In March 2008, bloggers at Wired, Boing-Boing, and Free Government Information reported that YouTube had received a Digital Millennium Copyright Act (DMCA) notice to take down a U.S. Air Force (USAF) recruiting video posted by a USAF office. The bloggers all pointed out that U.S. copyright law excludes “material produced by federal agencies” from copyright protection, and therefore, the DMCA should not apply. They also noted that the take-down notice contradicted the USAF Recruiting Command policy, which allows information on its website to “be distributed or copied.” However, in actual fact, the recruiting video was copyrighted and the USAF, as the copyright owner, had the right to decide how to distribute it.
This brouhaha over the USAF YouTube incident illustrates the common misconception that all federal government information is in the public domain. In reality, a vast amount of federal government information is copyrighted. The misconception is further perpetuated by federal agency practices that give little or no — and, when they do exist, often confusing — notice about copyright and the terms and conditions set for using the materials they distribute.
Copyright issues underlie practically every item we read, view, or listen to. Copyright protection vests automatically in both unpublished and published original works of authorship when fixed in a discernable format. No notice or action on the part of the author is required. It’s literally just there! With some exceptions (17 USC § 107- §122; http://uscode.house.gov), the law grants authors exclusive control for a limited time over the use of their works. This “bundle of five rights” includes the right to reproduce, distribute, adapt, perform, and display a work.
And the “limited time” of protection is generous. For published personal works of authorship, the term extends 70 years after the death of the author and passes to the author’s estate or heirs. Corporate works are protected for 95 years from the date of publication. Today, works published before 1923 are in the public domain. The rules governing copyright protection for works created between 1923 and 1979 vary, resulting in a large amount of material for which copyright is indeterminate (orphan works).
As to copyright protection for federal government works, let’s take a close look at the law. Title 17 USC §105 consists of a total of 37 words in one sentence with two clauses.
The first clause states: “Copyright protection under this title is not available for any work of the United States Government.” But what do the words “work of the United States Government” mean? That is the key to understanding the scope and limits of the provision. Unfortunately, 17 USC § 105 does not include or directly point to the definition found near the end of 17 USC § 101 which narrows government works to those “prepared BY an officer or employee of the United States Government as part of that person’s official duties.” In other words, only government works created by federal government employees on the job are not subject to copyright protection. The misconception that all federal government publications are not copyrighted is rooted in the 1909 Copyright Act which provided: “No copyright shall subsist in any publication of the U.S. Government or any reprint in whole or in part thereof.” The 1976 revision of the 1909 law substituted the word “work” for “publication” and added the definition to further clarify the shift of the federal government from printer to author.
The tendency to use the terms “government works,” “government information,” and “government publications” interchangeably also contributes to misperceptions. The Office of Management and Budget Circular OMB-A 130 established the policy for the Management of Federal Government Information Resources. The A-130 circular defines “government information” as “Information created, collected, processed, disseminated, or disposed of BY or FOR the Federal Government.” The “BY” or “FOR” is significant. While the first clause of 17 USC § 105 prohibits government copyright ownership in works by the government, the second allows government copyright ownership in the works of others. Apparently, most people put a mental period after the first clause, reinforcing the erroneous belief that the U.S. government cannot own copyrights. However, the second clause clearly states: “[but] the government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.” It is this provision that enables the U.S. Air Force to claim copyright in the recruiting video it commissioned to be made for the government.
Copyright legislative history shows that Congress decided that contractors and grantees were not employees for the purposes of copyright. Although works commissioned by the U.S. government may be freely available and have generous terms and conditions of use, the works are not “works of the U.S. Government” or automatically in the public domain.
Copyright in information produced for the federal government is determined by contracts and agreements in accordance with laws and policies expressed in such regulatory documentation as the Federal Acquisitions Regulation (FAR) and the Defense Federal Acquisitions Regulation Supplement (DFARS). Civilian agencies and NASA are guided by the FAR. Agencies, particularly the Department of Defense, may also have their own FAR Supplements as well. Under FAR Section 27.404-3 (a) (2) Copyrighted Works, contractors may only assert copyright in deliverables with the permission of the federal government [http://www.arnet.gov/far/current/html/Subpart%2027_4.html#wp1044946].
In general, for all other deliverables, contractors retain copyright ownership of their work and grant “the Government a paid-up nonexclusive, irrevocable, worldwide license to reproduce, prepare derivative works, distribute to the public, perform publicly, and display publicly by or on behalf of the Government, for all data (other than computer software) first produced in the performance of a contract” or agreement. The most common government license provides “unlimited rights,” which allows the federal government to share and exercise all rights of the copyright owner except for authorization of nongovernment purpose, third-party commercial uses.
In some instances, the federal government may require a contractor to transfer the copyright in a “special work” to the government. Examples of these works are listed in FAR 27.405-1 [http://www.arnet.gov/far/current/html/Subpart%2027_4.html#wp1044946] and include (but are not limited to) audiovisual works; motion picture scripts; musical compositions; sound tracks; translations; adaptations; histories of agencies, departments, services, or units; surveys of government establishments; and instruction, guidance, or training materials for government officers and employees in the performance of their official duties.
As noted before, the second clause of 17 USC § 105 allows the federal government to retain and record transfers of copyrights in “special works.” A check of the U.S. Copyright Office Registration records [http://www.copyright.gov/records] shows that many agencies have done so, thereby signaling their intent to assert and enforce their copyright. U.S. Copyright Office.
How Can You Tell What Federal Government Information Is Copyrighted?
So how much federal government information is created for the government? A 1999 Government Printing Office “Report on the Assessment of Electronic Government Information Products” found 15% of the products surveyed were copyrighted for all or part of the product. I believe the true percentage is probably two or three times that figure now, considering the federal government’s ever-growing reliance on contractors to do the work of government.
Unfortunately, federal agencies generally ignore copyright in managing their information assets and provide little or confusing guidance to the public about permitted uses of government information products. Typically, they advise users that information is not copyrighted unless otherwise stated and that, absent a notice, the information may be distributed or copied. Under current U.S. Copyright Law, a work is not in the public domain simply because it does not carry a copyright notice. A 1989 amendment to the copyright law automatically grants copyright protection to original works of authorship once fixed in a discernable format. No formality, registration, or effort on the part of an author is required for a work to be protected. Use of a copyright notice is voluntary. Even without a notice, users must assume a work is copyrighted, investigate its status, and seek permission if their intended use extends beyond the allowed exemptions in law.
Prior to joining the Berne Convention in 1989, it was reasonable and practical for the government not to give notice or mark government works. Post-Berne, this practice leads to confusion and uncertainty. When U.S. government work is separated from its originating source, guesswork faces us all.
Eliminating the Guesswork: Mark It!
In today’s “cut-and-paste” online environment, knowing what isn’t copyrighted is just as important as knowing what is. It would help both the federal government and citizens if the government would unambiguously mark and tag government works with a unique and readily recognizable symbol, legend, and metadata reflecting Title 17 USC § 105.
Social networks such as Wikipedia have also taken on the task of identifying government works. The policies, rules, and tags Wikipedia contributors follow appear under “P” at http://en.wikipedia.org/wiki/Category:Image_copyright_tags. But try as they might, they don’t always get it right. Only federal government authors are in a position to know for sure the status of works of the U.S. government.
Yes, U.S. government agencies can and do hold copyrights; sometimes the agencies even enforce them. In the March 2008 public brouhaha on the Air Force YouTube incident, the Air Force owned the copyright transferred to it by the contractor who created the recruiting ad. This transfer was stipulated under the Defense Federal Acquisitions Regulation Supplement “Special Works” contract clause. Unfortunately, the Air Force did not mark the material with its copyright notice and did not internally coordinate appropriate release channels.
Which leads us to ask again just what constitutes a ”work of the U.S. government”? This question and related issues such as the copyright status of government works published by third parties are subject matter for another follow-on article.
You can’t always tell what is a U.S. federal government agency by its name. Here’s a test for you. Which of the following are federal agencies that produce “works of the U.S. government”?
Answers: b., d., e., f., i., j.
USGovWork (17USC §105). Not subject to copyright.
This article is a United States Government work. The author is a U.S. Government employee. Copyright protection is not available for any work prepared by an officer or employee of the United States Government as part of that person’s official duties. The views presented in this article are those of the author and do not reflect the official position of the Department of Defense or U.S. Government.
Bonnie Klein's e-mail address is bklein@dtic.mil.


Appeal from the United States District Court for the Eastern District of Virginia, at Richmond.
Before SHEDD, AGEE, and WYNN, Circuit Judges.
Reversed and remanded by unpublished opinion. Judge Shedd wrote the opinion, in which Judge Agee joined. Judge Wynn wrote an opinion dissenting from the basis for the judgment.
Appellant. Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Mary E. Maguire, Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellee.
James Hill, III was working at the Amazon Fulfillment Center in Chester, Virginia, when he allegedly assaulted C.T., a fellow employee, because of C.T.’s actual or perceived sexual orientation. Consequently, the United States indicted Hill for violating 18 U.S.C. § 249(a)(2). The district court dismissed the indictment, finding § 249(a)(2) unconstitutional as applied to Hill. For the following reasons, we reverse and remand.
1 Section 249(a)(2) contains a jurisdictional element, which requires the government to establish an appropriate and sufficient connection to interstate commerce as an element of the offense.
We start by recognizing two important presumptions. First, although the district court considered the proffered facts as true in deciding Hill’s pretrial motion, every defendant comes into court presumed to be innocent. Taylor v. Kentucky, 436 U.S. 478, 483 (1978). Additionally, every statute passed by Congress is presumed to be constitutional. United States v. Morrison, 529 U.S. 598, 607 (2000).
