Loveless, age 56, applied for Disability Insurance Benefits claiming that he could not work because of a shoulder impairment, diabetes, and pancreatitis. An Administrative Law Judge concluded, however, that Loveless could perform light work with restrictions. The Appeals Council and the district court upheld that determination. The Seventh Circuit affirmed, rejecting an argument that the ALJ erred by minimizing the opinion of Loveless’s personal physician and disbelieving his own testimony about the limiting effects of his impairments. The adverse credibility determination was supported by substantial evidence.
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 2235 KEVIN J. LOVELESS, Plaintiff Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant Appellee. ____________________ Appeal from the United States District Court for the Northern District of Indiana, Hammond Division at Lafayette. No. 4:14 cv 36— Joseph S. Van Bokkelen, Judge. ____________________ ARGUED DECEMBER 16, 2015 — DECIDED JANUARY 13, 2016 ____________________ Before MANION, KANNE, and WILLIAMS, Circuit Judges. KANNE, Circuit Judge. Kevin Loveless applied for Disabil ity Insurance Benefits claiming that he could not work be cause of a shoulder impairment, diabetes, and pancreatitis. An Administrative Law Judge concluded, however, that Loveless could perform light work with restrictions. The Appeals Council and the district court upheld that determi 2 No. 15 2235 nation, but Loveless insists that the ALJ erred by minimizing the opinion of his personal physician and disbelieving his own testimony about the limiting effects of his impairments. We reject these contentions. I. BACKGROUND Loveless, who is now 56, has a long work history that in cludes jobs as a warehouse worker, delivery person, restau rant owner, and plumbing supply manager. In 2009 his per sonal physician, Dr. John Cusack, referred Loveless to an or thopedic surgeon, Dr. Peter Torok, because of persistent complaints of pain in his right shoulder that had not re sponded to treatment including steroids, injections, physical therapy, and anti inflammatory medication. Dr. Torok per formed arthroscopic surgery in September 2009 and re moved a bone spur from Loveless’s right shoulder. A later X ray did not show any abnormality, and Loveless returned to his warehouse job around March 2010. Then in July 2010 Loveless complained to Dr. Cusack about “arm numbness,” “low back pain, leg pain from knees up,” “loose stools,” and lethargy. Dr. Cusack’s physical ex amination did not identify a reason for Loveless’s com plaints, but a blood test did show a high glucose level. Af terward, Loveless continued working. In December 2010 he reinjured his right shoulder lifting and throwing heavy bags at work. Dr. Torok diagnosed a torn rotator cuff, and an MRI showed bone degeneration and damage to the cartilage, muscles, and tendons in the right shoulder. Dr. Torok surgically repaired the rotator cuff in February 2011. Two weeks after that operation, Dr. Torok noted after X rays that the incision was healing well and that No. 15 2235 3 Loveless was “doing great.” Loveless continued to regain range of motion with decreasing pain, and by April 2011 he was reporting that his shoulder pain was well controlled and that he could elevate his right arm to 90 degrees. Loveless’s recovery was interrupted later that month when he sought treatment at the emergency room after two days of nausea, vomiting, and abdominal pain. He was ad mitted to the hospital and diagnosed with a number of alco hol related conditions, including alcohol poisoning, alcohol ic pancreatitis, and alcoholic hepatitis. An MRI of his brain showed minimal areas of chronic ruptured or clotted blood vessels but no other abnormality. During his hospitalization Loveless also was diagnosed with Type II diabetes, which requires that he inject insulin daily. Loveless was discharged after 17 days. Two months later, at the end of June 2011, he was referred to a gastroenterologist and reported that he had abstained from alcohol and lost 40 pounds since his hospital ization. Two weeks after that, in mid July, Loveless returned to Dr. Torok, the orthopedic surgeon, seeking an evaluation for long term disability. Dr. Torok concluded that Loveless had not regained full range of motion in his right shoulder, but he noted that Loveless’s recovery had been hindered by his hospitalization. Dr. Torok declined to declare that Loveless had reached maximum medical improvement until he had completed two more months of physical therapy. That same month Loveless also complained to Dr. Cusack about shoul der pain and fatigue, but Dr. Cusack did not detect any issue after examination and recommended that Loveless exercise more. 4 No. 15 2235 By August 2011, physical therapists were noting im provement as Loveless completed exercises with fewer breaks. He reported mowing the lawn with minimal shoul der pain and said he had hung blinds and trimmed low tree limbs. He also was using his right arm to drive except for steering to the right. Swinging a hammer was more difficult, but he could manage a couple of swings with his right hand before switching to both hands. That month Loveless could lift 12 pounds to chest level, but in September he was able to lift 16 pounds to chest level, his shoulder range of motion was within functional limits, and his shoulder strength and endurance had improved. Meanwhile, in mid September 2011, Loveless visited Dr. Cusack complaining of fatigue, weakness, and glucose levels that were up and down, but generally stable. Dr. Cusack did not find anything wrong, however, and rec ommended that Loveless continue monitoring his blood sugar. A few days after that, when Loveless was examined again by Dr. Torok, he could elevate his right arm 160 degrees. Dr. Torok discharged him from treatment and cleared him to work with permanent restrictions against lift ing more than 10 pounds overhead and 20 pounds overall. Two weeks later, though, Loveless instead applied for disa bility benefits, alleging that he had been unable to work since January 2011 because of shoulder surgeries, diabetes, and pancreatitis. A state agency physician, Dr. J.V. Corcoran, reviewed Loveless’s medical records and opined that his use of his right shoulder was limited but he still could perform light work. Dr. Corcoran concluded that Loveless retained use of his right hand and could reach occasionally with his right No. 15 2235 5 arm, but he recommended that Loveless never reach over head with his right arm and that he not crawl or climb lad ders, ropes, and scaffolds. Dr. Corcoran also concurred with the lifting restrictions imposed by Dr. Torok. The Social Se curity Administration then denied Loveless’s application in early November 2011. The following month Loveless complained to Dr. Cusack about frequent falls, numbness in his hands, and pain in his knees and feet. Dr. Cusack ordered another MRI of Love less’s brain, but the results were the same as the MRI eight months earlier. In January 2012, Dr. Torok completed a private insurer’s “physical capabilities evaluation.” He did not limit Love less’s ability to sit, stand, walk, or use his hands and feet for repetitive movements, but Dr. Torok did permanently re strict Loveless from lifting or moving more than 20 pounds. Dr. Torok opined that Loveless could perform light work, which the insurer’s form defines as being capable of fre quently lifting and carrying 10 pounds and occasionally lift ing 20 pounds. In February 2012, another state agency physician, Dr. M. Brill, reviewed Loveless’s file and agreed with Dr. Corcoran’s opinion. The Social Security Administration then denied Loveless’s application on reconsideration. Loveless requested a hearing before an ALJ. Until that hearing his complaints to Dr. Cusack multiplied, with mixed results. In March 2012 he reported pain in his right hand and shoulder, and the doctor concluded that his range of motion in that arm was reduced. Then in May 2012 Loveless com plained of erratic glucose levels, as well as pain in both 6 No. 15 2235 shoulders. This time Dr. Cusack indicated that a physical ex amination had produced normal results. Yet the very next month, in October 2012, the doctor completed another form for Loveless’s private insurer and said—in contrast with Dr. Torok’s opinion from January—that Loveless could walk but was unable to work because of chronic fatigue and pain. Then in November Dr. Cusack’s exam results again were un remarkable after Loveless complained of unstable glucose levels and that “his shoulder is not better,” his “neck hurts,” and he “can’t lift both arms.” Loveless had similar complaints when he next visited Dr. Cusack in January 2013, nine days before he appeared with his lawyer before the ALJ. The doctor’s progress notes from this visit indicate that Loveless “can’t lift” and can only raise his “shoulder” 90 degrees (presumably the right shoul der, but the progress notes do not say). That day Dr. Cusack also completed a “medical assessment” form asserting that Loveless could not lift more than 5 pounds with his right arm, could not stand continuously for more than 15 minutes, and could not sit more than 30 minutes continuously or 90 minutes total during an 8 hour work day. He added that Loveless could not ever climb, crouch, or kneel and only oc casionally could balance, stoop, or crawl. Dr. Cusack further opined that Loveless could not use his hands except for oc casional, simple grasping because of tingling and numbness. Nor could Loveless tolerate, the doctor said, heat, humidity, dust, or fumes, and he could not work around heights or moving machinery. Dr. Cusack opined that it was reasona ble to expect Loveless to require time to lie down and rest during the day to ameliorate the effects of pain and fatigue. He opined that Loveless could be expected to miss, on aver age, two to three days of work per month. No. 15 2235 7 Loveless testified before the ALJ that he was unable to work due to constant aching in his shoulders and neck, dis comfort in his lower back from standing too long, and occa sional tingling and numbness in his feet, fingers, and hands that he attributed to diabetes and varying glucose levels. He testified that turning his head in either direction aggravated his pain and that he could look down for only 5 to 10 minutes. He also testified that he had fallen about 10 times since his hospitalization, but doctors had not determined a reason for those falls. Loveless said he could attend to his personal hygiene but had to sit in the shower. He didn’t as sist with heavier housework like vacuuming, mopping, and sweeping but did try to help his wife with the cooking and laundry. Loveless noted that he used a riding lawn mower to cut the grass, but even that was difficult. He acknowl edged driving to the hearing but said that typically he drives only to medical appointments or to buy gas and groceries. The ALJ asked a vocational expert (“VE”) about jobs for a person of Loveless’s age, education, and work experience who could perform light work that involved no use of the dominant right arm to lift more than 10 pounds overhead; only occasional use of the dominant right arm to reach for ward or overhead; no crawling or climbing of ladders, ropes, or scaffolds; only occasional balancing, stooping, kneeling, or climbing ramps and stairs; and no exposure to uneven terrain, slippery surfaces, or unprotected heights. The VE answered that work as a dealer account investigator, park ing lot cashier, and photofinishing counter clerk was availa ble. The ALJ then directed the VE to assume the same indi vidual but restricted to sedentary work. The VE replied that jobs were available for food checkers, credit card clerks, and, again, photofinishing counter clerks. 