Justia › US Law › Case Law › Minnesota Case Law › Minnesota Supreme Court Decisions › 1995 › Hirsch v. Bartley-Lindsay Co.
Ronald C. HIRSCH, Relator, v. BARTLEY-LINDSAY COMPANY, and Aetna Life & Casualty Company, Respondents. Michelle J. SUHSEN, Relator, v. CARLSON MARKETING GROUP and Reliance Insurance Company (Administered by Crawford & Company), Respondents. Charles NELLERMOE, Relator, v. INDEPENDENT SCHOOL DISTRICT #11, Self-Insured/DCA, Inc., Respondent.
Nos. C6-94-871, C1-94-1927 and C0-94-2261.
*481 Thomas Mottaz, Anoka, Douglas Peine, St. Paul, for Ronald Hirsch.
Thomas D. Mottaz, Anoka, for Michelle J. Suhsen.
John T. Anderson, Jr., Minneapolis, for Charles Nellermoe.
Charles S. Bierman, Minneapolis, for Bartley-Lindsay.
Nell Elizabeth Mathews, Karen Imus Johnson, Minneapolis, for Carlson Marketing.
Terry J. Battaglia, Minneapolis, for Independent School District No. 11, DCA, Inc.
Louise Dovre Bjorkman, David Schooler, Minneapolis, amicus curiae for MN Defense Lawyers Assoc.
Wilbur W. Fluegel, Minneapolis, Mary E. Kohl, Minneapolis, amicus curiae, for MN Trial Lawyers Assoc.
Gilbert S. Buffington, Attorney General's Office, St. Paul, amicus curiae for Commissioner of Labor & Industry.
Thomas F. Gilde, St. Paul, amicus curiae, for Blue Cross & Blue Shield of Minnesota Comprehensive Management Care.
Considered and decided by the court en banc.
The employees in these three cases challenge the validity of durational limitations on medical treatment contained in the Emergency Rules Relating to Workers' Compensation Treatment Parameters.
Ronald Hirsch sustained a compensable low back injury on June 23, 1989, while working for Bartley-Lindsay Company, then insured for workers' compensation liability by Aetna Life & Casualty Company. Hirsch initially sought chiropractic care; but in March 1990, the chiropractor referred Hirsch to an orthopedic surgeon who recommended fusion surgery. Aetna refused to authorize payment for the procedure; the dispute was resolved in August of 1991 by a compensation judge; and Hirsch underwent surgery in October 1991. Hirsch then resumed chiropractic care on an as-needed basis, incurring approximately $1,803.28 in unpaid charges over a two-year period. The compensation judge ordered payment of the charges, finding *482 the treatment was reasonably required to cure or relieve Hirsch from the effects of his injury. Although the employer/insurer had asserted the 12-week limitation on passive care contained in the Emergency Rules Relating to Workers' Compensation Treatment Parameters as a defense to payment for chiropractic care after August 13, 1993, the effective date of the rules, the compensation judge did not expressly address that issue. On appeal, the WCCA reversed and remanded for redetermination, concluding that personnel of the Workers' Compensation Division were required to follow the rules. Hirsch v. Bartley-Lindsay Company, Workers' Comp. Dec. (WCCA Filed April 4, 1994).
Michelle J. Suhsen sustained a compensable low back injury on October 13, 1992, while working for Carlson Marketing Group, then insured for workers' compensation liability by Reliance Insurance Company. Because of persistent pain, about a month later she sought chiropractic care. After an initial period of aggressive treatment, the frequency of Suhsen's chiropractic visits decreased until, by the spring of 1993, she was receiving treatment on an as-needed basis. The chiropractor also recommended she engage in an exercise program at a health club, but Reliance Insurance refused to pay for that. Suhsen then bought herself some exercise equipment. In April 1993, Suhsen was evaluated by a neurologist who recommended against a CT or MRI scan so as not to "run up the costs." The neurologist also "strongly" supported the chiropractic care and exercise regimen, particularly where Suhsen has Crohn's disease and should not take medication. In August 1993, Reliance Insurance advised Suhsen that bills for chiropractic care beyond the 12 weeks allowed by the emergency treatment rules would not be honored. The compensation judge ordered payment of $358.68 in unpaid charges, finding the chiropractic care reasonably required, as contemplated by section 176.135 (1992). The compensation judge further determined that the emergency treatment rules "should not and cannot be interpreted so as to abridge the rights or abrogate the obligations of the parties under Minn.Stat. § 176.135 as it existed at the time of the employee's injury." In reliance on Hirsch, the WCCA reversed and remanded for reconsideration. Suhsen v. Carlson Marketing Group, Workers' Comp. Dec. (WCCA Filed August 16, 1994).
Charles Nellermoe sustained a compensable right upper extremity injury on December 18, 1992, while employed by Independent School District No. 11. Nellermoe was ultimately referred to an orthopedic surgeon who recommended surgery for lateral epicondylitis after "aggressive conservative medical care" had failed. Prior to surgery, Nellermoe was evaluated by an orthopedic consultant chosen by the claims examiner for the self-insured/DCA. The consultant said that he "personally would not operate on [Nellermoe's] right elbow if he were the treating physician" although it was "possible that a surgical procedure at his elbow could give him some symptomatic improvement." Nellermoe underwent "same day surgery" and following recovery, he obtained work with Apollo Precision in Minnetonka. The self-insured/DCA, Inc. refused to pay the medical *483 bills contending, among other things, the surgery was not in compliance with the requirement that 12 months of initial nonsurgical management precede surgery. Minn. Rule 5221.6300 [Emergency], subp. 11B. In response to an inquiry from Nellermoe's attorney, Nellermoe's surgeon said the surgery was reasonably required in that conservative care had been exhausted, "and this was verified by the extremely thin tissue we found at the time of surgery." The doctor also said "it would have done us no additional good to simply keep [Nellermoe] off work from August through December[,] until the 12 months had passed. In the interest of returning him to work as quickly as possible, surgery was indicated when conservative treatment had been exhausted." The compensation judge found the surgery reasonably required and "in substantial compliance" with the rules; but the WCCA reversed, concluding Minn. Rule 5221.6300 [Emergency], subp. 11B required 12 months of initial nonsurgical management prior to reevaluation for surgical therapy. Nellermoe v. Independent School District No. 11, Workers' Comp. Dec. (WCCA Filed October 11, 1994).
In 1991, the Department of Labor and Industry published an action plan for implementing recommendations for controlling medical costs in the workers' compensation system. The solution to the problem lay, according to the plan, in controlling the utilization of services as well as price per service. Consequently, as part of a comprehensive package to control and contain medical costs, the Minnesota legislature adopted a uniform billing form for health care providers, replaced the medical fee schedule with a relative value based schedule and developed a managed care plan option for employers. The legislature also amended the medical services rules provision, Minn.Stat. § 176.83, subd. 5, granting the Commissioner of Labor and Industry authority to adopt "emergency and permanent rules establishing standards and procedures for health care provider treatment" for purposes of determining "whether a provider of health care services * * * is performing procedures or providing services at a level or with a frequency that is excessive, unnecessary, or inappropriate based upon accepted medical standards for quality health care and accepted rehabilitation standards." Act of April 28, 1992, ch. 510, art. 4, § 21, 1992 Minn. Laws 640-41. In response, the Commissioner of Labor and Industry promulgated the Emergency Rules Relating to Workers' Compensation Treatment Parameters, effective May 18, 1993.
The rules provide that all treatment given after the effective date must conform to the rules. Minn. R. 5221.6020 [Emergency], subp. 2. A departure from an applicable rule is allowable if there is "a documented medical complication; documented continuing [progressive improvement from] initial nonsurgical treatment: * * * unusual medical circumstances related to the employee's return to work; or mismanagement of prior treatment by a health care provider." Minn. R. 5221.6050 [Emergency], subp. 8C(3). In resolving a dispute over payment for medical care, a compensation judge is limited to ascertaining whether a treatment rule applies, whether the treatment provided or proposed to be provided is consistent with the rule, and whether a departure from the rule is allowed because of one of the four reasons specified in the list of departure reasons. Minn. R. 5221.6050 [Emergency], subp. *484 8C(1), (2), (3), (4). If medical care is not in compliance with the rules, the health care provider may not seek payment from any source, Minn.Stat. § 176.83, subd. 5; and if a health care provider is not in compliance with a treatment rule in the care of three or more employees, the Commissioner will order sanctions, including a fine of up to $200 per violation. Minn. R. 5221.8900 [Emergency], subp. 7.