With these presumptions in mind, we review de novo the district court’s dismissal of the indictment. United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002). “[A] challenge to the sufficiency of the indictment . . . is ordinarily limited to the allegations contained in the indictment,” and a court accepts the allegations as true. United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012). Under Rule 12, “[a] district court may dismiss an indictment . . . where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial.” Id. (citation and internal quotation marks omitted).
2 Because the district court found the statute unconstitutional as applied, it did not rule on the facial challenge. See Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485 (1989) (finding that courts should normally decide as-applied challenges first). The parties have not briefed the issue of whether the statute is facially valid. Therefore, we also decline to decide this issue.
3 At this stage, it is sufficient for the government to allege that the jurisdictional element is satisfied. Whether the government presents facts within the constitutional limitations of Congress’ commerce power can only be answered after a proper factual context is established, e.g., at trial or in a formal stipulation, for such a determination.
instance, should the prosecution fail to result in a conviction.4 See Harmon v. Brucker, 355 U.S. 579, 581 (1958) (Courts have a “duty to avoid deciding constitutional questions presented unless essential to proper disposition of a case.”); see also Bell Atl. Maryland, Inc. v. Prince George’s Cty., Maryland, 212 F.3d 863, 866 (4th Cir. 2000) (determining that the district court committed reversible error by deciding constitutional questions in advance of considering state law questions that may dispose of the case).
4 The government also presents an argument on appeal that was not directly before the district court: whether § 249(a)(2) is constitutional as applied under the Commerce Clause as a regulation of workplace conduct and discrimination. We believe the district court should consider this issue in the first instance.
5 Additionally, the proffered facts fail to indicate the precise effect on interstate commerce that Hill’s actions may or may not have had. For example, the facts relating to the items not shipped because of the assault are based on Amazon benchmarks, not the specific facts of this case. See J.A. 37. These factual uncertainties must be resolved before a court can properly rule on Hill’s as-applied constitutional challenge, as the challenge involves determining whether Hill’s conduct substantially affected interstate commerce.
presumptions of innocence and constitutionality. Facts outside of an indictment should not be used to conclusively decide whether an element of a criminal offense is satisfied during a pretrial motion, and a Congressional statute should not be overturned on an incomplete record. Thus, we conclude that the district court erred when it dismissed the indictment.
Accordingly, we reverse and remand with directions to reinstate the indictment.
Defendant James Hill, III physically assaulted a coworker preparing packages for interstate shipment because Defendant believed him to be homosexual. Recognizing that the Virginia hate crime statute does not extend to cases involving sexual orientation, the Commonwealth’s Attorney’s Office in Chesterfield County referred this case to the U.S. Attorney’s Office for the Eastern District of Virginia. Following the Attorney General’s certification that prosecuting Defendant at the federal level is in the public interest and is necessary to secure substantial justice, the government indicted Defendant under the federal Hate Crimes Prevention Act of 2009 (the “Hate Crimes Act”), 18 U.S.C. § 249(a)(2). The district court dismissed the indictment on grounds that the Hate Crimes Act, as applied to Defendant’s conduct, exceeded Congress’s authority under the Commerce Clause.
On review to this Court, the majority opinion now ignores the district court’s basis for dismissing the indictment and instead concludes that, because the government’s indictment sets forth the charged offense in the language of the statute, it satisfies the specificity requirement imposed by Fifth and Sixth Amendments. But that conclusion answers a question that Defendant never raised and the district court, unsurprisingly, never addressed. In so doing, the majority opinion elides the question that Defendant and the government properly placed before the district court and this Court: Whether Congress can enact a statute, pursuant to its authority to regulate interstate commerce, proscribing the physical assault of a victim whose job involves packing products for interstate sale and shipment and who is doing that job at the time of the assault?
If that important question is properly answered, as it should be, then it must be concluded that such a statute easily falls under Congress’s broad authority to regulate interstate commerce. The Supreme Court has consistently held that Congress has the authority to regulate criminal conduct that interferes with ongoing commercial activity subject to congressional regulation. See, e.g., Taylor v. United States, 136 S. Ct. 2074 (2016). And the Commerce Clause assuredly empowers Congress to regulate the sale and shipment of goods across state lines. See U.S. Const. art. I, § 8, cl. 3; United States v. Lopez, 514 U.S. 549, 558 (1995). Therefore, Congress may proscribe conduct—including violent assaults on individuals engaged in interstate commercial activity—that interferes with that activity.
Cavalierly, the majority ducks the only issue in this case and instead decides an issue that was neither presented by the parties nor addressed by the district court. The only issue in this case is one of first impression and of great importance—it was addressed by the district court and has now been placed squarely before us by the parties. We should not, on our own volition, create a basis for avoiding it.
employed as a “packer,” which required him to take items from the cubbyholes and load them into boxes for shipment.
At approximately 7:00 p.m. on May 22, 2015, C.T. was retrieving items to load into a box when Defendant approached C.T. from behind and—without provocation or warning—repeatedly punched him in the face. As a result of the attack, C.T. sustained numerous injuries, including a bloody nose, abrasions on his nose and cheeks, and lacerations and bruising around his left eye. Following the incident, neither Defendant nor C.T. returned to their work stations for the remainder of their ten-hour shifts. Their absences affected more than 5,500 items, which were either not shipped or not “re-binned” during that time.
Later that evening, Defendant provided a statement to the Amazon Human Resources and Loss Prevention staff before agreeing to a voluntary interview by the Chesterfield County Police Department. In each instance, Defendant explained that he “felt disrespected by C.T. because C.T. was a homosexual; that he does not like homosexuals; and that C.T. deserved to be punched because he was a homosexual.” J.A. 36. Defendant offered no other explanation for the assault.
the time of the conduct” and that the assault “otherwise affected interstate and foreign commerce.” J.A. 5.
Defendant moved to dismiss the indictment on several grounds, including that the Hate Crimes Act, as applied to his conduct, exceeded Congress’s authority under the Commerce Clause. The district court agreed with Defendant’s as-applied challenge under the Commerce Clause and dismissed the indictment. United States v. Hill, 182 F. Supp. 3d 546, 555–56 (E.D. Va. 2016). The government timely appealed.
Before analyzing whether Defendant’s prosecution is permissible under the Commerce Clause, it is first necessary to dispose of the majority opinion’s contention that addressing that question prior to trial would improperly infringe upon Defendant’s presumption of innocence and right to have every element of the charged offense found beyond a reasonable doubt by an appropriate factfinder.1 See ante at 6–7.
1 Notably, the government has not argued that the district court erred in reaching the merits of Defendant’s motion to dismiss the indictment on grounds that doing so would infringe upon Defendant’s Fifth and Sixth Amendment rights. Generally, we may not reverse a district court’s judgment based on an argument not raised by an appellant, except when failing to do so would result in a “miscarriage of justice.” A Helping Hand, LLC v. Baltimore Cty., Md., 515 F.3d 356, 369 (4th Cir. 2008) (“It is a well settled rule that contentions not raised in the argument section of the opening brief are abandoned.” (internal quotation and alterations omitted)). No miscarriage of justice results from declining to revive Defendant’s prosecution based on an argument not raised by the government, nor has the government argued as much.
disposing of a pretrial motion to dismiss an indictment, resolve factual disputes that must instead be decided at trial. See United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012). Likewise, the Supreme Court has long made clear that the Constitution provides that a criminal defendant may be convicted only if every element of a charged offense is found beyond a reasonable doubt by a proper factfinder. See United States v. Gaudin, 515 U.S. 506, 522–23 (1995); see also United States v. Ramirez-Castillo, 748 F.3d 205, 212–13 (4th Cir. 2014) (relying on Gaudin and explaining that the jury’s role is to determine the facts as to each element and apply the law as instructed by the judge to those facts).
But resolving the only issue properly before us—whether the government’s prosecution of Defendant complies with the Commerce Clause—does not tread upon Defendant’s constitutional rights. To be sure, we must closely scrutinize any judicial decision that has the potential to infringe on a criminal defendant’s rights under the Constitution. Among those rights, however, Defendant—like any other criminal defendant—has a right to defend the charges against him in the manner he sees fit. Cf. Faretta v. California, 422 U.S. 806, 818–21 (1975) (describing the constitutional foundations of a criminal defendant’s right to self-representation); see also Indiana v. Edwards, 554 U.S. 164, 184 (2008) (Scalia, J., dissenting) (“What the Constitution requires is that a defendant be given the right to challenge the State’s case against him using the arguments he sees fit.” (emphasis in original)). Here, rather than subjecting himself to the time and expense of trial (or, instead, pleading guilty and forgoing the very rights the majority seeks to preserve), Defendant elected to lodge a pretrial challenge to his prosecution based on the undisputed facts giving rise to his indictment.
