This is a civil rights case in which Plaintiff Brownyn Anglin alleges Defendants violated her rights to due process and free speech, as well as her right to be free from unreasonable seizure, by forcibly injecting her with antipsychotic medication while in custody at the Pitkin County Jail. This matter is before the court on "Defendants Pitkin County Commissioners, Robert Braudis, and Walt Geister's Brief in Support of Motion for Summary Judgment," filed April 11, 2007. Two other summary judgment motions are currently pending before the court in this case. The instant motion is brought solely by the Defendants associated with Pitkin County, which include Piktin County Commissioners, Pitkin County Sheriff Robert Braudis, and Pitkin County Deputy Sheriff Walt Geister (hereinafter collectively "County Defendants"). Jurisdiction is premised upon the existence of a federal question pursuant to 28 U.S.C. §§ 1331 and 1343.
On August 11, 2006, Plaintiff filed a complaint in this court alleging the following constitutional violations stemming from her involuntary sedation: (1) denial of due process by all Defendants in violation of the Fourteenth Amendment; (2) unreasonable seizure by all Defendants in violation of the Fourth Amendment; (3) constitutional failure to train by Police Chief Loren Ryerson, Sheriff Braudis, Aspen Valley Hospital, and Dr. Martinez; and (4) retaliation for Plaintiff's exercise of free speech in violation of the First Amendment by Officer Davis, Officer Calvano, and Deputy Geister. (Compl. and Jury Demand [filed Aug. 11, 2006] [hereinafter "Compl."].) On April 11, 2007, County Defendants filed a motion for summary judgment, on all counts against them. (Defs.' Br.) On June 14, 2007, Plaintiff responded to the motion. (Pl.'s Resp.) On July 9, 2007, Defendants filed a reply in support of their motion. (Defs.' Reply.) This matter is fully briefed and ripe for review.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c) (2008); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, 36 F.3d at 1518 (citing Celotex, 477 U.S. at 325), 106 S.Ct. 2548. The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see Fed.R.Civ.P. 56 (e)(2) (2008). A fact in dispute is "material" if it might affect the outcome of the suit under the governing law; the dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997) (citing Anderson, 477 U.S. at 248). The court may consider only admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998) (citing Concrete Works, 36 F.3d at 1517).
County Defendants argue they are entitled to summary judgment on all claims against them for the following reasons: (1) Defendants Pitkin County Commissioners should be dismissed as a party because they are not liable for the acts of those Defendants who participated in forcibly injecting Plaintiff; (2) Plaintiff's Fourth and Fourteenth Amendment claims fail as to Defendants Sheriff Braudis and Deputy Geister because they did not personally participate in the decision to sedate Plaintiff, and Plaintiff showed no unconstitutional custom, policy, or practice; (3) Plaintiff's Fourth Amendment claim also fails because an involuntary injection is not cognizable as a "seizure;" (4) Defendants Sheriff Braudis and Deputy Geister are entitled to qualified immunity on Plaintiff's Fourth and Fourteenth Amendment claims; (5) Plaintiff's First Amendment claim against Deputy Geister must fail because Plaintiff admits she has no evidence to support it; and (6) Plaintiff has failed to proffer evidence of inadequate training by Sheriff Braudis. (Defs.' Br.) After briefly reviewing the law of 42 U.S.C. § 1983 ("Section 1983"), I consider Defendants' arguments in turn.
Id. Thus, to establish a violation of Section 1983, Plaintiff must allege that: (1) Defendants acted under color of state law to deprive her of a right, and (2) the right of which Defendants deprived her was secured by the Constitution or the laws of the United States. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Defendants do not address, and therefore necessarily do not dispute, that Defendants are state actors. ( See Defs.' Br.; Defs.' Reply.) With these general considerations in mind, I address Defendants' arguments in further detail below.
Section 1983 does not provide for liability under the theory of respondeat superior. See Worrell v. Henry, 219 F.3d 1197, 1214 (10th Cir. 2000). However, municipal entities can be sued for monetary, declaratory, or injunctive relief for deprivations of constitutional or civil rights under Section 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978); Meade v. Grubbs, 841 F.2d 1512, 1525 (10th Cir. 1988) ("While an agency of the state may fall under the protective umbrella of the [Eleventh] Amendment, political subdivisions of the state do not."). Municipal liability is limited to deprivations of federally protected rights caused by actions taken pursuant to official municipal policy or custom and "attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action taken." Pembauer v. City of Cincinnati, 475 U.S. 469, 481 (1986); accord Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997).
County Defendants' argument misses the mark. The United States Supreme Court has made clear that "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts that may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under [Section] 1983." Monell, 436 U.S. at 694 (emphasis added). In concert with this holding, Plaintiff does not contend that Pitkin County Commissioners are directly liable for the acts of Sheriff Braudis' employees; she contends that Pitkin County Commissioners are liable for the consequences of Sheriff Braudis' policy, as set for Pitkin County, with regard to involuntary sedation of individuals in custody. ( See Pl.'s Resp. at 24-26.) Thus, I find the Pitkin County Commissioners are an appropriate party to this suit.
Contrary to County Defendants' argument, Bristol is no bar to this conclusion. ( See Defs.' Br. at 8-9.) Bristol addressed the limited issue of whether county commissioners were the "employer" of a sheriff's deputy for purposes of the Americans with Disabilities Act. See 312 F.3d at 1221. The court explicitly recognized that Section 1983 liability was not at issue in the case but, nevertheless, took pains to note that ample caselaw "suggest[ed] that counties can be held liable for the misdeeds of [s]heriffs and their employees when the [s]heriff is held to set `official policy' for the county." 312 F.3d at 1221; accord Gonzales v. Martinez, 403 F.3d 1179, 1182 n. 7 (10th Cir. 2005).
In the instant case, reading the facts in the light most favorable to Plaintiff, Sheriff Braudis sets the official policy relating to involuntary medication for Pitkin County. Defendant Braudis testified regarding Pitkin County Jail's involuntary sedation policy without objection to Plaintiff counsel's characterization of Sheriff Braudis' role as the individual who set "the official policy of Pitkin County" relating to involuntary sedation. ( See Pl.'s Resp., Ex. 12 at 3-4 [Braudis Dep.]); see also Colo. Rev. Stat. § 30-10-511 (2007) ("Except as provided in section 16-11-308.5, [Colo. Rev. Stat.], the sheriff shall have charge and custody of the jails of the county, and of the prisoners in the jails, and shall supervise them himself or herself or through a deputy or jailer"). Thus, I find Pitkin County Commissioners cannot escape potential shared liability with Sheriff Braudis by arguing that he, alone, is responsible for the acts of his employees. See St. Louis v. Praprotnick, 485 U.S. 112, 126 (1988) (recognizing that if "a city's lawful policymakers could insulate the government from liability simply by delegating their policymaking authority to others, [Section] 1983 could not serve its intended purpose").
