Amy, Tell Me What You’re Gonna Do: Part 3

Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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33 Responses

  1. Oscar Gordon says:

    As was said before, when it comes to excusing government actors, she aligns to her mentor.Report

  2. Aaron David says:

    She does tend to favor the state over the citizen, which while unfortunate, this seems to be the trend these days. With the levels of administrative law reaching even deeper lows and truly rivaling Jim Crow in its destructiveness to society, I too find this disconcerting. But, so far she seems to be, ever so slightly, of a more originalist framing which I prefer.Report

  3. Doctor Jay says:

    Regardless of any legal standing I find the stance that “nobody should be expected to read all that” to be galling to a high degree. We are expected to read all sorts of things that the government sends us.

    Meanwhile the government stands on its head to avoid paying 300 bucks to a woman who seems to need it. I’m sure it spent much more than that defending this case. Barrett is fine with this, it seems.Report

    • Oscar Gordon in reply to Doctor Jay says:

      That harkens back to the whole attitude of “government agents tasked with enforcing the law can not be expected to know the law”. But damn a citizen if they try to claim ignorance of the law.Report

  4. Another terrific writeup.Report

  5. After today, we have to wonder if she’s another vote to overturn Obergefell.Report

    • CJColucci in reply to Mike Schilling says:

      That would be reckless. Hundreds of thousands, possibly millions, of same-sex couples are now legally married. You just can’t unscramble that many eggs.Report

      • I know that, and you know that, but Thomas and Alito don’t seem to.Report

      • Chip Daniels in reply to CJColucci says:

        These are people who go around saying that women should submit to their husbands, who are viciously fighting against the Voting Rights Act and the Lochner decision so yeah reckless social engineering is pretty much their thing.Report

      • North in reply to CJColucci says:

        Even if Barrett were that kind of wingnut I am doubtful that Chief Justice Roberts would have much difficulty recruiting Gorsuch and even Kavanaugh to block such a move. Anyone could see how badly overturning Obergefell would redound on social conservative causes in general and the Supreme Court specifically.Report

        • Chip Daniels in reply to North says:

          Underestimating the radicalism and extremism of Republicans is how we arrived where we are today.Report

        • Mike Schilling in reply to North says:

          Once they kill the rest of the VRA, it won’t matter.

          The Supreme Court on Friday added a major voting rights case to its docket and will review whether Arizona laws common in other states discriminate against racial minorities.

          The U.S. Court of Appeals for the 9th Circuit found that Arizona’s restrictions hurt minority voters in violation of the Voting Rights Act, although it allowed them to remain in place for the November election while litigation continued. The high court’s new term begins Monday.

          Democrats had asked the Supreme Court to stay out of the fight and let the 9th Circuit’s decision stand, and fear that a contrary decision could result in a further weakening of the VRA’s protections by the increasingly conservative court.


      • Philip H in reply to CJColucci says:

        Pretty sure Mitch McConnell just said “Hold my beer …”

        They will happily unscramble it, just like they happily unscrambled the VRA.Report

  6. greginak says:

    Thanks. Interesting stuff as always.Report

  7. DensityDuck says:

    Em Carpenter: “how can this heartless bitch possibly rule against this poor, poor person just because their court filing wasn’t in exactly the 100% anal-rententive proper format down to the individual punctuation marks? Courts should be required to accept anything that a litigant hands them and treat it as valid, even if it’s a hundred pages of closely-spaced handwritten text that turns out to be a direct transcript of the US Constitution!”

    Also Em Carpenter: “haha this DICKHEAD failed to file the proper cover sheet on his motion and he obviously deserves to pay $63,000 for that, the court procedures were clear and it’s his fault he failed to follow them”Report

    • Em Carpenter in reply to DensityDuck says:

      That is the most deliberately obtuse of all the ridiculous, animosity-driven criticism you’ve lobbed at me.

      FIRST OF ALL: the government’s refusal to read the a attachments was only a small part of the reasoning- she very clearly set forth in her letter that she had out of pocket damages and was seeking restitution, which was reason enough not to dismiss her claim.

      SECONDLY: The man in the second story was an actual lawyer who should know better, not a person in poverty trying to navigate an intricate system without the help of someone who knows how to do it. As I said in the comments on that story:

      “Also, he’s a lawyer, so he should have known the rules for civil court filings, or looked them up if he didn’t. I’m not surprised they didn’t have much sympathy for him on the missing cover sheet. Cover sheets are a pretty standard requirement.
      If Beck was a pro se lay person, I would be in agreement that the court was unreasonably strict and perhaps unfair, but lawyers are held to higher standards, even when they represent themselves.”