Significantly, Federal Rule of Criminal Procedure 12(b)(1) provides that a defendant “may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Under Rule 12(b)(1), “a district court may consider a pretrial motion to dismiss an indictment where the government does not dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise does not dispute the pertinent facts.” United States v. Weaver, 659 F.3d 353, 355 n.* (4th Cir. 2011) (interpreting a previous version of Rule 12(b)(1), which has since been reorganized without substantive modification). Just the same, this Court and other courts routinely decide constitutional challenges to the application of criminal statutes raised in pretrial motions to dismiss an indictment. See, e.g., United States v. Nash, 627 F.3d 693, 696–97 (8th Cir. 2010); United States v. Terry, 257 F.3d 366, 367–68 (4th Cir. 2001); United States v. Wilks, 58 F.3d 1518, 1519–22 (10th Cir. 1995); see also 42 C.J.S. Indictments § 237 (2017) (“Typically, constitutional challenges to the charging statute can be raised during pretrial motions, specifically, in a motion to dismiss the indictment . . . .”).
decision on the constitutionality of the [Hate Crimes Act] as applied to Hill,” and therefore concluded that Defendant’s motion to dismiss was procedurally appropriate under Rule 12(b)(1). See Hill, 182 F. Supp. 3d at 548 n.1. We have held that a district court may resolve a defendant’s motion to dismiss an indictment in precisely these circumstances. Weaver, 659 F.3d at 355 & n.* (resolving pretrial motion to dismiss indictment raising question of statutory interpretation). Frankly, “[t]here is no good reason to force the court to incur the expense and delay of a trial that would inevitably lead to the same outcome as its pretrial ruling.” Id. at 355 n.*.
Nevertheless, the majority relies upon a concurring opinion’s assertion that, “in the ordinary course,” the question of whether a defendant’s alleged conduct satisfies a statute’s interstate commerce element is better resolved in connection with a motion for a judgment of acquittal, and not a pretrial motion to dismiss. See Terry, 257 F.3d at 373 (King, J., concurring); see also ante at 5. But a concurring opinion has no binding effect on the law in this circuit for “[i]t goes without saying that the majority opinion, not the gloss that the concurrence seeks to place thereon, is controlling.” Dababnah v. Keller-Burnside, 208 F.3d 467, 471 n.3 (4th Cir. 2000); see Maryland v. Wilson, 519 U.S. 408, 412–13 (1997) (observing that a statement in a concurrence does not “constitute binding precedent”). And even if we did accord concurring opinions some degree of precedential value, that concurrence did not embrace an absolute bar on the resolution of as-applied Commerce Clause challenges through a pretrial motion to dismiss an indictment. Rather, it suggested that such challenges should be resolved “in the ordinary course” through a motion for a judgment of acquittal. See Terry, 257 F.3d at 373 (King, J., concurring).
What the majority should rely upon is the Terry majority opinion, which unquestionably is binding on this panel and unambiguously held that, in circumstances substantively indistinguishable from the instant case, district courts should resolve an as-applied constitutional challenge raised in a motion to dismiss an indictment. Terry involved an as-applied challenge to the federal arson statute, 18 U.S.C. § 844, by two defendants charged with starting two fires in a North Carolina church. 257 F.3d at 367. Like here, the defendants moved before trial to dismiss the government’s indictment on the ground that application of the federal statute to their alleged conduct would exceed Congress’s authority under the Commerce Clause. See id. And like here, the district court convened a pretrial hearing to consider the defendants’ motion, at which the government proffered additional evidence purporting to show a nexus between the church and interstate commerce. Id. at 367–68. Also like here, the government did not dispute the district court’s authority to resolve the defendants’ pretrial motion to dismiss the indictment. See id.
government in the pretrial hearing. See id. at 368–71. This evidence, which was not set out in the underlying indictment, included allegations regarding the operation of a daycare center on the church’s premises that was damaged in the fire, as well as specific representations regarding the center’s fees, employment practices, and hours of operation. See id. at 369–70. Taking these allegations as true, the Court held that the church facilities were “actively employed in commercial activities,” such that the government could pursue its federal charges against the defendants without running afoul of the Constitution. See id. at 371.
The district court’s resolution of Defendant’s as-applied Commerce Clause challenge is therefore entirely consistent with the approach taken by this Court in Terry. With this in mind, to resolve the instant appeal, we must consider whether, taking as true all of the factual allegations proffered by the government before the district court, the indictment states an offense under the Hate Crimes Act. See id. at 367–68.
Having concluded that we are bound to consider the thrust of Defendant’s constitutional challenge to his prosecution, I further conclude that the undisputed facts—that Defendant assaulted C.T. at his place of employment while C.T. was packing boxes for interstate shipment—establish a sufficient nexus between Defendant’s conduct and interstate commerce to support a conviction under the Hate Crimes Act.
Cir. 2015) (alteration and internal quotation marks omitted) (quoting Lopez, 514 U.S. at 552). Among these enumerated powers, the Commerce Clause permits Congress “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3.
Under the Supreme Court’s modern Commerce Clause jurisprudence, “Congress is limited to regulating three broad categories of interstate activity: (1) ‘the use of the channels of interstate commerce,’ (2) ‘the instrumentalities of interstate commerce, or persons or things in interstate commerce,’ and (3) ‘activities that substantially affect interstate commerce.’” Bollinger, 798 F.3d at 209 (quoting Lopez, 514 U.S. at 558–59). In limiting federal authority to these categories, the Supreme Court has consistently invoked themes of federalism and its view that “Congress’s interstate power must be ‘read carefully to avoid creating a general federal authority akin to the police power.’” Id. at 211 (quoting Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2578 (2012)).
Id. As such, Congress concluded that “[f]ederal jurisdiction over certain violent crimes motivated by bias enables Federal, State, and local authorities to work together as partners in the investigation and prosecution of such crimes.” Id. § 4702(9).
alia, “interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct” or “otherwise affects interstate or foreign commerce.” Id. § 249(a)(2)(B)(iv).
In adopting the Hate Crimes Act, Congress sought to “invoke the full scope of [its] Commerce Clause power, and to ensure that hate crimes prosecutions brought under [§ 249(a)(2) would] not be mired in constitutional litigation.” H.R. Rep. No. 111–86, at 15 (2009). Aware of the relevant authority addressing the extent of that power, the bill’s authors sought to ensure that conduct criminalized under the statute would have “the requisite connection to interstate commerce.” See id. (“To avoid constitutional concerns arising from the decision in United States v. Lopez, 514 U.S. 549 (1995), the bill requires that the Government prove beyond a reasonable doubt, as an element of the offense, a nexus to interstate commerce in every prosecution brought under one of the newly created categories of 18 U.S.C. 249(a)(2).”); see also id. (explaining that the interstate commerce element was “drawn to comport with Supreme Court guidance in Lopez and U.S. v. Morrison, 529 U.S. 598 (2000)”); id. (explaining that “[t]he interstate commerce nexus required by the bill is analogous to that required in other Federal criminal statutes,” such as the Church Arson Prevention Act of 1996, 18 U.S.C. § 247).
Whether the Hate Crimes Act may be constitutionally applied to an unarmed assault at a victim’s place of work appears to be an issue of first impression in this Circuit or any other. See, e.g., United States v. Miller, 767 F.3d 585, 589, 602 (6th Cir. 2014) (reversing Hate Crimes Act convictions due to erroneous jury instructions and declining to consider as-applied challenge to prosecution for a series of assaults on Amish men); United States v. Mason, 993 F. Supp. 2d 1308, 1317 (D. Or. 2014) (rejecting as-applied challenge involving assault with a weapon, but noting that “it might be unconstitutional to apply the [Hate Crimes Act] . . . if the weapon [the defendant] used had not traveled in interstate or foreign commerce, or if he had not used any weapon at all”); United States v. Jenkins, 909 F. Supp. 2d 758, 764, 773 (E.D. Ky. 2012) (concluding, albeit reluctantly, that the Hate Crimes Act is constitutional as applied to defendants who kidnapped and transported victim along federal highway).
2 Because I conclude that the undisputed facts are sufficient to establish that Defendant’s conduct “interfere[d] with commercial or other economic activity in which the victim is engaged at the time of the conduct,” I need not—and thus do not—reach the question of whether Defendant’s conduct is susceptible to federal prosecution as “otherwise affect[ing] interstate or foreign commerce.” 18 U.S.C. § 249(a)(2)(B)(iv).
affect interstate commerce.” Bollinger, 798 F.3d at 209 (internal quotation marks omitted). Before the district court and this Court, the government argued that, by “interfering” with C.T.’s packaging and shipping of products, Defendant’s conduct “substantially affect[ed] interstate commerce,” as that phrase has been interpreted in decisions upholding prosecutions for robbery under the Hobbs Act, 18 U.S.C. § 1951(a), and arson under 18 U.S.C. § 844(i). I agree.
that, pursuant to its power under the Commerce Clause, Congress may proscribe violent conduct when such conduct interferes with or otherwise affects commerce over which Congress has jurisdiction. See id. Importantly, Congress may regulate violent conduct interfering with interstate commerce even when the conduct itself has a “minimal” effect on such commerce. Id. at 2079, 2081.
Much the same, the federal arson statute prohibits setting fire to “any . . . property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” 18 U.S.C. § 844(i). In Russell v. United States, 471 U.S. 858 (1985), the Supreme Court unanimously held that the statute may be applied to prosecute a defendant who set fire to a two-unit apartment building. 471 U.S. at 858–62. In reaching this conclusion, the Court noted that the statute’s broad phrasing—covering any property used in an activity affecting interstate commerce—was intended to “protect all business property, as well as some additional property that might not fit that description.” Id. at 862. The rental of the property at issue in that case was “unquestionably” covered by the statute, the Court explained, because “the local rental of an apartment unit is merely an element of a much broader commercial market in rental properties[, and t]he congressional power to regulate the class of activities that constitute the rental market for real estate includes the power to regulate individual activity within that class.” Id. As in Taylor, the Court thus indicated that Congress may regulate crime when such crime interferes with or otherwise affects commerce subject to congressional regulation. See United States v. Garcia, 768 F.3d 822, 829–30 (9th Cir. 2014).
