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Duty to Indemnify Distinct From Duty to Defend, Coverage Distorted.

In a case involving New York law, the Supreme Court of Delaware highlighted a distinction between the duty to indemnify and the duty to defend that is recognized in most if not all jurisdictions as to a liability carrier's duties to its insureds:

          Although the Insurers' fraud defense required them to prove that Conduent manufactured indemnity coverage through the settlement, the Insurers left the impression at trial that they had no coverage obligations at all.....  The Insurers' duty-to-defend issues and coverage position pre-Settlement had little if anything to do with whether Conduent fraudulently settled the State Action to secure indemnity coverage.  By probing these issues [at trial], the Insurers caused confusion between indemnity coverage and the duty to defend.

AIG Spec. Ins. Co. v. Conduent State Healthcare, LLC, ___ A.3d ___, 2025 WL 369450, at *8 (Del. Feb. 3, 2025)/

Case law on the issues discussed in this post is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:52 (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

OFF WITH THEIR HEADS!

Or, how dare they question the regime?

Administrative Stay Order.  (Author Photo)

When the regime refused to turn the planes around and return the people it had abducted to a notorious prison in El Salvador, Judge James Boasberg held a Hearing on whether the regime should be held in Contempt of Court.

After the Hearing was over, Judge Boasberg wrote down all the evidence.  He also wrote down all the reasons why he found Probable Cause to hold the regime in Contempt based on all that evidence.  His Order is 46 pages long. He does not seem to have overlooked anything.  Download JGG v. Donald J. Trump Contempt Findings . Memorandum Opinion filed 04.16.25 (D.C.D.C. No. 25-766 (JEB)) 

The regime filed an appeal, of course.

Look at this appeal like an appellate lawyer would, and early on you would find out who your judges are.  Then you would find out all you could about them.

The regime not only filed what they call an emergency appeal, they also filed what they called an emergency motion to stay (or stop) the Contempt proceedings in Judge Boasberg's Court.  (Everything is an emergency with these people.  They don't dare give you time to think.)

Under the D.C. Circuit Court rules, the emergency motion was referred to a special panel to decide it.  The D.C. Circuit rules provide that the special panel can stay with the case and decide it too,  although that would be unusual.

There were three judges on the special panel in this case, which is usual.  Two of the judges voted for an administrative stay, and one did not.  As the two judges stated in their Administrative Stay Order in this case, in the D.C. Circuit Court the purpose of an administrative stay "is to give the court sufficient opportunity to consider the emergency motion[.]"  

The two judges who voted for a stay  are GREGORY KATSAS and NAOMI RAO.

Judge Katsas practiced law at Jones Day.  He moved over to the job of Deputy White House Counsel alongside Don McGahn, who also came from Jones Day.  David Enrich, who wrote a book about Jones Day, wrote that when Gregory Katsas left Jones Day for his new job at the White House in the first round of the regime, that "Greg Katsas received a bonus -- 'at the discretion of the managing partner,' as he explained in a government filing -- that brought his compensation to nearly $4 million for the year."[1] 

Naomi Rao is well-known to everyone who follows the rulings that sometimes come out of her pen when she can get another vote on the D.C. Circuit to make her ruling the Opinion of the Court.  Many of her dissents are just as well-known.

Both Judge Katsas and Judge Rao were nominated by the same man who is the current first-named appellant, the present head of the regime and the co-president (no, not Elon Musk, the other one).

The third judge on the special panel in this case, the judge who did not vote to grant an administrative stay in this case, is CORNELIA "NINA"  PILLARD.  Judge Pillard was nominated by President Obama.  The special panel's Administrative Stay Order reveals that she dissented because she did not think it was proper; in fact, she thought "there is no ground for an administrative stay."

Knowing what you know now, suppose that right now you are sitting with the lawyers representing JGG and the other people who were abducted to El Salvador.  In this case, your lawyers are effectively representing the Judge who found Probable Cause to hold the regime and its leader in contempt of Court.

Suppose further that all you know about your judges on appeal is what I have told you here.  (I guarantee that this is enough to know for purposes of evaluating how they might rule and what arguments to craft that might work best, if at all, which good appellate lawyers have to do in every appeal.)

Do you think that you have a 100% chance of winning this appeal?  OK, probably not.  How about 50-50?  25%?  Lower %?

You make the call.  But wait!  Before you make the call, wait to see if the special panel sticks around to decide the whole case.  If that happens, unusual though it might be, it will likely predict the outcome right then and there.

My call is that the special panel will decide the whole case.  I also predict that Judge Katasa and Judge Rao will go with the regime.  I would not be surprised if their opinion put the blame on Judge Boasberg and on the people who were kidnapped because, after all, Judge Boasberg had the audacity to issue rulings against the regime right there in his Courtroom and all,  and those people who were kidnapped also got in the way standing there on the street or in their homes or wherever.

Whatever their opinion says, my prediction is a 2-to-1 decision in favor of the abductions and against the 46 pages of evidence reviewed by the District Judge when he found Probable Cause to hold the regime and the regime's current leader in contempt of Court.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter.

 

[1] DAVID ENRICH. "SERVANTS OF THE DAMNED / Giant Law Firms, Donald Trump, and the Corruption of Justice," p. 242.  I previously referred to Jones Day and Mr. Enrich's book in an article posted here on Good Friday, April 18, 2025.

When Unfair Claims Settlement Practice Violates Consumer Protection Statute.

The Supreme Judicial Court of Massachusetts has found an interplay between an Unfair Claims Settlement Practices Act, on the one hand, and a Consumer Protection Statute, on the other.  In Massachusetts, a violation of Massachusetts General Laws Chapter 176D or the equivalent of an Unfair Claims Settlement Practices Act, is in law the same thing as an "unfair or deceptive act or practice" as that term figures in claims made under a Consumer Protection Statute, Massachusetts General Laws Chapter 93A.[1]  As the Court has held:

          Recovery under G.L. c. 93A for a violation of G. L. c. 176D, § 3 (9), is unlikely when "[a]n insurance company ... in good faith denies a claim of coverage on the basis of a plausible interpretation of its insurance policy."[2]  

[1] McGilloway v. Safety Ins. Co., 468 Mass. 610, 618, 174 N.E.3d 1191, 1199 (Mass. 2021).

[2] McGilloway, 488 Mass. at 618, 174 N.E.3d at 1200.  Accord, Marandino v. Utd. States Fire Ins. Co., No. 23-cv-40072-DJC, 2025 WL 902352, at *6 (D. Mass. March 25, 2025).

Case law on the issues discussed in this article is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:28 (Thomson Reuters West Publishing Co., with 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

James Uthmeier The Unelected Florida Attorney General.

(Author Photo of the inside book cover)

Jones Day was so famous that a book was written about that huge law firm, SERVANTS OF THE DAMNED, by David Enrich.

One James Uthmeier worked at Jones Day before he took a job advising the Commerce Secretary in the first iteration of the current regime.  (The Secretary of Commerce at the time was a client of Jones Day.)  He is mentioned briefly on page 241 of the book.

As described in the book, one of the things that made Jones Day famous enough to get their own book was writing threatening letters.

James Uthmeier left the Commerce Department and at some point became the Chief of Staff to the Governor of Florida.  When the Florida Attorney General resigned, the governor appointed Mr. Uthmeier to the post.

A relatively recent appointment, Uthmeier has made headlines with at least one letter.  For example, he wrote a letter to the Mayor of Orlando threatening to remove the Mayor from office if Orlando did not follow the immigration laws, among other things.

In context, the Florida governor has already removed two elected officials from public office, both Democrats.  One, the State Attorney who is headquartered in Orlando, ran and won re-election after she was removed from the office.  Mr. Uthmeier has recently made comments about her, but so far apparently only verbal comments and not in writing.

Back to the Mayor of Orlando and the threat to remove him from office if Orlando did not enforce the immigration laws.  The Mayor wrote back immediately after receiving the letter from General Uthmeier to inform Uthmeier that, in essence, Orlando is following all the laws including the immigration laws.

Not content with the Mayor having the last word apparently, Mr. Uthmeier gave a TV interview following the Mayor's letter, and he said that his letter worked and then pretty much repeated as the Mayor had said, that Orlando was following the law.

It would have been interesting to see if the Florida Attorney General would have actually sought the removal of the Mayor of Orlando from office.  But by what authority, General, by what authority?  Perhaps we will never know, but in the meantime, there is the State Attorney who might be removed from office ....

It is Good Friday.  Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

'TO MAKE A REASONABLE OFFER AFTER LIABILITY IS REASONABLY CLEAR.'

In Urban v. Zurich Am. Ins. Co., 752 F. Supp. 3d 310 (D. Mass. 2024), a U.S. District Judge in Massachusetts considered whether the liability insurance carrier defendant had violated Massachusetts statutes by failing to make a reasonable offer after the policyholder’s-insured’s liability had become reasonably clear.

           As to whether the policyholder-insured’s liability was reasonably clear at any point during the underlying claim, this case involved the possibility of a jury finding of comparative negligence.  The Court pointed out that “[w]hile comparative negligence can, in some cases, prevent liability from becoming reasonably clear,” insurance carriers have an obligation to make a reasonable settlement offer, which they cannot avoid “by hiding behind the gamesmanship of anticipated success at trial.”  Urban, 752 F. Supp. 3d at 341.