8 No. 15 2235 The ALJ assessed Loveless’s claim using the sequential evaluation process, see 20 C.F.R. § 404.1520, and concluded that he was not disabled. The ALJ found, at Step 1, that Loveless was insured through the end of 2015 and hadn’t engaged in substantial gainful activity since his alleged on set; at Step 2, that Loveless suffers from diabetes and degen erative joint disease of the right shoulder, both severe, and alcoholic pancreatitis, though not severe; at Step 3, that these impairments, alone or in combination, did not meet or equal a listed impairment; at Step 4, that Loveless was unable to perform his past relevant work; and, at Step 5, that he could perform other available jobs. For Steps 4 and 5, the ALJ concluded that Loveless had the residual functional capacity to perform light work with limitations: With his right arm he cannot lift overhead more than 10 pounds; with either arm he cannot lift more than 10 pounds frequently or 20 pounds occasionally; he cannot stand, walk, or sit more than 6 hours total in an 8 hour workday; he cannot crawl or climb ladders, ropes, or scaf folds; he can only occasionally reach, balance, stoop, kneel, crouch, or climb ramps and stairs, and he cannot work on uneven terrain, slippery surfaces, or unprotected heights. These restrictions are not as limiting as those recommended in January 2013 by Dr. Cusack, whose opinion, the ALJ rea soned, lacks support in the medical record and thus was en titled to little weight. The ALJ also concluded that several factors undermined Loveless’s testimony concerning the se verity of his impairments, including his daily activities, his routine and conservative medical treatment since 2011, and his earlier reports to physicians that he was experiencing no pain or only minimal pain. The ALJ’s credibility finding in corporates the agency’s standard boilerplate: No. 15 2235 9 After careful consideration of the evidence, the undersigned finds that the claimant’s medical ly determinable impairments could reasonably be expected to cause some of the alleged symp toms; however, his statements concerning the intensity, persistence, and limiting effects of those symptoms are not credible to the extent they are inconsistent with the residual func tional capacity assessment below. The Appeals Council denied review, making the ALJ’s decision the final decision of the Commissioner. See Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015). II. ANALYSIS Loveless first argues that the ALJ should have given con trolling, or at least greater, weight to Dr. Cusack’s opinion from January 2013, since that opinion reflects the doctor’s most recent assessment and, according to Loveless, incorpo rates all of his health issues instead of a narrow subset. Love less also argues that the ALJ ignored the opinion given to the private insurer by Dr. Cusack in October 2012; because that opinion is not discussed, says Loveless, an inference arises that the ALJ may have overlooked other evidence. A treating physician’s opinion is entitled to controlling weight unless it is “inconsistent with the other substantial evidence.” 20 C.F.R. § 404.1527(c)(2); see Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010). In this case, substantial evidence supports the ALJ’s assessment that Dr. Cusack’s Janu ary 2013 opinion contradicts both the objective medical evi dence and Loveless’s own account of his abilities. 10 No. 15 2235 When a treating source’s opinion is not given controlling weight, the ALJ applies other factors in determining what weight to give that opinion. See 20 C.F.R. § 404.1527(c)(2). Loveless contends that Dr. Cusack’s progress notes substan tiate the extensive functional limitations incorporated into his January 2013 opinion. That’s not so; those notes docu ment Loveless’s subjective complaints yet generally reflect negative findings by the physician after physical examina tion. See 20 C.F.R. § 404.1528(a). Here, the ALJ properly dis counted Dr. Cusack’s medical opinion that rests entirely on the claimant’s subjective complaints. See 20 C.F.R. § 404.1527(c)(3); Bates v. Colvin, 736 F.3d 1093, 1100 (7th Cir. 2013); Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012). The ALJ also properly discounted Dr. Cusack’s opinion due to lack of consistency. See 20 C.F.R. § 404.1527(c)(4). As for Dr. Cusack’s October 2012 opinion, Loveless pre sumes that the doctor gave a “medical” opinion, but the So cial Security Administration defines medical opinions as “statements from physicians and psychologists or other ac ceptable medical sources that reflect judgments about the nature and severity” of a claimant’s impairments, including the claimant’s symptoms, diagnosis, prognosis, physical and mental restrictions, and residual functional capacity. 20 C.F.R. § 404.1527(a)(2); Gayheart v. Comm r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013). Omitted from this definition are opinions about a claimant’s ability to work, a question the regulation reserves for the Commissioner. See 20 C.F.R. § 404.1527(d)(1); Johansen v. Barnhart, 314 F.3d 283, 287–88 (7th Cir. 2002). Thus, the ALJ did not have to accept Dr. Cusack’s October 2012 conclusory statement that Love less could not work. The ALJ needed only to weigh Dr. Cusack’s assessments about the nature and severity of No. 15 2235 11 Loveless’s impairments, which he did. Additionally, an ALJ is not required to list each document he considered, but must only weigh the relevant evidence. McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011); Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Here the ALJ discussed and evaluated the progress notes and opinions of Dr. Cusack, Dr. Torok, and Dr. Corcoran, as well as Loveless’s testimony, as rele vant evidence in assessing the claimant’s capacity to work. Loveless next challenges the ALJ’s use of language rou tinely criticized by this court as “meaningless boilerplate.” See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010); see also Bjornson v. Astrue, 671 F.3d 640, 644–45 (7th Cir. 2012); Martinez v. Astrue, 630 F.3d 693, 696 (7th Cir. 2011). Loveless argues that the language is faulty and represents forbidden backward analysis requiring remand. But the use of boilerplate is not a ground to remand if the ALJ justified his credibility assessment based on the evidence. Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014); Pepper v. Colvin, 712 F.3d 351, 367–68 (7th Cir. 2013). And here, although ac knowledging Loveless’s testimony that he could not work, the ALJ reasoned that this contention was contradicted by the claimant’s activities of daily living, his routine and con servative medical treatment since 2011, and many earlier re ports of minimal or no pain. Loveless insists, though, that the ALJ improperly over emphasized his daily activities. As Loveless correctly notes, we have criticized ALJs for equating activities of daily living with an ability to work. See Bjornson, 671 F.3d at 647; Spiva v. Astrue, 628 F.3d 346, 352 (7th Cir. 2010). But the ALJ did not do this. Rather, the ALJ considered Loveless’s description of his daily activities in assessing whether his testimony about 12 No. 15 2235 the effects of his impairments was credible or exaggerated. See 20 C.F.R. § 404.1529(c)(3)(i) (explaining that agency will consider daily activities in evaluating severity of claimant’s symptoms); SSR 96 7P, 1996 WL 374186, at *3 (directing ALJ to consider daily activities in determining credibility of claimant’s statements about symptoms); Pepper, 712 F.3d at 369 (agreeing with ALJ’s reasoning that claimant’s daily activities undermined her testimony about extent of her symptoms). For example the ALJ considered Loveless’s abil ity to perform light household chores, drive a car, and shop for groceries. Moreover, the ALJ explicitly acknowledged that Loveless’s ability to engage in these daily activities was not conclusive proof that he was able to sustain full time work but instead was one factor that weighed against his ac count of disabling limitations. Loveless also contends that the ALJ failed to give weight to his significant work history. We recently observed that a “claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability.” Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015) (quoting Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983)); see Singletary v. Sec’y of Health, Educ. and Welfare, 623 F.2d 217, 219 (2d Cir. 1980) (explaining that claimant’s history of performing demanding work over long hours “justifies the inference that when he stopped working he did so for the reasons he testified to”); Allen v. Califano, 613 F.2d 139, 147 (6th Cir. 1980) (claimant’s significant work history “demon strated a considerable inclination toward employment”). But work history is just one factor among many, and it is not dispositive. See Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998). And here the ALJ’s silence is not enough to No. 15 2235 13 negate the substantial evidence supporting the adverse cred ibility finding. Finally, Loveless argues that the ALJ erred by not incor porating the limiting effects of his diabetes and hand im pairments into the assessment of his residual functional ca pacity. But the ALJ did consider the limited evidence Love less presented—the diabetes diagnosis, MRIs, glucose levels, and subjective complaints—and added balancing and ma nipulation restrictions. Loveless does not identify medical evidence that would justify further restrictions. III. CONCLUSION The ALJ’s decision is supported by substantial evidence. Accordingly, the district court’s judgment is affirmed.