There are general rules for medical imaging, Minn. R. 5221.6100 [Emergency], hospitalization, Minn. R. 5221.6400 [Emergency], and surgery, Minn. R. 5221.6500 [Emergency]; and there are specific rules for the diagnosis and treatment for low back pain and upper extremity disorders, Minn. R. 5221.6200, 5221.6300 [Emergency]. For example, the rules say that before initiation of treatment for low back pain, the physician or health care provider "must assign the patient" to one of four "clinical" categories: (1) regional low back pain, including referred pain to the leg above the knee; (2) radicular pain with or without regional low back pain, with static neurological deficit; (3) radicular pain with or without regional low back pain with foot drop or progressive neurologic deficit; and (4) cauda equina syndrome. Minn. R. 5221.6200, subp. 1. The rules then divide treatment of low back pain into three general phases: initial nonsurgical care, reevaluation of diagnosis and surgery if indicated, and chronic management for employees who are not candidates for, or who refuse, surgery. Minn. R. 5221.6200, subp. 2 B.
Initial nonsurgical care for low back pain includes passive treatment modalities (e.g. chiropractic manipulation, therapeutic massage, thermal treatment, ultrasound) and active treatment modalities (e.g. education, posture and work method training, work-site analysis and modification, and exercise). Minn. R. 5221.6200, subp. 2B(1) [Emergency], subp. 3 and subp. 4. Passive treatment modalities in a clinical setting cannot exceed 12 calendar weeks after the first passive modality was initiated. Minn. R. 5221.6200 [Emergency], subp. 3.
Surgery for low back pain may only be performed if it is in compliance with the rule that applies to the appropriate diagnostic category. Prior authorization from the insurer is required, and post-operative therapy is limited to eight weeks. Repeat surgery is not allowed without a second opinion obtained prior to surgery if requested by the insurer. Minn. R. 5221.6050 [Emergency], subp. 9; 5221.6200 [Emergency], subp. 6.
The low back pain rules go on to say that the physician or health care provider "must at each visit evaluate whether the treatment has been effective as defined in part 5221.6040 [Emergency], subp. 5." Minn. R. 5221.6200 [Emergency], subp. 9A. If the treatment modality has not been effective, the modality "must be discontinued or significantly modified or the provider must reconsider the diagnosis." Id. If at any time the initial nonsurgical plan ceases to be effective, "the provider must discontinue or significantly modify the treatment, reconsider the diagnosis, or the patient must be referred for consultation," Minn. R. 5221.6200 [Emergency], subp. 9B, and there is a rule to govern referrals. Minn. R. 5221.6050 [Emergency], subp. 6.
There are rules for exacerbations of low back pain. If the employee had made a "full recovery" and had been "symptom-free," a full cycle of passive care is allowed for a recurrence or exacerbation of symptoms. Minn. R. 5221.6200 [Emergency], subp. 10A. If an employee who has not made a full recovery develops new symptoms, the physician "must reassess the clinical category, using any indicated diagnostic procedures within the parameters of subpart 1." Minn. R. 5221.6200 [Emergency], subp. 10B(1). If there is a change in clinical category, a full cycle of passive care is allowed. Id. If the clinical category is not changed, passive care is limited to one month for the exacerbation; and if the problem has not resolved at that point, or if this is the second exacerbation within 12 months, the employee "shall be evaluated for surgery, or chronic management under subpart 7." Minn. R. 5221.6200 [Emergency], subp. 10(B)(2).
The low back pain rules then specify the "phase" and duration of treatment for the four clinical low back pain categories. Minn. Rule 5221.6200 [Emergency], subp. 11A says that initial nonsurgical treatment "must be *485 the initial phase of treatment for all patients with regional low back pain under subpart 1, item A, subitem (1)." After the first week of treatment, initial nonsurgical care "must at all times contain active treatment modalities according to the treatment parameters of subpart 4" and a health care provider may not furnish passive treatment beyond 12 weeks. Minn. Rule 5221.6200 [Emergency], subp. 11A(2) and (4). Re-evaluation for surgery "may begin as soon as eight weeks after, but must begin no later than 12 weeks after, beginning initial nonsurgical care." Minn. Rule 5221.6200 [Emergency], subp. 11B. "The only surgical procedure" allowable for employees with regional low back pain is "lumbar arthrodesis, with or without instrumentation, which must meet the parameters of part 5221.6500 [Emergency], subpart 2, item C." Minn. Rule 5221.6200 [Emergency], subp. 11B(6). If surgery is not indicated, or the employee does not wish to proceed with surgery, chronic management rules govern additional medical care, and no further passive care is allowed. Minn. Rule 5221.6200 [Emergency], subp. 11 B(6)(b). There are similar rules for the other three clinical categories of low back pain, Minn. R. 5221.6200 [Emergency], subp. 12, 13 and 14. Insurer authorization is required before initiating treatment that departs from the rules, and the rules set out what is supposed to happen when the insurer denies authorization. Minn. R. 5221.6050 [Emergency], subps. 8.
There are similar rules for the treatment of upper extremity disorders, including requirements for the assignment of patients to one of four clinical categories, passive and active treatment modalities, surgery, chronic management modalities, and durable medical equipment, Minn. R. 5221.6300, subps. 1A, 3, 4, 6, 7; and there are specific rules for treatment of the four clinical categories of upper extremity disorders, including that surgery for epicondylitis may be considered if "the patient continues with symptoms and objective physical findings after 12 months of initial nonsurgical management * * *." Minn. R. 5221.6300, subp. 11B.
Hirsch and Suhsen contend that emergency rule 5221.6020, subp. 2 (requiring application of the rules to all treatment after the rules' effective date), acting in tandem with the exclusive list of departure reasons, Minn. R. 5221.6050 [Emergency], subp. 8C, and the 12-week limitation on passive care, Minn. R. 5221.6200 [Emergency], subp. 3, exceed the authority delegated to the Commissioner by the enabling legislation, conflict with other legislation, and infringe on the decisional independence of compensation judges. They also challenge the constitutionality of the rules. Nellermoe contends that his medical treatment was in substantial compliance with the rules, or if it was not, Minn. R. 5221.6300, subp. 11B conflicts with section 176.135. Bartley-Lindsay/AETNA and Carlson Marketing Group/Reliance contend that the rules do not alter the basic right to reasonably required medical care, but merely define what treatment is reasonable, and they maintain that the legislature required the Commissioner to regulate the delivery of medical care.
An agency has the power to issue binding administrative rules only if, and to the extent, the legislature has authorized it to do so. "The legislature states what the agency is to do and how it is to do it. While express statutory authority need not be given a cramped reading, any enlargement of express powers by implication must be fairly drawn and fairly evident from the agency objectives and powers expressly given by the legislature." Peoples Natural Gas Co. v. Minnesota P.U.C., 369 N.W.2d 530, 534 (Minn.1985). Here, the enabling legislation granted the Commissioner power to "adopt emergency and permanent rules establishing *486 standards and procedures for health care provider treatment. * * *. The rules shall be used to determine whether a provider of health care services * * * is performing procedures or providing services at a level or with a frequency that is excessive, unnecessary, or inappropriate based upon accepted medical standards for quality health care * * *." Minn.Stat. § 176.83, subd. 5. The enabling legislation further says that "if it is determined by the payer that the level, frequency or cost of a procedure or service is excessive, unnecessary, or inappropriate according to standards established by the rules, the provider shall not be paid * * * unless the commissioner or compensation judge determines at a hearing or administrative conference that the level, frequency, or cost was not excessive in which case the insurer, self-insurer, or group self-insurer shall make the payment deemed reasonable." Id. Thus, the unambiguous language of the enabling legislation empowers the Commissioner to establish "standards" to be used to decide whether a provider is furnishing medical care that is "excessive, unnecessary, or inappropriate." The question then is whether the legislature intended, without saying so, to authorize the Commissioner to regulate the delivery of medical care through such means as durational limits on medical services and the exclusive list of departure reasons.
The basic medical benefits provision, Minn. Stat. § 176.135, subd. 1, says that medical care is provided "at the time of injury and any time thereafter" and it has long been recognized as placing no limitation on the duration of medical care. Casey v. Northern States Power Co., 247 Minn. 295, 77 N.W.2d 67 (1956); see also Fehland v. City of St. Paul, 215 Minn. 94, 9 N.W.2d 349 (1943) (predecessor provision). It is therefore of some significance that the legislature did not amend this phrase in Minn.Stat. § 176.135, subd. 1, although it could have done so, and in fact did amend the provision to add a service to the list of compensable medical care, as it has on numerous occasions in the past. Act of April 28, 1992, ch. 510, art 4, § 9, 1992 Minn. Laws 633 (adding nursing services); see, e.g., Act of June 8, 1971, ch. 863, § 1, 1971 Minn. Laws 1712-13 (adding chiropractic care); Act of June 3, 1989, ch. 335, art. 1, § 180, 1989 Minn. Laws 2853 (adding psychological care).
The Commissioner, appearing as an amicus in Hirsch, explains that durational limits on medical services are essential to accomplishing the legislative goal of cost-containment. However, "a rule adopted in pursuit of legislative goals cannot subvert the primary purpose behind the legislation." Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 922 (Minn.1990). While "administrative agencies may adopt regulations to implement or make specific the language of a statute, they cannot adopt a conflicting rule." Green v. Whirlpool Corp., 389 N.W.2d 504, 506 (Minn.1986). Accordingly, to the extent durational limitations on medical care set out by the rules conflict with Minn.Stat. § 176.135, subd. 1, the statute prevails. Moreover, the purpose of providing medical care is to return the employee, as nearly as possible, to his or her pre-injury state of wellness, Langa v. Fleischmann-Kurth Malting Co., 481 N.W.2d 35, 37 (Minn.1992), and the Act provides the only practical means by which an injured worker can obtain necessary medical treatment for a work-related injury. While certainly durational limitations on medical care facilitate cost-containment, to deny payment for reasonably priced medical care that works, simply because of a time line, subverts the primary purpose of the medical benefits provision.
