1. Under the National Housing Act, as amended, which provides that the Administrator shall, in carrying out the provisions of certain of its titles, "be authorized, in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal," the Federal Housing Administration is subject to be garnished, under state law, for moneys due to an employee; but only those funds which have been paid over to the Administration in accordance with § 1 of the Act and which are in its possession, severed from Treasury funds and Treasury control, are subject to execution. Pp. 309 U. S. 249 -250.
2. Waivers by Congress of governmental immunity from suit in the case of such federal instrumentalities should be construed liberally. P. 309 U. S. 245 .
3. The words "sue and be sued," in their normal connotation, embrace all civil process incident to the commencement or continuance of legal proceedings. Garnishment and attachment commonly are part and parcel of the process provided by statute for the collection of debts. P. 309 U. S. 245 .
289 Mich. 91, 286 N.W. 169, affirmed.
Certiorari, 308 U.S. 541, to review the affirmance of a judgment against the Federal Housing Administration in a garnishment proceeding.
of his death $71.11. Its answer further asserted that it was "an agency of the United States Government, and is therefore not subject to garnishee proceedings." On motion of respondent, judgment was entered against petitioner for the amount of its indebtedness to Brooks, and execution was allowed thereunder. On appeal to the Supreme Court of Michigan, that judgment was affirmed.
"The Administrator shall, in carrying out the provisions of this title and titles II and III, be authorized, in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal."
Since consent to "sue and be sued" has been given by Congress, the problem here merely involves a determination of whether or not garnishment comes within the scope of that authorization. No question as to the power of Congress to waive the governmental immunity is present. For there can be no doubt that Congress has full power to endow the Federal Housing Administration with the government's immunity from suit or to determine the extent to which it may be subjected to the judicial process. Federal Land Bank v. Priddy, 295 U.S.
229; Keifer & Keifer v. Reconstruction Finance Corp., 306 U. S. 381 .
As indicated in Keifer & Keifer v. Reconstruction Finance Corp., supra, we start from the premise that such waivers by Congress of governmental immunity in case of such federal instrumentalities should be liberally construed. This policy is in line with the current disfavor of the doctrine of governmental immunity from suit, as evidenced by the increasing tendency of Congress to waive the immunity where federal governmental corporations are concerned. Keifer & Keifer v. Reconstruction Finance Corp., supra. Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to "sue and be sued," it cannot be lightly assumed that restrictions on that authority are to be implied. Rather, if the general authority to "sue and be sued" is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, [ Footnote 3 ] that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that, for other reasons, it was plainly the purpose of Congress to use the "sue and be sued" clause in a narrow sense. In the absence of such showing, it must be presumed that, when Congress launched a governmental agency into the commercial world and endowed it with authority to "sue or be sued," that agency is not less amenable to judicial process than a private enterprise under like circumstances would be.
against a public body though it may "sue and be sued" [ Footnote 9 ] are not persuasive here, as they reflect purely local policies concerning municipalities, counties, and the like, and involve considerations not germane to the problem of amenability to suit of the modern federal governmental corporation.
Our conclusion is strengthened by the legislative history of the many recently created governmental agencies or corporations. It shows that in but few instances was a proviso added to the "sue and be sued" clause prohibiting garnishment or attachment. [ Footnote 10 ] The fact that, in the run of recent statutes, no such exceptions were made, and that in only a few of them were any special prohibitions included, adds corroborative weight to our conclusion that such civil process was intended.
"prescribe their authorities, duties, responsibilities, and tenure and fix their compensation, without regard to the provisions of other laws applicable to the employment or compensation of officers or employees of the United States;"
"make such expenditures (including expenditures for personal services and rent at the seat of government and elsewhere, for law books and books of reference, and for paper, printing, and binding) as are necessary to carry out the provisions of this title and titles II and III, without regard to any other provisions of law governing the expenditure of public funds."
therefore not to enlarge petitioner's liability nor to add one iota to the scope of § 1. For the end result is simply to allow a suit for the collection of a claim on which Congress expressly made petitioner suable. The mere change in the payee does not make the suit unrelated to the duties and liabilities of the Administrator under § 1.
But petitioner strongly urges considerations of policy against this conclusion and stresses the heavy burdens which would be imposed on such governmental instrumentalities if garnishment were permitted. It asserts that the task of preparing answers, disclosures and returns to numerous garnishment processes in the courts of each of the states would appreciably impede the federal functions of such an agency. It points to various state legislation regulating and restricting garnishment against public bodies and concludes that, if immunity of public bodies from garnishment is to be abrogated, it should be done by legislation so that the remedy could be appropriately molded to fit the needs of government.
In our view, however, the bridge was crossed when Congress abrogated the immunity by this "sue and be sued" clause. And no such grave interference with the federal function has been shown to lead us to imply that Congress did not intend the full consequences of what it said. Hence, considerations of convenience, cost and efficiency [ Footnote 12 ] which have been urged here are for Congress which, as we have said, has full authority to make such restrictions on the "sue and be sued" clause as seem to it appropriate or necessary.
statute authorizes suits by or against the Administrator "in his official capacity" we conclude that that permits actions by or against the Federal Housing Administration. The Administrator acts for and on behalf of the Federal Housing Administration, since by express terms of the Act all of the powers of the latter "shall be exercised" by him. Hence, action by him in the name of the Federal Housing Administration would be action in his official capacity.
MR. JUSTICE MURPHY did not participate in the consideration or decision of this case.
Garnishment of wages due an employee of the United States Shipping Board Merchant Fleet Corporation was disallowed in MacCarthy v. United States Shipping Board Merchant Fleet Corp., 60 App.D.C. 311, 53 F.2d 923. Contra: Haines v. Lone Star Shipbuilding Co., 268 Pa. 92, 110 A. 788. As to the Home Owners' Loan Corporation, a similar conflict of decisions has arisen. That it is not subject to garnishment, see Home Owners' Loan Corp. v. Hardie & Caudle, 171 Tenn. 43, 100 S.W.2d 238. And see Manufacturer's Trust Co. v. Ross, 252 App.Div. 292, 299 N.Y.S. 398. That it is subject to garnishment, see Central Market, Inc. v. King, 132 Neb. 380, 272 N.W. 244; Gill v. Reese, 53 Ohio App. 134, 4 N.E.2d 273; McAvoy v. Weber, 198 Wash. 370, 88 P.2d 448.
Mich.Stat.Ann. (1938) § 27.1855 et seq.
Cf. Porto Rico v. Rosaly y Castillo, 227 U. S. 270 .
See Shinn, Attachment & Garnishment, Chs. I, XXIII. As to garnishment of wage claims, see Sturges & Cooper, Credit Administration and Wage Earner Bankruptcies, 42 Yale L.Journ. 487, 503 et seq.
Cf. Williams v. T. R. Sweat & Co., 103 Fla. 461, 137 So. 698; Campagna v. Automatic Electric Co., 293 Ill.App. 437, 12 N.E.2d 695, with Commercial Investment Trust, Inc. v. William Frankfurth Hardware Co., 179 Wis. 21, 190 N.W. 1004; Diamond Cork Co. v. Maine Jobbing Co., 116 Me. 67, 100 A. 7.
Col.Code Civ.Proc., ch. 7, § 129; Deering's Calif.Code Civ.Proc. § 543.
N.Y.Civ.Prac. Act, § 684; 12 Purdon's Penn.Stat. § 2994. In Michigan, no garnishment for money owing the principal defendant on account of labor performed by him shall be commenced until after judgment has been obtained against such principal defendant. Mich.Stat.Ann., § 27.1855.
"The term is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought is a suit."
Central of Georgia Ry. Co. v. Andalusia, 218 Ala. 511, 119 So. 236; Duvall County v. Charleston Lumber & Mfg. Co., 45 Fla. 256, 265, 33 So. 531; Chicago v. Hasley, 25 Ill. 595.
As respects the forty government corporations listed in Keifer & Keifer v. Reconstruction Finance Corp., supra, pp. 306 U. S. 390 -391, where Congress included the authority to "sue and be sued," express prohibition against attachment and garnishment was provided in only two instances. They are the Federal Crop Insurance Corporation (52 Stat. 72, 73) and the Farmer's Home Corporation (50 Stat. 527).
While the record shows that Brooks had been "connected" with the petitioner it does not show the nature of the debt due him. The brief which petitioner filed below, however, recited that Brooks was an employee, and no defense was interposed that the claim did not arise under Title I of the Act.
Cf. Fortas, Wage Assignments in Chicago, 42 Yale L.Journ. 526; Nugent, Hamm, Jones, Wage Executions for Debt, Bull. No. 622, Bureau of Lab. Statistics, U.S.Dept. of Labor.
Fifth Annual Report, Federal Housing Administration (1938), p. 157.
See Nashville, C. & St.L. Ry. Co. v. Wallace, 288 U. S. 249 , 288 U. S. 263 ; Commonwealth Finance Corp. v. Landis, 261 F. 440, 443, 444. Cf. Pauchogue Land Corp. v. Long Island State Park Commission, 243 N.Y. 15, 152 N.E. 451; New South Wales v. Bardolph, 52 Commonwealth L.Rep. 455.


