battled substance abuse problems for decades and had recently checked into a rehab facility.
It is quite possible, experts say, that Williams did not leave a will—though that may not be a bad thing.
"It's very likely he used a revocable trust. A lot of our California clients" take that approach, said Daniel Rubin, a partner at Moses & Singer specializing in trusts and estates. A Rochester estate planning lawyer works with clients to formulate confidential, tax efficient, custom tailored domestic and international trusts, business succession plans and wealth management plans.
Rubin explained that because the probate process tends to be a lengthy one in California, wealthy people there—and elsewhere—often opt to create a revocable living trust instead of a will. They make themselves the trustee, and in the trust documents indicate how they want their assets distributed. Then when they die, the assets are allocated without any public review.
Williams did, however, leave money in a trust for his three children, according to TMZ, unlike Philip Seymour Hoffman or James Gandolfini. A Philadelphia trusts and estates lawyer is following this story closely.
Williams' publicist stated several days after the actor's death that that trust is no longer part of Willams' estate plan.
But experts say the kind of trust Williams had in effect at one point could have been structured much more effectively.
The trust assets were reported to be structured so they would be distributed to Williams' children in three increments: at age 21, 25, and 30. But those may not be the optimal times for the kids to receive large sums of money, experts say.
Trust provisions like these are "fairly common, but far from ideal—especially because I would have to assume that his estate would be quite large," said David Mendels, director of planning at Creative Financial Concepts, a financial planning firm in New York. "Thus one third could easily be millions of dollars, which is quite a lot of responsibility to drop on a 21 year old."
Many wealthy people worry that leaving too much money to children at a relatively young age will destroy their motivation, or worse.
There are other concerns with fixed distribution times, Mendels said. What if a child is getting divorced at 30, and suddenly comes into substantial assets that then have to be divided? Or what if a child is at risk for a lawsuit, and losing would mean handing over the assets?
Rubin said the more modern way of structuring a trust for children is to give them responsibility for appointing the trustee at a certain age. That way they can, if they choose, appoint someone who will let them draw down assets—or they can choose to leave the assets in the trust, where they are not vulnerable to a lawsuit or a divorce settlement. A Charleston trusts and estates lawyer is experienced in the effective resolution of estate lawsuits and claims.
"He definitely thought about his estate planning and did something smart, but not as smart as it could have been," Rubin said.
Estimates of the value of Williams' estate vary widely. He said in a 2013 interview that he was selling his Napa estate because he couldn't afford it anymore, and he was returning to television work for the money.
Still, the website celebritynetworth.com pegs his net worth at $50 million, and Williams' Napa ranch is currently on the market for $29.9 million.
Odds are, with assets like that, Williams' children can expect a large amount of money to flow their way. It just may not arrive when they want it.
Wednesday, February 4, 2015
GEORGE CUSHINGBERRY JR.'S LAW LICENSE IS HISTORY
Original Story: clickondetroit.com
Detroit City Council President Pro Tem George Cushingberry Jr. won’t be practicing law any time soon, and likely never again.
He was a probate attorney for his day job over the years while he worked as a Wayne County Commissioner and powerful State Legislator. He hasn’t done much in court since he joined the Detroit City Council last year. If you go by the word of many of his former clients, lawyering was a job he was not particularly good at either.
We have chronicled the lengthy string of lawsuits and complaints filed against him over the years and the law license suspensions he has served. Interestingly enough today “Cush,” as his friends call him, told Local 4 his ability to practice law is irrelevant to his City Council duties, and therefore unremarkable as a news story. Yet, when we asked to do interviews with him about this “insignificant story” twice over the past two days, he opted out. Might it be bigger than he is letting on?
Let’s look at the mountain of facts in this non-news story. George lost his license for 45 days back in December, and he could have had it back soon if he wanted to pay the fines and actually attend a trial to determine his fitness to practice law before the Attorney Grievance Commission. You see, George did not appear for a first trial. His attorney, seated alone at the proceedings, said George was in Florida under a doctor’s care and had entered the “Lawyers and Judges Assistance Program." That program is designed for dealing with alcohol, drug and gambling addiction. [George claims gastro intestinal distress as his reason for being in the program].
