So what’s doing in the First Circuit? Here are a few observations on recent cases.
1. Cintron-Lorenzo v. Fondo del Seguro del Estado (2/4/2011 from D.P.R.) 10-1020P.01A
Justice Souter continues to be the Kevin “Extra Man” McHale of the First Circuit.
2. McKenna v. Powell (1/27/2011 from D.R.I) 10-1820P.01A
A while back I suggested that the earth would not stop turning if the First Circuit issued more decisions that, when the district court opinion was spot on, simply adopted that district court decision. Here’s a per curiam order that does just that. Is this the start of a trend?
3. Hartford Fire Insurance Company v. CNA Insurance Company (Europe) (1/27/2011 from D. Mass) 10-1177P.01A
I mention this decision, going to what “arising out of” means in an insurance context, because it applies English law, which is alway fun to compare. (law and order UK)
4. Tayag v. Lahey Clinic Hospital, Inc., (1/27/2011 from D. Mass.) 10-1169P.01A
This one holds that a "healing pilgrimage" doesn’t constitute medical care within the meaning of the FMLA. The employee wanted leave to accompany her husband, who had serious medical issues (heart etc.), that had been treated medically by doctors, on a seven-week spiritual pilgrimage to the Philippines. The decision includes an interesting discussion of how FMLA accommodates Christian Scientists.
5. United Automobile v. Fortuno (1/27/2011 – a busy day! From D.P.R.) 10-1069P.01A
This is a rejection of a contract clause claim, holding that the plaintiff bears the burden of showing the unreasonableness of the governmental impairment, and that the plaintiff here didn’t include enough information in its complaint to jump the Twomey-Iqbal hurdle.
On one level, yet another decision rejecting a contract clause claim is a rather ho-hum occurrence. While there doesn’t seem to be a lot of law on the burden question, it’s also not particularly earth shattering in isolation. And this case is very case specific – Judges Boudin and Howard even add a concurrence to note that the burden question is only being answered in this very specific context.
Why the care to keep things so case specific? Here’s my guess – because of potential fights to come.
This case is about how Puerto Rico addressed budget problems in a way that allegedly impaired existing employment agreements. So I see this decision as a little preview of some reasoning that may be to come should governments try to reduce pension obligations (although there are vesting issues that may distinguish that situation) and adjust other existing contractual relations with its employees. What struck me about this decision is that the discussion suggesting what sort of information is required to be put in a complaint to get a contract clause action past a 12(b)(6) motion sounded rather political, or the sorts of factual assertions normally not pursuable or deemed relevant in the post-Lochner world in the due process and equal protection context. Hence, like the commerce clause, contract clause arguments, while uphill, may invite a little more wiggle room to make justification arguments that would be rejected in other economic challenges on constitutional grounds.
In sum, the Court left the door open at least a crack for a very well drafted contract clause claim, and we will have to wait and see how this develops.
Finally, the Court issued an interesting little errata added footnote to a December decision involving Maine’s Anti-SLAPP law, but that case needs a more comprehensive discussion, so I will leave that to a separate entry.