          As to the reasonableness of the carrier’s offers, the Court noted that under Massachusetts law (as under the law in most if not all U.S. jurisdictions) all insurance carriers are subject to the following legal standard:  “Reasonableness can be measured by looking to the undisputed evidence indicating the damages suffered against the offer tendered.”  Urban, 752 F. Supp. 3d at 344 (emphasis added). 

          The Court in this case awarded double damages against the defendant carrier in the amount of “$2,841,358.26, plus attorneys’ fees” because it failed to make a reasonable offer after the liability of its policyholder-insured had become reasonably clear in the underlying case.  Urban, 752 F. Supp. 3d at 346.

Third-Party Bad Faith case law on the issues discussed in this article is collected in Volume 1 of the Third Edition of LITIGATION AND PREVENTION OF INSURER BAD FAITH § 3:28 (Thomson Reuters West Publishing Co., with 2025 Supplements in process).  First-Party Bad Faith case law on these issues is collected in Volume 2, § 9:14.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

 

DÉJÀ VU, ALL OVER AGAIN.

It worked for them before.  The regime notoriously spirited one Mahmoud Khalil out of New York City before a federal judge there could rule in his case.  Then the regime argued that the federal judge had no jurisdiction since Khalil was no longer there.  “The regime's response to Khalil's demand to return him to New York City was to say that the federal Court there has no jurisdiction.”  The Doctrine of Nanny Nanny Boo Poo, posted here on March 18, 2025.

In that case, the federal judge in New York City ultimately agreed.  But that was because Khalil filed a habeas corpus petition.  The Latin basically means, “deliver the body,” and the federal judge in New York City ruled that if there was no body in New York City, then he did not have jurisdiction in a habeas case.

That’s not what happened in the case of Kilmar Abrego Garcia.  The regime took Abrego Garcia to prison in the Salvador gulag, outside of the United States, where his life is undeniably in danger.  An immigration judge ordered years ago that Abrego Garcia’s life was in danger if he was sent to El Salvador, and that as a result he should not be sent there.

The regime admitted that their abduction of Abrego Garcia was a mistake and they should not have done that to him.  Moreover, Abrego Garcia’s lawsuit was not a habeas corpus petition since he had already been removed from the U.S.  Instead, he alleged that the regime violated his Constitutional rights in sending him out of the country to prison in El Salvador.    See  Download Abrego Garcia v. Noem Complaint Doc. No. 1 filed March 24 2025 (D. Md. Case No. 8.25.cv.00951.PX) and Download Abrego Garcia v. Noem P's Emer. M. TRO Doc. No. 2 filed March 24 2025 (D. Md. Case No. 8.25.cv.00951.PX).

So what could the regime’s lawyers do to make this case like Khalil’s?  Through a lawyer, they declared that Abrego Garcia’s case was really a habeas corpus case and, as in Khalil’s case, the federal court would not have jurisdiction. 

The regime added one further thought.  They argued that since Abrego Garcia had actually been removed from the country, that a United States District Court had no jurisdiction over his case and the Court could not order the regime to return him to this country.  A lawyer actually wrote that, and the regime actually said that.  See Download Abrego Garcia v. Noem Ds Opp. Memo. to P's Em.M.TRO Doc. 11 filed March 31 2025 (D. Md. Case No. 8.25.cv.00951.PX).

The U.S. District Judge in this case, Judge Paula Xinis, disagreed.  She denied Abrego Garcia’s first try at a Temporary Restraining Order, but she ruled in his favor on his second try, when he filed what the Judge called a Motion for Preliminary Injunction.  She granted his motion and also ordered the regime to return him to this country.  Download Abrego Garcia v. Noem Order Granting Prelim. Injunction (D M.Stay) Doc. 21 filed April 4 2025 (D. Md. Case No. 8.25.cv.00951.PX) and Download Abrego Garcia v. Noem Memorandum Opinion (D M.Stay) Doc. 31 filed April 6 2025 (D. Md. Case No. 8.25.cv.00951.PX)

The regime has now appealed to the Fourth Circuit Court of Appeals, where I understand that they have filed an emergency motion to stay the District Judge’s Order.  (Why might there be an emergency you ask?  There isn’t any emergency that I can see.)

Ordinarily, a motion for a stay on appeal, emergency or otherwise, would go to a panel of Fourth Circuit judges but there is a way to circumvent that normal process.  I will go into it later if it turns out that the regime is trying it, but I do not wish to give them ideas.

But that will not stop me from making a prediction for you about the ultimate success of the regime’s appeal in this case:  I think that the Fourth Circuit will reverse the District Judge and hold that although mistakes were made, it is not the regime’s fault, i.e., the regime does not have to take him out of harm’s way by removing him from the Salvadoran death-trap of a prison to which they mistakenly sent him.

I make this prediction because I do not think that many judges on the Fourth Circuit Court of Appeals have the stomach to order the regime to do something that the regime may refuse to do.  It may be that there are not many judges, federal or State, who have the stomach for the regime to defy their orders.  Whatever would they do in that event?  Rather than force the issue, I predict that they will side-step it completely.

They will rule that Abrego Garcia must stay in the prison in El Salvador without forcing the regime to obey the District Court.

At least for now.

Perhaps forever.

Time will tell.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

 

Last Thursday ICE abducted a person who was standing trial.

(oneag news agency; Wikimedia Commons)

 

The person, Wilson Martell-Lebron, was on trial for providing false information on an application for a license. He was on trial for a crime.

On the first day of his criminal trial in Boston Municipal Court, Martell-Lebron was abducted by ICE. ICE says that he is from the Dominican and that he was in the U.S. without sufficient documentation. I understand that this is a civil offense, not a crime.

The criminal trial judge, Judge Mark Summerville, conducted an inquiry. He reportedly heard testimony about the incident from the Assistant District Attorney last Friday, testimony which finished up on Monday of this week.

Judge Summerville found that ICE premeditated their obstruction of justice in this criminal case. He further found ICE agent Brian Sullivan responsible, that Sullivan "conspired in a premeditated manner" to obstruct justice by abducting Martell-Lebron, and that Sullivan was a member of the prosecutorial team (at least for purposes of this issue).

Judge Summerville further found that ICE agent Sullivan "intentionally" and "egregiously" deprived Martell-Lebron of Constitutional rights, and that ICE and Sullivan have no intention of returning Martell-Lebron to resume his criminal trial.

The judge was quoted in reports as saying that "I find that this court cannot trust ICE to return the defendant back to court. I don't find that they're credible. I have no confidence in ICE no matter what they told the Commonwealth, that they would ever bring this defendant into court."

Following this inquiry, the judge found Sullivan in contempt.

The judge also dismissed the criminal charges against Wilson Martell-Lebron for prosecutorial misconduct.

So far, I have seen four of these videos filmed during three abductions which are becoming commonplace. ICE agents abduct someone and bundle them into a waiting black SUV. (I assume that they are agents from ICE because that is what they say, but who knows the truth of who they work for?)

It has not been reported so far as I know, but it is not hard to pick up a pattern from these kidnapping videos: There are always 6 people involved in the abduction, all of them always in plain clothes, they use handcuffs, and they are often but not always masked.

The person they abduct is always alone.

So, in this case, if the judge had wanted to, there seems to have been enough legally sufficient evidence to warrant finding 6 "agents" in contempt, without stopping just at Sullivan.

Back to Mr. Martell-Lebron's abduction and his criminal trial that was scheduled to start in Judge Summerville's courtroom last Thursday. I look at this situation from the standpoint of the people who were in that courtroom. There was the judge, the defense attorney, and the prosecutor. For some reason I do not know, reportedly there were also two Massachusetts State Troopers there.

The judge and the defense attorney apparently had no inkling that ICE was waiting to seize Martell-Lebron. The Assistant District Attorney did not know that ICE would seize the defendant during trial, the judge found.

The question becomes whether anyone associated with this incident knew that ICE was planning to abduct the defendant as soon as the trial concluded.  The reporting is unclear although one of the State Troopers reportedly testified last Friday that Ice Agent Sullivan told him and the prosecutor that ICE planned to abduct the defendant, apparently on the first day of trial.

A statement by a spokesperson for the Massachusetts State Troopers offered that the State Troopers followed the department’s policy of not speaking about ICE plans if they know what ICE is going to do.

Whatever anyone knew about ICE plans for Mr. Martell-Lebron, they apparently did not tell either the judge or the defense attorney.

• The judge, who is very likely to deal with the two State Troopers in future cases, has seen with his own eyes and heard with his own ears that the loyalties of these two State Troopers probably do not lie with him or his Court, or with Massachusetts and its laws. If they were, they would have told the judge what ICE was planning to do if they knew it in advance.  The judge reportedly said as much himself in the Hearing.
• Returning to that statement by a spokesperson for the State Police, this apparently was supposed to exonerate the two State Troopers involved in this situation because the Troopers supposedly neither stopped ICE or helped ICE. I call BS. They helped ICE by staying silent. That is what they wanted to do; we know that because that is what they did.