Not amused, the Attorney Grievance Commission sanctioned him with the most recent 45 day suspension. That one came on top of another 45 day suspension he picked up in early 2014 for improperly disposing of a separate probate estate years earlier.
Fast forward to today: Instead of sitting through another trial, Cushingberry told Local 4 he has agreed to allow his license to be suspended for a year and consented to making it permanent. Here’s the likely reason why we won’t see George practicing law again: in order to get his license reinstated he would have to sit for the bar exam again.
Now, the one-year suspension started today (view the suspension order here) and the Attorney Grievance Commission paperwork says it is for not showing up at the hearing back in December. The Attorney Discipline Board never even got to the question of whether George committed malpractice in the handling of a woman’s estate that brought on this latest suspension, which as you will recall would be his third in a year.
While George’s claim that he can still be a City Council Pro Tem without his law license may be correct, but only to a point. Remember that George himself told us when he first got into office that it needs to be a new day in Detroit; where City Council needs to lead in a new and different fashion.
Sadly, George’s escapades with a traffic stop that included an open container of alcohol and the smell of marijuana, personal bankruptcy and old clients looking to garnish his city council wages seems to have the feel of “same old Detroit City Council." Might we remind the councilmember he is an elected city official, whose qualifications and history [both personal and professional] matter greatly to voters and the city itself. An Oakland County real estate lawyer is reviewing the details of this case.
Most of his issues were not known during his City Council campaign. Voters cannot be blamed for wondering if George’s “gastro intestinal” problems are weighing down his customer service, or whether his now admitted legal missteps might hurt his ability to represent their needs at the council table. Moreover, they certainly cannot be blamed for wondering if these constant headlines about a city council member with more problems than the Kardashians might not be helping the city’s post-bankruptcy reputation.
George, perhaps not spending any more time in a courtroom might free you up for more work trying to revive the city. But this city cannot ignore the oil slick of disaster that trails behind you as you take your seat at the council table. An LA CPA is following this story closely.
Detroit City Council President Pro Tem George Cushingberry Jr. won’t be practicing law any time soon, and likely never again.
He was a probate attorney for his day job over the years while he worked as a Wayne County Commissioner and powerful State Legislator. He hasn’t done much in court since he joined the Detroit City Council last year. If you go by the word of many of his former clients, lawyering was a job he was not particularly good at either.
We have chronicled the lengthy string of lawsuits and complaints filed against him over the years and the law license suspensions he has served. Interestingly enough today “Cush,” as his friends call him, told Local 4 his ability to practice law is irrelevant to his City Council duties, and therefore unremarkable as a news story. Yet, when we asked to do interviews with him about this “insignificant story” twice over the past two days, he opted out. Might it be bigger than he is letting on?
Let’s look at the mountain of facts in this non-news story. George lost his license for 45 days back in December, and he could have had it back soon if he wanted to pay the fines and actually attend a trial to determine his fitness to practice law before the Attorney Grievance Commission. You see, George did not appear for a first trial. His attorney, seated alone at the proceedings, said George was in Florida under a doctor’s care and had entered the “Lawyers and Judges Assistance Program." That program is designed for dealing with alcohol, drug and gambling addiction. [George claims gastro intestinal distress as his reason for being in the program].
Not amused, the Attorney Grievance Commission sanctioned him with the most recent 45 day suspension. That one came on top of another 45 day suspension he picked up in early 2014 for improperly disposing of a separate probate estate years earlier.
Fast forward to today: Instead of sitting through another trial, Cushingberry told Local 4 he has agreed to allow his license to be suspended for a year and consented to making it permanent. Here’s the likely reason why we won’t see George practicing law again: in order to get his license reinstated he would have to sit for the bar exam again.
Now, the one-year suspension started today (view the suspension order here) and the Attorney Grievance Commission paperwork says it is for not showing up at the hearing back in December. The Attorney Discipline Board never even got to the question of whether George committed malpractice in the handling of a woman’s estate that brought on this latest suspension, which as you will recall would be his third in a year.
