The ripeness doctrine permits judicial review of a regulation if there is a purely legal issue involved and a direct, immediate impact on the party seeking to challenge the regulation.
An amendment to the Food, Drug, and Cosmetic Act required manufacturers to list the established, government-issued names of drugs on their labels. Formerly, manufacturers had used their proprietary names to market the drugs. The amendment was intended to make prescribing doctors aware that the same drugs that were being marketed under proprietary names were also available under established names for a lower cost. The drug manufacturers and their trade association argued that the FDA Commissioner had exceeded his statutory authority in making these regulations. They sought declaratory relief to that effect and an injunction against the enforcement of the regulations.
The central issue in the case is whether the Commissioner properly interpreted the law giving rise to the regulations, which is a purely legal issue. Since the regulations provide an authoritative interpretation of a law that has a substantial effect on the regular business of the manufacturers, there is a direct and immediate impact. The courts should be allowed to resolve the dispute so that the manufacturers are not faced with choosing between the cost of compliance and the risk of criminal prosecution for violating the regulations.
The manufacturers succeeded in framing their issue in such a way that it was concrete enough for an Article III court to rule on it. They focused on whether the Commissioner had overreached his statutory authority rather than a more specific challenge.
The Commissioner of Food and Drugs, exercising authority delegated to him by the Secretary of Health, Education, and Welfare, issued regulations requiring that labels and advertisements for prescription drugs which bear proprietary names for the drugs or the ingredients carry the corresponding "established name" (designated by the Secretary) every time the proprietary or trade name is used. These regulations were designed to implement the 1962 amendment to § 502(e)(1)(B) of the Federal Food, Drug, and Cosmetic Act. Petitioners, drug manufacturers and a manufacturers' association, challenged the regulations on the ground that the Commissioner exceeded his authority under the statute. The District Court granted the declaratory and injunctive relief sought, finding that the scope of the statute was not as broad as that of the regulations. The Court of Appeals reversed without reaching the merits, holding that pre-enforcement review of the regulations was unauthorized and beyond the jurisdiction of the District Court, and that no "actual case or controversy" existed.
1. Preenforcement review of these regulations is not prohibited by the Federal Food, Drug, and Cosmetic Act. Pp. 387 U. S. 139-148.
(a) The courts should restrict access to judicial review only upon a showing of "clear and convincing evidence" of a contrary legislative intent. Rusk v. Cort, 369 U. S. 367, 369 U. S. 379-380. Pp. 387 U. S. 139-141.
(b) The statutory scheme in the food and drug area does not exclude pre-enforcement judicial review. Pp. 387 U. S. 141-144.
(c) The special review provisions of § 701(f) of the Act, applying to regulations embodying technical factual determinations, were simply intended to assure adequate judicial review of such agency decisions, and manifest no congressional purpose to eliminate review of other kinds of agency action. P. 387 U. S. 144.
(d) The saving clause of § 701(f)(6), which states that the "remedies provided for in this subsection shall be in addition to and not in substitution for any other remedies provided by law," does not foreclose pre-enforcement judicial review, and should be read in harmony with the policy favoring judicial review expressed in the Administrative Procedure Act and court decisions. Pp. 387 U. S. 144-146.
(e) Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594, which did not concern the promulgation of a self-operative industry-wide regulation, distinguished. Pp. 387 U. S. 146-148.
2. This case presents a controversy "ripe" for judicial resolution. Pp. 387 U. S. 148-156.
(a) The issue of statutory construction is purely legal, and the regulations are "final agency action" within § 10 of the Administrative Procedure Act. Columbia Broadcasting System v. United States, 316 U. S. 407, and similar cases followed. Pp. 387 U. S. 149-152.
(b) The impact of the regulations upon petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage. Pp. 387 U. S. 152-154.
(c) Here, the pre-enforcement challenge by nearly all prescription drug manufacturers is not calculated to delay or impede effective enforcement of the Federal Food, Drug, and Cosmetic Act. Pp. 387 U. S. 154-155.
"If the label or labeling of a prescription drug bears a proprietary name or designation for the drug or any ingredient thereof, the established name, if such there be, corresponding to such proprietary name or designation shall accompany each appearance of such proprietary name or designation."
21 CFR § 1.104(g)(1). A similar rule was made applicable to advertisements for prescription drugs, 21 CFR § 1.105(b)(1).
drugs. They challenged the regulations on the ground that the Commissioner exceeded his authority under the statute by promulgating an order requiring labels, advertisements, and other printed matter relating to prescription drugs to designate the established name of the particular drug involved every time its trade name is used anywhere in such material.
The District Court, on cross-motions for summary judgment, granted the declaratory and injunctive relief sought, finding that the statute did not sweep so broadly as to permit the Commissioner's "every time" interpretation. 228 F.Supp. 855. The Court of Appeals for the Third Circuit reversed without reaching the merits of the case. 352 F.2d 286. It held first that, under the statutory scheme provided by the Federal Food, Drug, and Cosmetic Act, pre-enforcement [Footnote 1] review of these regulations was unauthorized, and therefore beyond the jurisdiction of the District Court. Second, the Court of Appeals held that no "actual case or controversy" existed, and, for that reason, that no relief under the Administrative Procedure Act, 5 U.S.C. §§ 701-704 (1964 ed., Supp. II), or under the Declaratory Judgment Act, 28 U.S.C. § 2201, was, in any event, available. Because of the general importance of the question, and the apparent conflict with the decision of the Court of Appeals for the Second Circuit in Toilet Goods Assn. v. Gardner, 360 F.2d 677, which we also review today, post, p. 387 U. S. 158, we granted certiorari. 383 U.S. 924.
Procedure Act's "generous review provisions" must be given a "hospitable" interpretation. Shaughnessy v. Pedreiro, 349 U. S. 48, 349 U. S. 51; see United States v. Interstate Commerce Comm'n, 337 U. S. 426, 337 U. S. 433-435; Brownell v. Tom We Shung, supra; Heikkila v. Barber, supra. Again in Rusk v. Cort, supra, at 369 U. S. 379-380, the Court held that only upon a showing of "clear and convincing evidence" of a contrary legislative intent should the courts restrict access to judicial review. See also Jaffe, Judicial Control of Administrative Action 336-359 (1965).
"The mere fact that some acts are made reviewable should not suffice to support an implication of exclusion as to others. The right to review is too important to be excluded on such slender and indeterminate evidence of legislative intent."
"There is always an appropriate remedy in equity in cases where an administrative officer has exceeded his authority and there is no adequate remedy of law, . . . [and that] protection is given by the so-called Declaratory Judgments Act. . . ."
"As a matter of fact, the entire subsection is really unnecessary, because even without any express provision in the bill for court review, any citizen aggrieved by any order of the Secretary, who contends that the order is invalid, may test the legality of the order by bringing an injunction suit against the Secretary, or the head of the Bureau, under the general equity powers of the court."
Against this background, we think it quite apparent that the special review procedures provided in § 701(f), applying to regulations embodying technical factual determinations, [Footnote 11] were simply intended to assure adequate judicial review of such agency decisions, and that their enactment does not manifest a congressional purpose to eliminate judicial review of other kinds of agency action.
regulations under the sections specifically enumerated in 701(e). This is a conceivable reading, but it requires a considerable straining both of language and of common understanding. The saving clause itself contains no limitations, and it requires an artificial statutory construction to read a general grant of a right to judicial review begrudgingly, so as to cut out agency actions that a literal reading would cover.
". . . saved as a method to review a regulation placed in effect by the Secretary whatever rights exist to initiate a historical proceeding in equity to enjoin the enforcement of the regulation, and whatever rights exist to initiate a declaratory judgment proceeding."
other types of review whose supposed inadequacy was the very reason for the special review provisions.