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(i) To order or accept delivery of any recreational product, motor vehicle or vehicles, appliances, equipment, parts or accessories therefor, or any other commodity or commodities which shall not have been voluntarily ordered.
(ii) To order or accept delivery of any vehicle with special features, appliances, accessories, or equipment not included in the list price of said vehicles as publicly advertised.
(iii) To order for any person any parts, accessories, equipment, machinery, tools, appliances, or any commodity whatsoever.
(iv) To assent to a release, assignment, novation, waiver, or estoppel which would relieve any person from liability to be imposed by law, unless done in connection with a settlement agreement to resolve a matter pending a commission hearing or pending litigation between a manufacturer, distributor, wholesaler, distributor branch or factory branch, or officer, agent, or other representative thereof.
(v) To enter into a franchise with a licensee or during the franchise term, use any written instrument, agreement, release, assignment, novation, estoppel, or waiver, to attempt to nullify or modify any provision of this Chapter, or to require any controversy between a dealer and a manufacturer to be referred to any person or entity other than the commission, or duly constituted courts of this state or the United States, if such referral would be binding upon the dealer. Such instruments are null and void, unless done in connection with a settlement agreement to resolve a matter pending a commission hearing or pending litigation.
(vi) To waive the right to a jury trial.
(vii) To participate in an advertising group or to participate monetarily in an advertising campaign or contest or to purchase any promotional materials, showroom, or other display decorations or materials at the expense of such motor vehicle dealer or specialty dealer.
(aa) It was designed by experts.
(bb) The proper universe was examined.
(cc) A representative sample was chosen.
(dd) The data was accurately reported.
(ix) To release, convey, or otherwise provide customer information, if to do so is unlawful or if the customer objects in writing. This does not include information that is necessary for the manufacturer to meet its obligations to the dealer or consumers in regard to contractual responsibilities, vehicle recalls, or other requirements imposed by state or federal law. The manufacturer is further prohibited from providing any consumer information received from the dealer to any unaffiliated third party.
(x) To pay the attorney fees of the manufacturer or distributor related to hearings and appeals brought under this Chapter.
(b) To refuse to deliver to any licensee having a franchise or contractual arrangement for the retail sale of vehicles sold or distributed by such manufacturer, distributor, wholesaler, distributor branch or factory branch, any motor vehicle, publicly advertised for immediate delivery, within sixty days after such dealer's order shall have been received.
(c) To threaten to cancel any franchise or any contractual agreement existing between such manufacturer, distributor, wholesaler, distributor branch or factory branch and said dealer for any reason including but not limited to failure to meet performance standards.
(d) To unfairly, without just cause and due regard to the equities of such dealer, cancel the franchise of any licensee. Failure to meet performance standards based on a survey of sales penetration in a regional, national, territorial, or other geographic area shall not be the sole cause for cancellation of a franchise. The nonrenewal of a franchise or selling agreement with such dealer or his successor without just provocation or cause, or the refusal to approve a qualified transferee or qualified successor to the dealer-operator as provided for in the franchise or selling agreement, or solely for failure to meet performance standards based on a survey of sales penetration in a regional, national, territorial, or other geographic area, shall be deemed an evasion of this Paragraph and shall constitute an unfair cancellation, regardless of the terms or provisions of such franchise or selling agreement. However, at least ninety-days notice shall be given to the dealer of any cancellation or nonrenewal of a franchise except for a cancellation arising out of the financial default of the motor vehicle dealer or fraudulent activity of the dealer principal which results in the conviction of a crime punishable by imprisonment. The provisions of this Subsection relating to performance standards shall not apply to recreational products dealers.
(e) To refuse to extend to a licensee the privilege of determining the mode or manner of available transportation facility that such dealer desires to be used or employed in making deliveries of vehicles to him or it.
(f) To resort to or use any false or misleading advertisement in connection with his business as such manufacturer of motor vehicles, distributor, wholesaler, distributor branch or factory branch, or officer, agent, or other representative thereof.
(g) To delay, refuse, or fail to deliver motor vehicles in reasonable quantities relative to the licensee's facilities and sales potential in the relevant market area. This Subparagraph shall not be valid, however, if such failure is caused by acts or causes beyond the control of the manufacturer, distributor, or other such party.
(h) To ship or sell motor vehicles or recreational products to a licensee prior to the licensee having been granted a license by the commission to sell such vehicles.
(i) To unreasonably withhold consent to the sale, transfer, or exchange of the franchise to a qualified transferee capable of being licensed as a dealer in this state, provided the transferee meets the criteria generally applied by the manufacturer in approving new dealers and agrees to be bound by all the terms and conditions of the standard franchises.
(j) To fail to respond in writing to a written request for consent as specified in Subparagraph (i) of this Paragraph within sixty days of receipt of a written request on the forms, if any, generally utilized by the manufacturer or distributor for such purposes and containing the information required therein. Failure to respond shall be deemed to be consent to the request.
(aa) Operating an existing, licensed, and franchised motor vehicle dealership for a reasonable period, not to exceed two years.
(bb) Operating an existing, licensed, and franchised motor vehicle dealership which is for sale to any qualified independent person at a fair and reasonable price, not to exceed two years.
(cc) Operating in a bona fide relationship in which a person independent of a manufacturer has made a significant investment subject to loss in the dealership, and can reasonably expect to acquire full ownership of such dealership on reasonable terms and conditions.
(ii) After any of the conditions have been met under Subitems (aa) and (bb) of Item (i) of this Subparagraph, the commission may allow the manufacturer to continue operating an existing, licensed, and franchised motor vehicle dealership for longer than two years when, in the discretion of the commission, the best interest of the manufacturer, consuming public, and licensees are best served.
(l) To condition the renewal or extension of a franchise on a new motor vehicle dealer's substantial renovation of the dealer's place of business or on the construction, purchase, acquisition, or rental of a new place of business by the new motor vehicle dealer, unless the manufacturer has advised the new motor vehicle dealer in writing of its intent to impose such a condition within a reasonable time prior to the effective date of the proposed date of renewal or extension, but in no case less than one hundred eighty days, and provided the manufacturer demonstrates the need for such demand in view of the need to service the public and the economic conditions existing in the motor vehicle industry at the time such action would be required of the new motor vehicle dealer. As part of any such condition the manufacturer shall agree, in writing, to supply the dealer with an adequate supply and marketable model mix of motor vehicles to meet the sales levels necessary to support the increased overhead incurred by the dealer by reason of such renovation, construction, purchase, or rental of a new place of business.
