Dear Friends and Colleagues, With the final weeks of Summer upon us and Labor Day Weekend underway, it can only mean one thing: The DFMC Conference Annual Meeting is right around the corner.
After the breakthroughs and successes that we saw at DFMC 2023 in Denver, we knew that we would have to work hard and work smart to raise the standard higher yet again this year. As the work of our remarkable team approaches culmination in a few weeks, I believe we have accomplished this.
Your DFMC app, available on your mobile device for free, is packed with all the information you’ll need for this year’s conference.
Webinars
The scope of DFMC 2024 in San Diego is wide. We will welcome participants from Atlantic Canada to Saipan in the Northern Mariana Islands, and most points in between. 700 members of our Conference and friends from the external professional services community will be there. Most dioceses and eparchies of the Church in North America will be represented, including dozens participating for the first time, or returning to participation after a period of lapse. At least half a dozen bishops of the Church will be with us, along with a greater number of priests, deacons, and other religious. We are humbled and awed by all that His Eminence Cardinal McElroy and the Dicoese of San Diego have given us: everything we could have asked for and more has been provided and done so with joy. We cannot thank them enough. Support from DFMC’s community of sponsors has been incredibly generous, and as we have done each year recently – will again set an all-time record for overall financial sponsorship support for the DFMC Conference. For this, we are exceedingly and sincerely grateful.
Our commitment to elevating the membership experience guides our operational decisions. You have already encountered the benefits of our collaboration with CVENT, the leading conference technology service provider, when you registered for DFMC 2024. You will see more of that when you arrive in San Diego. We could not be happier with our hotel partner, the Hilton San Diego Bayfront, widely considered the finest Hilton-brand conference hotel in the United States. You are going to love staying at this hotel. Upgrades to our Conferences i/o meetings technology subscription will result in cleaner conveyance of CPE credit than ever before: if you simply check in and check out of the CPE-granting sessions that you attend, you will swiftly receive CPE credit for those sessions post-conference.
Our DFMC 2024 Conference Faculty is as good as you will find anywhere in this space. The starting point in developing our program offerings for the DFMC Conference is teaching towards the core professional learning areas laid out by the National Association of State Boards of Accountancy (NASBA). We also rely heavily on ideas from the DFMC Board of Directors and input from the membership as to which topics should be covered. In developing each year’s conference curriculum, we endeavor to balance technical topics with talks designed to feed executive managers – or those who aspire to become one. One or two talks at every DFMC Conference seeks specifically to inspire and lift the heart of all present, recalling Pope Francis’ charge to us: “The first capital of your company is you: your heart, your virtues, your will to live,” and “(work) is more than a mere doing; it is, above all, a mission…” Classes of speakers representing this inspirational category that we have offered in recent years, such as Mother Olga of the Sacred Heart, Sister Maris Stella, Margaret Kelly, and Bishop Edward Scharfenberger, have been well received and are among the highest-rated speakers in the history of the DFMC Conference. Technical focus areas that will be covered at DFMC 2024 in San Diego include: Auditing, Accounting, IT/Cybersecurity, Risk Management, Canon Law, Business Law, Interdiction of Fraud/Embezzlement, Internal Controls, Bankruptcy, Finance, Investments, Benefits Plans, Retirement Plans, Data Management, and Public Relations. Insights complimentary to numerous other NASBA focus areas will be found within much of the curriculum, as well. DFMC 2024 in San Diego is a Catholic Conference, and let it be clearly stated that our program offering is intended to deepen the personal Faith life of all present. For those already practicing their Catholic Faith diligently; we hope this will inspire you to go deeper. For those not regularly practicing their Faith or perhaps not Catholic at all; we hope this will serve as a first step in a transformative new journey. In DFMC’s constitution, at the very top within the statement on purpose, it reads: “In particular, this organization promotes the spiritual growth of its members …” We take this charge seriously, and believe that a vibrant renewal of the practice of Catholicism will benefit the DFMC membership not just spiritually but also practically in our temporal pursuits. Therefore, as you saw in Denver at DFMC 2023, this year’s DFMC Conference will feature an Adoration Chapel with Exposition of the Blessed Sacrament, wide availability of the Sacrament of Reconciliation,
BOARD OF DIRECTORS
Debbie Swisher President Diocese of Lexington
Jo Willhite Vice President Archdiocese of Portland in Oregon
Keith Parsons Treasurer Archdiocese of Denver
Shirley Pajanor Secretary/Site Chairman Diocese of San Diego
Most Rev. James Golka Episcopal Moderator Diocese of Colorado Springs
John Matthew Knowles Executive Director
Mac Bryant Diocese of Manchester
Cecilia Colbert Diocese of Dallas
Tammy DiLorenzo Diocese of Biloxi
Michael McGee Diocese of Richmond
Sheila R. Murray Diocese of Greensburg
Carla Mills
Archdiocese of Kansas City in Kansas
Jorge Montenegro Diocese of San Bernardino
Dn. Eric Simontis Diocese of San Jose
CONTINUED FROM PAGE 1
Message From The Executive Director
and other clergy present open to offering spiritual direction if asked, communal praying of the Rosary, daily Masses celebrated by a bishop of the Church, a Tuesday excursion to the historic Mission Basilica San Diego de Alcalá, and a special exhibit within the Hilton hotel honoring Saint Junípero Serra. DFMC 2024 is a celebration of the beauty and truth of our shared Catholic Faith, and we are thrilled to offer an abundance of programming associated with it.
As you make your final preparations to travel to San Diego, please do not hesitate to contact myself or Carolyn Rodenas with any questions you might have. We love to serve you and help you, and no question is too small
or trivial. Our goal with DFMC 2024 is to present the flagship professional conference in the Catholic Church and to send you forth in early October fulfilled spiritually, professionally, and socially. We are all extended family in this DFMC community, and as such know that we are here for you and will do all we can to support you professionally and personally.
Yours sincerely in Christ,
John Matthew Knowles, J.D. Executive Director
Welcome to the DFMC!
Please give a warm welcome to recent members to the DFMC. You can send them a welcome note on the DFMC Member Portal.
• Ms. Anna Aufdenkampe, Senior Accountant, Charleston
• Ms. Agnes Ballard, Director of Centralized Accounting, Amarillo
• Mr. Brian Bednarz, Finance Director, Nashville
• Fr. Charlie Borja, Apostolic Administrator, Chalan Kanoa Saipan
• Ms. Janelle Brown, Controller, Springfield in Illinois
• Mr. Anthony Cotton, Project Manager, Atlanta
• Mr. Francis Doyle, Vice-Chancellor (Temporal Affairs), Hamilton
• Ms. Rosalinda Gallo, Administrator of Financial Processes, Hamilton
• Ms. Marquita Richburg, Director of Human Resources, Atlanta
• Mr. Guy Scheiwiller, Chief Financial Officer, Tulsa
• Ms. Rose Soledad, Diocesan Finance Officer, Chalan Kanoa Saipan
• Ms. Dawn Thiele, Parish & School Financial Consulting, Milwaukee
• Ms. Linda Trask, O ffice Manager, Denver
• Ms. Tammi Wachterhauser, CFO, Kalamazoo
• Ms. Shannon Wiggins, HR Systems Manager, Atlanta
• Mr. Grant Williams, Risk Manager & Financial Accountant, Youngstown
Certified Diocesan Fiscal Managers
Active as of 2023 (by year)
• Mr. Scott A. Hoselton, Diocese of Fargo (2010)
• Mr. Glenn J. Landry, Diocese of Houma-Thibodaux (2010)
• Mr. Bradley J. Wilson, Archdiocese of Atlanta (2010)
• Mr. Brian Buckingham, (2011)
• Deacon Jeff P. Trumps, Diocese of Lafayette in Louisiana (2011)
• Mr. Patrick A. Kelly, Diocese of Youngstown (2012)
• Ms. Leticia Q. Macias, Diocese of El Paso (2012)
• Ms. Debbie Swisher, Diocese of Lexington (2012)
• Mr. Kevin R. Kiley, Diocese of Fall River (2013)
• Mr. Michael J. McGee, Diocese of Richmond (2013)
• Ms. Cynthia Martin, Diocese of Fresno (2015)
• Ms. Sheila Murray, Diocese of Greensburg (2015)
• Ms. Kathleen K. Hogan, Diocese of Joliet (2016)
• Mr. Charles J. Lawrence, Diocese of Boise (2016)
• Mr. David A. Reed, Diocese of Toledo (2016)
• Ms. Shirley Pajanor, Diocese of San Diego (2016)
• Mr. Rolla “Mac” Bryant, Diocese of Manchester (2016)
• Ms. Terry A. Dumas, Diocese of Austin (2017)
• Mr. Jack Husack, Archdiocese of Atlanta (2017)
• Ms. Rose Michalec, Archdiocese of Galveston-Houston (2017)
• Ms. Jodi Rippon, Diocese of Rockford (2017)
• Ms. Kimberly South, Diocese of Birmingham (2019)
• Mr. Andrew Brannon, Diocese of Winona-Rochester (2020)
• Mr. Robert Hagedorn, Diocese of Covington (2020)
• Ms. Tammy W. DiLorenzo, Diocese of Biloxi (2021)
• Mr. Ed Largaespada, Diocese of Pensacola-Tallahassee (2022)
• Mr. Kevin Larson, Diocese of Orange (2022)
• Mr. Nicolas Bray, Diocese of Pensacola-Tallahassee (2023)
• Mr. Brian McQuade, Archdiocese of Oklahoma City (2023)
• Ms. Kathy Tomasik, Diocese of Gary (2023)
New Member Update as of 8/30/24
CDFM online prep courses are available for all 16 test areas!
These are excellent courses that will help you succeed on the exam.
The deadline to register for the exam is October 2nd, 2024.
The Certified Diocesan Fiscal Manager credential represents the pinnacle qualification for a diocesan financial executive.
The CDFM Exam is a challenging, thorough test of knowledge across sixteen core competencies. Those who attain the CDFM distinguish themselves as extremely well qualified within the profession, and enjoy commiserate peer recognition as a result. DFMC and Villanova Center for Church Management have invested in these preparation courses to ensure that you have all you need to prepare for and pass the CDFM Exam.
Below is a sampling of the 16 prep courses.
Join those DFMC colleagues who have successfully achieved this professional certification by submitting your application to sit for the CDFM examination to the DFMC National Office by October 2, 2024.
Retirement Reflections from Tulsa
by Jeanette Fast Redmond DFMC MEMBER PROFILE:
THOMAS SCHADLE Retired Chief Financial Officer of the Diocese of Tulsa
“I’m not the future of the Church,” says Thomas Schadle, newly retired after 21 years as chief financial officer of the Diocese of Tulsa. “It’s the younger people, the kids.”
“I’m turning 75 in August,” Tom explains, noting that he doesn’t have many health problems and has always been able to get up and go to work. “I always thought I’d probably work till I was in my late 60s, but here I am.”
Tom grew up in Waterloo, Iowa, and earned his accounting degree in 1971 from the nearby University of Northern Iowa. He went to work with his father at the same company.
