Federal Claims Research Articles

Retaliation in workplace sexual assault: The effect of #MeToo on federal court cases in the United States

The number of federal claims filed with the Equal Employment Opportunity Commission (EEOC) in the United States by alleged victims of workplace sexual assault increased following the #MeToo movement along with allegations of retaliation by employers against these victims for making formal claims of sexual discrimination. This study distinctively presents an examination, not of the number of EEOC claims, but instead those claims which became federal court cases over the last three years in which a claims of workplace retaliation were alleged because of sexual assault in the workplace. The study provides an empirical examination of numerous characteristics, related factors, and outcomes of such retaliation cases involving sexual assault in the contemporary #MeToo era. The implications of these diverse results are advanced along with recommendations for employers and employees alike.

Prevalence and trends in polypharmacy and excessive polypharmacy: a retrospective national database analysis (2012-2021).

Polypharmacy is a growing concern, impacting patient safety and healthcare costs. Monitoring its prevalence and temporal trends is essential for effective healthcare management. This study aimed to determine prevalence and trends of polypharmacy and excessive polypharmacy in Belgium. Utilizing a federal claims database, medication data were analyzed from 2012 to 2021. Polypharmacy (≥ 5 medications) and excessive polypharmacy (≥ 10 medications) were evaluated, with prevalence calculated per 1000 inhabitants, and reported per year, age group and region. Linear regression estimated the impact of age and year on polypharmacy prevalence. In 2021, polypharmacy and excessive polypharmacy were reported in 135/1000 and 31/1000 Belgians respectively. Prevalence of both increased steadily from 2012 to 2021, with excessive polypharmacy rising more prominently. Among adults aged ≥ 65years, prevalence rates were higher, with polypharmacy at 434/1000 and excessive polypharmacy at 106/1000. Regional variations were observed, with prevalence highest in the Walloons region. Patient age and year (2012-2021) were associated with both polypharmacy and excessive polypharmacy (p < 0.001). We observed increases in polypharmacy and excessive polypharmacy over a decade in Belgium, particularly among older adults. Efforts to monitor, manage, and optimize medication use are imperative to ensure safe and effective healthcare delivery.

Article III 'Arising Under' Jurisdiction: Evading Federal Jurisdiction by Amending a Complaint After Removal to Delete Federal Claims

Article III 'Arising Under' Jurisdiction: Evading Federal Jurisdiction by Amending a Complaint After Removal to Delete Federal Claims

Do vaccines cause epilepsy? Review of cases in the National Vaccine Injury Compensation Program.

The National Childhood Vaccine Injury Act of 1986 created the National Vaccine Injury Compensation Program (VICP), a no-fault alternative to the traditional tort system. Since 1988, the total compensation paid exceeds $5 billion. Although epilepsy is one of the leading reasons for filing a claim, there has been no review of the process and validity of the legal outcomes given current medical information. The objectives were to review the evolution of the VICP program in regard to vaccine-related epilepsy and assess the rationale behind decisions made by the court. Publicly available cases involving epilepsy claims in the VICP were searched through Westlaw and the US Court of Federal Claims websites. All published reports were reviewed for petitioner's theories supporting vaccine-induced epilepsy, respondent's counterarguments, the final decision regarding compensation, and the rationale underlying these decisions. The primary goal was to determine which factors went into decisions regarding whether vaccines caused epilepsy. Since the first epilepsy case in 1989, there have been many changes in the program, including the removal of residual seizure disorder as a vaccine-related injury, publication of the Althen prongs, release of the acellular form of pertussis, and recognition that in genetic conditions the underlying genetic abnormality rather than the immunization causes epilepsy. We identified 532 unique cases with epilepsy: 105 with infantile spasms and 427 with epilepsy without infantile spasms. The petitioners' experts often espoused outdated, erroneous causation theories that lacked an acceptable medical or scientific foundation and were frequently criticized by the court. Despite the lack of epidemiological or mechanistic evidence indicating that childhood vaccines covered by the VICP result in or aggravate epilepsy, these cases continue to be adjudicated. After 35 years of intense litigation, it is time to reconsider whether epilepsy should continue to be a compensable vaccine-induced injury.

