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Searching for Articles published in May 2015.
Found 15 Results.

Current Openings

Posted on May 1, 2015, Authored by ,

Ruder Ware, the largest law firm headquartered north of Madison, has its roots in the northern half of the state. Founded in Wausau in 1920, the firm has expanded to include an office in Eau Claire. We provide counsel to many of the same clients from our firm's humble beginnings. Dedicated to customer service, we invest our energy in building long lasting relationships. Ruder Ware's attorneys continue to contribute to the growth and success of a wide variety of recognized regional, national, and international companies.

The Wide Expanse of the ADA

Posted on May 8, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

A recent lawsuit filed in the federal district court for the Eastern District of Pennsylvania alleges that an employer violated the Americans with Disabilities Act (ADA) by terminating an employee who had a doctor-diagnosed sleep disorder. According to the filing, the disorder limits the hours of the day and night during which the employee is able to sleep and, therefore, work. In his recent blog, Attorney Dean Dietrich discusses how the 4th Circuit Court of Appeals (Maryland, North Carolina, South Carolina, Virginia, and West Virginia) recently opened the door for a lawsuit by allowing a case to go to trial over an assertion that a “social anxiety disorder,” which impacts a person’s ability to have personal interaction with others, should qualify for coverage under the ADA (www.ruderware.com/blue-ink-blogs/). These cases are indicative of the widening expanse of disabilities covered by the ADA.  Congress amended the ADA by passing the ADA Amendments Act of 2008 (ADAAA), which became effective on January 1, 2009. The ADAAA broadened criteria used to establish protected status, thereby creating a significantly lower standard for determination of a qualifying disability. The ADAAA requires that courts interpreting the ADA and other federal disability nondiscrimination laws focus on determining if an employer has violated such laws, rather than evaluate whether or not the impairment of an individual seeking the law's protection is within the parameters of the technical definition of the term "disability". An individual who has a physical or mental impairment that substantially limits one or more major life activities (actual disability), has a "record of" such an impairment, or is "regarded as" having such an impairment is eligible for protection by the ADA. The comprehensive list of major life activities includes, but is not limited to, performing manual tasks, sleeping, concentrating, thinking, communicating, and interacting with others. The ADA construes the term "substantially limits" broadly in favor of maximum coverage; it is not meant to be a demanding standard. The ADA provides that impairment of major life activities should be "easily found" to be a disability, as in the case of an intellectual impairment, cancer, human immunodeficiency virus (HIV), major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, or schizophrenia. In most cases, an individual with a disability will be able to establish coverage by showing substantial limitation of a major life activity outside of “working". Due to the widened breadth of the ADA in conjunction with recent court decisions, compliance with federal disability nondiscrimination laws can prove challenging for employers. Therefore, employers are reminded to exercise caution in deciding how to respond when an employee asserts he or she is suffering from a disability that prevents or inhibits adequate job performance. Further, depending upon the facts of each case, an employer may need to provide reasonable accommodations pursuant to federal laws.

IRS Announces HSA Cost of Living Adjustments

Posted on May 4, 2015, Authored by Mary Ellen Schill, Filed under Employment

Each spring (or late winter for those of us lucky enough to be living in Wisconsin), the IRS adjusts the various maximums (and minimums) for health savings accounts for the upcoming calendar year. The tax code (Code Section 223 if you want to play along at home) provides for annual “cost of living” adjustments for some of the HSA limits. Interesting, one limit that isn’t adjusted for cost of living is the catch-up contribution limit, which is set by statute at $1,000. The limits for 2015 and 2016 can be found here. Note that some limits are unchanged from 2015. How can that be, you are probably asking, don’t increases in the cost of living affect single health plan coverage as much as family coverage? The answer is found in the rules about cost of living adjustments, where the Code provides that adjustments can only be made in $50 increments, and adjustments are rounded to the “nearest multiple of $50.” So, as we revisit our grade school math classes, if the adjustment would otherwise be less than $25.00, then there is no adjustment. While January 2016 is a long ways away, it doesn’t hurt to start planning now. As they say, the early bird does get the worm!

