text:
The rich will accept talk of aid: for those of their own country and even for the Third World. But it is “not done” to talk too much about justice, rights, and structural changes.
The first part of this article provides an overview of what we mean by accountability. It sets out the multiple, mutually-reinforcing dimensions of accountability, examines different duty-bearers, and discusses mechanisms for enforcement. I suggest that pursuing effective accountability in health requires moving beyond both punishing individual perpetrators and looking solely at national states. Drawing on the Critical Concepts articles in this issue as well as on other examples, I argue that the increasing role of courts in setting health policies is a critical development that calls for contextualized empirical investigation, as well as far more attention from the public health community.
The second part of the article explores the obligations for which we should seek accountability in the context of the progressive realization of health and related rights. I argue that there are three aspects of accountability with which a human rights approach to health as a social policy and development issue should be concerned: 1) what the state is doing; 2) how much effort the state is expending; and 3)how the state is going about the process. That is, states and other actors have an obligation to adopt “appropriate” measures under international law, and a human rights approach converts that obligation from a matter of sound health policy to one of legal and political entitlement. Second, under international law, states have obligations to expend the “maximum” of their available resources — understood as including “international assistance and cooperation” — to realize health rights, together with the obligations of non-retrogression and adequate progress. Finally, a human rights approach requires accountability for the process through which development and health policy goals are reached, including meaningful participation, a functional health system, and a central emphasis on non-discrimination and equality.
Defining accountability in the human rights context: What, who, and how?
The use of litigation for institutional and structural change should not be conflated with a human rights advocacy that too often seeks only to identify a violation, an individual perpetrator, and a remedy, which by itself is ill-suited to advancing health rights.21 Although impunity is an even greater problem in the area of ESC rights than in civil and political rights, most errors in the health system are rooted in institutional and systemic defects. Even in cases of medical malpractice, a human rights perspective should focus not on the malpractice per se, but on the system that condones wanton disregard for patients’ well-being.
Many health systems in which patients face widespread abuses are extremely punitive to front-line health care workers as well. For example, it is common practice in some countries — often those with the highest maternal mortality ratios — for health professionals who are associated with a maternal death to be summarily dismissed or reassigned, without any procedure to discern whether they were, in fact, responsible for the death.22 These often unwritten policies are ostensibly intended to promote “accountability” and quality care in obstetric cases, but, in fact, have the opposite effect. They create perverse incentives for health professionals to avoid dealing with obstetric emergencies, both as individuals and as institutions.
A future issue of this journal will explore the scope of “international assistance and cooperation” obligations, together with strategies to promote accountability on the part of both donor states and non-state actors. However, in the second part of this article, I argue that efforts to hold donor states accountable for obligations to fulfill programmatic aspects of health rights should concentrate on the same dimensions as efforts to hold national states accountable for progressive realization. That is, such efforts should identify whether donors are providing assistance for the appropriate measures and interventions; whether they are expending sufficient effort in providing assistance; and whether their assistance is promoting equality and non-discrimination, meaningful participation, and a functioning health system.
Mechanisms for legal accountability exist within both domestic and international schemes, including domestic courts as well as regional quasi-judicial bodies and international treaty-monitoring bodies authorized to monitor country situations and receive individual complaints. The Inter-American System of Human Rights and the European System of Human Rights have been especially active in providing adjudications of rights relating to health, often through an expansive interpretation of the right to life and applications of the principle of non-discrimination. The long-awaited adoption of an Optional Protocol to the ICESCR — which, when it enters into force, will permit individual petitions — may significantly enhance the possibilities for holding States parties accountable for specific laws, policies, and practices relating to their obligations under that treaty, including their right-to-health obligations.
Latin America, a region marked by deep social exclusion, robust constitutional frameworks, and systemic failures of representation by the political branches of government, has witnessed the greatest “health rights revolutions.” As Gloppen notes, in Colombia, Brazil, and Costa Rica — which are all civil law jurisdictions in which adjudication generally resolves only the instant dispute — courts enforce thousands of claims for medications and treatments each year. As Victor Abramovich and Laura Pautassi relate, Argentina, too, has experienced a wave of health rights litigation with significant implications for both policy-making and spending.
India and South Africa, as well as other common law jurisdictions where fewer holdings establish broad precedents, have also seen important cases relating to access to care as well as environmental health and the right to preconditions for health, such as food.40 The effects of these decisions go far beyond direct impacts on litigants. Reports in Costa Rica trace an 80% decline in AIDS mortality to the constitutional chamber’s decisions to mandate the provision of ARVs.41 Moreover, the mere possibility of judicial enforcement can produce different political behavior and opportunities for negotiation for social movements.
If the question of whether courts can enforce health rights claims has been answered, many other questions remain. As Gloppen suggests, these include the advisability of judicial intervention in health policy, and whether such interventions distort priority-setting and displace democratic processes. They also include questions for activists about when court-centric strategies co-opt energies better channeled into direct action.
Assessing the role of courts, as well as when and how litigation can enhance the power of social mobilization, calls for contextualized, empirical investigation.42 Looking beneath the broad global trends, it is possible to discern as many differences as similarities in the processes that lead up to and emerge from litigation, as well as in the ultimate impacts. For example, courts in Latin America have been most willing to issue judgments with substantial budgetary impacts. However, within South America, there are important distinctions in context and approach. Some countries — such as Peru and Bolivia — have not experienced heightened judicial intervention, despite important movements for health rights in those countries. Among the countries where courts have been active, actors, processes, and impacts have varied greatly. For example, critics allege that judicial interventions in Brazil have distorted the health budget by ordering high-cost, low-impact medications for individuals that were not included in the Sistema Único de Saúde (SUS, or unified health system).43 However, in Colombia, the preponderance of tutela (protection writ) cases before the courts relate to goods and services which the state had already agreed to provide through the mandated social insurance scheme, and which theoretically should have been financed.44 Courts in both Argentina and Colombia have been more willing to address broader health policy questions than is the case in other countries in Latin America, yet NGOs have fostered much of the important litigation in Argentina, while that is not the case in Colombia.
Importantly, in these and other similar cases, redress is not confined to permutations of enforcing the status quo, such as compensation, restitution, or guarantees of non-repetition. Rather, courts have been engaged in redefining social arrangements and entitlements. Moreover, in many cases the courts have not assumed that they know best how to reform systems or answer difficult policy questions involving considerable trade-offs. Instead, they have approached remedies in innovative ways, calling for broad stakeholder participation in public hearings and the setting of benchmarks for implementation. Through this “softer” form of judicial review, courts may be better able to preserve their own legitimacy as well as foster processes that activate democratic dialogue with the executive and legislative branches of government regarding spending priorities and critical health policy questions.
In assessing the role of courts — and the value of litigation in promoting health equity — the public health community might make a significant contribution by looking beyond narrow compliance questions to map the broader structural impacts. Despite Riachuelo and some other notable exceptions, the majority of cases relate to access to treatments and medications, where clear duty-bearers and clear remedies exist. We do not have good data on the impact of emphasizing individualized access to treatment over public health preventive measures.52 Further, the impact of courts on the realization of the right to health in a given country should not be judged in isolation from their enforcement of other social rights that underpin social determinants of health, such as education and housing, and the effects of judicial decisions on questions of social exclusion and discrimination more generally. Normative evaluations of the role of courts in promoting health equity and substantive democracy more broadly should be informed by sound public health evidence.
Establishing accountability for obligations of progressive realization also poses the most difficult challenges to traditional human rights approaches, which tend to announce absolute principles and rely on “naming and shaming” deviations from those principles. Naming and shaming are critical; too often coercive measures that violate rights and dignity — from forced evictions to build dams to involuntary sterilizations to control population growth — have been justified in the name of economic development. Nevertheless, for human rights frameworks to contribute meaningfully to development and public health practice more generally, they must also add something to the much messier questions of priority-setting and resource allocations. Otherwise, calls for rights-based approaches to health and development amount to little more than sloganeering.
In practice, realizing civil and political rights requires both resources and progressive realization, and too often human rights practice has eschewed indicators and systems analyses that might permit a more accurate picture of whether a country is making progress. Yet standard setting in ESC rights has been slowed by the need to look beyond the traditional, law-dominated domains of human rights advocacy to different disciplines and methodologies. This is particularly true in the realm of health.
Thus, it is public health and not an immutable principle of human rights which suggests under what circumstances a government should be held accountable for specific conducts (that is, process indicators) or results (that is, outcome indicators) relating to an aspect of health for both.
After more than 20 years of frustratingly little progress on safe motherhood, Amnesty International, the Center for Reproductive Rights, and a number of other human rights NGOs, together with an International Initiative on Maternal Mortality and Human Rights, are framing maternal mortality explicitly as a human rights issue. In terms of public health, it is clear what needs to be done. There is now a consensus in public health that the key interventions to reduce maternal mortality are skilled birth attendance, emergency obstetric care (EmOC), and referral networks, together with family planning.70 The majority of women’s deaths are attributable to delays in the decision to seek care, delays in arriving at care, and delays in receiving appropriate treatment once at a facility.71 In terms of human rights, lack of access to EmOC is not a technical issue; it is, rather, one principal way in which poor women experience poverty and exclusion in societies around the globe.
In addition to undertaking such multi-pronged efforts to raise the status of women, if we seek to make governments and other actors more responsive to women’s health needs — that is, more accountable — a human rights-based approach must address the contextually-bound ways in which the absence of availability, accessibility, acceptability, and quality of EmOC play out in decisions to seek care, arrive at care, and receive adequate treatment (see Figure 1 below).