Gilead Scis., Inc. v. United States

Biotechnology Law ReportVol. 42, No. 1 Case in PointGilead Scis., Inc. v. United StatesUnited States Court of Federal Claims, 2022 No. 20-499C, 2022 WL 17335933Edited for Biotechnology Law Report by Christopher M. HolmanEdited for Biotechnology Law Report by Christopher M. HolmanChristopher M. Holman is a Professor of Law at the University of Missouri-Kansas City School of Law; a Senior Scholar at the Center for the Protection of Intellectual Property at the Antonin Scalia Law School, George Mason University; and the Executive Editor of Biotechnology Law Report.*The synopsis is original content and the decision itself has been condensed for ease of readability.Search for more papers by this authorPublished Online:15 Feb 2023https://doi.org/10.1089/blr.2023.29298.cipAboutSectionsView articleView Full TextPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail View articleFiguresReferencesRelatedDetails Volume 42Issue 1Feb 2023 InformationCopyright 2023, Mary Ann Liebert, Inc., publishersTo cite this article:Edited for Biotechnology Law Report by Christopher M. Holman.Gilead Scis., Inc. v. United States.Biotechnology Law Report.Feb 2023.48-63.http://doi.org/10.1089/blr.2023.29298.cipPublished in Volume: 42 Issue 1: February 15, 2023Online Ahead of Print:February 7, 2023PDF download

Equity and the Article I Court: Is the Tax Court’s Exercise of Equitable Powers Constitutional?

“Relieve the judges from the rigour of text law, and permit them, with pretorian discretion, to wander into it’s equity, and the whole legal system becomes incertain.”“Tax law is not based on equity and arguments of equity have little force.”To most lawyers, the “federal courts” are the courts created under Article III of the United States Constitution. However, the federal courts also include the United States Tax Court, the United States Court of Federal Claims, the bankruptcy courts, and the territorial courts – all “legislative courts” created by Congress under Article I of the Constitution. Several of these Article I courts have important jurisdiction and large dockets, and issue influential opinions with precedential value. Yet, scholars typically have not paid much attention to legislative courts other than the bankruptcy courts, which are courts adjunct to the Article III district courts. Since 1988, when Professor Richard Fallon of Harvard Law School published his important article, “Of Legislative Courts, Administrative Agencies, and Article III,” little has been published on the features and limitations of Article I courts.

Fiduciary Colonialism

Abstract Federal officials in the early United States built an empire by purchase. But rather than hand over lump sums for Native lands, officials offered annual payments, or annuities. This article traces annuities’ material evolution from payments in goods to high-powered money—especially specie—and their financial evolution from straightforward congressional outlays to interest accrued on investments held in trust. Annuities originated as devices that could permit territorial expansion within considerable military-fiscal constraints. But once in use, they became potent instruments of federal power, shoring up officials’ capacity to intrude on Native economies, wrench further territorial transfers, and channel Indigenous wealth as capital for the very infrastructural projects that spread US settlement. Overall, annuities and the trust funds into which they evolved anchored a strategy of dispossession I call fiduciary colonialism: a mode of territorial acquisition and population management carried out through the expansion of administrative control over Native peoples’ wealth. In the face of federal claims to financial superiority, Indigenous peoples did not wither into wardship. Rather, they engaged trusteeship with their own futures in mind, applying annuities and trusts toward social institutions that would allow their nations to survive the ordeal of dispossession.

Reforming the countermeasures injury compensation program for COVID-19 and beyond: An economic perspective.