Under the Government's view, indeed, it is difficult to ascertain when the saving clause would even come into play: when the special provisions apply, presumably they must be used and a court would not grant injunctive or declaratory judgment relief unless the appropriate administrative procedure is exhausted. [Footnote 13] When the special procedure does not apply, the Government deems the saving clause likewise inapplicable. The Government, to be sure, does present a rather far-fetched example of what it considers a possible application of the relief saved by § 701(f)(6), but merely to state it reveals the weakness of the Government's position. [Footnote 14] We prefer to take the saving clause at its face value, and to read it in harmony with the policy favoring judicial review expressed in the Administrative Procedure Act and this Court's decisions.
the injury or damage of the purchaser or consumer." § 304(a), 21 U.S.C. § 334(a). Multiple seizures were ordered through libel actions. The manufacturer of the drug brought an action to challenge directly the Administrator's finding of probable cause. This Court held that the owner could raise his constitutional, statutory, and factual claims in the libel actions themselves, and that the mere finding of probable cause by the Administrator could not be challenged in a separate action. That decision was quite clearly correct, but nothing in its reasoning or holding has any bearing on this declaratory judgment action challenging a promulgated regulation.
The Court in Ewing first noted that the "administrative finding of probable cause required by § 304(a) is merely the statutory prerequisite to the bringing of the lawsuit," at which the issues are aired. 339 U.S. at 339 U. S. 598. Such a situation bears no analogy to the promulgation, after formal procedures, of a rule that must be followed by an entire industry. To equate a finding of probable cause for proceeding against a particular drug manufacturer with the promulgation of a self-operative industry-wide regulation, such as we have here, would immunize nearly all agency rulemaking activities from the coverage of the Administrative Procedure Act.
Second, the determination of probable cause in Ewing has "no effect in and of itself," 339 U.S. at 339 U. S. 598; only some action consequent upon such a finding could give it legal life. As the Court there noted, like a determination by a grand jury that there is probable cause to proceed against an accused, it is a finding which only has vitality once a proceeding is commenced, at which time appropriate challenges can be made. The Court also noted that the unique type of relief sought by the drug manufacturer was inconsistent with the policy of the Act favoring speedy action against goods in circulation that are believed on probable cause to be adulterated.
Also, such relief was not specifically granted by the Act, which did provide another type of relief in the form of a consolidation of multiple libel actions in a convenient venue. 339 U.S. at 339 U. S. 602.
The drug manufacturer in Ewing was quite obviously seeking an unheard-of form of relief which, if allowed, would have permitted interference in the early stages of an administrative determination as to specific facts, and would have prevented the regular operation of the seizure procedures established by the Act. That the Court refused to permit such an action is hardly authority for cutting off the well established jurisdiction of the federal courts to hear, in appropriate cases, suits under the Declaratory Judgment Act and the Administrative Procedure Act challenging final agency action of the kind present here.
parties. The problem is best seen in a two-fold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.
As to the former factor, we believe the issues presented are appropriate for judicial resolution at this time. First, all parties agree that the issue tendered is a purely legal one: whether the statute was properly construed by the Commissioner to require the established name of the drug to be used every time the proprietary name is employed. [Footnote 16] Both sides moved for summary judgment in the District Court, and no claim is made here that further administrative proceedings are contemplated. It is suggested that the justification for this rule might vary with different circumstances, and that the expertise of the Commissioner is relevant to passing upon the validity of the regulation. This, of course, is true, but the suggestion overlooks the fact that both sides have approached this case as one purely of congressional intent, and that the Government made no effort to justify the regulation in factual terms.
"Such regulations have the force of law before their sanctions are invoked as well as after. When, as here, they are promulgated by order of the Commission and the expected conformity to them causes injury cognizable by a court of equity, they are appropriately the subject of attack. . . ."
316 U.S. at 316 U. S. 418-419.
Two more recent cases have taken a similarly flexible view of finality. In Frozen Food Express v. United States, 351 U. S. 40, at issue was an Interstate Commerce Commission order specifying commodities that were deemed to fall within the statutory class of "agricultural commodities." Vehicles carrying such commodities were exempt from ICC supervision. An action was brought by a carrier that claimed to be transporting exempt commodities, but which the ICC order had not included in its terms. Although the dissenting opinion noted that this ICC order had no authority except to give notice of how the Commission interpreted the Act, and would have effect only if and when a particular action was brought against a particular carrier, and argued that "judicial intervention [should] be withheld until administrative action has reached its complete development," 351 U.S. at 351 U. S. 45, the Court held the order reviewable.
Again, in United States v. Storer Broadcasting Co., 351 U. S. 192, the Court held to be a final agency action within the meaning of the Administrative Procedure Act an FCC regulation announcing a Commission policy that it would not issue a television license to an applicant already owning five such licenses, even though no specific application was before the Commission. The Court stated: "The process of rulemaking was complete. It was final agency action . . . by which Storer claimed to be aggrieved.'" 351 U.S. at 351 U. S. 198.
We find decision in the present case following a fortiori from these precedents. The regulation challenged here, promulgated in a formal manner after announcement in the Federal Register and consideration of comments by interested parties [Footnote 17] is quite clearly definitive. There is no hint that this regulation is informal, see Helco Products Co. v. McNutt, 78 U.S.App.D.C. 71, 137 F.2d 681, or only the ruling of a subordinate official, see Swift & Co. v. Wickham, 230 F.Supp. 398, 409, aff'd, 364 F.2d 241, or tentative. It was made effective upon publication, and the Assistant General Counsel for Food and Drugs stated in the District Court that compliance was expected.
they have the status of law and violations of them carry heavy criminal and civil sanctions. Also, there is no representation that the Attorney General and the Commissioner disagree in this area; the Justice Department is defending this very suit. It would be adherence to a mere technicality to give any credence to this contention. Moreover, the agency does have direct authority to enforce this regulation in the context of passing upon applications for clearance of new drugs, § 505, 21 U.S.C. § 355, or certification of certain antibiotics, § 507, 21 U.S.C. § 357.
"Either they must comply with the every time requirement and incur the costs of changing over their promotional material and labeling or they must follow their present course and risk prosecution."
228 F.Supp. 855, 861. The regulations are clear-cut, and were made effective immediately upon publication; as noted earlier the agency's counsel represented to the District Court that immediate compliance with their terms was expected. If petitioners wish to comply they must change all their labels, advertisements, and promotional materials; they must destroy stocks of printed matter, and they must invest heavily in new printing type and new supplies.
Steel Co., 310 U. S. 113. But there is no question in the present case that petitioners have sufficient standing as plaintiffs: the regulation is directed at them in particular; it requires them to make significant changes in their everyday business practices; if they fail to observe the Commissioner's rule, they are quite clearly exposed to the imposition of strong sanctions. Compare Columbia Broadcasting System v. United States, 316 U. S. 407; 3 Davis, Administrative Law Treatise, c. 21 (1958). This case is, therefore, remote from the Mellon and Perkins cases.
The Government further contends that the threat of criminal sanctions for noncompliance with a judicially untested regulation is unrealistic; the Solicitor General has represented that, if court enforcement becomes necessary, "the Department of Justice will proceed only civilly for an injunction . . . or by condemnation." We cannot accept this argument as a sufficient answer to petitioners' petition. This action at its inception was properly brought and this subsequent representation of the Department of Justice should not suffice to defeat it.
is that the courts are well equipped to deal with such eventualities. The venue transfer provision, 28 U.S.C. § 1404(a), may be invoked by the Government to consolidate separate actions. Or actions in all but one jurisdiction might be stayed pending the conclusion of one proceeding. See American Life Ins. Co. v. Stewart, 300 U. S. 203, 300 U. S. 215-216. A court may even, in its discretion, dismiss a declaratory judgment or injunctive suit if the same issue is pending in litigation elsewhere. Maryland Cas. Co. v. Consumers Finance Service, 101 F.2d 514; Carbide & Carbon C. Corp. v. United States I. Chemicals, 140 F.2d 47; Note, Availability of a Declaratory Judgment When Another Suit Is Pending, 51 Yale L.J. 511 (1942). In at least one suit for a declaratory judgment, relief was denied with the suggestion that the plaintiff intervene in a pending action elsewhere. Automotive Equip., Inc. v. Trico Prods. Corp., 11 F.Supp. 292; see Allstate Ins. Co. v. Thompson, 121 F.Supp. 696.