While George’s claim that he can still be a City Council Pro Tem without his law license may be correct, but only to a point. Remember that George himself told us when he first got into office that it needs to be a new day in Detroit; where City Council needs to lead in a new and different fashion.
Sadly, George’s escapades with a traffic stop that included an open container of alcohol and the smell of marijuana, personal bankruptcy and old clients looking to garnish his city council wages seems to have the feel of “same old Detroit City Council." Might we remind the councilmember he is an elected city official, whose qualifications and history [both personal and professional] matter greatly to voters and the city itself. An Oakland County real estate lawyer is reviewing the details of this case.
Most of his issues were not known during his City Council campaign. Voters cannot be blamed for wondering if George’s “gastro intestinal” problems are weighing down his customer service, or whether his now admitted legal missteps might hurt his ability to represent their needs at the council table. Moreover, they certainly cannot be blamed for wondering if these constant headlines about a city council member with more problems than the Kardashians might not be helping the city’s post-bankruptcy reputation.
George, perhaps not spending any more time in a courtroom might free you up for more work trying to revive the city. But this city cannot ignore the oil slick of disaster that trails behind you as you take your seat at the council table. An LA CPA is following this story closely.
HOMEOWNERS FACING FORECLOSURE FLOCK TO COBO CENTER
Original Story: detroitnews.com
Detroit — More than 950 people facing tax foreclosure descended on Cobo Center on Thursday to meet with Wayne County officials in hopes of saving their homes.
Among them was 64-year-old Pamela Hyde. She's owned her tan aluminum sided bungalow on the east side for 35 years, raised her son there and paid her mortgage. But she said a series of illnesses and her small pension has made it difficult to chip away at her $4,400 in tax debt. A Detroit real estate lawyer is reviewing the details of this case.
"I can't afford to lose my home," said Hyde, who waited with hundreds of others for her number to be called to speak with county officials. "There is not a lot of wiggle room. The utilities are sky high. ... I am in need of help. It's my home."
Wayne County officials are pursuing foreclosure on a record number of properties this year. Some have worked out payment plans, but 56,000 properties in Detroit still face foreclosure, said Chief Deputy David Szymanski. Another 4,000 homeowners elsewhere in Wayne County also are set to be foreclosed because of at least three years' of nonpayment of taxes.
The Cobo sessions continue weekdays through next week. They're another chance to meet with county officials to enter payment plans or learn about other relief programs. Nonprofits are also in attendance to provide legal counseling and other help negotiating out of foreclosure.
Recent legislation signed by Gov. Rick Snyder allow the treasurer to lower interest on debt from 18 percent to 6 percent for many homeowners. In many instances, homeowners can have taxes capped at a quarter of the market value of the home. A Tulsa real estate lawyer is following this story closely.
"These new programs are breathtaking in the ways they are able to help out," Szymanski said. "We've never had these types of options."
On Thursday, a whole section of chairs in Cobo was reserved for renters living in homes owned by delinquent landlords. Many were hoping to find a way to purchase the homes themselves.
Sharon Searcy hasn't heard from her landlords for months and hasn't paid rent for more than a year. She's hoping she can find a way to purchase the home and stay there with her two teenage boys.
"I want to stay in the home," Searcy said. "If I could just come up with the payments I could buy it and live there."
Her options are limited and she and other renters typically have to try and bid on the houses they live in at auction this fall. The home has $4,700 in tax debt that Searcy said she doesn't have.
One reason for the increase in at-risk property owners is because of a policy shift by county Treasurer Raymond Wojtowicz, who decided this year to foreclose on all properties that are at least three years' late in taxes. A Detroit real estate lawyer has experience representing clients in foreclosure, workouts, and bankruptcy cases.
By law, those properties are supposed to be foreclosed. But since 2005, Wojtowicz has not taken action on properties with smaller tax bills — $1,500 to $1,700 per year — because he said he lacked the staff to handle that many. Doing so, though, allowed some properties' bills to accumulate to several thousand dollars because the treasurer looked only at the amount of annual tax bills.