(m) To fail to compensate its dealers for the work and services they are required to perform in connection with the dealer's delivery and preparation obligations according to the terms of compensation. The commission shall find the compensation to be reasonable or the manufacturer shall remedy any deficiencies.
(n) To fail to designate and provide to the commission in writing either the community or territory assigned to a licensee. The provisions of this Subparagraph shall not apply to trailers.
(o) To fail or refuse to sell or offer to sell to all motor vehicle franchisees in a line make, every motor vehicle sold or offered for sale under a franchise to any motor vehicle franchisee of the same-line make, or to unreasonably require a motor vehicle dealer to pay an extra fee, purchase unreasonable advertising displays or any other materials, or to remodel, renovate, or recondition its existing facilities as a prerequisite to receiving a certain model or series of vehicles. However, the failure to deliver any such motor vehicle shall not be considered a violation of this Section if the failure is due to a lack of manufacturing capacity or to a strike or labor difficulty, a shortage of materials, a freight embargo or other cause of which the franchisor has no control. This Subparagraph shall not apply to recreational product manufacturers.
(p) To unreasonably discriminate among competing, similarly situated, same-line make dealers in the sales of vehicles, in the availability of such vehicles, in the terms of incentive programs or sales promotion plans, or in other similar programs.
(q) To terminate, cancel, or refuse to continue any franchise agreement based upon the fact that the motor vehicle dealer owns, has an investment in, participates in the management, or holds a franchise agreement for the sale or service of another make or line of new motor vehicles at a different dealership location, or intends to or has established another make or line of new motor vehicles in the same dealership facilities of the manufacturer or distributor.
(r) To demand compliance with facilities requirements that include any requirements that a motor vehicle dealer establish or maintain exclusive office, parts, service or body shop facilities, unless the requirements would be reasonable and justified by business considerations. The burden of proving that the requirements are reasonable and justified by business considerations is on the manufacturer. If the franchise agreement of the manufacturer or distributor requires the approval of the manufacturer or distributor for facility uses or modifications, the manufacturer or distributor shall approve or disapprove such a request in writing within sixty days of receipt of such request.
(s) To use any subsidiary, affiliate, or any other controlled person or entity, or to employ the services of a third party, to accomplish what would otherwise be illegal conduct under this Chapter on the part of the manufacturer or distributor.
(t)(i) To operate a satellite warranty and repair center, to authorize a person to perform warranty repairs, including emergency repairs, who is not a motor vehicle dealer, fleet owner, or an emergency services company or emergency services related company, or to authorize a motor vehicle dealer to operate a satellite warranty and repair center within the community or territory of a same-line or make motor vehicle dealer. This Subparagraph shall not apply to recreational product manufacturers. For the purposes of this Subparagraph, "fleet owner" means a person, including a governmental entity, who is approved and authorized by a manufacturer to perform warranty repairs and owns or leases vehicles for its own use or a renting or leasing company that rents, maintains, or leases vehicles to a third party. For the purposes of this Subparagraph, "emergency services company or emergency services related company" means a person who operates any vehicle designated and authorized to respond to an emergency. An emergency vehicle includes but is not limited to police and security vehicles, fire and rescue vehicles, medical vehicles, and civil emergency vehicles, including public utility crews dealing with gas, electricity, or water, or the repair of defective equipment on a scene.
(ii) The manufacturer may authorize a fleet owner to perform warranty repairs if the manufacturer determines that the fleet owner has the same basic level of requirements for special tools, technician certification, and training that are required of a franchise dealer but only those as determined by the manufacturer, in its sole discretion, that are necessary to perform the specified limited type of warranty repairs on the makes and models of motor vehicles for which the fleet owner is authorized to perform warranty repairs.
(iii) A manufacturer who authorizes a fleet owner to perform warranty repairs shall give notification of the authorization to the dealer located in the same area of responsibility where the fleet owner intends to perform the authorized warranty repairs.
(iv) The provisions of Items (ii) and (iii) of this Subparagraph shall not apply to manufacturers who authorize fleet owners whose commercial vehicles are used for the movement of property, freight, or goods in intrastate or interstate commerce.
(v) The commission has no authority over a fleet owner or an emergency services company or emergency services related company with respect to the requirements of this Subparagraph.
(vi) A repair facility of a fleet owner authorized pursuant to this Subparagraph to perform warranty repairs shall not be deemed a satellite warranty and repair center as defined in R.S. 32:1252 and shall not be required to be licensed by the commission pursuant to R.S. 32:1254.
(u) To make a change in the area of responsibility described in the franchise agreement or sales and service agreement of a dealer, without the franchisor, converter, or manufacturer giving said dealer and the commission no less than sixty days prior written notice by certified or registered mail.
(v) To attempt to induce or coerce, or to induce or coerce, any motor vehicle dealer to enter into any agreement with such manufacturer, distributor, wholesaler, distributor branch or factory branch or representative thereof, or to do any other act unfair to said dealer.
(aa) By any statement, promise, or threat that the manufacturer or distributor will in any manner benefit or injure the dealer, whether the statement, suggestion, threat, or promise is express or implied or made directly or indirectly.
(bb) By any act that will benefit or injure the dealer.
(cc) By any contract, or any express or implied offer of contract, made directly or indirectly to the dealer, for handling the motor vehicle on the condition that the dealer shall offer to sell or sell any extended service contract or extended maintenance plan offered, sold, backed by, or sponsored by the manufacturer or distributor or that the dealer sell, assign, or transfer his retail installment sales contract on or lease of the vehicle, to a specified finance company or class of finance companies, leasing company or class of leasing companies, or to any other specified person.
(dd) Any such statements, threats, promises, acts, contracts, or offers of contracts, when their effect may be to lessen or eliminate competition.
(ii) Nothing contained in this Subparagraph shall prohibit a manufacturer or distributor from offering or providing incentive benefits or bonus programs to a retail motor vehicle dealer or prospective retail motor vehicle dealer who makes the voluntary decision to offer to sell or sell any extended service contract or extended maintenance plan offered, sold, backed, or sponsored by the manufacturer or distributor or to sell, assign, or transfer any retail installment sale or lease by him of motor vehicles manufactured or sold by the manufacturer or distributor to a specified finance company or leasing company.
(x) To charge back, deny vehicle allocation, withhold payments, or take any other adverse actions against a motor vehicle dealer because of a sale of a new motor vehicle that is exported from the United States, unless it is shown that the dealer knew or reasonably should have known on the date of the sale that the new motor vehicle was to be exported. A motor vehicle dealer shall be rebuttably presumed to have no knowledge of the export if the motor vehicle is sold by the dealer to a resident of the United States who titles and registers the motor vehicle in any state within the United States.
(y) To disqualify a manufacturer's sales or service satisfaction survey that pertains to a dealership employee's personal motor vehicle or specialty vehicle solely because it was mailed or communicated electronically from a dealership.
(a) To require a purchaser of a vehicle, as a condition of sale and delivery thereof, to also purchase special features, appliances, accessories, or equipment not desired or requested by the purchaser; however, this prohibition shall not apply as to special features, appliances, accessories, or equipment which are permanently affixed to the vehicle.
(b) To represent and sell as a new vehicle any vehicle, the legal title of which has been transferred by a manufacturer, distributor, or dealer to an ultimate purchaser.
(c) To resort to or use any false or misleading advertisement in connection with his business as such vehicle dealer or motor vehicle salesman.
(d) To sell or offer to sell makes, models, or classifications of new vehicles for which no franchise and license to sell is held.
(e) Except as otherwise approved by the commission, to sell or offer to sell a vehicle from an unlicensed location.
(i) That if the sale is not concluded by the financing of the sale to the purchaser within twenty-five days of the delivery, the sale contract shall be null and void.
(ii) That the vehicle being offered for trade-in by the purchaser shall not be sold by the dealer until the conditional sale is complete.