Think on this as well. ICE and its masters have made it pretty clear that they have no respect for persons they find on the street or in their homes including on Thursday of last week in Massachusetts.

And think on this: ICE and its masters showed clearly and beyond any reasonable doubt on Monday that they have no respect for judges, the United States, or the law.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

DEMAND FOR A DEMAND IS NOT BAD FAITH IN SETTLEMENT.

The case of  Jimenez v. GEICO Secure Ins. Co., 730 F. Supp. 3d 1091 (Nev. 2024) resulted in the publication of a decision which seems to have been willfully misinterpreted in the literature or perhaps it simply was not read beyond the headnotes.  In Jimenez, a U.S. District Judge considered the decision in an earlier case,  Chowning v. Nationwide, which was decided by a magistrate judge in Nevada a year earlier.  The cite for the magistrate judge's decision is Chowning v. Nationwide Ins. Co. of Am., No. 22-cv-00798-CDS-EJY, 2023 WL 2971435 (D. Nev. 2023) (USMJ).

 As the Jimenez Court wrote, “GEICO argues that I should follow Chowning, which held that a [statutory unfair claims settlement practices] claim was futile without a settlement demand from the injured party.”  Jimenez, 730 F. Supp. 3d at 1096.  But the Jimenez Court disagreed.  The district judge in that case did not find the decision by a magistrate judge in Chowning to be “controlling law”:

    The Supreme Court of Nevada has not decided the precise question of whether a settlement demand from the claimant is a prerequisite to an insurance bad faith claim. See Chowning, 2023 WL 2971435, at *6. Neither party cites controlling law on this point.

Jimenez, 730 F. Supp. 3d at 1095 (emphasis added).

Nevada law was involved in the Jimenez case and the Jimenez Court applied Nevada Supreme Court decisions which establish that a liability carrier generally cannot be held liable for its alleged bad faith in settlement regardless of whether there has been a settlement demand or not, if it “’has no opportunity to settle within policy limits .…'   Or, if settlement is possible beyond policy limits, … that the insured would be willing to contribute the excess amount.”  Jimenez, 730 F. Supp. 3d at 1095, quoting Allstate Ins. Co. v. Miller, 125 Nev. 300, 315, 212 P.3d 318, 328 (2009) (en banc) (emphasis added).

Applying the Nevada law of bad faith, as interpreted by the Nevada Supreme Court and followed in the Jimenez case, the policyholder’s complaint at issue failed in its claim of bad faith in settlement because it did not contain any allegation that the defendant carrier had “an opportunity to settle, either within policy limits or outside of policy limits with Jimenez’s contributions.”  Jimenez, 703 F. Supp. 3d at 1096.

Without an allegation that the defendant carrier had an opportunity to settle, both the common law claim of bad faith and the statutory claim of bad faith failed, and for that reason both of these claims were dismissed.   Jimenez, 730 F. Supp. 3d at 1096.

The Jimenez decision is thoughtful and researched.  Not once did the Jimenez Court write that a demand (or offer) is necessary to a viable claim of bad faith in settlement; what Nevada law requires is what all modern jurisdictions require, which is an opportunity for the liability carrier “to settle within policy limits or in excess of policy limits with contribution” from the bad-faith plaintiff.  Jimenez, 730 F. Supp. 3d at 1096.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Whether 'tis Nobler to Staff Healthcare Facilities, ...

... or Take the Money and Run?

One week ago, in an article posted here, staffing standards for nurses at Nursing Homes was explored with a look at an ongoing case in Private Equity Strikes Back, posted here on March 21, 2025.

Standards at healthcare facilities continue to be of interest here, just as they are of interest to most people in the United States. 

To be sure, cases go to trial on allegations involving inadequate staffing at healthcare facilities for which private equity may or may not be responsible.  In Estate of Shea v. Meridian Senior Living, LLC,[1] the estates and relatives of deceased residents of an assisted living facility managed by Meridian Senior Living, LLC filed suit against Meridian on account of the residents' deaths.  The case went to verdict on counts for alleged negligence and alleged violation of the Wisconsin Deceptive Trade Practices Act.

A jury returned a verdict for the plaintiffs based on allegations of inadequate staffing and false advertising. The trial court entered judgment for the plaintiffs which was affirmed.[2]

[1] Estate of Shea v. Meridian Senior Living, LLC, No. 2023AP1462, 2025 WL 18229 (Wis. Ct. App. Jan. 2, 2025).

[2] The essential facts supporting the verdict and judgment are outlined by the Wisconsin Court of Appeals in Meridian Senior Living, 2025 WL 18229, at ¶¶ 1-39, at pages *1-*10.  For reasons unknown, when this opinion was initially issued, the appellate panel wrote that "[t]his opinion will not be published," Meridian Senior Living, 2025 WL 18229, ¶ 60, at page *14, although the caption bears a NOTICE that a final publication decision is pending.

 

Case law on these issues is set out in § 18C:6.50, Private Equity and Medicare, in Volume 2 of CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters November 2024 Edition, 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Good Faith or Bad Faith: Your Choice.

We are moving into an era that represents a rejection of the defense establishment, Social Security and Medicare and Medicaid, the environmental protection establishment, and on and on.  There are ways to improve the cast and the script in good faith, if you will, and there are also ways to rewrite the story in bad faith.  The choice is ours, not theirs.

As was said in a different but related context:

We are moving into an era that represents a rejection of the public health establishment.  Change is coming, but not all change is good change.  We need to have honest discussions about what went right and wrong with a focus on learning how to do better next time, not rewriting what happened.[1]

[1] Katelyn Jetelina and Kristen Panthagani, HHS Picks, the House Subcommittee Report, and Pandemic Revisionism, Your Local Epidemiologist (Substack Newsletter, Dec. 4, 2024), https://substack.com/@yourlocalepidemiologist/p-152518123.

Issues like this are discussed in § 18C:16, The Man-Made Catastrophe From Taking Medicare Away From Those That Rely on the Program, 2 CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters November 2024 Edition, 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Antitrust Scrutiny Through Private Litigation.

Antitrust scrutiny is sometimes provided by the filing of private litigation.  Given the current state of affairs in Washington, D.C., this is likely to become the preferred option for some time to come.

On August 1, 2024, many lawsuits against Multiplan, Inc. were consolidated in a Multidistrict Litigation because they "share factual questions arising from an alleged conspiracy to fix, suppress, and stabilize reimbursement rates paid to healthcare providers for out-of-network healthcare services in the U.S. in violation of the Sherman Act."  In re:  Multiplan Health Ins. Provider Litig., 743 F. Supp. 3d 1376, 1377, MDL No. 3121, 2024 WL 3629070, at *1 (J.P.M.L. Aug. 1, 2024).  

Case law addressing the issues in this case is set out in § 18C:6.50, titled Private Equity and Medicare, in Volume 2 of CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters November 2024 Edition, 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Private Equity Strikes Back.

In June, 2024, a trade association and several nursing homes filed suit in Amarillo, Texas.  Their Amended Complaint still appears to be the operative complaint in that case at this time.  American Health Care Association v. Becerra, Amended Complaint, DE 26, filed 06.18.24 (N.D. Tex. Case No. 2:24-cv-00114).  

            The lead plaintiff led five other plaintiffs in filing suit in the Northern District of Texas, Amarillo Division.  This is the courthouse of choice where, as in this case, plaintiffs oppose allegedly "onerous" rules like standards for nursing staff in Nursing Homes.

            In the lawsuit to block the "onerous" nurse staffing standards in Nursing Homes, the American Health Care Association and its five co-plaintiffs alleged:

That rule exceeds CMS’s statutory authority, effects a baffling and unexplained departure from the agency’s longstanding position, and creates impossible-to-meet standards that will harm thousands of nursing homes and the vulnerable Americans they serve.

            The rule is easy to understand to those who read it.  It turns out that the "agency's longstanding position" originated during the American Apocalypse, between the afternoon of January 20, 2017 and the morning of January 20, 2021.  That is not so longstanding in the eyes of most reasonable persons.

            The "impossible-to-meet standards that will harm thousands of nursing homes" depends on how much of a Return on Investment you were counting on when you invested in Nursing Homes.  If you expected to profit from the relative absence of nurses to whom you have to pay salaries, then that would be one thing which would make hiring nurses to staff Nursing Homes "impossible," I suppose.

            The "vulnerable Americans" the nurses serve are the people who live in the plaintiffs' nursing homes.  The plaintiffs actually allege that these "vulnerable Americans" will be harmed by having more nurses on staff.  Not one resident of a nursing home is a plaintiff in American Health Association v. Becerra.

            Outside of Amarillo, none of this seems especially plausible.  Plausibility is of course the standard to measure whether an amended complaint like this one states a claim upon which relief can be granted. 

            Undeterred by questions of plausibility, the Department of Justice and the plaintiffs in this case have stipulated that the case should be resolved by both parties moving for the entry of judgment under a briefing schedule that runs into 2025.  American Health Care Ass'n v. Becerra, Joint Motion for Briefing Schedule, DE 45, filed 08.09.24 (N.D. Tex. Case No. 2:24-cv-00114).  A U.S. Magistrate Judge approved the stipulation.