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Posts tagged Tax Reform Act of 2014.
As reported in my November 2014 blog post, President Obama’s administration wants to limit taxpayers’ ability to defer income under IRC § 1031. In response to former House Ways and Means Committee Chairman David Camp’s proposed Tax Reform Act of 2014, which would have eliminated IRC § 1031 altogether, the Obama administration proposed to retain the code section, but limit deferral with regard to real property exchanges to $1 million per taxpayer each tax year. Personal property exchanges, under the President’s proposal, would go unscathed.
In 2015, President Obama expanded his proposal relative to IRC § 1031 to limit personal property exchanges by excluding certain types of property from the definition of “like kind.” The excluded personal property included items such as collectibles and art. The President’s proposed $1 million real property exchange limitation was left intact.
I am not sure any real logic or significant tax policy supports the White House’s latest proposal to limit the application of IRC § 1031. Rather, the proposal appears to be solely aimed at tax revenue generation. According to the Treasury, the proposal, if enacted into law, would increase tax revenues by $47.3 billion over 10 years.
IRC § 1031 is clearly on lawmakers’ radar screens as a means to increase tax revenues. Time will tell whether IRC § 1031 will be repealed or significantly curtailed in its application. Nevertheless, one thing is for sure: IRC § 1031 remains a potential target. Stay tuned!


Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 (herein "the Vacancies Reform Act" or "the Act") at the Department of Energy (DOE), with respect to the Director of the Office of Science position. The Director of the Office of Science is a Presidential appointment subject to Senate confirmation, and thus is subject to the Vacancies Reform Act. 5 U.S.C. 3345(a). Specifically, we are reporting that the service of Dr. Patricia Dehmer as Acting Director of the Office of Science from the period of November 14, 2013, until November 18, 2013, and from July 16, 2015, until December 17, 2015, was in violation of the Act. Since the position was subsequently filled, we believe no further action on this issue is necessary.
Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 (herein “the Vacancies Reform Act” or “the Act”) at the Department of Energy (DOE), with respect to the Director of the Office of Science position. The Director of the Office of Science is a Presidential appointment subject to Senate confirmation, and thus is subject to the Vacancies Reform Act. 5 U.S.C. § 3345(a). Specifically, we are reporting that the service of Dr. Patricia Dehmer as Acting Director of the Office of Science from the period of November 14, 2013, until November 18, 2013, and from July 16, 2015, until December 17, 2015, was in violation of the Act. Since the position was subsequently filled, we believe no further action on this issue is necessary.
The Vacancies Reform Act establishes requirements for temporarily authorizing an acting official to perform the functions and duties of certain vacant positions that require Presidential appointment and Senate confirmation. The Act generally limits the period of time that such a position may be filled with an acting official to 210 days. 5 U.S.C. § 3346(a)(1). After expiration of the allowed period of service, the position is to remain vacant. 5 U.S.C. § 3348(b). Section 3349(b) requires the Comptroller General, upon a determination that an acting official has served longer than the 210-day period (and any applicable extensions), to report such findings to Congress, the President, and the Office of Personnel Management.
As required by the Vacancies Reform Act, DOE reported to GAO on October 17, 2013, that a vacancy in the position of Director of the Office of Science, DOE, occurred on April 13, 2013. DOE further reported that Dr. Patricia Dehmer began serving as Acting Director of the Office of Science on April 13, 2013. Prior to that date, Dr. Dehmer held the position of Deputy Director for Science Programs in DOE’s Office of Science. On November 18, 2013, the President nominated Marc Kastner for the position of Director of the Office of Science for the first time. Mr. Kastner’s first nomination was returned on January 3, 2014. Mr. Kastner was nominated for a second time on January 6, 2014, and his second nomination was returned on December 17, 2014. On August 5, 2015, Cherry Murray was nominated for the position of Director of the Office of Science and on December 10, 2015, Ms. Murray was confirmed. DOE reported that Dr. Dehmer ceased to serve as Acting Director of the Office of Science on December 17, 2015.
As noted above, the Vacancies Reform Act generally limits the service of acting officials to 210 days from the date of the vacancy. 5 U.S.C. § 3346. In this instance, the 210-day limit on the period of acting service ended on November 9, 2013, but since the Senate was not in session on that day, the Act extended the 210-day period to the day after the Senate next reconvened, which was November 13, 2013. The Act also contains a spring-back provision that allows an acting official to resume performing the duties of the office once a first or second nomination is submitted to the Senate for the period that such nomination is pending in the Senate. Thus, Dr. Dehmer could resume her service as Acting Director on November 18, 2013, when the President submitted Mr. Kastner’s nomination to the Senate. However, Dr. Dehmer’s service as Acting Director from November 14, 2013, until November 18, 2013, was in violation of the time limitation in the Act.
The Act also allows acting service for up to 210 days after the date that a first or second nomination has been rejected, withdrawn, or returned. Thus, Dr. Dehmer was permitted to continue her service as Acting Director of the Office of Science through July 15, 2015, which was the end of the 210-day period of permissible acting service after the return of the second nomination on December 17, 2014. Therefore, Dr. Dehmer’s service from July 16, 2015, until December 17, 2015, violated the Act.
In accordance with the requirements of the Vacancies Reform Act, we are sending letters reporting this violation to the chairs and ranking members of the Senate Committee on Homeland Security and Governmental Affairs, Senate Committee on Energy and Natural Resources, House Committee on Oversight and Government Reform, House Committee on Energy and Commerce, Senate and House Committees on Appropriations, and Director of the Office of Personnel Management.
 The Director of the Office of Science is one of the positions subject to the requirements for a Presidential appointment and Senate confirmation in accordance with 42 U.S.C. § 7139.
 Dr. Dehmer’s designation as Acting Director of the Office of Science appears to be in accordance with the Vacancies Reform Act, specifically 5 U.S.C. § 3345(a)(1), which permits the first assistant to the vacant position to serve as the acting officer.
 The spring-back provision only permits the resumption of acting service once a first or second nomination is submitted, but does not extend to a third nomination. 5 U.S.C. § 3346(a)(2).


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NEW MARSHALL ENGINE COMPANY and Frank J. Marshall, Plffs. in Err., v. MARSHALL ENGINE COMPANY, by Andrew Van Blarcom, Its Receiver.
In September, 1903, at the time the first assignment was made, Marshall had on file an application for a patent on 'an improvement on patent 411,251, granted to E. R. Marshall, and embodies features shown in patent 342,802, granted in 1886 to myself.' There is no further reference in the record to patent 411,251. Marshall's application was granted, and on April 14, 1903, Letters Patent 725,349 were granted to him.
No formal assignment was made, but it is found as a fact that, between September 15, 1903, and the receivership, the complainant manufactured nine or ten engines embodying the improvement covered by patent 725,349.
On June 13, 1905, a receiver was appointed for the Marshall Engine Company. Immediately thereafter, Marshall organized under the laws of Massachusetts a new company bearing his name, and assigned to it this patent 725,349. The New Marshall Engine Company took with notice of the complainant's right.
The Marshall Engine Company, of New Jersey, claimed title to this patent 725,349 as an 'improvement' on patent 342,802, which passed by virtue of the assignment of September 15, 1902. It thereupon filed, through its receiver, a bill in the superior court of Franklin County, Massachusetts, asserting this title, and praying that the defendants, Marshall and the New Marshall Engine Company, should be required to execute and deliver to it an assignment in due form to patent 725,349, so as to entitle it to be recorded in the Patent Office, and also that the defendants, their successors and assigns, should be enjoined from manufacturing or selling machines covered by patent 725,349.
The defendants answered, admitting or denying the several allegations of the bill, but setting up no affirmative defense. The case was referred to a master, who found in favor of the complainant. Thereupon the defendants moved to dismiss the bill because 'it presents questions involving an inquiry as to the construction and scope of the patents therein mentioned, of which questions the Federal courts have exclusive jurisdiction.' The motion was overruled, and a final decree was entered in favor of the complainants. The decision was affirmed by the supreme judicial court of Massachusetts, and the case was brought here by writ of error.
Messrs. Edmund A. Whitman, Lyman W. Griswold, and Frank J. Lawler for plaintiffs in error.
Mr. Walter H. Bond for defendant in error.
The Federal courts have exclusive jurisdiction of all cases arising under the patent laws, but not of all questions in which a patent may be the subject-matter of the controversy. For courts of a state may try questions of title, and may construe and enforce contracts relating to patents. Wade v. Lawder, 165 U. S. 627, 41 L. ed. 852, 17 Sup. Ct. Rep. 425. The present litigation belongs to this class. The controlling fact for determination here is whether patent 725,349 belongs to the Marshall Engine Company, of New Jersey, or to the New Marshall Engine Company, of Massachusetts. The complainant did not, by its bill in the state court, raise any question as to the validity or construction of the patent, nor did it make any claim for damages for infringement. The suit was an ordinary bill for specific performance to compel Marshall to assign to complainant the improvement on patent 342,802, in compliance with his covenant for further assurance. If patent 725,349 was an improvement thereon, as on the face of the application and letters patent it appeared to be, then the complainant was entitled to a decree requiring Marshall to make a conveyance which could be properly recorded for the protection of the true owner.