As to questions of necessity for treatment, Minn.Stat. § 176.135, subd. 1(e) places that matter in the discretionary power of the compensation judge. As the WCCA observed, the exclusive list of reasons for departing from the emergency rules infringes on that discretion. The Commissioner explains that the exclusive list of departure reasons is necessary to enforce the rules; but as we said in Peoples Natural Gas, "[i]t is not enough that the * * * [rule] would be useful * * * as an enforcement measure. * * * The [agency] remains a creature of statute." 369 N.W.2d at 535. The workers' compensation adjudication system is based to a significant extent on the judicial model of decisionmaking. The compensation judge serves as factfinder and decisionmaker. *487 Minn.Stat. § 176.371. The compensation judge must develop all of the evidence, including that contrary to the claimant's position, through hearings and investigations; and the compensation judge must issue a decision based upon relevant evidence. Minn.Stat. § 176.411. While compensation judges are not "constitutionally protected," they do have a certain degree of independence from the agency in which they adjudicate disputes as they are the people who have been charged with the responsibility of ascertaining the substantial rights of the parties in a fair and objective manner. Minn. Stat. § 14.48. We see nothing in the enabling legislation suggesting an intent to in any way tamper with this system. To the contrary, while under section 176.83, subd. 5 the insurer may deny payment of the costs incurred in connection with treatment that is not in compliance with the rules, the ultimate determination as to whether medical services are excessive, unnecessary or inappropriate remains with the compensation judge following a hearing. We also think it highly unlikely the legislature intended to exclude from a compensation judge's consideration new research and study indicating that certain popular and expensive procedures allowed by rule no longer have solid scientific support.
We also think it important that the legislature asked for "standards" and "criteria" for judging the propriety of medical care, not regulations on the delivery of that care. With standards and criteria, one has a basis of comparison for judging the value of something; but with regulations comes the connotation of control. With standards comes flexibility and the recognition that a certain amount of medical judgment is necessary in providing adequate and reasonable medical care under a given set of circumstances, and that a certain amount of judicial discretion is likewise required in deciding whether that care is compensable. It seems to us that to the extent the exclusive list of departure reasons (Minn. Rule 5221.6050 [Emergency], subp. 8C) unduly infringes on that discretion, the rule exceeds the authority granted by the legislature.
That is not to say that provisions similar to the emergency rules could have no place in determining questions concerning the necessity for treatment. If the rules could be used as standards, and not as binding regulations, employees, employers, insurers and providers would have guidance as to what treatment is compensable without dispute. If the rules could be used as standards, and not as binding regulations, compensation judges would have a model from which to judge the propriety of medical treatment that has been provided, yet retain the flexibility to perform their judicial function based upon the evidence before them in an individual case.
The rules as set forth, however, purport to be binding regulations. Because Minn. R. [Emergency] 5221.6200, subp. 3 and Minn. R. [Emergency] 5221.6200, subp. 8C are inconsistent with Minn.Stat. § 176.135 and exceed the legislative authorization, they are invalid. We therefore reverse the decisions of the WCCA remanding Hirsch and Suhsen for redetermination pursuant to these rules. We also reverse the decision of the WCCA in Nellermoe on grounds that Minn. R. [Emergency] 5221.6300, subp. 11B is inconsistent with section 176.135 and therefore invalid. Because of the disposition herein, we do not reach questions concerning the constitutionality of the emergency treatment rules.
Hirsch is allowed $800 in attorney fees.
Suhsen is allowed $400 in attorney fees.
Nellermoe is allowed $400 in attorney fees.
*488 STRINGER, J., took no part in the consideration or decision of this case.
GARDEBRING and ANDERSON, JJ., concur in the result of the case.
 The emergency treatment parameter at issue here provides: "[t]he use of passive treatment modalities in a clinical setting * * * is not indicated beyond 12 calendar weeks after the first passive modality is initiated." Minn. R. [Emergency] 5221.6200, subp. 3.
The employer shall furnish any medical, psychological, chiropractic, podiatric, surgical and hospital treatment, including nursing, medicines, medical, chiropractic, podiatric, and surgical supplies, crutches and apparatus, including artificial members, or, at the option of the employee, if the employer has not filed notice as hereinafter provided, Christian Science treatment in lieu of medical treatment, chiropractic medicine and medical supplies, as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury. This treatment shall include treatments necessary to physical rehabilitation.
This court long ago construed the phrase "cure and relieve" to mean "cure or relieve," and held that palliative measures are compensable even if there is no hope of a cure. Castle v. City of Stillwater, 235 Minn. 502, 51 N.W.2d 370 (1952); Eberle v. Miller, 170 Minn. 207, 212 N.W. 190 (1927).
 Minn. R. 5221.6050 [Emergency], subp. 4, provides that "[h]ealth care providers shall provide a trial of nonoperative treatment before offering or performing surgical treatment unless the treatment for the condition requires immediate surgery or unless an emergency or life threatening situation exists." Minn. R. 5221.6040 [Emergency], subp. 9 provides that "[t]he period of initial nonsurgical treatment ends when reevaluation is required to determine whether surgery or chronic management is indicated * * *." Minn. R. 5221.6300 [Emergency], subp. 11.A. and B. provides that "[i]nitial nonsurgical management is appropriate for all patients with epicondylitis and must be the first phase of treatment" and subpart B of that rule says "[i]f the patient continues with symptoms and objective physical findings after 12 months of nonsurgical management, and if the patient's condition prevents the resumption of regular activities of daily life including regular vocational activities, then the patient's condition should be reevaluated and surgical therapy provided, if indicated."
 Department of Labor and Industry Statement of Need and Reasonableness in Support of Proposed Permanent Rules Relating to Workers' Compensation Treatment Parameters, June 1994.
 The Commissioner, who appears as an amicus in Hirsch, suggests that an attack on the validity of the rules in that case may only be made in a declaratory judgment action pursuant to Minn. Stat. § 14.44-45. However, where Bartley-Lindsay/Aetna are seeking enforcement of the rules in the compensation proceeding, the employee may properly resist enforcement on the ground of invalidity of the rule. State by Spannaus v. Lloyd A. Fry Roofing Co., 310 Minn. 528, 246 N.W.2d 696 (1976). Furthermore, as a general matter, a declaratory judgment action supplements, but does not supplant other remedies. Land O'Lakes Dairy Co. v. Sebeka Village, 225 Minn. 540, 31 N.W.2d 660, cert. denied, 334 U.S. 844, 68 S. Ct. 1513, 92 L. Ed. 1768 (1948).
 In Massachusetts, legislation directing the promulgation of "regulations" for the provision of medical care also provided that the regulations were to be presumptive of compensable care: "Any provision of health care services in material compliance with such regulations shall be presumed to be adequate and reasonable. Any material departure from said regulations shall be presumed an inadequate or unreasonable provision of health care services." Mass. Laws, Ch 152, § 30 (1994).
 Briefing in Hirsch was completed and the matter scheduled for oral argument long before briefing in Suhsen and Nellermoe could have been completed. Rather than delay resolution of the dispositive issue, the latter two cases were considered on a nonoral basis, and the award of attorney fees reflects this.


There is established an estuary habitat restoration program under which the Secretary may carry out estuary habitat restoration projects and provide technical assistance through the award of contracts and cooperative agreements in accordance with the requirements of this chapter.
A proposed estuary habitat restoration project shall originate from a non-Federal interest consistent with State or local laws.
The Secretary shall select estuary habitat restoration projects from a list of project proposals submitted by the Estuary Habitat Restoration Council under section 2904(b) of this title.
include satisfactory assurance from the non-Federal interests proposing the project that the non-Federal interests will have adequate personnel, funding, and authority to carry out items of local cooperation and properly maintain the project.
Whether the project is part of an approved Federal or Stateestuary management or habitat restoration plan.
The technical feasibility of the project.
The scientific merit of the project.
Whether the project will encourage increased coordination and cooperation among Federal, State, and local government agencies.
Whether the project fosters public-private partnerships and uses Federal resources to encourage increased private sector involvement, including consideration of the amount of private funds or in-kind contributions for an estuary habitat restoration activity.
Whether the project is cost-effective.
Whether the State in which the non-Federal interest is proposing the project has a dedicated source of funding to acquire or restore estuary habitat, natural areas, and open spaces for the benefit of estuary habitat restoration or protection.
Other factors that the Secretary determines to be reasonable and necessary for consideration.
the project includes pilot testing of or a demonstration of an innovative technology or approach having the potential for improved cost-effectiveness in estuary habitat restoration.