(iii) That there shall be no charge to the purchaser should the conditional sale not be completed, including but not limited to mileage charges or charges to refurbish the vehicle offered for trade-in. However, the purchaser shall be responsible for any and all damages to the vehicle or other vehicles damaged by the fault of the purchaser and any and all liability incurred by the purchaser during the purchaser's custody of the vehicle to the extent provided for in R.S. 22:1296.
(iv) That if the conditional sale is not completed, the dealer shall immediately refund to the purchaser upon return of the vehicle all sums placed with the dealership as a deposit or any other purpose associated with the attempted sale of the vehicle.
(v) That the prospective purchaser shall return the vehicle to the dealership within forty-eight hours of notification by the dealer that the conditional sale will not be completed. If the prospective purchaser does not return the vehicle to the dealership within forty-eight hours of notification by the dealer, an authorized agent of the dealer shall have the right to recover the vehicle without the necessity of judicial process, provided that such recovery can be accomplished without unauthorized entry into a closed dwelling, whether locked or unlocked and without a breach of peace.
(g) To pay a fee to any person in return for the solicitation, procurement, or production by that person of prospective purchasers for new and used vehicles, except to a salesman licensed under the provisions of this Chapter.
(h) To fail to fully and completely explain each charge listed on a retail buyer's order or vehicle invoice prior to the purchase of a vehicle.
(i) When selling a vehicle to a consumer, to assess any consumer services fees, which shall include fees for treating the interior upholstery of the vehicle, oil changes, roadside assistance, dealer inspections, or any other service offered by the dealer, without allowing the buyer to refuse such services and be exempt from payment for such services. The provisions of this Subparagraph shall not apply to dealer-added options or accessories which are permanently affixed to the vehicle.
(j) To fail to disclose to a purchaser, in writing, which components of a specialty vehicle are subject to a manufacturer's or distributor's warranty agreement and which components are subject to a specialty vehicle dealer's or other warranty agreement. The specialty vehicle dealer shall identify in writing the location of the two nearest authorized manufacturer or distributor warranty service providers. School bus warranty repair work, except for engine and transmission repair work, may also be performed by repair facilities, authorized by the manufacturer or distributor, which are not school bus dealers. Further, nothing in this Chapter shall prohibit a manufacturer of school buses licensed by the Louisiana Motor Vehicle Commission from authorizing warranty and other repair or maintenance services to be performed at any location of a motor vehicle dealer licensed under this Chapter which holds a franchise from any affiliate or subsidiary of the school bus manufacturer.
(k)(i) To fail to disclose to a purchaser in writing on the sales contract, buyer's order, or any other document that the dealer may be participating in finance charges associated with the sale.
(ii) To participate in a finance charge that would result in a difference between the buy rate and the contract rate of more than three percentage points.
(iii) The provisions of this Subparagraph shall apply only to transactions subject to the Louisiana Motor Vehicle Sales Finance Act.
(a) To represent and sell as a new vehicle any vehicle which has been used or intended to be used and operated for leasing and rental purposes.
(b) To resort to or use any false or misleading advertising in connection with the business of leasing or renting vehicles.
(c) To lease, rent, sell, or offer to sell a vehicle from a location not licensed for such activity.
(d) To rent or lease any vehicle which has been located within this state for a period of thirty days or more, unless such vehicle has been issued a Louisiana license plate by, and all license fees and taxes have been paid to, this state.
(e) To pay a fee to any person in return for the solicitation, procurement, or production by that person of prospective lessees of vehicles, unless the person receiving the fee is a lease facilitator who holds a valid license as provided by this Chapter and a valid appointment from the motor vehicle lessor as provided by R.S. 32:1266(B)(1). The fees prohibited by this Subparagraph shall not include amounts paid to a dealer as part of the consideration for the sale or assignment of a lease or leased vehicle or other amounts paid to the dealer who transfers the title on the vehicle or assigns the lease contract to the motor vehicle lessor.
(f) To fail to fully and completely explain each charge listed on a retail buyer's or lessee's order or vehicle invoice or leasing agreement prior to the lease of a vehicle.
(g) When leasing a vehicle to a consumer, to assess any consumer services fees, which shall include fees for treating the interior upholstery of the vehicle, oil changes, roadside assistance, dealer inspections, or any other service offered by the motor vehicle lessor, without allowing the consumer to refuse such services and be exempt from payment for such services. The provisions of this Subparagraph shall not apply to motor vehicle lessor-added options or accessories which are permanently affixed to the vehicle.
(a) To hold himself out to any person as a "leasing company", "leasing agent", "lease facilitator", or similar title, directly or indirectly engaged in the business of a lease facilitator, or otherwise engaged in the solicitation or procurement of prospective lessees for vehicles not titled in the name of and registered to the lease facilitator, without holding a valid lease facilitator license and being in compliance with the terms of this Chapter.
(b) To sell or offer to sell a new vehicle.
(c) To accept a fee from a dealer or consumer.
(d) To sign a vehicle manufacturer's statement of origin to a vehicle, accept an assignment of a manufacturer's statement of origin to a vehicle, or otherwise assume any element of title to a new vehicle.
(e) To procure or solicit prospective lessees for or on behalf of any person other than a motor vehicle lessor.
(f) To act in the capacity of or engage in the business of a lease facilitator without a valid appointment from a motor vehicle lessor to act on behalf of the motor vehicle lessor in soliciting prospective lease clients or customers as provided by this Chapter.
(a) To hold himself out to any person as a "broker", "purchasing company", "sales agent", or similar title, engaged in the business of broker, or otherwise engaged in the solicitation or procurement of prospective purchasers for vehicles not titled in the name of and registered to the broker, unless the broker holds a valid broker license and is in compliance with the terms of this Chapter.
(b) To sell, or offer to sell, or display a new vehicle.
(c) To be paid a fee by a dealer.
(e) To act in the capacity of or engage in the business of a broker without a valid license issued as provided by this Chapter and a valid appointment from a motor vehicle lessor to act on behalf of the motor vehicle lessor in soliciting prospective lease clients or customers as provided by this Chapter.
(i) Any consumer entering into the brokering agreement. The completed copy shall be provided prior to the consumer's signing an agreement for the purchase of the vehicle described in the brokering agreement, or, prior to accepting one hundred dollars or more from that consumer, whichever comes first.
(ii) The selling dealer. The completed copy shall be provided prior to the selling dealer's entering into a purchase agreement with the consumer at the time of delivery.
(g) To accept a purchase deposit from any consumer that exceeds two point five percent of the selling price of the vehicle described in the brokering agreement.
(h) To fail to refund any purchase money, including purchase deposits, upon demand by a consumer at any time prior to the consumer's signing a vehicle purchase agreement with a selling dealer of the vehicle described in the brokering agreement.
(i) When the final price of the brokered vehicle exceeds the purchase price listed in the brokering agreement.
(ii) When the vehicle delivered is not as described in the brokering agreement.
(iii) When the brokering agreement expires prior to the customer's being presented with a purchase agreement from a selling dealer arranged through the brokering dealer that contains a purchase price at or below the price listed in the brokering agreement.
(j) To act as a seller and provide brokering services, both in the same transaction.
(k) To fail to disclose to the consumer the dollar amount of any fee that the consumer is obligated to pay to the broker. This arrangement shall be confirmed in a brokering agreement.
(l) To fail to maintain, for a minimum of three years, a copy of the executed brokering agreement and other notices and documents related to each brokered transaction.
(m) To fail to advise the consumer, prior to accepting any money, that a full refund will be given if the motor vehicle ordered through the broker is not obtained for the consumer.
(a) To modify a franchise during the term of the agreement or upon its renewal if the modification substantially and adversely affects the franchisee's rights, obligations, investment, or return on investment without giving sixty days written notice of the proposed modification to the licensee and the commission which includes the grounds upon which the modification is based, unless the modification is required by law, court order, or the commission. Within the sixty day notice period the licensee may file with the commission a complaint for a determination whether there is good cause for permitting the proposed modification. The party seeking to modify or replace an agreement shall demonstrate by a preponderance of the evidence that there is good cause for the modification or replacement. The commission shall schedule a hearing within sixty days to decide the matter. Multiple complaints pertaining to the same proposed modifications shall be consolidated for hearing. The proposed modification may not take effect pending the determination of the matter.
