Federal Court Wants No Part of LA County Court Consolidation Dispute, Slamming Courthouse Door on Poor and Disabled Litigants

Miles v. Wesley, No. 1355620, 2015 DJDAR 10399 (9th Cir. September 8, 2015).

In 2013 the LA County Superior Court, in response to substantial budget reductions during the recession, implemented various cost-saving measures, including the closure of a number of courthouses, layoffs of court staff, etc. The plan also included the “consolidation” of unlawful detainer cases, formerly heard in 26 courthouses throughout the county, into 5 “hub” courthouses, which would require low-income and disabled tenants residing, for example, in the San Fernando Valley, to travel to Santa Monica to litigate their evictions.

LSNC’s sister LSC programs, Neighborhood Legal Services of LA County and Legal Aid Foundation of Los Angeles, along with the Western Center and several disability rights groups, sued the LA courts in federal district court over this last provision, alleging that the court closures had a disproportionate and unlawful discriminatory impact on low income persons, minorities, and persons with disabilities.

Although the county did not initially even brief the issue, the federal district court dismissed the action on the grounds that it should “abstain” from hearing the case, invoking a seldom-used doctrine where federal courts may avoid exercising jurisdiction in cases where the remedy might entail “heavy federal interference” into the operation or management of a state court system.

On appeal, the Ninth Circuit affirms the dismissal based on abstention. It seems difficult to imagine how, in light of the court’s opinion, future plaintiffs alleging any institutional illegal or unconstitutional conduct by a state court will avoid a similar dismissal on abstention grounds.

Court to ALJs: You Can’t Just Say,” I Don’t Believe The Claimant’s Pain Testimony.”

Brown-Hunter v. Colvin, No.13-15213, 2015 DJDAR 8883 (9th Cir. August 4, 2015).

This could be a very important Ninth Circuit Social Security disability opinion because it appears to be an effort by Judge Wallace–who ironically in his long career has authored far more opinions upholding the denial of disability benefits than reversing such denials–to write a definitive instructional guide for Administrative Law Judges on how to assess a disability applicant’s testimony concerning disabling pain (or other symptoms). This issue, is of course, a recurring one in Social Security disability cases, and periodically over the decades the Ninth Circuit has issued opinions which attempted, unsuccessfully, to be the “final word” on the evaluation of pain testimony.

In this case the Court reverses the denial of benefits,which was supported in part by the ALJ’s finding that the claimant’s “statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are inconsistent” with the medical evidence. (This is a common boilerplate sentence found in ALJ opinions).

The Court’s summary of the legal standard governing this issue is worth repeating in full: “When an [ALJ} determines that a claimant for Social Security benefits is not malingering and has provided objective medical evidence of an underlying impairment which might reasonably produce the pain or other symptoms she alleges, the ALJ may reject the claimant’s testimony about the severity of those symptoms only by providing specific, clear, and convincing reasons for doing so. We hold that an ALJ does not provide [such reasons] simply by reciting the medical existence in support of his or her residual functional capacity assessment. To ensure that our review of the ALJ’s credibility determination is meaningful, and that the claimant’s testimony is not rejected arbitrarily, we require the ALJ to specify which testimony she finds not credible, and then provide clear and convincing reasons, supported by evidence in the record, to support that credibility determination.”

Not satisfied with re-articulating the pain testimony credibility standard, Judge Wallace addresses two other issues subject to recent debate in different circuit Social Security cases: (1) “harmless error,” which the courts should be “cautious” about finding, and which should never apply to errors in assessing credibility determinations, and (2) whether, after a reversal of benefits for legal errors, the case should be remanded for immediate payment of benefits (only under “rare circumstances”) or sent back for further administrative proceedings (which Judge Wallace clearly thinks is the usual course that should be followed).

Inconsistencies Between Vocational Expert Testimony, Dictionary of Occupational Titles and Characteristics of Claimant’s Mental Impairments Require Remand of Denial of Disability Benefits

Rounds v. Commissioner, SSA, No 13-35505, 2015 DJDAR 8892 (9th Cir. August, 4, 2015).

In this Supplemental Security Income disability case, the court concludes that a potential inconsistency between (1) the ALJ’s findings as to the claimant’s cognitive impairments, and (2) the cognitive requirements of certain jobs listed in the Dictionary of Occupational Titles, which a vocational expert testified the claimant could perform, required a remand for a new hearing to explore that issue. In less favorable rulings, the court upheld the ALJ’s rejection of some of the claimant’s treating doctors’ findings, and most troubling, upheld the ALJ’s rejection of both the claimant’s and two lay witnesses’ testimony concerning the claimant’s disabling pain, in part by accepting the ALJ’s finding that the claimant had a “secondary motive”–i.e., her interest in receiving disability benefits–to exaggerate her symptoms. (The ALJ’s credibility findings, upheld by this panel, seem patently inadequate compared to the standard articulated by another panel, in a different case published on the same day: Brown-Hunter v. Colvin.

Christian Pharmacists in Washington Lose Free Exercise Challenge to Pharmacy Regulations Requiring Timely Provision of “Plan B” Contraceptives

Storman’s Inc. v. Weisman, No. 12-35221, 2015 DJDAR 8463 (9th Cir. July 24, 2015).