Except as provided in paragraph (2) and subsection (e)(2), the Federal share of the cost of an estuary habitat restoration project (other than the cost of operation and maintenance of the project) carried out under this chapter shall not exceed 65 percent of such cost.
The costs of monitoring an estuary habitat restoration project funded under this chapter may be included in the total cost of the estuary habitat restoration project.
to allow adaptive management to ensure project success.
The Federal share of the incremental additional cost of including in a project pilot testing of or a demonstration of an innovative technology or approach described in subsection (c)(4)(B) shall be 85 percent.
The non-Federal share of the cost of an estuary habitat restoration project carried out under this chapter shall include lands, easements, rights-of-way, and relocations and may include services (including monitoring), or any other form of in-kind contribution determined by the Secretary to be an appropriate contribution equivalent to the monetary amount required for the non-Federal share of the activity.
The non-Federal interests shall be responsible for all costs associated with operating, maintaining, replacing, repairing, and rehabilitating all projects carried out under this section.
Pending completion of the estuary habitat restoration strategy to be developed under section 2905 of this title, the Secretary may take interim actions to carry out an estuary habitat restoration activity.
The Federal share of the cost of an estuary habitat restoration activity before the completion of the estuary habitat restoration strategy shall not exceed 25 percent of such cost.
provide for long-term maintenance and monitoring of the project.
Notwithstanding section 1962d–5b(b) of title 42, for any project to be undertaken under this chapter, the Secretary, in consultation and coordination with appropriate State and local governmental agencies and Indian tribes, may allow a nongovernmental organization to serve as the non-Federal interest for the project.
For a project carried out under this chapter, the requirements of section 2213(j)(1) of this title may be fulfilled by a nongovernmental organization serving as the non-Federal interest for the project pursuant to paragraph (2).
In carrying out this chapter, the Secretary may delegate project implementation to another Federal department or agency on a reimbursable basis if the Secretary, upon the recommendation of the Council, determines such delegation is appropriate.
In this paragraph, the term “small project” means a project carried out under this chapter with an estimated Federal cost of less than $1,000,000.
A small project delegated to the head of a Federal department or agency under this paragraph may be carried out using funds appropriated to the department or agency under section 2908(a)(1) of this title or other funds available to the department or agency.
The head of a Federal department or agency to which a small project is delegated under this paragraph shall enter into an agreement with the non-Federal interest for the project generally in conformance with the criteria in subsections (d) and (e). Cooperative agreements may be used for any delegated project to allow the non-Federal interest to carry out the project on behalf of the Federal agency.
2016—Subsec. (f)(3). Pub. L. 114–322 added par. (3).
2007—Subsec. (a). Pub. L. 110–114, § 5017(c)(1), inserted “through the award of contracts and cooperative agreements” after “assistance”.
Subsec. (c)(3)(A). Pub. L. 110–114, § 5017(c)(2)(A), inserted “or State” after “Federal”.
Subsec. (c)(4)(B). Pub. L. 110–114, § 5017(c)(2)(B), inserted “or approach” after “technology”.
Subsec. (d)(1). Pub. L. 110–114, § 5017(c)(3)(A), designated existing provisions as subpar. (A), inserted heading, and added subpar. (B).
Subsec. (d)(2). Pub. L. 110–114, § 5017(c)(3)(B), inserted “or approach” after “technology”.
Subsec. (d)(3). Pub. L. 110–114, § 5017(c)(3)(C), inserted “(including monitoring)” after “services”.
Subsec. (f)(1)(B). Pub. L. 110–114, § 5017(c)(4), inserted “long-term” before “maintenance”.
Subsec. (g). Pub. L. 110–114, § 5017(c)(5), designated existing provisions as par. (1), inserted heading, and added par. (2).


Medellin v. Texas - Docket Sheet. Case: Medellin v. Texas .
Mar 26, 2008 . As many have noted, the Supreme Court's decision yesterday in Medellin v. Texas raises serious questions about the binding nature of United .
January 16, 2008. Third Party Dispute Resolution in Treaties: Medellin v. Texas. I blogged earlier about how . 2007 ABA Journal Blawg 100. Quantcast.
Mar 25, 2008 . Medellin v. Texas: Modest and Fairly Careful. by Paul Stephan. A first read through the Medellín opinions leads to tentative observations, .
11-161. Armour v. Indianapolis, 02/29/12. Argument Session: January 09, 2012 - January 18, 2012, Date Argued . v. Texas, 11/02/10 . Argument Session: November 26, 2007 - December 5, 2007, Date Argued . Jose Ernesto Medellin, v.
Jun 28, 2007 . Dretke, 544 U.S. 660 (2005) ......... 12, 32. Medellín v. Quarterman, No. 4: 06cv3688. (S.D. Tex. May 25, 2007)..................... 15. Sanchez-Llamas v.
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Patterico's Pontifications » Medellin v. Texas, an overview.
Oct 10, 2007 . The Supreme Court's oral argument today in Medellin v. Texas has interesting implications for Second Amendment rights. The rationale .
Gall v. United States (criminal sentencing) · Decided Dec. 10, 2007 . Wright v. Van Patten (Ineffective Counsel) Decided Jan. 7, 2008 · Arave v. Hoffman . Medellin v. Texas. Bill Long 3/25/08. SUMMARY OF THE MARCH 25, 2008 DECISION .
Medellin v. Texas (First Essay). Bill Long 12/15/ 07. Docket No. 06-984; Oral Arg. October 10, 2007. This case alone got a whole day at the Supreme Court. Why .
The following cases are argued before the Supreme Court in October 2007. To access other briefs for the 2007-2008 Term, return to the main Briefs Menu: .
MEDELLIN v. TEXAS. Texas . On January 16, 2007, Mr. Medellín filed a petition for writ of certiorari with the . This petition was granted on April 30, 2007.
Mr. Cruz was the first Hispanic Solicitor General in Texas and, when appointed . Medellin v. Texas October 11, 2007. Medellin v. Texas: Presidential Power and .
(Walker v. Martin) January 19, 2011. Supreme Court Rejects Ninth Circuit Ruling in . (Medellin v. Texas) September 7, 2007. High Court to Review Wendy's .
Oral argument: Oct. 10, 2007 . Under Texas law, Medellín waived his rights by not asserting them at trial. . On January 22, 2001, the trial court denied his petition, finding that the Vienna Convention does not grant privately enforceable rights .
Medellín v. Texas. Seal of the United States Supreme Court.svg · Supreme Court of the United States. Argued October 10, 2007. Decided March 25, 2008 .
100 Petition for Writ of Certiorari, Medellin v. Texas, No. 06-984 (U.S. Jan. 16, 2007),. 2007 WL 119139; Brief for the United States as Amicus Curiae Supporting .
2007 term per curiam opinions of the Supreme Court of the United States. From Wikipedia, the free . Decided January 7, 2008. Ninth Circuit Court of . Full case name: Jose Ernesto Medellin v. Texas. Citations: 554 U.S. ___. Prior history .
Mar 25, 2008 . Medellin v. Texas: Another Set of Early Thoughts. by Ernie Young. As lead counsel on the scholars' amicus brief in support of Texas, I am not .
Mar 25, 2008 . Medellin v. Texas: States' Rights Trump International Law. In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), I.C.J. No.
Yousuf v. Samantar, 552 F.3d 371, 375 (4th Cir. 2009), aff'd, 130 S. Ct. 2278 ( 2010). 10. Id. 11. . Kumar Katyal, 116 YALE L.J. 1230 (2007) (urging a more skeptical approach toward . State, May 1952 to January. 1977 . United States as Amicus Curiae Supporting Petitioner at 13, 15, 25, Medellín v. Texas,. 552 U.S. 491 .
Oct 5, 2007 . See Brief for the United States as Amicus Curiae Supporting Petitioner, Medellin v. Texas, petition for cert. filed, No. 06-984 (U.S. Jan. 16, 2007) .
BASIC OBLIGATIONS: MEDELLÍN V. TEXAS . Reg. 4, 893 (Jan. 27, 2009). . Ariz. St. L.J. 1017, 1050 (2007) (making note of the traditional constitutional .
Oct 23, 2009 . The CISG after Medellin v. Texas: Do U.S. Businesses Have It? Do They Want It? . to have entered into force for all the states a party to it, on January 1, 1988. . See Richard Posner, Economic Analysis of Law 1-10 (2007).
involved fifty-two Mexican nationals imprisoned in Texas, the ICJ directed the US . Interpretation of the Judgment) (order of Jan. . E.g., John T. Parry, A Primer on Treaties and § 1983 After Medellín v. Texas . Jogi v. Voges, 480 F.3d 822, 830 ( 7th Cir. 2007) ([I]t is undisputed that the Convention [VCCR] is self-executing, .
In January 2005, CJA filed an amicus brief with the U.S. Supreme Court in the case Medellin v. Dretke. The appellant, José Medellin was a citizen of Mexico convicted of murder in Texas and . 2007, Supreme Court Opinion in Medellin v.