The doctrine of qualified immunity shields government officials from individual liability when they are performing discretionary functions that do not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001). "Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation. The privilege is an immunity from suit rather than a mere defense to liability." Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (citations omitted) (emphasis in original). Whether a defendant is entitled to qualified immunity is a question of law. Derda v. City of Brighton, 53 F.3d 1162, 1164 (10th Cir. 1995). Once a defendant claims qualified immunity, the plaintiff bears the "heavy two-part burden" of demonstrating that: (1) the defendant's alleged actions violated a constitutional or statutory right; and (2) the constitutional or statutory right was clearly established at the time of the alleged violation. Trigalet v. Young, 54 F.3d 645, 647 (10th Cir. 1995) (quoting Albright v. Rodriguez, 51 F.3d 1531, 1534 [10th Cir. 1995]).
I review the law related to involuntary sedation of detainees under the Fourteenth Amendment here, because it provides a useful framework for considering the personal participation question discussed in detail below. It is well-established that "the forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty," thus, triggering the protections of the Due Process Clause. Washington v. Harper, 494 U.S. 210, 229 (1990). In Harper, the Supreme Court found that "forcing antipsychotic drugs on a convicted prisoner is impermissible absent a finding of overriding justification and a determination of medical appropriateness." Riggins v. Nevada, 504 U.S. 127, 135 (1992) (citing Harper, 494 U.S. at 229). In Riggins, the Court found that "[t]he Fourteenth Amendment affords at least as much protection to persons the State detains for trial." Id. In reaffirming this precept, the Court found that the injection of antipsychotic drugs compromises a person's liberty in a "particularly severe" way. Id. at 134. The Court in Harper and Riggins did not have before it, and did not address, what process might be required before state prison authorities may administer an antipsychotic drug in an emergency circumstance, as opposed to regularly in the course of ongoing, long-term treatment. See Harper, 494 U.S. at 246-47 (Stevens, J. dissenting). Since the Supreme Court's decision in Harper, neither the Supreme Court nor the Tenth Circuit has addressed what due process is required to sedate a detainee in emergency circumstances.
Prior to Harper, however, the Tenth Circuit had already addressed this issue to some degree in Bee v. Greaves, 744 F.2d 1387 (10th Cir. 1984). In Bee, the court explicitly held that "a pretrial detainee retains a liberty interest derived from the Constitution in avoiding unwanted medication with [antipsychotic] drugs." 744 F.2d at 1394. The court based its holding, in part, upon the "undisputed nature of antipsychotic drugs," which "have the capacity to severely and even permanently affect an individual's ability to think and communicate." Id. at 1393-94. Nonetheless, the court found that, even absent a hearing, forcing antipsychotic medication upon a pretrial detainee may be appropriate when the State makes a showing that "treatment with [such] medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of [the detainee's] own safety or the safety of others." Id. at 1395.
Based on the foregoing authority, Plaintiff clearly retains a protected liberty interest in avoiding unwanted medication. This conclusion does not end the court's inquiry, however. Plaintiff's liberty interest "must be balanced against competing state interests to determine whether it is outweighed by `the demands of an organized society.'" Id. at 1394 (quoting Youngberg v. Romeo, 457 U.S. 307, 320). The only competing state interest the Tenth Circuit has explicitly recognized that may be sufficient to overcome a pre-trial detainee's liberty interest in avoiding unwanted antipsychotic medication without a hearing is an emergency that threatens the safety and security of jail occupants. Id. at 1395-96. The court was careful to note, however, that "[a]bsent an emergency, . . . [it] did not believe forcible medication with antipsychotic drugs is reasonably related to the concededly legitimate goals of jail safety and security." Id. at 1395 (internal quotations and citation omitted).
County Defendants argue that, because Sheriff Braudis and Deputy Geister did not personally participate in the decision to sedate Plaintiff, summary judgment on Plaintiff's Fourth and Fourteenth Amendment claims against them in their individual capacities is warranted. (Defs.' Br. at 9-12.) Plaintiff counters that the evidence supports a finding that Deputy Geister personally participated in Plaintiff's unconstitutional injection by: (1) participating in the decisionmaking process of whether or not to inject Plaintiff; and (2) participating in the actual injection by restraining Plaintiff during the procedure. ( See Pl.'s Resp. at 26-36.) As an initial matter, I note that it is beyond dispute that "for liability to arise under [Section] 1983, a defendant's direct personal responsibility for the claimed deprivation of a constitutional right must be established." Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (affirming district court's dismissal, in part, where "plaintiff failed to allege personal participation of the defendants"); accord Clayton v. Ward, 232 F. App'x 827, 830 (10th Cir. 2007).
Plaintiff does not specify in what way Sheriff Braudis personally participated in the alleged constitutional violation. Because Plaintiff has literally presented no evidence supporting a finding that Sheriff Braudis, who was not present in the jail on the evening in question, personally participated in the decision to inject Plaintiff or in the injection itself, I grant summary judgment in favor of Sheriff Braudis on Plaintiff's Fourth and Fourteenth Amendment claim against him in his individual capacity. ( See Pl.'s Resp.) Thus, I need not reach the qualified immunity question with respect to Sheriff Braudis. I now address Deputy Geister's personal participation in the alleged constitutional violation.
Plaintiff argues that by lobbying for Plaintiff's sedation and failing to properly assess whether an emergency existed warranting sedation, Deputy Geister personally participated in the decision to sedate her. (Pl.'s Resp. at 26-36.) Additionally, Plaintiff's briefing suggests that Deputy Geister may have lied to the Paramedics about Plaintiff's behavior, thus affecting the ultimate decision of whether or not to sedate Plaintiff. ( See Pl.'s Resp., RSOF ¶ 28.) I address each of Plaintiff's contentions in turn.
Deputy Geister's view of his lack of authority in deciding whether to sedate a detainee generally and in the case at bar finds ample support in the record before the court. First, it is undisputed that the Pitkin County Jail's policy regarding involuntary sedation of prisoners is to leave the decision of whether to sedate a detainee to medical professionals. ( See Defs.' Br., SOF ¶ 38; admitted at Pl.'s Resp., RSOF ¶ 38.) Second, Deputy Geister testified that he had called emergency medical staff for possible sedation of inmates in the past and the paramedics had refused to sedate based on their medical judgment that sedation was unnecessary. (Pl.'s Resp., Ex. 2 at 12 [Geister Dep.].) He explained, "[I]f [the ER doctor] say[s] no, it doesn't get done. And I don't argue about it. You don't argue-you don't order the ER doctor to do anything." ( Id.) Third, Paramedic Coniglio makes clear in his testimony that, in the instant case, the medical professionals — and, in fact, Dr. Martinez alone — made the decision to sedate Plaintiff. Paramedic Coniglio testified that he "initiated contact with Dr. Martinez on [his] own based upon [his] observations," and that he "was not asked or instructed by law enforcement personnel to contact Dr. Martinez or to seek Dr. Martinez's permission to sedate [Plaintiff]." ( Id., Ex. 7 ¶ 8 [Coniglio Decl.].) He further testified to informing Dr. Martinez, based upon his own observations, that "[Plaintiff] was resistive to medical evaluation, refused to come to the hospital emergency room for evaluation, was combative, and was hurting herself by violently pounding and throwing herself against the cell door and by violently struggling against the handcuffs and shackles." ( Id., Ex. 7 ¶¶ 8-9 [Coniglio Decl.].) Further, Paramedic Coniglio stated that "[a]t no time did [he] suggest to Dr. Martinez that [Plaintiff] be sedated" and that, "[b]ased upon the information [Mr. Coniglio] provided, Dr. Martinez gave [him] a medical order to sedate [Plaintiff]. . . ." ( Id., Ex. 7 ¶¶ 9-10 [Coniglio Decl.].) Fourth, it is undisputed that it was Dr. Martinez who authorized the Paramedics to sedate Plaintiff and that the doctor at no time spoke with Deputy Geister. (Defs.' Br., SOF ¶¶ 27, 31; admitted at Pl.'s Resp., RSOF ¶¶ 27, 31.) That Deputy Geister attempted to convince the Paramedics to sedate Plaintiff shows — at worst — that he wished to participate in the decision of whether or not to sedate Plaintiff. It does not show that he did actually participate in such decisionmaking. Because Plaintiff has presented no evidence to counter undisputed testimony that medical authorities made the decision to sedate Plaintiff based upon their independent professional judgment, rather than on the deputy's repeated requests for sedation, I find Plaintiff has failed to show that Deputy Geister's lobbying rendered him a personal participant in the decision to sedate Plaintiff.