“He was in the transportation and trucking business at the time and brought me in to learn the business,” Tom says. He and his father got along very well as co-workers. “I thought the world of my father.”
After 12 years, Tom and his wife, Peggy—whom he had met in high school—moved their family to Oklahoma. Tom spent another 10 years in the mortgage banking industry, followed by nine years working for an electric motor manufacturing business. Then he took steps toward becoming an independent accounting consultant.
But in the early 2000s, he played golf with two friends who happened to be on Tulsa’s diocesan finance council.
“They were reorganizing the financial department of the diocese,” Tom recalls, “and they talked to me about whether I would be interested in that.”
“So this [opportunity] came along, and I thought, you know—the security of the Church,” he explains, noting the appeal of a regular paycheck and benefits. When Tulsa’s Bishop Edward Slattery (now emeritus) offered Tom the job, he accepted.
“I’m what they call a ‘cradle Catholic,’” Tom says. “My father and mother were practicing Catholics, and my grandparents had always been active in the Church.”
“My father was more directed toward the financial management of parishes and schools,” he says, and his mother was a member of the Catholic Daughters of the America and hospital services.
“I remember my dad and I used to go to Mass every day during Lent. There was a Mass at 6:45 in the morning. We’d go to that Mass, then he would go on to work, of course,” Tom says. “Then some days I would stay and go to 7:45 Mass because that was the school Mass for the kids” at the parish school he attended.
“We’re not preachers,” Tom says of his family. “But our family life and all was always wrapped around the Church. . . . I’m not sure that I ever had an epiphany or even a renaissance moment, but it was just part of how we grew up.”
Long before Tom accepted the position as diocesan CFO, he had—like his father—accrued experience on the finance council of his recently established parish. He became especially good friends with Fr. Tom Hildebrand. “He wasn’t just a friend of mine. He was a friend of Peggy and I both and of our kids.”
When Tom began working for the diocese, Fr. Tom told him that the most important thing he needed to remember was his faith—advice that Tom offers to new diocesan CFOs today.
“Twenty-plus years later, that advice has become clearer than ever,” Tom reflects. “In recent years, more people are entering the diocesan workplace from corporate America. It is important to understand dioceses don’t operate even close to the corporate world.”
“We’re the beneficiaries of the people in the pews,” he says. “That’s the source of our funding to operate and offer the ministries that we do operate.”
“I’m not out there teaching or in front of parents or kids or at a podium,” he reiterates, “but I take it seriously to make sure that what we’re doing is what we should be doing as far as: Are we spending it wisely? Are we doing it according to whatever budgets we have set up? Are we living within our means?”
“Right after I came to work here, I went to 8 o’clock Mass on a Sunday. And I just looked around at the church, and my first thought was, ‘Why are all these 75- or 80-year-old women and men up at 8 o’clock going to church?’” he recalls. “Then I realized every one of them was putting whatever in the basket. And I thought, that’s what we’re spending, and that’s what we’re using to operate.”
“Remember where your funding comes from,” he repeats. “If I can help make sure that it is being spent wisely and to further the faith, that I think is a ministry in and of itself.”
But as a ministry, diocesan finance and accounting is about more than numbers.
“I do take pride, obviously, in making sure my numbers work together well,” he says. “But it’s also a matter of stepping back and saying, ‘Okay, what does this balance sheet really tell you? What are we doing with our income?’ I guess I’m an accountant in my education and training and work and all, but, you know, it’s also about relationships. It’s about your family. I hope I’m not wrong, but I think that’s how I feel like I practice my faith.”
“One of my managers at one time told me, ‘You relate well with people,’ and that’s what you learn—how do you work with people?” he says. “How do you accomplish what your goals are and understand the goals, make sure you know and work with them? And that’s how my father worked. I’ve taken it from him.”
That insight reflects what Tom describes as the most important change he’s seen in nonprofit finance and accounting over his venerable career. “It would be in the area of transparency— especially in the nonprofit space—the need to assure our donors we are using their gifts efficiently, economically, and in the spirit they intended for the gift to be used.”
At Lincoln Financial, we provide a wide range of employer-sponsored retirement plans for organizations of all sizes and sectors. But we don’t stop there. Our tools and services help simplify the entire benefits process for employees and plan sponsors. From personalized technology to one-on-one support, we make it easier to manage competing priorities, boost contributions and face retirement with confidence.
DFMC BOARD CANDIDATES
CAROLYN M. CALLAHAN DIOCESE OF JACKSON
POSITION TITLE : Director, Department of Temporal Affairs (Fiscal Officer)
NUMBER OF YEARS IN CURRENT POSITION: 5
NUMBER OF DFMC CONFERENCES ATTENDED: 8
DUTIES AND ACCOMPLISHMENTS:
Duties similar to all Diocesan Fiscal Officers.
Accomplishments: With the support of Bishop Kopacz, VG Father Lincoln Dall, Diocesan Finance Council, and Temporal Affairs Team: Corrected deficits in Chancery and multiple parishes and schools, implemented multiple software conversions, corrected major issues within Deposit and Loan portfolio, facilitated change in medical benefits providers, implemented major switch in 401k program, corrected issues in audits for Diocese and Catholic Charities, decreased personnel costs by streamlining processes, restructured Diocesan Finance Council and related Committees to follow USCCB / Canon guidelines, and developed and implemented parish Best Practices Guide and internal audit program.
BACKGROUND PRIOR TO WORKING FOR THE DIOCESE:
I am a fixer and a problem solver. I have spent my career primarily working on accounting projects and software implementation, correcting and/or strengthening financial processes and data, training, management, and related areas. I thrive on helping to empower people, especially women (reminder: I started my career in the late ‘80s), to succeed and feel confident in their success. I have enjoyed saying ‘yes’ and then figuring out what I’ve said ‘yes’ to, then making it work and learning from the process. I would say curiosity is my best professional and personal trait and patience is my least.
ANY PERSONAL INFORMATION:
I am who I am because of my faith. Continuously trying new things is possible for me because of my faith. My husband and I have been married for 35 years and raised two beautiful sons (no bias of course) who are focused on serving others even when as scientists they have doubts about religion. I have a strong connection to the Holy Spirit and recognize the Spirit working in my life. I believe in living my faith and that it should be evident in how I act and while I can be quoted saying “there’s that Holy Spirit working again” am not as vocal about it as some of my colleagues. I am flawed, and always seeking to do better.
I am part of a close family who, other than my immediate family is distant in miles. My father is a major part of my life, as a mentor and supporter. (Mom was too). I am originally from California and lived in New Orleans and Detroit Michigan before moving to Jackson in ’76. I have two siblings and we grew up sailing on the Ross Barnett Reservoir near Jackson. Water, trees, and birds are my ‘happy place’ and my husband and I RV camp regularly, along with our 7lb Maltipoo, to experience this peacefulness. In addition to RVing I enjoy other travel, reading, walking, and spending time with family and friends.
EDUCATION, CERTIFICATIONS, ETC.:
BBA-Accounting, MBA, School Finance/Administration Certification–Villanova.
PARISH/CHURCH AFFILIATIONS:
Formally a member of St. Joseph Parish, Gluckstadt, MS. Attending St. Catherines Retirement Village for Mass with my father since the passing of my mother in December 2022.
MARC A. FISHER ARCHDIOCESE OF PHILADELPHIA
POSITION TITLE : Chief Financial Officer
NUMBER OF YEARS IN CURRENT POSITION:
5 years as CFO – 13 years with the Archdiocese of Philadelphia
NUMBER OF DFMC CONFERENCES ATTENDED: 10
DUTIES AND ACCOMPLISHMENTS:
As CFO, I am responsible for the overall financial operations and strategy for the Archdiocese and ensuring that all financial systems and controls reflect best practices. I oversee the preparation of the annual operating budgets, the annual audit process, and the annual public financial disclosures for various Archdiocesan entities. In addition, I serve on numerous Archdiocesan committees and Boards of Archdiocesan related entities in order to provide financial guidance to those Boards and the Archbishop pursuant to Canon Law and with a focus on preserving the fiscal welfare of the Archdiocese of Philadelphia. Since starting my position at the Archdiocese of Philadelphia, I had significant involvement in the planning and implementation of a major administrative restructuring project. It included responsibility for the creation of the Office for Parish Service and Support. I was part of a pension task force that froze the Archdiocesan defined benefit plan and created the current defined contribution plan. I was also responsible for creating the financial plan related to the funding of the Independent Reconciliation and Reparation Program associated with providing additional modes of meaningful assistance to victims of abuse by Archdiocesan priests.
BACKGROUND PRIOR TO WORKING FOR THE ARCHDIOCESE:
I spent most of my professional career in public accounting with the first five years at Ernst & Young. After being promoted to Manager, I left to work for a national law firm. There, I played a significant role in the integration of another law firm with which they were merging. I was also responsible for the budget and financial processes of the combined firm. I decided to go back into public accounting and worked at a regional public accounting firm that had a growing practice in the mutual and hedge fund space. After 10 years and a promotion to Principal of that firm, I took a position at a startup accounting firm with a niche focus on internal controls. Shortly after my arrival, the founding partners decided to split, and I assisted with the wind down. I then was given the opportunity to take the position of Director of Internal Audit at the Archdiocese of Philadelphia.
ANY PERSONAL INFORMATION:
My favorite job in life is being the father of 4 adult male children. Two are still in college at St. Joseph’s University and one just completed his first year at NYU Law. The oldest son is gainfully employed and off the phone plan.
EDUCATION, CERTIFICATIONS, ETC.:
DeSales University (formerly Allentown College)
CPA In Pennsylvania - currently inactive
PARISH/CHURCH AFFILIATIONS:
I am registered at St. Peter Parish in Merchantville, New Jersey. St. Peter Parish is located in the Camden Diocese and was where 3 of my 4 children attended grade school. I currently attend Mass at Our Lady of Perpetual Help Parish in the Trenton Diocese.
DFMC BOARD CANDIDATES
KEITH A. PARSONS ARCHDIOCESE OF DENVER
POSITION TITLE : Chief Operating Officer
NUMBER OF YEARS IN CURRENT POSITION: Current position: 5 years 3 mos AOD CFO previously for 4 years and 5 months.
NUMBER OF DFMC CONFERENCES ATTENDED: 10
DUTIES AND ACCOMPLISHMENTS:
As part of the Archbishop’s Mission Leadership Team, I lead the operations of the Archdiocese. Departments reporting to me include the CFO and that role’s Finance, Administration and Planning offices, Real Estate, Office of Catholic School, Marketing and Communications, Human Resources, Cemeteries and Mortuaries, Camps and Mission Advancement (Development). We provide services to all of the entities of the Archdiocese including 148 parish locations, 35 schools, two seminaries, cemetery and mortuary operations, and 3 camp locations. We have been transforming our diocese for an apostolic mode where accomplishments in this area include the implementation of regionally deployed mission support centers, revamped communication strategy, implementation of a diocesan-wide human resources system, a full missional restructure of our cemetery operations, the acquisition and launch of a youth and family camp location, construction of a priest retirement home and the successful restructure of our Mission Advancement office.
