Today the Court granted
certiorari in two cases of interest to the business community. Amicus briefs in
support of the petitioners are due on July 23, 1998, and amicus briefs in
support of the respondents are due on August 24 (because August 22 is a
Saturday). Any questions about these cases should be directed to Evan Tager
(202-778-0618) or Alan Untereiner (202-778-0656) in our Washington
VI of the Civil Rights Act — Private Right of Action. Title VI of the Civil Rights Act of 1964
provides that no person shall "be subjected to discrimination under any program
or activity receiving Federal financial assistance." 42 U.S.C. § 2000d et
seq. Section 602 of Title VI authorizes each federal agency that disburses
financial assistance to issue regulations to further this anti-discrimination
goal. 42 U.S.C. § 2000d-1. Pursuant to that authority, the United States
Environmental Protection Agency (EPA) prohibits recipients of federal funding
from using "criteria or methods * * * which have the effect of subjecting
individuals to discrimination * * *." 40 C.F.R. § 7.35(b). The Supreme Court
granted certiorari in Seif v. Chester Residents Concerned for Quality
Living, No. 91-1620, to decide whether there is a private right of action
under such "discriminatory effect" regulations.
The City of Chester,
located in Delaware County, Pennsylvania, has approximately 40,000 residents, of
whom 65% are black, while the county has approximately 500,000 residents, of
whom 6.2% are black. Under the Solid Waste Management Act, Pa. Stat. Ann. tit.
35, § 6018.101 et seq., the Pennsylvania Department of Environmental
Protection (DEP) has authority to issue permits to operate waste processing
facilities. Since 1987, DEP has issued five waste facility permits for sites in
the City of Chester that have a total annual waste capacity of 2.1 million tons.
During that same time, for the rest of Delaware County DEP issued permits for
two sites with a total annual capacity of 1,400 tons.
After DEP issued a permit
to Soil Remediation Services, Inc. to operate a soil treatment site in the City
of Chester, the citizen's group Chester Residents Concerned for Quality Living
(CRQL) filed an action alleging that DEP violated the EPA's "discriminatory
effect" regulations. The district court dismissed the claim, holding that no
private right of action exists under which CRQL could enforce the EPA's
"discriminatory effect" regulations. The Third Circuit reversed. 132 F.3d 925
(1997). Applying Cort v. Ash, 422 U.S. 66 (1975), the court found
that Title VI's legislative history, structure, and purpose supported inferring
a private right of action. With far less analysis, nine other circuits have also
allowed private litigants to enforce "discriminatory effect" regulations.
This case has already
attracted a great deal of amicus interest. The United States, along with the
Trial Lawyers for Public Justice and the Southern Poverty Law Center, filed
briefs in the lower courts supporting CRQL. The Washington Legal Foundation
filed a brief in support of petitioners, urging the Court to consider whether
"discriminatory effect" regulations are consistent with the Equal Protection
Clause of the U.S. Constitution.
The recognition of a
private right of action under Title VI could unsettle the expectations of
businesses that have dealings with federally funded state and local agencies.
Accordingly, such businesses should have a significant interest in the outcome
of this case.
Emergency Medical Treatment and Active Labor Act — Improper Motive
Requirement. Under the Emergency Medical Treatment and Active
Labor Act (EMTALA), 42 U.S.C. § 1395dd, hospitals must provide to any person who
arrives with an emergency medical condition such medical examination and
treatment as are necessary to stabilize the condition, or must transfer the
patient to another medical facility in accordance with the procedures set forth
in the statute. The Supreme Court granted certiorari in Roberts v.
Galen of Virginia, Inc., No. 97-53, to decide whether a plaintiff suing a
hospital under EMTALA must prove that the hospital acted with an improper
Wanda Johnson was treated
at a hospital operated by Galen of Virginia (Galen) for injuries sustained when
she was hit by a truck. The Galen staff treated her injuries for two months and
then arranged for her transfer to a nursing home. At the time of the transfer,
Johnson was suffering from a urinary tract infection for which she had begun
treatment with antibiotics. Johnson's guardian, Jane Roberts, subsequently
brought suit under EMTALA, alleging that Johnson was transferred before her
condition had been stabilized and in violation of Galen's discharge protocols.