Not withstanding this finding, Plaintiff also obliquely argues that Deputy Geister did participate in the decision to sedate Plaintiff by incorrectly assessing whether an emergency existed warranting involuntary sedation. (Pl.'s Resp. at 26-36.) Specifically, Plaintiff argues that Deputy Geister failed to properly determine whether less restrictive means of restraint were appropriate. ( Id.) Whether or not this is true, I cannot agree that such actions constitute personal participation in the decision to sedate Plaintiff.
As an initial matter, there is no record evidence that Deputy Geister assessed whether an emergency existed or whether alternative, less-restrictive means of restraint would have been appropriate for Plaintiff. ( See id., Ex. 2 [Geister Dep.].) Instead, there is only undisputed evidence that Deputy Geister reported to the Paramedics his observations of Plaintiff's behavior and the availability — or lack thereof — of alternative means of restraint within the jail. ( See id., Ex. 7 ¶ 3 [Coniglio Decl.].) There is some dispute as to whether Deputy Geister's report to the Paramedics was accurate, which I will address below.
First, however, I find that by relaying to medical authorities accurate information about a detainee's behavior and alternative means of restraint within the jail, a law enforcement official does not, thereby, become a personal participant in the medical decision of whether or not to sedate a detainee. Bee makes clear that whether an emergency exists sufficient to warrant sedation is a "professional judgment-call" to be undertaken by medical professionals rather than by law enforcement officials. See 744 F.2d at 1395-96. Although an officer may be required to accurately report the behavior of a detainee, as well as whether alternative means of restraint are available within the jail, this court finds that it is outside the officer's area of expertise to determine whether or not a detainee's behavior and the availability of alternative means of restraint constitute an "emergency" sufficient to warrant sedation. Reflected in this conclusion is the court's concern that an alternative holding may cause an officer to hesitate to call medical authorities for possible sedation of a detainee out of fear that the officer may not have appropriately assessed whether an "emergency" exists or whether less restrictive, alternative means of restraint would be sufficient, and that such hesitation may prove detrimental to the detainee, jail staff, and other inmates. Thus, any failure to properly assess the existence of an emergency and the appropriateness of alternative, less intrusive means of restraint, properly falls on the shoulders of the medical decisionmakers. Accordingly, I find the fact that Deputy Geister relayed information regarding Plaintiff's behavior and alternative means of restraint available within the jail to the Paramedics simply does not establish him as a personal participant in the decision to sedate Plaintiff.
Alternatively, Plaintiff argues that Deputy Geister personally participated in the alleged constitutional violation by restraining her during the involuntary sedation. (Pl.'s Resp. at 20-23.) County Defendants urge that Deputy Geister was merely complying with the medics' request and, thus, cannot be said to have "personally participated" in Plaintiff's sedation. (Defs.' Br. at 9-12.) I disagree.
As an initial matter, it is important to note that Plaintiff does not allege that Deputy Geister used more force than necessary to restrain her during the injection. ( See Pl.'s Resp. at 20-23.) Second, to this court, it is a matter of common sense that Deputy Geister participated in sedating Plaintiff when he physically restrained her during the injection. To find otherwise strains credulity. That Deputy Geister was complying with a medical request goes more to the question of whether the law was clearly established that compliance with the medical request would result in a violation of Plaintiff's constitutional rights, rather than to the more straightforward question of whether, by holding Plaintiff down during the injection, Deputy Giester personally participated in Plaintiff's injection.
Given my findings that a genuine issue of material fact exists as to whether Deputy Geister did, in fact, participate in the decision to sedate Plaintiff, as well as my finding that Deputy Geister personally participated in Plaintiff's sedation by restraining her during the injection, I must next determine: (1) whether Deputy Geister's actions violated Plaintiff's Fourth and/or Fourteenth Amendment rights; and, if so, (2) whether those rights were clearly established at the time of the alleged violation. Trigalet, 54 F.3d at 647.
I have already found in a separate order that, based on the information before Dr. Martinez at the time, he made a proper professional judgment-call that an emergency existed warranting involuntary sedation of Plaintiff. ( See Order and Memorandum of Decision [filed Feb. 29, 2008] [hereinafter "Order"].) Thus, I found his decision to sedate Plaintiff could not have violated her constitutional rights under the Fourth or Fourteenth Amendments. ( Id.) In light of the disputed issue of fact as to whether Deputy Geister falsely reported that Plaintiff was banging her head, however, my holding regarding Dr. Martinez does not completely resolve the question of whether Deputy Geister participated in a constitutional violation. Because I am required to read the facts in the light most favorable to Plaintiff, I must pay credence to the possibility that, had Dr. Martinez not received a report that Plaintiff was banging her head, he may not have concluded that she was such a danger to herself as to warrant forcible sedation. Absent a finding that Plaintiff was a danger to herself or others, Defendants have identified no other medical emergency that may have warranted sedation. Thus, reading the facts in the light most favorable to Plaintiff, I find a reasonable juror could conclude that Deputy Geister's alleged misrepresentations to the Paramedics could have led to an incorrect medical judgment that Plaintiff was a danger to herself and, in turn, an unconstitutional decision to involuntarily sedate Plaintiff with antipsychotics. Accordingly, I deny summary judgment on Plaintiff's Fourteenth Amendment claim against Deputy Geister in his individual capacity.
Although Deputy Geister argues that forcible sedation is not cognizable as a "seizure" under the Fourteenth Amendment, he has pointed to no cases so holding. ( See Defs.' Br. at 15-16.) The Supreme Court has clearly stated that "[w]henever an officer restrains the freedom of a person to walk away, he has seized that person." Tennessee v. Garner, 471 U.S. 1, 7 (1985). Here, Plaintiff was physically restrained during the injection and subsequently physically incapacitated by the anitpsychotic medication. As discussed above, read in the light most favorable to Plaintiff, a reasonable juror could conclude that that Deputy Geister participated in both forms of restraint. Thus, this court sees no bar to Plaintiff's Fourth Amendment claim against Deputy Geister in the case sub judice.
