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Ziglar v. Abbasi Decided - Are Government Officials Liable for Damages?

Monday, June 26, 03:00 PMFederalist Society Teleforum Conference Call

Ziglar v. Abbasi is the result of over a decade of remands and appeals. The case was originally filed by the Center for Constitutional Rights on behalf of incarcerated Muslim, South Asian, and Arab non-citizens who were targeted after 9/11 by law enforcement as “terrorism suspects.” The defendants in the case, high level officials in the Bush administration, such as Attorney General John Ashcroft and FBI director Robert Mueller, and low level detention officials, filed a motion to dismiss, which was rejected by the in the District Court.

In 2009, the Supreme Court decided in Ashcroft v. Iqbal that government officials were not liable for discriminatory actions of their subordinates without evidence they directly ordered the actions. Meanwhile, five of the petitioners in Ziglar settled with the government, and the case was remanded to the District Court and amended. In 2010, the District Court granted a new motion of dismissal, but only for the high level officials. This dismissal was reversed by the Second Circuit.

The main question the Supreme Court answered was whether these high-level government officials could be sued for damages under the Bivens precedent. The precedent, created in a 1971 case involving the Federal Bureau of Narcotics, created an implied cause of action for any person whose Fourth Amendment rights are violated by federal officials. On Monday, June 19 the Supreme Court refused to extend the Bivens precedent to the petitioners, reversing the decision by the Second Circuit and remanding the case.

David Rivkin of Baker Hostelter will join us to discuss the opinion and its significance.

Featuring:

  • David B. Rivkin Jr., Partner, Baker & Hostetler LLP 

Chevron's Foundation: Congressional Delegation of Interpretive Primacy - Podcast

Administrative Law & Regulation Practice Group Podcast
Mark Seidenfeld June 23, 2017

This Teleforum explores the foundation for Chevron deference to agency statutory interpretation, and the implications of that foundation. In particular, it considers whether the Supreme Court’s justification of Chevron as deriving from an implicit delegation of interpretive primacy to an agency within the context of taking action with the force of law is justifiable. It also considers whether a better justification is the implicit constraint inherent in Article III of the Constitution that courts should avoid engaging in policy decisionmaking to the extent possible when performing their judicial functions. It goes on to consider the implications of these two different justifications for Chevron, potentially addressing the applicability of Chevron to actions that do not carry the force of law (i.e. Chevron’s step zero), Chevron’s major question exception, the appropriate judicial inquiry at step two of Chevron, and perhaps even the extent to which Congress can override the Chevron doctrine as a canon of statutory interpretation.

Featuring: 

  • Mark Seidenfeld, Patricia A. Dore Professor of Administrative Law, Florida State University College of Law

Courthouse Steps: Sandoz Inc. v. Amgen Inc. - Podcast

Intellectual Property Practice Group Podcast
Gregory Dolin, Erika Lietzan June 20, 2017

In a decision likely to shape not only future biosimilar litigation but the biosimilar industry generally, the U.S. Supreme Court on June 12, 2017 handed down its much-anticipated ruling in Amgen v. Sandoz.

In the first case interpreting the Biologics Price Competition and Innovation Act (BPCIA), the Court (J. Thomas) unanimously reversed the Court of Appeals for the Federal Circuit, holding that biosimilar makers need not wait for FDA approval before providing the reference product sponsor with 180-day notice of commercial marketing. The Court also held that the statute does not provide a federal injunctive cause of action to force biosimilar applicants to provide their FDA application to the reference sponsor, but remanded to the Federal Circuit to determine whether injunctive relief might be available to reference sponsors under state law. The decision raises intriguing questions of statutory construction and policy and is expected to speed market entry of biosimilars and increase competition.The Federalist Society’s uniquely qualified, expert panel discussed the decision and its implications for the industry and patent rights generally.

Featuring:

  • Prof. Gregory Dolin, Co-Director, Center for Medicine and Law, University of Baltimore School of Law
  • Prof. Erika Lietzan, Associate Professor of Law, University of Missouri School of Law

Is the Modern Congress Doing More Harm Than Good? - Event Audio/Video

Fifth Annual Executive Branch Review Conference
Lisa Heinzerling, Matthew Spalding, Adam J. White, Elizabeth Wydra, Dean A. Reuter June 07, 2017

The Fifth Annual Executive Branch Review Conference will examine the changing and often convoluted relationship between the legislative and the executive branches in the United States government. The Conference began with an opening address by Senator Mike Lee and concluded with a closing address by OMB Director Mick Mulvaney.

This panel of the 2017 Executive Branch Review Conference was held at the Mayflower Hotel in Washington, D.C. on May 17, 2017.

Luncheon Panel: Is the Modern Congress Doing More Harm Than Good?
12:45 p.m. – 2:00 p.m.
Grand Ballroom

  • Prof. Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center 
  • Mr. Matthew Spalding,  Associate Vice President and Dean for Educational Programs, Hillsdale College
  • Mr. Adam J. White, Research Fellow, The Hoover Institution and Adjunct Professor, Antonin Scalia Law School, George Mason University 
  • Ms. Elizabeth B. Wydra, President, Constitutional Accountability Center
  • Moderator: Mr. Dean A. Reuter, General Counsel, Vice President & Director of Practice Groups, The Federalist Society

Mayflower Hotel
Washington, DC

Courthouse Steps: Advocate Health Care v. Stapleton Decided - Podcast

Religious Liberties Practice Group Teleforum
Eric Baxter June 07, 2017

Advocate Health Care v. Stapleton is a combination of three cases, Advocate Health Care v. Stapleton, St. Peter’s Healthcare v. Kaplan, and Dignity Health v. Rollins, that confront the Employee Retirement Income Security Act of 1974 (ERISA) as it applies to churches and non-church religious non-profits. ERISA sets minimum standards for pension plans in private industry, such as an appeals process for participants and the right to sue for benefits. Churches are exempted from ERISA, however, the circuit courts have split over whether non-profit hospitals and schools are also exempted. Eric Baxter of the Becket Fund joined us again to discuss the 8-0 decision issued by the Supreme Court on June 5.

Featuring:

  • Eric Baxter, Senior Counsel, The Becket Fund for Religious Liberty