Further, the declaratory judgment and injunctive remedies are equitable in nature, and other equitable defenses may be interposed. If a multiplicity of suits are undertaken in order to harass the Government or to delay enforcement, relief can be denied on this ground alone. Truly v. Wanzer, 5 How. 141, 46 U. S. 142; cf. Brillhart v. Excess Ins. Co., 316 U. S. 491, 316 U. S. 495. The defense of laches could be asserted if the Government is prejudiced by a delay, Southern Pac. Co. v. Bogert, 250 U. S. 483, 250 U. S. 488-490; 2 Pomeroy's Equity Jurisprudence §§ 419c-d (5th ed. Symons, 1941). And courts may even refuse declaratory relief for the nonjoinder of interested parties who are not, technically speaking, indispensable. Cf. Samuel Goldwyn, Inc. v. United Artists Corp., 113 F.2d 703; 6A Moore, Federal Practice ¦ 57.25 (2d ed.1966).
nothing in the record to indicate that petitioners have sought to stay enforcement of the "every time" regulation pending judicial review. See 5 U.S.C. § 705. If the agency believes that a suit of this type will significantly impede enforcement or will harm the public interest, it need not postpone enforcement of the regulation, and may oppose any motion for a judicial stay on the part of those challenging the regulation. Ibid. It is scarcely to be doubted that a court would refuse to postpone the effective date of an agency action if the Government could show, as it made no effort to do here, that delay would be detrimental to the public health or safety. See Associated Securities Corp. v. SEC, 283 F.2d 773, 775, where a stay was denied because "the petitioners . . . [had] not sustained the burden of establishing that the requested stays will not be harmful to the public interest . . . "; see Eastern Air Lines v. CAB, 261 F.2d 830; cf. Scripps-Howard Radio v. FCC, 316 U. S. 4, 316 U. S. 10-11; 5 U.S.C. § 705.
"To preclude judicial review under this bill a statute, if not specific in withholding such review, must upon its face give clear and convincing evidence of an intent to withhold it. The mere failure to provide specially by statute for judicial review is certainly no evidence of intent to withhold review."
See also S.Rep. No. 752, 79th Cong., 1st Sess., 26 (1945).
See, e.g., the discussion of judicial review under the equity power in the House of Representatives during the debate on these provisions. 83 Cong.Rec. 7891-7896 (1938).
See, e.g., 83 Cong.Rec. 7783 (remarks of Representative Leavy) (1938); Statement of Professor David F. Cavers before a Subcommittee of the Senate Committee on Commerce on S.1944, 73d Cong., 2d Sess. (1933), reprinted in Dunn, Federal Food, Drug, and Cosmetic Act, A Statement of Its Legislative Record 1110 (1938).
See, e.g., 83 Cong.Rec. 7772-7773, 7781-7784, 7893-7899 (1938).
See, e.g., the discussion of the conference report, 83 Cong.Rec. 9096-9098 (1938).
See, e.g., 83 Cong.Rec. 7772, 7892, 9092-9093 (1938).
"The agency determinations specifically reviewable under § 701(e) relate to such technical subjects as chemical properties of particular products and the formulation and application of safety standards for protecting public health; Congress naturally did not wish courts to consider such matters without the benefit of the agency's views after an evidentiary hearing before it."
H.R.Conf.Rep. No. 2716, 75th Cong., 3d Sess., 25 (1938); 83 Cong.Rec. 8731-8738 (1938) (Senate agreement to the conference report).
See Notes of the Advisory Committee on Federal Rule of Civil Procedure 57, reprinted in 28 U.S.C.App. at 6136: "A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case. . . ." See also 6A Moore, Federal Practice § 57.08 (2d ed.1966).
The Government apparently views the clause as applying only when regulations falling within the special review procedure are promulgated without affording the required public notice and opportunity to file objections and to request a public hearing. In such a case alone, the Government asserts, "an equity proceeding or a declaratory judgment action . . . might be entertained on the ground that the statutory procedures had not been followed." Brief, p. 28.
See 3 Davis, Administrative Law Treatise, c. 21 (1958); Jaffe Judicial Control of Administrative Action, c. 10 (1965).
While the "every time" issue has been framed by the parties in terms of statutory compulsion, we think that its essentially legal character would not be different had it been framed in terms of statutory authorization for the requirement.
Compare similar procedures followed in Frozen Food Express, supra, at 351 U. S. 41-42, and Storer, supra, at 193-194. The procedure conformed with that prescribed in § 4 of the Administrative Procedure Act, 5 U.S.C. § 1003.
See S.Rep. No. 1005, 73d Cong., 2d Sess., 2-3 (1934); Borchard, Challenging "Penal" Statutes by Declaratory Action, 52 Yale L.J. 445, 454 (1943).
Section 502(e)(1)(B) declares a drug not complying with this labeling requirement to be "misbranded." Section 301, 21 U.S.C. § 331, designates as "prohibited acts" the misbranding of drugs in interstate commerce. Such prohibited acts are subject to injunction, § 302, 21 U.S.C. § 332, criminal penalties, § 303, 21 U.S.C. § 333, and seizure, § 304(a), 21 U.S.C. § 334(a).
The issue of construction is whether § 1391(c) should be read as defining corporate venue only when the corporation is a defendant, or whether it should either (1) be adopted for corporate residence in all cases when a corporation is a plaintiff, or (2) at least as the definition of "resides" as used in § 1391(e)(4).
This question is a difficult one, with far-reaching effects, and we think it is appropriate to dismiss our writ of certiorari as to this question for the following two reasons. First, the Court of Appeals, in affirming the District Court on this issue, did not explicitly endorse the lower court's ruling, but held only: "We find no prejudicial error in the dismissal of the complaint as to these plaintiffs. . . ." 352 F.2d 524, 525. Review of an issue of this importance is best left to a case where it has been fully dealt with by a court of appeals. Second, one of the plaintiffs whose complaint was not dismissed is the Pharmaceutical Manufacturers Association, of which all the corporate petitioners are members, and we think it should be considered that they are adequately protected in this suit by its participation, as well as by the participation of the remaining drug companies whose interests are identical to those of the petitioners whose complaints were dismissed. Cf. Mishkin v. New York, 383 U. S. 502, 383 U. S. 512-514. Moreover, in the further course of this litigation, it will be open to the dismissed plaintiffs to seek amicus curiae status.


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It is commonly acknowledged that employers have a duty to provide a safe, healthy environment to their employees. If an employer fails to provide a safe environment, perhaps resulting in a work injury, then that employer may be held liable for the employee’s injuries. However, a new Illinois Supreme Court decision extends an employer’s duty beyond just to its employee, but to the employee’s family as well.
The Illinois case of Cynthia Simpkins v. CSX Transportation,110662 (March 22, 2012), was filed after the wife of a CSX Transportation employee developed mesothelioma; the wife alleged that her mesothelioma was caused by exposure to asbestos on her husband’s work clothes. The trial court dismissed the case on the basis that CSX owed no responsibility to its employee’s wife because there was no direct relationship between her and CSX. However, both the Illinois Appellate Court and the Illinois Supreme Court reversed that ruling, although for different reasons.
The Illinois Appellate Court decision held that not only does an employer have a responsibility to its employee’s family members, but that the plaintiff had shown sufficient evidence to support its claims against CSX. Specifically, the court found that “it takes little imagination to presume that when an employee who is exposed to asbestos brings home his work clothes, members of his family are likely to be exposed as well.” Therefore, the appellate court found that Simpkins had provided evidence to suggest that CSX was negligent and did not fulfill its duty to her. And while the Illinois Supreme Court agreed that in theory an employer does have a duty to its employees’ family members, it did not agree that Simpkins had provided enough evidence to prove that CSX did in fact have a duty towards her.