Moreover, read the light most favorable to Plaintiff, Deputy Geister's allegedly false report that Plaintiff had been banging her head could also establish a Fourth Amendment violation. "Pretrial detainees retain some Fourth Amendment rights upon commitment to a corrections facility." Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). To determine the constitutionality of a seizure, a court "balance[s] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Garner, 471 U.S. at 8, 105 S.Ct. 1694. In the instant case, the governmental interest allegedly at stake was preventing Plaintiff from injuring herself. As discussed above, if Dr. Martinez's conclusion that Plaintiff was likely to injure herself may have been different had he not heard reports that Plaintiff was banging her head, the governmental interest at stake would fall away. Thus, reading the facts in the light most favorable to Plaintiff, she has established a genuine issue of material fact as to whether Deputy Geister's allegedly false report led to an unreasonable seizure of her person by forcible injection of an antipsychotic. Accordingly, I deny summary judgment on Plaintiff's Fourth Amendment claim against Deputy Geister in his individual capacity.
Having found two possible constitutional violations under the summary judgment standard, I must next determine whether the law was clearly established at the time Deputy Geister acted. See Trigalet, 54 F.3d at 647-48. There simply can be no doubt that any reasonable officer would know that lying to medical authorities regarding a detainee's behavior in order to encourage forcible sedation was an apparent violation of pre-existing law. See id. (noting that qualified immunity should not be granting when unlawfulness of action was apparent "in light of preexisting law"). Qualified immunity jurisprudence establishes that although, "[t]he contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right[, t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful. . . ." Id. In the instant case, it was clearly established at the time of the alleged incident that detainees have a protected liberty interest in avoiding unwanted administration of antipsychotic drugs. See Riggins, 504 U.S. at 1235. Moreover, it was clearly established that unwanted sedation, without a hearing, may be appropriate in an emergency situation in which the safety and security of jail occupants are threatened. See Bee, 744 F.2d at 1395-96. Further, it was clearly established that, absent such an emergency, forcible sedation could not be "reasonably related to the concededly legitimate goals of jail safety and security." Id. Reading the facts in the light most favorable to Plaintiff, I find a reasonable juror could conclude that Deputy Geister lied to the Paramedics in order to convince them that a medical emergency existed warranting sedation, knowing that absent such an emergency the sedation would be unconstitutional. Thus, I hold that Deputy Geister is not entitled to qualified immunity on the Fourteenth Amendment claim against him.
Regarding the Fourth Amendment claim, Plaintiff has failed to point to a single case in which forcible sedation was considered under the Fourth Amendment and this court's research has failed to reveal any such case. ( See Pl.'s Resp. at 36-37.) Therefore, it cannot be said that it was clearly established in 2004 that participation in forcible sedation could result in the violation of a detainee's Fourth Amendment rights. Accordingly, Deputy Geister is entitled to qualified immunity for Plaintiff's Fourth Amendment claim against him.
Even if I had found Dr. Martinez's decision to inject Plaintiff unconstitutional, considering that the law requires medical professionals, not jail staff, to independently determine, based on their professional judgment, whether or not to sedate a detainee, this court cannot justifying placing "law enforcement officers in the impossible position of having to second-guess the medical judgments" of medical professionals. Sullivan v. Bornemann, 384 F.3d 372, 377 (7th Cir. 2004) (finding "[t]here is no rule to the effect that law enforcement officials are constitutionally prohibited from briefly restraining a detainee at the direction of qualified medical personnel, with the purpose of minimizing injury to the detainee"); see also Bee, 744 F.2d at 1395-96. As a non-medical professional, a reasonable law enforcement officer cannot be expected to question the judgment of qualified medical professional absent some extraordinary circumstances, the nature of which the court cannot even conjecture at this point. Thus, in this court's view, absent extraordinary circumstances, liability for the medical decision to sedate detainees and order restraint during sedation does not lie with the law enforcement officials who contact medical professionals or who assist in the restraint at the request of those medical professionals.
Plaintiff assert several claims against Pitkin County Commissioners, as well as Sheriff Braudis and Deputy Geister in their official capacities. "[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity" — in this case Pitkin County. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); accord Monelll, 436 U.S. at 691 (noting "official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent"). As noted above, municipal entities can be sued for deprivations of constitutional or civil rights under Section 1983. Monell, 436 U.S. at 690. "To establish municipal liability, Plaintiff must show: (1) the existence of a municipal custom or policy and (2) a direct causal link between the custom or policy and the violation alleged." Jenkins v. Wood, 81 F.3d 988, 993-94 (10th Cir. 1996) (citation omitted). "The official policy must be the moving force for the constitutional violation in order to establish [municipal liability]." Haines v. Fisher, 82 F.3d 1503 (10th Cir. 1996). Thus, if a final policymaker's decision results in a constitutional violation, the municipality will be liable for the violation. Myers v. Okla. County Bd. of County Comm'rs, 151 F.3d 1313, 1319 (10th Cir. 1998).
Here, assuming that Plaintiff's forcible injection was unconstitutional, there is no evidence that a policy of Pitkin County had a "direct causal link" to "the violation alleged." Jenkins, 81 F.3d at 993-94. Instead, as discussed above, it is undisputed that the policy of Pitkin County Sheriff's Department regarding involuntary sedation of individuals in custody is to leave the decision of whether to sedate to paramedics guided by a physician-advisor. (Defs.' Br., SOF ¶ 38; admitted at Pl.'s Resp., RSOF ¶ 38.) Plaintiff has presented no evidence that Deputy Geister failed to follow this policy in any way. ( See Pl.'s Resp.) In the case sub judice, I find any connection between the policy of leaving the decision of whether to sedate a detainee to medical professionals and those professionals' ultimate decision to sedate the detainee far too attenuated to constitute a direct causal link. In fact, the whole point and obvious import of a policy which places the decision of whether to sedate a detainee into the hands of medical professionals is to break any causal chain between law enforcement personnel's actions and any sedation that may occur.
The court notes that "`[i]n some sense, of course, almost any injury inflicted by a municipal agent or employee ultimately can be traced to a municipal policy.'" D.T. v. Indep. Sch. Dist., 894 F.2d 1176, 1188 (10th Cir. 1990) (quoting Springfield v. Kibbe, 480 U.S. 257, 267  [O'Connor, J., dissenting]).
Additionally, I note that Pitkin County's policy comports with Tenth Circuit precedent mandating that the decision to sedate be left to medical professionals. See Bee, 744 F.2d at 1395-96. Further, Plaintiff has presented no evidence that the policy itself — rather than its implementation in her case — was unconstitutional. ( See Pl.'s Resp.) "[W]here the policy relied upon is not itself unconstitutional, considerably more proof than a single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the `policy' and the constitutional deprivation." Okla. City v. Tuttle, 471 U.S. 808, 824 (1985). Here, Plaintiff has only pointed to a single incident of alleged constitutional deprivation. Based on the foregoing, I find Plaintiff has failed to set forth sufficient facts to establish a direct causal connection between the municipal policy and the alleged constitutional violation at issue. Thus, I grant summary judgment on Plaintiff's Fourth and Fourteenth Amendment claims against Pitkin County Commissioners, as well as Deputy Geister and Sheriff Braudis in their official capacities.