(i) The reasons for the proposed modification.
(ii) Whether the proposed modification is applied to or affects all licensees in a nondiscriminating manner.
(iii) The degree to which the proposed modification will have a substantial and adverse effect upon the licensee's investment or return on investment.
(iv) Whether the proposed modification is in the public interest.
(v) The degree to which the proposed modification is necessary to the orderly and profitable distribution of vehicles and other services by the licensee.
(vi) Whether the proposed modification is offset by other modifications beneficial to the licensee.
(c) The decision of the commission shall be in writing and shall contain findings of fact and a determination of whether there is good cause for permitting the proposed modification. The commission shall deliver copies of the decision to the parties personally or by registered mail.
(7) For any employee of a licensee while acting in the scope of his employment, to accept any payment, commission, fee, or compensation of any kind from any person other than the employing licensee, unless such payment is fully disclosed to and approved by the employing licensee.
B. The provisions of this Section shall not apply to a dealer, manufacturer, distributor, wholesaler, distributor branch, factory branch, or convertor of marine products, motorcycles or all-terrain vehicles, or recreational vehicles, or any officer, agent, or other representative thereof.
Acts 1999, No. 1084, §1; Acts 2005, No. 121, §1; Acts 2005, No. 500, §1, eff. July 12, 2005; Acts 2007, No. 27, §1, eff. June 18, 2007; Acts 2007, No. 170, §1, eff. June 27, 2007; Acts 2008, No. 415, §2, eff. Jan. 1, 2009; Acts 2008, No. 483, §1; Acts 2009, No. 403, §1, eff. July 7, 2009; Acts 2010, No. 1036, §1; Acts 2011, No. 89, §1; Acts 2012, No. 150, §1; Acts 2012, No. 326, §1; Acts 2013, No. 61, §1; Acts 2014, No. 770, §1; Acts 2015, No. 170, §1; Acts 2015, No. 435, §1; Acts 2016, No. 530, §1; Acts 2017, No. 45, §1, eff. June 3, 2017.

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A Chapter 7 case begins with the debtor’s filing of the petition with the bankruptcy court, which triggers the automatic stay — bankruptcy terminology for the termination of debt-collection activity. Filing a petition does not stay certain types of actions, and the stay may only be in place for a limited period of time. As long as the automatic stay is in place, creditors may not initiate or continue lawsuits against the debtor, garnish wages or call the debtor demanding payments.
The court appoints a trustee who oversees the Chapter 7 case and liquidates the debtor’s assets in order to pay off the debts. In many cases, however, the debtor’s assets are exempt or already subject to valid liens, so there will be no assets to liquidate. Most consumer bankruptcies are “no asset” cases in which there is nothing available for the creditors. The trustee can also try to recover money for the estate under the trustee’s “avoiding powers.” These powers include the power to set aside preferential transfers to creditors within 90 days of filing; undo security interests and pre-petition transfers that were not properly perfected; and pursue fraudulent conveyance and bulk transfer claims under state law. 11 U.S.C. § 544. If there are assets, the trustee collects the sale proceeds in a fund from which the debts are paid to the extent possible. Under section 726 of the Bankruptcy Code, property is distributed according to six classes of claims; each class must be paid in full before creditors in the next lower class are paid anything.
The trustee holds a meeting of creditors “[w]ithin a reasonable time” after the debtor files the petition. 11 U.S.C. § 341(a). During this meeting, the trustee and creditors may ask the debtor, who is under oath, questions. The debtor must attend the meeting of creditors and answer questions about his or her property and financial matters. 11 U.S.C. § 343.
When all of the proceeds are distributed, most remaining unpaid debts are discharged, meaning that they no longer exist and the debtor has no further obligation to pay them. Some debts, such as student loans, damages resulting from the debtor’s willful or malicious acts, debts incurred by giving false financial information, domestic support obligations and some debts incurred just prior to filing for bankruptcy, are non-dischargeable. 11 U.S.C. § 523. A court may deny a discharge if the debtor failed to keep or produce financial records; failed to satisfactorily explain any loss of assets; committed perjury; failed to follow an order of the court; fraudulently transferred or hid property; or failed to complete the required financial management course.
Most Chapter 7 bankruptcy cases are filed by the debtor and are thus considered “voluntary bankruptcies.” Not all bankruptcy proceedings are voluntary, however. Under Chapter 7, creditors have the option of filing for relief against the debtor, in which case the proceeding is called an “involuntary bankruptcy.” Involuntary bankruptcies are allowed only when certain minimum thresholds are met; for instance, there must be a minimum number of creditors and a minimum amount of debt. 11 U.S.C. § 303. The debtor has the right to file a response to an involuntary petition, after which the court will determine whether the creditors are actually entitled to relief. If the court dismisses an involuntary bankruptcy filing because it has no merit, the creditors may be ordered to pay the debtor’s reasonable attorneys fees, damages for any losses the debtor experienced because of the bankruptcy and even punitive damages to punish the creditors for the frivolous or abusive filing of a petition. 11 U.S.C. § 303(i).
A bankruptcy lawyer can help debtors overcome obstacles to the repayment of debt. Because the Bankruptcy Code affords various forms of relief, including liquidation under Chapter 7, it is recommended that you seek the advice of a lawyer before making major financial and legal decisions. Call today to schedule a consultation with a bankruptcy attorney to discuss your options.


In order to remedy such pathological results in health rights litigation, an FCGH must articulate functional remedies for violations of the right to health by state or non-state actors. This paper analyzes one approach to ensuring the recognition of the rights defended in a future FCGH. Following the incremental development approach inspired by the architecture of other successful framework convention protocols, we propose the inclusion of access to health justice guidelines in an FCGH.8 This proposal is based on the amparo remedy, a figure already extant in the legislation of several Latin American countries. There are many advantages to broadly incorporated guidelines based on the amparo remedy, and Latin American countries that have incorporated it into law have already seen a great increase in the amount of litigation in defense of health rights. The proposed guidelines would serve as a basic agreement on broad principles on access to health justice. Then, at later stages, specific protocols would be developed for each of the basic principles originally set forth, including substantive and procedural legal norms and processes.9 Doing so would advance realistic access to justice for victims of health rights abuses, a clear priority for the FCGH, and begin to ensure that those responsible for the abuses answer for their actions, essential steps in framing global health rights within a contemporary paradigm designed to meet the challenges of the new millennium.
Our proposed guidelines are based on the writ of amparo, a brief and summary judicial action. Unlike the familiar habeas corpus, which protects physical liberty, amparo actions seek judicial protection as a shield for fundamental constitutional rights and liberties. Many jurisdictions already contemplate the amparo or equivalent remedies in their legal systems, but our proposal would have distinctive features. The following table outlines the different dimensions of the proposed guidelines.
While each feature of the guidelines deserves special attention, the issues of standing are the most salient. With regard to standing to sue, we propose that both individual and collective claims be admissible. As we will explain in the next section, the possibility of filing collective claims addresses the objection that under the current law of many jurisdictions, the least advantaged individuals lack effective access to justice. Our guidelines propose mechanisms for seeking the protection of the right to health of the least advantaged; institutional figures like the ombudsman or public defender are viable options through which the least advantaged may voice their claims. Regarding the defendant’s standing, we take into account that in jurisdictions such as Mexico, Germany, and many other potential signatories to an FCGH, the version of amparo—or legal equivalent— currently in force can only be filed against the state or state representatives.10 In light of that, we propose to expand passive standing so that actions may also be filed against non-state actors, such as transnational corporations, for actions or omissions that constitute actual or impending violations of the right to health.
In this section, we address the reason why FCGH guidelines on effective access to justice should include a collective remedy. We also consider why this would be a useful legal mechanism for advancing the right to health and health equity, and the ground that would be gained by allowing for claims against state and non-state actors.
Second, multiple violations of the right to health of several persons usually require that the judiciary resolve issues that deeply impact the social, economic, or political spheres of the state. For instance, successful health litigation may improve access to health services to particular litigants or groups, but that may not translate to improved access to health services for the general population.12 Such situations demand that the judiciary listen to all affected parties to ensure that wholly informed decisions are reached, for example, by ordering public hearings that enable robust debate with the parties. If reduced to the interest of a single claimant, a future decision that has strong repercussions may lack broader legitimacy because it fails to consider all affected parties.