The Illinois Appellate Court affirmed a circuit court’s ruling regarding the venue in a railroad employee’s personal injury lawsuit. While the railroad company had wanted to transfer the case to Mississippi, the Illinois courts supported the plaintiff’s choice of Illinois as the case’s venue. Fennell v. Illinois Central Railroad Company, 2012 WL 19455 (Ill.App.2012).
The plaintiff, Walter Fennell, had been working for Illinois Central Railroad Company for over 35 years. In 2009, Fennell filed a Federal Employers Liability Act (FELA) lawsuit against Illinois Central Railroad. The FELA lawsuit alleged that Fennell was exposed to asbestos, diesel exhaust, environmental tobacco smoke, sand, and toxic fumes, dust, and gases during the tenure of his employment, which in turn resulted in Fennell’s current respiratory problems. Fennell was seeking compensation for the health problems he allegedly developed during the course of his employment with Illinois Central.
Shortly after Fennell was filed, Illinois Central sought to have the case dismissed under the doctrine of interstate forum non conveniens, which is a legal doctrine that allows a court to deny its jurisdiction if it finds that a different forum would be more convenient and more equitable. The defendant railroad argued that Mississippi would be a more convenient and fair location on the grounds that Fennell himself lived in Mississippi, that Fennell had worked in Mississippi for the majority of his career, and because the alleged injury likely occurred in Mississippi. However, the trial court denied the defendant’s motion and affirmed Illinois’s jurisdiction in the case; the defendants appealed this decision.
Given the state of today’s economy, it has become commonplace to hear about companies trying to cut corners, to stretch every dollar, and maximize their workers’ responsibilities. However, UPS workers are raising questions about what cost these continual raised expectations have on workplace safety and employee health.
Like many companies across America, UPS employees are under pressure to increase productivity; however, at the same time UPS is pushing employees to reduce workplace injuries and workers’ compensation claims. These two goals seem contradictory, a point that is being made by both UPS employees and union officials who affirm that the longer hours and increased expectations has in fact resulted in more workplace injuries.
The local Chicago union is making a point to emphasize that their request to reduce employee workloads does not come from a desire to shirk their duties; rather, many UPS employees are committed to the company and applaud it as a good place to work. Take for example 45 year-old Joe Korziuk – he’s worked for UPS for over 20 years, performing a wide range of jobs, including driving tractor trailers, delivering packages, and even washing trucks. However, even this model employee has suffered work injuries, sustaining a concussion after a heavy box fell on him, and is experiencing the wear and tear of twenty years on the job in the form of knee and back pain.
Illinois Railroad Worker’s Medical Experts Unable To Connect Cumulative Trauma Injury – Myers v. Illinois Central Railroad Co.
A former railroad worker found not able to pursue his Illinois railroad litigation case because his testifying medical experts were unable to identify the specific cause of the his injuries. The Illinois railroad litigation case was dismissed by the district court, a decision that was then affirmed at the appellate level in the case of Myers v. Illinois Central Railroad Co., d/b/a Canadian National/Illinois Central Railroad Co., No. 10-1279.
Timothy Myers, the 50 year-old plaintiff, had worked for the Illinois Central Railroad for 30 years as a brakeman, switchman, and conductor before retiring. He brought the Federal Employers’ Liability Act (FELA) lawsuit to recover damages for injuries he suffered from cumulative trauma sustained by his elbow, knee, neck and back.
Myers based his FELA lawsuit on reports from three doctors and an ergonomist that opined that his injuries were caused by the railroad’s negligence. However, the court did not consider any of this expert testimony when ruling on the railroad’s motion to dismiss the case. As a result, the court granted a summary judgment in favor of the Illinois Central Railroad, a decision which Myers sought to have appealed by the U.S. Court of Appeals.
An Illinois chemical plant is denying allegations that toxins it dumped into the groundwater in the 1960s and 1970s is linked to a cancer cluster. Rohm & Haas Chemical Co. insists that the several brain cancer cases occurring among current or former residents near their Illinois plant are an unfortunate coincidence. However, the numerous plaintiffs, some with wrongful death claims, in Branham v. Rohm & Haas Co. disagree. The case is set for trial in Philadelphia and is anticipated to be an eight to 10 week trial.
In addition to the negligence claims against the Illinois plant, the plaintiffs have also accused the company of fraud and covering up the potential dangers of their dumping practices. The lawsuit involves an eight-acre sludge pond located about 50 miles northwest of Chicago that was the dumping site of the plant’s chemicals. The sludge pond was constructed without any liner to prevent these chemicals from leaking into the groundwater. Nearby residents used well water, or groundwater, on a daily basis for everything from drinking to showering and cleaning.
According to the plaintiff’s lawsuit, the toxins in the contaminated water eventually broke down into vinyl chloride, a carcinogen, which was then released into the air whenever the contaminated water was used. While over 30 plaintiffs have individual claims filed against Rohm & Haas, each relies on the same theory of negligence – that their cancers were caused by exposure to groundwater that was contaminated by toxins dumped by the chemical plant into the unlined sludge pond.
Illinois ‘Popcorn Lung’ Case Receives 30.4 Million From Cook County Jury – Solis v. BASF Corp.
A recent Illinois personal injury lawsuit received a large verdict award, granting $30.4 million to the plaintiff in Solis v. BASF Corp., No. 06 L 12105. Several other parties to the Illinois work place injury lawsuit had settled with the plaintiff prior to trial for undisclosed amounts, but BASF Corp. opted to take the case to trial rather than settling. The supply company’s gamble failed, as evidenced by the positive plaintiff verdict.
In Solis, the plaintiff developed bronchiolitis obliterans.pdf, or ‘popcorn lung disease’, after 18 years of working in various factories. Bronchiolitis obliterans has been linked to exposure to substances used to make microwave popcorn, such as diacetyl.
After being diagnosed with the life-threatening disease, Solis now has a reduced lung capacity of only 25 percent. This means that without a lung transplant the life-long nonsmoker and unmarried father of three could die if he develops the flu or other respiratory diseases. The 45 year-old Illinois resident brought a Cook County workplace injury lawsuit against several parties alleging that his current condition was a result of his exposure to fumes and dust particles while working with artificial butter flavoring.
A recent Cook County work site injury lawsuit was settled for $3.375 million; Ortiz v. Cato Karabegovic, et al., No. 06 L 006651. Contributing to the settlement were two trucking companies, a truck driver, and a railroad company.
However, there was some debate regarding who was liable for the plaintiff’s injury and to what degree the plaintiff contributed to his own accident. Issues of contributory fault are important in Illinois personal injury lawsuits because if the defense can prove that the plaintiff was more than 50% at fault then any judgment entered against the defense is reduced by the degree of plaintiff’s negligence. For example, if a jury returned a $100,000 verdict but found that the plaintiff was 40% negligent, then the jury award would be reduced by 40%, leaving the plaintiff with $60,000.

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New Year #3 - New Position?
As I mentioned in the last two messages-- How many of you are looking for a New Beginning? So many were waiting for their new beginning on January 1. For many, their New Beginning didn’t happen. What went wrong? Did you ever think that January 1st. is not the beginning of the year, according to God? The Romans made January 1st. the start of the year. I am not saying that you shouldn’t observe January 1 as the beginning of the year for business and tax purposes. What I am saying is that in your dealings with God you have to get on His timetable. He will not adjust to ours. He has particular seasons of how He wants to move and deal with us. We need to recognize them. The new year according to the Bible starts on Nissan 1 on the Jewish calendar (Exodus 12 v. 1). Nissan 1 falls on sundown Mar. 27, on our calendar this year. Mar. 27 is the beginning of the year, according to God. January to March is a time where God is “preparing” some of His people for their New Beginning.