Closed Session Public Meetings

Posted on May 4, 2015, Authored by Ruder Ware Attorneys, Filed under Local Governments and School Districts

It was recently reported that following a municipality’s convening its public meeting into closed session, some of the body’s members objected to a portion of their discussion because that portion was not adequately stated in the agenda and closed session notice. The notice for the closed session stated that discussion would be held over the strategy to be employed in current and upcoming bargaining negotiations with the municipality’s labor unions. The objection was over discussing the membership of the municipality’s bargaining team that would negotiate over wages, hours, and terms and conditions of employment. In the report, the attorney for the municipality disagreed, stating that a discussion of the membership of the bargaining team is a part and parcel of establishing a bargaining negotiation strategy. It was reported that public knowledge - including the unions - of the specific roles for each bargaining team member could be detrimental to the municipality’s upcoming negotiations with those unions. In Wisconsin, the Open Meetings Law states that “all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwise expressly prohibited by law.” Wis. Stat. §19.81(2). One of the statute’s exemptions from this provision allows a governmental body to deliberate over matters regarding collective bargaining. Wis. Stat. §19.85(1)(e). The Wisconsin Attorney General has stated that it is appropriate to convene in closed session to develop negotiating strategies for collective bargaining. (Open Meetings Compliance Guide, 2010). However, closed sessions are only for those occasions where discussion in open session would directly and substantially harm bargaining interests. (OAG, I-04-09). The elements required for going into a closed session are also important to keep in mind. The chief presiding officer must announce to all present in open session the intention of going into closed session. That person must also state the specific section of the Open Meetings law by number which allows for a closed session meeting. A motion must then be made, seconded, and a roll-call vote recorded by the custodian of the records. A majority vote of those present is required to convene in closed session. In addition, a public notice for a closed session must be provided at least 24 hours in advance (there is an exception of 2 hours in an emergency situation and for good cause) and the subject matter of what will be discussed in closed session must be reasonably specific.  There are many legal requirements and things to consider before a governmental body goes into a closed session meeting. Therefore, public officials should be cautious so as to provide appropriate notice, to follow the procedural rules for a closed session vote, and to ensure the reason for going into closed session is specifically authorized by exemptions provided for in the statute.

Trust and Estate Paralegal Opportunity

Posted on May 1, 2015, Authored by ,

Ruder Ware Law Firm, a continuously growing business law firm with offices in both Wausau and Eau Claire, Wisconsin, is seeking a talented individual to fill a Trust and Estates paralegal position in our Eau Claire location.   The ideal candidate for the paralegal position will be articulate in proofing, possess the ability to multitask, problem solve, and work well in a team environment.  In addition, the Trust and Estate paralegal will specialize in all activities involved in settling estates including preparing complex documents, gathering information, maintaining confidential files, and assist attorneys as requested.  As a paralegal, you also draft and respond to highly confidential and sensitive information.  In addition you will maintain continuous contact with the client.  Independent judgment is required to plan, prioritize, and organize a diversified workload.  Proficient knowledge in grammar and the Microsoft Office Suite of programs is necessary.  An Associate Degree or equivalent work experience is preferred.    The Eau Claire office is located in downtown Eau Claire overlooking the Chippewa River.  The professional atmosphere of the Eau Claire office provides an excellent learning environment with up-to-date technology and continuous opportunities to develop your skills.  Along with a great working environment, Ruder Ware offers an excellent salary and benefit package including health, and life insurance, short and long term disability, and a 401(k) profit sharing plan.  If interested in applying for this position, please e-mail a resume and any other credentials to lhuss@ruderware.com.   Current Openings Ruder Ware Law Firm, a continuously growing business law firm with offices in both Wausau and Eau Claire, Wisconsin, is seeking a talented individual to fill a Trust and Estates paralegal position in our Eau Claire location.