"Until you tell people we could take their property, the vast majority hope it will go away," Szymanski said.
At least 18,000 Detroit properties had delinquent taxes dating to 2010 or earlier, according to county data as of this fall.
In a move to stem the tide of foreclosures, Mayor Mike Duggan announced Wednesday that residential property assessments citywide will decline 5-20 percent, the second consecutive year he's cut taxes. Critics argue the city's unrealistic assessments contributed to the foreclosure crisis.
Detroit — More than 950 people facing tax foreclosure descended on Cobo Center on Thursday to meet with Wayne County officials in hopes of saving their homes.
Among them was 64-year-old Pamela Hyde. She's owned her tan aluminum sided bungalow on the east side for 35 years, raised her son there and paid her mortgage. But she said a series of illnesses and her small pension has made it difficult to chip away at her $4,400 in tax debt. A Detroit real estate lawyer is reviewing the details of this case.
"I can't afford to lose my home," said Hyde, who waited with hundreds of others for her number to be called to speak with county officials. "There is not a lot of wiggle room. The utilities are sky high. ... I am in need of help. It's my home."
Wayne County officials are pursuing foreclosure on a record number of properties this year. Some have worked out payment plans, but 56,000 properties in Detroit still face foreclosure, said Chief Deputy David Szymanski. Another 4,000 homeowners elsewhere in Wayne County also are set to be foreclosed because of at least three years' of nonpayment of taxes.
The Cobo sessions continue weekdays through next week. They're another chance to meet with county officials to enter payment plans or learn about other relief programs. Nonprofits are also in attendance to provide legal counseling and other help negotiating out of foreclosure.
Recent legislation signed by Gov. Rick Snyder allow the treasurer to lower interest on debt from 18 percent to 6 percent for many homeowners. In many instances, homeowners can have taxes capped at a quarter of the market value of the home. A Tulsa real estate lawyer is following this story closely.
"These new programs are breathtaking in the ways they are able to help out," Szymanski said. "We've never had these types of options."
On Thursday, a whole section of chairs in Cobo was reserved for renters living in homes owned by delinquent landlords. Many were hoping to find a way to purchase the homes themselves.
Sharon Searcy hasn't heard from her landlords for months and hasn't paid rent for more than a year. She's hoping she can find a way to purchase the home and stay there with her two teenage boys.
"I want to stay in the home," Searcy said. "If I could just come up with the payments I could buy it and live there."
Her options are limited and she and other renters typically have to try and bid on the houses they live in at auction this fall. The home has $4,700 in tax debt that Searcy said she doesn't have.
One reason for the increase in at-risk property owners is because of a policy shift by county Treasurer Raymond Wojtowicz, who decided this year to foreclose on all properties that are at least three years' late in taxes. A Detroit real estate lawyer has experience representing clients in foreclosure, workouts, and bankruptcy cases.
By law, those properties are supposed to be foreclosed. But since 2005, Wojtowicz has not taken action on properties with smaller tax bills — $1,500 to $1,700 per year — because he said he lacked the staff to handle that many. Doing so, though, allowed some properties' bills to accumulate to several thousand dollars because the treasurer looked only at the amount of annual tax bills.
"Until you tell people we could take their property, the vast majority hope it will go away," Szymanski said.
At least 18,000 Detroit properties had delinquent taxes dating to 2010 or earlier, according to county data as of this fall.
In a move to stem the tide of foreclosures, Mayor Mike Duggan announced Wednesday that residential property assessments citywide will decline 5-20 percent, the second consecutive year he's cut taxes. Critics argue the city's unrealistic assessments contributed to the foreclosure crisis.
COURTS WRITE DECISIONS THAT ELUDE LONG VIEW
Original Story: nytimes.com
WASHINGTON — In April, a federal appeals court issued a 40-page decision on a serious subject, ruling that a trial judge had unlawfully increased a prison sentence out of vindictiveness.