By showing how in a specific context a failure on the part of the government to ensure the AAAQ of EmOC leads to the three delays that cause women to die — it becomes apparent that these deaths are not random biological events, but the foreseeable result of systematic policy decisions on multiple levels. For example, even the decision to seek care, which is often blamed on women’s “idiosyncratic preferences,” can be traced to failures in AAAQ. When there is a lack of availability — that is, a dearth of health facilities themselves, or an absence of transportation, communications, or trained human resources and equipment — women and their families are understandably less apt to seek care. Similarly, physical as well as economic barriers to access, such as transport costs and user fees, also factor into decisions to seek care. Perceived cultural insensitivity and lack of cultural acceptability, as well as poor quality of care at health facilities, can also lead to reluctance to seek care at a health facility. Thus, “problems” — such as women being unable to afford even emergency care because of charges for essential medicines or blood — are transformed into violations and state failures, for which the state bears responsibility.
Once failures in AAAQ and the legal and policy framework underlying those failures are identified, governments can be held accountable for making the appropriate modifications, such as eliminating fees. Donor states, which directly and through multi-lateral banks underwrite health sector reform in much of the developing world as well as achievement of MDG 5 relating to reducing maternal mortality, can, likewise, be held accountable, ensuring that the interventions they fund promote and do not create barriers to the AAAQ of emergency obstetric care.
The added value of rights lies precisely in converting what may be perceived as technical health policy questions into matters of political and legal entitlement. However, to move from rhetoric to application requires more than asserting that state failures are actionable claims. Implementation of international human rights norms relating to health at the national level must go beyond legislation, and beyond the traditional law-making and oversight bodies (such as courts and NHRIs) into the ministries (including but not limited to health) which are charged with designing social policy, and executing and monitoring programs that affect health.
If these audits allow us to discern how international instruments translate into policies, other innovative work is being done on how policies translate into budget commitments relating to obligations to fulfill specific aspects of the right to health. For example, a Mexican NGO, FUNDAR, issued a report in 2006 that exhaustively analyzed the connections between levels of maternal mortality throughout the country and the health budget.86 The FUNDAR report established costs of providing basic emergency obstetric care and was then able to point to specific insufficiencies in the Mexican health budget, as well as inequitable allocation of resources in that, for example, expenditures were lowest where poverty and lack of insurance was greatest.87 Critically, the FUNDAR report highlights that increasing health spending, as happened in Mexico under the Fox administration, does not automatically result in realization of the right to health because of inappropriate expenditures; that is, insofar as targeted interventions and increasing increases in the social insurance program were not accompanied by needed investments in health care workforce and infrastructure.
In short, as Balakrishnan and Elson have pointed out, “the realization of human rights, especially economic and social rights, requires resources as well as laws. The availability and use of resources is strongly influenced by the type of economic policies that States parties implement.”92 Thus critically examining economic policies, far from being overly political or beyond the realm of human rights, is essential to using a rights framework to foster accountability in health and development policies.93 Further, establishing accountability for utilizing maximum available resources and adequate progress demands proactive proposals which, in turn, call for instrumentalizing human rights concepts through other domains of expertise.
Equal treatment is part of process as well as an end in itself. A future issue of this journal will be devoted to what the principles of non-discrimination and equality require in both theory and practice. It is worth noting here, however, that a human rights framework is concerned not just with instances of individual discrimination by providers who are acting as agents of the state. Under international law, such instances of discrimination are per se violations.
Yet if human rights is to be relevant to development and health policy, human rights advocates must be equally or more concerned with institutional and structural forms of exclusion that result in de factodiscrimination. For example, the ESC Rights Committee has made it clear that “[i]nappropriate health resource allocation can lead to discrimination that may not be overt,” and that a basic obligation of States parties includes ensuring “the equitable distribution of all health facilities, good and services.”99 Governments and donor states alike should be held accountable for ensuring structural and institutional measures to prevent de facto discrimination in health programs, including the use of disaggregated indicators that provide incentives to consider distributional effects and not merely aggregate advances.
As will be further examined in the next issue of this journal, participation is also key to the true realization of the health-related rights. Both states and other actors should be held accountable for ensuring that those affected have an adequate opportunity to participate in decision-making.100 Even when the background assumptions about what justice requires are unclear, “accountability for reasonableness,” in the term of the ethicist Norman Daniels, demands processes that engage relevant stakeholders.101 In human rights circles, this is sometimes referred to as “voice accountability” because states have an obligation to listen to the voices of the very people whose views and knowledge of their own situations are so often dismissed.
Holding states and donors accountable for participation is tricky because participation is a notoriously elusive concept to measure and evaluate, as well as deeply contextual. Health programs touted as “participatory” can be completely centralized, where the “participation” of community members is a guise to improve either public relations or cost-efficiency by transferring tasks, but not control. Meaningful participation in health is dramatically limited when rights to free expression, a free press, political participation, and access to information are not respected in law and practice. Donor states and international financial institutions, in conjunction with governments wary of popular involvement, may reduce participation in poverty reduction and development programs to tokenistic consultation with select members of civil society. In contrast, a rights-based approach calls for an authentic devolution of power within and beyond the health sector, with a transfer of planning and decision-making capacities to the individuals and communities served.
Yet establishing accountability requires moving from jeremiads to engagement with the concrete questions of how to enhance existing mechanisms — and create entirely new institutional architectures — that foster legal, political, and social accountability in the world that we live in right now. Establishing accountability in our current reality requires going beyond exhortation, to signal to governments, donors, and other actors that human rights-based approaches to health and development practice can be radically pragmatic. Radical pragmatism, in turn, requires developing and applying tools to discern what part of the staggering deprivation that exists in our world is avoidable, without accepting failures of political will that are cloaked in claims of resource scarcity. Establishing accountability also requires fostering coalitions to mobilize consciousness and effective social action, in conjunction with or independent of legal strategies. As Forman suggests in applying an analogy from the anti-slavery movement to the international movement for access to medicines, the compassion borne of solidarity — not charity — has long been a catalyst for the recognition of our shared humanity and, in turn, the flourishing of human rights.
I am grateful to the Joseph H. Flom Initiative on Global Health and Human Rights at Harvard Law School for the support that enabled me to write this article and to my colleagues in the Harvard Law School Human Rights Program, Mindy Roseman and Sharanjeet Parmar, in particular, for their valuable feedback with respect to parts of this article. Different portions of the ideas in this article were presented to the Harvard Law School Human Rights Program, the International Initiative on Maternal Mortality and Human Rights, Amnesty International-Ireland, and ESCR-Net International Meeting in Nairobi, Kenya, and I deeply appreciate the insights I received from many participants in those fora. I am also grateful to Adriana Benedict, my research assistant, for her invaluable assistance with the preparation of this article.
1. See, for example, P. Uvin, Human Rights and Development (West Hartford, CT: Kumarian Press, 2004), p. 131; see also,K. De Feyter, World Development Law (Oxford: Intersentia, 2001); see also,United Nations Development Programme, Integrating Human Rights with Sustainable Development: UNDP Policy Document 2 (Geneva: UNDP, 1998); M. Robinson, “What Rights Can Add to Good Development Practice,” in P. Alston and M. Robinson (eds), Human Rights and Development: Towards Mutual Enforcement (Oxford: Oxford University Press, 2005), pp. 25–43; S. P. Marks, “Human Rights in Development: The Significance for Health,” in S. Gruskin, M. A. Grodin, G. J. Annas, and S. P. Marks (eds), Perspectives on Health and Human Rights (NY and London: Routledge, 2005), pp. 95–116; and A. E. Yamin, “Will We Take Suffering Seriously? Reflections on What Applying a Human Rights Framework to Health Means and Why We Should Care,” Health and Human Rights 10 (2008), pp. 45–63.
2. M. Langford, Claiming the Millennium Development Goals: A Human Rights Approach (New York: United Nations, 2008), p. 15.
3. See “Mission Statement,” International Initiative on Maternal Mortality and Human Rights. Available at http://www.reproductiverights.org/pdf/MMHR%20brochure.pdf.
4. As a recent Office of the High Commissioner for Human Rights (OHCHR) meeting report on incorporating human rights into development practice concluded, “the devil is undoubtedly in the details.” Office of the High Commissioner for Human Rights, Monitoring Human Rights and the MDGs: The Quest for Coherence Synthesis Report from the Expert Consultation, (Geneva: OHCHR, 2008), para. 13.
5. A. E. Yamin, “The Future in the Mirror: Constructing and De-Constructing Strategies for the Defense and Promotion of Economic, Social and Cultural Rights,” Human Rights Quarterly 27 (2005), p. 1200.
6. Yamin (see note 1). For a more general application of the need to compare performance of states across resource levels, see S. Fukuda-Parr, T. Lawson-Remer, and S. Randolph, “Measuring the Progressive Realization of Human Rights Obligations: An Index of Economic and Social Rights Fulfillment,” University of Connecticut Working Paper 8 (August 2008).