This a season of preparation, a season of making sure that we continue to allow God to conform us to the image of His dear Son. If we do it God’s way we will be prepared spiritually to receive His blessings in the natural. God can sovereignty give someone a New Beginning at anytime, but generally speaking he reserves His greatest blessings for His seasons! These last three months of the year could be the most prosperous of our lives. Don't close out the year on Dec. 31. Who are we to close out a year? Only our heavenly Father can close out a year! He works with us on a year to year basis. Can a student tell a teacher when a course is completed? You could be closing out God's blessings which He hasn't done yet, in your mind. This can be translated into your spirit when you close out the year. Don't base your spiritual walk with Yahshua on man's schedule. So many "bring in the New Year" on Jan. 1 and they are really wasting their time and losing sleep. He says that he wants to crown our year with "fatness." Again, God could be ready to bless you so much in these last three months. Beginning with the first month of the year God has a timetable to do a work in our lives by the end of the year. Don't cut short His work by joining the majority of the world and closing out the year on Dec. 31. Again, don't base your spiritual walk with Yahshua on man's schedule.
Let’s look at some of the examples in the word concerning God’s positioning and repositioning. In Luke 1 v. 26, the word records that the angel Gabriel appeared to Mary and announced to her that the Son of God would be conceived in her womb. She went to her cousin Elizabeth’s house where it is recorded in v. 46-49 that the Holy Spirit overshadowed her, just as the angel said. The Holy Spirit could not cause this conception to take place where she lived. He didn’t want Joseph near her, when this happened. She had to be repositioned. Her life was never the same after that day. Nor will yours be if you allow God to have His way, even if you don’t understand what He is doing. Mary couldn’t understand how it could happen but said in v. 38- “Behold the handmaid of the Lord; be it done unto me according to thy word.” Just flow with the Holy Spirit and let Him have His way! In Genesis 26, Isaac started to dig up the wells of water that his father Abraham had previously dug and each time that he did, the Philistines would fight him and stop up with dirt what he dug. This may be the way you feel right now. Every step that you take is met with an adversary. In v. 22, the Bible records that he moved someplace else and the Philistines could not fight him over the wells. He dug up a new one and called it Rehoboth, which means room. God made room for him and He is doing the same for you. Even his enemies came to him and wanted to surrender and make a covenant with him (v. 26-30). He was repositioned and so are you. The pressure of the enemy caused the repositioning of Isaac by God. God is allowing the pressure in your life to position or maneuver you to your purpose or destiny. Allow Him to have His way. He is causing you and I to look beyond our comfort zone and our familiar territory. He may position you to where you never imagined you would be.
In the book of Acts 14 v. 19, the word said that at Lystra, people from Antioch and Iconium stoned Paul and left him for dead. After this beating Paul did an amazing thing i.e. he returned to Lystra, where he was beaten (v. 21). He preached that they “must continue in the faith and that through much tribulation enter the kingdom of God”(v.21). He was qualified to preach this because he just returned to the people that wanted to kill him. O what courage! God repositioned Paul right back where his enemy didn’t want him to be. As a result of this repositioning, he was able to ordain elders in every church. God caught the enemy by surprise, by sending Paul back to a place where the enemy thought he won a victory. God could send you back to an area where you seemed to have been defeated and win back the territory, by catching the enemy by surprise. Be open to his moving! Just as the Israelites followed the pillar of cloud by day and the pillar of fire by night, so must we follow God’s leading, even when it doesn’t make sense.

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1. A proper remedy for a state which claims that acts of a federal official are without authority and derogate from its quasi-sovereign authority is to by bill in equity in the federal court to restrain him as an individual, without joining his superior officers or the United States. P. 268 U. S. 230.
2. A decree of the district court dismissing a bill brought by a state complaining of an infringement of its right in the highways and of other reserved powers held to involve construction of the Constitution and to be appealable directly to this Court. Id.
3. The Act of January 26, 1915, creating the Rocky Mountain National Park did not authorize federal regulation of automobile traffic inconsistent with the right of the State of Colorado over traffic on her roads traversing the park area. Id.
4. It will not be assumed, without proof and in face of the state's bill to the contrary, that this right of the state has been ceded to the United States. P. 268 U. S. 231.
Appeal from a decree of the district court dismissing a bill by which the State of Colorado sought to enjoin the superintendent of a national park from carrying out certain park regulations, particularly with regard to automobile traffic, alleged to be unauthorized by Congress and in derogation of the rights and powers of the state.
"The park is open to automobiles operated for pleasure, but not to those carrying passengers who are paying, either directly or indirectly, for the use of machines. (Excepting, however, automobiles used by transportation lines operating under government franchises.)"
will be exercised over the forest reservations in the state, and it is alleged that all the main highways connecting the eastern and western parts of the state traverse either the reservations or the park, which last contains about 400 square miles. The roads were built by counties and the state under the grant of right in Revised Statutes, § 2477, before the park was laid out. It is alleged that the state never has ceded its power. The bill was dismissed for want of equity by the district court.
The object of the bill is to restrain an individual from doing acts that it is alleged that he has no authority to do and that derogate from the quasi-sovereign authority of the state. There is no question that a bill in equity is a proper remedy, and that it may be pursued against the defendant without joining either his superior officers or the United States. Missouri v. Holland, 252 U. S. 416, 252 U. S. 431; Philadelphia Co. v. Stimson, 223 U. S. 605, 223 U. S. 619-620. As the bill was dismissed upon the merits, it is not necessary to say more upon this preliminary question. Also, the direct appeal to this Court is proper, as the state complains of an infringement of its right in the highways and of its other reserved powers, and the case as made involves the construction of the Constitution of the United States.
"affect any valid . . . claim, location, or entry under the land laws of the United States, whether for homestead, mineral, right of way, or any other purpose whatsoever,"
"no lands located within the park boundaries now held in private, municipal, or state ownership shall be affected by or subject to the provisions of this Act."
aimed at the freest use of the said park for recreation purposes by the public and for the preservation of the natural conditions and scenic beauties thereof. . . . The regulations governing the park shall include provisions for the use of automobiles therein."
There is no attempt to give exclusive jurisdiction to the United States, but, on the contrary, the rights of the state over the roads are left unaffected in terms. Apart from those terms, the state denies the power of Congress to curtail its jurisdiction or rights without an act of cession from it and an acceptance by the national government. Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525. The statute establishing the park would not be construed to attempt such a result. Leavenworth, Lawrence & Galveston R. Co. v. United States, 92 U. S. 733. As the defendant is undertaking to assert exclusive control and to establish a monopoly in a matter as to which, if the allegations of the bill are maintained, the state has not surrendered its legislative power, a cause of action is disclosed if we do not look beyond the bill, and it was wrongly dismissed. The cases cited for the defendant do not warrant any such extension of the power of the United States over land within a state. Utah Power & Light Co. v. United States, 243 U. S. 389, 243 U. S. 404; McKelvey v. United States, 260 U. S. 353, 260 U. S. 359. See Omaechevarria v. Idaho, 246 U. S. 343.
to require the alleged grant to be proved. As the case can be dealt with more satisfactorily when the exact facts are before the Court, we go into no more elaborate discussion now.


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David B. Bliss, Attorney, Department of Justice, Washington, D. C. (Holmes Baldridge, Asst. Atty. Gen., Whit Y. Mauzy, U. S. Atty., Tulsa, Okl. and M. M. Heuser, Atty., Department of Justice, Washington, D. C., on the brief), for appellant.
Harry M. Crowe, Jr., Tulsa, Okl., for appellees.
Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.