After Lopez, and during the same term that the Supreme Court decided Morrison, the Court again addressed the constitutional sweep of the federal arson statute in Jones v. United States, 529 U.S. 848 (2000). There, the Supreme Court construed the statute to permit the government to pursue a prosecution only where the defendant’s conduct affects “property currently used in commerce or in an activity affecting commerce.” 529 U.S. at 859. In so doing, the Court recognized the potential constitutional concerns that may have arisen had Congress sought to “render . . . traditionally local criminal conduct . . . a matter for federal enforcement.” Id. at 858 (internal quotation marks omitted). To ameliorate these concerns and ensure that prosecutions under the statute involve conduct bearing a constitutionally adequate connection to interstate commerce, the Court required the government to show that a subject building was used in commerce or in an activity affecting commerce at the time of its destruction. Id. at 858–59. As in Russell, the Court’s analysis makes plain that, where a defendant’s conduct directly interferes with or otherwise affects commerce subject to congressional regulation, that conduct may be federally regulated under the Commerce Clause. To wit, as noted, this Court has since held that Section 844(i) was constitutional as applied to the prosecution of defendants who set fire to a church that provided daycare services. See Terry, 257 F.3d at 369–71.
for sale and shipment across state lines). And taking the government’s proffered evidence as true—as we must, see id. at 367—Defendant’s physical assault of C.T. directly interfered with and thwarted the packaging, shipment, and sale of over 5,500 items across state lines. Under current Supreme Court precedent, it follows that Congress has the authority to proscribe Defendant’s violent conduct. That is precisely what Congress did in enacting the Hate Crimes Act, thereby making it unlawful for a defendant to inflict bodily injury in a manner that “interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct.” 18 U.S.C. § 249(a)(2)(B)(iv)(I).
Seeking to distinguish the Hobbs Act and arson cases, Defendant argues that robbery and arson are “economic endeavors” that have “a direct connection with commerce separate from their jurisdictional elements.” Appellee’s Br. at 18–19. By contrast, in Defendant’s view, the Hate Crimes Act “does not prohibit violence related to an economic act, such as assaults done in order to further an economic interest,” and therefore exceeds Congress’s authority under the Commerce Clause. Appellee’s Br. at 14.
whether the conduct can be shown to affect economic activity subject to congressional regulation—and therefore interstate commerce—and not whether the perpetrator of the conduct was motivated by economic interest. See, e.g., Jones, 529 U.S. at 854 (requiring courts to consider the commercial function, if any, of destroyed property to determine whether its destruction may be prosecuted under the federal arson statute).
Indeed, we have consistently rejected the argument that a defendant must intend for his criminal conduct to affect interstate commerce for such conduct to be susceptible to congressional regulation under the Commerce Clause. See, e.g., United States v. Williams, 342 F.3d 350, 354 (4th Cir. 2003) (holding that the Hobbs Act “does not require proof that a defendant intended to affect commerce or that the effect on commerce was certain; it is enough that such an effect was the natural, probable consequence of the defendant’s actions”). And this Court and other circuits have concluded that federal arson statutes may be applied against defendants who set fire to property used in interstate commerce, notwithstanding that such defendants were motivated by purely personal reasons, and not any economic interest. See, e.g., United States v. Ballinger, 395 F.3d 1218, 1221–23 (11th Cir. 2005) (en banc) (upholding conviction of defendant, a self-proclaimed practicing “Luciferian,” who set fire to numerous churches because of his “hostility toward organized Christianity”); United States v. Cristobal, 293 F.3d 134, 137, 144–46 (4th Cir. 2002) (upholding federal arson conviction where defendant targeted victims based on suspicions regarding wife’s philandering and planted car bombs on vehicles driven by victims and owned by the victims’ employers); United States v. Grassie, 237 F.3d 1199, 1205, 1211 (10th Cir.
2001) (upholding conviction of defendant who set fire to truck used to haul fruits of annual harvest, even though defendant set fire to truck because victim’s mother had broken off relationship with defendant).
The firm distinction Defendant would have us draw between economic and non-economic crimes would lead to any number of anomalous results. For example, under the standard advanced by Defendant, the Commerce Clause would not permit federal authorities to prosecute an individual who—like Defendant—attacked a coworker actively engaged in the packing and shipment of a product across state lines. But, if the shipped product was a firearm and the recipient sat on a park bench within 1,000 feet of a public school while in possession of that firearm—be it the following day or seventeen years later—the recipient’s conduct would have a sufficient effect on interstate commerce to support the recipient’s conviction under the Commerce Clause. See United States v. Crump, 120 F.3d 462, 466 n.2 (4th Cir. 1997); see also United States v. Roseby, 454 F.
3 Although Defendant does not dispute the government's estimate of the number of packages impacted by the assault, the majority opinion suggests that, before resolving Defendant’s Commerce Clause challenge, further factual development is required to definitively determine the precise number of Amazon shipments affected by Defendant's assault of C.T. Ante at 6 n.5. But the Supreme Court has made clear that, for purposes of assessing an as-applied challenge under the Commerce Clause, “it makes no difference . . . that any actual or threatened effect on commerce in a particular case is minimal.” Taylor, 136 S. Ct. at 2081. Rather, “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to excise, as trivial, individual instances’ of the class.” Perez v. United States, 402 U.S. 146, 154 (1971) (quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968)). Thus, the Supreme Court has rejected Commerce Clause challenges when the charged conduct interfered with even a miniscule amount of interstate commerce. Taylor, 136 S. Ct. at 2078, 2081–82 (affirming Hobbs Act conviction based on attempted drug robberies that netted only jewelry, $40, three cell phones, and a single marijuana cigarette).
Accordingly, as long as Defendant’s assault of C.T. affected some shipments, the exact number of shipments affected by his assault has no bearing on the resolution of Defendant’s Commerce Clause challenge.
App’x 186, 188 (4th Cir. 2011). It can hardly be gainsaid that the passive possession of a firearm outside a school bears any more obvious a relationship to interstate commerce than the actual shipment of the same firearm across state lines.
4 The fallacy underlying this distinction is even more evident in light of the rising tide of automation throughout much of the American economy. Under the rule proposed by Defendant, Congress would have less authority to protect flesh-and-blood workers employed in interstate commerce than machines performing the very same tasks as those workers. I see no constitutional basis for embracing such a rule, and Defendant has pointed to none.
interstate commerce.” See Hill, 182 F. Supp. 3d at 552–55.5 Again, however, the government has the better of the argument on this score.
5 In moving to dismiss the indictment, Defendant argued, in the alternative, that the Hate Crimes Act is facially unconstitutional and that the “catch-all” jurisdictional elements included in the statute are unconstitutionally vague and overbroad. Having found the statute unconstitutional as applied in this case, however, the district court declined to reach these alternative bases for dismissing the indictment. Defendant has declined to renew these alternative arguments before this Court, and I therefore do not reach them in resolving the instant appeal.
to violent crime, regardless of how tenuously they relate to interstate commerce,” the Court said, which would unconstitutionally “‘obliterate the distinction between what is national and what is local.’” Id. at 564, 567 (quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554 (1935) (Cardozo, J., concurring)).
Morrison involved a challenge to a provision in the Violence Against Women Act which established a federal civil remedy for the victims of gender-motivated violence. 529 U.S. at 601–02. There, the Supreme Court held that the statute exceeded Congress’s power under the Commerce clause, emphasizing that “[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” Id. at 613. “The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States,” the Court explained. Id. at 618. The Court also emphasized that the Violence Against Women Act, like the Gun-Free School Zones Act, did not have an interstate-commerce jurisdictional element. Id. at 613. Finally, the Court rejected “the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Id. at 617; see also id. at 618 (“Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”).
the Hate Crimes Act under which the government indicted Defendant includes such an element. That element requires that, to convict a defendant under the Hate Crimes Act, both a court and a fact-finder must conclude that the defendant’s conduct “interfere[d] with commercial or other economic activity in which the victim is engaged at the time of the conduct.” 18 U.S.C. § 249(a)(2)(B)(iv)(I). Notably, Defendant has identified no case in which a federal criminal statute including such a jurisdictional element has been held to exceed Congress’s authority under the Commerce Clause, nor have I found any.
Additionally, the conduct giving rise to the prosecutions at issue in Lopez and Morrison—possessing a handgun on a school campus and domestic violence—did not interfere with ongoing interstate commerce or economic activity. By contrast, Defendant’s assault of C.T. interfered with such ongoing activity by preventing C.T. from continuing to prepare packages for interstate sale and shipment. The Lopez Court itself recognized this critical distinction, stating flatly that “Congress is empowered to regulate and protect . . . persons or things in interstate commerce, even though the threat may come only from intrastate activities.” 514 U.S. at 558 (emphasis added).
license to punish “crimes of violence motivated by discriminatory animus.” See Appellant’s Br. at 21. As authored, therefore, the Hate Crimes Act thus does not infringe on States’ exclusive authority to regulate violent crimes—including hate crimes—unrelated to ongoing interstate commerce. For example, if Defendant had assaulted C.T. at a private residence while C.T. was not engaged in activity related to interstate commerce, then Defendant would not be subject to prosecution under the statute.
In sum, because conduct criminalized under the Hate Crimes Act necessarily “relates to an activity that has something to do with commerce or any sort of economic enterprise,” United States v. Gibert, 677 F.3d 613, 624 (4th Cir. 2012) (internal quotation marks omitted), the statute does not open the door to pervasive federal regulation of violent hate crimes.