7. Moreover, the international community’s engagement with the Millennium Development Goals (MDGs) — which have yet to incorporate meaningful human rights approaches to accountability — presents a strategic opportunity. Four of the eight MDGs that stand at the center of current international development efforts are directly related to the right to health: combat HIV/AIDS, malaria, and other diseases; improve child health; improve maternal health; and provide safe drinking water and sanitation (as part of sustainable development). Three others relate to social determinants of health: eradicate extreme poverty (and hunger); provide universal primary education; and promote gender equality. The eighth MDG commits donor states to a “global partnership for development” to assist states in the global South in reaching these targets. Yet, despite efforts by the OHCHR and some other groups, human rights principles and concerns —including accountability — have been largely absent from not only the development, but also monitoring of progress with respect to the MDGs thus far. P. Alston, “Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen through the Lens of the Millennium Development Goals,” Human Rights Quarterly, 27 (2005), p. 755; Langford (see note 2). However, in the case of MDG 5, there are a number of promising signs of change in that regard, including the launch of the IIMMHR and fieldwork by some of the largest human rights nongovernmental organizations, including Amnesty International and Human Rights Watch, on maternal health.
8. See e.g. H. Potts, Accountability and the Highest Attainable Standard of Health (Colchester, UK: University of Essex/Open Society Institute, 2008), p. 5. Available athttp://www2.essex.ac.uk/human_rights_centre/rth/docs/HRC_Accountability_Mar08.pdf.
9. For example, in Spanish, one says rendición de cuentas to describe redress, while responsabilidad and control ciudadano refer to aspects of political and social accountability, respectively.
10. Langford (see note 2).
11. For an elaboration of states’ obligations of conduct and result, see V. Dankwa et al.,“Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,” Human Rights Quarterly 20 (1998), pp. 691–704.
12. See, for example, P. Houtzager, A. Joshi, and A. Gurza-Lavalle, “State Reform and Social Accountability,” IDS Bulletin 38/6 (2008).
13. For more information, see Right to Food Campaign at http://www.righttofoodindia.org/campaign/campaign.html.
14. For a discussion of how this was the case in Peru, seeC. Ewig, “Gender Equity and Neoliberal Social Policy: Health Sector Reform in Peru”(PhD dissertation, University of North Carolina at Chapel Hill, 2008).
15. See, for example, Houtzager, Joshi, and Gurza-Lavalle (see note 12).
16. See, for example,S. Gloppen, “Public Interest Litigation, Social Rights, and Social Policy,”in A. A. Dani and A. De Haan (eds), Inclusive States (Washington, DC: World Bank, 2008), pp. 343–368.
17. South African Minister of Health v. Treatment Action Campaign (No. 2), 2002 (5) SA 721.
18. PUCL v. Union of India and Others, Writ Petition [Civil] 196 of 2001.
19. Right to Food Campaign (see note 13).
20. See also,D. Brinks and V. Gauri, “A New Policy Landscape: Legalizing Social and Economic Rights in the Developing World,” in V. Gauri and D. Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge University Press, 2008), pp. 303–352.
21. See K. Roth, “Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization,” Human Rights Quarterly 26/1 (2004), pp. 63–73.
22. See, for example, A. E. Yamin, Deadly Delays: Maternal Mortality in Peru, A Rights-Based Approach to Safe Motherhood (Cambridge, MA: Physicians for Human Rights, 2007). Available athttp://physiciansforhumanrights.org/library/documents/reports/maternal-mortality-in-peru.pdf.
23. L. London, “What is a Human-Rights Based Approach to Health and Does It Matter?” Health and Human Rights 10 (2008), pp. 63–77, at 72. Available at http://www.hhrjournal.org/index.php/hhr.
25. L. Freedman “Human Rights, Constructive Accountability and Maternal Mortality in the Dominican Republic,” International Journal of Gynecology and Obstetrics 82 (2003), pp. 111–114.
26. L. Pautassi, “El Empleo en Salud en la Argentina. La Sinergia entre Calidad del Empleo y Calidad de la Atención,” in M. Nieves Rico and F. Marco (eds), Mujer y Empleo: La Reforma de la Salud y La Salud de la Reforma en Argentina (Buenos Aires, Argentina: Siglo Veintiuno Editores, 2006), pp. 193–233.
27. Freedman (see note 25).
28. UN Human Rights Council, Report of the 7th special session of the Council on “The Negative Impact on the Realization of the Right to Food of the Worsening of the World Food Crisis, Caused Inter Alia by the Soaring Food Prices,” Geneva, May 22, 2008, UN Doc. No. A/HRC/S-7/2 (July 2008).
29. International Covenant on Economic, Social and Cultural Rights,G.A. Res. 2200, (XXI), UN GAOR, 21st Sess., Supp. No. 16, at 49, UN Doc. No. A/6316 (1966), Article 2.
30. See, for example, Development Assistance Research Associates (DARA) Humanitarian Response Index 2008. Available at http://www.hri.daraint.org/what_is_hri/hri_2008.
31. OECD, Paris Declaration on Aid Effectiveness (Paris: OECD, 2005). Available at http://www.oecd.org/document/36/0,2340,en_ 2649_3236398_34689188_1_1_1_1,00.html; World Bank, “Accra Agenda for Action,” 3rd High Level Forum on Aid Effectiveness, September 2–4, 2008 (Accra, Ghana: World Bank 2008).
32. Committee on Economic, Social and Cultural Rights (ESCR Committee), General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. No. E/C.12/2000/4 (2000), para. 39. Paul Hunt, the first UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, repeatedly insisted that states possess such obligations independently and as members of international organizations: “In addition to obligations at the domestic level, developed States have a responsibility to provide international assistance and cooperation to ensure the realization of economic, social, and cultural rights in low-income countries. This responsibility arises from recent world conferences, including the Millennium Summit, as well as provisions of international human rights law.” UN Human Rights Council, 60th Session, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, prepared by Paul Hunt, UN Doc. No. E/CN.4/2004/49 (2004), para. 45.
33. See A. M. Goetz and R. Jenkins, “Hybrid Forms of Accountability: Citizen Engagement in Institutions of Public-Sector Oversight,” Public Management Review 3/3 (2001), cited in P. Newell and S. Bellaour, “Mapping Accountability: Origins, Contexts and Implications for Development,” IDS Working Paper 168 (Brighton, England: IDS, 2001), and R. K. Murthy and B. Klugman, “Service Accountability and Community Participation in the Context of Health Sector Reforms in Asia: Implications for Sexual and Reproductive Health Services,” Health and Policy Planning 19, Supplement 1 (2004); see also, Potts (see note 8).
34. “Casos Investigados por la Defensoría del Pueblo,” Serie Informes Defensoriales 27 (Lima, Peru: Defensoría del Pueblo, 1999). Available athttp://physiciansforhumanrights.org/library/documents/reports/maternal-mortality-in-peru.pdf; Defensoría del Pueblo (Ombuds Office of Colombia), Supervisión a los Servicios de Planificación Familiar IV: Casos Investigados por la Defensoría del Pueblo (2005). Available at http://www.ombudsman.gob.pe/modules/Downloads/informes/defensoriales/informe_90.pdf.
35. For example, in 2004, The Indian National Human Rights Commission (NHRC) organized public hearings for a “National Action Plan to Operationalise the Right to Health Care within the Broader Framework of the Right to Health.” In Argentina, the Human Rights Ombuds Office has been called upon by the Supreme Court for interventions and monitoring in various cases relating to public health issues (vaccine production) and environmental issues bearing on health (river pollution). In Colombia, the Human Rights Ombuds Office recently undertook a comprehensive review of monitoring and accountability mechanisms within Colombia’s health system as well as the use of judicial remedies to secure accountability for violations. The scathing report that the Human Rights Ombuds Office issued in 2007 documented the tens of thousands of judicial cases (tutelas) that people were filing annually as a result of the lack of oversight and accountability within the system itself. It also called upon the Constitutional Court to exercise its authority and declare the entire health system in “an unconstitutional state of affairs.” When, in July 2008, The Colombian Constitutional Court called for a dramatic restructuring of the health system, it, in turn, set up a process of reporting and stakeholder participation, which included the Human Rights Ombuds Office. See NHRC and JSA, “Recommendations of National Action Plan to Operationalize the Right to Health Care,” National Public Hearing on Right to Health Care, December 16–17, 2004, New Delhi. Available at http://www.nhrc.nic.in/disparchive.as?Fno=874; Defensoría del Pueblo (Ombuds Office of Colombia), La Tutela y el Derecho a la Salud. Período 2003-2005 (Bogotá: Defensoria del Pueblo, 2007).
36. Although NHRIs are potentially well-suited to monitor how development and health goals are being achieved (including “international assistance and cooperation,” regarding MDGs or otherwise in donor countries), to date this potential has not been fulfilled. Their ability to play such roles requires not only an investment in capacity, but often dramatic reconfigurations of institutional missions and legal mandates. See, for example, V. Sripati, “India’s National Human Rights Commission: A Shackled Commission?” Boston University International Law Journal 18 (2000), pp. 3–46.
37. R. Gargarella, P. Domingo, and T. Roux (eds), Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Burlington, VT: Ashgate, 2006).
38. See Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (Geneva: International Commission of Jurists; 2008); Gauri and Brinks (see note 20). For an early review of these cases, which focused mostly on access to ARVs, see B. C. A. Toebes, The Right to Health as a Human Right in International Law (Antwerp: Intersentia, 1999).
39. Much of the writing has been inaccurate, suggesting that there have only been a handful of cases. An exception is: H. V. Hogerzeil, M. Samson, J. Vidal Casanovas, and L. Rahmani-Ocora, “Is Access to Essential Medicines as Part of the Fulfilment of the Right to Health Enforceable through the Courts?” Lancet 368 (2006), pp. 305–311.