BACKGROUND PRIOR TO WORKING FOR THE ARCHDIOCESE:
Background in non-profit accounting with Catholic Charities of Kansas City-St. Joseph. Prior to joining the non-profit world, was Vice President of Finance for an investment management company and a senior finance manager for a pharmaceutical company. Earned CPA license after beginning career with Ernst and Young.
ANY PERSONAL INFORMATION:
I am happily married man with 5 beautiful children: Mattea (18), Dominic (14), Ezekiel (13), Josiah (11) and Quentin (9). After my faith and my family, my biggest interest is ultramarathon trail running.
EDUCATION, CERTIFICATIONS, ETC.: Graduate of Indiana University with a BS in business (accounting specialty), CPA
PARISH/CHURCH AFFILIATIONS:
Our Lady of Fatima Parish in Lakewood, Colorado
DEACON ERIC SIMONTIS
DIOCESE OF SAN JOSE
POSITION TITLE : Chief Financial Officer
NUMBER OF YEARS IN CURRENT POSITION: Two plus years at the Diocese of San Jose and six plus years at the Archdiocese of Washington prior to that.
NUMBER OF DFMC CONFERENCES ATTENDED: 7
DUTIES AND ACCOMPLISHMENTS:
My time is split between my two vocations, the diaconate and Chief Financial Officer for the diocese. For the latter, like any CFO, I am responsible for all financial matters coming in front of the diocese. As part of my duties, my initial objective, as it was in Washington, was to review our vendors to determine that we had vendors who would actively partner with the diocese. In my two years in San Jose, we have replaced our auditor, trustee (for both investments and our pension plan), actuary and commercial insurance broker. I have also instituted two partial annuitizations of our lay pension plan in San Jose and have done several voluntary and one mandatory pension buy back in both Washington and San Jose.
In San Jose, I am also part of the Pastoral Planning Implementation team, where we are taking the recommendations from the diocesan-wide synod and putting them into practice, with a goal of both spiritual and structural renewal. I am also a trustee for RETA, a healthcare VEBA that serves 37,000 Catholic employees. In Washington, I was also a board member for the Catholic Umbrella Pool.
As a deacon, I serve primarily in the diocese of Oakland at St. Michael’s in Livermore, California but I also serve occasionally in San Jose. I have just passed my fifth-year ordination anniversary and do my best to draw closer to God and bring others with me. I have been very fortunate that, in each of our six relocations, God has put us in a place that allowed our faith to grow. My current parish assignment allows me to provide a weekly one-minute video reflection on the current week’s gospel and has given me the opportunity to lead several parish retreats.
BACKGROUND PRIOR TO WORKING FOR THE DIOCESE:
Working backwards, I worked six years in the Archdiocese of Washington, thirteen years working with private equity in Atlanta buying and selling affiliated television stations, roughly five years working in Dallas for both an IT-based hospitality firm and a large radio station holding company and fourteen years at PricewaterhouseCoopers in Dallas, Toledo, Leeds England and Cleveland.
ANY PERSONAL INFORMATION:
I have been married to Kathleen for 37 years and have two children, Kevin (31) and Scott, who passed away in 2023.
EDUCATION, CERTIFICATIONS, ETC.:
BS in Accounting from the Miami University (Ohio). I was a CPA but let the license lapse some years ago.
PARISH/CHURCH AFFILIATIONS:
As previously mentioned, my home parish is St. Michael’s in Livermore, CA.
If you are nominating someone else, please contact them about their willingness to run.
AUSTRALIA
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Spokane
Yakima
WEST VIRGINIA
Wheeling-Charleston
WISCONSIN
Green Bay
La Crosse
Madison
Milwaukee
Superior
WYOMING
Cheyenne
RECOGNIZING LONG-TERM CONFERENCE ATTENDANCE
The Board of Directors will be privileged to recognize member conference attendance milestones during our annual conference in San Diego. The following listing reflects the Corporate Office’s current record of 2024 San Diego attendees registered by Herald publication date who are at the 10, 15, 20, 25, 30, 35-year attendance recognition levels. We invite each member who will be attending this year’s conference to kindly review this listing and let the DFMC know if we inadvertently missed fully recognizing your proper years of attendance.
Conferences Attended Includes San Diego 2024
30 Years of Attendance
Mr. Gerald Arnold Diocese of Cleveland
15 Years of Attendance
Mr. Dale Henson Diocese of Covington
Mr. Patrick Ketchum Diocese of Springfield in Illinois
Mr. Chuck Lawrence Diocese of Boise
Ms. Maribeth Leonard Diocese of Arlington
Ms. Cynthia Martin Diocese of Fresno
Mr. Kevin O'Brien Diocese of Fort Worth
25 Years of Attendance
Ms. Hope Burke Diocese of Baker
Ms. Jodi Rippon Diocese of Rockford
Mr. Michael Sabatino Diocese of Providence
20 Years of Attendance
Ms. Leticia Macias Diocese of El Paso
10 Years of Attendance
Ms. Terry Dumas Diocese of Austin
Mr. Marc Fisher Archdiocese of Philadelphia
Ms. Deborah Hoagland Diocese of Venice
Mr. Jack Husack Archdiocese of Atlanta
Ms. Stephanie Jerstad Archdiocese of St. PaulMinneapolis
Mr. Donald Kaercher Diocese of Harrisburg
Mr. George Landolt Diocese of Lansing
Mr. Thomas Mertens
Archdiocese of St. PaulMinneapolis
Mr. Keith Parsons Archdiocese of Denver
Ms. Arlene Perricone Diocese of Bridgeport
Federal Litigation
Supreme Court Refuses to Stay Lower Court Orders Enjoining Title IX Regulations that Construed “Sex” to Include Gender Identity
Title IX of the Education Amendments of 1972 forbids discrimination on the basis of sex in education programs and activities that receive federal financial assistance. In April 2024, the U.S. Department of Education (DOE) issued regulations that construe the term “sex” as used in Title IX to include gender identity. 89 Fed. Reg. 33474 (Apr. 29, 2024).
Two groups of states (collectively ten states) challenged the regulations in federal district courts in Kentucky and Louisiana based on the inclusion of gender identity and the definition of harassment, regulatory provisions that, the states claimed, were unmoored to the language of the statute. Those courts enjoined the regulations in their entirety in the plaintiff states. The Fifth and Sixth Circuit refused DOE’s request to stay the injunctions pending appeal.
On August 16, in a per curiam opinion, the Supreme Court denied DOE’s application for an emergency stay. All nine justices agreed that the plaintiffs were entitled to preliminary injunctive relief as to three provisions relating to gender identity or harassment:
Importantly, all Members of the Court today accept that the plaintiffs were entitled to preliminary injunctive relief as to three provisions of the rule, including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity.
The Court split 5-4, however, on the question of whether the lower courts were correct in enjoining the entire regulatory package. The lower courts had concluded that the challenged provisions were intertwined with and affected other provisions of the rule, necessitating broad relief. In its opinion, the Supreme Court held that DOE failed (a) to demonstrate a sufficient basis to disturb that conclusion or (b) to identify which particular provisions, if any, were sufficiently independent of the challenged provisions to remain in effect. The Court also noted that the Sixth Circuit has expedited its consideration of the case, another factor weighing against an emergency stay.
Justice Sotomayor, joined by Justices Kagan, Gorsuch, and Jackson, dissented in part. “Every Member of the Court agrees,” Justice Sotomayor wrote, that the states challenging the regulations “are entitled to interim relief as to three provisions of that Rule.” However, she would have granted the government’s request to stay those portions of the lower court injunctions that prevent the enforcement of other provisions. –M.M
Practice Point: Independent Women’s Forum reports that, as a result of multiple lawsuits, including the two noted here, the Title IX regulations have now been enjoined in 26 states.
See: Dept. of Educ. v. Louisiana, Nos. 24A78, 24A79, 2024 WL 3841071 (U.S. Aug. 16, 2024).
Public School’s Refusal to Recognize Religious Club Violated Free Exercise Clause and RFRA
Jackson-Reed High School, a public school in the District of Columbia, officially recognizes numerous student clubs. Official recognition has certain benefits: it allows a club to meet in school facilities, participate in an activities fair, appear on school websites, and advertise club events on school bulletin boards.
Jackson-Reed refused to recognize a student club affiliated with the Fellowship of Student Athletes (FSA) because the club requires that its student leaders adhere to FSA’s religious beliefs about sexual relations and marriage. The school claims that this club requirement violates the school’s nondiscrimination policy.
The club sued the school to challenge its refusal to recognize the club.
The district court granted the club’s motion for a preliminary injunction, concluding that the school’s failure to recognize the
club likely violated its rights under the Free Exercise Clause and Religious Freedom Restoration Act.
The nondiscrimination policy is not neutral and generally applicable because the school recognizes secular clubs that restrict membership on the basis of protected characteristics. There are, for example, clubs for girls, students of Asian heritage, and students who self-identify as gay or lesbian.
It cannot be said that Jackson-Reed’s non-recognition of FSA serves a compelling interest by narrow means, the court concluded, when the school permits secular groups to limit membership while denying the same right to FCA with respect to its leadership. –M.M.
See: Fellowship of Christian Athletes v. District of Columbia, No. 24-cv-1332, 2024 WL 3400104 (D. D.C. July 11, 2024).
Diocese Not Liable in Bankruptcy for Alleged Sexual Abuse Absent Allegations
Plausibly Demonstrating an Employment or Agency
Relationship with Abusers
Individuals alleging childhood sexual abuse by clergy and staff at religious institutions within the Diocese of Rockville Centre appealed an order of the bankruptcy judge dismissing their claims against the Diocese for failure to state a claim.
The district court has now affirmed.
The court concluded that the claimants had offered “no non-conclusory allegations to support a theory of liability based on the Debtor’s relationships with either the alleged abusers or the religious institutions where the abuse occurred.”
The court elaborated:
At best, the factual allegations, which describe the Diocese’s involvement in decisionmaking and coordination of certain activities with Catholic institutions in its territory, plausibly support the existence of a close working relationship between the Debtor and those institutions. But the allegations are insufficient to plausibly allege an agency relationship, which under [New York] state law requires the agent to have the “power to alter legal relations between the principal and third persons.” [Citation.] Furthermore, although Claimants have plausibly alleged that the Bishop, acting on behalf of the Debtor, has some authority to hire or appoint personnel at institutions within the Debtor’s territory, Claimants have not plausibly alleged that the Debtor appoints all clergy members at various Catholic institutions located in the Diocese. Even more crucially, Claimants have offered no non-conclusory allegations to support the inference that the Debtor actually exercised this authority to hire or appoint any of the specific alleged abusers. Similarly, although Claimants’ allegations indicate that the Diocese may have occasionally supervised or disciplined teachers at the institutions in question, there is no non-conclusory allegation that the Diocese exercised this authority over all teachers or over any specific alleged abuser.
In addition, the allegation that the Diocese had revoked the faculties of one abuser accused in connection with a claim that is not at issue in this appeal was “insufficient to plausibly allege that the specific abusers at issue here were employees or agents of the Diocese, or that their institutions were agencies of the Diocese.”