As of Aug. 2, 2021, 1693 injury claims associated with COVID-19 medical countermeasures have been filed in the Countermeasures Injury Compensation Program (CICP), of which 686 claims were related to COVID-19 vaccines and urgently needed compensation decisions. However, from an economic and public policy perspective, we find that the CICP design has unintended consequences: locating CICP in the executive agency DHHS potentially creates a conflict of interest, and not permitting judicial review generates a lack of checks and balances, both of which could jeopardize justice. These fundamental problems would subsequently weaken four key performance indicators of CICP compared with its judicial counterpart in the Court of Federal Claims. CICP lacks accountability, transparency, and cost-effectiveness efficiency, with 94% of its total costs spent on administration rather than compensation. CICP’s ability to compensate is also questionable. If COVID-19 claims were compensated at its historical rate, CICP would face around $21.16 million in compensation outlays and $317.94 million in total outlays, 72.1 times its current balance. To ensure just compensation for injured petitioners during COVID-19 and future public health emergencies, we recommend Congress (1) initiate a major reform by relocating CICP from DHHS to the Claims Court or (2) keep CICP within DHHS and make incremental changes by permitting judicial review of DHHS administrative adjudication of CICP claims. We further recommend Congress audit and adjust budgets for CICP and DHHS promptly propose an injury table for COVID-19 claims. This is the first study that contributes an economic perspective to the limited literature on CICP and also provides unique and rich economic data.

Selected US Tax Developments: Canadian Residents Who Are US Citizens May Be Able To Credit Canadian Taxes Against the US Net Investment Income Tax

The US net investment income tax (NIIT, colloquially referred to as the "Obamacare tax" or "Medicare tax") is a 3.8 percent tax on worldwide investment income of US citizens and residents, and applies to interest, dividends, royalties, and other types of investment income. Although US domestic law does not permit a foreign tax credit to be applied against the NIIT, the US Court of Federal Claims recently held that the US-France tax treaty requires the United States to allow a foreign tax credit against the NIIT. While this case may be helpful for US citizens who are residents of other countries that have tax treaties with the United States that include provisions similar to the provision at issue in the case, residents of Canada who are US citizens may have a harder time making the argument that the US-Canada tax treaty requires the United States to allow a foreign tax credit against the NIIT.

Pastor Fails to Qualify for Self‐Employment Income Tax Exemption

The US Court of Federal Claims, by decision dated July 7, held that a pastor failed to qualify for exemption from self‐employment income taxes because he did not, indeed could not, comply with the requirement to file an application for the exemption (Arensmeyer v. United States).

MARINA DISTRICT DEVELOPMENT COMPANY LLC., DOING BUSINESS AS BORGATA HOTEL CASINO &amp; SPA V. AC OCEAN WALK LLC, DOING BUSINESS AS OCEAN CASINO RESORT

MARINA DISTRICT DEVELOPMENT COMPANY LLC., DOING BUSINESS AS BORGATA HOTEL CASINO &amp; SPA V. AC OCEAN WALK LLC, DOING BUSINESS AS OCEAN CASINO RESORT

May the Executive Branch Forgive Student Loan Debt Without Further Congressional Action?

On April 1, 2021, the Biden Administration announced that Secretary of Education Michael Cardona will consider whether the President has legal authority to forgive up to $50,000 per debtor in student loan debt without further Congressional action. This paper collects the leading arguments for and against the position that the Biden Administration can forgive this student loan debt as an administrative action and without additional congressional authorization. The paper first surveys the history of federal student loan forgiveness programs in the United States. The paper then considers whether statutes on the books—in particular, the Higher Education Act of 1965 and the Federal Claims Collection Act of 1966—grant the executive branch the authority to effect widespread student loan forgiveness. The paper considers how the Department of Education might use administrative action to forgive loans and assesses the pros and cons of the Department proceeding without notice and comment rulemaking. Finally, the paper evaluates the Biden Administration’s prospects in court, including whether any parties would have standing to challenge administrative student loan forgiveness and which forms of administrative action are likeliest to survive judicial review.