The immediate impact of Defendant’s assault of C.T. on ongoing commercial activity demonstrates a sufficient relationship to interstate commerce to support Defendant’s prosecution under the Hate Crimes Act. Because Defendant has thus far failed to make a “plain showing” to the contrary, see Gibert, 677 F.3d at 618, and assuming the government succeeds in proving its allegations at trial, I would find the statute is constitutional as applied in this case. Accordingly, for reasons not given in the majority opinion, the district court order to the contrary should be reversed and this case should be remanded with instructions to reinstate the challenged indictment.
before us. It should be resolved. Because the majority opinion elides that important issue, I must dissent.


Michael Valdez, the CBA Director of Legislative Relations, issued his e-Legislative Report on March 4, 2013. In this issue, he discusses the activity of the CBA Legislative Policy Committee and notable bills at the capitol.
CBA Sponsored. SB 13-77. Concerning certain provisions of the Colorado Probate Code. By Sen. Roberts and Rep. Pabon. On Feb. 27, the Senate gave final approval to the Trusts and Estate Section’s Probate Code Omnibus bill. We added a handful of amendments to the introduced version of the bill.View the bill online.
HB 13-1213. Concerning the uniform asset-freezing orders act. By Rep. Levy. On Feb. 28, the House Judiciary Committee Postponed Indefinitely (killed) the bill at the request of the sponsor. Previously, the CBA LPC had voted to request that the bill be withdrawn to allow for further study and possible amendment. It looks like we have our first summer project from the 2013 legislative session!
SB 13-11. Concerning authorization of civil unions, and, in connection therewith, making an appropriation. By Sen. Steadman and Rep. Ferrandino. On Feb. 28, the House Judiciary Committee approved the bill and sent it to the Finance Committee. This bill makes headlines each time the legislature takes it up. View the bill online.
For summaries of 20 Bills of Interest, 10 from each house, click here or stay tuned to CBA-CLE Legal Connection.
The Colorado Supreme Court issued its opinion in Pham v. State Farm Auto Insurance Co. on Monday, March 4, 2013.
Statute of Limitations—Uninsured/Underinsured Motorist Claims—CRS § 13-80-107.5.
Steven Pham, representing the estate of the driver of a car involved in a traffic accident, as well as the deceased driver’s parents and the five passengers in his car at the time, sought review of the court of appeals’ judgment. The court of appeals affirmed a summary judgment in favor of State Farm Automobile Insurance Company on the ground that plaintiffs’ claims were barred by the statute of limitations governing underinsured motorist claims, found at CRS § 13-80-107.5(1)(b).
The Supreme Court affirmed. The Court held that plaintiffs failed to file this action or demand arbitration of their underinsured motorist claims within either three years of the accrual of their cause of action or within two years after receiving payment of a settlement or judgment on an underlying bodily injury liability claim that had been preserved as prescribed by the statute.
The Colorado Court of Appeals issued its opinion in People v. Hassen on Thursday, February 28, 2013.
Defendant Omer Hassen appealed his criminal conviction following a jury trial, along with his sentence. The judgment was reversed and the case was remanded for a new trial.
During trial, the prosecution requested that the courtroom be closed during the testimony of two police officers. The prosecution explained that the witnesses were working undercover at the time of trial and expressed concerns that a spectator might recognize them as police officers. Hassen objected, contending the trial court abused its discretion when it closed the courtroom during the testimony of the two officers. However, the trial court granted the prosecution’s request and excluded the public.
Criminal defendants have a right, guaranteed by both the U.S. and Colorado Constitutions, to a public trial. Here, the trial court failed to articulate an overriding interest that would support the total closure of the courtroom, to make findings as to why Hassen’s presence in the courtroom was a risk, to consider less restrictive alternatives to total closure, and to make any findings to support the closure. Therefore, the trial court abused its discretion in ordering the total closure of the courtroom during the testimony of the two undercover police officers.
The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, February 28, 2013.
County Court—Re-Filing Complaint—Jurisdiction—Statement of Good Cause—Crim.P. 5(a)(4)(VII).
Defendant appealed the order of the district court concluding it had jurisdiction to accept his guilty plea. The order was affirmed.
On August 28, 2008, the People filed a complaint against defendant in Alamosa County Court, alleging assault in the second degree. The complaint was dismissed after the prosecution was unable to produce witnesses for a preliminary hearing. On December 12, 2008, the People re-filed the complaint in Alamosa County Court. Defendant waived his right to a preliminary hearing, and on April 6, 2009, he pleaded guilty to felony menacing in Alamosa District Court.
Defendant argued that the prosecution was not permitted to re-file the charges in county court and, alternatively, that failure to include a statement of good cause with the re-filing of felony criminal charges in county court pursuant to Crim.P. 5(a)(4)(VII) created a jurisdictional bar to his prosecution. First, Crim.P. 5(a)(4)(VII) now authorizes the re-filing of charges in county court. Next, the prosecutor’s failure to file a statement of good cause was not a jurisdictional defect but a procedural defect, which defendant waived when he pleaded guilty.
On Friday, March 1, 2013, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.
Webb v. Oklahoma Dep’t of Human Servs.


Mary E. ROTH and Michael A. Roth, Individually and as Coexecutors of the Estate of Cletus Roth, Anna M. Roth, Individually, and Bradley E. Roth, Individually, Plaintiffs, v. The EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY d/b/a Good Samaritan Society–George, Defendant.
Pressley Henningsen and Benjamin P. Long of RSH Legal, P.C., Cedar Rapids, for plaintiffs. Christopher P. Jannes and Kendall R. Watkins of Davis, Brown, Koehn, Shors & Roberts, Des Moines, for defendant.
1. Does Iowa Code section 613.15 require that adult children's loss-of-parental-consortium claims be arbitrated when the deceased parent's estate's claims are otherwise subject to arbitration?
2. Does the fact that a deceased parent's estate's claims are subject to arbitration establish that it is impossible, impracticable, or not in the best interest of the decedent's adult children for the decedent's estate to maintain their claims for loss of parental consortium, such that the loss-of-consortium claims can be maintained separately in court, notwithstanding that the estate's claims must be arbitrated?
2. It is not necessary to answer this question.
On November 27, 2013, seventy-nine-year-old Cletus Roth was admitted to a forty-five-bed nursing facility operated by The Evangelical Lutheran Good Samaritan Society (Good Samaritan) in Lyon County. Approximately two weeks later, on December 12, Cletus's son Michael signed a detailed admission agreement with Good Samaritan relating to Cletus's stay. At that time, Michael had general healthcare powers of attorney for Cletus. Cletus's daughter Mary also had the same powers of attorney.
A. Resident's Rights. Any legal controversy, dispute, disagreement or claim arising between the Parties hereto after the execution of this Admission Agreement in which Resident, or a person acting on his or her behalf, alleges a violation of any right granted Resident under law or contract shall be settled exclusively by binding arbitration as set forth in Section C. below. This provision shall not limit in any way the Resident's right to file formal or informal grievances with the Facility or the state or federal government.
B. All Other Disputes. Any legal controversy, dispute, disagreement or claim of any kind arising out of or related to this Admission Agreement, or the breach thereof, or, related to the care of stay at the Facility, shall be settled exclusively by binding arbitration as set forth in Section C. below. This arbitration clause is meant to apply to all controversies, disputes, disagreements or claims including, but not limited to, all breach of contract claims, all negligence and malpractice claims, all tort claims and all allegations of fraud concerning entering into or canceling this Admission Agreement. This arbitration provision binds all parties whose claims may arise out of or relate to treatment or service provided by the center including any spouse or heirs of the Resident.
D. Governing Law. The Parties acknowledge that the Facility regularly conducts transactions involving interstate commerce and that services provided by the Facility to the Resident involve interstate commerce. The Parties therefore agree that this Admission Agreement is a transaction involving interstate commerce. The Parties agree that this Resolution of Legal Disputes provision and all proceedings relating to the arbitration of any claim shall be governed by and interpreted under the Federal Arbitration Act (FAA), 9 U.S.C. Sections 1–16 (or as amended or superseded).
YES I DO wish to arbitrate disputes and I received a copy of this Resolution of Legal Disputes.
NO I DO NOT wish to arbitrate disputes.
Following Cletus's death, on August 14, 2015, Mary and Michael as coexecutors of his estate—as well as Mary, Michael, and their siblings Anna and Bradley individually—filed an action against Good Samaritan. The petition alleged that the defendant had “negligently cared for Cletus ․ and violated numerous regulations, laws, rights, and industry standards, causing Cletus ․ personal injury, illness, harm, and eventual death․” Five counts were set forth in the petition: “wrongful death, negligence, gross negligence, and/or recklessness,” “breach of contract,” “dependent adult abuse,” “loss of consortium for [Mary, Michael, Anna, and Bradley],” and “punitive damages.” Good Samaritan removed the case to federal court based on diversity of citizenship then moved to compel arbitration.
On December 7, the United States District Court for the Northern District of Iowa filed a memorandum opinion. It directed that the claims of Cletus's estate be submitted to arbitration. However, the district court asked this court to answer two certified questions of Iowa law relating to the adult children's loss-of-consortium claims.
II. Standard Applicable to Certified Questions.
It is within our discretion to answer certified questions from a United States district court. We may answer a question certified to us when (1) a proper court certified the question, (2) the question involves a matter of Iowa law, (3) the question “may be determinative of the cause ․ pending in the certifying court,” and (4) it appears to the certifying court that there is no controlling Iowa precedent.