Attorney Shaughnessy Murphy Joins Ruder Ware

Posted on May 18, 2015, Authored by ,

Ruder Ware is pleased to announce the addition of Shaughnessy Murphy to our Eau Claire attorney team.  Shaughnessy advises clients on a wide variety of business transactional matters, including the organization of business entities; financing, sale and acquisition transactions; and related matters.  He also assists clients who are involved in general business litigation matters. Prior to joining Ruder Ware, Shaughnessy served as a key senior leadership aide in the U.S. House of Representatives counseling Members of Congress on a wide variety of public policy issues including agriculture, energy, transportation, trade, and taxes.  In 2014, Shaughnessy was recognized on Roll Call’s “Fabulous 50” list of most influential congressional staffers.  Shaughnessy’s background also includes working with stakeholders and clients to navigate the federal regulatory and rule making process.

Angela Gonzalez Selected for Prestigious Paralegal of the Year Award

Posted on May 19, 2015, Authored by ,

Ruder Ware is pleased to congratulate Angela Gonzalez on receiving the “Paralegal of the Year” Award from the Paralegal Association of Wisconsin (PAW). At present, there are approximately 3000 paralegals in the state of Wisconsin with over 200 of these paralegals members of PAW.  The “Paralegal of the Year” award is the most prestigious award given by PAW.  The award celebrates the dedication and efforts of an individual exemplifying a successful paralegal.  Honorees are not only active within their firms but also their communities, giving back civically. Angela became a founding member of the Wausau Chapter of the Association in 2011 and assisted in its formation. She was nominated for the position of Secretary on the Board of Directors in 2013 and continues to serve in that capacity. In addition to her service on the Board of Directors, Angela is actively involved in the pro bono Wausau clinics of the State Bar of Wisconsin Wills for Veterans program, assisting veterans and their families with basic estate planning concepts, obtaining the veterans' information and inputting that information into a software system that generates the documents, meeting with the veterans and an attorney to review the documents and finally signing and notarizing the documents for the veterans.  In April 2014, Angela was recognized by The Women's Community, Inc. for her volunteer contributions to individuals impacted by sexual assault. As a paralegal, Angela specializes in trust and estate administration. She assists trustees and personal representatives with valuing and inventorying assets, obtaining court authorizations when necessary, responding to beneficiary inquiries and processing asset transfers. In addition, Angela assists in the preparation of real estate transfer documents and estate tax returns. Prior to joining Ruder Ware, Angela was a civil litigation legal assistant and paralegal at a Wausau law firm. She also worked as a corporate paralegal at the Budapest (Hungary) office of a New York-based law firm, where she spent much of her time preparing work product in due diligence matters and multi-national business transactions. Angela obtained her Bachelor’s Degree from the University of Wisconsin - Stevens Point, with majors in mass communications / journalism and political science / pre-law. She received her Master’s of Arts in Central and Eastern European Studies from the Jagiellonian University in Krakow, Poland. She also obtained her Bachelor’s of Laws degree from the University of London.

Attorney Shaughnessy Murphy Joins Ruder Ware

Posted on May 18, 2015, Authored by ,

Shaughnessy advises clients on a wide variety of business transactional matters, including the organization of business entities; financing, sale and acquisition transactions; and related matters.  He also assists clients who are involved in general business litigation matters. Prior to joining Ruder Ware, Shaughnessy served as a key senior leadership aide in the U.S. House of Representatives counseling Members of Congress on a wide variety of public policy issues including agriculture, energy, transportation, trade, and taxes.  In 2014, Shaughnessy was recognized on Roll Call’s “Fabulous 50” list of most influential congressional staffers.  Shaughnessy’s background also includes working with stakeholders and clients to navigate the federal regulatory and rule making process.

Jamie Schaefer Elected President of Community Foundation

Posted on May 13, 2015, Authored by ,

The Community Foundation of North Central Wisconsin (CFONCW) is governed by a 15-member board elected to strategically invest the gifts of their donors, direct disbursements of the Foundation’s assets, and plan for the community’s long-term good.  Ruder Ware’s COO, Jamie Schaefer, was recently elected to serve as president of the board.  CFONCW is a nonprofit community corporation, created by and for the people of north central Wisconsin, and exists to enhance the quality of the greater Wausau area.