Regarding situations where the state is the defendant, our guidelines propose that the collective remedy may be filed against both state and non-state actors. Recent case law, including a landmark 1998 right to health case in Argentina, Mariela Viceconte v. Ministry of Health and Social Welfare, illustrates the benefits of this possibility.33 Representing several community groups, the plaintiff sought to require the state to provide a vaccine against the Argentine hemorrhagic fever that threatened the lives of 3.5 million people. Most of the at-risk population did not have access to preventive medical services. The plaintiff´s argument invoked the state’s obligation to prevent, treat, and control endemic and epidemic diseases recognized in Article 12.2c of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Federal Administrative Court of Appeals ordered the government to designate funds for completing the vaccination campaign and ensuring the production of the vaccine. Remarkably, the Court also put a follow-up framework in place to oversee compliance with its ruling. Additionally, the Court established a deadline for the state to meet the requirements. The Court’s ruling was based on regional and international standards defined by international human rights instruments of constitutional rank in Argentina: the American Declaration on the Rights and Duties of Man, the Universal Declaration of Human Rights, and perhaps more importantly, Article 12 of ICESCR.
In situations where the collective right to health amparo is brought against non-state actors for violating fundamental rights, Venezuelan case law offers a paradigmatic example. In Defensora del Pueblo de la República Bolivariana de Venezuela et al. v. Galaxia Médica C.A., a group of women filed a collective amparo against a number of corporations and the state for marketing toxic breast implants as safe.35 In granting the case’s admissibility, the Supreme Tribunal invoked the “horizontal effect” of human rights duties, under which non-state actors—in this case corporations—are also bound to respect human rights, including the right to health. Additionally, the Supreme Tribunal established some of the procedural rules we suggest as guidelines to ensure effective access to justice. This includes opening channels for the participation of all affected parties and legal mechanisms to attract other possible individual claims that might be brought regarding the same cause.
From these Latin American right to health litigation experiences, we can conclude that collective procedures had a greater impact on the judiciary and the defendants because they communicated the needs, desires, and anxieties of a large group. Collective procedures transformed the complaints from isolated individual occurrences to broader societal issues. In this way, the collective writ of amparo strengthens community, equalizes the playing field in access to justice, and augments the force and effect—on both the judiciary and the defendant—of health litigation.
Some scholars criticize the central role that courts have played in protecting the right to health and the broad interpretations they have made. According to these critiques, such decisions ultimately benefit the more advantaged parties to the detriment of the disadvantaged victims of health rights violations. Several studies also demonstrate that judicial decisions on policies and budgets introduce judicial power into the sphere of executive power.36 Notwithstanding these issues, our proposed guidelines for collective remedies and participatory frameworks address these potential problems. The conceptual framework of guidelines advocates a different understanding of judicial review. From our standpoint, the judiciary´s role in the process would require its intervention to secure the participation of all possible affected parties and call for public hearings to promote open discussion about the proper solution to right to health conflicts.37 The court´s institutional objective would be to ensure that the health policies impacting society are the result of collective and inclusive debate. Sentence T-760/08 from Colombia is a good example of what we have in mind: the Constitutional Court of Colombia showed commitment to collective debate by holding public sessions exhorting the authorities to provide reports on the system of public health care coverage and its challenges, and information to those affected by the healthcare system’s failings. Colombian society was heard when the Court struck down structural aspects of Colombia´s public health system. In turn, in the Venezuelan case, the affected parties were gathered in public audiences to inform the Court about the claims under the suit. Additionally, the Supreme Tribunal urged the ombudsman to establish methods for all affected parties to participate in the public session online. All in all, these examples demonstrate the amparo’s usefulness as an effective remedy and its compatibility with participatory and robust notions of the role of courts. This disproves the objections that have been made about the illegitimacy of decisions affecting social policies or the dysfunction of state institutions.
We believe an FCGH should include guidelines on effective access to the judicial system in cases involving the right to health. The proposed guidelines would be the initial codification of normative parameters on access to justice. The proposed guidelines would prevent current pathological results in health rights litigation. We also argue for a robust conception of standing to sue. On the one hand, by allowing for collective claims, the guidelines offer mechanisms to promote the right to health of the most disadvantaged. On the other hand, the guidelines allow for the participation of juridical actors like the ombudsman for “institutionalizing” the health issues that are a priority for the most disadvantaged. In the absence of these procedures, as we have seen, individual claims cannot be channeled into a collective claim and the failures of the justice system become immediately apparent. In addition, the guidelines suggest that state parties to an FCGH should allow for simple, brief, and expedited claims not only against the state, but also against non-state actors. If an FCGH adopted these guidelines, it would set the stage for further, more detailed global agreements about how each country should internally design and tailor its procedural rules so that litigation can be as effective, efficient, and as socially beneficial as possible for everyone.
The authors would like to thank Marinka Yossiffon-Halpern, who meticulously edited this paper and challenged us on many points. Eric Friedman’s comments were also much appreciated. We are grateful to the two anonymous referees and to the editors of this special issue for their helpful comments.
Martín Hevia, SJD, is the Director of the LL.B. Program and an Assistant Professor at the Escuela de Derecho, Universidad Torcuato Di Tella in Buenos Aires, Argentina.
Carlos Herrera Vacaflor, JD, is a lawyer who graduated from the Escuela de Derecho, Universidad Torcuato Di Tella in Buenos Aires, Argentina.
Please address correspondence to the authors c/o Martín Hevia, Universidad Torcuato Di Tella School of Law, Avenida Figueroa Alcorta 7530 (C1428BCW) Buenos Aires, Argentina, email: mhevia@utdt.edu.
1. Joint Action and Learning Initiative for National and Global Responsibilities for Health, JALIHEART.COM. Available at http://www.jalihealth.org/; See also L. O. Gostin, “A framework convention on global health: Health for all, justice for all,” JAMA 307/19 (2012), pp. 2087-2092. Available at http://jama.jamanetwork.com/article.aspx?articleid=1157495; E. A. Friedman and L. O. Gostin, “Pillars for progress on the right to health: Harnessing the potential of human rights through a global convention on global health,” Health and Human Rights: An International Journal 14/1 (2012). Available at http://www.hhrjournal.org/index.php/hhr/article/view/483/751.
4. Minister of Health & Others v. Treatment Action Campaign & Others (July 5, 2002), CCT 8/02 (Constitutional Court of South Africa). Available at http://www.saflii.org/za/cases/ZACC/2002/15.html; State of Punjab & Others. v. Mohinder Singh Chawla (December 17, 1996), SC 1225/97 (Supreme Court of India). Available at http://indiankanoon.org/doc/1569214/; Cruz del Valle Bermúdez & Others. v. Ministerio de Sanidad y Asistencia Social (Supreme Court of Justice of Venezuela, Case No. 15.789, Decision No. 916, July 15, 1999). Available at: http://www.law.georgetown.edu/oneillinstitute/global-health-law/who-hhr/caselaw-detail.cfm?id=1292&b=1; Sandra Clemencia Perez Calderon & Others (Constitutional Court of Colombia, Case No. T-140800, Decision SU-225/98, May 20, 1998). Available at http://www.corteconstitucional.gov.co/relatoria/1998/SU225-98.htm.
5. See, for example, Article 4 of the 1857 Constitution of Mexico; Article 9 of the 1980 Constitution of Chile; Article 19 of the 1987 Constitution of Haiti; Article 20 of the 2012 Constitution of Hungary; Article 42 of the 1994 Constitution of Argentina; Article 83 of the Constitution of Venezuela; Article 18 of the Constitution of the Plurinational State of Bolivia; Article 43 of the Constitution of Spain; Article 64 of the 1976 Constitution of Portugal; Article 23(2) of the Constitution of Belgium. All available at http://www.constitution.org/cons/natlcons.htm.
6. Constitution of Colombia (1991), Art. 93. Available at http://confinder.richmond.edu/admin/docs/colombia_const2.pdf; Constitution of Argentina (1994), Art. 75(22). Available at http://www.senado.gov.ar/web/interes/constitucion/english.php; Constitution of Costa Rica (1949), Art. 105. Available at http://www.costaricalaw.com/legalnet/constitutional_law/constitenglish.html; Constitution of Switzerland (1999), Art. 121. Available at http://www.admin.ch/ch/e/rs/1/101.en.pdf; Constitution of the Republic of India (2007), Art. 52(c). Available at http://lawmin.nic.in/coi/coiason29july08.pdf, are some examples.