Finally, an allegation that the Diocese hired, fired, supervised, or disciplined an individual not at issue in this appeal did not support an inference that the Diocese had “the power to control all clergy or staff at Catholic institutions within its geographic territory or exercised that power over any specific abuser in this appeal.” –M.M.
See: In re Roman Catholic Diocese of Rockville Centre, No. 23-CV-9210, 2024 WL 3413482 (S.D. N.Y. July 15, 2024).
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Federal Litigation
Courts Refuse to Enjoin HHS from Terminating Oklahoma’s Title X Funding Based on its Refusal to Provide Information About Abortion
In 2021, the U.S. Department of Health and Human Services (HHS) reinstated a regulation that requires Title X family planning projects to provide pregnant women with the opportunity to receive “neutral, factual information and nondirective counseling” regarding family planning options, including abortion, and to provide a referral regarding all options when requested. Most Title X funds flow to state and local government agencies, which distribute the funds to other entities providing health care services.
Oklahoma has been a recipient of Title X funds for decades. When it told HHS that state law prohibited referrals for abortion, HHS proposed the use of a national call-in number where operators would supply the requisite information. Oklahoma initially accepted the proposal but subsequently declined to implement it. HHS responded by terminating its $4.5 million annual Title X grant to the Oklahoma Department of Health (ODH).
Oklahoma sued to challenge the termination of the grant and moved for a preliminary injunction, arguing that HHS’s action violated the Spending Clause and Weldon amendment and was arbitrary and capricious.
The district court denied the state’s motion. By a 2-1 vote, the Tenth Circuit has now affirmed.
Spending Clause
A state cannot be said to have voluntarily and knowingly accepted the terms of a grant unless those terms are unambiguous. Title X unambiguously authorizes HHS to impose conditions on grants. Armed with this authority, HHS established unambiguous conditions that include the provision of information and referrals for all family planning options, including abortion. Oklahoma made an informed decision to comply with these conditions when it accepted Title X funds, and it likely violated those conditions when it refused to share the call-in number with Title X clients. Therefore, there is no Spending Clause violation.
Weldon Amendment
The Weldon amendment, a rider included in every Labor/HHS appropriations bill since 2004, forbids the federal government and states that receive federal funds to discriminate against any health care entity on the basis that it does not provide, pay for, provide coverage of, or refer for abortions. See, e.g., Further Consolidated Appropriations Act, 2024, H.R. 2882, 118th Cong., Div. D, § 507(d)(1) (2024).
The requirement that Title X clients be given a call-in number for information as to family planning options, including abortion, does not constitute a referral for abortion, the court concluded. The call-in number simply offers clients an opportunity to receive neutral information about abortion, information that, in the court’s view, does not facilitate an abortion.
Arbitrary and Capricious
The Title X statute prohibits use of Title X funds in programs where “abortion is a method of family planning.” 42 U.S.C. § 300a-6. But the statute is silent on the issue of counseling and referrals. Given Congress’s silence, the Supreme Court has held that HHS can adopt requirements on counseling and referrals. Rust v. Sullivan, 500 U.S. 173 (1991). That is exactly what HHS did here.
Dissent
Judge Federico dissented. He agreed with the majority on the Spending Clause claim and on the question of whether HHS had acted in an arbitrary and capricious manner. He concluded, however, that the state was likely to prevail, and was entitled to preliminary injunctive relief, on its claim that HHS had violated the plain terms of the Weldon amendment by terminating ODH’s grant when it refused to refer for abortion. –M.M.
See: Oklahoma v. HHS, 107 F.4th 1209 (10th Cir. 2024).
Alexander Behrend was a staff member at a Buddhist temple in California. He sued the temple for disability discrimination under the Americans with Disabilities Act after it refused his request for an accommodation of his post-traumatic stress disorder and terminated his employment.
The district court dismissed the case under the ministerial exception. The Ninth Circuit has now affirmed.
On appeal, Behrend argued that the ministerial exception did not apply because he performed mostly menial work and did not have a key role in making internal church decisions or transmitting the faith to others.
The Ninth Circuit rejected his argument. Behrend was essentially a monk. To be sure, his duties included maintenance work, kitchen duties, and guest services. But he was also responsible for assisting with liturgies, participating in meditations and services, attending talks and classes, and performing ceremonial tasks like bell ringing and cleaning altars.
The court reasoned that were it to adopt a rule like the one Behrend suggests, it would be interfering with the freedom of a religious group to select who may or may not serve as a live-in monk. –M.M.
See: Behrend v. San Francisco Zen Center, 108 F.4th 765 (9th Cir. 2024).
Supreme Court Roundup
Court Rejects Use of Non-Consensual Releases of Non-Debtor Third Parties in Bankruptcy
On June 27, by a 5-4 vote, the Supreme Court held that the Bankruptcy Code does not authorize non-consensual releases of non-debtor third parties.
Justice Gorsuch wrote the majority opinion, which was joined by Justices Thomas, Alito, Barrett, and Jackson. Justice Kavanaugh filed a dissenting opinion that was joined by the Chief Justice and Justices Sotomayor and Kagan.
The majority notes that a discharge in a bankruptcy case generally applies only to claims against the debtor. Though the Bankruptcy Code allows for a plan to include “any other appropriate provision” necessary for consummation, the Court determined that the catch-all had to be “interpreted in light of its surrounding context” and that, in that context, only relief relating to the debtor itself was contemplated.
Court Punts on EMTALA
In 1986, Congress enacted the Emergency Medical Treatment and Labor Act (EMTALA). EMTALA requires hospitals that participate in Medicare to provide all patients and, if pregnant, their unborn children with stabilizing treatment or to transfer them in an emergency even if the patient is unable to pay. 42 U.S.C. § 1395dd. After the Supreme Court overturned Roe v. Wade, the U.S. Department of Health and Human Services (HHS) issued “guidance” which claimed that EMTALA requires a hospital to perform an abortion (by implication, at any stage of pregnancy), even if the abortion is illegal under state law, when the emergency room physician concludes that an abortion is the stabilizing “treatment” that a pregnant woman needs to address a serious maternal health condition.
Idaho prohibits abortion except when necessary to save the life of the mother. The United States sued to enjoin Idaho’s abortion ban insofar as it prohibits abortions that are required under EMTALA. The district court granted the request for a preliminary injunction. When the Ninth Circuit turned down a request to stay the injunction pending appeal, Idaho and state officials filed separate applications for an emergency stay in the Supreme Court. On January 5, 2024, the Supreme Court granted the applications, stayed the lower court injunction, and, treating the applications as petitions for certiorari before judgment, granted certiorari.
In the Supreme Court, the case was fully briefed and argued.
On June 27, just days before the close of its 2023 Term, the Supreme Court issued a one-sentence order dismissing the writs of certiorari as improvidently granted and vacating the Court’s January 5 stay, thus returning the case to the lower courts and allowing the district court’s injunction to go back into effect. Five justices (Roberts, Barrett, Kavanaugh, Kagan, and Sotomayor) voted to dismiss the writs. Six justices (the five just mentioned plus Justice Jackson) voted to dissolve the Court’s January 5 stay.
The Court carefully limited the scope of its ruling. Among the issues expressly not decided were: (1) whether consensual thirdparty releases may be included in a Chapter 11 plan; (2) what qualifies as “consensual” for those purposes; (3) whether a different rule applies when a plan provides for the full satisfaction of claims against the third-party non-debtor; and (4) whether plans containing now-unlawful releases that have already been substantially consummated are subject to modification. Those issues likely will be heavily litigated going forward as parties attempt to work around, or expand the consequences of, the Court’s ruling.
The USCCB filed an amicus brief in the case, arguing that nonconsensual third-party releases were an important tool in the context of most diocesan bankruptcies, which provide continued access to a just and orderly system for compensating survivors of sexual abuse, while continuing the mission of the Catholic Church. –W.Q.
See: Harrington v. Purdue Pharma, 144 S. Ct. 2071 (2024).
The Court issued no opinion and no explanation for its June 27 order. The case instead elicited four separate opinions, none of which garnered a majority. Justices Kagan filed a concurring opinion that was joined by Justice Sotomayor and, in part, by Justice Jackson. Justice Jackson filed an opinion concurring in part and dissenting in part. Justice Alito filed a dissenting opinion that was joined by Justices Thomas and Gorsuch. Justice Barrett filed a concurring opinion that was joined by Chief Justice Roberts and Justice Kavanaugh.
Kagan and Jackson Opinions
Three justices (Kagan, Sotomayor, Jackson) agreed with the United States that EMTALA preempts Idaho law to the extent that the latter, in certain “rare” cases, forbids an abortion when there is a serious risk to the mother’s health. The three concluded that EMTALA’s express reference to unborn children is simply a mechanism that allows a pregnant woman to obtain emergency treatment for her unborn child when the child faces a health emergency of its own, but that EMTALA’s express reference to the unborn child does not trump the woman’s own EMTALAprotected interests in emergency treatment even if that “treatment” is an abortion. The three also agreed that the Court’s own stay should be lifted.
Two of the three justices (Kagan and Sotomayor) agreed that the writs should be dismissed as improvidently granted because, in their view, early consideration of the dispute was not warranted and dismissal would allow the case to proceed in the ordinary course in the lower courts. In her separate dissent, Justice Jackson concluded that the case was suitable for resolution now and that the Court should decide the matter on the merits rather than returning it to the lower courts.
Alito Opinion
Three other justices (Alito, Thomas, and Gorsuch) concluded that the United States’ reading of EMTALA is “plainly unsound”
Court Punts on EMTALA - continued
because the statute by its terms protects unborn children. At a minimum, the justices concluded, EMTALA does not unambiguously require an abortion as would be necessary to survive a Spending Clause challenge. In their view, no intervening development justified sending this case back to the lower courts or lifting the stay.
Barrett Opinion
The three remaining justices (Barrett, Roberts, and Kavanaugh) concluded that intervening developments, including concessions made by the United States in briefing and oral argument, had so narrowed the disagreement between the United States and Idaho as to warrant returning the case to the lower courts. While this case was pending, the Idaho Supreme Court construed Idaho law to permit treatment for ectopic pregnancies and held that state law does not require objective certainty on the part of the treating physician or an immediate maternal health risk to justify an abortion. Idaho also conceded that state law permits an abortion in certain cases such as placental abruption and preeclampsia even if the threat to the woman’s health is not imminent. The United States, for its part, conceded in briefing that abortion is never required as a stabilizing treatment for a mental health condition, and admitted in oral argument that federal conscience protections, for both hospitals and physicians, apply in the EMTALA context. In sum, the United States clarified that EMTALA’s reach is far more modest, and Idaho construed the exception to its abortion ban far more broadly, than had been the case when the district court entered its injunction.
Finally, this case raises “a difficult and consequential argument” as to whether Congress, under the Spending Clause, can obligate recipients of federal funds (in this case, hospitals) to violate state criminal law. The district court had not addressed that issue, and because certiorari had been granted prior to judgment, neither had the Ninth Circuit.
