President's weekly report — April 24, 2015

Tort reform in Washington State — the virtues of at-will employment

We filed this amicus brief in Rickman v. Premera Blue Cross in the Washington Supreme Court. While working for Premera, Ericka Rickman was fired for nepotism, because she allegedly favored her son in compensation and other matters in violation of company policy.  Before she was fired, Premera and Blue Cross were in the process of a merger, and there were discussions of a new business plan.  While she had nothing to do with the decision-making over these matters, she claims to have expressed her concern to her supervisor that the plan would violate federal law.  That plan was never adopted.  Nevertheless she brought an unlawful termination suit, claiming that her firing was in retaliation for her suggesting that the nonadopted plan might be unlawful. As our blog explains, exceptions to the doctrine of at-will employment should be narrowly construed. Otherwise, the benefits of a broad doctrine of at-will employment — benefits that accrue both to employers and employees — would be lost.

Also in the Washington Supreme Court, we filed this amicus brief in Rose v. Anderson Hay and Grain.  There a truck driver was fired after he refused to work beyond 60 hours and falsify records about his work — allegations that if true would point to a violation of Commercial Motor Vehicle Safety Act.  Rose could have filed a claim with the Department of Labor which would have afforded him relief including back-pay and other damages.  However, because he missed the deadline to file with the Department, he sued for unlawful termination.  However, the exception to at-will employment doesn’t include circumstances where there are adequate statutory remedies available.  And, just as we argued in Premera, the public policy would be poorly served by a further evisceration of the doctrine of at-will employment.

Property Rights — Oral argument in the dancing raisins case

Oral argument was held this week before the Supreme Court of the United States in Horne v. Department of Agriculture.  That’s the case where a raising handler was heavily fined for selling raisins on the open market, rather than giving between a one-third and one-quarter of the crop to an entity known as the “Raisin Advisory Committee.”  The raisin owner is arguing that this forced confiscation amounts to a taking of his property. We filed this amicus brief. Our blog’s analysis on the argument is here.  As the transcript shows, a good number of the justices were quite skeptical of the program and the government’s arguments. You can also listen to the argument here.  It’s worth a listen.  While you might expect Chief Justice Roberts to say something along the lines of “This is different because you come up with the truck and you get the shovels and you take their raisins, probably in the dead of night,” it is even more enlightening to hear Justice Kagan call the program a “weird historical anomaly.” We should have a decision by the end of June.

Property Rights — Illegal taxes on development

We received an adverse trial court ruling in Building Industry Association of the Bay Area v. City of San Ramon.  That’s the case where the City adopted a Mello-Roos taxing district on all vacant land in the City.  The trouble is that such taxing districts are supposed to help pay for new infrastructure and the like for new development, not infill projects of vacant property randomly scattered throughout the City.  Here the owners of new homes on the lots would receive the exact same services as their immediate next-door neighbors.  We plan on filing an appeal.

Environment — Challenge to air regulations turned back

The D.C. Circuit Court of Appeals turned back our challenges in this opinion to EPA’s greenhouse gas regulations for light duty and heavy duty vehicles in Delta Construction v. EPA and California Construction Trucking Association v. EPA.  We’ve argued that these regulations, which will have far-reaching impacts on the light and heavy truck vehicle industries, are unlawful because they were not submitted to EPA’s Science Advisory Board before being adopted.  Without reaching the merits of our claim, the Court held that our clients really didn’t suffer any injury because even without the EPA rule, other rules from the National Highway Traffic Safety Administration  would have had an equal impact on the truckers.  We are considering our options.