            In the meantime, there does not seem to be anything to prevent the standards for nurses to staff Nursing Homes in the Northern District of Texas.  Or anywhere else in the United States, for that matter.

            As of Saturday morning, March 14, 2025, I could not find any Order on the electronic docket on PACER that says that the staffing standards are not in effect.[1]

 

Case law on the issues in this case is set out in § 18C:6.50, titled Private Equity and Medicare, in Volume 2 of CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters November 2024 Edition, 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

 

[1] However I did find several Orders granting leave to foreign lawyers to put in their appearances in the case.  But after checking on PACER for a year-and-a-half, so far I have not found any Orders enjoining the enforcement of the staffing standards for nurses in Nursing Homes, wherever they are located.  And as yet, I have not found stipulations either.

            Unfortunately, Typepad would not cooperate with PACER and upload the documents from the Electronic Court File for your ease of reference here.  I tried, more than once.

Work Requirements to Impose on Medicaid Recipients ARE BACK!

Work requirements are popular in some quarters to impose on disabled people, the elderly, and children who receive Medicaid.  This is a repeat of an earlier time.

As of July 1, 2023 there was actually still one state with work requirements for Medicaid recipients, Georgia:

            The first Trump administration approved work requirements in 13 states.  Only Georgia's program, which started on July 1, 2023, is in effect.  A Medicaid work requirement launched in Arkansas was halted by a court order in 2019.[1]

Like a bad movie, we apparently have to do this again.  Stay tuned.

[1] Andy Miller, Renuka Rayasam and Sam Whitehead, Democratic Senators Ask Watchdog Agency to Investigate Georgia's Medicaid Work Rule, KFF Health News (online Dec. 18, 2024), https://kffhealthnews.org/news/article/georgia-medicaid-word-requirement-democrats-gao-investigate/.

 

Case law on these issues is set out in § 18D:16, Volume 2 of CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters November 2024 Edition, 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

THE DOCTRINE OF NANNY NANNY BOO POO.

 

Mahmoud Khalil v. William P. Joyce, Memo in Support of Motion to Dismiss or Transfer the Case, Doc. 31, page 1, filed March 12, 2025 (SDNY No. 25 Civ. 1935 (JMF)).  (Author Photo)

Mahmoud Khalil was taken into custody allegedly by unknown, unidentified plain-clothes agents of the Department of Human Services.  That was in New York City.

From the City, Khalil was apparently taken to New Jersey, where the plane he was put on may have refueled.  From there he was taken to Louisiana.

When he was taken, he left behind his wife in New York City who sued to have him returned to her.  She was 8 months pregnant at the time Khalil was taken away.

She sued for habeas corpus.  That is one of the few Latin phrases that remain in the law.  (Some people might think it is Sharia law.  It is not.  It is Latin.)  In practice, it means "return the body that you have taken."

The only reason we can see what is being done in this case is that it is a habeas proceeding in a civil case.  If it were in Immigration Court, it would usually be sealed.  The District Judge in this civil case ordered the case to be unsealed even though the case involves immigration laws.

A "deliver the body" or habeas petition is usually directed to the regime that is responsible for taking someone out of circulation.  In this case, Khalil was disappeared at 8:30 PM on a Saturday night by large men who refused to identify themselves.

The regime's response to Khalil's demand to return him to New York City was to say that the federal Court there has no jurisdiction.  They said that only the Court where he is being held has jurisdiction, or perhaps the Court where he was held at the time the habeas petition was filed has jurisdiction.  But certainly not the Court in New York City which is where he was taken from, of course, they say.  Download Mahmoud Khalil v. William Joyce Rs' Memo to Dismiss or Transfer Doc. 31 filed March 12 2025 (S.D.N.Y. No. 25 Civ. 1935 (JMF)).      Download Mahmoud Khalil v. William Joyce Rs' Opp. Memo to Return MK to SDNY Doc. 47 filed March 14 2025 (S.D.N.Y. No. 25 Civ. 1935 (JMF)).   Parenthetically, in the Southern District of New York the case has been assigned to Judge Jesse Furman.

Mahmoud Khalil v. William P. Joyce, Opposition Memo to Motion to Compel Khalil's Return to SDNY, Doc. 47, p. 1, filed March 14, 2025.  (Author Photo)

So, if you follow the reasoning, they are saying that only the Court in the place where they took him has jurisdiction, whether that is the Court in New Jersey or the Court in Louisiana.  If Khalil's habeas case is transferred to Louisiana, then by their reasoning if they transfer him first to say, Florida, before the habeas case is transferred to Louisiana, then they can say that Khalil's case will be in the wrong place and the Court will not have jurisdiction there, either.  They can probably keep moving him around the country on expensive airplane flights.

This is fundamentally unfair.  It is unjust.  It is un-American.  It certainly was all these things before January, 2025.

It is still unfair, unjust, and un-American now.

They haven't gone into this, for obvious reasons, but it seems that there must be an exception to the Doctrine whenever the regime deliberately robs the Court of jurisdiction by moving their prisoner to whatever jurisdiction they think is more receptive to their activity.  If there is not, there ought to be. 

Otherwise we will have nothing in our empty lives but the Doctrine of Nanny Nanny Boo Poo.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

In Court, Facts and Law Matter. They still determine the outcome.

HAPPY ST. PATRICK'S DAY ANYWAY!

Perhaps ahead of the times, Florida sued without legally sufficient supporting facts or law to challenge "the constitutionality of the federal government's use of private accreditation agencies as part of its process to approve postsecondary institutions within the meaning of the Higher Education Act [HEA.}"  Florida v. Cardona, ___ F. Supp. 3d ___, No. 23-cv-61188-JB, 2024 WL 4370879, at *1 (S.D. Fla. Oct. 2, 2024), app. docketed, No. 24-13814 (11th Cir. Nov. 20, 2024).  The Court granted a motion to dismiss Florida's taxpayer-funded lawsuit, saying:  

            There is no precedent for striking down an act of Congress on the grounds that it violates the Spending Clause when the funds at issue are not given to a state or local government entity. Indeed, every case cited by either party involves a challenge to a statute or regulatory scheme that provided federal funds to a state or local government entity.¹⁰ Here, it is undisputed that the State is not receiving the funds.

Florida v. Cardona, 2024 WL 4370879, at *10 (emphasis by the Court) & n.10.  The District Court concluded:

The State, of course, is not without recourse. It can seek to change the law in Congress, provide its own funding to students attending its schools, or compete in the marketplace without the use of federal funds, just to list a few examples. But this Court is only empowered to look at the facts as they are plead, not rhetorical conclusions, and then apply the law as it exists, not as the State would like it to be. By those lights, what the State presented, at least in this Complaint, cannot stand.

Florida v. Cardona, 2024 WL 4370879, at *18.

Case law on these issues is discussed in § 18A:1, Volume 2 of CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters November 2024 Edition, 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

 

More on "Direct Physical Loss," and on "Loss" or "Damage" coverage determinations.

As two esteemed insurance academics put it in a law review article early in the COVID pandemic:

          Judges granting dismissal motions without any opportunity for discovery, and denying any possibility of coverage at the metaphorical starting gate, have undermined the traditional American commitment to jury trials as well as widely accepted legal principles of insurance policy construction such as interpreting ambiguous terms against the drafter and considering policyholder reasonable expectations.  Where the issue is solely whether sufficient “loss” or “damage” has taken place, standard property insurance policy language is simply not as conclusive as purported by these courts. Although other defenses such as a virus exclusion may carry the day for some insurers, insurers have to date gotten much more mileage out of very weak “no-loss/no-damage” arguments than should be the case if trial judges were consistently doing a thorough job.

Erik Knutsen and Jeffrey W. Stempel, Infected Judgment:  Problematic Rush to Conventional Wisdom and Insurance Coverage Denial in a Pandemic, 27 Conn. Ins. L.J. 185, 192 (Fall, 2020).  This law review article would influence the North Carolina Supreme Court in its interpretation in 2024 of the phrase, "direct physical loss" to property as that term is used in an insurance policy.  In 2024, the North Carolina Supreme Court declared that phrase ambiguous such that coverage was to be decided in favor of the policyholder in that case under a policy containing such a requirement.  North State Deli, LLC v. Cincinnati Ins. Co., 386 N.C. 733,  908 S.E.2d 802, 806 (N.C. 2024).  The North State decision was the subject of a blog article posted here on Wednesday, March 12, 2025.

Case law interpreting policy language of this kind is discussed in § 7:20 by Dennis J. Wall in CATASTROPHE CLAIMS / Insurance Coverage for Natural and Man-Made Disasters (Thomson Reuters West Nov. 2024 Edition, 2025 Supplements in process).

 Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

"Direct Physical Loss" is a "slippery term" said the North Carolina Supreme Court.

It probably remains to be seen whether the current composition of the North Carolina Supreme Court will stick with stare decisis if they do not like the result.