The plaintiffs brought these separate actions under the Federal Tort Claims Act1 to recover damages for injuries sustained when an automobile driven by C. B. Holly was struck by a jeep owned by the United States and driven by Emil H. Maness, a member of the Oklahoma National Guard. The cases were consolidated for trial. At the time of the accident Maness was employed as a "unit caretaker" assigned to Company F of the 279th Infantry, 45th Division, Oklahoma National Guard. The court found that the injuries to the plaintiffs were caused by the negligence of Maness in the performance of his duties as a caretaker of United States property and entered judgment for each of the plaintiffs. The United States has appealed.
The United States does not question the sufficiency of the evidence to sustain the findings that Maness was negligent and at the time was engaged in the performance of his duty as a caretaker of United States property assigned to the Oklahoma National Guard. It submits only the question of whether Maness was an employee of the United States within the meaning of the Federal Tort Claims Act. We think this question must be answered in the affirmative. 32 U.S.C.A. § 42 authorizes the employment of caretakers for the care and maintenance of matériel, animals, armament and equipment belonging to the United States and assigned to National Guard organizations. The compensation for these services is paid from funds allotted by the Secretary of the Army for the support of the National Guard under such regulations as the Secretary of the Army may prescribe. The compensation paid to caretakers who belong to the National Guard is in addition to any pay authorized for the members of the National Guard. 32 U.S.C.A. § 42a provides for the use of help employed as caretakers for duties other than that of caretaker "if such additional services do not interfere with the complete performance of the duties for which they are employed".
Thus the Federal statute creates the position of unit caretaker and generally outlines the duties. The pay for these services is wholly from Federal funds. The regulations define the duties and responsibilities in detail. The maximum pay scales are fixed by the Secretary of the Army, while actual rates of pay, within the limits fixed by regulation, are established by the State Adjutant General by virtue of the delegation of that power from the Secretary of the Army. The primary duties of the caretakers are the care and maintenance of Federal property assigned to the National Guard for military purposes. Through the State Adjutant General, the Secretary of the Army and the Chief of the National Guard Bureau have complete control over the work of the caretaker, including his employment and discharge. The federal government maintains a reasonable measure of direction and control over the method and means of a caretaker's performing his service. There is present every element necessary to constitute a unit caretaker an employee of the United States.7 The fact that under the regulations the caretaker must be a member of the National Guard and perform duties for the state is immaterial. The injuries were caused while the caretaker was in the performance of his duties for the United States, not the state.
The United States apparently is of the view that our decision in Williams v. United States, 10 Cir., 189 F.2d 607, controls here. The holding in that case was that members of a unit of the National Guard which had not been ordered into active service of the United States were in the service of the state and not of the United States and were not employees of the United States within the meaning of the Federal Tort Claims Act. The complaint in the Williams case alleged that the injuries were caused by the negligence of a member of the National Guard "while acting within the scope of his employment as a member of the National Guard of Oklahoma." If, at the time of the accident, Maness had been acting within the scope of his service as a member of the National Guard of Oklahoma, there could be no recovery from the United States, but he was acting in the course of his employment as a caretaker of United States property as contemplated by the foregoing statutes and regulations, not the National Guard.
Judgment in each case is affirmed.
1. The Federal Tort Claims Act provisions now appear in 28 U.S.C.A. §§ 1291, 1346 (b), 1402, 1504, 2110, 2401, 2402, 2411, 2412 and 2671-2680.
2. "1. Authority. Accounting clerks and caretakers referred to in these regulations are employees authorized under the provisions of section 90, National Defense Act, for the administration and care of matériel armament, vehicles, and equipment provided for the National Guard and used solely for military purposes. The Secretary of the Army has delegated to the several adjutants general of States, Territories, and the District of Columbia, authority to employ, fix rates of pay, establish duties and work hours (not to exceed 40 hours per week), and to discharge employees within the purview of this regulation; subject to the provisions of law and such instructions as may from time to time be issued by the Chief, National Guard Bureau."
"4. b. (1) Unit caretakers must be members of the National Guard and of the unit for which employed. They must be qualified to perform maintenance, at the organizational level on the equipment for which the unit commander will be responsible. Such qualifications will be determined by appropriate aptitude tests."
3. "5. Travel — Travel of accounting and caretaker personnel, essential to proper performance of their official duties, is authorized. Pertinent instructions will issue from the Chief, National Guard Bureau."
4. "6. Rates of pay. — The maximum pay scale for accounting clerks and caretakers will be announced periodically by the Chief, National Guard Bureau. Actual rates of pay will be fixed by the several adjutants general within the limitations prescribed. Total payment from Federal funds will not exceed the allotment for that purpose, but supplemental payments may be made from other sources. No compensation will be paid from Federal funds for overtime work performed by accounting clerks and caretakers. Salaries paid to employees who are members of the National Guard will be in addition to any compensation authorized by law for members of the National Guard."
5. "7. Payment. — a. Caretakers and accounting clerks will be paid monthly or semimonthly on Standard Form 1128 by the finance officer designated to pay National Guard vouchers for the State concerned."
6. "12. Leave. — State adjutants general are authorized to grant accounting employees and caretakers annual leave, sick leave, and military leave (all with pay) in accordance with the provisions of a, b, c, and d, below. They will maintain a record of all absences from official duty, the duration of each absence, and its cause.
"a. Annual leave. — Employees are entitled to 15 days annual leave with pay each calendar year. Annual leave is credited to the employee's leave account at the rate of 5 hours per day period for employees paid bimonthly and 10 hours per pay period for employees paid monthly. (1) The minimum credit of annual leave is 5 hours and additional credits are in multiples of 5 hours. (2) Annual leave may be accumulated up to 30 days.
"b. Sick leave. — Employees accrue sick leave at the rate of 1¼ days per month. The monthly accrual of sick leave will be credited to the employee's leave account at the beginning of the calendar month. (1) The minimum credit of sick leave is 5 hours and additional credits are in multiples of 5 hours. (2) Sick leave may be accumulated up to 15 days.
"c. Military leave. — Military leave not to exceed 15 days will be granted to accounting clerks, who are also members of the National Guard, and to caretakers, for the purpose of attending annual field training of the units to which they are assigned. Such leave will be granted without prejudice to their pay as accounting clerks and caretakers of their pay as members of the National Guard. In this respect their status will correspond to that of Federal employees who are also members of the National Guard."
7. Singer Manufacturing Co. v. Rahn, 132 U.S. 518, 10 S.Ct. 175, 33 L.Ed. 440; United States v. Wholesale Oil Co., Inc., 10 Cir., 154 F.2d 745; Jones v. Goodson, 10 Cir., 121 F.2d 176.


In the face of ever-increasing scrutiny and falling reimbursement rates, some healthcare providers are beginning to target areas of medicine where limitations on billing are less strictly controlled. Cue the growing trend amongst healthcare systems, both locally and nationally, to open or expand trauma centers. In Pennsylvania, medical providers argue that the law gives them carte blanche for full reimbursement of trauma care in workers’ compensation claims. Effectively, this leads to limitless billing. Recent developments, however, mean that the uncontrolled costs of workers’ compensation trauma care may finally be poised for change.
On October 1, 2012, thirty hospitals in Pennsylvania were qualified as trauma centers. By September 21, 2018, that number had ballooned to forty-one, an increase of over thirty-percent in just six years. This trend is expected to continue as more health systems seek to open new facilities, or expand and upgrade already existing trauma centers.
As you may have already guessed, financial incentives appear to be driving this growth.
That same year, a confidential report from the Trauma Center Association of America obtained by the Tampa Bay Times, showed that trauma care costs are increasing steadily nationwide: a single fee associated with trauma care, the “trauma response fee” had “increased 87 percent in six years, or 15 percent per year.” Although Medicare only reimburses this fee at about $1,000.00, the average actually billed was many times higher, with some reaching as high as $77,880.00 for a single trauma response fee.
Under Pennsylvania’s Workers’ Compensation Medical Cost Containment Regulations, the majority of medical fees are capped based upon Medicare reimbursement rates. However, there is one, major exception: trauma.