40. Across these very different contexts, courts have required the political branches of government to provide access to information (a key element in the right to health), as well as special protections for vulnerable groups (for example, children) and public justification for the “reasonableness” of their policies and practices. Compare: South African Minister of Health v. Treatment Action Campaign (see note 17) and Soobramoney v. Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (Constitutional Court, South Africa).
41. M. Cantero, “Antiretrovirales Reducen Mortalidad de Ticos con SIDA,” La Nacion, San Jose, Costa Rica (November 16, 2005), cited in Gauri and Brinks, “Introduction” in Gauri and Brinks (see note 20), p. 2.
42. For example, it is traditionally asserted that there is something fundamentally distinct in the nature of ESC rights, as opposed to civil and political rights, which prevents their justiciability. Yet we find across contexts that procedural adaptations — for example, changes in standing to allow for collective relief — greatly increase the enforceability of health and other ESC rights claims. They similarly increase the enforceability of certain civil and political rights claims, such as those involving prisons or elections. In a recent empirical study, Varun Gauri and Daniel Brinks similarly noted that “the popular account of judicial and legislative logic needs to be corrected.” That is, “courts are anchored in more deontological forms of reasoning and valuation but move to incorporate other logics,” such as cost-utility and cost-effectiveness, in enforcing health and other ESC rights. Gauri and Brinks, “Introduction,” (see note 20), p. 5. See also, International Commission of Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (Geneva: International Commission of Jurists, 2008), pp. 95–97.
43. SeeHogerzeil, Samson, Vidal Casanovas, and Rahmani-Ocora (see note 39); see also, O. Ferraz and F. Vieira, “Direito a Saude, Politicas Publicas e Desigualdades Sociais no Brasil: Equidade como Principio Fundamental,” Dados (forthcoming, 2009) [English abstract: The Right to Health, Public Policies and Inequalities in Brazil: Equity as the Fundamental Principle, SSRN. Available athttp://ssrn.com/abstract=1137872].
44. For example, although “Scientific Technical Committees” of insurance companies are authorized to determine coverage for medications not included in the POS, they have not been authorized to make such determinations regarding any other services or treatments (for example, MRI of the spine). Corte Constitucional de Colombia, Sala Segunda de Revisión, Sentencia T-760. July 31, 2008. Magistrado Ponente: Manuel José Cepeda.
45. See Limburg Principles & Maastricht Guidelines on the role of courts in social issues and social/psychological spheres of power as much as legal. Dankwa et al. (see note 11).
46. Mendoza Beatriz Silvia y Otros C/Estado Nacional y Otros S/Daños y Perjuicios. Corte Suprema de Justicia de la Nacion. July, 2008. Available athttp://www.farn.org.ar/docs/fallo_riachuelo080708.pdf.
47. Corte Constitucional de Colombia (see note 44).
48. See R. Dixon, “Creating Dialogue about Socioeconomic Rights: Strong-form Versus Weak-form Judicial Review Revisited, ” International Journal of Constitutional Law 5 (2007), pp. 112–147; and C. Sabel and W. Simon, “Destabilization Rights: How Public Law Litigation Succeeds,” Harvard Law Review 117 (2004), pp. 1015–1101.
49. S. Gruskin and N. Daniels, “Process Is the Point: Justice and Human Rights: Priority Setting and Fair Deliberative Process,” American Journal of Public Health 98/9 (2008), pp. 1573–1577.
50. N. Daniels, “Accountability for Reasonableness,” British Medical Journal 321 (2000), pp. 1300–1301; N. Daniels, Just Health: Meeting Health Needs Fairly (New York: Cambridge University Press, 2007). Critiques of Daniels’ procedural justice have argued that it “fails to ensure the rightness of the rationales put forward” to decide on priorities, which is precisely the role that the courts are assuming, which, therefore, could suggest that these judicial processes enhance some aspects of procedural justice. For a critique of Daniels, see J. Prah Ruger, “Ethics in American Health 1: Ethical Approaches to Health Policy,” American Journal of Public Health 98 (2008), pp. 1751–1756, at 1753.
51. For example, implementation of the landmark Treatment Action Campaign decision has been remarkably patchy by district. Enforcement of the decisions of Colombian courts has been delayed by inordinately complex and inefficient reimbursement procedures, a fact noted by the Constitutional Court itself in its sweeping 2008 decision calling for modification in those procedures, among other aspects of the health system. Corte Constitucional de Colombia (see note 44).
52. Ferraz and Vieira (see note 43).
53. M. García Villegas and R. Uprimny, “The Constitutional Court and Social Emancipation in Colombia,” in B. de Sousa Santos (ed), Democratizing Democracy: Beyond the Liberal Democratic Canon, Vol. 1. (London: Verso, 2006), pp. 66–102.
54. For example, each health-related MDG implies the protection of multiple rights. Such rights include both civil and political and ESC rights. For instance, it is possible to achieve MDG 5 — improving maternal health and reducing maternal mortality — only by implicating (directly and indirectly) the rights to life, health, bodily integrity, political participation, equality before the law, and education; as well as freedoms of information, association, movement, and to found a family. SeeR. J. Cook, “Advancing Safe Motherhood through Human Rights,” in I. Merali and V. Oosterveld (eds), Giving Meaning to Economic, Social and Cultural Rights (Philadelphia: University of Pennsylvania Press, 2001), pp. 109–123; see also, S. Gruskin et al., “Using Human Rights to Improve Maternal and Neonatal Health: History, Connections and a Proposed Practical Approach,” Bulletin of the World Health Organization 86 (2008), pp. 577–656. Available athttp://www.who.int/pmnch/topics/maternal/usinghumanrights/en/index.html.
55. For example, the “inherent right to life” enshrined in the International Covenant on Civil and Political Rights (ICCPR), among other treaties, cannot be interpreted restrictively or in isolation from the positive measures required to fulfill the right to health. Human Rights Committee, General Comment No. 6, The Right to Life, UN Doc. No. A/37/40 (1982), para. 5. See also, United Nations, World Conference on Human Rights: Vienna Declaration and Programme of Action, Vienna, June 14–25, 1993, UN Doc. No. A/CONF.157/24 (Part I) (1993), reprinted in 32 I.L.M. 1661.
56. For one of the first articulations of the three dimensions of state obligations to respect, protect, and fulfill rights, see A. Eide, “Report on the Right to Food as a Human Right,” UN Doc. No. E/CN.4/Sub.2/1987/23 (1987). For application of different dimensions of obligations to civil and political rights, see also, Human Rights Committee, General Comment No. 28, Equality of Rights between Men and Women (Article 3), UN Doc. No. CCPR/C/21/Rev.1/Add.10 (2000).
57. ESCR Committee (see note 32), para. 34.
60. The South African Constitutional Court has rejected a notion of a minimum core that is immediately enforceable regardless of resources, while the Colombian Constitutional Court has taken the social insurance plan in Colombia to define a minimum core that should be immediately enforceable under the Colombian Constitution, as informed by international law. Corte Constitucional de Colombia (see note 44). Minister of Health et al. v. Treatment Action Campaign (Constitutional Court of South Africa, July 5, 2002). Available at http://www.tac.org.za/Documents. For an overview of the many interpretations and treatments of the minimum core, see K. Young, “The Minimum Core of Economic and Social Rights: A Concept in Search of Content,” Yale Journal of International Law 33/1 (2007), p. 113.
61. OECD (see note 31).
62. Each State party to the ICESCR “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means.” UN General Assembly, 21st Session, Official Records, Supplement 16, “Article 2,” International Covenant on Economic, Social & Cultural Rights, G.A. Res. 2200, UN Doc A/6316 (1966), 993 UNTS 3 (adopted Dec. 16, 1966).
63. See UN Human Rights Council, 60th Session, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health (see note 32). See also, ESCR Committee (see note 32).
64. UN Committee on the Elimination of Discrimination Against Women, General Recommendation No. 24, Women and Health, UN Doc. No. CEDAW/C/1999/I/WG.II/WP.2/Rev.1 (1999), para. 26.
65. Nor, as traditionally has been done in determining public international law principles, can we merely look to the practices of “civilized nations.” See, for example, D. Shelton, “Normative Hierarchy in International Law,” American Journal of International Law 291 (2006), pp. 291–323, at 295.
66. P. Farmer and J. Kim, “Community Based Approaches to the Control of Multidrug Resistant Tuberculosis: Introducing ‘DOTS-Plus,’” British Medical Journal 317 (1998), pp. 671–674.
67. UNAIDS/WHO Policy Statement on HIV Testing. Available at http://data.unaids.org/una-docs/hivtestingpolicy_en.pdf.
68. Sometimes the evidence is not clear, and in turn, normative obligations may be unclear.
69. T. McGinn, “Internally Displaced Persons in Colombia; A Public health Analysis,” in A. E. Yamin (ed), Learning to Dance: Case Studies on Advancing Women’s Reproductive Health and Well-Being from the Perspectives of Public Health and Human Rights, Francois-Xavier Bagnoud Center Series on Health and Human Rights (Cambridge: Harvard University Press, 2005), pp. 63–69, at 67.
70. UN Millenium Project Task Force on Child Health and Maternal Health, “Health Status and Key Interventions,” Who’s Got the Power? Transforming Health Systems for Women and Children(London: Earthscan, 2005), pp. 49–94. Available at http://www.unmillenniumproject.org/reports/tf_health.htm.