The decision was a good example of judicial craft, closely reasoned and carefully written. The judges voted 2 to 1, suggesting that the legal question the decision resolved was a hard one.
But the decision was “unpublished,” as are 88 percent of decisions issued by federal appeals courts. That means it set no precedent. It was a ticket good for only one ride.
The decision, from the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., made sure that no one missed this point. Its first word, “unpublished,” was underscored, and it bore a standard legend: “Unpublished opinions are not binding precedent in this circuit.”
Last month, the Supreme Court refused to review the ruling, over the dissenting votes of Justices Clarence Thomas and Antonin Scalia. While explaining why the court should have taken the case, Justice Thomas raised important questions about the vast subterranean body of decisions that do nothing more than resolve one dispute at a time.
“True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit,” Justice Thomas wrote. “But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review.”
He accused the Fourth Circuit of violating its own standards by refusing to publish the decision. He also suggested that the appeals court had acted strategically to avoid review of its ruling.
Supreme Court justices have long been wary of unpublished decisions for that reason. “Nonpublication must not be a convenient means to prevent review,” Justice Harry A. Blackmun wrote in a 1991 dissent joined by Justices Sandra Day O’Connor and David H. Souter.
In a 2006 interview, Justice John Paul Stevens said he was more likely to vote to grant review of such rulings “on the theory that occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little hard to justify.”
These days, technology has turned the term “unpublished” into a misnomer. With the availability of legal databases and websites for courts, almost every decision issued by an appeals court is instantly available. And, because of a 2006 amendment to the federal rules of appellate procedure, lawyers are free to cite unpublished opinions issued after Jan. 1, 2007.
But without the force of precedent to require courts to rule similarly the next time around, these decisions create a sort of lawlessness, Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit wrote in 2000. “We may have decided this question the opposite way yesterday,” he wrote, “but this does not bind us today.”
Judges say that unpublished decisions are a sensible reaction to a crush of work.
“We simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent,” Judge Alex Kozinski of the Ninth Circuit explained in 2004. “In other words, we can make sure that a disposition reaches the correct result and adequately explains to the parties why they won or lost, but we don’t have the time to consider how the language of the disposition might be construed (or misconstrued) when applied to future cases.”
Erica J. Hashimoto, a law professor at the University of Georgia and a lawyer for the prisoner in the recent case, Plumley v. Austin, No. 14-271, said “requiring courts to author binding precedent in every case is simply unworkable.”
The Fourth Circuit, for instance, decided about 4,000 cases in a recent 12-month period, or 267 for each of its 15 active judges.
“Because published opinions create binding precedent for all other cases considered by that court, those opinions, unless crafted with the utmost care and precision, can have significant unintended consequences for all sorts of other cases,” Professor Hashimoto said. “Anticipating those consequences requires an incredible investment of time.”
Still, it is hardly clear that judges are making the right choices about which opinions to publish, Scott E. Gant wrote in 2006 in the Boston College Law Review.
“The premise that judges can and should make this determination at the moment a ruling is made, and without the benefit of input from others, is seriously flawed,” he wrote.
In a 1977 speech, Justice Stevens said the approach rested on “a false premise,” specifically “that an author is a reliable judge of the quality and importance of his own work product.”
David R. Cleveland, a law professor at Valparaiso University in Indiana who has written extensively on unpublished opinions, said that Justice Thomas’s recent criticism was characteristic of the Supreme Court’s fitful attention to the issue.
“Individual justices have expressed dissatisfaction with the system and individual instances of it,” Professor Cleveland said, “and they should be commended for spotting the problem and speaking out against its harm to appellate justice.”
In a 2009 article in the Marquette Law Review, he calculated that litigants had asked the Supreme Court to consider the “constitutionality or propriety” of designating an opinion as unpublished in at least 36 petitions seeking review. But the court has never ruled on the issue.
“Rather than occasionally expressing disapproval of an individual symptom of the problem,” Professor Cleveland said, “the court should consider addressing the underlying illness.”
WASHINGTON — In April, a federal appeals court issued a 40-page decision on a serious subject, ruling that a trial judge had unlawfully increased a prison sentence out of vindictiveness.