Marshall had, however, in violation of his contract, previously assigned patent 725,349 to the New Marshall Engine Company, which took with notice of the prior transfer. This company, therefore, held the legal title as trustee for the complainant. Under the circumstances the state court had jurisdiction to pass on the question of ownership, and to enter a decree requiring Marshall, as patentee, and the New Marshall Engine Company, as trustee, to make an assignment in due form to the complainant. This jurisdiction was based on general principles of equity jurisprudence, and did not present a case arising under the patent law.
It is, however, urged that the state court was ousted of the jurisdiction to enter a decree for specific performance, because the bill went farther, and prayed that the defendants, and each of them, should be enjoined from manufacturing or selling the machines covered by patent 725,349. It is claimed that this was, in effect, an application and decree for injunction against infringement, and could only be granted by a Federal court.
But the allegations of the complainant's bill do not involve any construction of the meaning or effect of patent 725,349, nor does it charge that the manufacture or sale of engines by the defendants would be an infringement of the patent, or of any right of the complainant, if in fact, patent 725,349 belonged to the New Marshall Engine Company. The injunction was asked for only as an incident of a finding that the title was vested in the complainant. 'The bill . . . must be regarded and treated as a proceeding to enforce the specific execution of the contracts referred to and not as one to protect the complainants in the exclusive enjoyment of a patent right. . . . It is to prevent the fraudulent violation of these contracts, therefore, that the complainant seeks the aid of the court and asks for an injunction.' Brown v. Shannon, 20 How. 56, 57, 15 L. ed. 827, 828. As said in Wilson v. Sandford, 10 How. 99, 13 L. ed. 344, 'the injunction is to be the consequence of a decree sanctioning the forfeiture. He alleges no ground for an injunction unless the contract is set aside.' Here the injunction asked for is to be the consequence of the decree sustaining the complainant's title. It alleges no ground for injunction unless that title is established.
The state court had jurisdiction of the subject-matter of the controversy. The relief granted was appropriate to the cause of action stated in the bill. The decree must therefore be affirmed.
Ralph HATHORN, et al., Petitioners v. Mrs. Bobby LOVORN, et al.
GENEVA FURNITURE MANUFACTURING COMPANY, Appt., v. S. KARPEN & BROTHERS et al.
LUCKETT v. DELPARK, Inc., et al.

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§ 370-1 License required for owners and operators of taxicabs.
§ 370-2 Application procedure for licenses for owners and operators of taxicabs.
§ 370-3 Investigation of applicants.
§ 370-4 Taxicab license fees.
§ 370-5 Promulgation of rules and regulations for taxicabs.
§ 370-6 License required to operate jitneys.
§ 370-7 Application procedure for jitney license.
§ 370-8 Jitney license fees.
§ 370-9 Criteria for issuance of jitney license.
§ 370-10 Required insurance for operation of jitneys.
§ 370-12 Jitney time schedules.
§ 370-13 Jitney fee schedule.
§ 370-14 Regulation of operation of jitneys.
§ 370-15 Violations and penalties.
No taxicab shall be operated within the Borough of Gibbsboro unless both the taxicab and the driver are licensed.
Owner. Applications for an owner's license shall be made to the Chief of Police and shall set forth, in addition to general data, the number of vehicles proposed to be operated and any proposed depots or terminals. Proof of insurance shall be submitted in amounts of not less than $100,000 to satisfy all claims for damages by reason of bodily injury to or the death of any one person resulting from an accident, and a sum of not less than $300,000 to satisfy all claims for damages by reason of bodily injuries to or the death of all persons on account of any such accident by reason of the ownership, operation, maintenance or use of such taxi upon any public street; and conditioned for the payment of a sum not less than $50,000 to satisfy any claim for damages to property of any one person resulting from an accident, and a sum not less than $50,000 to satisfy all claims for damages to property of all persons on account of any such accident by reason of the ownership, operation, maintenance or use of such taxi upon any public street.
Operator. Application for a driver's license shall include such information as is calculated to reveal the applicant's general character, responsibility and driving ability. Two photographs shall be required.
Applicants for both types of licenses shall be investigated by the Police Department, which shall also inspect vehicles proposed to be used as cabs. The Chief of Police shall report to the Council, which shall then proceed to grant or deny the license on a consideration of the public convenience, necessity, health and welfare.
The annual fee for an owner's license shall be $15 per cab. The annual fee for a driver's license shall be $3.
The Council may, by resolution, adopt, and from time to time alter and amend, rules and regulations not inconsistent with law or this chapter for the safe and efficient operation of taxicabs.
No autobus or buses, commonly called "jitneys," shall be operated in any of the public streets or places of the Borough unless the owner or his or its lessee (who shall, for the purpose of this chapter, be construed as the owner) operating such jitneys shall have procured a license in the manner herein provided and shall have paid the fee therefor.
Name of the owner or person intending to operate such jitney.
Residence and business address of such applicant.
The number of jitneys which the applicant intends to operate within the Borough.
The seating capacity of each such jitney.
The streets, avenues and public places upon which the jitney will be operated.
An agreement to comply with the requirements contained in this chapter or any supplement thereto or amendment thereof.
Each application shall be accompanied by a license fee of $25 for each jitney, per year.
The Council shall consider and pass upon the application and, if in its judgment it is proper for the good government, order and protection of persons and property and for the preservation of the public health and safety of the Borough, may refuse the application or may grant the same with or without modifications as to the number of jitneys to be operated within the Borough and the route or the routes to be traveled. Upon granting the application, a license shall be issued to the applicant, signed by the Borough Clerk, which license shall set forth the date of application therefor and the date of the granting of the license by the Borough Council and the seating capacity of the jitney. Each license granted shall expire on December 31 of the year in which it is issued. The license may be renewed to the same licensee without further application upon the payment of the license fee herein provided. In case of an application granted after the first day of July in any year, the license fee to be paid for the remainder of the year shall be 1/2 of the yearly rates.
No license shall become effective or remain in force and no operation of any jitney under such license shall be permitted until the owner shall have filed with the Borough Clerk an insurance policy written by a company duly authorized and licensed to transact business under the insurance laws of the State of New Jersey, in a sum of not less than $100,000, insuring the owner against loss from liability imposed by law upon the jitney owner for damages on account of bodily injury or death or property damages suffered by any one person or in the amount of $300,000 for more than one person as a result of the ownership or operation or use of such jitney; and providing for the payment of any final judgment to be recovered by any person against the owner or operator of any such jitney growing out of the ownership, operation or use of such jitney; and further providing that such insurance and the conditions of such policy shall be for the benefit of every person suffering loss, damage or injury as aforesaid.
Every person operating any jitney or jitneys within the Borough shall operate the same over a route or routes set forth in their application, and over no other route or routes, except pursuant to permission of the Borough Council, evidenced by a resolution duly adopted; provided, however, that in case any portion of any route shall be temporarily obstructed or closed to traffic, the jitney or jitneys may be operated upon such other streets or public places as directed by the Chief of Police as to make a detour to the nearest open portion of the route.
Every person operating a jitney or jitneys within the Borough shall, with the application, file with the Borough Clerk a schedule showing the regular stopping places for taking on or letting off passengers within the Borough; a schedule showing the time when jitney or jitneys will arrive at such stopping points; a statement of the entire route, both within and out of the Borough to be traveled by such jitney or jitneys; and a schedule showing the time when such jitney or jitneys will leave their respective terminuses of each route. The aforesaid schedule will be subject to change due to unforeseen causes and reasonable delays, but in no case shall any jitney leave any fixed stopping place before the time shown by the schedule. A copy of the time schedule shall be posted in a conspicuous place on each jitney. The time schedule may be changed upon 10 days' notice in writing, which notice shall be filed with the Borough Clerk at least 10 days before such proposed change will take effect and shall also, within the same time, be published by the licensee in a newspaper circulating in the Borough.
There shall also be filed, with the application, a schedule of fares proposed to be charged between the various points upon the routes of the jitney, which fares shall not be increased as long as the permit shall be in force without the consent of the Borough Council by the passage of a resolution to that effect. There shall be posted in a conspicuous place in each jitney a statement of the rates of fare between the various points upon the routes of each jitney.
Every jitney of sufficient size operated within the Borough shall be equipped with pneumatic tires and shall have one or more lights on the inside, which shall be kept lighted at all times from one hour after sunset until daylight. Every jitney shall have a door at the rear thereof, so that the same can be opened from the inside in case of emergency.
Every jitney of sufficient size operated within the Borough shall carry on the inside thereof, in a rack or other place where it can be readily procured by the passengers, an ax for use in case of emergency.
No driver of a jitney shall talk to or carry on a conversation with the passengers or any other person, except to answer necessary questions.
Every jitney shall be operated carefully and within the speed limits provided for by law and shall be equipped with chains or other devices approved by the Chief of Police to prevent skidding when necessary because of ice, snow or slippery conditions of the street.