71. D. Maine, Safe Motherhood Programs: Options and Issues (New York: Center for Population and Family Health, Columbia University, 1991).
72. Note by the Secretary-General Transmitting the Report of the Special Rapporteur on The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. No. A/61/338 (2006), para. 17.
73. It is worth noting that lack of access to justice also reflects this marginalization.
74. International Covenant on Economic, Social and Cultural Rights (see note 29).
75. UN Committee on Economic, Social and Cultural Rights, Optional Protocol to the Covenant. Available at http://www2.ohchr.org/english/law/docs/A.RES.63.117_en.pdf.
76. See, for example, Roth (see note 21).
77. Fukuda-Parr, Lawson-Remer, and Randolph (see note 6), p. 1.
80. R. Balakrishnan and D Elson, “Auditing Economic Policy in Light of Obligations of Economic and Social Rights,” Essex Human Rights Review 5 (2008), pp. 1–19, at 8.
82. See UNDP, “Guatemala,” Human Development Report 2007/2008. Available at http://hdrstats.undp.org/countries/country_fact_sheets/cty_fs_GTM.html.
83. P. Alston, Human Rights Council, Statement by Professor Philip Alston, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, March 27, 2007. Available athttp://ctuhr.org/files/Alston%27s%20Statement.pdf, page 5.
84. P. Heller, “Fiscal Space: What Is It and How to Get It?” Finance & Development: A Quarterly Magazine of the International Monetary Fund 2/2 (June 2005). Available athttp://www.imf.org/external/pubs/ft/fandd/2005/06/basics.htm.
85. See, for example, IDS, The Future State: Taxation, Aid and Accountability (Cambridge: Cambridge University Press, 2007); P. Nanda, Health Sector Reforms in Zambia: Implications for Reproductive Health and Rights (Takoma Park, MD: Center for Health and Gender Equity, 2000).
86. See, generally, D. Diaz Echeverria et al., Muerte Materna y Presupuesto Publico (Mexico, DF: Fundar, 2006).
88. ESCR Committee (see note 32).
89. C 251/97, Segunda Sala de Revisión, Constitutional Court of Colombia, 1997.
90. C 1165/2000, Segunda Sala de Revisión, Constitutional Court of Colombia, 2000; C 040/2004 Segunda Sala de Revisión, Constitutional Court of Colombia, 2004.
91. C 130/02, Segunda Sala de Revisión, Constitutional Court of Colombia, 2002. This principle was reaffirmed in Corte Constitucional de Colombia (see note 44).
92. Balakrishnan and Elson (see note 80), p. 1.
93. Contrast Roth (see note 21).
94. Compare Amartya Sen’s capabilities theory relating to human development. See, for example, A. Sen, Development As Freedom (New York: Anchor Books, 2000).
95. When there is disagreement about the grounds for decisions regarding complex matters of health and social policy, human rights calls for what Daniels has termed in ethics “accountability for reasonableness”— a fair process that is: evidence-based, transparent, and public so that different interested persons can see and debate the reasoning for decisions; revisable in light of new evidence; and enforceable. Compare Paragraph 43(f) of General Comment 14 with Norman Daniels’s accountability for reasonableness. ESCR Committee (see note 32), para. 43(f).
96. Universal Declaration of Human Rights (UDHR), G.A. Res. 217A (III), UN Doc. No. A/810 (1948), at 71.
97. P. Hunt and G. Backman, “Health Systems and the Right to the Highest Attainable Standard of Health,” Health and Human Rights 10/1 (2008). Available at http://hhrjournal.org/index.php/hhr. For a further elaborated model of right-to-health features of health systems, see G. Backman, P. Hunt, R. Khosla et al., “Health Systems and the Right to Health: An Assessment of 194 Countries, Lancet 372 (2008), pp. 2047–2085.
98. For this type of political analysis of health determinants and systems, see, for example, V. Navarro, The Political and Social Contexts of Health (Amityville, NY: Baywood Publishing Co, 2004).
99. ESCR Committee (see note 32), para. 43.
101. Daniels, “Accountability for Reasonableness” (see note 50); Daniels, Just Health: Meeting Health Needs Fairly (see note 50).
102. J. Leland, “Sheriff in Chicago Ends Evictions in Foreclosures,” New York Times, October 8, 2008. Available at http://www.nytimes.com/2008/10/09/us/09chicago.html?ref=business.
103. Note that rights — and even justice — need not be the only ground on which we rely to determine the “right” course of action. Justice and mercy are deeply intertwined, as recognized in the common law through the provision of legal remedies (justice) and equitable remedies (mercy), as well as in Biblical texts.

matches: V. v. v. V. V. V. V. v. v. V. v. V.


text:
canvas wall art how far canvas wall art canvas wall art dorm.
canvas wall art home decor 5 piece canvas art prints blue abstract photo canvas abstract canvas canvas wall art sets wholesale.
canvas wall art 2 piece canvas wall art sublime painting for bedroom paintings orange canvas wall art amazon uk.
canvas wall art sunset beach print split canvas wall art paintings split canvas wall art amazon.
canvas wall art tree canvas wall art multi earth diy canvas wall art ideas.
canvas wall art print 5 pieces canvas wall art millennium 3 piece canvas wall art amazon.
canvas wall art diy canvas wall art ideas.
canvas wall art canvas wall art sets of 5.
canvas wall art disney princess fashionista canvas wall art.
canvas wall art 5 panel forest painting canvas wall art picture home decoration living room canvas print modern painting large canvas art cheap from canvas wall art for living room.
canvas wall art disney vintage fashionista canvas wall art.
canvas wall art art circle of magic modern canvas art wall decor abstract oil painting contemporary art abstract paintings framed canvas wall art for home decor 3 amazon prime canvas wall art.
canvas wall art 3 pieces image portrait art painting canvas wall art picture home decoration living room canvas canvas wall art sets of 5.
canvas wall art 5 piece canvas wall art black and white scenery black and white pictures glitter canvas wall art diy.
canvas wall art in x in moody blue watercolor by graham and brown canvas birch tree 3 panels wall art decor.
canvas wall art 3 piece large canvas city home decor night city photo canvas bridge artwork cheap canvas wall art ebay.
canvas wall art and canvas wall canvas wall art for living room.
canvas wall art no frame 5 waterfall painting canvas wall canvas wall art for living room.
canvas wall art jump in the lake multi panel canvas wall art canvas birch tree 3 panels wall art decor.
canvas wall art canvas art set aqua canvas wall art decor.
canvas wall art textile canvas wall art amazon prime canvas wall art.
canvas wall art contemporary canvas wall art large wall art canvas contemporary wall art canvas contemporary wall art contemporary canvas wall art amazon canada.
canvas wall art 5 piece horror movie villains movie canvas painting wall art it make your day canvas wall art amazon.
canvas wall art big tree in different environment print canvas paintings canvas wall art quotes amazon.
canvas wall art pumpkin tree print unframed split canvas paintings canvas wall art decor.
canvas wall art canvas wall art large quality prints contemporary digital horse canvas wall art decor.
canvas wall art orange awakening gallery wrapped canvas wall art canvas wall art sets uk.
canvas wall art star wars canvas wall art star wars the force awakens 4 panel framed canvas art geek bling 5 piece canvas wall art star wars canvas wall art sets.
canvas wall art 5 piece canvas wall art amazon.
canvas wall art sea stone beach print split canvas wall art paintings disney princess fashionista canvas wall art.
canvas wall art canvas wall art can brighten any room home decor canvas wall art.
canvas wall art 5 piece canvas print home decor artwork purple city photo canvas city canvas large canvas wall art bedroom.
canvas wall art off art from glitter canvas wall art diy.

matches:
art 2
art 5
art 3
art 5
art 3
art 5
art 5
art 5


Calvin Weber sought a writ of mandamus to compel the U.S. Office of Special Counsel (OSC) to investigate his charge that he had been stripped of a security clearance in retaliation for whistleblowing. The district court granted summary judgment against Weber, and he appealed. We affirm.
Weber worked for the Army as a civilian engineer at what was then the Aviation Systems Command in St. Louis, Missiouri. He specialized in infrared suppressor systems, which are used to help aircraft evade heat-seeking missiles. In October 1990, he publicly alleged that many of the Army's helicopters being sent to the Persian Gulf for Operation Desert Storm did not carry infrared suppressor systems, making them vulnerable to attack by enemy missiles. The Army revoked Weber's security clearance in February 1993.Because his position required a security clearance, Weber was fired a few months later.
Weber complained to the U.S. Office of Special Counsel (OSC) that the Army's revocation of his security clearance was in retaliation for whistleblowing. It is a "prohibited personnel practice" for a governmentagency to take a "personnel action" against an employee because of his disclosure of illegal activity or of "gross mismanagement, a gross waste of funds, ... or a substantial and specific danger to public health or safety." 5 U.S.C. S 2302(b) (8). An employee who believes he has been the victim of a prohibited personnel practice must first complain to the OSC, which is required to investigate the complaint "to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred." 5 U.S.C. S 1214. If the OSC determines that a prohibited personnel practice has occurred, it must report its findings to the Merit Systems Protection Board (MSPB), and it may petition the Board to take action on behalf of the employee. But even if the OSC's investigation does not support the complaint, the employee still may bring an individual action before the MSPB. See 5 U.S.C. § 1221. In either case, the MSPB's decision is appealable to the Federal Circuit. See 5 U.S.C. S 7703.