Acute care for life threatening or urgent injuries, rendered in a Level I or II trauma center, is exempt from the fee caps, and is paid at “100% of the usual and customary rate.” 77 P.S. § 531(10); 34 Pa.Code. § 127.128(a). Although exempt from the medical fee caps, reimbursement for trauma care must still be based upon the “usual and customary rate”. But what exactly does that mean?
At first glance, this edict from the court offers some hope of controlling trauma billing; unfortunately, it is not so easy to translate into practice.
Once a workers’ compensation defendant receives a medical bill, the clock starts ticking: the regulations give insurers and self-insureds thirty days to respond through payment, denial, or re-pricing. This is a narrow window of time during which insurers and self-insureds have not had much success proving what regional healthcare competitors are charging for similar services. This is not surprising. In Pennsylvania, there are no readily-available databases that compile this information, and for their part, healthcare providers are reluctant to release their pricing data in the absence of legal compulsion.
The stakes in this legal dispute are no small matter. As Pennsylvania’s Workers’ Compensation insurers and self-insured employers know all too well, trauma bills can, and regularly do, approach seven figures. This is all the more frustrating given the Allegheny opinion. In theory, the law as it currently stands allows comparison and, potentially, reduction of trauma bills, but in practice, medical providers continue to demand one-hundred-percent unrestricted billing.
By now, nearly everyone who follows workers’ compensation in Pennsylvania is familiar with Protz v. WCAB (Derry Area School District), 639 Pa. 645 (2017)(“Protz”). This was the monumental Supreme Court opinion that invalidated Impairment Rating Evaluations. While the Workers’ Compensation bar is still dealing with the repercussions of the opinion, the Court’s reasoning has applications far beyond the facts of the case and may serve to invalidate the trauma care exception to medical fee caps.
In its simplest form, the non-delegation doctrine prohibits the Pennsylvania legislature from delegating its ability create laws and set public policy.
At the heart of the non-delegation doctrine, which we have described as a ‘natural corollary’ to the test of Article II, Section 1, is the tenet that the General Assembly cannot delegate ‘to any other branch of government or to any other body or authority’ the power to make law.
The legislature is permitted, however, to delegate limited authority if two, fundamental criteria are met. First, the legislature must establish the basic policy behind the law, and second, they must include “adequate standards to guide and restrain” the delegated body. Id., at 656. In Protz, the court reasoned that the legislature had failed to satisfy these requirements and thus the Act’s reliance upon Impairment Guidelines published by the American Medical Association, a private entity, was struck down as an unconstitutional delegation of legislative authority.
The legislature’s improper delegation of authority to guidelines published by private organizations may not be limited to the facts of Protz.
Recall that the trauma care exception to medical fee caps applies for acute care for life threatening or urgent injuries, rendered in a Level I or II trauma center.77 P.S. § 531(10); 34 Pa.Code. § 127.128(a). However, the legislature doesn’t squarely define what qualifies as “trauma,” nor which facilities receive Level I or Level II accreditation.
Instead, as in Protz, the legislature’s authority to define “trauma” is delegated to a private medical group, the American College of Surgeons. Likewise, accreditation of a “Level I or II trauma center” is delegated to the Pennsylvania Trauma Systems Foundation. This is another private entity recognized by the Emergency Medical Services Act which, itself, delegates authority to the American College of Surgeons (35 P.S. §§ 8100, et. seq.).
While the Emergency Medical Services Act may provide more policy considerations and restraints than the Impairment Rating Process addressed in Protz, both organizations – the American College of Surgeons and the Pennsylvania Trauma Systems Foundation – are free to set any standards they choose, with no input or accountability from the public. Thus, Pennsylvania appellate courts could very well conclude that the trauma care exception to medical fee caps fails the tests outlined in Protz: it relies upon two private entities who make their own rules without legislative or public oversight and, therefore, unconstitutionally delegates legislative authority.
The Protz Opinion has had a massive impact on the administration of Workers’ Compensation in Pennsylvania. However, its reach goes far beyond the facts of the case, and may yet shape how trauma care is paid in Pennsylvania’s workers’ compensation. This would be no small change. Trauma care creates some of the largest medical bills faced by Workers’ Compensation insurers and self-insureds, and the rapid proliferation of trauma centers means that billing volume is only going to intensify. If you would like to learn more about this subject or have questions regarding a specific case, please contact the authors or your attorneys at Chartwell Law.
 34 Pa.Code. § 127.1, et. seq.
 143 A.3d 449 (Pa.Cmwlth. 2016); see also, Geisinger Health System and Geisinger Clinic v. Bureau of Workers’ Compensation Fee Review Hearing Office, 138 A.3d 133 (Pa.Cmwlth.2016).
 143 A.3d 449, at 458 (citing, Geisinger Health System, 138 A.3d 133, at 139).
 143 A.3d, at 459 (emphasis in the original).
 As another example of thesignificance of the decision, the Protz Court cited John Locke, a 17th Century enlightenment philosopher, for this quote. 639 Pa. 645, at 655.
 See also, Pennslvania Against Gambling Expansion Fund, Inc. v.Commonwealth, 877 A.2d 383,418 (Pa. 2005).
 An analysis of recent legislation (Act 111)reinstating the IRE process can be found at: https://www.chartwelllaw.com/resources/act-111-passed-to-respond-to-pennsylvania-supreme-court-invalidation-of-ires.


§ 301-11 Permit required; fee.
§ 301-12 Application for permit.
§ 301-13 Grant or refusal of permit.
§ 301-14 Reconsideration of permit application.
§ 301-16 Numbering of permit; display; revocation; expiration.
§ 301-17 Hours of operation.
§ 301-18 Exceptions; fee discounts.
A person who, through his/her physical presence in the City, attempts to gain access to the residents, merchants, business people or any other occupant of the City in order to address such parties to impart or receive communications, information, goods, services, monies or materials of any type. It is not a requirement that the solicitor be seeking compensation or remuneration from the resident, merchant, business person or occupant.
This article shall apply only to those individuals, groups or businesses not covered by Article II, Peddlers, Hawkers and Vendors. If a question exists as to the applicability of this article or Article II, any inquiry is to be made by the party seeking clarification to the Chief of Police.
Permit required. No person shall solicit or canvass in the City without first securing a permit from the City Clerk through the Police Department and the office of the Chief of Police.
Fee. There shall be an application fee as set forth in Chapter 155, Fees, for a permit for solicitation in the City.
A person desiring a solicitor's permit from the City shall make an application to the Chief of Police at the office of the City Clerk. Such application will require any information the Chief of Police requires to make a full and complete background search of the applicant. Such information shall include, but not be limited to, name, address, age and birth date, social security number, height, weight, physical characteristics, group(s) affiliated with pertaining to the solicitation and a brief description of the purpose of the solicitation. Two passport-size photographs shall be included with the application. An applicant shall provide the Chief of Police with any additional information necessary for the applicant's background search to be fully and adequately completed.
Fraud, misrepresentation or false statement contained in the permit application.
Conviction of the applicant for any indictable offense or disorderly persons offense involving moral turpitude, fraud or dishonesty.
Provide an explanation to the applicant concerning the refusal of the permit in the form of a letter to the applicant.
Forward all approved applications to the City Clerk for issuance and calendaring. The City Clerk shall provide the Chief of Police with a two-month calendar of all permits valid during that time period on the first and 15th of each month.
An applicant may resubmit his/her application with a written explanation, qualifying documents or other papers expressing why the application should be approved.
The Chief of Police shall have seven days to reconsider the application. At the end of this period, the Chief shall provide the applicant with a final approval or denial. If no response is received by the applicant, the application should be deemed denied.
An applicant may appeal the final decision of denial to the Board of Commissioners by filing a written notice of appeal. No appeals will be heard by the Board of Commissioners until a final disposition is issued pursuant to § 301-14 above.