The three justices agreed that the case should be returned to the lower courts to run its course and that the Court’s January 5 stay should be dissolved because the district court’s injunction “will not stop Idaho for enforcing its law in the vast majority of circumstances.”
The USCCB and other Catholic groups filed a joint amicus brief in this case. The brief is available here –M.M.
Practice Point: Justice Alito notes that the federal government failed to identify a single court decision holding that a federal law enacted under the Spending Clause preempts a criminal law or public health regulation of a non-consenting state. There is room for optimism that this “difficult and consequential” issue, as Justice Barrett characterizes it, will ultimately be decided in favor of the state.
See: Moyle v. United States, 144 S. Ct. 2015 (2024).
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Supreme Court Roundup continued Court Overrules Chevron
In 1984, the landmark Supreme Court decision of Chevron v. Natural Resources Defense Council was handed down, giving rise to what would become known as the Chevron doctrine.
Under that doctrine, if Congress has not directly addressed the question at the center of a statutory dispute, a court is required to uphold the agency’s interpretation of the statute as long as it was a reasonable or “permissible” one.
The Magnuson-Stevens Fishery Conservation and Management Act (MSA) extends the jurisdiction of the United States to 200 nautical miles beyond the U.S. territorial sea and claims exclusive fishery management authority over all fishing in that area, known as the “exclusive economic zone.” Under a delegation from the Secretary of Commerce, the National Marine Fisheries Service (NMFS) administers the MSA.
NMFS has the authority to approve fishery management plans that are proposed by any of the eight regional fishery management councils established by the MSA and can promulgate any of them as a final regulation. The MSA requires that certain provisions be included in the plans, which may also include additional discretionary provisions. A plan may also require that “one or more observers be carried on board” domestic vessels “for the purpose of collecting data necessary for the conservation and management of the fishery.” Here, NMFS promulgated a rule requiring the herring industry to pay for the costs, estimated at
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$710 per day, associated with carrying government-certified thirdparty observers on board their fishing vessels.
Petitioners are family businesses that operate in the Atlantic herring fishery. In February 2020, they challenged the rule under the MSA, which incorporates the Administrative Procedure Act (APA). They argued that the MSA does not authorize NMFS to mandate that they pay for observers required by a fishery management plan.
The district court granted summary judgment in favor of the government. The court concluded that the MSA authorized the rule, but noted that even if there was an ambiguity in the statutory text, deference to the agency’s interpretation would be warranted under Chevron.
The D.C. Circuit affirmed, although concluding that whether NMFS may require Atlantic herring fishermen to pay for observers was not “wholly unambiguous.” Nonetheless, proceeding to the second step of Chevron, the court deferred to the agency’s interpretation as a reasonable construction of the MSA.
The Supreme Court granted certiorari in this case and a related case, limited to the question whether Chevron should be overruled or clarified. By a 6-3 vote, the Court has now overruled Chevron Chief Justice Roberts wrote the majority opinion.
The Majority on the Merits
Neither Chevron nor any subsequent decision of the Court attempted to reconcile its framework with the APA. Chevron defies the command of the APA that “‘the reviewing court’—not the agency whose action it reviews—is to ‘decide all relevant questions of law’ and ‘interpret ... statutory provisions.’” Instead, Chevron requires a court to ignore, not follow, the reading the court would have reached had it exercised its independent judgment as required by the APA. Rather than merely insisting on the respect historically given to Executive Branch interpretations, Chevron demands that courts mechanically afford binding deference to agency interpretations. That deference includes those interpretations that have been inconsistent over time and even when a pre-existing judicial precedent holds that an ambiguous statute means something else. That regime “is the antithesis of the time honored approach the APA prescribes.”
The presumption that statutory ambiguities are implicit delegations to agencies does not approximate reality. A statutory ambiguity does not necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question. Many statutory ambiguities may be unintentional. And when courts confront statutory ambiguities in cases not involving agency interpretations or delegations of authority, they are not relieved of their obligation to independently interpret the statutes. Instead, courts use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity. And even in
agency cases, there is still “‘the reading the court would have reached’ if no agency were involved.” It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best.
Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do. Chevron gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate.
The United States argued that Congress must generally intend for agencies to resolve statutory ambiguities because agencies have subject matter expertise regarding the statutes they administer. According to the United States, deferring to agencies purportedly promotes the uniform construction of federal law. Resolving statutory ambiguities, the government argued, can involve policymaking best left to political actors, rather than courts. None of those considerations, the Court concluded, justifies Chevron’s sweeping presumption of congressional intent.
Under Chevron’s broad rule of deference, ambiguities of all stripes trigger deference, even in cases having little to do with an agency’s technical subject matter expertise. And even when an ambiguity happens to implicate a technical matter, it does not follow that Congress has taken the power to authoritatively interpret the statute from the courts and given it to the agency. Courts handled technical statutory questions without issue in agency cases before Chevron. Delegating ultimate interpretive authority to agencies is not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise. Nor does a desire for the uniform construction of federal law justify Chevron. It is unclear how much the Chevron doctrine actually promotes such uniformity and, in any event, there is no reason to presume that Congress prefers uniformity for uniformity’s sake over the correct interpretation of the law it enacts.
Finally, the view that interpretation of ambiguous statutory provisions amounts to policymaking suited for political actors rests on a profound misconception of the judicial role. Resolution of statutory ambiguities involves legal interpretation, and that task does not suddenly become policymaking just because a court has “an agency to fall back on.” Courts interpret statutes, no matter the context, based on the traditional tools of statutory construction, not individual policy preferences. By forcing courts to pretend that ambiguities are necessarily delegations, Chevron prevents judges from judging. At best, Chevron has been a distraction from the question that matters: Does the statute authorize the challenged agency action? And at worst, it has required courts to violate the APA by yielding to an agency the express responsibility, vested in “the reviewing court,” to “decide all relevant questions of law” and “interpret … statutory provisions.” 5 U.S.C. § 706 (emphasis added).
The Majority on Stare Decisis
Stare decisis does not require the Court to persist in the Chevron project. The stare decisis considerations most relevant here—“the quality of the precedent’s reasoning, the workability of the rule it established, … and reliance on the decision”—all weigh in favor of overruling Chevron. Experience has shown that Chevron is unworkable. The defining feature of its framework is the identification of statutory ambiguity, but the concept of ambiguity has always evaded meaningful definition. Such an “impressionistic and malleable concept ‘cannot stand as an every-day test for allocating’ interpretive authority between courts and agencies.” The Court has also been forced to clarify the doctrine again and again, only adding to Chevron’s unworkability,
Nor has Chevron fostered meaningful reliance. Given the Court’s constant tinkering with and eventual turn away from Chevron, it is hard to see how anyone could reasonably expect to rely on Chevron in any particular case or expect it to produce readily foreseeable outcomes. Rather than safeguarding reliance interests, Chevron affirmatively destroys them by allowing agencies to change course even when Congress has given them no power to do so.
The only way to ensure that the law will not change erratically, but will develop in a principled and intelligible fashion, is for the Court to overrule Chevron. By overruling Chevron, however, the Court does not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful are still subject to statutory stare decisis despite the Court’s change in interpretive methodology. Mere reliance on Chevron cannot constitute a “special justification” for overruling such a holding.
Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and, under the APA, may not defer to an agency interpretation of the law simply because a statute is ambiguous. –S.A.
See: Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024).
Law Banning Sleeping and Camping on Public Property Is Not Cruel and Unusual Punishment
In 2013, Grants Pass, a city in Oregon, enacted an ordinance that bans sleeping and camping on public property. Initial violations are punishable by fines; repeat violations can result in prison time.
Two homeless individuals filed a pre-enforcement class action on behalf of homeless people in Grants Pass, alleging that the ordinance violated the Eighth Amendment. The district court certified the class and entered an injunction prohibiting Grants Pass from enforcing the ordinance against homeless people living in the city. In granting relief, the court relied on Ninth Circuit precedent which held that enforcement of Boise’s anti-camping ordinance was a violation of the Eighth Amendment if the number of homeless individuals exceeds the number of available shelter beds. See Martin v. Boise, 902 F.3d 1031, 1035 (9th Cir. 2018), amended, 920 F.3d 584 (9th Cir. 2019).
The Ninth Circuit affirmed.
On June 28, by a 6-3 vote, the Supreme Court reversed. Justice Gorsuch delivered the opinion of the Court, which was joined by the Chief Justice and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Thomas filed a concurring opinion. Justice Sotomayor filed a dissenting opinion in which Justices Kagan and Jackson joined.
The Eighth Amendment’s Cruel and Unusual Punishment Clause applies to the method of punishment, not the behavior that is criminalized. Limited fines for first-time offenders and a maximum of 30 days in prison for repeat offenders does not constitute cruel and unusual punishment.
There is an exception to the general rule that the Eighth Amendment does not apply to what a state may criminalize. In Robinson v. California, 370 U.S. 660 (1962), the Court held that the status of drug addiction could not be criminalized. In the present case, by contrast, it is an action that is being criminalized (namely, sleeping or camping on public grounds), not a status. Therefore, Robinson does not apply.
The Court chose not to extend Robinson to laws that criminalize actions that are in some way “involuntary.” To hold that such laws violate the Eighth Amendment would inhibit the ability of localities to convict someone for an act that “society has an interest in preventing.” Powell v. Texas, 392 U.S. 514, 533 (1968).
The Court’s decision does not preclude a necessity defense for homeless individuals charged with illegal camping.
The USCCB filed an amicus brief in this case. The brief is available here –J.H
See: Grants Pass v. Johnson, 144 S. Ct. 2202 (2024).
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Statute of Limitations for APA Claims Does Not Begin to Run Until Plaintiff Is Injured
In 2010, Congress passed a law delegating to the Federal Reserve Board the power to set rates for interchange fees that are “reasonable and proportional to the cost incurred by the issuer with respect to the transaction.” 15 U.S.C. § 1693o–2(a)(3)(A).
Interchange fees are the payments that merchants must make during a debit card transaction to the bank that issued the card. The fee amount is not set by the bank that issued the card, but by network payment processors (e.g., Visa, Mastercard, Discover). In 2011, the Federal Reserve Board issued a regulation setting the maximum interchange fee at $.21 per transaction plus .05% of the value of the transaction.
Corner Post, a trust stop and convenience store in Walford City, North Dakota, opened for business in 2018 and has accepted debit cards as a payment type. Since opening, it has paid hundreds of thousands of dollars in interchange fees. In 2021, Corner Post joined a suit against the Federal Reserve Board under the Administrative Procedure Act alleging that the regulation permits higher interchange fees than the statute allows.
The district court dismissed the suit as time-barred under 28 U.S.C. § 2401(a), which provides for a default six-year statute of limitations for suits brought against the United States.
The Eighth Circuit affirmed the dismissal.
On July 1, by a 6-3 vote, the Supreme Court reversed. Justice Barrett delivered the opinion of the Court, which was joined by the Chief Justice and Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Kavanaugh filed a concurring opinion. Justice Jackson filed a dissenting opinion in which Justices Sotomayor and Kagan joined.