Weber filed an individual action with the MSPB, which consistent with the OSC's view concluded that it lacked jurisdiction. See Weber v. Department of the Army, 59 M.S.P.R. 293 (1993). The Federal Circuit affirmed. See Weber v. Merit Sys. Protection Bd., 26 F.3d 140 (Fed. Cir. 1994).
He then brought this action against the OSC, advancing both statutory and constitutional claims. Giving a liberal construction to Weber's pro se complaint, cf. Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999), the district court construed it as requesting a writ of mandamus to compel the OSC to investigate Weber's allegations. It concluded, however, that the OSC had no duty to conduct an investigation because the denial of a security clearance was not a "personnel action." It further held that the OSC had not deprived Weber of liberty or property in violation of the Due Process Clause. It therefore granted summary judgment to the government, and Weber appealed.
Appointing an amicus to take appellant's position, we directed the parties to address inter alia the district court's jurisdiction to issue a writ of mandamus to the Office of Special Counsel, a question that had been left open in Barnhart v. Devine, 771 F.2d 1515, 1524 n.15 (D.C. Cir. 1985).The government now argues that the district court lacked jurisdiction. It relies on Telecommunications Research and Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) ("TRAC"), for the proposition that when a Court of Appeals has jurisdiction to review the actions of an agency, then the district courts lack power to issue writs of mandamus to that agency. In TRAC, we explained that by "lodging review of agency action in the Court of Appeals, Congress manifest [s] an intent that the appellate court exercise sole jurisdiction over the class of claims covered by the statutory grant of review power." Id. at 77. According to the government, allowing district courts to issue writs of mandamus to the OSC would interfere with the Federal Circuit's exclusive jurisdiction to review the decisions of the MSPB.
The difficulty with the government's position is that the Federal Circuit reviews the actions only of the MSPB and not of the OSC, which is a separate and independent agency. See 5 U.S.C. § 1211. To be sure, an employee alleging a prohibited personnel practice must give the OSC a chance to investigate before going to the MSPB. But the MSPB does not review the OSC's decision of whether to investigate; it simply makes its own assessment of the validity of the complaint.When the Federal Circuit reviews the MSPB's action, it is not even indirectly reviewing the OSC, so allowing district courts to issue writs of mandamus to the OSC would not affect the Federal Circuit's jurisdiction.
Indeed, if district courts lacked power to issue the writ, judicial review of OSC actions would not be available. TRAC had recognized that mandamus might be available when "a denial of review in the District Court will truly foreclose all judicial review." TRAC, 750 F.2d at 78. (The government does not argue that the actions of the OSC should be entirely immune from judicial review.1 ) Here, Weber claims that the OSC violated a statutory duty to investigate his allegations. This is a claim that he could not make before the MSPB or the Federal Circuit, so if the district court lacked jurisdiction, Weber would have no way to vindicate the statutory right he asserts.
Turning to the merits, the amicus argues that even though the Supreme Court's decision in Egan stripped the MSPB of authority to take action on behalf of an employee whose security clearance has been revoked, the OSC nevertheless has a duty to undertake an investigation of Weber's complaint. Such an investigation would not be futile it is argued because under the statute the OSC is not limited to prosecuting before the Board: if it determines that a prohibited personnel practice has occurred, it must report its findings or recommendations to "the agency involved and to the Office of Personnel Management, and [it] may report such determination, findings, and recommendations to the President." 5 U.S.C. S 1214(b) (2) (B). Still, we believe that this grant of authority to the OSC does not justify the issuance of a writ of mandamus, for two reasons.
First, the OSC may act--whether by proceeding before the MSPB or by making a recommendation to the agency or the President--only with respect to a "prohibited personnel practice." As we have noted a "prohibited personnel practice" is a "personnel action" taken for an impermissible reason. But "personnel action" is defined in terms of a list of actions such as appointment, promotion, and reassignment, that does not include the granting or denial of a security clearance. See 5 U.S.C. S 2302(a) (2). It might be thought that a security clearance revocation could fall within the statute's catch-all provision, which at the time of Weber's dismissal referred to "any other significant change in duties or responsibilities that is inconsistent with the employee's salary or grade." See 5 U.S.C. S 2302(a) (2) (x) (1993). But this reading is foreclosed by Egan.
Mandamus is inappropriate, moreover, for a second reason. Amicus argues that the OSC has a duty to undertake an investigation, but because she concedes that it would be futile for the OSC to bring Weber's case before the MSPB, the purpose of its investigation would be limited to writing a letter to the Army, to the Office of Personnel Management, or to the President. The act of reporting recommendations, however, is highly discretionary and therefore far removed from the paradigm case for mandamus--a ministerial act that an agency has a clear duty to perform. See Council of and for the Blind of Delaware County Valley, Inc. v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en banc). And there is no reason to believe that even a favorable OSC recommendation--which would not be binding on anyone--would actually help Weber. Mandamus is an extraordinary remedy whose issuance is guided by equitable principles. See 13th Regional Corp. v. United States Dep't of Interior, 654 F.2d 758, 760 (D.C. Cir. 1980). It is not to be granted in order to command a gesture. We think it would be inappropriate to issue a writ of mandamus to compel the OSC to make what would amount to a purely hortatory statement.
Such an argument would not be very plausible in light of Leedom v. Kyne, 358 U.S. 184 (1958). In Leedom, the Supreme Court held that although NLRB orders in certification proceedings had been understood not to be final orders subject to judicial review, a district court had jurisdiction over a suit to "strike down" an order made in excess of the Board's authority, because a plaintiff otherwise would have no means of enforcing an express statutory mandate.
Indeed, in another case the OSC has explicitly rejected this reading, perhaps reflecting an understandable desire to interpret its enforcement authority broadly. See Roach v. Department of the Army, 82 M.S.P.R. 464 (1999) (pending review in the Federal Circuit).
This conclusion also disposes of Weber's constitutional claims.Amicus contends that Weber has been deprived of liberty without due process because he has lost his job and has been "stigmatized."Since the OSC had no duty--and indeed no authority--to conduct an investigation, its failure to do so could not have deprived Weber of any legal right.


The California ban on discretion makes the headline again. In Martin v. Aetna Life Ins. Co., No. CV 15-7355-RSWL-FFMX, 2016 WL 6997484 (C.D. Cal. Nov. 30, 2016), Judge Ronald Lew of the Central District of California parted ways with his colleagues on the bench by holding that ERISA preempts California Insurance Code section 10110.6 because section 10110.6 regulates FedEx’s self-funded plan. Judge Lew noted that two decisions from C.D. Cal. go the other way: Thomas v. Aetna Life Ins. Co., 2:15-cv-01112-JAM-KJN, 2016 WL 4368110 (E.D. Cal. Aug. 15, 2016 (rejecting argument that the Deemer Clause prevents courts from applying section 10110.6 to self-funded plans) and Williby v. Aetna Life Ins. Co., 2:14-cv-04203 CBM(MRWx), 2015 WL 5145499 (C.D. Cal. Aug. 31, 2015) (finding that section 10110.6 applies to self-funded plans because by its plain language it applies to any insurance policy, contract, certificate or agreement, and an ERISA plan is a contract). The court noted that the Ninth Circuit has yet to decide this issue, and despite Thomas and Williby, the court declined to deviate from FMC Corp v. Holliday, 498 U.S. 52 (1990), which held that that the Deemer Clause exempts self-funded ERISA plans from state laws that regulate insurance under the Saving Clause. Relying on Holliday, the court held that because ERISA preempts section 10110.6 under the Deemer Clause, section 10110.6 does not void the discretionary clause in the self-funded ERISA plan. If you’re on the left side of the v. (except in reimbursement/subrogation lawsuits), the opinion only gets worse from there. The court goes on to justify Aetna’s decision to discount Plaintiff’s subjective complaints of pain simply because there were no remarkable “objective” findings. Plaintiff claimed disability based on wrist and thumb pain but the court noted normal nerve conduction tests, no swelling, normal range of motion, normal strength, and normal sensation. Read it and weep, folks. Hope to report better news next time!
In matter to collect delinquent withdrawal liability payments from Defendant, and following order of default judgement against the Defendant in the amount of $177,072.48, granting Plaintiffs’ motion for attorneys’ fees and awarding a total of $16,251.00 in fees. Attorney rates awarded were $200 and $275/hour and $130 for paralegal time. Graphic Commc’ns Conference of the Int’l Bhd. of Teamsters Nat’l Pension Fund v. Adgravers, Inc., No. 16-CV-10562, 2016 WL 7010491 (E.D. Mich. Dec. 1, 2016) (Judge Gershwin A. Drain).
Plaintiff has not shouldered its burden to establish the four requirements for a preliminary injunction to enjoin the DOL from taking any action to adopt or enforce the DOL’s Amendment to and Partial Revocation of Prohibited Transaction Exemption (“PTE”) 84-24, as it applies to fixed indexed annuity sales. Thus, PTE 84-24 will apply to transactions occurring on or after April 10, 2017. Synergy Grp., Inc. v. United States Dep’t of Labor, No. 16-CV-4083-DDC-KGS, 2016 WL 6948061 (D. Kan. Nov. 28, 2016) (Judge Daniel D. Crabtree).