The North Carolina Supreme Court, in contrast to the answer to certified questions by the California Supreme Court, declined "to do what other courts have done and affirmatively define the 'slippery' term [that the insurance carrier at bar] chose to use in this manifestly ambiguous situation."[1]  In an opinion amazing for its unanimity among other things, the North Carolina Supreme Court in North State Deli, LLC v. Cincinnati Insurance Co.[2] expressly rejected the approach of affirmatively defining the term "direct physical loss" where the carrier itself did not define the term in its insurance policy:

          At bottom, a reasonable person in the position of the insured would understand the restaurants’ policies to include coverage for business income lost when virus-related government orders deprived the policyholder restaurants of their ability to physically use and physically operate property at their insured business premises. Since Cincinnati’s interpretation of “direct physical loss” to property is also reasonable, North Carolina’s background principles compel us to resolve this ambiguity in favor of the insured policyholder.  [Citation omitted.]. We therefore conclude that the restaurants have stated a claim for coverage due to a “direct physical loss” to property under their policies, and they are entitled to partial summary judgment as the trial court concluded.

* * *

Otherwise, insurance companies are licensed to pitch consumers on an expansive, “all-risk” policy, while hiding behind a narrower definition imposed by judicial fiat when it comes time to pay out. Such a setup contradicts our Court’s holdings that the lodestar for insurance contract interpretation is the reasonable expectation of the policyholder and that ambiguities should be resolved in the insured’s favor.[3] 

Case law interpreting policy language of this kind is discussed in § 7:20 by Dennis J. Wall in CATASTROPHE CLAIMS / Insurance Coverage for Natural and Man-Made Disasters (Thomson Reuters West Nov. 2024 Edition, 2025 Supplements in process).

 Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

 

[1] North State Deli, LLC v. Cincinnati Ins. Co., 386 N.C. 733, 908 S.E.2d 802, 812 (N.C. 2024).

[2] North State Deli, LLC v. Cincinnati Ins. Co., 386 N.C. 733, 908 S.E.2d 802 (N.C. 2024).

[3] North State Deli, 908 S.E.2d at 812, 813.

Read their own words that say that Section 504 is unconstitutional.

(Author Photo) 

Ken Paxton is currently the Texas attorney general. His name is on the complaint in Download Texas v. Becerra Complaint Doc. No. 1 filed Sept. 26 2024 (N.D. Tex. Case No. 5.24.cv.00225.H).  I wrote about that lawsuit previously. I may not have written enough, so today I will quote a lot of their own words.

In their complaint, Paxton writes that Texas and other states of the Old and New Confederacy say that Section 504 is unconstitutional.

Here is Count 3, in their own words:

Count 3 Section 504 is Unconstitutional U.S. Const., art. I, § 8, cl. 1.

221. All other allegations are repeated and realleged as if fully set forth herein.

222. Under the Rehabilitation Act, “no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

(Complaint, Count III title and paragraphs 221-222, at p. 40.) (Emphasis added to title of Count III of their complaint.)

This is what Paxton has written in their complaint. No question, they knew what they were doing. They certainly know what Section 504 stands for; as you can see they quoted it.

They wrote that they think that Section 504, which prohibits discrimination against handicapped people, is unconstitutional:

239. Because Section 504 is coercive, untethered to the federal interest in disability, and unfairly retroactive, the Rehabilitation Act is not constitutional under the spending clause.

(Complaint, paragraph 239, at p. 40.) (Emphasis added.)

Then they demanded that a judge declare Section 504 to be unconstitutional everywhere in America in all things, no qualifications:

DEMAND FOR RELIEF

Plaintiffs respectfully request that the Court:

a. Issue permanent injunctive relief against Defendants enjoining them from enforcing the Final Rule;

b. Declare that the Final Rule violates the Administrative Procedure Act;

c. Hold unlawful and set aside (i.e., vacate) the Final Rule;

d. Declare Section 504, 29 U.S.C. § 794, unconstitutional;

e. Issue permanent injunctive relief against Defendants enjoining them from enforcing Section 504;

f. Award attorneys’ fees and costs incurred in this action to Plaintiffs; [and]

g. Issue any and all other relief to Plaintiffs the Court deems just and proper.

(Complaint, DEMAND FOR RELIEF, p. 42.) (The only demands for relief that do not address the transgender rule supposedly at issue in this case are the demands to which emphasis has been added so they are easily seen, and those are demands to declare Section 504 unconstitutional and enjoin enforcement of Section 504’s prohibition on discrimination against handicapped people.)

Paxton has since said that this lawsuit "will have no impact" on Section 504 coverage. He says that anything to the contrary is "a misinformation campaign." He says that they never demanded that the protections of Section 504 be taken away, but only, he says, that they demanded that the court "protect them."

What Mr. Paxton speaks now is not what he wrote in their complaint.

Now you can see for yourself what he wrote. Paxton never thought that would happen, but it has.

If they wanted to amend their complaint, they would; but they haven't amended their complaint. Every lawyer knows that it is relatively simple and straight-forward to amend a complaint and that if you don't amend your complaint, all the words in the wind don't matter in court.

Oh, one last Paxtonism contrary to the truth. He says that a recent executive order "paused" this lawsuit. There is no such thing as a "pause," not because of somebody's executive order or anything else. The only thing that can stop a lawsuit is an order from the court. That hasn't happened here. Until and unless that happens, Section 504 is on track for a declaration.

Unless of course they voluntarily dismiss their lawsuit since they won't amend it.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

"Majority" or "minority" views: "Surface water" in the insurance coverage case law.

Some courts say that a majority of courts addressing the question have concluded that "surface water" includes water on a roof, but the Supreme Judicial Court of Massachusetts respectfully disagreed in the case of Zurich Am. Ins. Co. v. Med. Prop's Trust, Inc., 494 Mass. 382, 392 n.12, 237 N.E.3d 733, 741 n.12 (2024):

          Both the insurers and MPT argue that their particular interpretation of the term “surface waters” is the majority position among courts throughout the country. This mirrors courts in other jurisdictions that have similarly asserted both that the majority position is that “surface waters” includes water on a roof, see, e.g., Danville Commercial Indus. Storage, LLC, 442 F. Supp. 3d at 927 (“the majority of [courts] to have addressed this question have concluded that ‘surface water’ includes water on a roof”); ..., and that it does not[.]  As illustrated by our discussion of case law from other jurisdictions, there does not appear to be a definite majority position on the issue.  We also note that most jurisdictions that have defined the term "surface waters" in the insurance context have done so only in cases involving water at ground level.

Case law interpreting exclusions of this kind is discussed in § 7:16 by Dennis J. Wall in CATASTROPHE CLAIMS / Insurance Coverage for Natural and Man-Made Disasters (Thomson Reuters West Nov. 2024 Edition, 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Ensuing Loss.

Loss ensuing from a construction defect exclusion, and thus within the exclusion's exception for ensuing loss which is covered under the insurance policy, has been held to mean "simply the cost to repair the construction defect[.]" Cincinnati Ins. Co. v. Ropicky, No. 2023AP588, ___ N.W.3d ___, 2024 WL 5220615, ¶38, at p. *10, 2025 WI App 5 (Wis. Ct. App. Dec. 26, 2024).

            The same result was reached in an earlier Wisconsin intermediate state appellate court decision, in which the appellate court confronted this language of ensuing loss in a case of apparent first impression. Arnold v. Cincinnati Ins. Co., 276 Wis. 2d 762, 778 ¶ 27, 688 N.W.2d 708, 715 ¶ 27, 2004 WI App 195 ¶ 27 (Wis. Ct. App. 2004). 

Case law on the issues in this case is set out in § 7:16, Volume 1 of CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters November 2024 Edition, 2025 Supplements in process).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Judge Chutkan's Order Denying States' TRO Request Shows The Way.

No, she did not rule that it is okay for the Valley Boys to play with your Personally Identifiable Information in the government's computers.

Click on this Author Photo, Docusigned Declaration dated February 10, 2025, filed in  New Mexico v. Musk, Emergency Motion for TRO filed by State of New Mexico on Feb. 14, 2025, Doc. No. 6, Ex. 11 (D.D.C. No. 25-cv-429 (TSC)). 

Fourteen States represented by their Attorneys General sued to keep Mr. Musk's interns from sharing your Personally Identifiable Information and accessing the federal government's computers.  Their lawsuit is still pending.  It asks a federal court for an injunction and to declare the computers off limits.  Download New Mexico v. Musk Complaint Doc. No. 2 filed Feb. 14 2025 (D..D.C. No. 25.cv.429 (TSC)).

The Attorneys Generals' Offices include a lot of truly talented people.  They convinced the judge of most of their case when they requested a Temporary Restraining Order (TRO), which is a special injunction intended to immediately preserve the status quo while the judge decides how to rule in the end.  However, they failed to prove something crucial to their case, something they had to know is crucial from the beginning:  irreparable harm if the Fourteen States did not get an injunction, at this time, a TRO.

The Fourteen Offices of the Fourteen State Attorneys General have access to all the agencies of their States.  They knew going in that they would need to show irreparable harm to their clients, the Fourteen States.

Fourteen Attorneys General Offices.  Whether or not they were asked before, every one of them must be asked to scour their  own State's agencies for someone to be able to offer a Declaration or Affidavit on personal knowledge about the harmful effect of the Silicon Valley Boys from accessing computer networks at federal agencies.