Plaintiff's only remaining claim with respect to County Defendants is her allegation that Deputy Geister retaliated against her for exercising her First Amendment right to free speech by pounding on the jail cell door and calling for assistance in order to ensure the safety of her child. (Compl. ¶¶ 96-77.) County Defendants argue summary judgment is warranted on this claim because: (1) Plaintiff has admitted that no staff member retaliated against her; and (2) Plaintiff's screaming and pounding on the door of her jail cell was not protected speech. (Defs.' Br. at 21-22; Defs.' Reply at 16-18.) I need only address County Defendants' second argument.
(1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.
219 F.3d at 1212 (internal quotations omitted).
In the case at bar, I find Plaintiff fails at the first element. For speech to be constitutionally protected, it must involve a matter of public concern or an issue of public importance. McCook, 44 F. App'x at 904 (citing Connick v. Myers, 461 U.S. 138.) "In determining whether speech pertains to a matter of public concern, the court may consider `the motive of the speaker and whether the speech is calculated to disclose misconduct or merely deals with personal disputes and grievances unrelated to the public's interest.'" Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1205 (10th Cir. 2007) (quoting Lighton v. Univ. of Utah, 209 F.3d 1213, 1224 [10th Cir. 2000]). "[T]he relevant inquiry is not whether the public would be interested in the topic of the speech at issue but rather is whether the purpose of [the plaintiff's] speech was to raise issues of public concern." Maggio v. Sipple, 211 F.3d 1346, 1353 (11th Cir. 2000) (internal quotation marks omitted).
Plaintiff has failed to cite a single case supporting her proposition that pounding on her cell door and screaming that she wanted to call her daughter constitutes a matter of public concern. ( See Pl.'s Resp. at 41-44.) Reading the facts in the light most favorable to Plaintiff, the record supports the finding that Plaintiff's intention in pounding on her cell door was exclusively to air her personal grievance regarding the jail's failure to allow her to contact her daughter. ( See id., SAF ¶ 4; admitted at Defs.' Reply, RSAF ¶ 4.) Nowhere does Plaintiff suggest this failure was illegal, only that it caused her great personal distress. ( See id. passim.) Instead, she testified that "she would have stopped beating on the door and yelling for a call if someone had said they would check on her child's safety." ( Id., SAF ¶ 8; admitted at Defs.' Reply, RSAF ¶ 8.) Plaintiff's testimony supports a finding that her goals were patently personal in nature.
Moreover, this court's independent research has revealed no cases suggesting that Plaintiff's understandable concerns regarding the well-being of her own daughter who was not in the custody of the state was a matter that was in and of itself of interest to the public at large. Cf. Crain v. Bd. of Police Comm'rs, 920 F.2d 1042, 1411 (8th Cir. 1990) (finding that police officer's grievance regarding the police department's sick leave policy was not a matter of public concern, even though it was a matter of significance to the police officer's own family and all relatives of city police officers); Boyce v. Andrews, 510 F.3d 1333, at *27 (11th Cir. 2007) (noting an individual "may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run") (quotation marks omitted). Based on the foregoing, I find summary judgment against Plaintiff on her First Amendment claim against Deputy Geister is warranted.
1. County Defendants' Motion for Summary Judgment (# 47) is GRANTED IN PART.
A. All of Plaintiff's Claims against Defendants Pitkin County Commissioners are DISMISSED.
B. All of Plaintiff's Claims against Sheriff Braudis in his official and individual capacities are DISMISSED.
C. All of Plaintiff's Claims against Deputy Geister in his official capacity are DISMISSED.
D. Plaintiff's First and Fourth Amendment claims against Deputy Geister is DISMISSED.
E. Plaintiff's Fourteenth Amendment Claims against Deputy Geister in his individual capacity remain PENDING.
2. The clerk shall forthwith enter judgment in favor of Defendants Pitkin County Commissioners and Sheriff Braudis, dismissing all claims with prejudice. These Defendants may have their costs by filing a bill of costs within eleven days of the date of this order.


Application for Patent filed July 18, 1984, Serial No. 631,915. Novel Method of Producing a Completely Hardened Metal Element with a Fracture.
This is a decision on the appeal from the refusal of the examiner to allow claims 6 through 10 as amended subsequent to the final rejection. These are all of the claims remaining in the application.
The subject matter on appeal pertains to a method of producing a completely hardened metal structural element such as a roller bearing race. The method consists essentially of the steps of (1) subjecting the surface of the element along an intended course of fracture to high energy radiation, such as a laser beam, to selectively embrittle the metal and (2) then splitting the element along the intended course of fracture. Further details of the appealed subject matter are set forth in claims 6 through 10, of which a reproduction taken from the main brief is appended to this decision.
Claims 6 and 7 stand rejected under 35 USC 102(b) as being anticipated by Haller.
Claims 6 and 10 stand rejected under 35 USC 102(b) as being anticipated by Aoyama.
Claim 7, claim 8 and claim 9 stand respectively rejected under 35 USC 103 as unpatentable over Aoyama in view of Steigerwald, Aoyama in view of Barr and Aoyama in view of Hillberry.
The examiner's position with regard to each of the above-noted rejections is set forth in detail on pages 3 through 6 of the answer.
It is the appellants' basic position that '[n]one of the references cited by the examiner suggest Applicants' method of treating a completely hardened metal element without the use of a notch and a chilling process' (main brief, p. 4). Rather than reiterate the detailed arguments advanced by the appellants, we refer to the main and reply briefs for a complete exposition thereof.
We note that appellants have not challenged with any reasonable specificity the rejections of dependent claims 7 through 10. Accordingly, these claims will stand or fall with independent claim 6. In re Nielson, 816 F.2d 1567, 2 USPQ2d 1525, 1528 (Fed. Cir. 1987).
*2 We have carefully considered each of the arguments and comments advanced by the appellants and the examiner in support of their respective positions. In light of these considerations, we conclude, as did the examiner, that the subject matter defined by independent claim 6 is indistinguishable from the subject matter disclosed by either Haller or Aoyama. Our reasons follow.
It is axiomatic that, in proceedings before the Patent and Trademark Office, an application claim is to be given its broadest reasonable interpretation consistent with the specification and that claim language should be read in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Sneed, 710 F.2d 1544, 218 USPQ 385, 388 (Fed. Cir. 1983).
The appellants argue that the claim 6 language 'a completely hardened metal structural element' and 'the completely hardened structural element' would be interpreted by one of ordinary skill in the art as defining a metal element which is completely crystalline throughout its structure and that the metal elements disclosed by Haller and Aoyama do not possess this crystalline structure. However, we find no probative evidence in the record before us concerning the interpretation that an artisen with ordinary skill would place upon the claim language in question. Moreover, the specification of the subject application does not include a definition for this language. Under these circumstances, this Board cannot accept the interpretation urged by appellants. Instead, we interpret this claim language, as did the examiner, in accordance with its literal meaning, viz., a metal element sufficiently below its melting point temperature as to be completely hardened. As so interpreted, appealed claim 6 encompasses the metal elements disclosed in Haller and Aoyama.