Life Inv'rs Ins. Co. of Am. v. Estate of Corrado, 838 N.W.2d 640, 643 (Iowa 2013) (citation omitted) (quoting Iowa Code § 684A.1).
Here we elect to answer the certified questions. They arrive to us from a proper court, they involve matters of Iowa law, they may be determinative of the cause, and there is no controlling Iowa precedent. See Oyens Feed & Supply, Inc. v. Primebank, 879 N.W.2d 853, 858 (Iowa 2016). Additionally, both parties urge us to answer the questions. See id.
A. First Certified Question: Does Iowa Code Section 613.15 Require Adult Children's Loss–of–Consortium Claims to Be Arbitrated When the Estate's Claims Are Otherwise Subject to Arbitration?
Iowa recognizes no common law action for wrongful death. Power to maintain such actions is entirely statutory. Our first statute was enacted in 1851 as Code § 2501. That section is today § 611.20, a survival statute, which keeps alive for the benefit of his estate the cause of action which the deceased prior to his death could have brought had he survived the injury, with recovery enlarged to include the wrongful death.
Egan v. Naylor, 208 N.W.2d 915, 917 (Iowa 1973). Iowa Code section 611.20, the present statutory foundation for wrongful-death actions, provides, “All causes of action shall survive and may be brought notwithstanding the death of the person entitled or liable to the same.” Iowa Code § 611.20 (2015). Furthermore, “Code §§ 611.20, 611.22 and 633.336 and their predecessors have consistently been held to vest the right to recover wrongful death damages exclusively in the estate representative.” Egan, 208 N.W.2d at 918.
In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions, and recovery may be had on account thereof in the same manner as in cases of damage because of the wrongful or negligent injury or death of a man. In addition she, or her administrator for her estate, may recover for physician's services, nursing and hospital expense, and in the case of both women and men, such person, or the appropriate administrator, may recover the value of services and support as spouse or parent, or both, as the case may be, in such sum as the jury deems proper; provided, however, recovery for these elements of damage may not be had by the spouse and children, as such, of any person who, or whose administrator, is entitled to recover same.
So worded, Iowa Code section 613.15 empowers the administrator of a parent's estate, rather than the children, to bring an action for the children's loss of the parent's services. “In the case of a parent's death, the child's claim for loss of parental consortium should be brought by the decedent's administrator under section 613.15.” Audubon–Exira Ready Mix, Inc. v. Ill. Cent. Gulf R.R., 335 N.W.2d 148, 152 (Iowa 1983).
When a wrongful act produces death, damages recovered as a result of the wrongful act shall be disposed of as personal property belonging to the estate of the deceased; however, if the damages include damages for loss of services and support of a deceased spouse, parent, or child, the damages shall be apportioned by the court among the surviving spouse, children, and parents of the decedent in a manner as the court may deem equitable consistent with the loss of services and support sustained by the surviving spouse, children, and parents respectively.
Authority to sue for lost services and the recovery belonged to the injured person rather than the deprived spouse or child in the action under section 613.15. If the person died, the only further recovery could be made under ․ section 613.15 in the case of death of a spouse or parent. Authority to sue under section 613.15 passed to the administrator but, under section 633.336, the recovery was to be apportioned to the spouse and children of the decedent in accordance with their loss.
Madison v. Colby, 348 N.W.2d 202, 207 (Iowa 1984). The cause of action for parental consortium is “to be commenced by ․ the parent's estate” although “the ownership of the proceeds [is] in the child.” Roquet by Roquet v. Jervis B. Webb Co., 436 N.W.2d 46, 47 (Iowa 1989).
[A] child has a cause of action for loss of parental consortium and support for the death or injury of a parent by a third party․ Yet, such a claim is required to be brought by ․ the administrator of the estate under Iowa Code section 613.15.
Clark v. Estate of Rice ex rel. Rice, 653 N.W.2d 166, 174 (Iowa 2002) (citations omitted); see also Nichols v. Schweitzer, 472 N.W.2d 266, 271 (Iowa 1991) (“[S]ection 613.15 designates the personal representative of the deceased as the proper party to bring a suit for the loss of consortium of the deprived spouse. The independent claim of the deprived spouse thus passes to the administrator on death of the injured spouse.”).
Yet there is an exception to the rule that either the parent or—in the case of the death—the administrator or executor of the parent's estate must commence an action to recover damages for loss of consortium. See Nelson v. Ludovissy, 368 N.W.2d 141, 146 (Iowa 1985). In Nelson, Hans Nelson was injured when his farm tractor collided with a truck. Id. at 143. He and his wife sued the owner and the operator of the truck seeking damages for Hans's injuries and lost services and support to their minor children. Id. However, they made no claim for lost services and support on behalf of their adult children. Id. The adult children brought separate actions, which the district court dismissed. Id. We reversed. Id. at 146.
[W]e must reject appellants' claim that adult children may pursue consortium and loss of support claims under section 613.15 in their own names as a matter of right. The statute expressly provides that “recovery for these elements of damage may not be had by the ․ children, as such, of any person who ․ is entitled to recover same.” In order for either a minor or adult child to avoid this statutory proscription, we deem it necessary that the child must first establish to the court's satisfaction that it is impossible, impracticable or not in the child's best interest for the parent to maintain the action.
The required showing may be inferred from the circumstances. Where, as in the present case, the statutory plaintiff has already commenced an action omitting the claims of a child, it may be inferred that the statutory plaintiff has elected against representing the child's interests. Such circumstance will justify maintaining the action in the child's own name subject, however, to joinder with the parent's claim to the extent required by Madison. Because the issue is involved in the present actions, we conclude that for this purpose consolidation of pending actions is the equivalent of joinder.
Similarly, and again subject to the requirement of joinder with the parent's claim, we recognize that the rights of adult children to manage and control their own affairs requires that where disagreement arises over who shall control the course of the litigation, this circumstance alone should permit an adult child to maintain a claim under section 613.15 in the child's own name.
Id. In short, we recognized an exception to Iowa Code section 613.15 for circumstances when it is “impossible, impracticable or not in the child's best interest for the parent to maintain the action.” Id. We found this exception applied when the parent had commenced an action without including the adult children's consortium claims. Id.
More recently, we have held that a minor child's claim for loss of consortium of a deceased parent is subject to the separate statute of limitations applicable to minors. Christy v. Miulli, 692 N.W.2d 694, 706 (Iowa 2005). The logic of this decision was that Iowa Code section 613.15 is essentially a joinder rule for efficiency purposes. Id. at 705–06. The administrator does not “own[ ]” the cause of action. Id. at 705. Rather, “a loss-of-parental-consortium claim is independent of the wrongful death claim and belongs to the child.” Id.; see also Beeck v. S.R. Smith Co., 359 N.W.2d 482, 486–87 (Iowa 1984) (holding that a minor child's loss-of-consortium claim for an injured parent is subject to “the statute [of limitations] applicable to minors,” not the statute applicable to the parent).
Weitl v. Moes, 311 N.W.2d 259, 270 (Iowa 1981) (plurality opinion) (citations omitted) (quoting Iowa Code § 611.22), overruled on other grounds by Audubon–Exira, 335 N.W.2d at 152.
The right to recover wrongful-death damages in Iowa is vested exclusively in the estate representative, and the recovery belongs to the estate. See Iowa Code § 611.22; id. § 633.336; Troester v. Sisters of Mercy Health Corp., 328 N.W.2d 308, 312 (Iowa 1982). Wrongful-death damages are “damages the administrator of the estate can recover on behalf of the estate.” State v. Izzolena, 609 N.W.2d 541, 546 n. 2 (Iowa 2000). The administrator or executor is in all respects the successor in interest to the party that entered into the arbitration agreement. See Shook v. Crabb, 281 N.W.2d 616, 617–18 (Iowa 1979) (“[T]he capacity of an estate to bring an action for wrongful death is contingent upon the capacity of the estate's decedent to bring the action had he or she survived.”).
Notably, in other jurisdictions where wrongful-death actions are brought by a personal representative who stands in the shoes of the decedent, courts regularly hold that the personal representative must abide by any arbitration agreement of the decedent. See Briarcliff Nursing Home, Inc. v. Turcotte, 894 So.2d 661, 664–65 (Ala.2004) (holding in two actions against a nursing home that the personal representatives were “bound by the arbitration provisions contained in the admission contracts”); Laizure v. Avante at Leesburg, Inc., 109 So.3d 752, 754 (Fla.2013) (concluding that the survivors of a nursing home patient were obligated to arbitrate wrongful-death claims against the nursing home because such claims are “derivative”); Sanford v. Castleton Health Care Ctr., LLC, 813 N.E.2d 411, 422 (Ind.Ct.App.2004) (holding that wrongful-death claims must be arbitrated based upon an arbitration clause in the decedent's admission agreement because under Indiana law “a personal representative may maintain a cause of action against an alleged wrongdoer only if the decedent, if alive, might have maintained such a cause of action”); Estate of Krahmer ex rel. Peck v. Laurel Healthcare Providers, LLC, 315 P.3d 298, 300–01 (N.M.Ct.App.2013) (reasoning that “a wrongful death representative is bound to arbitrate if the decedent was personally bound by an arbitration agreement” because “the representative's rights [are] derivative of the decedent's”); MacPherson v. Magee Mem'l Hosp. for Convalescence, 128 A.3d 1209, 1226–27 (Pa.Super.Ct.2015) (holding that personal representatives bringing wrongful-death claims were “bound by otherwise enforceable arbitration agreements signed by a decedent”).