By my count, and I probably missed one or two, their complaint identified 16 federal agencies that the Silicon Sillies accessed, including the Centers for Medicare and Medicaid Services, the Centers for Disease Control, and the Consumer Financial Protection Bureau.  Of these three that particularly stand out, the complaint contains the most allegations about the CFPB, and even then there is no showing of irreparable harm.  (A few details about the CFPB are alleged in Paragraphs 146-148 on page 34 of the Complaint that the 14 States filed on Valentine's Day, 2025, but nothing to evidence irreparable harm to the 14 States as a result of the interns rummaging about in the CFPB computer systems.)

Instead, the Complaint of Fourteen States refers a lot to newspaper reports about national security matters and potential effects on the States.

Not a word about CMS and its effects on any programs of the Fourteen States, even before the computer meddling began.  The Complaint did allege that this agency is responsible for Medicare and Medicaid programs.  Not a word about how interference with CMS's computers has affected Medicare and Medicaid programs administered by the States, the AGs' clients in this case.  Medicaid in particular depends on the States; witness the continuing brouhaha over the refusal of a handful of States to expand the Medicaid programs in their States.

On the other hand, there were a couple of further allegations about the effect of the computer takeover on the CDC.  The Complaint alleges that the computer takeover must have affected the Fourteen States, without any proof or plausible allegations of actual harm, even though we are still in the midst of a Pandemic and people are still dying, including people that rely on public health programs administered by the States.

The Request for a TRO parrots the Fourteen States' Complaint.

The Fourteen States' Attorneys General Offices did file eleven (11) Declarations with their Request for a TRO.  I have reviewed them all.  The persons who testified in the Declarations did not testify to any actual harm to the programs of any of the States.

It is worth noting something that the judge and her law clerks would have seen.  One of these Declarations was submitted to the Court Docusigned by Mr. Wayne Propst of New Mexico.  The title of his Declaration is "DECLARATION OF [NAME]," with the "[NAME]" highlighted in yellow, apparently waiting in vain to be filled in.  The document is dated four (4) days before it was filed in the Court File.  That's enough time to proof it and fill in the missing name, at the very least.  See New Mexico v. Musk, Emergency Motion for TRO filed by State of New Mexico on Feb. 14, 2025, Doc. No. 6, Ex. 11 (D.D.C. No. 25-cv-429 (TSC)).  Or so the judge and her law clerks would have seen it.

Record evidence in sworn Declarations and Affidavits of irreparable injury to these Fourteen States.  That is what the judge looked for and did not find.

That's what she based her whole ruling on.  She wrote plainly:

          The court’s analysis here begins and ends with irreparable harm, “a threshold requirement in granting temporary injunctive relief.”

 Order at page 5.  Download New Mexico v. Musk Memorandum Opinion and Order Doc. No. 29 filed Feb. 18 2025 (D..D.C. No. 25.cv.429 (TSC)).

Perhaps this case would benefit from adding some individuals as plaintiffs.  That could be an improvement but it would be an improvement only if they file Declarations and Affidavits documenting their irreparable injury.

Documenting irreparable injury.  That's what the judge said was missing here:

When litigants have identified specific individuals or programs imminently targeted by Defendants, courts have issued appropriately tailored TROs.

Order at page 7 (emphasis added).  Those who have eyes to see with, let them see.  I have added boldfacing and italics to help in that effort.

We should soon see Declarations and Affidavits in the Court File documenting irreparable injury to the programs of these 14 States, and perhaps to specific individuals who will be added as plaintiffs in this case.  It is to be hoped.

Note to the Fourteen Attorneys General Offices:  If however you do not have the evidence, don't file the motion until the evidence develops.  It is undoubtedly true that there has been tremendous pressure to stop the bleeding right now, so to speak.  But the greater objective is to stop the Code Red Boys including Big Balls from seeing and sharing your citizens' Personally Identifiable Information.

In the meantime, the press has got it wrong again.  Here's another ruling by a judge that the press just doesn't understand.  Perhaps experienced and knowledgeable journalists would have known that Judge Chutkan's ruling was not an endorsement of Silicon Valley Arrogance.

Nor was her ruling an affirmation of the Re-Code Gang, the misbehaving children who escaped from computerland and were released inside the computers of federal agencies.  That these male misfits are coding is ironic because in their Silicon Valley culture, they look down on coding as beneath them, as clerical, as the only work they will allow females to do in their Valley.

Experienced and knowledgeable journalists have been let go or taken early retirement with a deservedly profitable pay package.  In either case, they are no longer around.

And it shows.

So, back to the case of the 14 States and their attempt to take computer access back from the Valley Boys.  Either the 14 AGs will file another request for a Temporary Restraining Order or they will file a motion for a Preliminary Injunction, but either way they must get the evidence that the judge said she needs:

          Plaintiffs legitimately call into question what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight. In these circumstances, it must be indisputable that this court acts within the bounds of its authority. Accordingly, it cannot issue a TRO, especially one as wide-ranging as Plaintiffs request, without clear evidence of imminent, irreparable harm to these Plaintiffs. The current record does not meet that standard.

Order at page 9 (emphasis added).  Once again, still it must be said now, as was said thousands of years ago:  "Those who have eyes to see with, let them see."

Hindsight is 20-20, but I think it is clear what happened here.  It is clear even to a person like me who has had difficulty keeping up with all the recent events in D.C., as I suspect you have as well.  It seemed sudden, as a result, that this case surprisingly posted an "L" in the Won-Lost Column of the Good Guys here.  It is clear that the people who put their names on the Complaint in this case think of themselves as among the Good Guys.

Judge Chutkan's Order of February 18, 2025 shows the way to an eventual "W."  Lawyers, go that way for the sake of the nation, for the sake of your Fourteen States, and last and least, for your own sakes.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

Excluding and Denying People With Disabilities in Their "America," Not Yours.

EVERYONE with special needs is a target.  You, too, Post-Polio Survivors.

 

(Author Photo)

It is currently illegal to discriminate under Federal grants and programs.  Maybe not for much longer.

Section 794 of Title 29 of the United States Code bars Nondiscrimination under Federal grants and programs.

Section 794 is popularly known as Section 504 because that is how it was known when Congress passed  the Rehabilitation Act in 1973.  Most people have not forgotten.  Disabled people in particular remember.

Texas and 16 other States filed a lawsuit 51 years later to declare Nondiscrimination against the Disabled "unconstitutional."  They have demanded in their lawsuit in Texas that the Northern District of Texas:

Declare Section 504, 29 U.S.C. § 794, unconstitutional.

This is their demand on page 42 of their complaint.  By the time you reach their demand, they already spent pages writing about why Section 504 is "unconstitutional" in their America.  Download Texas v. Becerra Complaint Doc. No. 1 filed Sept. 26 2024 (N.D. Tex. Case No. 5.24.cv.00225.H).

The lawsuit was filed in Texas by 17 States, a combination of 7 States from what might be called the Old Confederacy led by Texas, of course (minus Mississippi, North Carolina, Tennessee, and Virginia) and 10 States from the New Confederacy. 

The press, in this case as in so many others, has reported the press release about this case, namely, that it is against a Federal Rule to protect transgender people.  They may not have even read the complaint itself, which clocks in at 46 pages.    If this lawsuit is successful, it will affect the lives of all disabled people in the United States.

The lawsuit is currently looking for a new federal defendant.  When the complaint was filed in September, 2024, they sued Xavier Becerra, who was then the Secretary of Health and Human Services (HHS).  Becerra's  name is still on the case, but that will change very soon in all likelihood when a new federal government takes his place in the lawsuit.

It is not difficult to predict how the  people currently in charge of your federal government, or think they are, will respond when they answer this lawsuit.  So far, they have made vulnerable people their targets.

The Texas lawsuit is ready and waiting for them.

Based on their past behavior, it seems certain that they are going to take this opportunity to continue to take rights away from the people who they think are the least equipped to fight back. 

It is reasonable to predict that their targets, sooner or later and almost certainly sooner, will be women, children, Blacks, the poor, and individuals with a disability.

Including people who were children with Polio and who are now adults with Post-Polio Syndrome. 

What, then, are the possible responses to this Demand to "Declare Section 504, 29 U.S.C. § 794, unconstitutional?"  There are many possible responses.  I will leave it to others more familiar with this area than I am, to craft all the responses that are possible, but here I will write about one, intervention.  Intervention is both a possible legal response and a possible practical response.  Here's what I mean.

Intervention is available as a legal response here.  Some group or groups as yet unknown may ask the court for leave to intervene for the purpose of defending Section 504.  After all, there is no-one left in this case to defend the law.  Even though the chances of blocking mistreatment of the disabled are probably not very good in the Texas case, there will still be what lawyers call a record that someone stood up to defend the current American law.

When I suggest intervention as a possible practical response, I have this in mind:  Intervention by the presence of people presenting all kinds of disabilities in the courtroom in which this judge will decide the fate of discrimination under Federal grants and programs.  From experience, I know that it is harder for judges to rule against people in cases like this who are in the judge's  courtroom and who the judges can see.

All this will make it harder for the judge in this Texas case to rule openly against them.