The appeal will be heard at the next regular Board of Commissioners meeting, provided that three days' notice exists to the Clerk prior to the regular meeting. The decision of the Board will be deemed final.
Numbering. Each issued permit shall be given an identification number solely for use on that permit.
Display. A permittee shall exhibit his/her permit to any police officer or other person upon request.
A violation which would fall under § 301-13A.
Fraud, misrepresentation or false statement made in the course of the solicitation.
Any violation of the Code of the City, the laws of the State of New Jersey or the laws of the United States of America during the course of the solicitation activities in the City.
Duration. A permit shall be valid for 14 days from the starting date requested by the applicant on the application. Any permits of longer duration shall be sought by the applicant from the Board of Commissioners. Such permission shall be sought in the manner set forth in § 301-15 once the permit has been granted.
Surrender. The permittee shall surrender the permit to the Chief of Police upon the expiration of the permit.
No person shall solicit or canvass within the City except between the hours of 9:30 a.m. and 9:00 p.m. No person shall canvass within 1,000 feet of a school for the 15 minutes prior to and the 1/2 hour subsequent to the dismissal of the school for the day.
This article shall not be construed to affect any person engaged in the delivery of goods, wares or merchandise or other articles or things in the regular course of business to the premises of persons ordering or entitled to receive same.
The applicant may petition the Board of Commissioners for a discount of the applicable fees if the applicant shows the Commissioners that it is a charitable or philanthropic, not-for-profit organization. At no time shall the discount make the applicable fee less than $15.


text:
Governor Andrew M. Cuomo today fulfilled his promise to sign into law the Reproductive Health Act, a key component of the 2019 Justice Agenda, within the first 30 days of the new legislative session. The Reproductive Health Act protects women's reproductive rights by ensuring New Yorkers can make personal healthcare decisions and medical professionals can provide crucial services without fear of criminal penalty. The legislation codifies Roe v. Wade into New York State law.
"In the face of a federal government intent on rolling back Roe v. Wade and women's reproductive rights, I promised that we would pass this critical legislation within the first 30 days of the new session - and we got it done," Governor Cuomo said. "Today we are taking a giant step forward in the hard-fought battle to ensure a woman's right to make her own decisions about her own personal health, including the ability to access an abortion. With the signing of this bill, we are sending a clear message that whatever happens in Washington, women in New York will always have the fundamental right to control their own body."
"As keepers of the torch for women's rights that was first ignited in New York State back in 1848, we have a moral responsibility to continue this fight today," said Lieutenant Governor Kathy Hochul. "Thanks to an election that saw record numbers of women elected to office, I presided over the State Senate and we finally enacted the Reproductive Health Act to protect the rights of women across our great state. We act today on the anniversary of the groundbreaking decision of Roe v. Wade and recognize the threat we face from a Supreme Court determined to overturn protections that have been in place for over four decades. Today is an historic day for women in New York, and I'm proud that we are working every day to ensure full equality and safety for women."
The Reproductive Health Act amends the public health law, de-criminalizing women's access to abortions and protecting the doctors who perform them.
In the face of Washington's assault on women's rights, including access to all health care options and guaranteed coverage of emergency contraception and other contraceptive drugs, the Governor has taken action to counter the federal government's reversals. In July 2018 the Governor signed an Executive Order directing the Department of Financial Services and Department of Health to administer regulations to insurance providers requiring them to cover over the counter emergency contraception, all other contraceptive drugs, devices or other products for women, and to provide 12 months of contraceptive at one time, all without co-insurance, co-pays or deductibles.
"Today we are taking a giant step forward in the hard-fought battle to ensure a woman's right to make her own decisions about her own personal health, including the ability to access an abortion."
Senate Majority Leader Andrea Stewart-Cousins said, "New York once led the way on choice and women's rights. Unfortunately for years, barriers to women's rights were put up, and our state has fallen behind. Today, we are tearing those barriers down and we are now leading the way again. I commend Governor Cuomo, my colleague Speaker Heastie, and both bill sponsors Senator Liz Krueger and Assemblywoman Deborah Glick for taking historic action and leading New York State forward in the fight for women's rights. It is time for New York to again serve as a progressive beacon to the nation."
Senator Liz Krueger said, "The decision about whether to have an abortion is deeply personal. It involves a complex weighing of a woman's unique circumstances, her medical needs, her private morality, and her own body. That is why it is a decision that must be made by a woman and her healthcare provider alone - not by the government. Our abortion laws, once groundbreaking, are now almost fifty years old. They do not meet the standard set by Roe v Wade, and they do not reflect modern medical practice. We will never know how many New York women have suffered and even died because our outdated laws prevented them from getting the care they desperately needed. Today we turn the page. By enacting the RHA, New York will once again lead the nation on women's reproductive healthcare, and help ensure that all New Yorkers have the freedom and opportunity to make their own decisions about their health and their families."
Assembly Speaker Carl Heastie said, "While the administration in Washington continues its assault on women's reproductive rights, the Assembly Majority remains dedicated to fighting for a woman's right to choose. The bills we passed today ensure New Yorkers can control their family planning decisions, have access to the reproductive healthcare they need and will not be discriminated against for their choices. With our new partners in the Senate we have finally seen this legislation pass both houses and signed into law on the anniversary of the historic Roe v. Wade decision."
Assemblymember Deborah J. Glick said, "New York women deserve to have their own healthcare decisions respected. Women, in consultation with healthcare professionals, and not legislators, should make decisions that affect their own health free of interference. After years of fighting for the passage of this essential protection for women, our moment has finally arrived. The New York State Assembly has kept the torch lit for years, and we are extremely excited to be able to pass the torch to a Senate dedicated to the respect of women and the protection of their basic right to make healthcare decisions. I am grateful for the Governor's support and his eagerness to sign this bill at last."
Gloria Steinem said, "A woman's power to decide whether she will give birth or not is the single greatest determinant of whether she is healthy or not, educated or not, works outside the home or not, and how long she will live. This power has been taken away by patriarchy and racism, sometimes disguised as religion, yet it is our most basic democratic right. I'm thankful to Governor Cuomo and the New York State legislature for passing the Reproductive Health Act. It will codify Roe v. Wade in New York State law, guarantee women's right to make decisions about our own bodies, and help create a future in which every child has the right to be born loved and wanted."
Andrea Miller, President of the National Institute of Reproductive Health Action Fund, said, "Governor Cuomo has tirelessly advocated for a woman's access to quality reproductive health care, especially in the face of hostile attacks from the president, U.S. Congress and Supreme Court. Today, in signing the RHA, the CCCA, and the Boss Bill, he has cemented New York's role as a progressive stronghold that prioritizes access to abortion care and contraception."
Robin Chappelle Golston, President & CEO, Planned Parenthood Empire State Acts, said, "We are here today because we demanded the right to control our own bodies and the ability to access the reproductive health care we require. New Yorkers know that no one should ever have the power to turn back the clock on our health care or take away our rights. Together advocates and our legislative champions worked to secure our reproductive freedom and rights. We thank Assembly Speaker Carl E. Heastie, Senate Majority Leader Andrea Stewart-Cousins leadership and Governor Andrew Cuomo for his vision and commitment to securing our reproductive rights."
NYCLU Executive Director Donna Lieberman said, "Today New York State took a historic vote to protect women's rights and autonomy. The Reproductive Health Act recognizes reproductive health care as a fundamental right. It takes abortion out of the criminal code and puts it where women's health belongs -- in the public health law. It recognizes the range of medical professionals that women can turn to, expanding access to early care. Together with the Comprehensive Contraception Coverage Act, this legislation will strengthen a woman's ability to decide what is right for her life, her body, and her family. As attacks on reproductive rights grow around the country, emboldened by the Trump administration's efforts to stack the courts against women, updating New York's abortion law to protect the rights guaranteed by Roe v. Wade is more critical than ever. While there is still more to do to ensure New York can be a safe haven for women all over the country, today is a day for long-overdue celebration."