7. See, for example, L. M. Ferraz, “The right to health in the courts of Brazil: Worsening health inequities?” Health and Human Rights: An International Journal 11/2 (2009), p. 40. Available at http://www.hhrjournal.org/index.php/hhr/article/view/172/25. See also A.Yamin and S. Gloppen (eds.), Litigating health rights: Can courts bring more justice to health? (Cambridge, MA: Harvard University Press, 2011).
8. See, for example, WHO Framework Convention on Tobacco Control, World Health Assembly Res. 56.1 (2003). Available at http://whqlibdoc.who.int/publications/2003/9241591013.pdf.; Vienna Convention for the Protection of the Ozone Layer, UNEP Governing Council TIAS No. 11,097 (1987). Available at http://untreaty.un.org/cod/avl/ha/vcpol/vcpol.html; and the United Nations Framework Convention on Climate Change, FCCC/INFORMAL/84 (1992). Available at http://unfccc.int/2860.php.
10. See, for example, German Constitution (2009), Art. 93(1). Available at http://www.servat.unibe.ch/icl/gm00000_.html; Spanish Constitution (1978), Art. 41(2). Available at http://www.congreso.es/portal/page/portal/Congreso/Congreso/Hist_Normas/Norm/const_espa_texto_ingles_0.pdf; Constitution of Hungary (2011), Art. 64. Available at http://www.kormany.hu/download/4/c3/30000/THE%20FUNDAMENTAL%20LAW%20OF%20HUNGARY.pdf; Article 144 of the BVerfG do not prescribe effective legal remedies against non-state actors. Available at http://www.gesetze-im-internet.de/gg/BJNR000010949.html.
11. F. Verbic, Procesos colectivos (Buenos Aires: Ed. Astrea, 2007), pp. 34-36.
12. See, for example, Recurso Extraordinario (November 24, 2000) STF 271.286-8 D.J. (Federal Supreme Court of Brazil) or Caja Costarricense de Seguro Social (September 23, 1997) SC Res. 5934-97 (IV Constitutional Chamber of the Supreme Court).
13. Colombia´s executive decree 2591/1991, Art. 46. [unofficial translation]. See César Gaviria, Executive Order 2591: Acción de Tutela [Legal Protection Writ], November 19, 1991 (Colombia).
14. See Defensora del Pueblo de la República Bolivariana de Venezuela et al. v. Galaxia Médica C.A (June 6, 2012) TSJ Sentence No. 790 (Supreme Tribunal of Justice of Venezuela); Defensora del Pueblo v. Minister of Health et al. (access to medical treatment) (July 14, 2000) CCB N° 687-200-R (Constitutional Court of Bolivia).
15. L. M. Zanitelli, “Corporations and human rights: The debate between voluntarists and obligationists and the undermining effects of sanctions,” SUR International Journal on Human Rights 8/15 (2011), p. 36.
17. Para. 42 of CESCR General Comment 14 can also be understood in that light. See http://www1.umn.edu/humanrts/gencomm/escgencom14.htm).
On non-state actors and human rights violations, see S. Michalowski and J. P. Bohoslavsky, “Jus cogens, transitional justice and other trends of the debate on odious debts—A response to the World Bank discussion paper on odious debts,” Columbia Journal of Transnational Law 48/61 (2010); J. P. Bohoslavsky and V. Opgenhaffen, “The past and present of corporate complicity: Financing the Argentinean dictatorship,” Harvard Human Rights Journal 23 (2010), pp. 157-223.
18. Special Rapporteur´s Guidelines for Pharmaceutical Companies in Relation to Access to Medicines, available at http://www.who.int/medicines/areas/human_rights/A63_263.pdf.
19. The “Ruggie Principles,” UN Guidelining Principles on Business and Human Rights. See http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy-Framework/GuidingPrinciples with summary at http://www.humanrights.gov/2012/12/03/un-guiding-principles-on-business-and-human-rights/.
20. Verbic, p. 52. See note 11.
21. Defensoría del Pueblo (Ombuds Office’s Office of Colombia), La tutela y el derecho a la salud. Periodo 2003-2005 (2007), pp. 77-79; Defensoría del Pueblo, La Tutela y el Derecho a la Salud. Periodo 2006-2008 (2009), p. 30 [hereinafter Defensora del Pueblo 2006-08].
22. Luz Mary Osorio Palacio & Others. v. SaludCoop & Others (July 31, 2008) CCC Judgment T-760/08 (Constitutional Court of Colombia, Second Panel of Review), sec. 3. Available at http://www.corteconstitucional.gov.co/relatoria/2008/T-760-08.htm. See also A.Yamin and O. Parra-Vera, “Judicial protection of the right to health in Colombia: From social demands to individual claims to public debates,” Hastings International and Comparative Law Review 33/432 (2010).
25. Verbic, p. 35. See note 11.
26. On judicial intervention in this sense, see, J. H. Ely, Democracy and distrust: A theory of judicial review (Cambridge, MA: Harvard University Press, 1980).
27. Constitution of Argentina (1994), supra note 5, Art. 43, para. 2. Available at: http://www.senado.gov.ar/web/interes/constitucion/english.php.
28. See, for example, C. Botero, La acción de tutela en el ordenamiento constitucional colombiano (Bogotá: Escuela Judicial Rodrigo Lara Bonilla, Consejo Superior de la Judicatura, 2006), pp. 85-88.
29. A. M. Morello and C. A. Vallefín, El amparo: Régimen procesal (La Plata: Librería Editora Platense, 2004), p. 286.
30. There is literature that makes the argument for including the Public Office (public defenders included) as an interested party that may file an amparo to advance the protection of the right to health. See, for example, Verbic, note 11, p. 76; O. L. Motta-Ferraz and D. W. Liang Wang, “Can public attorneys improve health equity through right to health litigation? A case study of the city of Sao Pablo” (unpublished manuscript). Available at www.raison-publique.fr/…/WangFerr.; the regulation of the tutela in Colombia explicitly allows the Ombuds Office to file a tutela writ indistinctively of what the affected party decides. See note 28, Botero, pp. 89-91.
31. Asociación Benghalensis v. Ministerio de Salud y Accion Social-Estado Nacional (National Supreme Court of Justice of Argentina, A. 186, XXXIV, June 1, 2000). Available at http://www.law.georgetown.edu/oneillinstitute/global-health-law/who-hhr/caselaw-detail.cfm?id=1464&b=1.
32. Idem, cited in A. M. Morello & C. A. Vallefin, supra footnote 29, p. 290. Case law of the Constitutional Court of Colombia also acknowledges civil society organizations and groups standing to sue. See, C.C.C., Judgment T-411/92, in Botero, supra footnote 28, p. 87.
33. Mariela Viceconte v. Ministry of Health and Social Welfare (June 2, 1998) FACA Exp. 31 777/96 (Federal Administrative Court of Appeals of Argentina, Fourth Chamber). See also, V. Abramovich, Argentina: The Right to Medicines’ in Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies (COHRE 2003).; V. Abramovich & L. Pautassi, “Judicial Activism in the Argentine Health System: Recent Trends,” Health and Human Rights: An International Journal 10/2 (2008), pp. 57-58.
34. Mariela Viceconte v. Ministry of Health and Social Welfare. See note 31.
35. Defensora del Pueblo de la República Bolivariana de Venezuela et al. v. Galaxia Médica C.A. See note 14.
36. O. L. Motta Ferraz, “Harming the poor through social rights litigation: Lessons from Brazil,” Texas Law Review 89/1643 (2011); C. Rodríguez-Garavito, “Beyond the courtroom: The impact of judicial activism on socioeconomic rights in Latin America,” Texas Law Review 89/1669 (2011).
37. R. Gargarella, “Dialogic justice in the enforcement of social rights,” in A.Yamin and S. Gloppen (eds.), Litigating the Right to Health: Can courts bring more justice to health systems? (Cambridge, MA: Harvard University Press, 2011).