Liberty Life did not act arbitrarily or capriciously in denying Plaintiff’s LTD benefits under its “Any Occupation” disability review, where the record shows that Liberty evaluated the conclusions of six medical experts who supported the claim that Plaintiff could engage in full-time employment. Although Liberty did not mention Plaintiff’s age in any of its denial letters, each of the experts did note his age in conducting their reviews. The court found that there was no record evidence contradicting Liberty’s vocational assessment that Plaintiff possesses transferable skills that could enable him to obtain light or sedentary work. Liberty expressly discussed the Social Security Administration’s determination and there are no explicit findings by the SSA that Liberty was required to specifically address. Leppert v. Liberty Life Assurance Co. of Boston, No. 16-3387, __F.App’x__, 2016 WL 6958641 (6th Cir. Nov. 29, 2016) (BEFORE: DAUGHTREY, CLAY, and COOK, Circuit Judges).
The Court found that ERISA preempts California Insurance Code section 10110.6 because section 10110.6 regulates FedEx’s self-funded plan. Although two district court decisions go the other way: Thomas v. Aetna Life Ins. Co., 2:15-cv-01112-JAM-KJN, 2016 WL 4368110 (E.D. Cal. Aug. 15, 2016 and Williby v. Aetna Life Ins. Co., 2:14-cv-04203 CBM(MRWx), 2015 WL 5145499 (C.D. Cal. Aug. 31, 2015), the court noted that the Ninth Circuit has yet to decide this issue. “[T]he Court declines to deviate from [FMC Corp v. Holliday, 498 U.S. 52 (1990)] and finds that because ERISA preempts section 10110.6 under the Deemer Clause, section 10110.6 does not void the discretionary clause in the self-funded ERISA plan.” On the merits of the claim, the court found that Aetna did not abuse its discretion in discounting Plaintiff’s subjective complaints of pain where it was not supported by objective findings. The court entered judgment in favor of Defendants. Martin v. Aetna Life Ins. Co., No. CV 15-7355-RSWL-FFMX, 2016 WL 6997484 (C.D. Cal. Nov. 30, 2016) (Judge Ronald S.W. Lew).
This court remanded to Defendant the long-term disability claim for Plaintiff, a registered nurse, who allegedly became disabled from her occupation following a total abdominal hysterectomy. The court found that the Dictionary of Occupational Titles requires Plaintiff to be able to perform medium duties, but Defendant’s denial letter supports that the lesser “sedentary” duty standard was applied. On remand, Defendant must evaluate the evidence provided and apply the medium duty standard that the parties agree must be applied here, and if necessary, the “any occupation” disability standard in the Plan. Graham v. Life Ins. Co. of N. Am., No. 1:15-CV-3240-WSD, 2016 WL 6958151 (N.D. Ga. Nov. 28, 2016) (Judge William S. Duffey, Jr.).
In dispute alleging improper denial of short-term and long-term disability plan benefits, affirming the district court’s grant of summary of judgment in favor of Defendants and holding that: (1) the Court of Appeals had jurisdiction to consider on appeal Appellant’s challenge to the order denying her motion for reconsideration even though she designated only the summary judgment order and failed to specifically designate the order denying the motion for reconsideration in her notice of appeal, because she gave notice in five contemporaneous appellate filings that her appeal included a challenge to the denial of her motion for reconsideration; (2) short-term disability plan was “payroll practices plan,” and thus was exempt from ERISA, because the employer dispensed benefits pursuant to that plan from its general assets and the plan was entirely separate from the employer’s ERISA-covered employee benefits plan; (3) deferential arbitrary and capricious standard of review applied in assessing administrator’s denial of the claim for long-term disability benefits where the plan unambiguously gave the administrator sole authority to construe the terms of the plan; and (4) short-term disability benefits plan did not relate to ERISA-covered long term disability plan in such way as to preempt any state-law relief because there was nothing in the LTD plan that had any bearing on the merits of the state-law breach of contract claim. Foster v. Sedgwick Claims Mgmt. Servs., Inc., __F.3d__, No. 15-7150, 2016 WL 6956669 (D.C. Cir. Nov. 29, 2016) (Before: Rogers and Tatel, Circuit Judges, and Edwards, Senior Circuit Judge).
The court found that neither 29 U.S.C. § 185 nor 29 U.S.C. § 1132 supply the subject matter jurisdiction necessary to confirm the Committee’s arbitration award so the court denied Plaintiffs’ request for the entry of a default judgment against Hiester. The court explained that whether ERISA may ultimately preempt the Committee’s attempt to enforce its arbitration award in state court is an issue for that court to address. Apprentice v. Hiester, No. 5:16-CV-04306, 2016 WL 6948162 (E.D. Pa. Nov. 28, 2016) (Judge Joseph F. Leeson, Jr.).
The court granted Plaintiffs’ motion to remand its lawsuit alleging underpayment by ERISA-governed benefit plans for medical services provided to plan beneficiaries. The court explained that where medical providers sue payers and/or network operators for payments at the rates set out in network agreements, courts routinely find that neither prong of the Davila test is satisfied, and remand the case. Additionally, the medical providers could not bring their rate-of-payment claims under ERISA’s civil enforcement provision, and that there is a duty of payer network participants to honor their network agreements, independent of ERISA. KDCO, Inc. v. Healthlink, Inc., No. 1:16CV00212 AGF, 2016 WL 6995873 (E.D. Mo. Nov. 30, 2016) (Judge Audrey G. Fleissig).
IBM’s Benefits Plan for Retirement Employees requires participants to be enrolled in both Medicare Part A and Part B (unless certain exceptions apply) in order to be eligible to receive retiree health care premium reimbursements. Plaintiff was not enrolled in Medicare Part B and none of the exceptions applies. Therefore, the Plan Administrator’s decision denying Plaintiff’s claim for reimbursement was based on a correct interpretation of the Plan. Plaintiff further alleged that IBM discriminated against him because it gives people who are enrolled in Medicare Part A and Part B and receive TRICARE or VA coverage a benefit that it does not give to Plaintiff. The court found that the fact that certain retirees may benefit and others may not under the Plan does not state a claim for discrimination under ERISA or any other statute. Caunitz v. IBM Corp., No. 15 CV 9281 (VB), 2016 WL 6956631 (S.D.N.Y. Nov. 28, 2016) (Judge Vincent L. Briccetti).
Under the 2004 National Memorandum of Understanding (the “MOU”), which requires Alcatel to provide certain benefits to former occupational employees through 2019, Alcatel must fund the 401(h) account in accordance with Section 6.E, but need not use excess pension assets to do so. Thus, the court found that Plaintiffs have not adequately pleaded that the transfers of these excess assets out of the Lucent Technologies Pension Plan breached the MOU. Individual Plaintiffs do not have Article III standing because they have not shown individualized injury and the Union Plaintiffs lack associational standing under ERISA to bring the ERISA claim. Commc’ns Workers of Am. v. Alcatel-Lucent USA Inc., No. 15-CV-8143, 2016 WL 7013463 (D.N.J. Nov. 30, 2016) (Judge Claire C. Cecchi).
In dispute over pension death benefits, the court found that the Appeals Committee’s decision to deny Plaintiff’s appeal is arbitrary and capricious because the Committee failed to respond to Plaintiff’s arguments that the decedent substantially complied, as defined by federal law, with the Iron Workers’ Union 63 change of beneficiary requirements, and that sufficient evidence has been presented to invoke a presumption of receipt. The court remanded the claim to the plan administrator for reconsideration. Muff v. Iron Workers’ Mid-Am., Pension & Supplemental Monthly Annuity Fund, No. 16 C 655, 2016 WL 6948383 (N.D. Ill. Nov. 28, 2016) (Judge Charles P. Kocoras).
The court denied Plaintiff’s motion to file her first amended complaint to assert her proposed § 1132(c) claim against Central Bank for untimely production of the SPD. The court rejected Plaintiff’s claim that Central Bank led her into believing that MetLife, the claim administrator, was responsible for the drafting and publication of the SPD. The court found that Plaintiff knew, before filing her Original Complaint, that Central Bank—not MetLife—was the Plan Administrator; knew that she had submitted a written request for plan documents to Central Bank; and knew that the documents she received in response to that request did not include a document titled “SPD.” The court also found that Plaintiff failed to demonstrate that the proposed claim would not be futile, or that allowing the proposed amendment at this late date would not unduly prejudice Defendants. Keith v. Metro. Life Ins. Co., No. CV H-15-1030, 2016 WL 7017421 (S.D. Tex. Nov. 30, 2016) (Judge Sim Lake).
In this matter, Plaintiff originally filed her petition against Cigna and L–3 Communication, Inc. in Nueces County, Texas regarding a dispute over employee disability benefits provided to Plaintiff as a result of her prior employment with L–3 Communications Vertex Aerospace, LLC, pursuant to a disability insurance policy underwritten and offered by Cigna. In Nueces County Court, Plaintiff requested and received a default judgment against L–3 Communication. The court granted Plaintiff’s Agreed Motion to Set Aside Default Judgment, finding that setting aside the state court default judgment against L-3 Communication is justified under Rule 60(b)(1). Garza v. Cigna Life Ins. Co. of N.Y., No. 2:16-CV-182, 2016 WL 6947992 (S.D. Tex. Nov. 28, 2016) (Judge Hilda Tagle).
