Rethinking Retroactivity in Light of the Supreme Court’s Jury Unanimity Requirement

MICHAEL C. DORF

In light of the U.S. Supreme Court’s decision Monday in Ramos v. Louisiana, in which it held that the federal Constitution forbids states from convicting defendants except by a unanimous jury, Cornell law professor Michael C. Dorf discusses the Court’s jurisprudence on retroactivity. Dorf highlights some costs and benefits of retroactivity and argues that the Court’s refusal to issue advisory opinions limits its ability to resolve retroactivity questions in a way that responds to all the relevant considerations.

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Baptist Memorial Hospital - Golden Triangle, Inc. v. Azar

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-60592

Opinion Date: April 20, 2020

Judge: Higginbotham

Areas of Law: Government & Administrative Law, Health Law

In this case, the parties dispute the proper method for calculating the hospital specific limit for annual DSH payments. The Hospitals filed suit challenging the 2017 final rule clarifying that hospitals' "costs incurred" are net of payments from third parties, liked Medicare and private insurers. The Hospitals contend that the Secretary's definition of "costs incurred" conflicted with the Medicaid Act, 5 U.S.C. 706(2)(C). The Fifth Circuit reversed the district court's grant of summary judgment for the Hospitals, and joined three other circuits in holding that the 2017 rule was consistent with the Medicare Act. The court could not agree with the Hospitals that the ordinary meaning and dictionary definitions of "costs" and "payments" rendered the disputed language unambiguous; the court was unpersuaded by the Hospitals' argument that the statute draws a "clear line" between costs and payments; the court rejected the Hospitals' contention that Congress, by expressly excluding payments from Medicaid and the uninsured, meant to exclude only those payments and no others; the court rejected the Hospitals' argument that the express exclusion of third-party payments in a related Medicaid provision indicates that Congress chose not to deduct third-party payments in 42 U.S.C. 1396r-4(g)(1)(A); and the court saw no basis for the Hospitals' argument that the 2017 Rule conflicts with the statutory purpose of the hospital-specific limit. Accordingly, the court remanded for further proceedings.

In re: Greg Abbott

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-50296

Opinion Date: April 20, 2020

Judge: Jennifer Walker Elrod

Areas of Law: Civil Rights, Constitutional Law, Health Law

On April 7, 2020, the Fifth Circuit issued a writ of mandamus vacating the district court's temporary restraining order (TRO) that exempted abortions from GA-09, an emergency measure temporarily postponing non-essential medical procedures during the COVID-19 pandemic. On April 9, 2020, the district court entered a second TRO exempting various categories of abortion from GA-09. At issue in this mandamus petition is the April 9 TRO. The court held that the district court disregarded the court's mandate in Abbott II and failed to apply the framework governing emergency exercises of state authority during a public health crisis, established over 100 years ago in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). Furthermore, the district court second-guessed the basic mitigation strategy underlying GA-09 (the concept of "flattening the curve"), and also acted without knowing critical facts such as whether, during this pandemic, abortion providers do (or should) wear masks or other protective equipment when meeting with patients. The court concluded that these errors resulted in an overbroad TRO that exceeds the district court's jurisdiction, reaches patently erroneous results, and usurps the state's authority to craft emergency public health measures "during the escalating COVID-19 pandemic." Therefore, the court granted the writ in part and directed the district court to vacate parts of the April 9 TRO.

Valentine v. Collier

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-20207

Opinion Date: April 22, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law, Health Law