Section 2401(a) states that civil actions against the United States “shall be barred unless the complaint is filed within six years after the right of action first accrues.” A right of action does not accrue, the Court concluded, until the plaintiff is injured by final agency action.
Title 5 U.S.C. § 702 grants individuals the right to seek judicial relief of agency action. Title 5 U.S.C. § 704 limits what agency actions are subject to review. Only final agency actions and agency actions made reviewable by statute can be reviewed by courts according to section 704. Under section 702, an individual only has standing to bring suit if he or she has suffered a legal wrong. Therefore, the right of action does not exist until a legal wrong or injury occurs.
Since a “right accrues when it comes into existence,” United States v. Lindsay, 346 U.S. 568, 569 (1954), and the right of action under section 702 does not come into existence until an injury occurs, the clock for the statute of limitations under section 2401(a) does not begin ticking until a plaintiff is injured by a final agency action. –J.H.
See: Corner Post v. Board of Governors, 144 S. Ct. 2440 (2024).
Supreme Court Roundup
SEC’s Practice of Imposing Fines in Agency Proceedings to Penalize Securities Fraud Violates Right to Jury Trial
In the aftermath of the Wall Street Crash of 1929, Congress passed a suite of laws designed to combat securities fraud and increase market transparency. Three of those statutes are relevant here: the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940. These Acts respectively govern the registration of securities, the trading of securities, and the activities of investment advisers. Their pertinent provisions target the same behavior: misrepresenting or concealing material facts. To enforce these Acts, Congress created the Securities and Exchange Commission (SEC).
The SEC may bring an enforcement action in federal court or it can adjudicate the matter itself. In federal court, a jury finds the facts, an Article III judge presides, and the Federal Rules of Evidence and ordinary rules of discovery govern the litigation. When the SEC adjudicates the matter in-house, there are no juries. The Commission presides while its Division of Enforcement prosecutes the case. The Commission or its delegee—typically an Administrative Law Judge (ALJ)—also finds facts and decides discovery disputes, and the SEC’S Rules of Practice govern.
One remedy for securities violations is civil penalties. In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, which authorizes the SEC to impose such penalties through its own in-house proceedings, something it could not do previously. Shortly after the Act’s passage, the SEC initiated an enforcement action for civil penalties against investment adviser George Jarkesy, Jr., and his firm, Patriot28 LLC, for alleged violations of the “antifraud provisions” contained in the federal securities laws. The SEC opted to adjudicate the matter in-house. The final order determined that Jarkesy and Patriot28 had committed securities
violations and levied a civil penalty of $300,000.
Jarkesy and Patriot28 petitioned for judicial review. The Fifth Circuit vacated the order on the ground that adjudicating the matter in-house violated the defendants’ Seventh Amendment right to a jury trial. The Supreme Court granted certiorari. By a 6-3 vote, the Supreme Court has now affirmed the Fifth Circuit’s ruling on the Seventh Amendment ground and declined to reach the remaining constitutional issues that the Fifth Circuit addressed. The Chief Justice wrote the majority opinion.
Roberts Opinion
The civil action here implicates the Seventh Amendment because the SEC’s antifraud provisions replicate common law fraud.
The Seventh Amendment guarantees that in “[s]uits at common law … the right of trial by jury shall be preserved.” The right itself is not limited to the “common-law forms of action recognized” when the Seventh Amendment was ratified. Rather, it embraces all suits which are not of equity or admiralty jurisdiction and includes statutory claims that are “legal in nature.” To determine whether a suit is legal in nature, courts must consider whether the
cause of action resembles common law causes of action, and whether the remedy is the sort that was traditionally obtained in a court of law. Of these factors, the remedy is more important.
In this case, the remedy is all but dispositive. The SEC seeks civil penalties, a form of monetary relief which is legal in nature when designed to punish or deter the wrongdoer. Furthermore, the availability and size of the civil penalties available to the SEC is based on considerations such as culpability, deterrence, and recidivism. These factors go beyond restoring the status quo and are thus legal in nature. SEC civil penalties are thus a type of remedy at common law that could only be enforced in courts of law. The suit here implicates the Seventh Amendment right and a defendant would be entitled to a jury on these claims.
Because the claims here implicate the Seventh Amendment, a jury trial is required unless the “public rights” exception applies. Under this exception, Congress may assign the matter for decision to an agency without a jury, consistent with the Seventh Amendment.
For several reasons, that exception does not apply here.
First, if a suit is in the nature of an action at common law, then the matter presumptively concerns private rights, which may not be removed from Article III courts. In an earlier case, Granfinanciera v. Nordbert (1989), the Court held that, even under the public rights exception, fraudulent conveyance actions were “quintessentially suits at common law.” Because they were not “closely intertwined” with the bankruptcy process, the Court held in that case that the public rights exception did not apply, and a jury was required.
Granfinanciera effectively decides the case here. This action was brought under the anti-fraud provisions of the federal securities laws, which target the same basic conduct as common law fraud, employ the same terms of art, and operate pursuant to similar legal principles. In short, “this action involves a ‘matter[ ] of private rather than public right.’” –S.A.
See: SEC v. Jarkesy, 144 S. Ct. 2117 (2024).
Plaintiffs
Had No
Standing
to Sue Executive Branch Officials and Agencies for Influencing Content-Moderation Decisions of Social Media Companies
Social-media platforms have taken a range of actions to suppress certain categories of speech, including speech they judge to be false or misleading. In 2020, with the outbreak of COVID-19, the platforms announced that they would enforce these policies against users who post false or misleading content about the pandemic. The platforms also applied misinformation policies during the 2020 election season.
During that period, various federal officials regularly communicated with the platforms about COVID-19 and election-related misinformation. White House officials publicly and privately called on the platforms to do more to address vaccine misinformation. Surgeon General Vivek Murthy issued a health advisory encouraging the platforms to take steps to prevent COVID-19 misinformation “from taking hold.” The Centers for Disease Control and Prevention alerted the platforms to COVID-19 misinformation trends and flagged representative posts. The FBI and Cybersecurity and Infrastructure Security Agency communicated with the platforms about election-related misinformation in advance of the 2020 Presidential election and the 2022 midterms.
Two States and five individual social-media users sued dozens of Executive Branch officials and agencies, alleging that the federal government pressured the platforms to censor their speech in violation of the First Amendment.
The district court issued a preliminary injunction. The Fifth Circuit affirmed in part and reversed in part. On the merits, the court of appeals held that the government entities and officials, by “coercing” or “significantly encouraging” the platforms’ moderation decisions, transformed those decisions into state action. The appeals court modified the district court’s injunction to state that defendants shall not coerce or significantly encourage socialmedia companies to suppress protected speech on their platforms. By a 6-3 vote, the Supreme Court has now reversed for lack of Article III standing and remanded the case for further proceedings. Justice Barrett wrote the majority opinion.
Barrett Opinion
Article III of the Constitution has a “case or controversy” requirement which is “fundamental to the judiciary’s proper role in our system of government.” A proper case or controversy only exists when at least one plaintiff establishes that she has standing to sue. A plaintiff demonstrates standing if she has suffered, or will suffer, an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.”
Here, the plaintiffs’ theories of standing depended on the platforms’ actions—yet the plaintiffs did not seek to enjoin the platforms from restricting any posts or accounts. Instead, they sought to enjoin government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.
The nature of plaintiffs’ alleged injuries presents two challenges: First, it is a bedrock principle that a federal court cannot redress “injury that results from the independent action of some third party not before the court.” Second, because the plaintiffs request forward-looking relief, they must face “a real and immediate threat of repeated injury.” Consequently, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one government defendant. At the preliminary injunction stage, the plaintiffs must show that they are “likely to succeed in carrying that burden.” Based on the facts in the record, “that is a tall order.”
Because the plaintiffs are seeking only forward-looking relief, the past injuries are relevant only for their predictive value. The primary weakness in the record of past restrictions in this case was the lack of specific causation findings with respect to any discrete instance of content moderation. Further, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. The Fifth Circuit glossed over complexities in the evidence by attributing every platform decision at least in part to the defendants.
The Fifth Circuit also erred by treating the parties and platforms as a unified whole. “[S]tanding is not dispensed in gross,” which means that plaintiffs must demonstrate standing for each claim they press against each defendant, “and for each form of relief they seek.” This requires a threshold showing that a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff’s speech on that topic. The platforms here began suppressing the plaintiffs’ COVID-19 content before the defendants’ challenged communications started. This complicates the plaintiffs’ effort to demonstrate that each platform acted due to government coercion, rather than its own judgment. –S.A.
See: Murthy v. Missouri, 144 S. Ct. 1972 (2024).
Supreme Court Roundup
Pro-Life Doctors Lack Standing to Challenge FDA Decision to Loosen Regulatory Requirements for the Abortion Drug Mifepristone
In 2000, the Food and Drug Administration (FDA) approved the marketing of the abortion drug mifepristone. In 2016, the FDA loosened the prescribing regimen for the drug. The relaxed requirements permitted mifepristone to be prescribed until ten weeks of pregnancy, allowed nurse practitioners (not just physicians) to prescribe the drug, and required only one in-person visit. In 2021, the FDA announced that it would no longer enforce the in-person visit requirement.
Alliance for Hippocratic Medicine (AHM), a group of pro-life healthcare professionals, sued to challenge the FDA’s approval of mifepristone and the FDA’s decisions to relax the prescribing regimen. AHM was joined by other pro-life medical associations and individual doctors.
The district court sided with the plaintiffs and enjoined the FDA’s approval of the drug, effectively ordering it off the market.
The Fifth Circuit affirmed in part and reversed in part. The court of appeals concluded that the plaintiffs’ challenge to the FDA’s 2000 approval of the drug was likely time barred, but agreed with the district court that the plaintiffs were likely to succeed in showing that the FDA’s 2016 and 2021 actions violated the Administrative Procedure Act.
The Supreme Court granted certiorari with respect to the FDA’s 2016 and 2021 regulatory actions and, on June 13, reversed. Justice Kavanaugh delivered the opinion for a unanimous Court.
Plaintiff doctors asserted a theory of standing based on downstream conscience injuries. The doctors did not show that they could be required to perform abortions or other morally objectionable abortion-related treatments. Indeed, federal conscience laws protect doctors from being forced to perform abortions or other treatments that violate their conscience, even in emergency rooms and healthcare deserts. Therefore, no injury in fact exists for the plaintiff doctors on this theory.
The doctors also proposed a theory of standing based on economic injuries. The causal link between the FDA’s regulatory actions and the alleged injuries, however, was too attenuated to create standing. The doctors did not show that the FDA’s actions have led to an increase in the number of pregnant women seeking their care or a diversion of their time and attention as a result.
The doctors also did not show an economic injury as there was no evidence that treating pregnant women with mifepristone complications has led to higher insurance or malpractice costs for the doctors.
The medical associations in this suit asserted organizational stand ing. They claim that they have standing because they have incurred costs to oppose the FDA’s actions. Justice Kavanaugh concluded that an organization “cannot spend its way into stand ing simply by expending money to gather information and advocate against the defendant’s action.” This theory of standing would allow any organization in America to challenge any federal policy that it finds objectionable provided that it spends money opposing it.