In suit claiming that Defendants violated New Jersey’s Collateral Source Statute by seeking and accepting reimbursement from him after he successfully recovered compensation for a car accident in which he was involved, the court denied Defendants’ motion to dismiss the fiduciary duty claims because the court will look to New Jersey law, rather than the plan language, in adjudicating Plaintiff’s fiduciary duty claims, such that Harrow v. Prudential Ins. Co. of America, 279 F.3d 244 (3d Cir. 2002) does not support dismissal of the fiduciary duty claims. The court also denied Defendants’ motion to strike the class action allegations as premature. Minerley v. Aetna, Inc., No. CV 13-1377 (NLH/KMW), 2016 WL 7013456 (D.N.J. Nov. 30, 2016) (Judge Noel L. Hillman).
Granting Plaintiffs’ motion, pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 37, seeking to strike the Defendants’ answer, and Fed. R. Civ. P. 55, seeking to enter a default judgment against the Defendants. Gesualdi v. Metro. Enterprises, Inc., No. 15CV1378ADSGRB, 2016 WL 6988830 (E.D.N.Y. Nov. 29, 2016) (Judge Arthur D. Spatt).
The court granted the petition to confirm the arbitration award and directed the Clerk of Court to enter judgment in the amount of $59,346.07, plus pre-judgment interest calculated at a rate of 9% per annum from September 5, 2015 through the date of judgment in this action. The court also granted Petitioners’ request for $1,910.00 in attorney’s fees and costs. Trustees of the N.Y. City Dist. Council of Carpenters Pension Fund v. Jessica Rose Enterprises Corp., No. 15-CV-9040 (RA), 2016 WL 6952345 (S.D.N.Y. Nov. 28, 2016) (Judge Ronnie Abrams).
The court granted Plaintiffs’ Motion for Default Judgment and awarded the Trustees a total of $784,124.83 in unpaid contributions. The court also granted attorneys’ fees in the total amount of $1,222.50 and $645 in costs. Trustees of the Nat’l Automatic Sprinkler Indus. Welfare Fund v. All-State Fire Prot., Inc., No. CV TDC-16-1433, 2016 WL 6996131 (D. Md. Nov. 29, 2016) (Judge Theodore D. Chuang).
The court recommended that Plaintiff’s Motion for Default Judgment be granted and Plaintiff be awarded: $8,700.40 for delinquent pension fund contributions; $3,454.03 in interest; $2,796.76 as liquidated damages; $1,597.86 as audit fees; and $1,906.50 in attorneys’ fees and costs. Nat’l Elec. Benefit Fund v. Code Eng’g Servs., Inc., No. CV TDC-16-1685, 2016 WL 6926404 (D. Md. Nov. 28, 2016) (Magistrate Judge William Connelly).
The court entered judgment in favor of Plaintiffs against Defendant Five Star Flooring, L.L.C., in the amount of $10,783.44 together with statutory judgment interest from and after November 30, 2016, and together with attorneys’ fees and court costs. Tharp v. Five Star Flooring, L.L.C., No. 2:14-CV-458-PRC, 2016 WL 6994157 (N.D. Ind. Nov. 30, 2016) (Magistrate Judge Paul R. Cherry).
The court granted in part Plaintiffs’ Motion to Enforce Terms of Settlement Agreement and ordered the entry of judgment against defendant Wellington Concrete, LLC in the amount of $16,575.00. Indus. Laborers Pension Fund v. Wellington Concrete, LLC, No. 4:15-CV-804 CAS, 2016 WL 7013038 (E.D. Mo. Dec. 1, 2016) (Judge Charles A. Shaw).


text:
Packing and covering in combiantorics.
Cohomology of analytic algebras. Отт.: Тр. Москов. матем. об-ва, 1982б т. 44, с.1-61.
The complex of holomorphic waves. Отт.: Amer. Math. Soc. Transl., 1984, v. 122, p.187-222.
Abelian ideals of a Bores subalgebra and long positive roots. Отт.: Intern. Math. Res. Notices, 2003, N 35, p.1889-1913.
Actions of 'nilpotent tori' on G-varieties. Отт.: Indag. Math., 1999, v. 10, p. 565-579.
Complexity anf rank of double cones and tensor product decompositions. Отт.: Comment. Math. Helvetici, 1993, v. 68, p.455-468.
Nilpotent pairs, dual pairs, and sheets. Отт.: J. Algebra, 2001, v. 240, p. 635-664.
On actions of a maximal torus on orbits of highest weight vectors. Отт.: J. Algebra, 1999, v. 212, p. 683-702.
Some amazing properties of spherical nilpotent orbits. Отт.: Math. Z., 2003, Bd. 245, S. 557-580.
On the quantization of a coherent family od representations at roots of unity. Отт.: Intern. Centr Theoret. Phys., SMR.686/4, p. 1-11.
Characteristic numbers of degeneracy loci. Отт.: Contemp. Math., 1991, v. 123, p. 189-197.
Euler characteristic of degeneracy loci I the general holomorphic map case. Отт. p.1-24.
Euler characteristic of degeneracy loci II the nongeneral hypersurface case. Отт.: p. 1-20.
Paulin F., Pollicott M., Shapira B.
On some algebraic structures arising in string theory. Xerox, p. 1-15.
Coherent states for arbitrary Lie group. Отт.: Commun. Math. Phys., 1972, v. 26, p. 222-236.
Petermann Y.-F.S., Remy J.-L., Vardi I.
Escape into chaos. Отт.: Sciece Newa, 1984, v. 125, N 21, p. 328-329.
Zeta-functions of modular curves. Отт.: "Intern. summer school on modular functions, Antwerp, 1972, p.317-360.
Piccini L.C., Stampacchia G., Vidossich G.
K-theorie et multiplicites dans L^2(G/Г). Отт.: Memoire Soc. Math. France, N 89, p.1-85.
A finiteness theorem for convex cones of finite type. Отт.: Soviet Math. Dokl., 1980, v. 21, N 1, p.71-74.
A problem of Tannaka-Artin and groups of projective conorms. Отт.: Soviet Math. Dokl, 1975, v. 16, N 1, p. 782-786.
On the Tannaka-Artin problem. Отт.: Soviet Math. Dokl., 1975, v. 16, N 2, p.468-473.
The infinitude of the reduced Whitehead group in the Tannaka-Artin problem. Отт.: Math. USSR Sbornik, 1976, v. 29, N 2, p.167-176.
The Tannaka-Artin problem and reduced K-theory. Отт.: Math. USSR Izvestia, 1976, v. 10, N 2, p.211-243.
On stability in reduced k-theory. Отт.: Soviet Math. Dokl., 1978, v. 19, N 5, p.1200-1203.
What is string theory? Отт.: NSF-ITP-94-97 hep-th/9411028.
Symplectic displacement energy for Lagrangian submanifolds. Отт.: Ergod. Theory & Dyman. Ssy., 1993, v. 13, p. 357-367.
Enumerative geometry of degeneracy loci. Отт.: Ann. Scient. Ecole Norm. Super., Ser. 4., 1988, t. 21, p. 413-454.
Geometric applications of symmetric polynomials some recent developments. Отт.: p. 1-27.
Batalin-Vilkovisky Lagrangian quantisation. Preprint-KUL-TF-91/35, p.1-16.
Protter M.H., Morrey C.B., Jr.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


ENFORCE OR AVOID ARBITRATION AGREEMENTS IN TEXAS?
By Richard Weaver of The Weaver Law Firm posted in Truck Accidents on Thursday, January 30, 2014.
(1) Is there a valid agreement to arbitrate?
(2) Does the dispute in question fall within the scope of that arbitration agreement?
Carey v. 24 Hour Fitness, USA, Inc., No. 10-20845, __F.3d __ (5th Cir. 2012); In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex.2005).
What are the procedural questions affecting whether arbitration should go forward? An arbitrator should decide in the questions involving: compliance with notice, time limits, and similar prerequisites to compelling arbitration. Howsam v. Dean Witter Reynolds Inc., 537 U.S. 79, 83-85 (2002).
Regardless, the Supreme Court has explained that parties may agree to arbitrate "gateway" issues like whether parties have agreed to arbitrate or whether their agreement covers a particular controversy. But the parties must clearly and unmistakably agree to delegate such gateway issues to an arbitrator. Rent-A-Center West, Inc. v. Jackson, 130 S. Ct. 2772, 2777-78 (2010). Texas courts have reached the same result. Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex. 2008); Haddock v. Quinn, 287 S.W.3d158 (Tex. App. - Fort Worth 2009, no pet.). The validity of such an agreement to arbitrate (whether it is legally binding, as opposed to whether it was in fact agreed to) is an issue that a court must address. Rent-a-Center, 130 S. Ct. at 2778.
"Absent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he signed, regardless of whether he read it or thought it had different terms." In re McKinney, 167 S.W.3d 833 (Tex. 2005).
There is no specific requirement that an arbitration agreement be signed, so long as it is written and agreed to by the parties. See 9 U.S.C. § 3; Tex. Civ. Prac. & Rem. Code § 171.001(a); In re AdvancePCS Health L.P., 172 S.W.3d 603, 606 (Tex. 2005).
Here is an important note: There is no requirement that an arbitration clause appear in each contract that may be covered by an agreement to arbitrate. If the parties agree to arbitrate a given dispute, it does not matter where that agreement is written. See, In re AdvancePCS Health L.P., 172 S.W.3d 603, 606 (Tex. 2005). An exception exists under the TAA for contracts of less than $50,000 and for personal injury claims. Tex. Civ. Prac. & Rem. Code § 171.002.