No jitney shall be operated within the Borough which shall carry more passengers than the number stated in the application for the license for the jitney, nor shall any passenger be permitted to stand on the steps of a jitney when it is in motion.


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The Vasnetsov Brothers Art Museum comprises one of the richest collections of paintings in Russia. The collection admirably covers all schools and periods of Russian and European painting and possesses over 15000 works of art. It boasts hundreds of masterpieces — icons, paintings, drawings, prints, engravings, sculptures, embroidery, and folk applied arts. The museum was founded on December 5, 1910. Victor Vasnetsov and Apollinari Vasnetsov, prominent Russian painters, made a great contribution to the foundation and development of the museum. The Vyatka Art Museum attracted donations of art from the Hermitage, the Russian Museum, the Tretyakov Art Gallery, the Russian Academy of Fine Arts, as well as individual gifts from outstanding Russian painters and well-known art collectors. These donations formed a nucleus of high quality around which the collections grew. In 1918 the museum was housed in one of the best buildings of Vyatka that was itself a historical treasure. A new building of the museum was opened in 1991. Modem architectural forms, large areas of glass, overhanging flat roofs, large galleries full of light are only a few glimpses of this state-of-the-art construction.
The Vasnetsov Brothers Art Museum provides a panorama of Russia’s artistic heritage from superb collections of icons and applied arts of the 14th century to masterpieces created by modem artists. The museum contains a collection of 18th- and 19th-century paintings by such greats as D. Levitsky, V. Borovikovsky, K. Bryullov, V. Tropinin, A. Venetsianov, S. Shchedrin, A. Bogolyubov, and I. Aivazovsky. The museum has one of the most representative collections of canvases by the «Peredvizhniki» artists who were members of the Society for Travelling Art Exhibitions. These painters represented daily and ceremonial life of ordinary Russian people and gave a true-to-life and comprehensive portrayal of Russian reality. Of exceptional value are paintings by V. Perov, V. Vasnetsov, V. Polenov, V. Surikov, I. Repin, I. Shishkin, F. Vasiliev, V. Makovsky, I. Pryanishnikov, and I. Levitan. The democratic character of their works, their high artistic merits, the realistic portrayal of course and moral power in the struggle against injustice, the truthful representation of Russian nature are appreciated by all connoisseurs of Russian fine arts. You can view magnificent paintings of the late 19th and early 20th centuries. You’ll marvel at the paintings by V. Serov, K. Korovin, S. Zhukovsky, S. Vinogradov, L. Turzhansky, A. Benua, N. Rerikh, K. Bogayevsky, N. Krymov, K. Somov, V. Borisov-Musatov, P. Konchalovsky, N. Goncharova, and I. Mashkova. You are sure to enjoy beautiful sculptures by F. Shubin, N. Pimenov, A. Golubkina, and P. Trubetskoi. Works by S. Konenkov, A. Deineki, Yu. Pimenov and A. Plastov top the list of must-sees for any visitor with an interest for Russian fine arts after 1917.
The museum’s hallmark has always been its great dedication to Vyatka artists’ creative work. Vyatka painters and sculptors have achieved widespread recognition for their role in fine arts. Their works are exhibited in Moscow, St. Petersburg, and in many large cities of Russia. They participate in many national and international exhibitions and are always a great success.
For a better view of Vyatka life, customs and traditions, the Vasnetsov Brothers Art Museum has assembled a stunning collection of Vyatka decorative and applied arts. You’ll especially enjoy miniatures, Dymkovo sculptures, embroidery, and handmade textiles.
If you are interested in European art you’ll find fine examples of paintings, graphics and sculpture dating to European Renaissance. The museum features masterpieces by Italian painters of the 15th—17th centuries, Dutch, French, and Swiss artists of the 17th—19th centuries. Beautiful works of European art of the early 20th century also exist for your viewing pleasure.
The museum’s staff is comprised of experienced and highly qualified experts. They do research, compiling catalogues, publishing articles and books, holding conferences, supervising the preservation and restoration of pictures and sculptures. The museum has been recognized as a leader in extracurricular aesthetic education for decades. It offers school children and higher school students a wide variety of programmes in Russian and European arts, icon painting, and folk handicrafts. The museum hosts a number of concerts, lectures, poetry readings and performance art programmes throughout the year.
Loan picture and photo exhibitions from central museums, jubilee exhibitions of Vyatka artists, temporary folk arts and crafts displays are often held in the Central Exhibition Hall which is the most popular affiliated department of the Vasnetsov Brothers Art Museum. The Vasnetsovs’ House in the village of Ryabovo and Khokhryakov’s House are also among the main affiliated museums.
With its dedicated staff and with innovative programmes to meet today’s changing world, the Vasnetsov Brothers Art Museum is becoming more and more popular every day. For a visit through hundreds of years of art, history and culture, the Vasnetsov Brothers Art Museum is a must-see for visitors of all interests.

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WASHINGTON, D.C. — In an April 8 cross-appellant brief, a patent owner asserts that the Patent Trial and Appeal Board lacks the statutory authority to declare patent claims indefinite in an inter partes review (IPR) (Samsung Electronics America Inc. v. Prisua Engineering Corp., Nos. 19-1169, -1260, Fed. Cir.).
ALEXANDRIA, Va. — In an April 9 petition for inter partes review (IPR), Micron Technology Inc. maintains that the Patent Trial and Appeal Board should cancel 14 claims of a patented storage device with partitions on grounds of obviousness (Micron Technology Inc. v. SecureWave Storage Solutions Inc., No. IPR2019-00932, PTAB).
WASHINGTON, D.C. — In a March 25 appellee brief, Realtime Data LLC maintains that the Patent Trial and Appeal Board correctly rejected assertions by several inter partes review (IPR) petitioners that various claims of two data compression patents are obvious (Veritas Technology LLC, et al. v. Realtime Data LLC, Nos. 2018-1366, -2323, Fed. Cir.).
SAN FRANCISCO — In an April 6 holding, a California federal judge agreed with infringement defendants LG Electronics USA Inc., LG Electronics Inc. and LG Electronics MobileComm USA Inc. (LG, collectively) that an underlying patent directed to Bluetooth technology fails to recite patent-eligible subject matter (Uniloc USA Inc., et al. v. LG Electronics USA Inc., et al., No. 18-6738, N.D. Calif., 2019 U.S. Dist. LEXIS 59353).
WASHINGTON, D.C. — A panel of the Federal Circuit U.S. Court of Appeals on April 8 awarded a defendant a new trial on the questions of indirect patent infringement, damages, willfulness, enhanced damages for willfulness and a patent owner’s entitlement to attorney fees (Omega Patents LLC v. CalAmp Corp., No. 18-1309, Fed. Cir.).
ALEXANDRIA, Va. — Citing the “intentionally identical” nature of its April 4 petition for inter partes review (IPR) with that of Samsung Electronics Co. Ltd., Motorola Mobility LLC also on April 4 requested joinder “to ensure that the instituted trial is completed” if Samsung settles with a patent owner (PO) (Motorola Mobility LLC v. Immersion Corporation, No. IPR2019-00921, PTAB).
WASHINGTON, D.C. — In a per curiam judgment issued pursuant to Rule 36 of the Federal Circuit Rules, Fed. Cir. R. 36, the Federal Circuit U.S. Court of Appeals on April 5 upheld cancellation by the Patent Trial and Appeal Board of various claims of two patents directed to diesel engine emissions-reducing automotive catalysts (BASF Corp. v. Johnson Matthey Inc., Nos. 2018-1908, -1911, Fed. Cir.).
WASHINGTON, D.C. — A patent dispute over two competing looms for making bracelets and other linked articles was argued April 2 before the Federal Circuit U.S. Court of Appeals (Choon’s Design LLC v. IdeaVillage Products Corp., No. 18-1934, Fed. Cir.).
WASHINGTON, D.C. — A New Jersey federal judge did not err in confirming that two patents directed to the treatment of polyneuropathic pain are valid but not infringed by the label of two proposed generic drugs, the Federal Circuit U.S. Court of Appeals ruled March 28 (Grünenthal GmbH, et al. v. Alkem Laboratories Limited, et al., Nos. 2017-1153, -2048, -2049, -2050, Fed. Cir., 2019 U.S. App. LEXIS 9187).

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District Court properly granted summary judgment against discriminatory failure to promote claim. Supervisor alleged saying employee interfered with promotion process did not undermine employer’s legitimate non-discriminatory reasons employee did not receive promotion- concerns about his skills and the quality of his interview - were pretexts for discrimination. Disciplinary action plan was legitimate reason for denying transfer requests. Guyton v. Nordisk, 2017 U.S. App. LEXIS 15537 (9th Cir. Aug. 17, 2017).