Seventh Circuit Affirms “Willful” OSHA Violation

Posted on May 18, 2015, Authored by Russell W. Wilson, Filed under Employment

The Seventh Circuit Court of Appeals has issued a decision that is interesting for its discussion and analysis of what a “willful” OSHA violation means. A worker for a precast concrete manufacturer fell into a sand bin in which he became engulfed up to his neck. Fortunately, he survived, but the complicated five hour rescue caused serious injuries. Co-workers responded to the trapped worker’s screams; they were able to clear the sand from his neck to his waist. They were not able, however, to extract the victim on account of the sand that was pressing in on him. During the ordeal the trapped worker requested that a call be placed to 911. The plant manager was aware of the request, but for unexplained reasons that call was not made until after it became apparent the attempt by co-workers to dig him out of the sand would not be successful. OSHA cited the employer for a willful violation for having failed to immediately call rescue services. The applicable regulation, 29 C.F.R. § 1910.146(d)(9) (permit required confined space program), requires the employer to develop and implement procedures for summoning rescue and emergency services, for providing necessary emergency services to rescued employees, and for preventing unauthorized personnel from attempting a rescue. The Seventh Circuit summarily determined that the employer had failed to develop and implement rescue procedures. The more difficult question was whether that violation was “willful.” The Seventh Circuit began its discussion by noting that neither the OSHA statute nor the regulations that implement the statute define the term “willful.” Nor does the common law provide a standard definition. The Court noted that it may have “muddied the waters” as to the meaning of “willful” in a 2005 decision, in which it held that “an OSHA violation is willful if it is committed with intentional disregard of, or plain indifference to, the requirements of the statute.” Here, OSHA deemed the employer’s violation to have arisen out of “plain indifference.” The Court observed, however, that “plain indifference” merely duplicates the first alternative, “intentional disregard.” The Court added that its attempt to clarify “willfully” in a 2014 case “may not have been entirely successful.” There the Court said that “willfully” for purposes of civil law is conduct that creates “an unjustifiably high risk of harm that is either known or so obvious that it should be known.” The statute that provides for civil penalties, 29 U.S.C. § 666(a), requires proof the employer was aware of the risk, knew that it was serious, knew that effective measures could be taken, and failed to take them. The Court equated this description to reckless conduct The Court stated that the conduct of the plant manager to delay making the 911 call “no doubt” acted “recklessly and therefore willfully within the meaning of section 666(a) and that his reckless behavior must be imputed to [the employer].” If the employee had died, a criminal penalty under 29 U.S.C. § 666(e) for a willful violation would have been applicable. In that circumstance, the statute requires proof “not only that the risk was known to the defendant, but also that he knew he was violating the law.” While this case, Dukane Precast, Inc. v. Perez, 2015 WL 1967405 (May 4, 2015) does not change the existing law, it describes how the term “willful” in the context of OSHA violations has been interpreted in the Seventh Circuit. Accordingly, this case is a good place to start for assessing a challenge to a “willful” violation, especially if the violation arises out of the confined space entry program.