People with disabilities with their wheelchairs, scooters, crutches, walkers, and helpers will make for irresistible photos and videos for the press.  As Mr. Fred Gailey, the fictional lawyer for Kris Kringle said in the movie, Miracle on 34th Street, "If I'm going to win this case, I'll need publicity, and lots of it."

And this lawsuit will be seen for what it is.  There is a reason that they do not want anyone to see what they are doing.  You may not have heard of this lawsuit yourself before today.  Perhaps there will be a greater chance of defending the law, once the rest of the nation hears and sees, too.

At the very least, then there will likely be a much greater chance of defending the American law than there is now, if things are not changed.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things?  Sign up for a free subscription to my Substack newsletter. 

 

The Earth Movement Exclusion Shorn From Case Law.

It has been held under Wisconsin law that an unambiguous earth movement exclusion must be enforced as it is written in the insurance policy, and not as case law might have it:

            The clear and unambiguous terms of the policy show that the earth movement exclusion may apply to the floor-related damage Hansen sustained to its cold storage facility. The policy broadly excludes from coverage losses caused by any earth movement except a sinkhole collapse. It’s undisputed that the freezer floor was damaged from frost heaving, not from a sinkhole collapse. Thus, the rising or shifting of earth that caused the floor-related damage is a type of earth movement that is plainly excluded from coverage under the policy.  [Citations omitted.]  Because the terms of the earth movement exclusion are unambiguous, the exclusion must be enforced as written and without resort to principles of caselaw.

Hansen Storage Co. v. Employers Mut. Cas. Co., 734 F. Supp. 3d 850, 859 (E.D. Wis. 2024)  (Dries, U.S.M.J.; emphasis added).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

An Open Letter to Judge Dale E. Ho and his Law Clerks

Seal of the United States District Court for the Southern District of New York

Re:  United States v. Eric Adams, Case No. 1:24-cr-0556-DEH, Southern District of New York.

The Court has for consideration the Nolle Prosequi, or "motion seeking dismissal without prejudice of the charges in this case, with leave of the Court, pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure."  U.S. v. Adams, Nolle Prosequi [hereinafter "the Motion"], Doc. No. 122, filed Feb. 14, 2025 (S.D.N.Y. Case No. 24 Cr. 556 (DEH)) (emphasis added).

The Motion is based on assertions and not on facts.  For that reason alone, the Motion does not comply with the rule it invokes, Federal Rule of  Criminal Procedure 48(a).  See United States v. Jovanovic, Cr. Action No. 25-15 (BAH), 2025 WL 266551, at *2 (D.D.C. Jan. 22, 2025) (Howell, J.).

Here, the Motion before the Court is bereft of facts.  On its face, it is expressly based not on the perceived observations and knowledge of any lawyer who signed the Motion, but it is expressly based instead on something that "[t]he Acting Deputy Attorney General has determined," or has "concluded," or has "reached that conclusion," or has "also concluded."

Since there are no facts presented to guide this Court in its decision whether to grant leave as this unsworn Motion requests, and since the Defendant's attorneys (understandably) agree with the Motion, this Court and its Law Clerks responsible for considering the proper disposition of this Motion may benefit from this Open Letter, which this Court and all of its Law Clerks are of course free to consult or reject.

As noted, there are no facts provided to this Court by or with this Motion.  PACER does not reveal that any Declarations, Affidavits, or documentary evidence was filed along with this Motion.

And for good reason it seems.  It is public knowledge that the United States Attorney for the Southern District of New York raised the issue, based on her own personal knowledge as she expressed in her letter,  that this Motion is based on a rejection of ample evidence to support the grand jury's indictment in the first place.  For your ease of reference, I am able to make Ms. Sassoon's February 12 letter available here:    Download Danielle-sassoon-02.12.25 letter-to-ag 

U.S. Attorney Sassoon's letter also raised the issue that the principal if not only motivation behind the filing of the Motion is, quoting the separate resignation letter of Assistant United States Attorney Hagan Scotten, "to induce an elected official to support [the current Government's] policy objectives."   Download Hagan-scotten-resignation 02.14.25 EM letter.

Prosecutorial discretion is not unlimited.  See United States v. Ammidown, 497 F. 2d 615, 620 (D.C. Cir. 1973) (suggesting that a prosecutor's decision to request dismissal of a criminal prosecution under Criminal Rule 48(a) might require a statement of governmental reasons and "underlying factual basis" supporting the government's decision).

It has been held, rather, that the District Court's role in the face of a Criminal Rule 48(a) Motion is to examine the record to insure that the efforts to end the criminal prosecution in the case before the Court, are not "'tainted with impropriety.'"  United States v. Flynn, 507 F. Supp. 3d 116, 130 (D.D.C. 2020), quoting and applying Rinaldi v. United States, 434 U.S. 22, 30, 98 S. Ct. 81 (1977).

In Flynn, .District Judge Sullivan collected cases decided under Criminal Rule 48(a), concluding with a look at the reason why the Rule was enacted in the first place:

In addition, as indicated by the history of Rule 48(a), the corrupt dismissal of politically well-connected individuals would also constitute an abuse of discretion.

United States v. Flynn, 507 F. Supp. 3d at 130-31.

Case law under Federal Rule of Criminal Procedure 48(a) does not seem to support an unsupported dismissal of criminal charges in this case without an examination of a full record on this issue.  However, the published cases decided under Rule 48(a) do seem to support the development of a full record on this issue.  A full record on this issue would include, for example, the production to the Court (for in camera inspection if necessary) of all correspondence and other communications passing between any official of the current federal government, on the one hand, and Mr. Adams and his counsel on the other hand, concerning the issues set out in the pending Motion, in the February 12, 2025 letter of U.S. Attorney Danielle R. Sassoon, and in the February 14, 2025 EMail letter of  Assistant U.S. Attorney Hagan Scotten.

Please consider or reject this Open Letter in your consideration of the pending materials.  It is appropriate to raise one additional matter here, which it might not have been quite as appropriate if I were making an appearance in this case in your Court.  Please also consider the effect on the Nation of your decision.

 

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

"Without observance of procedure required by law": As seen by the Reviewers.

Bank Building.  (Author Photo)

The law, continued:  "without observance of procedure required by law[.]"

This is Paragraph (D) of 5 USCA § 706(2) in Scope of review.  Like Paragraph (C) of the same Scope, it is featured in almost every claim, every lawsuit, levelled against the conduct of the people who currently control the federal government, or think they do.

That is because almost every claim and every lawsuit involves action taken by agencies of the current federal government which was taken without observing notice-and-comment requirements for Rules changes, or providing 30 days notice to Congress with substantive reasons for terminating the jobs of certain officials, and so on.

The actions taken by the "Office of Personnel Management (OPM)," which still is called by the same name even though apparently it is not the same place at all, are a good example.  Those actions feature trying to downgrade federal employees' civil servant status to at-will employees, meaning that these workers could now be fired at will if OPM was successful in this quest.

OPM's actions have triggered claims surrounding OPM's failure to follow notice-and-comment procedures under the Administrative Procedure Act because OPM's actions have changed existing regulations providing civil service protections.  OPM's actions also have been charged with other infirmities including ignoring protections written by Congress into the Civil Service Reform Act, but our focus here is exclusively on the example of what OPM did "without observance of procedure required by law," not on whether OPM ignored the law or tried to rewrite the law that, in this case, was written by Congress.

Next I wish to focus on the judges, their decisions, and the people in the current federal government.  Some have asked the question of what will happen if the current federal government ignores any one or all  of these decisions.

Possible answers to these and related questions appear in my article on Substack.   You can access my newsletter there for free.

Thank you.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

BY WHAT AUTHORITY? Reviewing "in excess ..."

Scale_of_Justice_P7270423.jpg

(Brown v. Board of Education National Historic Site, Topeka, Kansas; Wikimedia Commons)

The law, continued:  "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right[.]"

This is Paragraph (C) of 5 USCA § 706(2).  It is featured in almost every claim, every lawsuit, levelled against the conduct of the people who currently control the federal government, or think they do.

          "By What Authority?"  It is a feature of:

• Challenges to the authority of an Executive Order and the Department of Homeland Security (DHS) to expand removal of immigrants. (Speaking of DHS, it would be a good question to ask why DHS armed guards have reportedly turned Members of Congress away from Government buildings, and what are the names and badge numbers of these people?)
• Every case in which the power boys, whether teen-aged or older, have allegedly failed to follow the required rulemaking process before enacting changes to protections given by statutes.
• Challenges to the authority of an Executive Order and the Office of Personnel Management (OPM) to strip civil service protections extended to federal workers by Congress.
• I know the rule of thumb is to use 3 bullet points to illustrate, but here's a fourth: Confronting agency action that allows delaying and even blocking payments, and agency action that allows access to Personally Identifiable Information.

          "By What Authority?"  I learned as a baby lawyer that it is the first question to ask when examining any legislative act or agency action.

          "By What Authority?"

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter. 

 

Observing Lincoln's Birthday by seeing what the judges have seen in the past 23 days WITH BREAKING NEWS!

Colorized photo of Abraham Lincoln taken November, 1863.

(M. Price?  Alexander Gardner.  Public Domain; Wikimedia Commons)

Beginning with the law, continued:  "Contrary to constitutional right, power, privilege, or immunity." 