Laid off employee made prima facie case of age discrimination. He showed he was at least 40 years old, performing his job satisfactorily, discharged and had his duties performed by other employees. Employer provided legitimate non-discriminatory individualized reasons for selecting him for lay off, including his relatively high salary, relatively low guest contact and revenue function and understaffing in other departments. Employer’s failure to transfer employee to unavailable positions, decision that another employee could better perform some of his functions, reliance on management’s own perceptions about guest impact and deviations from its own reduction in force guidelines (which could sometimes but in this case) did not show the employer’s reasons were pretext for age discrimination. Merrick v. Hilton Worldwide, Inc., 2017 U.S. App. LEXIS 15374 (9th Cir. Aug. 16, 2017).
District Cproperly granted summary judgment on retaliatory hostile work environment claim because former employee failed to raise genuine dispute of material fact whether she was subject to conduct severe or pervasive enough to alter the conditions of her employment. Haughton v. Brennan, 2017 U.S. App. LEXIS 15421 (9th Cir. Aug. 16, 2017).
District Court instructions to jury that awarded Department of Labor $662,589.62 in back wages and liquidated damages against restaurant and spa employers jointly were not ‘plainly erroneous’- the standard- because employer failed to object. Jury likely understood their function to decide whether one manager had enough contacts with both employers and willfully violated the FLSA. Instruction informing jury that fear of future actions could be retaliatory adverse action correctly covered threatened discharge or loss of benefits and was harmless because there were reduction of hours and termination involved. Acosta v. Zhao Zeng Hong, 2017 U.S. App. LEXIS 15236 (9th Cir. Aug. 15, 2017).
Individual alleged consumer reporting operator published inaccurate report about him on its website, and willfully violated procedural requirements under Fair Credit Reporting Act, including failing to follow reasonable procedures to assure the accuracy of the information in his consumer report. His allegations were sufficiently particularized and concrete to give him constitutional standing to sue the operator. Robins v. Spokeo, Inc., 2017 U.S. App. LEXIS 15211 (9th Cir. Aug. 15, 2017).
District Court properly granted summary judgment against discrimination claim. Declining business conditions and hiring freeze were legitimate nondiscriminatory reason for employer demoting employee and employee did not show they were pretext for discrimination. Stripping job duties and supervisory duties without explanation and disputes about bonus and stock decisions were not sufficiently severe or pervasive to comprise harassment. Day v. LSI Corp., 2017 U.S. App. LEXIS 15231 (9th Cir. Aug. 15, 2017).
District Court properly dismissed Title VII and ADA claims related to lay off because 300-day statutes of limitations barred claims. District Court properly dismissed Title VII and ADA claims related to rejection of his employment applications because employee failed to allege facts sufficient to show employer treated him less favorably than others outside of his protected class, or that he was disabled or perceived as disabled within the meaning of the ADA when he applied for these positions. Hayes v. NASSCO, 2017 U.S. App. LEXIS 15268 (Aug. 15, 2017).


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'Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes. All laws passed pursuant to this section may be amended, altered, or repealed. But the legislature may, by a vote of two thirds of the members elected to each house, create a single bank with branches.' Art. 15, 1.
'The legislature shall pass no law altering or amending any act of incorporation heretofore granted, without the assent of two thirds of the members elected to each house; nor shall any such act be renewed or extended. This restriction shall not apply to municipal corporations.' Art. 15, 8.
In 1860 certain mortgages on the road were foreclosed and the company reorganized, and again in 1878 the road with its appurtenances and franchises was sold upon mortgage foreclosure and again reorganized as the Detroit, Grand Haven, & Milwaukee Railway Company. These foreclosures and reorganization took place under the authority of act No. 96 (Laws of 1859, p. 52).
On the hearing in the circuit court it was held that 9, above quoted, created a contract between the state and the company which prevented the enforcement against it of the railroad tax law, and a decree was entered accordingly (138 Fed. 264) from which decree the state auditor appealed directly to this court.
Messrs. Timothy E. Tarnsney, John E. Bird, Charles A. Blair, Loyal E. Knappen, and Roger Irving Wykes for appellant.
[201 U.S. 543, 551] Messrs. H. Geer and L. C. Stanley for appellee.
Many questions which might otherwise be perplexing are settled by the decision of the supreme court of Michigan in Atty. Gen. v. Joy, 55 Mich. 94, 20 N. W. 806. That was an information brought by the attorney general in the supreme court of the state, charging the defendants with claiming and usurping the corporate rights and franchises of the Detroit, Grand Haven, & Milwaukee Railway Company. The act of 1855 was sustained, notwithstanding some alleged defects in its passage, and it was decided that it did not create a new corporation, but simply authorized the old territorial corporation, the Detroit & Pontiac Railroad Company, to change its name and extend its line of road, and, further, that this act in no respect conflicted with 1 and 8, article 15, of the state Constitution. The court also sustained the act of 1859, under which the foreclosures took place, and held that by them no new company was chartered, that there was simply a reorganization and continuance of the old company.
The testimony in this case shows compliance with these conditions. Compliance was also shown in Cook v. Detroit, G. H. & M. R. Co. 43 Mich. 349, 5 N. W. 390, and in that case the validity of the new organization as a continuance of the old corporation was recognized. [201 U.S. 543, 556] We thus come to the question of the effect of 9 of the act of 1855. It has been often decided by this court, so often that a citation of authorities is unnecessary, that the legislature of a state may, in the absence of special restrictions in its Constitution, make a valid contract with a corporation in respect to taxation, and that such contract can be enforced against the state at the instance of the corporation. It is said that we are not concluded by a decision of the supreme court of a state in reference to the matter of contract; that while the rule is to accept the construction placed by that court upon its statutes, an exception is made in case of contracts, and that we exercise an independant judgment upon the question whether a contract was made, what its scope and terms are, and also whether there has been any law passed impairing its obligation. Douglas v. Kentucky, 168 U.S. 488 , 42 L. ed. 553, 18 Sup. Ct. Rep. 199. It is in order to uphold the provision of the Federal Constitution that no state shall pass a law impairing the obligation of a contract that this duty of independant judgment is cast upon this court. But here the supreme court of the state has ruled in favor of the continued existence of a corporation and the applicability of certain statutes, and when, upon the face of such statutes, a valid contract appears, we accept the ruling that the statutes are valied and applicable enactments. In other words, the supreme court of the state having sustained the validity of a statute from which a contract is claimed, this court follows that decision, and starts with the question, What contract is shown by statute?
'It has already been seen that the important public purpose which the state had in view in assenting to the act of 1855 has been accomplished; the railroad from Pontiac to Lake Michigan has been constructed and for many years operated, and the state has reaped the benefits. But in order to accomplish this public purpose it seems to have become necessary to put the bonds and shares of the Detroit & Milwaukee Railway Company upon the market as well in Europe as in this country; the state recognized the necessity, and by its legislation provided for facilitating sales. The bonds and shares were sold to the amount of very many millions; and every purchaser of one of them made the purchase in reliance upon legislation of this state which appeared to sanction if not to invite it.' P. 104, N. W. p. 811.
'It is objected that there is no consideration stated in the act for the release from taxation, which it is claimed is necessary in order to uphold the contract. But this is a mistaken view of the law on this subject.
Surely no clearer case of contract can be presented than one in which a legislature passes an act in respect to a particular corporation making special provision concerning taxation, and does so with a view of inducing large expenditures by the corporation and the completion of an unfinished road whose completion is deemed of great public importance, and where the special provision is, as required, formally accepted, the expenditures made, and the roal completed.
It is further contended that the contract provided in 9 is one relating to the property of the shareholders, and not to that of the corporation. The terms 'share,' 'stock,' 'capital,' 'capital stock,' are of frequent and not uniform use, and we have often to turn to the context to see what is intended by their use in a particular case. That a distinction exists between that which is the property of the shareholder, and subject to taxation as other property belonging [201 U.S. 543, 560] to them, and that which is the property of the collective incorporated person we call a corporation, and subject to taxation as such, has been repeatedly pointed out. See Farrington v. Tennessee, 95 U.S. 679 , 24 L. ed. 558; Memphis & C. R. Co. v. Gaines, 97 U.S. 697 , 24 L. ed. 1091; St. Louis, I. M. & S. R. Co. v. Loftin, 98 U.S. 559 , 25 L. ed. 222; Bank of Commerce v. Tennessee, 104 U.S. 493 , 26 L. ed. 810; Tennessee v. Whitworth, 117 U.S. 129 , 29 L. ed. 830, 6 Sup.Ct.Rep. 645; Bank of Commerce v. Tennessee, 161 U.S. 134 , 40 L. ed. 645, 16 Sup. Ct. Rep. 456; Shelby County v. Union & P. Bank, 161 U.S. 149 , 40 L. ed. 650, 16 Sup. Ct. Rep. 558; Central R. & Bkg. Co. v. Wright, 164 U.S. 327 , 41 L. ed. 454, 17 Sup.Ct.Rep. 80; New Orleans v. Citizens' Bank, 167 U.S. 371 , 42 L. ed. 202, 17 Sup.Ct.Rep. 905; Owensboro Nat. Bank v. Owensboro, 173 U.S. 664 , 43 L. ed. 850, 19 Sup.Ct.Rep. 537; Citizens' Bank v. Parker, 192 U.S. 73 , 48 L. ed. 346, 24 Sup.Ct.Rep. 181; Delaware, L. & W. R. Co. v. Pennsylvania, 198 U.S. 341 , 49 L. ed. 1077, 25 Sup.Ct.Rep. 669.