Law in the Shadows of Confederate Monuments

Hundreds of Confederate monuments stand across the United States. In recent years, leading historians have come forward to clarify that these statues were erected not just as memorials but to express white supremacist intimidation in times of racially oppressive conduct. As public support for antiracist action grows, many communities are inclined to remove public symbols that cause emotional harm, create constant security risks and dishonor the values of equality and unity. Finding a lawful path to removal is not always clear and easy. The political power brokers who choose whether monuments will stay or go often do not walk daily in their shadows. In recent years, eight Southern state legislatures enacted monument preservation legislation designed to thwart local removal efforts. These laws have prompted bitter conflicts, sometimes leading angry citizens to topple massive stone or bronze monuments themselves. The challenges present fertile ground for innovative lawyering. Creative applications of state property, nuisance and contract laws have led to removals notwithstanding the prohibitions of state preservation laws. When state law blocks removal or contextualization, communities may look to federal law as a source for taking antiracist action. First Amendment doctrine governing expressive speech has not provided a fruitful solution. Despite the expressive nature of Confederate monuments, efforts to weaponize the First Amendment by both sides of the monument debate have failed, largely due to the government speech doctrine. Given the age and quality of most monuments, copyright law is also not likely to provide an effective federal claim. The Federal Civil Rights Act offers an untapped but promising foundation for resolving these controversies. Title VI and Title VII could be used to challenge monuments that contribute to a hostile work or educational environment. Federal civil rights claims would supersede state legislation enacted to prevent removal of racially hostile symbols. Even when state law does not present removal barriers, communities who seek to take meaningful anti-racist action could ground their initiatives in the Civil Rights Act’s core value of equality. For all who are confronting this issue, this Article seeks to provide a legal and strategic framework for acknowledging history while reclaiming the symbolic heart of our public spaces and a means to assure that the symbols we elevate affirm shared contemporary values.

§ 1498: A Guide to Government Patent Use, a Path to Licensing and Distributing Generic Drugs

§ 1498: A Guide to Government Patent Use, a Path to Licensing and Distributing Generic Drugs

Archaeological Collecting at the Museum of Northern Arizona: From Past to Present

The Museum of Northern Arizona (MNA) is a private institution yet an estimated 89 percent of its archaeological holdings are not owned by the museum. The story of how MNA acquired these collections is rooted in its founding in 1928 by a group of local citizens under the leadership of Dr. Harold S. and Mary-Russell Ferrell Colton and collaboration with J.C. Clarke, an amateur archaeologist and custodian of Wupatki National Monument. Dr. Colton encouraged local collectors to donate their prehistoric collections to MNA, but also conducted a systematic archaeological survey beginning in 1916 to document sites, often on federal land, in northern Arizona. There have been many policy changes by MNA since earlier days with the passage of laws that affirm federal ownership and Native American claims to archaeological resources from their lands. MNA also updated its policy and protocol for accepting archaeological materials from private entities and developed Native American partnerships for rehoming certain types of artifacts.

US Supreme Court holds that US states are immune from federal copyright infringement claims in case involving Blackbeard’s flagship

US Supreme Court holds that US states are immune from federal copyright infringement claims in case involving Blackbeard’s flagship

The Misunderstood Eleventh Amendment

The Eleventh Amendment might be the most misunderstood amendment to the Constitution. Both its friends and enemies have treated the Amendment’s written text, and the unwritten doctrines of state sovereign immunity, as one and the same—reading broad principles into its precise words, or treating the written Amendment as merely illustrative of unwritten doctrines. The result is a bewildering forest of case law, which takes neither the words nor the doctrines seriously. The truth is simpler: the Eleventh Amendment means what it says. It strips the federal government of judicial power over suits against states, in law or equity, brought by diverse plaintiffs. It denies subject-matter jurisdiction in all such cases, to federal claims as well as state ones, and in only such cases. It can't be waived. It can't be abrogated. It applies on appeal. It means what it says. Likewise, the Amendment does not mean what it does not say: it neither abridges nor enlarges other, similar rules of sovereign immunity, derived from the common law and the law of nations, that limit the federal courts’ personal jurisdiction over unconsenting states. Current case law runs roughshod over these distinction, exposing sound doctrines to needless criticism and sometimes leading the Court off track. Understanding the Amendment’s text lets us correct these errors and respect the unwritten law the Amendment left in place.

