I always find it somewhat counter-intuitive when I read a judicial decision wherein the court declines to actually rule on the case. While this certainly seems appropriate under a host of circumstances, I always find myself wondering, on some level, Why did this person want to become a judge, if he or she didn’t want to decide cases?

Isn't that the whole point?

It's kind of like all of these politicians whose entire platform is anti-Government.

Or executives who don't believe in executing the law.

Or regulators who don’t believe in regulation.

The judge declining to decide a case situation becomes even more ironic when the so-called “judicial restraint” is contrary to the express language and purpose of the controlling legislation.

In one recent case, for example, Tommie Glanton, an ERISA plan participant, sued one of the plan’s administrators, a pharmacy benefits manager (or “PBM”), for breach of fiduciary duty to recover losses on behalf of his health plan. When Congress passed ERISA to protect pension and other employment benefits in 1974, it decided that any restitution or other relief awarded as a result of a breach of fiduciary duty should go, not to any individual participant, but to the plan as a whole. The plan, however, has no right to bring an action. Someone, therefore, must bring suit on behalf of the plan. Because the whole purpose of ERISA was to protect plan participants and beneficiaries from negligent or unscrupulous fiduciaries, Congress explicitly directed in the statute that a beach of fiduciary duty case could be brought by a plan participant or beneficiary. In the Glanton case, however, the U.S. Ninth Circuit Court of Appeals decided that, because the relief awarded would not go to Mr. Glanton himself, but to his health plan, he had no standing to sue under Article III’s “case or controversy” requirement, as set forth in the Constitution. Unlike most Article III decisions, which involve a challenge to Government action or inaction, this was a case between two private parties. Neither the facts nor the injury were hypothetical. There was no question about whether the health plan was injured by the PBM’s conduct. Or whether the plan had a right to relief. Or, stated another way, whether there was an actual "case or controversy" between the plan and the PBM. The only question was who could bring suit on behalf of the health plan. And the Court, in complete disregard of the clear and express language of the statute, substituted its own opinion for the judgment of Congress, refusing to allow the plan participant to bring suit.

This is the height of “judicial activism”.

By generally conservative, or Republican, or defense-oriented judges.

Posing as “judicial restraint”.

One question I have, in thinking about this decision, is: Why does a Private Corporate Defendant have “standing” to complain about whether the “right” Plaintiff is the one who filed suit?

If Mr. Glanton is the “wrong” Plaintiff, isn’t that something for the “right” Plaintiff to complain about?

Why should the Defendant PBM get off?

Similar types of questions arise in the area of Federal Preemption, such as: Why does a Private Corporate Defendant have standing to argue, (effectively on behalf of the Federal Government), that a State Court or State Law is interfering with the Federal Government’s Supremacy?

Aren’t these Corporate Defendants arguing that they should be regulated by the Federal Government precisely because the Federal Government is, for whatever reason, not regulating them?

Why do many of the so-called “conservative” judges construe States’ Rights broadly under the Tenth Amendment and the Commerce Clause, but then narrowly under the Supremacy Clause?

(And, of course, why do some of the so-called “liberal” judges construe States’ Rights broadly in terms of Federal Preemption, but then narrowly under the Commerce Clause?)

What about the Separation of Powers implications of allowing a Political Appointee who serves at the pleasure of the President supplant not only the authority of Congress, but each and all of the States?

These types of conundrums are, of course, not limited to court decisions.

Why, for example, do we elect fresh, new, outsider candidates on the very basis that they are not "Politicians"?

Why do politicians say they don’t believe in following polls – except, of course, the “poll” that put him or her into office in the first place?

Why do “States’ Rights” conservatives support the Federalization of tort law?

Why are “Personal Responsibility” champions so opposed to the notion of corporations or their executives being held responsible for their acts, practices, conduct, or the goods and services they provide?

Why are the Tough-on-Crime folks who are so offended by the notion of Criminal Defendants getting off “on a technicality” perfectly comfortable with the idea that Defendants in civil cases can, and should, get off on a technicality as often as often as they possibly can?

Why do the Private Companies who make Campaign Contributions hoping to receive Government Contracts complain about State Attorneys General hiring a private attorney on a contingent basis?

Why do “fiscally responsible” Private Companies or Politicians oppose the hiring of a private attorney to attempt to recover funds on behalf of the State at the attorney’s risk, and on the attorney’s on nickel, rather than at Taxpayer expense?

Why do “free market” conservative Republicans want to set a cap or limit on plaintiffs’ attorneys’ fees?

Why do businessmen at cocktail parties complain that lawyers only fight to win and don’t seek the truth, and then, when they are sued, look to hire the meanest, roughest, toughest, most dilatory, truth-defying litigator there is?

The list goes on.

And the answers are obvious, if you think about them.

It's all about Who.

And very little about the What or the How or the Why.




[NOTE Steve Herman argued (and lost) the Glanton case before the Ninth Circuit. Mr. Herman and the firm of Herman Mathis have been engaged in the investigation and prosecution of claims against PBMs since 2000, and continue to represent state and municipal plans, corporate plan sponsors, union trustees, plan participants and insurance companies against Caremark, Express Scripts, Medco and AdvancePCS in State and Federal Courts throughout the country. Maury Herman has been appointed Lead Counsel in In re: Express Scripts Pharmacy Benefits Management Litigation, MDL No. 1672, and Stephen J. Herman has also been appointed to the Plaintiffs’ Steering Committee. The Glanton Decision and Petition for Rehearing are posted on the left side of this page. For more information on the Glanton decision, PBM Litigation, and ERISA litigation generally, see What’s New in ERISA Litigation?. For more information on Federal Preemption, see What’s New in Product Liability?]


[NOTE - These views on the issues of Article III standing, judicial activism, Federal Preemption, judicial restraint, Separation of Powers, personal responsibility, contingency fee agreements, states’ rights, and tort reform are the personal views of Stephen J. Herman, Esq., as a practicing attorney, and are not intended to reflect the views of Herman Herman Katz & Cotlar, Herman Mathis, ATLA, AAJ, LTLA, LAJ, Public Justice, TLPJ, Loyola Law School, the Civil Justice Foundation, or any other person or organization.]