In several of the cases attention is called to the qualifying words which show an intent on the part of the legislature of something other than that generally embraced within the term 'capital stock.' But it is unnecessary to review these cases in detail.
By 9 the tax is 'on the capital stock of said company paid in.' Clearly that refers to the property which the corporation has received and presumably holds. It is not the individual property of the shareholders which is contemplated, but that which is in the treasury of the corporation, or included among its assets. This, as we have seen from the quotations, is the ordinary meaning of the term 'capital stock.' Further, we find that this tax is to be 'in lieu of all other taxes, except for penalties imposed upon said company.' In other words, the tax upon the company of 1 per cent may be increased by any penalties imposed upon the company, and in no other way. Again, the tax is to 'be estimated upon the last annual report of said corporation.' While such report might be expected to include not merely the property belonging to the corporation but also the number and names of the stockholders and the number of shares held by each, and possibly also the amount paid in by each, yet the word 'estimated' carries with it the idea of valuation rather than of mathematical apportionment. It apparently suggests that the property reported by the corporation is to be the basis upon which the assessors shall make their valuation, so that the tax is 'estimated' upon that property rather than fixed by the mere process of multiplication or division. That the tax is to be paid by the company is of course not conclusive on the question, but it is in harmony with all the other provisions of the section. Still further, we have the practical construction placed by the authorities for a long series of years, continued up to the year 1898. Under those circumstances we are of opinion that the tax provided for by 9 is a tax upon the prop- [201 U.S. 543, 562] erty of the corporation, and not a tax upon the shares of stock held by the shareholders. There was, therefore, a contract between the state and the corporation which prevented the subjection of the property of the corporation to any other than the tax prescribed in the statute.

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Statute, Regulations, and Government Interpretive Guidelines.
http://www.access.gpo.gov/su_docs/fedreg/a030909c.html under "Separate parts in this issue."
CMS's Interpretive Guidelines (issued in May 2004) for state surveyors and CMS regional offices regarding the enforcement of EMTALA under the new regulations is available on line at http://www.cms.hhs.gov/medicaid/survey-cert/letters.asp.
Florida's 'EMTALA' equivalent laws: Fla. Stat. 395.1041; Fla. Admin. Code Annotated (FAC) 59A-3.207.
Government Advisory Bulletins and Other Government EMTALA Publications.
HHS/CMS Program Memorandum #S&C-02-34, "On-Call Requirements - Q&A", June 13, 2002. Letter from Steven A. Pelovitz, Director, CMS Survey and Certification Group; HHS/CMS Program Memorandum #S&C-02-35, "Simultaneously On-Call", June 13, 2002 . Letter from Steven A. Pelovitz, Director, CMS Survey and Certification Group. These two publications were the basis for the government's new regulations and interpretive guidelines related to the on-call issues.
GAO Report on the impact of EMTALA on hospital emergency departments, the delivery of emergency care, and HCFA/OIG enforcement, June 22, 2001 . Available on the internet at www.gao.gov/new.items/d01747.pdf. Very interesting reading; chronicles the ramifications of the law for emergency departments.
Department of Health and Human Services OIG/HCFA Special Advisory Bulletin on the Patient Anti-Dumping Statute. 64 Fed. Reg 61353 (November 10, 1999). Deals with the financial issues related to EMTALA and recommends 'best practices' for dealing with managed care insurance companies. This memo formed the basis of many of the new regulations and interpretive guidelines.
DHHS Office of Inspector General, EMTALA: Survey of Hospital Emergency Departments, OEI-09-98-00220, January 2001; and DHHS Office of Inspector General, EMTALA: The Enforcement Process, OEI-09-98-00221, January 2001. These two government studies documented the lack of knowledge of the law by hospital administrative and clinical staff and the inconsistent and inaccurate enforcement of the law by CMS.
Bitterman RA. Providing Emergency Care Under Federal Law: EMTALA . Published by the American College of Emergency Physicians in January 2001 (available at 1-800-798-1822, touch 6, or on ACEP's web site at www.acep.org/bookstore.) Now in 2nd printing. Additionally, a supplement addressing the impact of the new EMTALA regulations effective November 10, 2003 is available at the web site, and may be downloaded for free.
Stiller JA. EMTALA: A Comprehensive Guide to the Emergency Patient Screening and Transfer Law. American Health Lawyers Association 2004. Written more from the hospital perspective than the physician perspective.
Joy L M. EMTALA: Interpreting and Complying With the Federal Transfer Law. American Health Lawyers Association 1999.
Frew, Steven. EMTALA web site at www.medlaw.com. Great source of up-to-date information.
Advisory Board. Call Coverage Strategies: Securing Physician On-Call Cooperation. Published by The Advisory Board Co., Washington D.C., January 2003.
The Advisory Board Company interviewed experts from across the country concerning the on-call issues and incorporated the best ideas available. Unlimited copies of the publication are available free to Advisory Board members. Most hospitals are members and may be helpful in obtaining extra copies. Copies may also be available to non-members by request. Contact: Delivery Services via phone: (202) 266-5920; e-mail: orders@advisory.com ; or internet web site at http://advisory.com.
Zibulewsky J. Medical staff knowledge of EMTALA at a large, tertiary-care hospital. Am J Emerg Med 2003;21:8-13.
Kuettel AC. The changing role of receiving hospitals under the EMTALA. J of Legal Med 1998;19:351-376.
Derlet RW, Hamilton B. The impact of HMO care authorization policy on an ED before California 's new managed care law. Acad Emerg Med 1996; 3:338-344.
Bitterman RA. Emergency Department Authorization for Health Maintenance Organizations? Just Say No!, Acad Emerg Med 3(12):1172-1175, 1996.
Stieber JM and Spar LJ. EMTALA in the 90's-Enforcement Challenges. Health Matrix 1998;8(1):57-82.
Dame LA. EMTALA: The Anomalous Right to Health Care. Health Matrix 1998;8:3-28.
Whitmore M R and Andresen J S. Decisions of the Supreme Court and DHHS Continue to Expand Hospital Liability Under EMTALA. The Health Lawyer 1999;11(3):14-19.
American Medical Association - Organized Medical Staff Section. EMTALA Quick Reference Guide For On-Call Physicians. Published summer of 2000 by the AMA.
Freedman DL. EMTALA Update 2000: 'Coming to the ED'. ED Legal Letter 11(12):129-140; 2000 December.
Wanerman R. The EMTALA Paradox. Ann Emerg Medicine 2002;40:464-469.
Bitterman RA (Editorial). Explaining the EMTALA Paradox. Ann Emerg Medicine 2002;40:470-475.
Gionis TA, Camargo CA Jr, Zito AS Jr. The intentional tort of patient dumping: A new state cause of action to address the shortcomings of the federal Emergency Medical Treatment and Active Labor Act (EMTALA). Am Univ Law Review 2002: 52: 173-308.
Burditt v. US Dept. of HHS, 934 F.2d 1362 (5th Cir. 1991).
Roberts v. Galen of Virginia, Inc., 111 F.3d 405 (6th Cir. 1997), 119 S.Ct. 685 (1999) decided January 13, 1999. US Supreme Court Case concerning EMTALA.
Inspector General v. St. Anthony Hospital, DAB Docket No. C-98-460 / Decision No. CR620 (Dep't. Health and Human Services, Departmental Appeals Board, Civil Remedies Div., Oct. 5, 1999); St. Anthony Hospital v. Inspector General, DAB App. Div. No. A-2000-12 / Decision No. DAB1728, June 5, 2000; St. Anthony Hospital v. United States Department of Health and Human Services, No. 00-9529, United States Court of Appeals for the Tenth Circuit, 2002 U.S. App. LEXIS 17867 (August 28, 2002).
Bryant v. Adventist Health System, 289 F.3d 1162 (9th Cir. 2002), and Harry v. Marchant, 291 F.3d 767 (11th Cir. 2002) - two cases where US appellate courts refused to apply EMTALA to inpatients.
Inspector General v. Samuel T. Bowen, MD, Department of HHS, DAB Docket No. C-98-233, Decision No. CR618 (September 29, 1999); & Inspector General v. Bowen, Department of HHS, DAB Docket No. A-2000-7 CR618, Decision No. DAB1720 (March 23, 2000). [Both cases can be viewed and downloaded from the HHS appeals board web site at http://www.hhs.gov/progorg/dab/, then click on 'decisions' and search for 'bowen'.] The OIG charged Dr. Bowen, an emergency physician in North Carolina , with violating the law and sought to terminate him from participating in Medicare and fine him $50,000.
Inspector General v. Cherukuri, Department of HHS, DAB - CR475 (May 23, 1997), Cherukuri v. Shalala, No.97-4464 1999 FED App. 0160P (6th Cir.) (May 3, 1999).
