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Petitions of the week

Two cases alleging disability-based discrimination

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the viability of certain types of disability-based claims under three federal statutes. One petition involves the Americans with Disabilities Act. Another involves the interaction of the Affordable Care Act and the Rehabilitation Act.

Because an on-the-job arm injury made it harder for her to conduct health inspections for Weld County, Colorado, Laurie Exby-Stolley requested an accommodation in the form of a new position with tasks she could perform. After the county told Exby-Stolley that her proposed arrangement would be unfair to other employees, she resigned. Exby-Stolley then sued the county under the Americans with Disabilities Act of 1990 for failing to accommodate her injury. Her claim faltered in district court because the jury determined that the county had not terminated her or subjected her to an adverse employment action. The en banc U.S. Court of Appeals for the 10th Circuit reversed on the ground that Exby-Stolley did not need to prove that the county took an adverse action, only that the county failed to accommodate her. Arguing that the U.S. courts of appeals are “nearly evenly divided” on this issue, the county asks for the justices’ review. The case is Board of County Commissioners of Weld County, Colorado v. Exby-Stolley.

CVS Pharmacy Inc. v. Doe involves a class action brought under Section 504 of the Rehabilitation Act of 1973 and Section 1557 of the Patient Protection and Affordable Care Act. The class members, who are HIV-positive, have health insurance through their employers. Those health plans, in turn, rely on CVS Caremark, a pharmacy benefits manager, to administer their prescription-drug benefits. Under the terms of their benefit plans, the class members can receive in-network prices for their HIV medications by accepting the medications by mail or by picking them up at a CVS pharmacy, but they must pay out-of-network prices at other pharmacies. CVS maintains that this policy applies to all “specialty medications.” Nevertheless, the class members argue that the delivery conditions disproportionately harm plan members with HIV or AIDS, and they demand in-network prices at their chosen pharmacies.

The class members argue that the Rehabilitation Act, which prohibits discrimination on the basis of disability by programs or activities receiving federal funds, allows for disparate-impact claims. Moreover, the ACA, which incorporates the Rehabilitation Act’s enforcement mechanisms, allows them to challenge the terms and conditions of their benefit plans. The district court dismissed the case because the delivery conditions depend on whether the patients receive specialty medications, not whether they are HIV-positive. The U.S. Court of Appeals for the 9th Circuit vacated and remanded for further proceedings on the ground that the benefit plans did not need to uniquely impact people with HIV or AIDS if the plans denied them “medically appropriate dispensing of their medications.” Arguing that the 9th Circuit deepened “a square, widely acknowledged conflict,” CVS asks for the Supreme Court’s review.

These and other petitions of the week are below:

SFR Investments Pool 1, LLC v. M&T Bank
Issues: (1) Whether the Federal Housing Finance Authority’s structure violates separation of powers and, if so, whether its conservatorship of Fannie Mae and Freddie Mac must be set aside; and (2) whether quiet title actions by FHFA, asserting that a state law foreclosure failed to extinguish the agency’s property interests, are contract claims for purposes of 12 U.S.C. § 4617(b)(12).

Warsaw Orthopedic Inc. v. Sasso
Issue: Whether a federal court with exclusive jurisdiction over a claim may abstain in favor of a state court with no jurisdiction over that claim.

AbbVie Inc. v. Federal Trade Commission
Issue: Whether the subjective element of the “sham litigation” exception to Noerr-Pennington immunity may be met by an inference from a finding that a challenged lawsuit was objectively baseless, even without evidence that the antitrust defendant actually believed the suit lacked merit or was indifferent to the outcome.

Walker v. Mississippi
Issues: (1) Whether the Mississippi Supreme Court failed to adhere to the Supreme Court’s Sixth Amendment jurisprudence requiring counsel in a capital case to conduct a thorough investigation of their client’s background and history, and that purported “tactical” decisions are only reasonable to the extent they are based on such an investigation; and (2) whether Alan Walker was denied the effective assistance of counsel in the preparation and presentation of mitigation at his capital trial.

Board of County Commissioners of Weld County, Colorado v. Exby-Stolley
Issue: Whether a plaintiff asserting a failure-to-accommodate claim under the Americans with Disabilities Act of 1990 must show that the employer’s failure to make the requested accommodation affected the “terms, conditions, [or] privileges of employment”—that is, whether the employee must show that the failure to accommodate amounted to an adverse employment action.

CVS Pharmacy Inc. v. Doe
Issues: (1) Whether Section 504 of the Rehabilitation Act of 1973 — and by extension Section 1557 of the Patient Protection and Affordable Care Act, which incorporates the “enforcement mechanisms” of other federal antidiscrimination statutes — provides a disparate-impact cause of action for plaintiffs alleging disability discrimination; and (2) whether, if Section 504 and the ACA create disparate-impact claims, such claims extend to the facially neutral terms and conditions of health insurance plans.

Recommended Citation: Andrew Hamm, Two cases alleging disability-based discrimination, SCOTUSblog (Apr. 9, 2021, 1:01 PM),