Petitions of the Week
By Andrew Hamm
on February 5, 2021
at 5:59 pm
This week we are highlighting certification motions calling on the Supreme Court to review, among other things, the settlement of student loan debts for “undue hardship” and the statute of limitations for IDEA “child search” violations.
The bankruptcy code allows student loan debt to be settled if repaying it would cause the borrower “undue difficulty”. However, the US appeals courts use different tests to determine what constitutes “undue hardship”. A test tries to take a holistic view of the “totality of circumstances”. In the McCoy v. United States case, however, the US Court of Appeals used the so-called Brunner test for the 5th circuit. For this three-part test, a student loan student must demonstrate: “(1) that [she] cannot maintain a “minimum” standard of living for herself and her loved ones on the basis of current income and expenses if she is forced to repay the loans; (2) that there are additional circumstances that indicate that this condition is likely to persist for a significant portion of the student loan repayment period; and (3) that [she] has made good faith efforts to repay the loans. “Since Thelma McCoy had secured a part-time job, among other things, the 5th Circuit found that she did not pass the second pen of the Brunner test. McCoy argues that the division of the circuit often determines the outcome and asks for review by the judges.
Independent school district No. 283 against EMDH ex rel. LH and SD ask the judges a procedural question under the Disability Awareness Act: How long must parents complain about a school district’s alleged failure to offer a child with a disability “free adequate public education”? The law provides for two years for parents, but the question remains when the two-year clock starts running. In this case, a Minnesota child with various mental disorders entered a psychiatric day care facility in May 2015. In June 2017, the child’s parents filed an administrative complaint alleging that the district had failed to ensure its child search obligation, a district’s duty “[a]All children with disabilities living in the state are identified, located, and assessed. “In response, the district argued that two years had passed. However, the U.S. Court of Appeals for the 8th Circuit ruled that the violation was not isolated until May 2015, but continued day after day in the statute of limitations. In its petition, the district argues that this decision split the circuit and is asking for judges to review it.
These and other petitions of the week are listed below:
McCoy versus United States
problem: Whether the US Court of Appeals for the 5th Circuit erred in applying Brunner’s v. New York State Higher Education Services Corp. test prohibiting discharge unless the debtor can, among other things, obtain a “total Inability ”to repay the proven debt in the future in lieu of the totality test to determine whether a debtor would experience“ undue hardship ”if her student loan debt were not paid.
Independent school district No. 283 against EMDH ex rel. LH and SD
problem: Whether the Doctrine of Continuing Violation applies to the two-year legal deadline for filing an administrative complaint under the Disability Awareness Act.
Alaska v. Wright
problem: If a perpetrator has served the full sentence imposed on a federal conviction, whether a federal habeas court has jurisdiction to consider a 28 USC § 2254 challenge to that conviction simply because it served as a predicate for an independent federal conviction, according to The perpetrator is now in custody.
Atkins v. Williams
Problems: (1) Whether the unavailability of funds or other resources negates the subjective component of an intentional indifference after the eighth amendment; and (2) whether, if lack of money is a valid defense at all, a defendant can bring that defense when he is sued in his official capacity for injunctive relief.
Stewart v City of Euclid, Ohio
problem: Whether, if a city worker has violated the constitution, a plaintiff must refer to a “clearly established law” (which would, for example, overcome the defense of qualified immunity by an individual civil servant) in order to demonstrate deliberate indifference for community liability purposes.
Ellis v Boston Liberty Life Assurance Company
problem: The correct test is to decide whether an otherwise applicable state law – here a state law prohibiting discretionary provisions in insurance contracts – can be replaced by the choice of law clause of the 1974 Retirement Income Plan.
Owens v. Stirling
Problems: (1) For ineffective legal counseling claims, what standard federal appeals courts should use to determine whether the underlying Martinez constitutional claim against Ryan is “material” and how it relates to the finding that A Petitioner has qualified to obtain a Certificate of Appeal under 28 USC § 2253 (c) and as described by the Supreme Court at Miller-El v Cockrell. and (2) whether under the Martinez Standard for Courts of Appeal to determine the substantial quality of the underlying constitutional claim it is appropriate to rely on an imbalance in consideration of the Protocol, including ignoring evidence in the Protocol in support of the underlying constitution of a Petitioners claim – as happened in Freddie Owens’ case.