Arrington v. Wong, 237 F.3d 1066 (9th Cir. 2001), overturning the district court's ruling in Arrington v. Wong, 19 F.Supp.2d 1151 (D. Haw. 1998). Ambulance diversion case and ramifications under EMTALA. Increases the liability of hospitals related to ambulance diversion. Only applicable on the west coast; no other federal circuit courts apply the holding of the 9th circuit.
Quinn DK, Geppert CMA, Maggiore WA, The Emergency Medical Treatment and Active Labor Act of 1985 and the Practice of Psychiatry. Psychiatric Services 2002;53:1301-1307.
Schlesinger M, Dorwart R, Hoover C, and Epstein S. "The Determinants of Patient Dumping: A National Study of Economically Motivated Transfers Involving Mental Health Care." Health Services Research 1997;(5): 32.
Mathis T, Leach TN, and LeFevre C. Legal Issues of Emergency Psychiatric Patients: The Application of EMTALA and State Civil Commitment Laws. J Health and Hospital Law 1996;29 (5): 257-267.
Bitterman, RA. Screening, Stablilization, and Transfer of Psychiatric Patients. Emergency Department Legal Letter 1998;9(10);97-104, October.
Annas GJ. The last resort - the use of physical restraints in medical emergencies. NEJM 1999;341:1408-1412.
Vernaglia LW & Cronin FJ. Patient's Rights: HCFA issues new conditions of participation for hospitals. Health Law Digest. 1999;27(9):15-20, September 1999.
42CFR 482.13(e), and (f). Medicare Conditions of Participation regarding restraints and seclusion (1999).

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Recently, the March/April issue of the German law journal “Praxis des Internationalen Privat- und Verfahrensrechts” (IPRax) was published.
In continental countries, citizenship has traditionally played an important role as a connecting factor in the private international law relating to personal status. The article outlines the gradual emergence of this connecting factor throughout the 150 years of rising nationalism up to World War II and explores its remaining significance in the framework of European integration, with a par- ticular view to the prohibition of discrimination on grounds of nationality under article 18 TFEU. Against the background of the historical purpose of that provi- sion, the author advocates an anti-protectionist reading of that article which does not categorically prohibit the use of citizenship as a connecting factor, but only a discrimination of foreigners on the sole ground of their foreign citizenship. This interpretation is underpinned by a detailed inquiry into the case law of the Euro- pean Court of Justice on article 18 and into the secondary law of the European Union. This approach leads to detailed conclusions with regard to the use of nationality in the areas of jurisdiction, choice of law rules and recognition.
Under most legal systems, a principal may be bound by a contract that his agent has concluded even if the agent lacked the actual authority to do so. As long as the principal’s conduct creates the reasonable impression that he authorized his agent to conduct the transaction, the law protects the third party. Under German law, such a “reasonable impression” is presumed in particular when (a) the principal has knowledge of the agent’s behavior yet does not intervene (“Duldungs- vollmacht”), or when (b) the principal could (and should) have knowledge that would allow him to intervene (“Anscheinsvollmacht”).
European conflict-of-laws rules raise the question of whether the prin- cipal’s liability under the agent’s apparent authority should be classified as a contractual or a non-contractual obligation – i.e. whether Rome I or Rome II determines the applicable law. In light of the ECJ’s criteria for dis- tinguishing contractual from non-contractual obligations, this paper concludes that both of the above-mentioned apparent authority scenarios of German law must be classified as non-contractual obligations, thus placing them within the scope of Rome II.
This result generates a difficult follow-up question: is apparent authority a case of culpa in contrahendo (Art. 12 Rome II) or should it be governed by Rome II’s general rule on torts/delicts (Art. 4)? This paper tends towards an application of Art. 12 Rome II.
The Commission of the EC presented a Report together with a Green Paper on the review of Regulation 44/2001 on jurisdiction in civil and commercial matters. The present article examines the needs for review with a view to a recent decision of the ECJ (FTBO ./. Jack Odenbreit), in which it granted the person injured in a car accident a forum in the Member State of his domicile, although the accident took place in another Member State where the insured tortfeasor was domiciled and had taken out motor liability insurance for his car. On the whole, the present legal situation is satisfying. Concerning third State situations, the injured person should be granted a forum at his domicile, if the accident took place within the EU although the insurer is not domiciled in a Member State. Choice of court agreements do not bind the injured person if they are to his detriment.
On December 14, 2010, the European Commission presented its highly anticipated proposal for the reform of the Brussels I Regulation. KOM (2010) 748 endg. vom 14.12.2010, der Text ist verfügbar unter: http://ec.europa.eu/justice/policies/civil/docs/com_2010_748_en.pdf. Im folgenden Beitrag werden die Vorschläge als EuGVVO-E bezeichnet. This proposal marks the beginning of the formal law-making process to recast the Regulation. Intense, legal and political debate concerning the function and the reform of this central legal instrument of the European Judicial Area can be expected in the next months. This debate should not be limited to the legal instrument itself, but it should address the future of European Procedural Law as a whole. In particular, procedural law academics should continue to engage actively in – and thereby influence – European judicial policy. The following contribution deals with the cornerstones of the reform proposals and contrasts them to the current stage of European Civil Procedural Law. It also contains a first evaluation of the reform proposals.
Localising negotiorum gestio on the map of the law of obligations is a difficult task, especially when applying autonomous criteria such as those developed by the European Court of Justice for the terms “contract” and “tort” in Article 5 (1) and (3) of the Brussels I Regulation. In a recent decision, the Regional Court of Appeal in Cologne held that obligations flowing from negotiorum gestio are, for purposes of the European jurisdictional rules, neither contractual nor tortuous. That view appears to be sound not only in theory but also in practice (infra III.): Article 5 (1) and (3) of the Brussels I Regulation – if applied to negotiorum gestio – would not lead to the proper forum for disputes on negotiorum gestio, namely the courts at the place where the negotiorum gestio was performed (infra II). Hence, the article suggests that a new special head of jurisdiction for negotiorum gestio should be introduced (infra IV.).
Must international jurisdiction for liability claims based on § 64 GmbHG against a foreign director of a German company with restricted liability (Gesellschaft mit beschränkter Haftung) be determined according to the European Insolvency Regulation or according to the Brussels I Regulation? Furthermore, if one applies the Brussels I Regulation, has the claim to be qualified as a matter relating to a contract pursuant to Art. 5 (1), or to a tort pursuant to Art. 5 (3) Brussels I Regulation? Both the OLG Düsseldorf (Higher Regional Court) and the OLG Karlsruhe had to consider these questions in recent cases. In accordance with earlier decisions of German courts the OLG Düsseldorf regarded Art. 5 (1) Brussels I Regulation applicable.
The article discusses the effects of the commencement of insolvency proceedings on a lawsuit pending between the debtor and another party. When the lawsuit is taking place in another jurisdiction than the insolvency proceedings, three questions have to be answered: 1.) Does the lex fori processus recognize the foreign insolvency proceedings? 2.) If yes, does the commencement of the foreign insolvency proceedings lead to a stay of the litigation? 3.) If yes, who, or rather which side has the right to resume the lawsuit? Against the backdrop of a decision by the Bundesgerichtshof dealing with the effects of a U.S.-chapter 11 filing on a lawsuit before German courts, Brinkmann shows the differences between the solutions under the European Insolvency Regulation (EC) No 1346/2000 and under § 352 German Insolvency Code (InsO) which is applicable when the insolvency proceedings are in a non-EU member state: While Art. 15 of the European Insolvency Regulation is a conflict rule under which the lex fori processus is applicable to answer questions 2.) and 3.), § 352 I 1 German Insolvency Code is a substantive rule that directly stays the domestic lawsuit. On the question, who has the right to resume the litigation, the Bundesgerichtshof applies the lex fori concursus. Brinkmann argues that this issue should be decided by the lex fori processus notwithstanding § 352 I 2 InsO.
Where the defendant has requested a revocation of a provisional measure according to art. 697 of the Greek law on civil procedure, this is equivalent to an ordinary appeal in the sense of art. 46 of the Brussels I regulation.
The doctrine of actionability of a creditor’s claim can be traced back to Windscheid. From the perspective of the German lex fori the actionablity has to be qualified not as a procedural but as a substantive element of the claim. As a consequence an action has to be dismissed not as (procedurally) inadmissible but as unfounded, when the creditor’s claim is non-actionable. According to French insolvency law, the creditor’s claim loses its element of actionability when an insolvency proceeding is opened. The claim even remains non-actionable when the insolvency proceeding comes to an end due to lack of assets. According to Art. 17 EuInsVO, these consequences of the French insolvency law has to be recognized in all other EU member states. The differences in the insolvency laws of the EU member states lead to arbitrary behaviour of debtors in International Insolvency Law.