Mar 25, 2008 . JOSE ERNESTO MEDELLIN, PETITIONER v. TEXAS. on writ of certiorari to . before January 24, 1818,  'shall be ratified and confirmed'  to the grantee. . 571 , 583584 (2007) (concluding enforcement against States is the .
v. Texas,1 refused to enforce a decision2 of the International Court of Justice (ICJ )3 ordering the United . Court's 2007 term.8 Indeed, as some commentators have already noted, Medellín is . January 2008, barely six months after the initial .
Mar 25, 2008 . Home · International Law; Medellín V. Texas, Supreme Court Decision . The Court argued the case on October 10, 2007; it was decided on March 25, . President Obama vowed in January 2009 to close the prison camp at .
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Petition for Writ of Certiorari, Medellin v. Texas, W U.S.. _ (Jan. 16, 2007) (No. 06- 984). President's Message to the Senate Transmitting the. Convention for the .
Jul 7, 2011 . Here's background on that case, Medellin v. Texas,in which Texas stood up against 90 nations to guarantee the right for Texas and the United .


On June 23, 2016, in a one sentence decision affirming the lower court in a 4-4 deadlock, the Supreme Court blocked millions of immigrants from obtaining protection from deportation. It was a shocking blow to immigrant activists and supporters of the Deferred Action for Childhood Arrivals and Deferred Action for Parents of Americans and Lawful Permanent Residents programs. However, three days prior to that decision, the Supreme Court agreed to hear argument on another important case regarding immigrants. On June 20, 2016, certiorari was granted in the case of Jennings v. Rodriguez. The case derives from the Ninth Circuit Court, but the issue has been decided in almost every circuit in the nation. Two of the questions the Court will answer are whether noncitizens, subject to mandatory detention, are entitled to bond hearings if their detention lasts six months and whether they are entitled to new bond hearings every six months if their detention continues. Additionally, the Court will evaluate whether or not the immigrant is entitled to release based on the government’s ability to demonstrate by clear and convincing evidence that the noncitizen is either a flight risk or a danger to the community. The answers to these questions have been widely discussed across the circuits, and a split in decisions has forced the Supreme Court to take up this issue.
For the most part, the circuit courts have agreed that the burden of proof to continue detainment of a noncitizen resides with the government at the bond hearing. However, the courts have been unable to agree on when and how often a bond hearing is required to be held. All of the courts agree that the statute governing the detention of criminal “aliens” (hereinafter referred to as immigrants) contains an implicit limitation, and that, at a certain point, detention becomes unreasonable. The question that has troubled the courts is how to determine when an immigrant’s detention becomes unreasonable. Two main theories have risen from the circuit courts: the First, Third, Sixth, and Eleventh Circuits, determine reasonableness on a case by case basis taking into consideration each individual’s circumstances and the factors of their case; the Second and Ninth Circuits adopted a bright-line-rule requiring a bond hearing after six months of mandatory detention. In the upcoming decision, the Supreme Court should follow the Second and Ninth Circuits’ bright line rule, to assure consistency among the lower courts, promote efficiency in the judiciary process, and, most importantly, to comply with the Due Process Clause of the Fifth Amendment.
“Indefinite detention violates due process” – this the courts agree on. But four of the courts determined the reasonableness of prolonged detention should be decided on a case by case basis. In Ly v. Hansen, the Sixth Circuit placed emphasis on the holding in Zadvydas v. Davis. Zadvydas, the Sixth Circuit noted, only prohibited “permanent civil detention without a showing of a ‘strong special justification’ that consists of more than the government’s generalized interest in protecting the community from danger.” The Sixth Circuit held that the Immigration and Naturalization Service may pursue “limited civil detention” for immigrants who are prima facie removable for a time reasonable to complete the removal proceedings. However, if the removal proceedings take an unreasonably long time, the immigrant can apply for relief in a habeas proceeding. The Third Circuit, in Diop v. ICE/Homeland Sec., noted that the government also has an interest in detaining individuals who may not attend their removal proceedings, thereby increasing the government’s ability to prolong detention for some immigrants upon a showing of a flight risk. The Third Circuit also specifically declined to establish a point at which detention would become unreasonable.
Moreover, in Reid v. Donelan, the First Circuit notes the problems with the Third and Sixth Circuit analyses, but ultimately decides that these Circuits have the better argument. The First Circuit notes that under those Circuits’ approach, “every detainee must file a habeas petition challenging detention.” The district courts will then be responsible for determining whether their petition shows a case where the detention has become unreasonable and the immigrant is entitled to a bail hearing. The First Circuit primarily relies upon the holding in Demore v. Kim, 538 U.S. 510 (2003). Demore relies upon inaccurate information provided by the Department of Justice and several lower courts have relied upon its holding in their decisions.
The Eleventh Circuit further clarified the case by case analysis in Sopo v. United States AG, and held that the burden of proof shifts from the immigrant at the habeas petition hearing to the government at the bail hearing. At the habeas petition hearing, the petitioner must prove, based on their individual facts and circumstances, that their detention has been unreasonably long and thus violates the Due Process Clause. If the immigrant passes that hearing, the burden of proof then shifts to the government at a bail hearing to prove that continued detention of the immigrant fulfills the purposes of the detention statute. This requires a showing that the individual is either a flight risk or a danger to the community. The Eleventh Circuit also notes several factors in evaluating the reasonableness of any given detention in regards to § 1226(c).
A bright line rule, such as the one the Second and Ninth Circuits adopted, is a clearly defined standard that allows for little to no variance in interpretation among the courts. The Second Circuit looks to the Zadvydas and Demore decisions to define the reasonableness of detention over six months. The court noted that those decisions taken together suggest that the preferred approach for avoiding due process concerns is to establish a presumptively reasonable six month period of detention. Additionally, the Ninth Circuit emphasizes the unconstitutionality of detention without a bond hearing in contexts outside of immigration. The Ninth Circuit has consistently held that non-citizens are entitled to bond hearings before an immigration judge when detention lasts six months and is expected to continue. The court is dissatisfied with this inconsistency in a constitutional standard. It is a huge injustice to recognize in some circumstances the lack of a bond hearing as a significant deprivation of liberty, and to hold in others that it is reasonable to detain individuals without any limitations on time.
Recently, the Department of Justice released a letter stating that the data relied upon by the Supreme Court in deciding the case of Demore were not accurate and understated the time some immigrants spent in detention. Both the bright line rule and the case by case analysis use the Demore holding to support their interpretation. In Denmore, the Supreme Court found it persuasive that most immigrants were in detention for only a month and others only up to three to five months. The Court held that the limited time of detention was too short to trigger a constitutional right to a hearing to argue for bail. However, these figures are now said to be incorrect. The new (and correct) data puts the average detention periods at more than a year.
In evaluating both approaches to the determination of reasonableness, the Supreme Court should find the bright line rule more persuasive when deciding Jennings v. Rodriguez. The issues, both in legal and policy perspectives, of the case by case reasonable test are too big to ignore. To begin, if the Court does not draw a hard line on the limit of prolonged detention, they are effectively affirming the theory that the limit does not exist. The case by case analysis gives the district courts too much discretionary power. Additionally, most immigrants in mandatory detention do not: (1) know that the habeas petition is available to them; (2) have the resources to hire an attorney to assist them with their petition; or (3) believe that a district court would pronounce their detainment as unreasonable and receive a bond hearing.
Moreover, judicial efficiency and consistency is at risk in a case by case analysis. A district court in the Ninth Circuit may decide a six month detention is unreasonable while a district court in the Sixth Circuit decides that a thirteen month detention is reasonable under the same exact circumstances. This kind of inconsistency should not be tolerated in lower courts. Additionally, judicial efficiency is compromised with the case by case analysis because this process requires two hearings before an individual can be released on bond: one by the district court and one by the immigration judge. This procedure is unnecessarily excessive and uses an unreasonable amount of judicial resources in an already backlogged and underfunded process.
Unlike the case by case analysis, the bright line rule provides increased judicial efficiency and consistency. A hard six month limit on mandatory detention before a bond hearing would give the lower courts an unmistakable rule to follow. During the bond hearing, the same questions as to the immigrant’s risk of flight and danger to the community can be asked. The bright line rule reduces hearings and allows immigration judges, those most familiar with the relevant factual circumstances, to be the trier of fact.
Many academics wonder what the Supreme Court plans to do with the new information from the Department of Justice. The release of this information could either help or harm immigrants in mandatory detention. The Supreme Court is likely to address the Department of Justice’s mistake in their Jennings v. Rodriguez opinion. The Court should follow its original reliance on defining the previously reported detention averages as reasonable, while comparing those to the accurate information recently reported by the Department of Justice. The Court should not now hold that detention periods of one to three years is reasonable when they previously relied on averages of only three to five months. If the Court, in recognizing the error in data information, fails to place a tighter limit on the reasonable length of detention, the Court will prove that the limit does not exist.