Justice Thomas joined the Court’s opinion in full, but filed a concurring opinion in which he questioned the notion that an association has standing to assert the rights of its members. He called for the Court to reexamine associational standing in an appropriate case.
The USCCB, Texas Conference of Catholic Bishops, and other groups filed a joint amicus brief in this case. The brief is available here –J.H.
Practice Point: Justice Kavanaugh’s opinion includes helpful language emphasizing the broad sweep of federal conscience laws that protect physicians with religious or moral objections to abortion.
See: FDA v. Alliance for Hippocratic Medicine, Nos. 23-235 & 23-236, 2024 WL 2964140 (U.S. June 13, 2024).
American Citizen Has No Fundamental Right to Bring
Noncitizen Spouse into the United States
In 2010, Sandra Muñoz, a U.S. citizen, married Luis AsencioCordero, a citizen of El Salvador. Asencio-Cordero applied for a visa to immigrate to the United States so he could reside with his wife. An American consular officer in El Salvador denied the application, citing a federal statute that renders inadmissible a noncitizen whom the officer reasonably believes wants to enter the United States to engage in certain specified offenses or other unlawful activity. Because of national security concerns, the officer did not provide any further explanation for his decision. Asencio-Cordero and Muñoz appealed to the State Department, which upheld the consular officer’s decision.
Because Asencio-Cordero is not a U.S. citizen, he has no constitutional right to enter the United States and no right to any explanation for the government’s decision to refuse him admission. Muñoz, on the other hand, is a U.S. citizen. She sued the State Department, alleging that her right to live with her spouse in the United States is implicit in the liberty protected by the Due Process Clause. The government, Muñoz claims, violated that right when it failed to provide a fuller explanation for finding her husband inadmissible.
The district court ordered discovery. In discovery, the government disclosed that it had deemed Asencio-Cordero to be inadmissible because of his association with the criminal gang MS-13 (an association that Asencio-Cordero disputes). The government also provided the court with confidential law enforcement information, which the court reviewed in camera, identifying Asencio-Cordero as a member of MS-13. Satisfied with the government’s explanation, the court granted summary judgment in favor of the State Department.
The Ninth Circuit vacated the judgment of the district court, holding that Muñoz had a constitutional liberty interest in her husband’s visa application and that the government had violated that interest by failing to provide a timely explanation for the denial. The court of appeals remanded the case, with directions that the government reconsider Asencio-Cordero’s application.
On June 21, by a 6-3 vote, the Supreme Court reversed. Justice Barrett delivered the opinion of the Court, which was joined by the Chief Justice and Justices Thomas, Alito, and Kavanaugh. Justice Gorsuch filed an opinion concurring in the judgment. Justice Sotomayor filed a dissenting opinion in which Justices Kagan and Jackson joined.
As a general rule, federal courts have no power to review the denial of a visa application. This is known as the doctrine of consular nonreviewability. But the Supreme Court has assumed that there is an exception to this bar when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen.
Because Asencio-Cordero is not a U.S. citizen, he cannot assert the exception.
As a U.S. citizen, Muñoz can assert the exception, but only if she alleges some burden on her constitutional rights. Her complaint, however, falters out of the gate because the Due Process Clause protects only those fundamental rights and liberties that are
deeply rooted in the nation’s history and tradition. See Washington v. Glucksberg, 521 U.S. 702 (1997) (rejecting a claimed due process right to assisted suicide under the history/tradition test). The right of a noncitizen spouse to be admitted into the United States is not deeply rooted in our nation’s history and tradition. On the contrary, Congress has often limited the immigration of non-citizens, including spouses and other family members, a fact that fatally undermines Muñoz’s claim that admission of a non-citizen spouse is an unenumerated right.
Because Muñoz has no fundamental liberty interest in the admission of her non-citizen spouse, she has failed to assert a burden on any constitutional right of her own. Congress may, if it chooses, show special solicitude to noncitizen spouses in the immigration context, but such solicitude is a matter of legislative grace, not a fundamental right.
In his concurrence, Justice Gorsuch concluded that Muñoz had received everything she had sought, namely, the specific reason for the denial of her husband’s visa application, so there was no reason to reach the constitutional issue.
The USCCB and Catholic Legal Immigration Network filed a joint amicus brief in this case. The brief is available here –J.H
See: Dept. of State v. Muñoz, No. 23-334, 2024 WL 3074425 (U.S. June 21, 2024).
Supreme Court Roundup
Damages in Timely Copyright Cases Are Not Limited to Three Years
Sherman Nealy invoked the judicially-created “discovery rule” to sue Warner Chappell Music for copyright infringement dating 10 years before he brought suit. Although the Copyright Act provides that a claim must be filed “within 3 years after the claim accrued,” 17 U. S. C. § 507(b), when a claim “accrues” is the subject of a circuit split. Most circuits have adopted the plaintiff-friendly dis covery rule, which holds that a claim accrues when a plaintiff knew or should have known about the infringement. Only a minority of circuits hold that a claim accrues when the infringe ment first occurs. In addition, some courts have held that even where the discovery rule governs, damages must be limited to the three-year period prior to suit.
Nealy argued that his claims were timely filed because he first learned of the infringing conduct less than three years before filing suit and could not have learned of the conduct sooner because he was serving a jail sentence. He further argued that damages should not be limited to the three-year statutory period.
On May 9, the Supreme Court issued a decision holding, by a 6-3 vote, that damages in a timely copyright suit are not limited to three years. Justice Kagan delivered the opinion of the Court. The Copyright Act, she concluded, entitles a copyright owner to monetary relief for any timely infringement claim no matter when the infringement occurred.
Since Warner Chappell never challenged the lower court’s use of the discovery rule, the Court declined to decide whether the claims were timely filed, ruling only on the question of damages. Thus, the Court’s opinion “incorporates an assumption” that the discovery rule governs, but made a point of stating that it “never decided whether that assumption is valid.” On that basis, the majority affirmed the judgement below in favor of Nealy.
Notably, a dissent was filed in this case by Justice Gorsuch, joined by Justices Thomas and Alito, arguing that the Copyright Act does not authorize the “discovery rule” whatsoever. In a case where the discovery rule itself is in question, these justices would find none exists except when there has been fraud or concealment. –M.N.
See: Warner Chappell Music v. Nealy, 144 S. Ct. 1135 (2024).
Section 1557 of the Affordable Care Act prohibits, in any health program or activity receiving federal funds, discrimination on grounds prohibited by, among other things, Title IX of the Education Amendments of 1972. Title IX forbids sex discrimination in any education program or activity receiving federal funds.
On May 6, the U.S. Department of Health and Human Services (HHS) issued final regulations to implement section 1557. The regulations, which were to be effective on July 5, interpret the term “sex” to include gender identity.
Fifteen states sued HHS in federal district court in Mississippi to challenge that interpretation.
On July 3, the district court granted the plaintiff-states’ motion for a nationwide stay of the July 5 effective date insofar as the section 1557 regulations interpret “sex” to mean “gender identity.” The court preliminarily enjoined HHS “nationwide from enforcing, relying on, implementing, or otherwise acting pursuant to” the regulations’ provisions concerning gender identity.
The court concluded that the plaintiffs were likely to succeed on the merits and satisfied the other criteria for a preliminary injunction. HHS likened this case to Bostock v. Clayton County, 590 U.S. 644 (2020), which held that Title VII’s prohibition of sex discrimination includes gender identity. But the Title IX statutory scheme is entirely different from Title VII. Furthermore, construing the term “sex” in Title IX to refer to gender identity is inconsistent with that statute’s use of the term and leads to absurd results as to certain recognized exceptions (e.g., single-sex dorms and athletics).
The Spending Clause requires that Congress speak with a “clear voice” when imposing conditions on the receipt of federal funds. Neither Title IX nor section 1557 clearly prohibits discrimination on the basis of gender identity. –M.M.
Practice Point: In two other cases, and on the same day as the injunction was issued in the Mississippi case, a federal district court in Florida stayed the effective date and preliminarily enjoined aspects of the section 1557 regulations on gender identity within the State of Florida, Florida v. HHS, No. 8:24-cv-1080-WFJ-TGW (M.D. Fla. July 3, 2024), and a federal district court in Texas stayed the effective date of the entire rule within the States of Montana and Texas, Texas v. Becerra, No. 6:24-cv-211-JDK, 2024 WL 3297147 (E.D. Tex. July 3, 2024).
See: Tennessee v. Becerra, No. 1:24-cv-00161-LG-BWR, 2024 WL 3283887 (S.D. Miss. July 3, 2024).
DOL Increases Minimum Earning Thresholds for White Collar Exemptions
On July 1, 2024, the first changes of the Department of Labor’s Final Rule on increasing the earnings thresholds for employees under white collar exemptions went into effect.
The Fair Labor Standards Act generally mandates that employees receive time and a half pay for all time worked in excess of 40 hours per week, unless the employee falls within an exemption.
“White collar” exempt employees can fall under the executive, administrative, and/or professional (EAP) duties exemption or the highly compensated employee (HCE) exemption. Both exemptions contain salary thresholds that an employee must meet to qualify as an exempt employee. DOL’s final rule changes the thresholds first on July 1, 2024, and then on January 1, 2025. The rule also builds in automatic updates to salary thresholds every three years starting on July 1, 2027.
On July 1, 2024, the earning threshold for employees under the EAP exemption increased from a minimum of $684 per week ($35,568 per year) to $844 per week ($43,888 per year). The HCE exemption annualized compensation threshold increased from $107,432 to $132,964. On January 1, 2025, the EAP exemption, the salary threshold will again increase to $1,128 per week ($58,656 per year). The HCE exemption annualized salary threshold will increase again to $151,164.
The State of Texas challenged the final rule in federal district court in the Eastern District of Texas. The court did not issue a nationwide injunction but instead issued an injunction only for the State of Texas as an employer. Thus, for the rest of the nation and for all other parties, the Rule still went into effect on July 1. –S.E.
See: 89 Fed. Reg. 32842 (Apr. 26, 2024).
LAW BRIEFS
Other Federal Litigation
District Court Grants USCCB’s Request to Preliminarily Enjoin PWFA Regulations
On May 22, the USCCB, Catholic University of America, Diocese of Lake Charles, and Diocese of Lafayette (“Catholic Plaintiffs”) sued the Equal Employment Opportunity Commission (EEOC) in the Western District of Louisiana to challenge regulations implementing the Pregnant Workers Fairness Act (PWFA). Catholic Plaintiffs allege that the EEOC regulations mandate that the plaintiffs knowingly accommodate employees seeking direct abortions in violation of their sincerely held religious beliefs. Even further, the regulations prohibit Catholic Plaintiffs from taking any adverse employment action against employees who advocate for accommodating abortion and requires Catholic Plaintiffs to change their religious speech concerning abortion in ways that would support abortion.
A second lawsuit challenging the PWFA regulations, filed just a few days earlier by the states of Louisiana and Mississippi (“State Plaintiffs”), alleges that accommodations for elective abortions are prohibited under state law.
