CVS v. Doe

 

In CVS Pharmacy v. Doe, the U.S. Supreme Court will decide whether disability disparate impact claims may be brought under Section 504 of the Rehabilitation Act and therefore under Section 1557 of the Affordable Care Act (ACA). In an amicus brief the State and Local Legal Center (SLLC) asks the Supreme Court to rule that such claims cannot be brought.   

The Does are individuals living with HIV/AIDS who rely on employer-sponsored health plans for their medications. Per their prescription plan, to receive “in-network” prices they can only obtain specialized medication via mail or pick up at a CVS pharmacy. This means they must “forego essential counseling and consultation from specialty pharmacists.”

The Does sued CVS for disparate impact disability discrimination under the ACA.

 

Section 1557 of the ACA prohibits federally funded health programs from discriminating based on race, color, national origin, sex, age, or disability. Section 1557 of the ACA incorporates the anti-discrimination provisions of various civil rights statutes including, for disability, Section 504 of the Rehabilitation Act. So, to be able to sue for disparate impact disability discrimination under the ACA it must likewise be possible to sue for disparate impact disability discrimination under the Rehabilitation Act.

As CVS notes in its certiorari petition, the Supreme Court “expressly left open whether . . .  the Rehabilitation Act, provides a disparate-impact claim for disability discrimination” in Alexander v. Choate (1985). The Court agreed to decide that question. The Ninth Circuit assumed that disparate-impact claims could be brought under Choate, stating “the Supreme Court concluded that not all disparate-impact showings qualify as prima-facie cases under Section 504.” 

 

Section 504 of the Rehabilitation Act applies to all states and local governments that receive federal funds.

In arguing that disparate impact claims shouldn’t be possible the SLLC amicus brief points out “because federal funding is conditioned on compliance with § 504, expanding the Act to include disparate-impact liability would threaten to deprive state and local governments of critical federal funds without any proof of purposeful discrimination.”

The brief also argues that expanding liability is unnecessary because “existing federal and state legal schemes either expressly provide for disparate-impact claims or have been interpreted to support such claims. In contexts ranging from schools, to land use regulations, to prisons, disabled plaintiffs have ample avenues for relief available to them.”     

Michael McGinley, Justin Romeo, Eric Hageman, and Noah Becker, of Dechert wrote the SLLC’s amicus brief which the following organizations joined:  National Conference of State Legislatures, National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, International Municipal Lawyers Association, National School Boards Association, and National Public Labor Employer Labor Relations Association.

City of Austin, Texas v. Reagan National Advertising of Texas Inc. 
 

In the City of Austin, Texas v. Reagan National Advertising of Texas Inc., the State and Local Legal Center (SLLC) argues in a U.S. Supreme Court amicus brief that states and local governments should be able to regulate off-premises billboards differently than on-premises signs.
 

The City of Austin allows on-premises billboards to be digitized but not off-premises billboards. Two outdoor advertising companies claim that this distinction is “content-based” under the First Amendment.


In Reed v. Town of Gilbert (2015), the Supreme Court held that content-based restrictions on speech are subject to strict scrutiny, meaning they are “presumptively unconstitutional” under the First Amendment. In Reed the Court defined content-based broadly.


Per Austin’s Sign Code “off-premises” signs advertise “a business, person, activity, goods, products or services not located on the site where the sign is installed.”


According to the Fifth Circuit treating off-premises and on-premises signs differently is content-based because one must read the sign to determine whether it meets the above definition of “off-premises.”


The SLLC amicus brief encourages the Court to reject the “need to read” test.


The brief argues the test is “too onerous, because it could literally be applied to every sign ordinance, obliterating the concepts of content-neutral and concept-based and making all sign rules subject to strict scrutiny review.”
The SLLC suggests that instead the Court should “reaffirm that content-based rules involve a billboard’s topic, idea, or message—not its location. A cursory examination of content-neutral aspects of a sign, such as its lighting, moving parts, or location, is not a content-based inquiry.”


Finally, the brief notes that local governments “regulate digital billboards out of genuine concern for public safety and local aesthetics, without regard to the billboards’ topics, ideas, or messages.”


John Korzen of the Wake Forest University School of Law Appellate Advocacy Clinic wrote the SLLC amicus brief which the following organizations joined:  National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.

Thompson v. Clark

In Thompson v. Clark, Larry Thompson asserts that before suing police officers for “unreasonable seizure pursuant to legal process,” a plaintiff must await favorable termination of the criminal proceeding against him or her. Thompson frames the issue in this case as how “favorable determination” is defined and asks the Court to decide whether such favorable termination requires the plaintiff to show that the criminal proceeding has “formally ended in a manner not inconsistent with innocence,” or instead “ended in a manner that affirmatively indicates innocence.”

Larry Thompson’s sister-in-law, Camille, who was living with him, reported to 911 that Thompson was sexually abusing his week-old daughter. Thompson wouldn’t let police into his apartment because they didn’t have a warrant, blocked their path to entry, and allegedly shoved an officer. Camille’s report turned out to be false; she suffered from a mental illness which the officers “sensed” when they were in the apartment.

Although police arrested Thompson and he was charged with obstructing governmental administration and resisting arrest, the prosecutor dropped the charges against him “in the interests of justice.”

Thompson brought a number of civil claims against Officer Clark including one for “unreasonable seizure pursuant to legal process,” which he called a claim for “malicious prosecution.”

The Second Circuit held that Thompson couldn’t bring that claim because he failed to establish that the prosecution against him terminated favorably.

In a 2018 case, Lanning v. City of Glens Falls, the Second Circuit held that such a claim requires “affirmative indications of innocence to establish favorable termination.” In this case Thompson’s innocence wasn’t established because the only reason the prosecutor gave for dismissing charges against him was “in the interests of justice.”

Thompson argues in favor of the Eleventh Circuit rule that favorable termination occurs when criminal proceedings end in a manner “not inconsistent with . . . innocence.”

The Second Circuit allowed several of Thompson’s additional claims including his claim of denial of a right to a fair trial, to go to a jury, excluding the so-called “malicious prosecution” claim. Thompson lost all claims before the jury.

The State and Local Legal Center’s (SLLC) amicus brief argues that the “most analogous common-law tort” to claims for “unreasonable seizure pursuant to legal process” is false imprisonment, not malicious prosecution. Favorable termination is irrelevant in a false imprisonment claim. Claims for “unreasonable seizure pursuant to legal process” accrue, for statute-of-limitations purposes, when the seizure pursuant to legal process ends.

The SLLC argues that Thompson should nevertheless lose his claim for “unreasonable seizure pursuant to legal process” for two reasons. First, he was not “seized for any period after legal process [was] issued.” Instead, following his arrest he was held for two days until arraignment, then released on his own recognizance, and not taken into custody again before his charges were dismissed. Second, a jury ruled against Thompson’s denial of a fair trial claim indicating it either didn’t believe the officers lied about Thompson shoving an officer or “that such evidence was fabricated but would not likely have influenced a criminal jury’s decision.”

Myriam Zreczny Kasper and Julian N. Henriques, Jr. of the City of Chicago wrote the SLLC amicus brief which the following organizations joined:  the City of Chicago, National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.