June Wrap-Up: Opioid non-disclosure and Obamacare non-discrimination
The Sixth Circuit wrapped up June with two weeks of oral arguments, some of which we’ll feature later this week. And the Circuit got a pat on the back from the Supreme Court, which affirmed its decision striking down a Tennessee liquor law under the “dormant” Commerce Clause. (Stay tuned for more on the Circuit’s October Term 2018 performance, as well.)
For the month overall, the court heard 48 oral arguments, published 28 opinions, and issued 54 unpublished opinions. Here’s June in review:
Opioid data: Public or protected? An Ohio opioid MDL has attracted national media attention for its handling of lawsuits against drug manufacturers, distributors, and pharmacies by 1,300 cities, counties, tribes, and other public entities. For use in the litigation, the plaintiffs obtained years of data from the DEA’s “ARCOS” database. But—the plaintiffs being public outfits subject to state open-records laws—media companies sought the underlying data regarding buyers, doses, and much more. The district court initially had allowed this information to be filed under seal. When challenged, it agreed with the DEA that good cause existed to protect the confidential business and law-enforcement information in all present or future public records requests.
In HD Media v. DEA, the Washington Post and a West Virginia newspaper publisher (whose paper won a Pulitzer for its opioid reporting) prevailed in a divided interlocutory decision under the collateral-order doctrine. Judge Clay’s opinion, joined by Judge Griffin, held that the district court had abused its discretion in categorically denying public records requests for pharmaceutical companies’ sales data. “[S]pecific transactional data,” the court held, “has proved extremely effective and consequential in calling attention to the horrors of the opioid crisis.” On remand, the district court may consider whether “particular pieces of ARCOS data that relate to specific ongoing investigations should not be disclosed,” but may not enter a “blanket, wholesale ban.”
Judge Guy issued a separate concurrence and partial dissent. Noting the newspapers declined to file a FOIA suit directly against DEA, Judge Guy would have enforced the protective order that allowed plaintiffs access to DEA’s data—for litigation, but not for further disclosure.
Executive functioning — In Dennis v. Warden, a unanimous panel (Sutton writing; Rogers and Readler joining) held that a President’s commutation of a sentence “does not create a new executive judgment that fully replaces the judicial judgment.”
The question arose when President Obama commuted Quincy Dennis’ life sentence for various drug offenses to 30 years. Dennis filed a habeas petition arguing that he should have faced only 20 years. But the district court held that it had no authority to question the commuted sentence because it constituted an executive judgment. The Sixth Circuit, considering Dennis’ pro se appeal, disagreed: rendering a judgment is a judicial function, while carrying it into effect is an executive function. Thus the President’s commutation of the sentence had no effect on the court’s jurisdiction to hear Dennis’ appeal. Yet after all that, the panel denied the habeas petition on the merits.
Obamacare non-discrimination – Doe wanted to pick up his HIV meds at his local out-of-network pharmacy. But his insurance plan required him to receive the high-cost drugs through the mail or at a specialty pharmacy. He sued BlueCross BlueShield of Tennessee for discriminating against him on the basis of disability. In Doe v. BlueCross BlueShield of Tennessee, a unanimous panel (Sutton again writing; Guy and Nalbandian joining) determined that the Affordable Care Act’s incorporation of § 504’s non-discrimination provision under the Rehabilitation Act does notprohibit disparate-impact discrimination. It bars discrimination “solely by reason of her or his disability,” and therefore does not cover actions taken for nondiscriminatory reasons, no matter how disparate their impact.