It seemed scandalous to some when the 12th chamber of the German Supreme Court (BGH) decided, in 2009, that an English divorce judgement was only partly enforceable. However, the BGH only held that the Brussels I Regulation was not applicable as the 2004 order of the High Court concerned matrimonial property (excluded from the scope of the regulation under Article 1 sec 2 lit a) rather than maintenance (to which the regulation is applicable). It is internationally acknowledged that maintenance may be paid in a lump sum. In order to decide whether a payment serves as maintenance or as a division of matrimonial property, one must inquire about the reasons behind the payment: i.e., where the payment serves to secure the future standard of living it functions as maintenance; however, where economic disparity sustained by one partner during the marriage is to be compensated, matrimonial property law is concerned. From an EU perspective, the main question should be whether the national courts may determine the quality of the lump sum payment or whether there should be a purely autonomous determination by the ECJ. It would certainly be frustrating if the mere use of the word “maintenance” in the national court order was held to be decisive. Objective and secure criteria for a distinction between matrimonial property and maintenance may be found, although none seem obvious at first glance. They must consider the fact that different countries have different economic realities, especially as far as housing is concerned. These questions should, however, be answered by the ECJ and the BGH should have requested a preliminary ruling.
On 23 December 2009 the ECJ delivered its judgment in Re Deti?ek which has been dealt with under the urgent procedure pursuant to Art. 104b of the ECJ’s Rules of Procedure. The case concerned basically the question whether courts of the Member State where the child is present, can take protective measures on the basis of Art. 20 Brussels II bis Regulation even if a court of another Member State having jurisdiction as to the substance has already taken a protective measure declared enforceable in the first Member State. The ECJ answered this question in the negative, based primarily on teleological and systematic arguments. While the authors agree with the ECJ with regard to the case in question, the approach taken by the ECJ might be challenged in several respects: First, it can be questioned whether the ECJ put too much emphasis on systematic and technical arguments such as facilitating the enforcement of decisions of another Member State as well as the deterrence from wrongful removals, while neglecting the principal aim of the Regulation’s provisions on parental responsibility – safeguarding the child’s best interest. In the authors’ opinion, Art. 20 (1) Brussels II bis does, in principle, not allow provisional measures in situations where the court having jurisdiction as to the substance has already taken a protective measure declared enforceable in the Member State in question, which is illustrated by the rule Art. 20 (2) Brussels II bis. However, the authors argue that – taking into account the Regulation’s paramount objective – there might be a need to allow provisional measures also in these cases under certain (strict) conditions – namely if the factual situation has changed significantly subsequent to this first decision and if the new circumstances lead to the assumption of an urgent case in terms of Art. 20 (1) Brussels II bis. Secondly, the authors raise the question whether the ECJ proceeded in a methodologically correct way by examining whether the requirements for provisional measures according to Art. 20 Brussels II bis – urgency, presence of the relevant person(s) in the Member State in question, provisional nature of the measure – are met in the present case, or whether this was rather for the national court to decide. Further, in this context it is submitted that – in derogation from the position adopted by the ECJ in the present decision – it is decisive for the question whether measures can be taken under Art. 20 Brussels II bis whether the child is present in the respective Member State – and not where the parents are located.
In German-Russian legal relations, there is a considerable need for certainty relating to the enforcement (exequatur) of Russian decisions in Germany and vice versa. On this issue, the supreme Russian commercial court (arbitration court) adopted a position in a ruling dated 07/12/2009 and declared a Dutch judgement enforceable. The decision is a further step towards establishing a practice of recognition and enforcement of European decisions in Russia and thus towards guaranteeing reciprocity also with Germany. In the commercial courts’ now also recognising British and Dutch court rulings – in addition to the already existing treaties under international law concluded with numerous EU Member States on the recognition and enforcement of court decision – they have created a mutual legal platform, also facilitating “in the triangle” recognition. In the interim, the French courts have issued exequatur for Russian decisions in civil matters.


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This article by TELG managing principal R. Scott Oswald was published by Maryland State Bar Association Section of Labor and Employment Law Newsletter on December 1, 2010.
Susan Lark was as a nurse at Montgomery Hospice Inc. (Montgomery).3Starting in 2004, Lark noticed what she thought were abnormalities and potential violations of generally accepted professional standards of nursing practice. A few years later, Lark learned that her co-workers were distributing narcotics in an unsafe and potentially illegal manner. Some of the practices which Lark alleges include the distribution of narcotics to non-patients, providing adult doses to children, improper documentation of the distribution of narcotics, distribution of narcotics to patients without a physician’s order, and failure to use safety precautions with a patient that had a high risk of hemorrhage.
(1) Discloses or threatens to disclose to a supervisor or board an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation; (2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by the employer; or (3) Objects to or refuses to participate in any activity, policy, or practice in violation of a law, rule, or regulation.
Md. Code, Health Occ. § 1-502.
(1) The employee has a reasonable, good faith belief that the employer has, or still is, engaged in an activity, policy, or practice that is in violation of a law, rule, or regulation; (2) The employer’s activity, policy, or practice that is the subject of the employee’s disclosure poses a substantial and specific danger to the public health or safety; and (3) Before reporting to the board: (i) The employee has reported the activity, policy, or practice to a supervisor or administrator of the employer in writing and afforded the employer a reasonable opportunity to correct the activity, policy, or practice; or (ii) If the employer has a corporate compliance plan specifying who to notify of an alleged violation of a rule, law, or regulation, the employee has followed the plan.
Md. Code, Health Occ. § 1-503.
Montgomery filed a motion to dismiss, arguing that Lark’s claims should be dismissed because “(1) the wrongdoing she complains of was committed by her fellow employees and not [Appellee]; and (2) she never reported any perceived wrongdoing to the appropriate external board or other authority as required for the Act to apply.”5 The trial court, treating Montgomery’s motion to dismiss as a motion for summary judgment, granted the motion on all counts. Lark appealed only her claim under the Act and the Court of Appeals issued a writ of certiorari on its own initiative.
While these arguments may have presented the best chance of success in the instant case, they were by no means in the best interest of Montgomery or other employers in the state of Maryland. Had Montgomery prevailed, employees would no longer have any incentive use internal channels when reporting illegal, unethical, or dangerous behavior. Instead, employees would be forced into making potentially costly and embarrassing external disclosures. Such encouragement would undermine compliance and internal reporting programs, and consequently drive up costs for employers and increase the likelihood of litigation.
The court next turned its attention to the issue of whether public policy supports the protection of employees who make only an internal disclosure under the Act. Here the court in gratis dictum addresses not only whether an internal disclosure is sufficient to trigger protection under the Act but also whether an internal disclosure alone is sufficient to trigger protection under the common law claim of wrongful discharge in violation of public policy.
While only dictum, the court’s lengthy discussion of common law wrongful discharge signals an unmistakable departure from the external reporting requirement first articulated in Wholey v. Sears Roebuck16 and an expansion of protected conduct. In the wake of Lark, prudent employers should consider internal disclosures to be protected activities under both the Act and Maryland common law.
1 Lark,414 Md. 215, 994 A.2d 968 (2010).
2 The Maryland tort of wrongful discharge is commonly referred to as an Adler claim. See Adler v. Am. Standard Corp., 432 A.2d 464 (Md. 1981).
3 See Lark v. Montgomery Hospice, Inc., 414 Md. 215, 994 A.2d 968 (2010) (all facts in this article are based upon the Court of Appeal’s opinion in Lark unless otherwise indicated).
4 Lark, 414 Md. at 221, 994 A.2d at 971 (alteration in original).
5 Lark, 414 Md. at 223, 994 A.2d at 972 (alteration in the original).
7 LarkLark, 414 Md. at 224, 994 A.2d at 973. Montgomery continued, “‘[w]henever possible, a statute should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory.’” (quoting Chesapeake & Potomac Tel. Co. of Md. v. Dir. of Fin. for Baltimore, 343 Md. 567, 579, 683 A.2d 512, 517 (1996)).
8 LarkLark, 414 Md. at 223, 994 A.2d at 973.
9 LarkMontgomery also argued that Lark’s statutory and common law claims should be dismissed “because . . . the wrongdoing she complains of was committed by her fellow employees and not [Appellee].” Lark, 414 Md. at 223, 994 A.2d at 972 (alteration in original). The Court rejected this argument without much discussion.
10 LarkLark, 414 Md. at 228, 994 A.2d at 976 (internal quotation and citation omitted).
11 Lark Lark, 414 Md. at 231-32, 994 A.2d at 977-78 (alteration in the original).
12 LarkLark, 414 Md. at 232, 994 A.2d at 978 (quoting Paul H. Tobias, Litigating Wrongful Discharge Claims § 5.13 (1987 & Supp. 2009-10)).
13 LarkSee Lark, 414 Md. at 232-42, 994 A.2d 978-84 (quoting and discussing cases from AZ, CA, CT, IL, MA, NH, OK, OR, RI, and DC).
14 LarkSullivan, 802 F. Supp. 716, 724-25 (D. Conn. 1992) (former employee alleged he was terminated in breach of contract and violation of public policy) (citing Norris v. Lumbermen’s Mass Mut. Co., 881 F.2d 1144, 1153 (1st Cir. 1989) (wrongful discharge in violation of public policy)).
16 LarkWholey, 370 Md. 38, 62, 803 A.2d 482, 496 (2002) (“To qualify for the public policy exception to at-will employment, the employee must report the suspected criminal activity to the appropriate law enforcement or judicial official, not merely investigate suspected wrong-doing and discuss that investigation with co-employees or supervisors.”).

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