By contrast, in jurisdictions where wrongful death is regarded as an independent claim for the direct benefit of the estate's beneficiaries, i.e., the “many states” referenced in Weitl, 311 N.W.2d at 270, courts generally do not find the decedent's arbitration agreement to be binding. See Estate of Decamacho ex rel. Guthrie v. La Solana Care & Rehab, Inc., 234 Ariz. 18, 316 P.3d 607, 614 (Ariz.Ct.App.2014) (holding a wrongful-death claim against a nursing home not arbitrable because in Arizona “a wrongful death claim is independently held by the decedent's statutory beneficiaries”); Norton v. United Health Servs. of Ga., Inc., 336 Ga.App. 51, 783 S.E.2d 437, 440–41 (Ga.Ct.App.2016) (determining that an arbitration agreement executed by the decedent's authorized representative during the decedent's lifetime was not binding in a wrongful-death action because such a claim belongs to the survivors); Carter v. SSC Odin Operating Co., LLC, 364 Ill.Dec. 66, 976 N.E.2d 344, 355–58 (Ill.2012) (rejecting the argument that a wrongful-death action is “a true asset of the decedent's estate” and can therefore be limited by the decedent's agreement to arbitrate); Ping v. Beverly Enters., Inc., 376 S.W.3d 581, 600 (Ky.2012) (“[T]he wrongful death claimants would not be bound by their decedent's arbitration agreement, even if one existed, because their statutorily distinct claim does not derive from any claim on behalf of the decedent, and they therefore do not succeed to the decedent's dispute resolution agreements.”); FutureCare NorthPoint, LLC v. Peeler, 229 Md.App. 108, 143 A.3d 191, 209–10, 213 (Md.Ct.Spec.App.2016) (deciding that the decedent's arbitration agreement was not binding in a wrongful-death action because Maryland “has construed its wrongful death statute as creating a new and independent cause of action that does not belong to the decedent or the decedent's estate”); Lawrence v. Beverly Manor, 273 S.W.3d 525, 529 (Mo.2009) (en banc) (finding a deceased nursing home resident's son could bring a wrongful-death action in court despite an arbitration clause because Missouri law creates a “separate” and “not derivative” wrongful-death action to be brought by the decedent's lineal descendants); Wolcott v. Summerville at Outlook Manor, LLC, ––– N.E.3d ––––, ––––, 2016 WL 1178579, at *4 (Ohio Ct.App. Mar. 24, 2016) (holding that under Ohio law, a decedent cannot bind his or her beneficiaries to arbitrate their wrongful-death claims); Boler v. Sec. Health Care, L.L.C., 336 P.3d 468, 477 (Okla.2014) (“We agree with the courts that have held that a decedent cannot bind the beneficiaries to arbitrate their wrongful death claim. Oklahoma's Wrongful Death Act created a new cause of action for pecuniary losses suffered by the deceased's spouse and next of kin by reason of his or her death. Recovery under the wrongful death act does not go to the estate of the deceased, but inures to the exclusive benefit of the surviving spouse and children or next of kin.”); Woodall v. Avalon Care Ctr. .-Fed. Way, LLC, 155 Wash.App. 919, 231 P.3d 1252, 1258–61 (Wash.Ct.App.2010) (holding that a wrongful-death action was not subject to the decedent's arbitration agreement because the personal representative of the estate is merely a statutory agent or trustee acting in favor of the beneficiaries, with no benefits flowing to the estate of the injured deceased).
The question we are asked to answer is whether the loss-of-parental-consortium claim, which belongs to the children but is ordinarily brought by the estate, is subject to arbitration based upon the decedent's agreement to arbitrate. Both the federal district court and the parties have focused on the possibility that certain language in Iowa Code section 613.15 means that consortium claims may only be brought in court. In particular, the statute refers to an “action for damages” and, later, to a recovery “in such sum as the jury deems proper.” Iowa Code § 613.15. The Roth children maintain that the phrase “in such sum as the jury deems proper” requires consortium proceedings to be tried before a jury. The federal district court suggested, based on the combined use of the phrase “any action for damages” and the phrase “in such sum as the jury deems proper,” that section 613.15 might allow loss-of-parental-consortium claims to be asserted in jury or nonjury court proceedings, but not in arbitration. On the other hand, Good Samaritan argues that the term “any action for damages” encompasses proceedings before any tribunal for the recovery of damages and that the reference to a “jury” is just shorthand for a finder of fact.
At the outset, we are not persuaded by the Roth children's argument that Iowa Code section 613.15 requires a jury trial of consortium claims without the possibility of a jury trial waiver. The phrase, “in such sum as the jury deems proper,” does not say that such actions must proceed before a jury. It can reasonably be read as describing how damages would be determined unless the right to jury has been properly waived, such as by failure to timely demand a jury. See Iowa R. Civ. P. 1.902(1). This allows us to reconcile any conflict between section 613.15 and rule 1.902(1). See Iowa Code § 4.7 (stating that we construe general and special provisions if possible to avoid conflicts); Des Moines Flying Serv., Inc. v. Aerial Servs. Inc., 880 N.W.2d 212, 221 (Iowa 2016) (“Our job is to harmonize these statutes to give effect to each.”).
Additionally, the presence of the words “any action for damages” at the beginning of section 613.15 to some extent undercuts the Roth children's position that the phrase “in such sum as the jury deems proper” later in the statute establishes a nonwaivable right to a jury trial on parental consortium claims. Clearly, “any action for damages” must include a nonjury proceeding. So, if the Roth children were right, section 613.15 would allow wrongful-death claims to be heard by the court but require consortium claims brought by the same administrator in the same case to be heard by a jury. That would be incongruous. See Iowa Code § 4.4(3) (“In enacting a statute, it is presumed that ․ [a] just and reasonable result is intended.”).
Also noteworthy are the circumstances surrounding the enactment of Iowa Code section 613.15's predecessor in 1911. See 1911 Iowa Acts ch. 163, § 1 (providing that when a woman is injured by a negligent or wrongful act resulting in death, “her administrator may sue and recover for her estate, the value of her services as a wife or mother or both in such sum as the jury may deem proportionate to the injury resulting in her death.”). At that time, a separate Iowa statute authorized jury trial waivers, just as rule 1.902(1) does today. See Iowa Code § 3733 (1897). One could logically conclude that when the general assembly adopted 1911 Iowa Acts chapter 163, it well understood that the right to have a jury could be waived in accordance with preexisting law.
This would not be the only instance where the Iowa Code literally refers to a jury determination but, in context, the reference means a determination by the factfinder. For example, Iowa Code section 622.25 allows handwriting evidence to be given “by comparison by the jury, with writings of the same person which are proved to be genuine.” Iowa Code § 622.25 (2015). A judge conducting a bench trial surely has the same authority to compare handwriting. Similarly, chapter 646 regarding recovery of real property states that “[i]n case of wanton aggression on the part of the defendant, the jury may award exemplary damages.” Id. § 646.21. Presumably the court could award those damages even if the trial were not to a jury. And Iowa Code section 659.6 provides that in defamation cases, “an unproved allegation of the truth of the matter charged shall not be deemed proof of malice, unless the jury on the whole case finds that such defense was made with malicious intent.” Id. § 659.6. Again, we think this directive would apply even if the defamation case were tried to the court.
If Iowa Code section 613.15 established a nonwaivable right to a jury trial on consortium claims, so far as we know it would be the only area of Iowa law where a jury could not be waived. In Peoples Natural Gas Co., Division of UtiliCorp United Inc. v. City of Hartley, we held that the jury could be waived in condemnation cases, notwithstanding language in Iowa's constitution providing that “damages shall be assessed by a jury” in such cases. 497 N.W.2d 874, 876 & n. 2 (Iowa 1993) (quoting Iowa Const. art. I, § 18). For the foregoing reasons, we reject the Roth children's position that section 613.15 consortium claims can only be decided by juries.
However, to this point we have only determined that a jury trial may be waived in favor of a bench trial in a consortium action under section 613.15. This leaves open the larger question whether a consortium action must be arbitrated if the decedent (or as here his attorney in fact) entered into a binding arbitration agreement. We are not convinced that the phrase “any action for damages” in Iowa Code section 613.15, read in context, establishes only a right to proceed in court and not by way of arbitration. For one thing, the word “any” is broad. See Dolphin Residential Coop., Inc. v. Iowa City Bd. of Review, 863 N.W.2d 644, 660 (Iowa 2015) (Zager, J ., dissenting) (noting the breadth of the term “any”). Arbitration, of course, is another way to waive a jury. See Iowa Code § 679A .1(1).
Moreover, we are guided by the principle that we construe statutes to avoid constitutional infirmities. See Iowa Dep't of Human Servs. v. Cmty. Care, Inc., 861 N.W.2d 868, 869 (Iowa 2015) (referring to “the principle that we avoid interpreting ambiguous statutes in a manner that leads to constitutional difficulties”); Simmons v. State Pub. Def., 791 N.W.2d 69, 73–74, 88 (Iowa 2010) (“Ordinarily, we construe statutes to avoid potential constitutional infirmity if we may reasonably do so.”); see also Iowa Code § 4.4(1) (setting forth a presumption that in enacting a statute, compliance with the Iowa and United States Constitutions is intended).
as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence.
Id. at ––––, 132 S.Ct. at 1203182 L.Ed.2d at 45 (quoting Brown ex rel. Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250, 292 (W.Va.2011)).
West Virginia's prohibition against predispute agreements to arbitrate personal-injury or wrongful-death claims against nursing homes is a categorical rule prohibiting arbitration of a particular type of claim, and that rule is contrary to the terms and coverage of the FAA.