Demore was decided upon incorrect data and has been relied upon consistently by lower courts in applying the Demore standard. The Supreme Court cannot ignore the Department of Justice’s mistake. In order to comply with the due process requirement and to encourage efficiency and consistency in the courts, the Court must adopt the bright line rule and require bond hearings to take place after six months of detention and every six months thereafter. Not doing so violates the constitution and the basic human rights afforded to these immigrants.
 136 S. Ct. 2489 (U.S. 2016).
 Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011).
 8 U.S.C. § 1226(c) (West).
 Diop, 656 F.3d at 231.
 Reid v. Donelan, 819 F.3d 486 (1st Cir. 2016); 656 F.3d 221; Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003); Sopo v. United States AG, 825 F.3d 1199 (11th Cir. 2016).
 819 F.3d 486; 656 F.3d 221; 351 F.3d 263; 825 F.3d 1199.
 351 F.3d 263 (6th Cir. 2003).
 819 F.3d 486, 495 (1st Cir. 2016).
 825 F.3d 1199, 1215 (11th Cir. 2016).
Id. at 1217. Such factors listed include: 1) the amount of time that the immigrant has been in detention without a bond hearing, 2) why the proceedings have been prolonged, 3) whether it will be possible to remove the immigrant after there is a final order of removal, 4) whether the immigrant’s civil immigration detention exceeds the time the immigrant spent in prison for the crime that rendered him removable, and 5) whether the facility for the civil immigration detention is meaningfully different from a penal institution for criminal detention.
 Lora v. Shanahan, 804 F.3d 601, 615 (2nd Cir. 2015).
 Rodriguez v. Robbins, 804 F.3d 1060, 1074 (9th Cir. 2015).
Jess Bravin, Justice Department Gave Supreme Court Incorrect Data in Immigration Case, Wall Street Journal (Aug. 30, 2016), http://www.wsj.com/articles/justice-department-gave-supreme-court-incorrect-data-in-immigration-case-1472569756.
 Adolfo Flores, US Immigration Court Backlog Exceeds 500,000 Cases for First Time, Buzzfeed (Jul. 20, 2016), https://www.buzzfeed.com/adolfoflores/us-immigration-court-backlog-exceeds-500000-cases?utm_term=.woZJgMbx0#.ndJj4a5Xm.
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David L. Ladd, Register of Copyrights, United States Copyright Office, Third-Party Defendant.
Blum Kaplan, New York City (Lawrence Rosenthal, Laura E. Goldbard, Anita K. Yeung, New York City, of counsel), for plaintiff-appellant.
Fish & Neave, New York City (Donald E. Degling, Susan Progoff, Eric M. Lee, New York City, of counsel), for defendant-appellee.
Before OAKES and WINTER, Circuit Judges, and ZAMPANO, District Judge.
In passing the Copyright Act of 1976 Congress attempted to distinguish between  protectable "works of applied art" and "industrial designs not subject to copyright protection." See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 54, reprinted in 1976 U.S.Code Cong. & Admin.News 5659, 5667 (hereinafter H.R.Rep. No. 1476). The courts, however, have had difficulty framing tests by which the fine line establishing what is and what is not copyrightable can be drawn. Once again we are called upon to draw such a line, this time in a case involving the "RIBBON Rack," a bicycle rack made of bent tubing that is said to have originated from a wire sculpture. (A photograph of the rack is contained in the appendix to this opinion.) We are also called upon to determine whether there is any trademark protection available to the manufacturer of the bicycle rack, appellant Brandir International, Inc. The Register of Copyright, named as a third-party defendant under the statute, 17 U.S.C. § 411, but electing not to appear, denied copyrightability. In the subsequent suit brought in the United States District Court for the Southern District of New York, Charles S. Haight, Jr., Judge, the district court granted summary judgment on both the copyright and trademark claims to defendant Cascade Pacific Lumber Co., d/b/a Columbia Cascade Co., manufacturer of a similar bicycle rack. We affirm as to the copyright claim, but reverse and remand as to the trademark claim.
On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the Committee's intention is not to offer it copyright protection under the bill. Unless the shape of an automobile, airplane, ladies' dress, food processor, television set, or any other industrial product contains some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article, the design would not be copyrighted under the bill.
H.R.Rep. No. 1476, at 55, U.S.Code Cong. & Admin.News 1976, p. 5668.
As courts and commentators have come to realize, however, the line Congress attempted to draw between copyrightable art and noncopyrightable design "was neither clear nor new." Denicola, supra, 67 Minn.L.Rev. at 720. One aspect of the distinction that has drawn considerable attention is the reference in the House Report to "physically or conceptually" (emphasis added) separable elements. The District of Columbia Circuit in Esquire, Inc. v. Ringer, 591 F.2d 796, 803-04 (D.C.Cir.1978) (holding outdoor lighting fixtures ineligible for copyright), cert. denied, 440 U.S. 908, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979), called this an "isolated reference" and gave it no significance. Professor Nimmer, however,  seemed to favor the observations of Judge Harold Leventhal in his concurrence in Esquire, who stated that "the overall legislative policy ... sustains the Copyright Office in its effort to distinguish between the instances where the aesthetic element is conceptually severable and the instances where the aesthetic element is inextricably interwoven with the utilitarian aspect of the article." 591 F.2d at 807; see 1 Nimmer on Copyright § 2.08[B] at 2-93 to 2-96.2 (1986). But see Gerber, Book Review, 26 U.C.L.A.L.Rev. 925, 938-43 (1979) (criticizing Professor Nimmer's view on conceptual separability). Looking to the section 101 definition of works of artistic craftsmanship requiring that artistic features be "capable of existing independently of the utilitarian aspects," Professor Nimmer queries whether that requires physical as distinguished from conceptual separability, but answers his query by saying "[t]here is reason to conclude that it does not." See 1 Nimmer on Copyright § 2.08[B] at 2-96.1. In any event, in Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir.1980), this court accepted the idea that copyrightability can adhere in the "conceptual" separation of an artistic element. Indeed, the court went on to find such conceptual separation in reference to ornate belt buckles that could be and were worn separately as jewelry. Kieselstein-Cord was followed in Norris Industries, Inc. v. International Telephone & Telegraph Corp., 696 F.2d 918, 923-24 (11th Cir.), cert. denied, 464 U.S. 818, 104 S.Ct. 78, 78 L.Ed.2d 89 (1983), although there the court upheld the Register's refusal to register automobile wire wheel covers, finding no "conceptually separable" work of art. See also Transworld Mfg. Corp. v. Al Nyman & Sons, Inc., 95 F.R.D. 95 (D.Del.1982) (finding conceptual separability sufficient to support copyright in denying summary judgment on copyrightability of eyeglass display cases).
In Carol Barnhart Inc. v. Economy Cover Corp., 773 F.2d 411 (2d Cir.1985), a divided panel of this circuit affirmed a district court grant of summary judgment of noncopyrightability of four life-sized, anatomically correct human torso forms. Carol Barnhart distinguished Kieselstein-Cord, but it surely did not overrule it. The distinction made was that the ornamented surfaces of the Kieselstein-Cord belt buckles "were not in any respect required by their utilitarian functions," but the features claimed to be aesthetic or artistic in the Carol Barnhart forms were "inextricably intertwined with the utilitarian feature, the display of clothes." 773 F.2d at 419. But cf. Animal Fair, Inc. v. Amfesco Indus., Inc., 620 F.Supp. 175, 186-88 (D.Minn.1985) (holding bear-paw design conceptually separable from the utilitarian features of a slipper), aff'd mem., 794 F.2d 678 (8th Cir.1986). As Judge Newman's dissent made clear, the Carol Barnhart majority did not dispute "that `conceptual separability' is distinct from `physical separability' and, when present, entitles the creator of a useful article to a copyright on its design." 773 F.2d at 420.
"Conceptual separability" is thus alive and well, at least in this circuit. The problem, however, is determining exactly what it is and how it is to be applied. Judge Newman's illuminating discussion in dissent in Carol Barnhart, see 773 F.2d at 419-24, proposed a test that aesthetic features are conceptually separable if "the article ... stimulate[s] in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function." Id. at 422. This approach has received favorable endorsement by at least one commentator, W. Patry, Latman's The Copyright Law 43-45 (6th ed. 1986), who calls Judge Newman's test the "temporal displacement" test. It is to be distinguished from other possible ways in which conceptual separability can be tested, including whether the primary use is as a utilitarian article as opposed to an artistic work, whether the aesthetic aspects of the work can be said to be "primary," and whether the article is marketable as art, none of which is very satisfactory. But Judge Newman's test was rejected outright by the majority as "a standard so ethereal as to amount to a `nontest' that would be extremely difficult, if not impossible, to administer or apply." 773 F.2d at 419 n. 5.
