Petitions of the Week
By Andrew Hamm
on April 9, 2021
at 1:01 pm
This week we’re highlighting certification filings asking the Supreme Court to review the viability of certain types of disability claims under three federal laws, among other things. One petition concerns the Disabled Americans Act. Another reason is the interplay between the Affordable Care Act and the Rehabilitation Act.
Because an arm injury at work made it harder for her to conduct health inspections for Weld County, Colorado, Laurie asked Exby-Stolley for housing in a new position with tasks to perform. After the county announced to Exby-Stolley that its proposed agreement was unfair to other employees, it resigned. Exby-Stolley then sued the county under the Americans with Disabilities Act 1990 for failure to record their violation. Her claim stalled in the district court because the jury found that the district had not given her notice or subjected her to a negative employment measure. The US Court of Appeals for the 10th Circuit reversed on the grounds that Exby-Stolley did not need to prove that the county had taken a negative measure, only that the county had not taken it. On the grounds that the US appeals courts are “almost evenly distributed” on this issue, the county is asking for a review by the judges. The case is Board of County Commissioners of Weld County, Colorado versus Exby-Stolley.
CVS Pharmacy Inc. against Doe has filed a class action lawsuit Section 504 of the Rehabilitation Act 1973 and Section 1557 of the Patient Protection and Affordability Act. The HIV-positive class members have health insurance through their employers. In turn, these health plans rely on CVS Caremark, a pharmacy benefits manager, to manage their prescription drug benefits. As part of their benefit plans, participants can receive on-line prizes for their HIV medication by receiving medication in the mail or by picking it up at a CVS pharmacy. However, you will have to pay prices outside the network in other pharmacies. CVS claims this policy applies to all “specialty drugs”. Nonetheless, the participants argue that the delivery terms are disproportionately damaging to plan members with HIV or AIDS, and they ask for prices in their selected pharmacies in the network.
Class members argue that the Rehabilitation Act, which prohibits discrimination based on disability through programs or activities that receive federal funding, allows claims with varying effects. In addition, the ACA, which contains the enforcement mechanisms of the Rehabilitation Act, allows the terms of their benefit plans to be challenged. The district court dismissed the case because the conditions of delivery depend on whether patients are receiving specialty drugs, not whether they are HIV positive. The US Circuit Court of Appeals cleared up and sent it off for further action on the grounds that the benefit plans should not have a clear impact on people living with HIV or AIDS if the plans denied them “medically appropriate delivery of their drugs.” CVS argues that the 9th Circuit has deepened “a square widely recognized conflict” and is seeking review by the Supreme Court.
These and other petitions of the week are listed below:
SFR Investments Pool 1, LLC v M&T Bank
Problems: (1) Whether the structure of the Federal Housing Agency violates the separation of powers, and if so, whether the Conservatory of Fannie Mae and Freddie Mac must be overturned; and (2) whether FHFA silent title claims alleging that a state foreclosure did not extinguish the Agency’s property interests are contractual claims for the purposes of 12 USC § 4617 (b) (12).
Warsaw Orthopedic Inc. v Sasso
problem: Whether a federal court with exclusive jurisdiction over a claim can abstain in favor of a regional court that is not competent for that claim.
AbbVie Inc. v Federal Trade Commission
problem: Whether the subjective element of the exception of the “pseudo litigation” from immunity against Noerr-Pennington can be met by a conclusion from the finding that a contested claim was objectively unfounded, even without evidence that the antitrust defendant actually believed that the action is unfounded or indifferent to the outcome.
Walker v. Mississippi
Problems: (1) Whether the Mississippi Supreme Court has failed to comply with Supreme Court rulings on the Sixth Amendment requiring an attorney to conduct a thorough investigation into the background and history of his client in a capital case, and whether alleged “tactical” decisions to that extent only they are reasonable based on such an investigation; and (2) whether Alan Walker has been denied the effective assistance of a legal counsel in preparing and presenting the mitigation in his capital litigation.
Board of County Commissioners of Weld County, Colorado v Exby-Stolley
problem: Whether a plaintiff making a claim for default, after the Americans with Disabilities Act 1990 must prove that the employer’s failure to find the desired accommodation complies with the “Conditions, [or] Employment Privileges “- that is, whether the employee must demonstrate that the non-placement is an adverse employment measure.
CVS Pharmacy Inc. v Doe
Problems: (1) Ob Section 504 of the Rehabilitation Act 1973 – and in a wider sense Section 1557 The Patient Protection and Affordable Care Act, which incorporates the “enforcement mechanisms” of other federal anti-discrimination laws – provides disability-based plaintiffs with a mixed-impact plea; and (2) whether, if Section 504 and the ACA make claims with different implications, those claims extend to the face-neutral terms of health insurance plans.