Arbitration Clauses and the Impact of Their Terms

Posted on May 27, 2015, Authored by Ruder Ware Attorneys, Filed under Employment

The Wisconsin Supreme Court recently addressed the authority of circuit courts to assess and adjudge arbitration matters. In First Weber Group, Inc. v. Synergy Real Estate Group, LLC, 2015 WI 34 (March 24, 2015) determinations and rulings regarding multiple issues were made. In pertinent part, the parties ultimately disputed over an arbitration clause of their contract that stipulated requests for arbitration must be filed within a set number of days. First Weber’s request for arbitration in this matter was well beyond the deadline and as such, Synergy Real Estate refused arbitration. First Weber subsequently filed a lawsuit in an effort to force Synergy Real Estate into arbitration.  The circuit court found in favor of Synergy Real Estate, holding that the request to arbitrate was untimely. The court of appeals affirmed. The Supreme Court reversed finding that the timeliness issue, or procedural arbitrability, is to be determined in the arbitration proceeding, not by a court or a proceeding to compel arbitration. The Court stated that procedural arbitrability differs from substantive arbitrability, which pertains directly to the determination of whether the parties’ dispute is subject to arbitration:  “In an action to compel arbitration, a court’s role is generally limited to determining the question of substantive arbitrability, unless the parties specifically agreed otherwise…Issues of procedural arbitrability are to be resolved during arbitration, rather than by a court.” The Court based its decision on Wisconsin’s public policy favoring arbitration as “a swift and inexpensive process that is guided by a contractual agreement” as opposed to the formality and expense that go along with a lawsuit and the courts. Further, the Court found that even when a court gets involved in an issue of substantive arbitrability, “it must exercise great caution. [A] court has no business weighing the merits of the grievance. It is the arbitrator’s decision for which the parties bargained.” Maintaining a comprehensive understanding of arbitration is essential; employers should also review the terms and verbiage related to any arbitration provision to be prepared for arbitration. The grievance procedure typically begins with determination of eligibility for arbitration, per the terms of a specific contract. The terms or clauses of an agreement should clearly set structured time limits for filing a grievance and for each subsequent step so that disputes do not languish or “resurrect” themselves long after they have been seemingly resolved. Careful observance with respect to time limits and filing deadlines is certainly a worthwhile best practice. Failure to meet contracted deadlines pertaining to any dispute resolution action may result in a delay of resolution. Further, language in provisions regarding the scope of what can be grieved, or arbitrated, can be bargained during contract negotiations. However, care is needed so as not to give up management rights or inadvertently partake in negotiations over prohibited subjects of bargaining.  Arbitration clauses and the terms within these clauses cover a myriad of issues and thoughtful evaluation should be used when adding to, subtracting from, or leaving in place, the terms of such provisions. Resolution of arbitration disputes can be time intensive and complex. Proactive steps should be taken to ensure arbitration clauses are clear and well defined.

Employer Waived the Exclusive Remedy Protection of Worker’s Compensation

Posted on May 11, 2015, Authored by Russell W. Wilson, Filed under Employment

The important protection that employers have under Wisconsin’s Worker’s Compensation Act is the exclusive remedy against employees for work-related accidents, conditions, or illnesses. While the employer enjoys near immunity from a civil suit, that protection can be waived. The Wisconsin Court of Appeals recently held that an employer had waived its exclusive remedy protection through broad language in a service contract in Zenoni v. Discover Property & Casualty Insurance Company, 2015 WL 1824381 (April 23, 2015). The employer, a restaurant, contracted with a supplier of uniforms and floor mats. The employee tripped on a floor mat in the restaurant’s kitchen. She had a worker’s compensation claim. She also brought a civil suit against the owner of the building where the restaurant was located and against the floor mat supplier. There is nothing out of the ordinary about this scenario so far. Ordinarily, the employer would be fully protected by the exclusive remedy of worker’s compensation from liability in the civil suit against third parties, i.e. the floor mat supplier and the building owner. The restaurant’s problem was that it had signed a service contract containing a broad indemnification clause in favor of the floor mat supplier. The contract obligated the restaurant to “defend, indemnify, and hold harmless” the floor mat supplier “from any claims and damages arising out of or associated with this agreement, including any claims arising from defective products.” When the restaurant worker sued the mat supplier, the mat supplier sued the restaurant under the service contract. Interpreting and applying established Wisconsin case law, the Court of Appeals ruled that this broad language operated as a waiver of immunity from suit that the restaurant would otherwise have enjoyed. As a result, the suit was remanded to the circuit court for trial. Depending upon how causal negligence is assessed and allocated, the restaurant could be held liable to the floor mat supplier for the restaurant’s share of the employee’s damages. Alternatively, the restaurant might be found not liable under Wisconsin’s law of comparative negligence. In any event, however, the restaurant must pay for the floor mat supplier’s defense to the employee’s civil suit. Many service providers and suppliers propose contracts that require indemnification and defense from lawsuits. Employers should carefully review those contracts. If indemnification provisions cannot be excluded entirely, their scope should be reduced by carving out liability that arises out of the employer-employee relationship or in which there is entitlement to worker’s compensation benefits.