The two lawsuits have been consolidated.
Catholic Plaintiffs and State Plaintiffs moved to preliminarily enjoin the EEOC from enforcing the PWFA regulations against them to the extent that those regulations would require the plaintiffs to accommodate abortions.
On June 17, the court granted the motions for preliminary injunctions in part insofar as the regulations would require accommodations for elective abortions. The injunction is limited to Catholic and State Plaintiffs and to any covered entity under the regulations with respect to all employees whose primary duty station is located in Louisiana or Mississippi.
In its opinion, the court held that all the plaintiffs have Article III standing. The EEOC had argued that Catholic Plaintiffs do not have standing because the threat of enforcement by the EEOC was speculative and unlikely, given the Catholic Plaintiffs’ identities, and that no employee had sought such an accommodation or brought an EEOC enforcement action in such a circumstance. The court rejected this argument, relying on Braidwood Mgmt. v. Equal Emp. Opportunity Comm'n, 70 F.4th 914, 926-27 (5th Cir. 2023) (standing is demonstrated when an organization is forced to restrict its religious practices or else risk government penalties).
The court also agreed with the plaintiffs that the regulations implicate the major questions doctrine because the EEOC asserted “highly consequential power beyond what Congress could perspective, this case is “a textbook case of a federal agency exceeding its statutory authority.” –S.E.
Practice Point: The consolidated cases are not the only suits challenging the PWFA regulations. A lawsuit filed in the Eastern District of Arkansas by 17 state attorneys general was recently dismissed for lack of standing. Tennessee v. EEOC, No. 2:24-cv-00084 (E.D. Ark. June 14, 2024).).
See: USCCB v. EEOC, No. 2:24-cv-00691, 2024 WL 3034006 (E.D. La. June 17, 2024); Louisiana v. EEOC, No. 2:24-cv00629, 2024 WL 3034006 (E.D. La. June 17, 2024).
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LAW BRIEFS
State Litigation
Whether Local Church Can Disaffiliate from Denomination is an Ecclesiastical Question that Civil Courts Cannot Decide
The United Methodist Church (UMC) permits local churches to disaffiliate from the UMC, but UMC retains title to the associated church property. In 2019, UMC created an exception to this rule. Under the exception, set out in ¶ 2553 of the UMC Book of Discipline, local churches have a limited right to disaffiliate from UMC and retain their property if they are disaffiliating for “reasons of conscience” related to “the practice of homosexuality or the ordination or marriage of self-avowed practicing homosexuals.” This unique disaffiliation process expired on December 31, 2023. Paragraph 2553 allows each UMC regional conference to develop additional terms not inconsistent with the other provisions of the paragraph.
In June 2023, UMC’s Alabama-West Florida Conference adopted a policy requiring any church in its jurisdiction seeking to disaffiliate under ¶ 2553 to submit an “eligibility statement” detailing its “reasons of conscience” concerning UMC actions or inactions with which it disagreed. The Conference would then evaluate the statement and decide whether to allow the local congregation to disaffiliate.
Local churches submitted eligibility statements, but the Conference rejected them as insufficient under ¶ 2553.
Litigation ensued. Local churches of the UMC sought a court order allowing them to vote on disaffiliation. The trial court dismissed for lack of subject matter jurisdiction because the relief that the local churches sought, in the court’s view, was “ecclesiastical in nature” and would require “interference in matters of church autonomy” in violation of the Establishment Clause. By a 6-0 vote, with three justices recused, the Alabama Supreme Court has now affirmed in a per curiam opinion.
The local churches argued that the dispute was justiciable because it concerned only civil and property issues and could be decided under neutral principles of law. The Supreme Court disagreed. The churches’ “central claims turn entirely on the interpretation of ¶ 2553 and whether their efforts to leave the UMC were consistent with that church law.” Indeed, the parties point to different decisions of UMC’s Judicial Council to support their competing interpretations of ¶ 2553. But that interpretive issue “constitutes an ecclesiastical question that courts do not have jurisdiction to decide.”
The Supreme Court elaborated:
[T]he “basic question” is not a straightforward one of property or corporate law. To the contrary, the primary relief that the churches requested … was the “right to vote, as local church congregations, regarding the issue of disaffiliation” so that they could retain their properties when they left the UMC. But rather than pointing to any deed or other secular documents as the basis for their property right, the churches exclusively relied on ¶ 2553, which they acknowledged is based on ecclesiastical matters. Consequently, to reach any property issues, the trial court would have to decide whether the individual churches had adequate “reasons of conscience
regarding … the practice of homosexuality or the ordination or marriage of self-avowed practicing homosexuals.” ¶ 2553. That inquiry is “strictly and purely ecclesiastical in its character, – a matter over which the civil courts exercise no jurisdiction.”
In concurring opinions, four justices said it was unsettling that the Conference had changed the rules in the middle of the dispute, a change that one UMC clergyman likened to “Lucy pulling the football away as Charlie Brown tries to kick it.” Given the parties’ reliance on church law, however, even those justices agreed that they were bound not to interfere and that the local churches’ only recourse was to UMC’s own ecclesiastical tribunal. –M.M.
See: Aldersgate United Methodist Church v. Alabama-West Florida Conference of the United Methodist Church, No. SC-2023-0830, 2024 WL 2790269 (Ala. May 31, 2024).
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State Litigation
Trial Court’s Injunction Preventing Enforcement of Texas Abortion Law Was an Erroneous Departure from the Law
Under the Texas Human Life Protection Act (HLPA), a physician cannot be fined or disciplined for performing an abortion when the physician, exercising reasonable medical judgment, concludes that (1) a pregnant woman has a life-threatening physical condition, and (2) that condition poses a risk of death or serious physical impairment unless an abortion is performed. Texas law otherwise generally prohibits performing an abortion.
The Center for Reproductive Rights (the Center) sued the State to challenge aspects of its abortion laws. On state constitutional grounds, the Center sought (1) an interpretation of the Texas law that permits life-saving abortions and (2) to rewrite the law to change the circumstances in which Texas law must permit an abortion.
Among the plaintiffs were several Texas women and two physicians who treat pregnant women. The Center alleged that the complications the women faced during their pregnancies placed them within Texas law that permits life-saving abortion. However, the doctors who treated them were allegedly hesitant to perform abortions that comply with the law for fear of legal consequences. The Center sought injunctive relief against the State to stop enforcement of three sets of Texas abortion laws, each of which permits abortions to save the life of the mother.
The trial court heard testimony from four patients, one physician, and three experts. One of those experts, Dr. Damla Karsan, testified that Texas’s abortion laws “amplified the fear and reluctance to offer a patient an abortion, even if [she] thought it might pass the exceptions within the law.”
After the hearing, the trial court issued a temporary injunction. The injunction prevented the State defendants from enforcing Texas’s abortion bans against physicians who provide abortion care and those that aid or abet in the provision of abortion care for any pregnant person who, in the treating physician’s good faith judgment ... has: (1) a complication of pregnancy that poses a risk of infection or otherwise makes continuing a pregnancy unsafe for the pregnant person; (2) a condition exacerbated by pregnancy that cannot be treated during pregnancy, or that requires recurrent invasive intervention; and/or (3) a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth. [Emphasis added.]
The State defendants appealed to the Texas Supreme Court.
Reasonable Medical Judgment
Reasonable medical judgment is “a medical judgment made by a reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical conditions involved.” The Texas Supreme Court has previously held that the law does not permit an abortion based on belief alone, which was in response to a trial court decision to replace “reasonable medical judgment” with “good faith belief,” as the trial court did here.
A subjective standard examines a doctor’s intent instead of medical facts. That intent would be subject to scrutiny based on a
physician’s views about abortion and its availability. The law, on the other hand, permits an abortion without inquiring into a physician’s state of mind while, at the same time, demanding that medical facts support the need for an abortion under the Act. A doctor may not disregard the requirement that the mother must have a life-threatening physical condition or that the condition must place the mother at risk of death or serious risk of substantial impairment of a major bodily function unless an abortion is performed.
Life-Threatening Physical Condition
Life-threatening means “capable of causing death [or] potentially fatal.” A “life-threatening physical condition” is not necessarily one actively injuring the patient; it is a condition that has the potential to kill the patient. The condition must arise from or be aggravated by the pregnancy, but death need not be imminent. The physician’s reasonable medical judgment must be that an abortion will avert the risk posed by the mother’s life-threatening physical condition.
A physician must perform a two-step inquiry, using reasonable medical judgment, to determine if the Act permits an abortion: (1) Does the patient have a physical condition aggravated by, caused by, or arising from her pregnancy that could lead to her death? If so, (2) does the condition pose a risk of death or serious risk of substantial impairment of a major bodily function unless an abortion is performed?
The trial court’s order does away with the above two-part inquiry and permits abortions for any “unsafe” pregnancy. All pregnancies carry risks. However, pregnancy itself is not a “life-threatening physical condition” under the law. Because the trial court’s order opens the door to permit abortion to address any pregnancy risk, it is not a faithful interpretation of the law.
The trial court also ruled that the law permit abortions for “a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth.” However, the current law does not permit abortion based solely on a diagnosis that an unborn child has an abnormal condition, even a life-limiting one. Rather, the law examines such a diagnosis in the context of the mother’s physical health.
In conclusion, the law does not require a woman to surrender her life or to first suffer serious bodily injury before an abortion may be performed.
Due Process
Courts do not issue injunctions based on lists of hypothetical future possibilities and a court does not strike down a law as unconstitutional based on a hypothetical. Thus, to obtain a judicial decree enjoining a state law, a claim must be proven with sufficient specificity—an adjudication in a particular case. Here, Dr. Karsan, in presenting hypothetical pregnancy complications for which she would consider offering an abortion, did not meet her burden to show that a state constitutional right to life or health is broader than what the law currently affords.
Trial Court's Injunction - continued
Equal Protection
The Center argued that the HLPA violates state equal protection principles because only women can become pregnant and potentially seek an abortion.
The Texas Supreme Court considered and rejected that argument in Bell v. Low Income Women of Texas, holding that the classification “is not so much directed at women as a class as it is abortion as a medical treatment, which, because it involves a potential life, has no parallel as a treatment method.” Here, the HLPA regulates the provision of abortion and does not single out a protected class for disparate treatment but instead differentiates among medical indications for an abortion, regulating the provision of medical care within that class.
Because the law does not discriminate against a protected class, courts must uphold it if a rational basis exists for it. A rational basis exists here, as there are legitimate interests in the “preservation of prenatal life at all stages of development” and the “protection of maternal health and safety.”
Conclusion
Texas law permits a life-saving abortion. Under the HLPA, a physician may perform an abortion if, exercising reasonable medical judgment, the physician determines that a woman has a life-threatening physical condition that places her at risk of death or serious physical impairment unless an abortion is performed. The law permits a physician to intervene to address a woman’s life-threatening physical condition before death or serious physical impairment are imminent. –S.A.
See: State v. Zurawski, No. 23-0629, 2024 WL 2787913 (Tex. May 31, 2024).
SEPTEMBER 29 - OCTOBER 2, 2024
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