Since the foregoing argument is unpersuasive and is the only argument advanced with respect to the § 102(b) rejection based on Haller, we will sustain this rejection without further comment.
Concerning the § 102(b) rejection based on Aoyama, the appellants further argue that '[u]nlike Applicants' method, the structural element [of Aoyama] is not irradiated directly along the intended course of the fracture' (emphasis added) (main brief, p. 7). This argument is also unpersuasive. As pointed out by the examiner, the claims on appeal are not limited to irradiation directly along the fracture course. Moreover, in light of the disclosure, for example, at lines 53 through 65 in column 4 of the patent, this Board does not agree with appellants' characterization of Aoyama's teaching.
Finally, the appellants argue that the claim 6 language 'consisting essentially of' excludes the notching and quenching steps which are performed in Aoyama's method. We disagree.
*3 . . . recital of 'essentially' along with 'consisting of [is regarded] as rendering the claim open only for the inclusion of unspecified ingredients which do not materially affect the basic and novel characteristics of the composition.
Accord In re Janakirama-Rao, 317 F.2d 951, 954, 137 USPQ 893, 896 (CCPA 1963); Atlas Powder Co. v. E.I. du Pont De Nemours and Co., 750 F.2d 1569, 1573-1574, 224 USPQ 409, 411 (Fed. Cir. 1984).
Although 'consisting essentially of' is typically used and defined in the context of compositions of matter, we find nothing intrinsically wrong with the use of such language as a modifier of method steps as here. [FN1] Accordingly, we consider the language 'consisting essentially of,' when used as a modifier of method steps, to render the claim open only for the inclusion of steps which do not materially affect the basic and novel characteristics of the claimed method. To determine the steps included versus excluded by this language, the claim must be read in light of the specification. In re Janakirama-Rao, supra, 317 F.2d at 954, 137 USPQ at 896; In re Herz, 537 F.2d 549, 551, 190 USPQ 461, 463 (CCPA 1976). In this regard, we emphasize that, from our perspective, it is an applicant's burden to establish that a step practiced in a prior art method is excluded from his claims by 'consisting essentially of' language. See In re Herz, supra, 537 F.2d at 551-552, 190 USPQ at 463 ('[A]n applicant who has not clearly limited his claims is in a weak position to assert a narrow construction' and '[t]here is no evidence that . . . [the prior art] dispersant would materially affect the basic and novel characteristic of . . . [the claimed] composition'). Also see Ziegler v. Phillips Petroleum Co., 483 F.2d 858, 878, 177 USPQ 481, 494 (5th Cir. 1973) ('In the absence of any evidence that a third component was being excluded by the 'essentially consisting of' language, we cannot read those words as meaning 'consisting solely of' or 'consisting exclusively of").
Since this groove is not provided to influence the course of the fracture, it is not necessary, in contrast to known methods, to form this groove as a sharp-edged notch.
*4 Presumably, the appellants consider the groove referred to in claim 10 and encompassed by claim 6 as being distinct from the sharpedged notch used in the prior art. However, these claims contain no limitations concerning the type of groove encompassed thereby, and it is well settled that a limitation of the specification must not be read into a claim where no express statement of the limitation is included therein. In re Prater, 415 F.2d 1393, 1405, 162 USPQ 541, 551 (CCPA 1969); In re Priest, 582 F.2d 33, 37, 199 USPQ 11, 15 (CCPA 1978). In any event, the distinction presumed by appelllants is seemingly inapplicable to the notch disclosed by Aoyama in light of patentee's teaching that '. . . extreme sharpness is not essential' (column 3, lines 22-23). In short, the only evidence of record concerning this matter reflects that appellants' claimed method includes a notching or groove-forming step which, even as disclosed, is indistinguishable from the corresponding step performed by Aoyama. Under these circumstances, we must conclude that patentee's notching step would not materially affect the basic and novel characteristics of the method on appeal, and accordingly the step is not excluded from this method.
As for appellants' argument that the language of claim 6 excludes Aoyama's quenching step, we have carefully perused the specification of this application and find nothing therein concerning a quenching step. Moreover, we find no evidence in the remainder of the record before us to support appellants' argument. In the absence of such evidentiary support, this argument is unpersuasive. See In re Herz and Ziegler v. Phillips Petroleum Co., supra. Also see In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974) ('Attorney's argument in a brief cannot take the place of evidence').
For the above-stated reasons, this Board cannot accept the appellants' contention that the claim language 'consisting essentially of' excludes the notching and quenching steps disclosed in the Aoyama patent. Therefore, we will sustain the 102(b) rejection of independent claim 6 based on this reference.
As indicated earlier, the appellants have not challenged the rejections of dependent claims 7 through 10 with any reasonable specificity. Accordingly, these claims fall with independent claim 6.
37 CFR 1.136(a) does not apply to the time for taking any subsequent action in connection with this appeal.
See also Bethell v. Koch, 427 F.2d 1372, 166 USPQ 199 (CCPA 1970), in which the decision of National Distillers and Chemical Corp. v. Brenner was explained. In neither of these cases did the respective courts express a view that 'consisting essentially of' was inappropriately used as a modifier of the claimed polymerizing step.
*5 6. A method of producing a completely hardened metal structural element provided with a fracture of an intended course consisting essentially of subjecting the surface of the completely hardened structural element at least along a portion of the intended course of the fracture and in transverse limitation thereto to a high energy radiation to selectively embrittle the metal and then splitting the elements along the intended course of the fracture.
7. The method of Claim 6 wherein subjecting the structural element to the high energy radiation comprises exposing it to a laser beam.
8. The method of Claim 6 wherein the structural element is a roller bearing race.
9. The method of Claim 6 wherein splitting the structural element comprises putting the surface subjected to radiation under tensile stress in its region subjected to radiation by applying a force to the structural element to generate the fracture.
10. The method of Claim 6 comprising providing the surface of the structural element along at least a portion of the intended course of the fracture with a groove and subjecting the base thereof to the radiation.


As part of the Tax Cuts and Jobs Act of 2017, Congress enacted new § 4960 of the Internal Revenue Code. Section 4960 imposes an excise tax on certain executive compensation paid by tax-exempt organizations – similar to the $1 million limit on deductions for compensation paid to highly paid executives in for-profit companies under § 162(m) of the Code and to the golden parachute rules of § 280G of the Code. The new provision could have a significant impact on some tax-exempt organizations, but it lacks important detail and leaves many questions unanswered. The excise tax provision is in addition to other rules applicable to reasonable compensation paid to employees of tax-exempt organizations.
The statute directs the Secretary of the Treasury to prescribe regulations under § 4960 “as may be necessary to prevent avoidance of the tax under this section, including regulations to prevent avoidance of such tax through the performance of services other than as an employee or by providing compensation through a pass-through or other entity to avoid such tax.” No regulations or other IRS guidance have been issued under § 4960 thus far.