The Odd Jurisdictional Line: “Waters of the United States” in SWANCC

Posted on May 26, 2015, Authored by Russell W. Wilson,

This article reviews the second of three important U.S. Supreme Court cases that examine the jurisdictional reach of the Clean Water Act (“CWA”) by interpreting the definition of the “waters of the United States.”  The first case was United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (“Riverside Bayview”), where the Court held that non-navigable wetlands adjacent to traditionally navigable water were included within the definition of the “waters of the United States.”  As a result, the U.S. Army Corps of Engineers (“Corps”) was within its jurisdiction in pursuing enforcement against a developer who began construction activity in a wetland adjacent to traditional navigable water.  The next case, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”), reached the opposite conclusion with respect to intrastate, isolated ponds and mud flats not adjacent to traditional navigable water.  Unlike the unanimity in Riverside Bayview, the decision in SWANCC rested upon a majority of five.  Justice Rehnquist wrote the majority decision; he was joined by Justices O’Connor, Scalia, Kennedy, and Thomas.  Justice Stevens, who was joined by Justices Souter, Ginsburg, and Breyer, wrote the dissenting opinion. The physical area was a 533-acre parcel in Kane and Cook counties in Illinois previously used for mining sand and gravel that had been abandoned since 1960.  During the period of abandonment, a successional stage forest had emerged and remnant excavation trenches had evolved into permanent and seasonal ponds of varying area and depth.  The Solid Waste Agency of Northern Cook County applied for local land use approvals, which were granted.  The agency also applied pursuant to section 404 of the CWA to the Corps for a permit to dredge or fill wetlands.  The Corps asserted jurisdiction pursuant to the "Migratory Bird Rule" portion of its definition of the "waters of the United States." The Corps denied the permit, and SWANCC sued to challenge the agency’s jurisdiction.  The federal district court and the Seventh Circuit Court of Appeals ruled that jurisdiction reached intrastate, isolated ponds not adjacent to wetlands.  The 5-4 decision of the U.S. Supreme Court ruled that the isolated ponds and mud flats were outside the jurisdiction of the Clean Water Act.  Congressional intent is derived from the plain language of the statute.  In this instance, the CWA defines “navigable waters” as the “waters of the United States, including the territorial seas.”  Congress did not, however, define the term “waters of the United States.”  Upon congressional authorization, agencies promulgate regulations through the rulemaking process so as to implement the laws that Congress enacts.  In order for regulations to be enforceable, they must comport with congressional intent.  In this instance, the Corps promulgated regulations initially in 1974 and later in 1977 (33 C.F.R. § 328.3(a)(3)), the latter of which includes as a definition of “waters of the United States”:  “waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce . . .” In 1986 the Corps added a provision to clarify jurisdiction as to intrastate waters: “a.  Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or “b.  Which are or would be used as habitat by other migratory birds which cross state lines; or “c.  Which are or would be used as habitat for endangered species; or “d.  Used to irrigate crops sold in interstate commerce.” The Corps relied upon subsection “b” – habitat for other migratory birds that cross state lines – to deny the Cook County Agency’s application to fill or dredge the ponds and mud flats.  The majority opinion and the dissent demonstrate sharply divergent views as to what Congress intended as to the meaning of the “waters of the United States” and hence, the jurisdiction of the CWA. The Majority Opinion In the majority’s view, the case raised two questions.  First, can the CWA be interpreted to extend to intrastate, isolated ponds and mud flats that provide habitat for migratory birds based upon administrative definitions promulgated by the Corps in 1977 and 1986?  The majority held that the Corps’ definition exceeded congressional intent under the CWA's enactment in 1972 and its amendments in 1977.  Second, if the statute can be interpreted in accordance with the Corps’ interpretation (specifically its Migratory Bird Rule promulgated in 1986), could that interpretation be supported constitutionally under the power to regulate interstate commerce?  The legislative and administrative history are intricate. Congress passed the Federal Water Pollution Control Act Amendments of 1972.  The 1972 amendments gave the basic structure to what is known as the CWA.  Congress again passed amendments to the CWA in 1977.  The statute defines the term “navigable waters” as the “waters of the United States.”   The statute, however, does not further define the “waters of the United States.”  The Corps then developed the meaning of the “waters of the United States” through the rulemaking process. The Corps’ initial definition was narrow.  