 Perhaps the differences between the majority and the dissent in Carol Barnhart might have been resolved had they had before them the Denicola article on Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, supra. There, Professor Denicola points out that although the Copyright Act of 1976 was an effort "`to draw as clear a line as possible,'" in truth "there is no line, but merely a spectrum of forms and shapes responsive in varying degrees to utilitarian concerns." 67 Minn.L.Rev. at 741. Denicola argues that "the statutory directive requires a distinction between works of industrial design and works whose origins lie outside the design process, despite the utilitarian environment in which they appear." He views the statutory limitation of copyrightability as "an attempt to identify elements whose form and appearance reflect the unconstrained perspective of the artist," such features not being the product of industrial design. Id. at 742. "Copyrightability, therefore, should turn on the relationship between the proffered work and the process of industrial design." Id. at 741. He suggests that "the dominant characteristic of industrial design is the influence of nonaesthetic, utilitarian concerns" and hence concludes that copyrightability "ultimately should depend on the extent to which the work reflects artistic expression uninhibited by functional considerations." Id. To state the Denicola test in the language of conceptual separability, if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences, conceptual separability exists.
We believe that Professor Denicola's approach provides the best test for conceptual separability and, accordingly, adopt it here for several reasons. First, the approach is consistent with the holdings of our previous cases. In Kieselstein-Cord, for example, the artistic aspects of the belt buckles reflected purely aesthetic choices, independent of the buckles' function, while in Carol Barnhart the distinctive features of the torsos — the accurate anatomical design and the sculpted shirts and collars — showed clearly the influence of functional concerns. Though the torsos bore artistic features, it was evident that the designer incorporated those features to further the usefulness of the torsos as mannequins. Second, the test's emphasis on the influence of utilitarian concerns in the design process may help, as Denicola notes, to "alleviate the de facto discrimination against nonrepresentational art that has regrettably accompanied much of the current analysis." Id. at 745. Finally, and perhaps most importantly, we think Denicola's test will not be too difficult to administer in practice. The work itself will continue to give "mute testimony" of its origins. In addition, the parties will be required to present evidence relating to the design process and the nature of the work, with the trier of fact making the determination  whether the aesthetic design elements are significantly influenced by functional considerations.
Turning now to the facts of this case, we note first that Brandir contends, and its chief owner David Levine testified, that the original design of the RIBBON Rack stemmed from wire sculptures that Levine had created, each formed from one continuous undulating piece of wire. These sculptures were, he said, created and displayed in his home as a means of personal expression, but apparently were never sold or displayed elsewhere. He also created a wire sculpture in the shape of a bicycle and states that he did not give any thought to the utilitarian application of any of his sculptures until he accidentally juxtaposed the bicycle sculpture with one of the self-standing wire sculptures. It was not until November 1978 that Levine seriously began pursuing the utilitarian application of his sculptures, when a friend, G. Duff Bailey, a bicycle buff and author of numerous articles about urban cycling, was at Levine's home and informed him that the sculptures would make excellent bicycle racks, permitting bicycles to be parked under the overloops as well as on top of the underloops. Following this meeting, Levine met several times with Bailey and others, completing the designs for the RIBBON Rack by the use of a vacuum cleaner hose, and submitting his drawings to a fabricator complete with dimensions. The Brandir RIBBON Rack began being nationally advertised and promoted for sale in September 1979.
In November 1982 Levine discovered that another company, Cascade Pacific Lumber Co., was selling a similar product. Thereafter, beginning in December 1982, a copyright notice was placed on all RIBBON Racks before shipment and on December 10, 1982, five copyright applications for registration were submitted to the Copyright Office. The Copyright Office refused registration by letter, stating that the RIBBON Rack did not contain any element that was "capable of independent existence as a copyrightable pictorial, graphic or sculptural work apart from the shape of the useful article." An appeal to the Copyright Office was denied by letter dated March 23, 1983, refusing registration on the above ground and alternatively on the ground that the design lacked originality, consisting of "nothing more than a familiar public domain symbol." In February 1984, after the denial of the second appeal of the examiner's decision, Brandir sent letters to customers enclosing copyright notices to be placed on racks sold prior to December 1982.
Between September 1979 and August 1982 Brandir spent some $38,500 for advertising and promoting the RIBBON Rack, including some 85,000 pieces of promotional literature to architects and landscape architects. Additionally, since October 1982 Brandir has spent some $66,000, including full-, half-, and quarter-page advertisements in architectural magazines such as Landscape Architecture, Progressive Architecture, and Architectural Record, indeed winning an advertising award from Progressive Architecture in January 1983. The RIBBON Rack has been featured in Popular Science, Art and Architecture, and Design 384 magazines, and it won an Industrial Designers Society of America design award in the spring of 1980. In the spring of 1984 the RIBBON Rack was selected from 200 designs to be included among 77 of the designs exhibited at the Katonah Gallery in an exhibition entitled "The Product of Design: An Exploration of the Industrial Design Process," an exhibition that was written up in the New York Times.
Sales of the RIBBON Rack from September 1979 through January 1985 were in excess of $1,367,000. Prior to the time Cascade Pacific began offering for sale its bicycle rack in August 1982, Brandir's sales were $436,000. The price of the RIBBON Rack ranges from $395 up to $2,025 for a stainless steel model and generally depends on the size of the rack, one of the most popular being the RB-7, selling for $485.
Applying Professor Denicola's test to the RIBBON Rack, we find that the rack is not copyrightable. It seems clear that  the form of the rack is influenced in significant measure by utilitarian concerns and thus any aesthetic elements cannot be said to be conceptually separable from the utilitarian elements. This is true even though the sculptures which inspired the RIBBON Rack may well have been — the issue of originality aside — copyrightable.
Brandir argues correctly that a copyrighted work of art does not lose its protected status merely because it subsequently is put to a functional use. The Supreme Court so held in Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954), and Congress specifically intended to accept and codify Mazer in section 101 of the Copyright Act of 1976. See H.R.Rep. No. 1476 at 54-55. The district court thus erred in ruling that, whatever the RIBBON Rack's origins, Brandir's commercialization of the rack disposed of the issue of its copyrightability.
Had Brandir merely adopted one of the existing sculptures as a bicycle rack, neither the application to a utilitarian end nor commercialization of that use would have caused the object to forfeit its copyrighted status. Comparison of the RIBBON Rack with the earlier sculptures, however, reveals that while the rack may have been derived in part from one of more "works of art," it is in its final form essentially a product of industrial design. In creating the RIBBON Rack, the designer has clearly adapted the original aesthetic elements to accommodate and further a utilitarian purpose. These altered design features of the RIBBON Rack, including the spacesaving, open design achieved by widening the upper loops to permit parking under as well as over the rack's curves, the straightened vertical elements that allow in- and above-ground installation of the rack, the ability to fit all types of bicycles and mopeds, and the heavy-gauged tubular construction of rustproof galvanized steel, are all features that combine to make for a safe, secure, and maintenance-free system of parking bicycles and mopeds. Its undulating shape is said in Progressive Architecture, January 1982, to permit double the storage of conventional bicycle racks. Moreover, the rack is manufactured from 2 3/8-inch standard steam pipe that is bent into form, the six-inch radius of the bends evidently resulting from bending the pipe according to a standard formula that yields bends having a radius equal to three times the nominal internal diameter of the pipe.
Brandir argues that its RIBBON Rack can and should be characterized as a sculptural work of art within the minimalist art movement. Minimalist sculpture's most outstanding feature is said to be its clarity and simplicity, in that it often takes the form of geometric shapes, lines, and forms that are pure and free of ornamentation and void of association. As Brandir's expert put it, "The meaning is to be found in, within, around and outside the work of art, allowing the artistic sensation to be experienced as well as intellectualized." People who use Foley Square in New York City see in the form of minimalist art the "Tilted Arc," which is on the plaza at 26 Federal Plaza. Numerous museums have had exhibitions of such art, and the school of minimalist art has many admirers.
It is unnecessary to determine whether to the art world the RIBBON Rack properly would be considered an example of minimalist sculpture. The result under the copyright statute is not changed. Using the test we have adopted, it is not enough that, to paraphrase Judge Newman, the rack may stimulate in the mind of the reasonable observer a concept separate from the bicycle rack concept. While the RIBBON Rack may be worthy of admiration for its aesthetic qualities alone, it remains nonetheless the product of industrial design. Form and function are inextricably intertwined in the rack, its ultimate design being as much the result of utilitarian pressures as aesthetic choices. Indeed, the visually pleasing proportions and symmetricality of the rack represent design changes made in response to functional concerns. Judging from the awards the rack has received, it would seem in fact that Brandir has achieved with the RIBBON Rack the highest goal of modern industrial design, that is, the harmonious fusion of function and aesthetics. Thus there remains no artistic element of the RIBBON  Rack that can be identified as separate and "capable of existing independently, of, the utilitarian aspects of the article." Accordingly, we must affirm on the copyright claim.