The provision applies to “applicable tax-exempt organizations,” which include any organization that is exempt from tax under IRC § 501(a). Schools, nonprofit hospitals, and other public charities, foundations, trade associations, VEBAs, and other organizations exempt under section 501(a) of the Code, as well as farmers’ cooperatives, and certain governmental entities and political organizations, are covered. So far, no express exemptions or modifications have been provided for church or governmental organizations. It is not clear whether the IRS has the authority to grant such exemptions, even if it wished to do so.
The tax is imposed on compensation paid to an organization’s “covered employees.” An organization’s “covered employees” include the five most highly compensated employees for the taxable year and each employee or former employee who was one of the five most highly compensated employees during any taxable year after 2016. Thus, once an employee is subject to this excise tax, he or she will always be covered by it, even after termination of employment.
On whom is the excise tax imposed?
Liability for the excise tax falls on the employer.
What compensation is included for purposes of the $1,000,000 limit?
The $1,000,000 limit applies to “remuneration” paid by an applicable tax-exempt organization for the relevant taxable year. Remuneration for this purpose is generally the employee’s wages for purposes of federal income tax withholding plus amounts included in gross income under section 457(f) of the Code when no longer subject to a substantial risk of forfeiture.
Remuneration is taken into account for § 4960 purposes when it is “paid.” It is treated as “paid” when it is no longer subject to a substantial risk of forfeiture. For example, a covered employee’s salary generally will be treated as “paid” when it is earned, because it is never subject to a substantial risk of forfeiture. Amounts credited under a nonqualified deferred compensation plan, including a plan subject to § 457(f) or 409A, should be taken into account when vested.
“Remuneration” for purposes of § 4960 also includes amounts paid to a covered employee by an entity that is related to the tax-exempt organization. Related organizations include entities that control, or are controlled by, the tax-exempt organization, and certain other organizations. Accordingly, exempt organizations may need to determine whether any of their highest paid employees also receive compensation from a related entity and whether the total remuneration would trigger the excise tax.
remuneration paid to licensed medical professionals for performance of medical or veterinary services.
What is an excess parachute payment for § 4960 purposes?
The new excise tax also applies to an “excess parachute payment” paid by an applicable tax-exempt organization to a covered employee.
For purposes of the new excise tax, an “excess parachute payment” is the excess of any “parachute payment” over the portion of the “base amount” allocated to such payment.
Drawing on concepts from the golden parachute rules in § 280G, a “parachute payment” is any payment in the nature of compensation to a covered employee if (1) the payment is contingent on the employee’s separation from employment with the employer, and (2) the aggregate present value of all such contingent payments equals or exceeds three times the “base amount”.
The employee’s “base amount” is determined under § 280G and generally is the employee’s average compensation for the preceding five years (or shorter period of service).
Note: 280G denies a deduction to some for-profit corporations for certain payments that are contingent on a change in ownership or control of the corporation. An excise tax may also be imposed on the employee for excess payments under § 280G — see IRC § 4999 — but there is no comparable provision in § 4960.
Parachute payments do not include (i) payments to a nonhighly compensated employee, or to a licensed medical professional for medical or veterinary services, or (ii) probably distributions from a tax-qualified plan, 457(b) plan, or 403(b) arrangement, even if separation from employment triggers the distribution.
When are amounts “paid” for purposes of the excess parachute prong of § 4960?
It is not clear from the statute whether the payment timing rule for “remuneration” under the $1,000,000 prong discussed above – i.e., treating an amount as “paid” when it is no longer subject to a substantial risk of forfeiture – applies to the excess parachute prong of § 4960. Treasury and IRS guidance should address this question, including the interaction of § 457(f) and the excess parachute prong of § 4960.
When does § 4960 become effective?
The excise tax is effective for taxable years beginning after December 31, 2017. Because the excise tax liability falls on the employer, the effective date provision is probably referring to the employer’s taxable year. Thus, tax-exempt employers with a taxable year starting late in the calendar year may be able to escape imposition of the tax during the 2018 calendar year.


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The U.S. Supreme Court yesterday issued an important 5-4 decision addressing the scope of tribal court jurisdiction. At issue in Plains Commerce Bank v. Long Family Land and Title Co. was whether a tribal court could exercise jurisdiction over a non-Indian-owned bank for discrimination claims arising from the foreclosure and subsequent sale of fee land on a tribal reservation by the bank to non-Indian individuals.
Writing for the majority, Chief Justice Roberts, in his first Indian law opinion, concluded that Indian tribes cannot "regulate the sale of non-Indian fee land." The Court construed its prior cases on the subject narrowly as allowing only "tribal regulation of nonmember conduct inside the reservation that implicates the tribe's sovereign interests." The Court also held that the non-Indian bank's mere conduct of business on the reservation did not mean that it had consented to either broad tribal regulation of its lending practices and land sales, or to the tribal court's jurisdiction.
The Court's opinion has narrowed the scope of tribal jurisdiction and appears to have insulated non-Indian businesses operating on non-Indian land within a reservation from certain real property and tort claims. Before entering into any business dealings on reservation lands, it is in both an Indian tribe's and a business's best interests to understand the scope of tribal regulations affecting a commercial project, and to carefully draft the relevant transaction documents to address tribal court jurisdiction.
See our earlier post about the Plains Commerce Bank case here.
ERISA provides that an individual denied benefits under an employer benefit plan may challenge the denial in federal court. Last week, the US Supreme Court addressed the standards for review when the entity that administers the plan -- usually an employer or insurance company -- both decides eligibility for benefits and pays the benefits out of its own pocket.
The Court has earlier signalled that federal courts must give considerable deference to a plan administrator's decision. In the 1989 Firestone case, the Court held that, if the plan document gives the fiduciary discretionary authority, courts reviewing a denial should focus on the fairness of the claim denial process and not on whether the outcome was correct. The reviewing court must defer to the fiduciary's decision, reversing it only if there was no evidence upon which to base the decision.
The Firestone opinion raised, but did not resolve, the issue of how a plan administrator's conflict of interest factors into the reviewing court's decision. For example, if a self-insured employer denies a claim, thereby increasing its profits, should the reviewing court automatically conduct a more searching review, or is the plaintiff first required to prove that the conflict affected the fiduciary's decision? In the 20 years since Firestone, Circuit Courts have developed various strategies for determining what to do when a fiduciary has a conflict.
Last week in Metropolitan Insurance Co. v. Glenn, the Supreme Court said there is no one-size-fits-all rule for reviewing a decision by a fiduciary having a conflict of interest: "a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits; and that the significance of the factor will depend upon the circumstances of the particular case."
This directive from the Court fails to show what a plan fiduciary can do to avoid a conflict, or how either the plan or participant should prove the presence or absence of one. Plan fiduciaries may be protected by taking procedural actions, such as isolating claims administrators from management or employer influence, to prevent any possible conflict from tainting the claim review process, according to the Court. But the Court refused to create a bright-line test for reviewing claims decisions even when such protections are in place.
