Faculty File Briefs, Argue in High Profile Cases

American University Washington College of Law faculty have had a busy month, aside from gearing up for the end of the semester. Below are three stories about faculty members actively involved in filing briefs or presenting arguments for three high-profile cases transpiring now.

Weighing in on the Healthcare Battle between States, Federal Government

Professor Steven Vladeck filed an amicus brief this month on behalf of a group of federal courts experts in the Fourth Circuit in the appeal of Virginia's challenge to the individual healthcare mandate.

Vladeck was approached by lawyers at the Justice Department who were concerned that they wouldn't have an adequate opportunity in their own briefs (which are focused on the merits of Virginia's challenge to the constitutionality of the individual mandate) to flesh out the question of whether Virginia, as a state, is the proper party to bring this lawsuit.

"Our brief argues that, whatever the merits of the constitutional challenge to the individual mandate, Virginia is not the proper party to pursue this case, because of the long-standing rule that states don't have 'parens patriae' - standing to sue the federal government on behalf of their citizens," Vladeck said.

"Together with colleagues from other law schools, I drafted a brief to explain why Virginia doesn't-and shouldn't-have standing to pursue this suit, especially given that there are other pending cases brought by more appropriate plaintiffs."

Vladeck and his partners filed the brief on March 7. The Fourth Circuit has since scheduled oral argument for May 10, in Richmond, Va.

PIJIP Files Brief in Information Privacy Case to Protect Patient Privacy

Program on Information Justice and Intellectual Property (PIJIP) Associate Director Sean Flynn and Policy Fellow Meredith Jacob filed an amicus brief before the U.S. Supreme Court in an important information privacy case in early March.

The brief, filed on behalf of AARP and the National Legislative Association on Prescription Drug Prices, argues that the Supreme Court should uphold Vermont's prescription confidentiality law and overturn the decision of the United States Court of Appeals for the Second Circuit. The case, Sorrell v. IMS (No. 10-779), has broad ramifications for consumer protection and privacy law.

"The Court should make clear that the First Amendment is not implicated when, having mandated the disclosure of medical information, the state protects that confidential information from non-consensual marketing uses," says Flynn.

Vermont's law requires prescriber consent for the sale or use of physician-identifying prescription records for marketing purposes. This data is used to build detailed profiles of physician prescribing habits and track de-identified patients over time. These profiles are then used for aggressive in-person marketing of prescription drugs to physicians, increasing prescription costs and the over-prescribing of the most expensive medicines. Similar laws have been passed in New Hampshire and Maine, and have been upheld by the Court of Appeals for the First Circuit.

PIJIP's brief argues that when the state acts to protect confidential information required to fill a prescription, it does not implicate the First Amendment. Even when the law is examined under the First Amendment Commercial Speech Doctrine, there is a substantial state interest in protecting patient privacy and the doctor-patient relationship.

"Further, the state has an interest in limiting the undue influence exerted by pharmaceutical marketers – influence that negatively affects patient treatment and increases health care costs," Flynn said.

The State of Vermont's petition for certiorari was granted by the Supreme Court and oral argument is scheduled for April 16.

Bill Snape Argues in DC U.S. District Court for Compliance in Gulf Coast Drilling Operations

On Wednesday, March 9, Environmental Law Fellow Bill Snape, representing the Center for Biological Diversity, argued in the U.S. District Court for the District of Columbia that all existing and future Gulf of Mexico oil and gas drilling operations, particularly those with some form of existing authorization, must comply with environmental laws such as the National Environmental Policy Act and the Endangered Species Act.

In a lawsuit filed July 26, 2010, the Center for Biological Diversity says Ken Salazar, Secretary of the Department of the Interior, and the Minerals Management Service have failed to comply with environmental laws when authorizing off shore drilling both before and after the April 20, 2010 blowout of the Deepwater Horizon drill rig which led to the BP Oil Spill, one of the worst environmental disasters in U.S. History. "The Secretary has continued to implement an unlawful policy of exempting drilling plans…from any meaningful [National Environmental Policy Act] review," the lawsuit says.

"This case is about accountability. While the Obama Administration says it has corrected its ways, none of its promises are yet legally binding and dangerous oil drilling by ravenous oil companies continues in the Gulf of Mexico to this day," says Snape, who is senior counsel for the Center for Biological Diversity and lead counsel on this case. "The American public and the fragile Gulf ecosystem deserve iron clad assurances that a disaster like the BP blowout will never occur again."

In its lawsuit, the Center for Biological Diversity is asking the Court to declare Secretary Salazar and the Department of the Interior in violation of the National Environmental Policy Act and the Endangered Species Act stemming from their approval of deep water drilling and exploration in the Gulf, and to issue an order halting all outer continental shelf drilling operations approved by the Department of Interior after the BP oil spill.

The case is Center for Biological Diversity v. Ken Salazar, United States Secretary of the Interior, et al. At the end of the hearing Judge Thomas F. Hogan announced that he would issue a written decision on the motions to dismiss shortly.