      So tell me again where I have been at all inconsistent or hypocritical in my opinion of this matter?Report

      • DensityDuck in reply to Em Carpenter says:

        “tell me again where I have been at all inconsistent or hypocritical in my opinion of this matter?”

        You went to the mattresses over charging some dude tens of thousands of dollars for filing the wrong cover sheet, so clearly the forms and processes of court activity are quite important to you.

        But this time it was the court’s responsibility to solve everything, to take this rat’s nest, this “60-ish pages” of blather, this personal letter that purported to be a legal filing to a court, and extract both the claim and an actionable case for it. This time it’s not a “pro se litigants lol” story.

        And you’re interpreting this as Barrett thinking “THUH GUMMINT’S MER EMPERTENT THEN YUUE” rather than “this is not Judge Judy, don’t waste our god damn time”.Report

        • Em Carpenter in reply to DensityDuck says:

          Notwithstanding your absurd mischaracterization of both of these cases, you still have not shown anything inconsistent about my opinions.

          “went to the mattress”. Give me a goddamn break. As if court forms and process are things I passionately invoke at every opportunity rather than something I have discussed here twice.
          You’ve shown two examples, which are clearly distinguishable by the knowledge level of the person involved and what should be expected of them.

          I seriously do not understand why you have such a problem with me, but clearly you do. Seek help with your fixation.Report

          • DensityDuck in reply to Em Carpenter says:

            You posted over a thousand words talking about this case, one of your longer analyses of Barret’s jurisprudence, but sure, I’m the one with the “fixation”.

            “You’ve shown two examples, which are clearly distinguishable by the knowledge level of the person involved and what should be expected of them.”

            Firstly, these are examples you chose, ma’am, these are things you thought relevant, which is why I’m discussing these and not some completely different examples. (And if you’d rather not have people discuss your posts, then turn off the comments.)

            Secondly, the whole idea of the court system is that all are equal before it. If you want to say “the court system has become so full of procedure and jargon and unwritten-but-mandatory practice that it’s impossible for a layperson to navigate successfully and I don’t think that should be the case but Barret is okay with it”, then fine, but it’s hard to then argue that the dude who had to pay an extra sixty-three thousand dollars for filing the wrong sort of cover sheet got what he deserved.

            I mean, you’re telling me you want the court officers to pick and choose who Deserves Help and who Ought To Be Able To Handle Themselves, you really think that’s gonna turn out well?Report

  8. Fish says:

    Good stuff, Em. Thanks for writing, and looking forward to part 4.Report

  9. DavidTC says:

    A law saying ‘You must ask the Federal government to fix your problem with money before suing them’ is one of those laws that sounds like ‘tort reform’, but is actually really really stupid if the way that is done is ‘If you did not ask, your complaint is then dismissed’.

    If the Federal government wishes to require people to people speak to it before opening a suit, it needs to put such a interaction _into the court system_. It needs to say ‘If this has not yet happened, the suit should to be paused while it does’. Not ‘jump through all the hoops in the correct order or we dismiss it all’.

    It’s especially stupid here because SHE DIDN’T SUE THE FEDERAL GOVERNMENT. She sued the ‘University of Illinois Mile Health Center’. How the hell was she supposed to know that the Federal government would take the case over?

    ‘You didn’t notify the agency you were required to notify before this lawsuit, so the case is dismissed. You should have notified them before you sued _someone else_ and the agency hijacked the case’ is utter bullshit. Just straight up bullshit.

    Especially when you add the fact in she actually _had_, somewhat accidentally, talked to the Federal agency she needed to ‘notify’, and even talked about wanting to get repaid for her expenses! She just had no idea they would be the people who would be on the other side of her lawsuit, so didn’t formally write ‘I ask for this money from you directly’.

    This is exactly the sort of rulings I expect from ‘conservative’ judges. Because, you can’t sue the government, you don’t have a right to, which is 100% true. That is correct. And to them, this fact means to conservatives, when the government sets out rules about how you _can_ sue it, those rules are allowed to be completely arbitrary and nonsensical gibberish.

    I don’t even have an opinion on what level people should be allowed to pursue tort claims against the Federal government, but I do think if the system allows it, it has some sort of requirement to be _somewhat rational and fair_, and not allow the Federal government to hijack a case, thus making it so it’s no longer in compliance with something it wasn’t actually be required to be in compliance with to start with, and then forcing it to be dismissed.

    Conservatives apparently do not agree with that.Report

    • Jaybird in reply to DavidTC says:

      Just the corporatist ones.

      My take is that ACB would have sided with New London instead of Kelo.

      Too many of those damn types on the court already.Report

      • George Turner in reply to Jaybird says:

        I had dinner with Kelo. She’s very nice but very shy.