Plaintiffs filed suit alleging that TDCJ's adoption and implementation of measures guided by changing CDC recommendations in regards to the COVID-19 pandemic do not go far enough. Plaintiffs filed a class action alleging violations of the Eighth Amendment's prohibition against cruel and unusual punishment, and the Americans with Disabilities Act, seeking a preliminary injunction. The Fifth Circuit granted TDCJ's motion to stay the district court's preliminary injunction, which regulates the cleaning intervals for common areas, the types of bleach-based disinfectants the prison must use, the alcohol content of hand sanitizer that inmates must receive, mask requirements for inmates, and inmates' access to tissues (amongst many other things). The court held that TDCJ is likely to prevail on the merits of its appeal because: (1) after accounting for the protective measures TDCJ has taken, plaintiffs have not shown a "substantial risk of serious harm" that amounts to "cruel and unusual punishment"; and (2) the district court committed legal error in its application of Farmer v. Brennan, by treating inadequate measures as dispositive of defendants' mental state. In this case, even assuming that there is a substantial risk of serious harm, plaintiffs lack evidence of defendants' subjective deliberate indifference to that harm. The court also held that TDCJ has shown that it will be irreparably injured absent a stay, and that the balance of the harms and the public interest favor a stay. Finally, the court held that plaintiffs have not exhausted their administrative remedies as required in the Prison Litigation Reform Act (PLRA), and the district court's injunction goes well beyond the limits of what the PLRA would allow even if plaintiffs had properly exhausted their claims.

In Re: Leslie Rutledge

Court: US Court of Appeals for the Eighth Circuit

Docket: 20-1791

Opinion Date: April 22, 2020

Judge: Bobby E. Shepherd

Areas of Law: Civil Rights, Constitutional Law, Health Law

The Eighth Circuit granted a writ of mandamus in part and directed the district court to dissolve a Temporary Restraining Order (TRO) enjoining the State from enforcing a COVID-19-related health directive against a provider of surgical abortions. The Arkansas Department of Health (ADH) issued a directive requiring that all non-medically necessary surgeries be postponed in response to Executive Order 20-03, directing the ADH to do everything reasonably possible to respond to and recover from the COVID-19 virus. After adopting the Fifth Circuit's reasoning in In re Abbott, No. 20-50264, 2020 WL 1685929 (5th Cir. April 7, 2020), the court held that the State is entitled to mandamus relief because it has satisfied its burden in demonstrating that it has no other means to obtain the relief that it seeks, the State is clearly and indisputably entitled to the writ, and entry of the writ is appropriate under the circumstances. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court held that, when faced with a public health crisis, a state may implement measures that infringe on constitutional rights, subject to certain limitations. The court found that the district court's failure to apply the Jacobson framework produced a patently erroneous result. In this case, the directive bears a real and substantial relation to the State's interest in protecting public health in the face of the COVID-19 pandemic; the directive is not, beyond all question, a prohibition of pre-viability abortion in violation of the Constitution because it is a delay, not a ban, and contains emergency exceptions; and the district court clearly abused its discretion in finding that the provider is likely to prevail on its argument that the directive will likely operate as a substantial obstacle to a woman's choice to undergo an abortion in a large fraction of the cases in which the directive is relevant. The court declined to exercise its mandamus power to direct the district court to dismiss the supplemental complaint, and denied the emergency motion to stay the ex parte TRO and for a temporary administrative stay as moot.

Young v. Frist Cardiology, PLLC

Court: Tennessee Supreme Court

Docket: M2019-00316-SC-R11-CV

Opinion Date: April 20, 2020

Judge: Lee

Areas of Law: Health Law, Medical Malpractice

The Supreme Court held a doctor who was permitted to practice medicine in Tennessee under a statutory licensure exemption but was not licensed to practice in Tennessee or a contiguous state during the year before the date of the alleged injury or wrongful conduct does not meet the requirements of Tenn. Code Ann. 29-26-115(b) to testify as an expert witness in a health care liability action. Plaintiff brought this action against Thomas Killian, M.D. and Frist Cardiology, PLLC (collectively, Defendants) alleging that Defendants' negligent conduct caused her husband's death. Plaintiff named Dr. Jason A. Rytlewski as the expert witness who would testify that Dr. Killian deviated from the applicable standard of care in his treatment of the decedent. Defendants moved for summary judgment, asserting that Dr. Rytlewski did not have a medical license in Tennessee or a contiguous state the year before the decedent's heart procedure, as required by section 29-26-115(b). In response, Plaintiff explained that Dr. Rytlewski had been granted an exemption allowing him to practice medicine without a medical license. The trial court allowed Dr. Rytlewski's testimony. The Supreme Court reversed, holding that Dr. Rytlewski was not qualified to testify as an expert as an expert witness in this health care liability case.