Today the U.S. Supreme Court made it harder for employers to defend themselves against a claim of age discrimination in Meacham v. Knolls Atomic Power Laboratory. Knolls, a government contractor that contracted with the Navy and Department of Energy, was forced to reduce its workforce in the mid 1990s when the end of the Cold War reduced the government’s demand for nuclear reactors. After eliminating over 100 jobs, Knolls had 31 left to cut. Of the 31 salaried employees that Knolls laid off, 30 were at least 40 years old and, of that 30, 28 sued Knolls for age discrimination under two theories: disparate treatment (intentional discrimination) and disparate impact (discriminatory effect of a facially neutral policy). The question before the Supreme Court was which party must allege and prove that a termination having a disparate impact on older workers was based on reasonable factors other than age. The Supreme Court held that this burden falls on employers in both instances.
Contracts often provide for an award of attorney fees to one of the parties in the event of litigation relating to the contract. Under Oregon statutory law, a prevailing party in such a lawsuit is entitled to recover its attorney fees even if "the party prevails by reason of a claim or defense asserting that the contract is . . . void or unenforceable." ORS 20.083.
The Oregon Court of Appeals addressed last week whether this statute applies when the prevailing party convinces the court that the contract was never finalized. In Dess Properties, LLC v. Sheridan Truck & Heavy Equipment, LLC, the parties negotiated a contract to sell real property. Plaintiff later sued to enforce the contract, but defendant succeeded in arguing that the parties did not complete the deal. Defendant sought to recover its attorney fees under ORS 20.083, claiming that a never-finalized contract is the same as a "void" contract. The court refused to award fees, holding that the phrase "void contract" is a legal term of art meaning an agreement "actually entered into [but] unenforceable" due to failure to comply with some other legal requirement. In this case, the contract was nonexistent rather than void, and the prevailing party was not entitled to recover fees.
On June 9, in a case involving a former State of Oregon employee, the U.S. Supreme Court ruled that "class of one" equal protection under the 14th Amendment does not protect state government employees against firings for arbitrary reasons. Chief Justice John Roberts, writing for the Court, rejected the plaintiff's argument that a public employee should be able to establish a violation of equal protection by showing, regardless of membership in any class or group, that the employee was treated less favorably than similarly situated workers. Typically, for the Equal Protection Clause to apply, the plaintiff must be a member of a protected class that was subject to unlawful discrimination.
In distinguishing an earlier case, the Court acknowledged that it has recognized "class of one" protection where an arbitrary zoning decision affected one plaintiff. However, that case involved a clear standard against which departures, even for a single plaintiff, could be "readily assessed," whereas employment decisions by public employers are "quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify." As the Court observed, public employees do not lose their constitutional rights by accepting public employment, but "those rights must be balanced against the realities of the employment context." You may read the text of the Court's decision in Engquist v. Oregon Department of Agriculture here.
In Bridge v. Phoenix Bond & Indemnity Co., the United States Supreme Court last week held that a plaintiff bringing a civil RICO claim predicated on mail fraud may recover for injury from the mail fraud, even if plaintiff did not rely on the defendant’s alleged misrepresentations.
The civil RICO statute was enacted to address mob-related activities but written broadly enough that other criminal activities fall within its reach. It establishes treble damages when a person “employed by or associated with” an enterprise engaged in interstate commerce engages in a “pattern of racketeering activity.” “Racketeering activity” is defined to include certain predicate acts, one of which is “any act indictable under” a federal statute dealing with mail fraud.
Previous case law has established that the mail fraud statute does not have a reliance requirement – in other words, the use of “the mail to execute or attempt to execute a scheme to defraud” was a predicate act of racketeering under RICO “even if no one relied on any misrepresentation.” Therefore a reliance requirement, if one existed, had to be found in the RICO statute in question, which enables “[a]ny person injured in his business or property by reason of” a pattern of racketeering activity to sue for treble damages.
The Court also noted that the causation requirement of RICO, which requires that a person be injured “by reason of” a pattern of racketeering activity, indicates that the activity in question must be the proximate cause of the injury. It held that first-party reliance is not “necessary to ensure that there is a sufficiently direct relationship between the defendant’s wrongful conduct and the plaintiff’s injury to satisfy . . . proximate cause principles.” Instead it is sufficient to allege that a plaintiff was harmed because someone else relied on a misrepresentation.
The U.S. Supreme Court on Monday addressed the scope of the patent exhaustion doctrine, holding that it applies to method patents. It has long been recognized that the holder of a patent in an apparatus cannot claim patent rights in an article embodying the patentee's invention once it has been sold by an authorized licensee. But the Supreme Court in the past has not squarely articulated that method patents -- which describe an operation or process -- are also subject to the patent exhaustion doctrine.
In Quanta Computer v. LG Electronics, the method patents at issue are held by LG Electronics ("LGE"). Quanta makes and sells computers with purchased Intel chipsets inside. The Intel chipsets embody many of the claimed method steps of patents licensed by LGE to Intel. LGE's claims require "glue" elements such as memory devices and busses to make the chips work to certain advantage in a high-speed caching scheme. LGE sued Quanta for infringement of its patents, and Quanta moved for summary judgment of non-infringement based on the patent exhaustion doctrine. Quanta argued that LGE's patents were exhausted upon purchase by Quanta from Intel of chips covered by the patents. The District Court granted the motion, but upon reconsideration, denied it because some of the claims were method claims. The Federal Circuit affirmed in pertinent part that patent exhaustion does not apply to method patents.
A unanimous opinion authored by Justice Clarence Thomas reversed the Federal Circuit. Its holding: a method patent is subject to the patent exhaustion doctrine if the patented parts sold "substantially embody" the invention and include the novel elements thereof. "Intel's microprocessors and chipsets substantially embodied the LGE Patents because they had no reasonable noninfringing use and included all the inventive aspects of the patented methods."
The Court did not decide whether a particular license agreement between a patentee and a licensee could expose a third-party purchaser to contract liability for using patented chipsets in certain ways.
See the SCOTUS blog's discussion of the case here.
By the end of this year, the IRS requires every "deferred compensation plan" to comply with Internal Revenue Code Section 409A. What is a deferred compensation plan? The definition covers a number of employment arrangements, such as severance agreements, stock options, and change-in-control agreements. A recent article in the Portland Business Journal by Northwest Business Litigation Blog contributor John Walch addresses the treatment of severance agreements under Section 409A. See our earlier posts about the new law here, here, and here.
Every employer we have worked with has had at least one deferred compensation arrangement that needed to be brought in line with Section 409A. To avoid the year-end rush, employers should now review any existing agreements with employees, directors and consultants, and discuss those agreements with their benefits attorney.
On May 21, 2008, President Bush signed into law the Genetic Information Non-Discrimination Act ("GINA"). GINA prohibits employers from discharging, refusing to hire, or otherwise discriminating against employees on the basis of genetic information. It also applies to employment agencies and labor unions.
In addition, GINA precludes discrimination by group health plans and health insurers against individuals based on genetic information, and prohibits insurers from requiring genetic tests. Insurance companies also cannot request, require, or purchase the results of genetic tests, and they are prohibited from disclosing personal genetic information.

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