        As to David’s view, it isn’t that “suing the government” is anti-conservative. In fact, most conservative would happily sue it into oblivion, whereas it’s the liberals who would defend big centralized government uber alles. However, both types of judges are bound by rules, laws, and precedent. If a liberal legislature has put in place a bunch of hoops that people have to jump through, to make sure farmers can’t sue the EPA or the Army Corps of Engineers, for example, then everybody has to jump through hoops.Report

        • DavidTC in reply to George Turner says:

          And people that _don’t_ sue the Federal government, but their _state_ university’s health center…they have to jump through hoops they don’t know about?Report

          • Em Carpenter in reply to DavidTC says:

            Varies by state, I’m sure. But where I live, you have to give 30 days notice prior to suing a state government entity.
            In this case, the medical center at the state university was federally funded. I am sure Chronis had no idea about that.Report

  10. PD Shaw says:

    This is not what happened. She filed a medical malpractice lawsuit, for which Illinois law requires an affidavit from the plaintiff swearing that she consulted a physician and a written report from that physician concluding that negligence has occurred in the course of treatment. The requirements are detailed and apply equally to pro se plaintiffs and those representing by counsel even if she was only asking for $332.

    In a sense she lucked out. Because she went to a medical provider that cares for underserved populations, the federal government acts as malpractice insurer and is not subject to state restrictions on medical malpractice lawsuits. The requirement of pre-presentment review includes review by the federal government’s medical professionals.

    (At this point, I want to emphasize that I’ve enjoyed this series and check back every week to OT to read Em’s columns. This was quite a time-consuming series, and I took an interest in this one case based upon my own interest in how Illinois deals with pro se plaintiffs in complex litigation, and I’ve read the district court opinion that followed Barrett’s opinion from which a lot of the more negative background is developed.)

    At the same time, the government filed a motion to dismiss her lawsuit for failing to exhaust administrative remedies, the government attorney e-mailed the plaintiff to inform her how and where to file her administrative claim, presumably giving her the agency’s form to fill out. Once her case was dismissed by the district court, she filed both an administrative claim with DHHS and an appeal to the Court of Appeals.

    This posed an awkward procedural issue, Chronis is asking the Court of Appeals to order the District Court to review her administrative claim that DHHS didn’t recognize as a claim, while at the same time DHHS is reviewing a claim they do recognize. If DHHS approves the claim, the appeal is moot, if they deny the claim then it will probably will end up with the District Court Judge anyway. I think the consensus legal view would be to put the Court of Appeals decision on hold to allow the administrative claim to proceed, keeping DHHS honest.

    The Court of Appeals appointed a attorney to represent her, which she fired. The attorney continued as an amicus curiae to advocate her position.

    On October 31, 2018, DHHS denied her claim. She had six months to challenge the decision. What the Court of Appeals knows about this is unclear. At oral argument on May 29, 2019, the government attorney stated that an administrative claim had been filed and Barrett writes in her opinion that she “can still file a timely suit under the Federal Tort Claims Act if the agency denies her claim.” From the October 31, 2018, denial she filed an untimely suit, which was dismissed on May 11, 2020 by a Clinton appointee, who lists many of the unfavorable factors to her claim I mention here.

    As far as Barrett, I wonder why this needed to be a published decision (precedential) given the odd factual background here, and this is possibly what provokes the dissenting opinion. In a footnote, the dissent points to the “elephant in the room,” that plaintiff’s allegations “might, at times, appear unreasonable to judges who are used to the more staid, logic-driven arguments of lawyers,” but we must suspend judgment of the veracity of the claims at this juncture. This sounds like the letter and sixty-pages of e-mails do not provide a favorable prognosis of her case, but the dissent is cautioning that the court’s role is not to evaluate the case at stage one; that’s for stage two. At stage two, her $332 claim can be rejected. And the trial judge and the majority of the Court of Appeals are leaning.Report

  1. October 7, 2020

    […] Part 3 covering Federal Tort Claims: Chronis v. The United States and three cases involving the Fourth Amendment can be read here […]Report

  2. October 8, 2020

    […] her approach to legal analysis, beyond the headlines and partisan spin. Part 1 can be found here. Part 3 can be found here. Part 4 can be found […]Report

  3. October 31, 2020

    […] This is Part 4 of a series examining the opinions and writings of Judge Amy Coney Barret. Part 1 can be read here, Part 2 can be read here, and Part 3 can be read here […]Report

  4. August 15, 2021

    […] picture of what could be expected from her. I spent hours on it, and I wrote a four part series for this very website, tweeted out far and wide for anyone who wanted to know how Barrett might interpret the […]Report