The decision was a good example of judicial craft, closely reasoned and carefully written. The judges voted 2 to 1, suggesting that the legal question the decision resolved was a hard one.
But the decision was “unpublished,” as are 88 percent of decisions issued by federal appeals courts. That means it set no precedent. It was a ticket good for only one ride.
The decision, from the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., made sure that no one missed this point. Its first word, “unpublished,” was underscored, and it bore a standard legend: “Unpublished opinions are not binding precedent in this circuit.”
Last month, the Supreme Court refused to review the ruling, over the dissenting votes of Justices Clarence Thomas and Antonin Scalia. While explaining why the court should have taken the case, Justice Thomas raised important questions about the vast subterranean body of decisions that do nothing more than resolve one dispute at a time.
“True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit,” Justice Thomas wrote. “But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review.”
He accused the Fourth Circuit of violating its own standards by refusing to publish the decision. He also suggested that the appeals court had acted strategically to avoid review of its ruling.
Supreme Court justices have long been wary of unpublished decisions for that reason. “Nonpublication must not be a convenient means to prevent review,” Justice Harry A. Blackmun wrote in a 1991 dissent joined by Justices Sandra Day O’Connor and David H. Souter.
In a 2006 interview, Justice John Paul Stevens said he was more likely to vote to grant review of such rulings “on the theory that occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little hard to justify.”
These days, technology has turned the term “unpublished” into a misnomer. With the availability of legal databases and websites for courts, almost every decision issued by an appeals court is instantly available. And, because of a 2006 amendment to the federal rules of appellate procedure, lawyers are free to cite unpublished opinions issued after Jan. 1, 2007.
But without the force of precedent to require courts to rule similarly the next time around, these decisions create a sort of lawlessness, Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit wrote in 2000. “We may have decided this question the opposite way yesterday,” he wrote, “but this does not bind us today.”
Judges say that unpublished decisions are a sensible reaction to a crush of work.
“We simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent,” Judge Alex Kozinski of the Ninth Circuit explained in 2004. “In other words, we can make sure that a disposition reaches the correct result and adequately explains to the parties why they won or lost, but we don’t have the time to consider how the language of the disposition might be construed (or misconstrued) when applied to future cases.”
Erica J. Hashimoto, a law professor at the University of Georgia and a lawyer for the prisoner in the recent case, Plumley v. Austin, No. 14-271, said “requiring courts to author binding precedent in every case is simply unworkable.”
The Fourth Circuit, for instance, decided about 4,000 cases in a recent 12-month period, or 267 for each of its 15 active judges.
“Because published opinions create binding precedent for all other cases considered by that court, those opinions, unless crafted with the utmost care and precision, can have significant unintended consequences for all sorts of other cases,” Professor Hashimoto said. “Anticipating those consequences requires an incredible investment of time.”
Still, it is hardly clear that judges are making the right choices about which opinions to publish, Scott E. Gant wrote in 2006 in the Boston College Law Review.
“The premise that judges can and should make this determination at the moment a ruling is made, and without the benefit of input from others, is seriously flawed,” he wrote.
In a 1977 speech, Justice Stevens said the approach rested on “a false premise,” specifically “that an author is a reliable judge of the quality and importance of his own work product.”
David R. Cleveland, a law professor at Valparaiso University in Indiana who has written extensively on unpublished opinions, said that Justice Thomas’s recent criticism was characteristic of the Supreme Court’s fitful attention to the issue.
“Individual justices have expressed dissatisfaction with the system and individual instances of it,” Professor Cleveland said, “and they should be commended for spotting the problem and speaking out against its harm to appellate justice.”
In a 2009 article in the Marquette Law Review, he calculated that litigants had asked the Supreme Court to consider the “constitutionality or propriety” of designating an opinion as unpublished in at least 36 petitions seeking review. But the court has never ruled on the issue.
“Rather than occasionally expressing disapproval of an individual symptom of the problem,” Professor Cleveland said, “the court should consider addressing the underlying illness.”
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