Roberts also claimed that Galen's administrators expedited Johnson's discharge
because Johnson was unable to pay for continued care. Galen disputed the claim,
contending that the physician who authorized Johnson's discharge had no
knowledge of her financial status.
The district court granted
summary judgment to Galen. Under the Sixth Circuit's decision in Cleland
v. Bronson Health Care Group, 917 F.2d 266 (1990), the district court
explained, plaintiffs suing under EMTALA are required to prove that the
discharging physician acted because of an "improper motive" (such as the
patient's inability to pay for medical care). Roberts, however, had failed to
come forward with any evidence that the hospital employee who discharged Johnson
had acted with an improper motive.
The Sixth Circuit
affirmed. 111 F.3d 405 (1997). Noting that the EMTALA was not enacted to
supplant state law malpractice actions, the Sixth Circuit held that to withstand
summary judgment a plaintiff must come forward with something beyond a
hospital's breach of the applicable standard of care. Id. at 409. The
Sixth Circuit also rejected the proposition that EMTALA liability may attach
upon mere proof that the plaintiff received disparate medical treatment.
Ibid. The court reasoned that a disparate treatment standard would
require hospitals to argue that they routinely subject all patients to
the same (allegedly negligent) treatment that the plaintiff received. Id.
at 409-410. To avoid that result, and to preclude reliance upon EMTALA as a
federal remedy for malpractice, the Sixth Circuit held that a claim under EMTALA
requires proof that a patient's discharge was caused by an improper motive.
Id. at 411.
The Sixth Circuit's
"improper motive" requirement conflicts with decisions of the First, Fourth,
Eighth, and District of Columbia Circuits. See Correa v. Hospital San
Francisco, 69 F.3d 1184 (1st Cir. 1995), cert. denied, 116 S. Ct. 1423
(1996); Power v. Arlington Hosp. Ass'n, 42 F.3d 851 (4th Cir.
1994); Summers v. Baptist Med. Ctr. Arkadelphia, 91 F.3d 1132 (8th
Cir. 1996); Gatewood v. Washington Health Care Corp., 933 F.2d
1037 (D.C. Cir. 1991).
The case should be of
interest to all hospitals that offer emergency medical evaluation and
* * * * *
The Court today also
handed a major victory to companies threatened with environmental liability for
the acts of subsidiary corporations. In United States v. Bestfoods
(f/k/a CPC International, Inc.), No. 97-454, the Court unanimously rejected
the government's contention - which had succeeded in the First, Second, Third,
and Fourth Circuits, see slip op. 7 n.8, and was pressed vigorously in the
Supreme Court - that a parent corporation may be held indirectly liable under
CERCLA for the operations of its subsidiary if it exercises some degree of
"control" over that subsidiary short of that necessary to permit piercing the
corporate veil. The Supreme Court wrote: "[t]he Court of Appeals was * * *
correct in holding that when (but only when) the corporate veil may be pierced,
* * * a parent corporation [may] be charged with derivative CERCLA liability for
its subsidiary's actions." Slip op. 10 (footnotes omitted). Although the Court
remanded the case for a determination whether, on its particular facts, the
parent was directly liable as an operator, the Court's rejection of the
government's broad legal position was square and unanimous.
Mayer, Brown & Platt
briefed and argued this case for respondent Bestfoods.
Copyright 1998 Mayer, Brown & Platt. This Mayer, Brown
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any action with respect to the matters discussed herein.
This Mayer, Brown, Rowe & Maw Supreme Court Docket Report provides information and
comments on legal issues and developments of interest to our clients and
friends. The foregoing is not a comprehensive treatment of the subject matter
covered and is not intended to provide legal advice. Readers should seek
specific legal advice before taking any action with respect to the matters