In a case that began in 2007, and now reaches the Ninth Circuit for the second time, the court again reverses the district court’s judgment in favor of several plaintiffs who challenged Washington state rules regulating the timely provision and delivery of pharmacy prescriptions. The plaintiffs had religious objections to delivering or stocking so-called “Plan B” contraceptives, even though the rules attempted to accommodate such objections by allowing objecting pharmacists to not provide or deliver the prescriptions so long as a substitute pharmacist can be found to meet the patient’s needs.

This decision, which attracted dozens of amicus briefs by religious organizations both conservative and liberal in their social outlook, may well head to the Supreme Court, especially in the wake of the Supreme Court’s Hobby Lobby decision last Term. After a long analysis, the panel rejects the plaintiffs’ claim that because their participation in the provision of the Plan B drug implicates the “the taking of a human life,” it constitutes a protected liberty interest under the Due Process Clause. The court ultimately concludes that the pharmacy rules at issue “are neutral, generally applicable, and rationally further the state’s interest in patient safety.”

Employer Need Not Retain or Accommodate Employee with Mental Disability, Where the Condition Causes him to Make Repeated Threats of Violence Against Supervisors and Co-Workers

Mayo v. PCC Structurals, Inc., No.13-35643, 2015 DJDAR 8590 (9th Cir. July 29, 2015).

The plaintiff in this case suffered from major depressive disorder, but with treatment and medication he performed his job without incident for a number of years. At some point, however, he began to make repeated and detailed plans, which he shared with his co-workers, about how he was going to kill—in gruesome manner–his supervisors and other workers. When he told the employer that he “couldn’t guarantee” he wouldn’t carry out these plans, he was terminated and barred from the premises. He subsequently was hospitalized, received treatment for several months, and sought reinstatement to his job, which the employer refused.

He sued, claiming disability discrimination in violation of the Americans with Disabilities Act (ADA), and an analogous state statute in Oregon, and alleged that his disturbing comments and statements were “symptoms of and caused by” his disability, making his termination discriminatory.

The district court and the Ninth Circuit disagreed. To prove an ADA claim of unlawful discharge, an employee must establish a prima facie case by showing (1) he is a disabled person, within the meaning of the statute; (2) he is a “qualified individual” with a disability; and (3) he suffered an adverse employment action due to his disability. A “qualified individual” is a person who, “with or without reasonable accommodation,” can perform “the essential functions of the job.”

Following several other circuit decisions with similar facts, the Ninth Circuit holds that “while an employee can be qualified despite adverse reactions to stress in the workplace,” he cannot be “qualified” when the stress leads him to “threaten to kill his co-workers in chilling detail.” Even assuming that the threats stemmed from his disability, requiring employers to retain such workers “would place the employer in an impossible position,” and would force the employer “to choose between ADA liability and a hostile work environment.”

In an sympathetic final paragraph, the court acknowledges that “depression and mental illness are serious problems that effect millions of persons, including judges and lawyers,” and that many such persons are capable of working despite their “struggles” with these ailments. But the ADA, concludes the court, does not require employers to “simply cross their fingers and hope that [an employee’s] violent threats will ring hollow.”

National Park Hikers Beware: Your Government May Escape Responsibility For Deadly Mountain Goat Attacks

Chadd v. United States National Park Service, No. 12-36023, 2015 DJDAR 8542 (9th Cir. July 27, 2015).

In 2010, a sixty-three year old hiker in the Olympic National Park in Washington was attacked by a large (370 pound) mountain goat–one of nearly 300 goats in the park–which gored him in the thigh, severing his femoral artery, and caused him to bleed to death. His survivors sued for damages under the Federal Tort Claims Act (FTCA), alleging that the park service, which had been aware of the aggressive tendencies of this particular goat and had been monitoring the goat, should have killed or removed it prior to the attack (the park service shot and killed the goat after the attack). For some years the service had been attempting to control the behavior of this and other aggressive goats in the park through a process called “hazing,” which involved “aggressive conditioning techniques” like yelling at the goats, and throwing things at them, to teach them to be more fearful of humans.

The FTCA waives the government’s sovereign immunity for tort-type claims, unless the claim at issue falls within “the discretionary function” exception to the waiver. Here, because there was no specific directive on the management of potentially dangerous animals which the park service had violated, and since the service had been engaged in a course of action trying to manage the aggressive goats in the park, the majority concludes that the government’s action is shielded by the discretionary function exception. Accordingly, the majority rules that the plaintiff’s claim is not actionable under the FTCA.

Judge Kleinfeld, in dissent, sees it differently: This “aging tourist, 63, was killed by a horned animal larger than an NFL lineman, which had been the terror of the park for four years…This was no random, unpredictable animal attack. Park personnel knew this particular goat and had been dealing unsuccessfully with its unusual, aggressive behavior towards them and park visitors for four years…This [case does not involve] a policy decision,” but is “analogous to a routine tort case where a homeowner has a fierce dog that has attacked people, but does not get rid of the dog until it has torn some child’s face off. This was ordinary garden variety negligence, which the government must compensate…”