Democracy Is on the Ballot: One Party Defends It, The Other Would Let It Die

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—explains why the 2020 Democratic National Convention was unlike any other political gathering in American history for reasons beyond its virtual platform. Sarat argues that the future of American democracy lies in the balance, and when we vote in November, it will be up to us whether democracy lives or dies.

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Sowinski v. California Air Resources Board

Docket: 19-1558

Opinion Date: August 21, 2020

Judge: Pauline Newman

Areas of Law: Civil Procedure

In 2015, Dr. Sowinski sued the California Air Resources Board (CARB) and others, alleging infringement of the 033 patent, violation of California elder abuse laws, and violation of California Business & Professions Code 17200. The patent, entitled “Pollution Credit Method Using Electronic Networks,” describes an electronic method and apparatus for validating and trading consumer pollution control tax credits. Sowinski stated that the patent is infringed by California’s Cap-and-Trade Program auctions. Sowinski did not file a response to motions to dismiss. After the period set in the local rules, the district court dismissed the complaint with prejudice. The Federal Circuit affirmed. In 2018, Sowinski filed suit in the California Superior Court of Orange County, substantially identical to his prior complaint but seeking damages only for infringement after the dismissal. He voluntarily dismissed that action and filed the same complaint in the Northern District of California, stating the same three counts as the first suit. CARB was the only named defendant. The district court dismissed the complaint on the ground of res judicata, observing that the dismissal of the same claims in the prior litigation against the same defendant “was an adjudication on the merits.” The Federal Circuit affirmed, rejecting arguments that res judicata did not apply because the present complaint seeks damages only for infringement that occurred after the conclusion of his prior suits and because the prior suit was resolved on procedural grounds, without reaching the merits of infringement.

Dyer v. Department of the Air Force

Docket: 19-2185

Opinion Date: August 21, 2020

Judge: Sharon Prost

Areas of Law: Government & Administrative Law, Labor & Employment Law

The West Virginia adjutant general terminated Dyer from his position as a dual-status military technician with the U.S. Air Force. The National Guard Technicians Act of 1968 (NGTA) established authority for dual-status positions like Dyer’s. Under 32 U.S.C. 709, the NGTA requires dual-status technicians to maintain military membership with the National Guard. Dyer met this requirement by maintaining membership with the West Virginia Air National Guard (WVANG) until 2018 when Dyer was separated from the WVANG. The WV adjutant general terminated his dual-status position because he no longer met the military membership requirement of his employment. The Merit Systems Protection Board affirmed, rejecting Dyer’s argument that he was not provided the due process he is entitled to under Title 5. The Federal Circuit directed the Board to dismiss the appeal. According to 32 U.S.C. 709, the Board does not have jurisdiction over the termination of a dual-status employee to the extent the termination was required under the statute because the employee had been separated from the National Guard.

Burkhart v. Wilkie

Docket: 19-1667

Opinion Date: August 21, 2020

Judge: Todd Michael Hughes

Areas of Law: Military Law, Public Benefits

Burkhart is the widow of U.S. Army veteran David, who served honorably in the Korean War. He had no service-connected disabilities. In the late 1990s, he was admitted to a VA nursing facility, where he died. Burkhart filed a claim for dependency and indemnity compensation (DIC) benefits under 38 U.S.C. 1151, which provides for compensation related to the death or injury of a veteran in certain circumstances while the veteran was under VA care “as if such additional disability or death were service-connected.” Having determined that David’s death was due to an event “not reasonably foreseeable,” the VA granted DIC benefits. In 2007, Burkhart obtained a certificate of eligibility (COE) for home loan guaranty benefits available under chapter 37 but never finalized a loan. In 2013, she requested a new COE for a guaranty. The VA determined that she was ineligible. The Board of Veterans’ Appeals found that home loan guaranty benefits are available only to “the surviving spouse of any veteran . . . who died from a service-connected disability,” 38 U.S.C. 3701(b)(2). The Veterans Court affirmed, requesting requests for equitable relief. The Veterans Court reasoned that an “incontestability provision” (section 3721) gives only lenders receive the privilege of estoppel with respect to COEs. The Federal Circuit affirmed. Burkhart is not eligible for home loan guaranty benefits under any of the cited statutes and the Veterans Court lacked the power to grant her equitable relief.