Id. at ––––, 132 S.Ct. at 1203–04182 L.Ed.2d at 45 (citing inter alia Concepcion and Preston); see also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 56, 115 S.Ct. 1212, 1215–16, 131 L.Ed.2d 76, 83–84 (1995) (FAA preempts state law requiring judicial resolution of punitive damage claims); Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1, 12 (1984) (FAA preempts state statute's bar on arbitration of claims brought under that statute).
Marmet Health heightens our doubts as to the constitutionality of a construction of Iowa Code section 613.15 that would require all consortium claims to be resolved in a judicial forum. Such an outcome would result in “a categorical rule prohibiting arbitration of a particular type of claim,” and would appear to trigger FAA preemption. See Weaver v. Doe, 371 P.3d 1170, 1177 (Okla.Civ.App.2016) (applying Marmet Health and ordering arbitration of a personal injury claim against a nursing home notwithstanding a provision of the Oklahoma Nursing Home Care Act that rejected arbitration of such claims); Fredericksburg Care Co., L.P. v. Perez, 461 S.W.3d 513, 528 (Tex.2015) (ordering arbitration of a wrongful-death claim against a nursing home after finding that a Texas statute limiting arbitration of claims against health care providers was preempted by the FAA).
Nonetheless, we do not find the Roth children's consortium claims subject to arbitration under the facts certified to us. These claims belong to the adult children, and they never personally agreed to arbitrate. See Order Certifying Questions at 6 (“The Roth children are correct that none of them signed the arbitration agreement in their individual capacities or otherwise agreed to arbitration of their individual claims.”). While loss-of-consortium claims under Iowa Code section 613.15 could be subject to arbitration, a decedent's arbitration agreement alone is an insufficient basis for this outcome.
We reach this conclusion for several reasons. First, it bears emphasis that the child owns the cause of action and the personal representative is “merely the conduit, the nominal plaintiff,” when bringing the child's consortium claim under Iowa Code section 613.15. See Beeck, 359 N.W.2d at 487; see also Christy, 692 N.W.2d at 706. The purpose for this arrangement is simply “to reduce a multiplicity of suits and the possibility of double recovery.” Beeck, 359 N.W.2d at 487; see also Christy, 692 N.W.2d at 705–06. Hence, as noted, we have previously held that the child's statute of limitations, not the personal representative's, applies to consortium claims. Christy, 692 N.W.2d at 706. We have also accepted that this rule “may result in a child's claim being prosecuted independently.” Id. As we have noted in a different setting, “[T]he substantive rights of a plaintiff can be at stake through the application of a statute of limitations.” Rucker v. Taylor, 828 N.W.2d 595, 603 (Iowa 2013). Accordingly, we do not allow the identity of the nominal plaintiff to define substantive rights when it comes to the statute of limitations for consortium claims.
The FAA too has been viewed as substantive law. It “rests on the authority of Congress to enact substantive rules under the Commerce Clause.” Southland Corp., 465 U.S. at 11, 104 S.Ct. at 858, 79 L.Ed.2d at 12. It is “a body of federal substantive law.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765, 785 (1983). Given the FAA's status as substantive law, it seems quite wrong that an adult child could be bound to that body of law absent his or her agreement, simply because the adult child's claim is routed procedurally through a different party. This, in our view, confuses substance with procedure. See Mission Residential, LLC v. Triple Net Props., LLC, 275 Va. 157, 654 S.E.2d 888, 891 (Va.2008) (finding that a claim filed by a member of a limited liability company on behalf of the LLC was not subject to the member's arbitration agreement because the member was only a “nominal plaintiff” bringing suit on behalf of the LLC).
Second, even if we held that consortium claims brought by a personal representative were subject to the decedent's arbitration agreement, the children would have an easy way to avoid arbitration. Under Nelson, if “the statutory plaintiff has already commenced an action omitting the claims of a child,” the child may bring the consortium claim directly. 368 N.W.2d at 146. So, in the future, lawyers could sidestep arbitration simply by the expedient of filing a wrongful-death claim without including any consortium claim, then later filing a consortium action in court naming the children as plaintiffs. Normally, we don't interpret our law as endorsing rules that can be easily circumvented.
Third, in jurisdictions where the wrongful-death claim belongs to the survivors but is brought by the personal representative, courts regularly hold that the decedent's arbitration agreement does not lead to arbitration of the wrongful-death case. Here, the situation is somewhat analogous: Under Iowa law, one party owns the claim, but a different party gets to file it.
For example, Ohio courts hold that a personal representative is not bound to arbitrate a wrongful-death claim despite a decedent's arbitration agreement because “[a] decedent cannot bind his or her beneficiaries to arbitrate their wrongful-death claims.” Wolcott, ––– N.E.3d at –––, 2016 WL 1178579, at *2 (alteration in original) (quoting Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134, 873 N.E.2d 1258, 1259 (Ohio 2007)). In Ohio, the personal representative is just the “nominal party” bringing the claim. Id. (quoting Peters, 873 N.E.2d at 1259). So too in Kentucky. See Ping, 376 S.W.3d at 598, 599 (noting that in Kentucky, the wrongful-death cause of action is “prosecuted by the personal representative” but “accrues separately to the wrongful death beneficiaries and is meant to compensate them for their own pecuniary loss”). Likewise in Oklahoma. See Boler, 336 P.3d at 476 (noting that a wrongful-death action is “maintained by the personal representative of the deceased person” but “[t]he amounts recovered are distributed to those designated [survivors] as specified in the statute”). Similarly, in Washington, although the personal representative is “the exclusive statutory agent to bring the wrongful death claims on behalf of the heirs,” no benefits flow to the estate and the decedent's arbitration agreement therefore has no effect. Woodall, 231 P.3d at 1258–59; see also Estate of Decamacho, 316 P.3d at 614 (finding not arbitrable “the wrongful death claim[ ] brought by [the personal representative] on behalf of herself, Ramiro Camacho, and Candelario Camacho”); Norton, 783 S.E.2d at 440–41; Carter, 364 Ill.Dec. 66, 976 N.E.2d at 355–56; FutureCare NorthPoint, 143 A.3d at 212–13 We think the same principle applies here, and the nominal plaintiff status of the administrator or executor is not enough to compel arbitration of claims owned by the adult children and not by the estate.
As the certifying federal district court observed, we have in the past characterized the loss of consortium cause of action as “derived” and not “independent.” Roquet by Roquet, 436 N.W.2d at 47. But it is important to note the context in which these terms were used. We meant that the consortium cause of action is derived from a statute, not that it is derivative of the decedent's rights and therefore subject to the decedent's litigation-related agreements. See id. (stating that “this cause of action was derived from Iowa Code section 613.15”). For all these reasons, we determine that under Iowa law, adult children's loss-of-consortium claims are not arbitrable just because the wrongful-death action is otherwise arbitrable.
B. Second Certified Question: Does the Fact That a Deceased Parent's Estate's Claims Are Subject to Arbitration Establish That It Is Impossible, Impracticable, or Not in the Best Interest of the Decedent's Adult Children for the Decedent's Estate to Maintain Their Claims for Loss of Parental Consortium? In light of our answer to the previous question, this question has become moot.
We have answered the certified questions as set forth above for the reasons stated and return this case to the United States District Court for the Northern District of Iowa for further proceedings consistent with this opinion.
1. We note that in a final rule published October 4, 2016, the Federal Centers for Medicare & Medicaid Services will prohibit nursing homes that receive Medicare or Medicaid funding from entering into this type of arbitration agreement:A facility must not enter into a pre-dispute agreement for binding arbitration with any resident or resident's representative nor require that a resident sign an arbitration agreement as a condition of admission to the [long-term care] facility.Medicare and Medicaid Programs; Reform of Requirements for Long–Term Care Facilities, 81 Fed.Reg. 68,688, 68,867 (Oct. 4, 2016) (to be codified at 42 C.F.R. pt. 483).
2. The FAA provides,A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.9 U.S.C. § 2 (2012).[M]any—if not all—federal and state courts have held that nursing home residency contracts similar to the one at issue here implicate interstate commerce and the FAA. Generally, these holdings center on a common theme: nursing home residency contracts usually entail providing residents with meals and medical supplies that are inevitably shipped across state lines from out-of-state vendors.Dean v. Heritage Healthcare of Ridgeway, LLC, 408 S.C. 371, 759 S.E.2d 727, 732 (S.C.2014).Given that the arbitration agreement at issue indisputably involves commerce and that Arbor Brook is subject to federal regulation and control, we conclude that the FAA applies to the arbitration agreement Plaintiff signed as a mandatory condition of nursing home admission.Strausberg v. Laurel Healthcare Providers, LLC, 304 P.3d 409, 417 (N.M.2013). In the present case, it is undisputed that Good Samaritan procures medical equipment and supplies from a number of out-of-state sources and receives approximately half its income from the Medicare and Medicaid programs.


text:
11 §2-104. Definitions: "merchant"; "between merchants"; "financing agency"
11 §2-105. Definitions: transferability; "goods"; "future" goods; "lot"; "commercial unit"
11 §2-106. Definitions: "contract"; "agreement"; "contract for sale"; "sale"; "present sale"; "conforming" to contract; "termination"; "cancellation"
11 §2-323. Forms of bill of lading required in overseas shipment; "overseas"
11 §2-325. "Letter of credit" term; "confirmed credit"
11 §2-403. Power to transfer; good faith purchase of goods; "entrusting"
11 §2-707. "Person in the position of a seller"

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