As to whether the configuration of Brandir's bicycle rack can be protected under either section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), or New York State unfair competition law, we are reminded that the design of a product itself may function as its packaging or protectable trade dress. See LeSportsac, Inc. v. K mart Corp., 754 F.2d 71, 75 (2d Cir.1985). The district court dismissed Brandir's claims, saying that its analysis of the copyright issue was sufficient to dispose of the Lanham Act and common law claims. The court stated "the design feature of the Ribbon Racks is clearly dictated by the function to be performed, namely, holding up bicycles. If the steam pipes were not bent into the design, but instead remained flat, the bicycles would not stand up, they would fall down." But as Judge Newman noted in his dissent in Carol Barnhart, 773 F.2d at 420 n. 1, the principle of conceptual separability of functional design elements in copyright law is different from the somewhat similar principle of functionality as developed in trademark law. For trademark purposes, he pointed out, a design feature "has been said to be functional if it is `essential to the use or purpose of the article' or `affects the cost or quality of the article.'" Id. (quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 850 n. 10, 102 S.Ct. 2182, 2187 n. 10, 72 L.Ed.2d 606 (1982)); see LeSportsac, Inc. v. K mart Corp., 754 F.2d at 75-76 (trade dress of a product is eligible for protection if it has acquired a secondary meaning and is nonfunctional).
Here, the district court limited its inquiry to determining whether portions of the RIBBON Rack performed the function of a bicycle rack. But the fact that a design feature performs a function does not make it essential to the performance of that function; it is instead the absence of alternative constructions performing the same function that renders the feature functional. Thus, the true test of functionality is not whether the feature in question performs a function, but whether the feature "is dictated by the functions to be performed," Warner Bros. Inc. v. Gay Toys, Inc., 724 F.2d 327, 331 (2d Cir.1983) (quoted in LeSportsac, Inc. v. K mart Corp., 754 F.2d at 76), as evidenced by available alternative constructions. See Metro Kane Imports, Ltd. v. Rowoco, Inc., 618 F.Supp. 273, 275-76 (S.D.N.Y.1985), aff'd mem., 800 F.2d 1128 (2d Cir.1986) (finding high-tech design of orange juice squeezer not dictated by function to be performed as there was no evidence that design permitted juicer to be manufactured at lower price or with altered performance). There are numerous alternative bicycle rack constructions. The nature, price, and utility of these constructions are material issues of fact not suitable for determination by summary judgment. For example, while it is true that the materials used by Brandir are standard-size pipes, we have no way of knowing whether the particular size and weight of the pipes used is the best, the most economical, or the only available size and weight pipe in the marketplace. We would rather think the opposite might be the case. So, too, with the dimension of the bends being dictated by a standard formula corresponding to the pipe size; it could be that there are many standard radii and that the particular radius of Brandir's RIBBON Rack actually required new tooling. This issue of functionality on remand should be viewed in terms of bicycle racks generally and not one-piece undulating bicycle racks specifically. See id. at 330-32; see also In re DC Comics, Inc., 689 F.2d 1042, 1045 (C.C.P.A.1982) (dolls generally and not Superman dolls are the class by  which functionality is determined). We reverse and remand as to the trademark and unfair competition claims.
Judgment affirmed as to the copyright claim; reversed and remanded as to the trademark and unfair competition claims.
Although I concur in the reversal of the district court's grant of summary judgment on the trademark and unfair competition claims, I respectfully dissent from the majority's discussion and disposition of the copyright claim.
My colleagues, applying an adaptation of Professor Denicola's test, hold that the aesthetic elements of the design of a useful article are not conceptually separable from  its utilitarian aspects if "[f]orm and function are inextricably intertwined" in the article, and "its ultimate design [is] as much the result of utilitarian pressures as aesthetic choices." Applying that test to the instant matter, they observe that the dispositive fact is that "in creating the Ribbon Rack, [Levine] has clearly adapted the original aesthetic elements to accommodate and further a utilitarian purpose." (emphasis added). The grounds of my disagreement are that: (1) my colleagues' adaptation of Professor Denicola's test diminishes the statutory concept of "conceptual separability" to the vanishing point; and (2) their focus on the process or sequence followed by the particular designer makes copyright protection depend upon largely fortuitous circumstances concerning the creation of the design in issue.
What distinguishes [the Kieselstein Cord] buckles from the Barnhart forms is that the ornamented surfaces of the buckles were not in any respect required by their utilitarian functions; the artistic and aesthetic features could thus be conceived of as having been added to, or superimposed upon, an otherwise utilitarian article. The unique artistic design was wholly unnecessary to performance of the utilitarian function. In the case of the Barnhart forms, on the other hand, the features claimed to be aesthetic or artistic, e.g., the life-size configuration of the breasts and the width of the shoulders are inextricably intertwined with the utilitarian feature, the display of clothes.
We see in appellant's belt buckles conceptually separable sculptural elements, as apparently have the buckles' wearers who have used them as ornamentation for parts of the body other than the waist.
My colleagues' adaptation of the Denicola test tracks the Carol Barnhart approach, whereas I would adopt that taken in Kieselstein-Cord, which allows for the copyrightability of the aesthetic elements of useful articles even if those elements simultaneously perform utilitarian functions. The latter approach received its fullest elaboration in Judge Newman's dissent in Carol Barnhart, where he explained that "[f]or the [artistic] design features to be `conceptually separate' from the utilitarian aspects of the useful article that embodies the design, the article must stimulate in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function." 773 F.2d at 422 (Newman, J., dissenting).
In other words, the relevant question is whether the design of a useful article, however intertwined with the article's utilitarian aspects, causes an ordinary reasonable observer to perceive an aesthetic concept not related to the article's use. The answer to this question is clear in the instant case because any reasonable observer would easily view the Ribbon Rack as an  ornamental sculpture. Indeed, there is evidence of actual confusion over whether it is strictly ornamental in the refusal of a building manager to accept delivery until assured by the buyer that the Ribbon Rack was in fact a bicycle rack. Moreover, Brandir has received a request to use the Ribbon Rack as environmental sculpture, and has offered testimony of art experts who claim that the Ribbon Rack may be valued solely for its artistic features. As one of those experts observed: "If one were to place a Ribbon Rack on an island without access, or in a park and surround the work with a barrier, ... its status as a work of art would be beyond dispute."
the design of a useful article ... shall be considered a ... sculptural work only if, and only to the extent that, such design incorporates ... sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
17 U.S.C. § 101 (1982) (emphasis added).
I therefore dissent from the decision so far as it relates to copyrightability but concur in its discussion and holding as to the trademark and unfair competition claims.
 Of the United States District Court for the District of Connecticut, sitting by designation.
 The statute also defines "useful article" as one "having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a `useful article.'" 17 U.S.C. § 101.
 Professor Denicola rejects the exclusion of all works created with some utilitarian application in view, for that would not only overturn Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954), on which much of the legislation is based, but also "a host of other eminently sensible decisions, in favor of an intractable factual inquiry of questionable relevance." 67 Minn.L.Rev. at 741. He adds that "[a]ny such categorical approach would also undermine the legislative determination to preserve an artist's ability to exploit utilitarian markets." Id. (citing 17 U.S.C. § 113(a) (1976)).
 We are reminded not only by Judge Gesell in the district court in Esquire, 414 F.Supp. 939, 941 (D.D.C.1976), but by Holmes in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52, 23 S.Ct. 298, 300-01, 47 L.Ed. 460 (1903), by Mazer v. Stein, 347 U.S. at 214, 74 S.Ct. at 468, and by numerous other opinions, that we judges should not let our own view of styles of art interfere with the decisionmaking process in this area. Denicola suggests that the shape of a Mickey Mouse telephone is copyrightable because its form is independent of function, and "[a] telephone shape owing more to Arp, Brancusi, or Moore than Disney may be equally divorced from utilitarian influence." 67 Minn.L.Rev. at 746. This is true, of course, of the artist Christo's "Running Fence," approved (following Professor Nimmer) as an example of conceptual separability in Keiselstein-Cord, 632 F.2d at 993.
 Because the district court viewed the rack as entirely functional, it therefore did not reach the next step of determining whether Brandir's RIBBON Rack had acquired secondary meaning by the time Cascade started to manufacture its bicycle rack.
 Indeed, in addition to the numerous bicycle racks on the market, one may observe trees, awning supports, parking meters, signs, fire plugs, and many other objects used as bicycle racks.
 Indeed, Kieselstein-Cord approved Professor Nimmer's example of Christo's "Running Fence" as an object whose sculptural features were conceptually, but not physically, separable from its utilitarian aspects. 632 F.2d at 993; see 1 Nimmer on Copyright § 2.08[B] at 2-96.1 & n. 112.2 (1987). The fact that the Running Fence's aesthetic features were "inextricably intertwined" with its functional aspects, however, creates doubt as to whether it is a copyrightable "sculptural work" under Carol Barnhart or the instant decision.
 The reasonable observer may be forgiven, however, if he or she does not recognize the Ribbon Rack as an example of minimalist art.
 The Copyright Office held that the Ribbon Rack was not copyrightable because it lacked originality. There may be some merit in that view in light of the Ribbon Rack's use of standard radii. This issue, however, was not raised in defendant's motion for summary judgment, was not addressed by the district court, and is not implicated here.
Original Item: "Brandir Int'l, Inc. v. Cascade Pacific Lumber Co."


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