Judges have the power to hold unlawful and set aside agency action, findings, and conclusions that the judges find to be proven by the evidence before them to be "contrary to constitutional right, power, privilege, or immunity."  The power to do this is given to them by Congress in the Administrative Procedure Act, or APA.

 

The Inspectors General.  You have undoubtedly heard about the firing of some 18 Inspectors General whose job it was to keep an eye on the legality of their agencies' conduct.  Now they are gone and they do not keep an eye on things.   On the same afternoon of the same day that this post was published, I learned that on this date several or all of the Inspectors General filed suit in the United States District Court for the District of Columbia.  Although I have not had time to review their complaint, it appears that they are alleging that the law required 30 day notice to Congress that they were going to be fired and that this did not happen, among other failures to comply with the law.

As additional information comes to light, and after I complete my review of the Court File on PACER, I will add a Postscript concerning this new lawsuit as necessary. 

In the meantime, one person is often lumped in with the IGs by the Press, and that is the head of the Office of Special Counsel, but he is neither an Inspector General or a Special Counsel like Jack Smith was.  His name is Hampton Dellinger.

Briefly, the Office of Special Counsel exists to protect whistleblowers by enforcing the laws protecting them, and to enforce the Hatch Act by pointing out prohibited political activity by federal employees, and, finally, to resolve complaints from veterans who claim discrimination after they are discharged from military service to the United States.  (You can see at a glance why he was dismissed, I think.)

According to the law setting up the Office of Special Counsel, the "Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office."  Apparently the EMail sent only last Friday from the White House's Director of "the Presidential Personnel Office" (who gave them any authority in the matter?) did not recite any of these reasons, even if it could have.

The EMail only said, basically, "You're fired," reminiscent of a line once written for entertainment in a TV show called The Apprentice.

On Monday of this week, Hampton Dellinger filed a lawsuit challenging his purported firing.  U.S. District Judge Amy Berman Jackson entered a Temporary Restraining Order barring the firing until she can decide the issue at a full hearing.  It is noteworthy that before Judge Jackson ruled, she asked the government lawyer, one Madeline McMahon, if the government would pause the firing until Judge Jackson could sort things out.  Ms. McMahon told the judge that she did not have the government's authority to do that.

Mr. Dellinger's case presents a greater issue than his own independence, as important as that is.  His case holds up the belief central to all the actions of the people who are currently in charge of the United States, or think that they are.  Their core belief is that they can do anything they want with the Executive Branch in their pocket.  In their minds, there is no Congress and no Supreme Court and nothing else.  Only them.  It is fair to say that this is their theory of Unitary Executive in action.

The courts may decide in individual cases whether a given agency action is unlawful and should be set aside because, perhaps among other things, it is "contrary to constitutional right, power, privilege, or immunity."  With our own eyes and ears, you and I have seen and heard enough by now to decide that this action is action against the Constitution.

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter.  I published an earlier article on this subject on Substack on Lincoln's Birthday before the news came out of the new lawsuit filed by the Inspectors General.

Review of federal agency action under the Administrative Procedure Act .... Continued

In this post: Federal Courts review when federal agency action, findings and conclusions are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

United States District Courthouse (E. Barrett Prettyman Courthouse) in Washington, D.C.  (Wikimedia Commons)

When a federal agency takes action, or makes findings and conclusions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," federal judges may act to make them invalid.  What is arbitrary and capricious in particular fills books with federal decisions.

One of the actions, findings and conclusions at issue today is the access granted by various federal agencies to their computers by private individuals who have no apparent federal government role or any known federal office.  This has happened, for example, at the Department of Education.  A pending lawsuit filed on February 7, 2025 in the United States District Court for the District of Columbia alleges that these computer systems include sensitive internal information related to federal student aid.  The student aid has previously been given by the federal government, such that if stopping a small part of federal spending that is the student loan program, access to sensitive information stored on the Education Department's computers is not going to reach that goal, if that should be the intent.

I do not know what the intent is, actually.  I have not seen any findings of fact or conclusions issued by the Department of Education about the access of private individuals to the sensitive information that is contained in the Department's computers about student loans.  So I do not know the intent behind allowing the access.

I know only what I have read in the newspapers.  I know only that the Department of Education has acted to allow the access.

The Department's action has been challenged in a lawsuit by, among others,  students who received student loans and whose information is on file in the Department's computers.  The students see this access as arbitrary and capricious.

They also allege that the Department's action in allowing access to sensitive information stored on the Department's computers about students who applied for and received student loans, is contrary to law, violates their privacy rights, and exceeds the Department of Education's statutory authority.

It will be worth following the development of this case as it chugs along, particularly but not alone about the "arbitrary" and "capricious" issues it raises.

Above all, it will be interesting to hear and read how the federal government lawyers can contend with a straight face that the Department's action is "reasonable" or the opposite of "arbitrary," or that the Department's action in this regard is "stable" or the opposite of "capricious," especially when this action has never been taken before now.

On to the next insallment of "A Review of Judicial Review."

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter.  I published an article on this topic on Substack on Tuesday, February 11, 2025.

A brief review of the scope of judicial review: The beginning.

The Administrative Procedures Act

(Author Photo)

So much has happened in the past 3 weeks that it's tough for you and me to keep track of it all.  Even narrowing down our search to the actions of federal agencies may not help very much.

All of this makes it well worth our while to consider the scope of judicial review under the Administrative Procedure Act.  That is the law that governs the actions of federal agencies.  It has been invoked to great effect in the past 4 years, for example.  What can courts do now, in short, with agency actions and refusals to act?

It is also well worth our while to take things one at a time under the present circumstances.  In the face of so many things to look at, let's look at these things one at a time here.

Under the Administrative Procedure Act, a court of competent jurisdiction can "compel agency action unlawfully withheld or unreasonably delayed."

For example, a federal judge has ordered the United States Treasury Department to restrict access to its computer records.  Download New York and 19 States v. Donald J. Trump Order filed Feb. 8 2025 Doc. No. 6 (S.D.N.Y. Case No. 1.25-cv-01144-JAV).  This decision came in a case in the Southern District of New York, but the ruling is similar to much the same rulings in other cases such as in the District of Massachusetts.

It is unclear whether that agency will comply.  In the event it does not comply, there is an issue whether, under the Administrative Procedure Act,  the judge can compel the agency to comply and no longer to "unlawfully withhold" that agency action, i.e., to refuse to restrict access to its computer records.

Of course, there are will be other issues in that event, including the federal courts' powers of contempt.  The federal courts' powers of contempt include the power of holding a defendant in criminal contempt, possibly sending him or her to jail if they refuse to comply with a federal court's orders.  But that is not our focus here, not at this time.  Our focus now and here is on the Administrative Procedure Act authority for a federal court to "compel agency action unlawfully withheld or unreasonably delayed."

In the same case, the same federal judge has also ruled that all copies of all records taken by private individuals should be destroyed immediately.  There is a question, at least under this law, whether this federal judge has jurisdiction in this case over the private individuals in question.

Parenthetically, if federal courts do not have jurisdiction over those private individuals in any case, your guess is as good as mine where our records end up.

This the beginning of our investigation into the scope of judicial review authorized under the Administrative Procedure Act.  This investigation was inspired by an excellent summary of many such issues by Michael Hiltzik in his recent column, These Are the Legal Obstacles That Could Stop Trump's Assault on Government in its Tracks, LOS ANGELES TIMES (online Feb. 6, 2025) ($).

To be continued in the next installment of "A Review of Judicial Review."

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter.  I also published an article on this subject on Substack on February 10, 2025.

Focus on the Exclusion in the Policy in Front of You.

In the Ninth Circuit's subsequent affirmance of a 2024 District Court in a case out of Washington State, the focus remained on the insurance policy's exclusion of loss caused by any underground water.  The importance of the case is, with all respect to Washington State law, the Court's focus on the precise language of the exclusion in the policy before it, despite the Court's previous holding that other exclusions would also apply in the case at bar:

          Both “improper compaction” and “earth movement” are “Losses Not Insured” under the Kaufmans’ policy with State Farm. Even accepting arguendo that the “improper compaction” exclusion is subject to an ensuing loss provision, the “water ... below the surface of the ground” exclusion otherwise operates to preclude coverage. The policy’s plain text excludes loss caused by any underground water. The term “water” in the relevant exclusion is modified only by the phrase “below the surface of the ground” and the provision does not otherwise exempt or distinguish underground water released by specific sources. The Kaufmans’ loss is, therefore, excluded in any event.

Kaufman v. State Farm Fire & Cas. Co., No. 23-35424, 2024 WL 3508054, at *1 (9th Cir. July 23, 2024) (emphasis by the Court).

Underground water exclusions of the kind at issue in Kaufman are discussed in the reported cases assembled in § 7:7 of Volume 1, CATASTROPHE CLAIMS / INSURANCE COVERAGE FOR NATURAL AND MAN-MADE DISASTERS (Thomson Reuters November 2024 Edition, 2025 Edition forthcoming).

Please read the disclaimer.  ©2025 Dennis J. Wall.  All rights reserved.  Interested in many things including Claims and Bad Faith Law?  Sign up for a free subscription to my Substack newsletter.