Unintended Consequences, Loopholes, and Gibberish

This Article examines Congress’s decades-long attempt to ensure that securities class action lawsuits of national importance are litigated in federal courts. The intent is limiting strike suits. Congress attempted to curtail strike suits through the enactment of the Private Securities Litigation Reform Act (“PSLRA”). The PSLRA required heightened pleading requirements to ensure the validity of federal securities class actions. Instead of solving the dilemma, plaintiffs circumvented the PSLRA by bringing fraud cases as state law claims. To combat the circumvention of the PSLRA, Congress enacted the Securities Litigation Uniform Standards Act (“SLUSA”). SLUSA federally preempted state law claims based on alleged misrepresentations, untrue statements, or omissions of material facts, requiring them to be brought in federal court. However, SLUSA did not address the concurrent jurisdiction provision of the Securities Act of 1933. This created an anomaly whereby many federal claims under the 1933 Act were brought in state courts, while state fraud claims were required to be brought in federal court. Congress could have addressed this enigma when it enacted the Class Action Fairness Act (“CAFA”). Instead, CAFA, which reformed class actions generally, exempted most securities class actions from its rules. In 2018, the Supreme Court decided Cyan v. Beaver County and allowed 1933 Act claims covered by SLUSA to continue to be brought in state courts. The Court was silent on non-covered securities. This Article recommends how Congress can accomplish its goal of forcing important securities class actions into federal courts.

Mandatory Securities Arbitration’s Impermissibility Under State Corporate Law: An Analysis of the Johnson &amp;amp; Johnson Shareholder Proposal

Under New Jersey corporate law, may a corporation adopt a mandatory arbitration provision in its bylaws that would require shareholders to bring federal securities law claims via separate individual arbitration? The issue is squarely raised by a recent shareholder proposal at Johnson & Johnson, a New Jersey corporation, that asks the board to adopt such a bylaw for “disputes between a stockholder and the Corporation and/or its directors, officers or controlling persons relating to claims under federal securities laws.” This whitepaper, which has been signed on to by 26 professors of securities and business law, explains why such a bylaw would violate the New Jersey Business Corporation Act, the relevant provisions of which are similar to those in the Delaware General Corporation Law. Although bylaws may be used to modify the “corporate contract” with shareholders, that authority is not unlimited. Under New Jersey law, as in Delaware, a corporation’s bylaws may only include provisions relating to internal corporate affairs. Because a mandatory securities arbitration provision purports to govern matters that are not internal affairs of the corporation, it is not an allowable subject for corporate bylaws.

New Thinking About Jurisdictional Time Periods in the Tax Code

This Article explores the extent to which statutory periods of limitation in the Code are properly viewed as jurisdictional restrictions on the authority of the Tax Court. Starting in the mid-2000s, the Supreme Court began thinking about jurisdictional time limits in a new way. Applied of this new thinking to tax limitation periods has been limited and there is not comprehensive treatment of how this new thinking should apply the the Tax Code. This Article considers how the Supreme Court’s new thinking should apply to four time periods in the Code. Three govern access to the Tax Court: the period in section 6213 for contesting a Notice of Deficiency; the periods in sections 6320 and 6330 for contesting the outcome of an IRS Collection Due Process (CDP) hearing; and the period in section 6015(e) for contesting a denial of innocent spouse relief. The fourth is the two-year period in section 6532(a)(1) to file a suit for refund of taxes in either federal district court or the Court of Federal Claims. The Article first explains the Supreme Court’s new thinking. The Article next sets up the procedural contexts in which the four limitations periods appear. Then it analyzes each of the four periods. The Article concludes that for the deficiency and CDP time periods the new thinking leads to different conclusions from existing lower court precedents, which are now unlikely to survive Supreme Court scrutiny. In contrast, recent opinions about section 6015(e) have reasonably applied the new thinking in typing that limitations period as jurisdictional. Finally, a straightforward analysis of section 6532(a)(1) under the new thinking reveals it to be a plain-vanilla, claims-processing rule, contrary to past court decisions. Keywords: Jurisdiction, Tax Court, Refunds, claims processing, limitation periods, statute of limitations, limitations, Collection Due Process, CDP, Innocent Spouse, spousal relief, deficiency, 6213, 6330, 6015, 6532