In 1974 the Corps defined “navigable waters” under section 404 to mean “those waters of the United States which are subject to the ebb and flow of the tide, and/or are presently, or have been in the past, or may be in the future susceptible for use for purposes of interstate or foreign commerce.”  The majority opinion in SWANCC points out that the Corps had emphasized transportation or commerce as the determinative factor. The U.S. Environmental Protection Agency ("EPA"), which generally administers the CWA, opposed what it viewed as the Corps' inappropriately narrow view of its jurisdiction under Section 404.  As a result, the Corps expanded the definition of the “waters of the United States” in 1977.  At this time the expanded definition included “isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.” Thereafter, Congress passed its 1977 amendments to the CWA.  The majority opinion holds that in doing so Congress did not plainly indicate its intent to endorse the expanded definition of the “waters of the United States” that the Corps had promulgated earlier that same year.  The Corps’ unsuccessful argument was twofold.  First, it argued that Congress implicitly approved the Corps’ 1977 definition because Congress failed to pass a House Bill that would have expressly restricted the definition.  (As will be seen in the dissenting opinion, below, the failed House Bill would have defined the term “navigable waters” as the “navigable waters of the United States.”)  The majority opinion states, however, that it is only with “extreme care” that it recognizes “ . . . congressional acquiescence to administrative interpretations of a statute . . .” The majority points out that “[t]he relationship between the actions and inactions of the 95th Congress and the intent of the 92nd Congress in passing § 404(a) is also considerably attenuated.” The Court points out the action or inaction of a subsequent Congress is less informative of the intent of an earlier Congress. Accordingly, the majority opinion finds the failure of the House Bill to shed little light on Congress’ intent in defining “navigable waters” in 1972. The Court found the Corps’ second argument to be “equally unenlightening.” The second argument relates to what Congress did enact in 1977. At that time Congress passed section 404(g)(1), which authorizes states to apply to the EPA for permission to administer their own permit programs with certain restrictions: “to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce …, including wetlands adjacent thereto) within its jurisdiction ….” The Corps argued that the “other than those waters” language in section 404 indicated a congressional recognition of a broad definition of navigable waters that includes nonnavigable, isolated, intrastate waters. The majority, however, describes “other than those waters” as too vague a basis on which to discern what Congress intended when it defined “navigable waters” in the 1972 CWA. The majority opinion states that in Riverside Bayview “we recognized that Congress intended the phrase ‘navigable waters’ to include ‘at least some waters that would not be deemed ‘navigable’ under the classical meaning of that term . . . But § 404(g) gives no intimation of what those other waters might be. It simply refers to them as ‘other waters.’” The majority opinion states that the “other than those waters” language does “not conclusively determine the construction to be placed on the use of the term ‘waters’ elsewhere in the Act (particularly in § 502(7), which contains the relevant definition of ‘navigable waters’) ….” The majority opinion concludes that it will not take “the next ineluctable step after Riverside Bayview Homes.” In the view of the majority, doing so would read the term “navigable waters” out of the statute. Noting that the term “navigable waters” was interpreted in Riverside Bayview as having “limited import,” the opinion counters that “ . . . it is one thing to give a word limited effect and quite another to give it no effect whatever.” The majority opinion finds that Congress in 1972 clearly had in mind “traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made.” But even if congressional intent were ambiguous, the majority opinion would not defer to the Corps’ interpretation. In 1986 the Corps’ promulgated its Migratory Bird Rule. The majority opinion states that protecting birds whose migratory routes cross state lines would “push the limit of congressional authority” under the power to regulate interstate commerce. The majority opinion gave short shrift to the finding of the Seventh Circuit Court of Appeals, which had found in the case that “ . . . millions of people spend over a billion dollars annually on recreational pursuits relating to migratory birds.” Finding no clear congressional statement of intent to regulate “an abandoned sand and gravel pit such as we have here” under the Commerce Clause, the majority opinion would refuse to give any deference to the Corps’ 1977 expanded definition even if the Court felt that the term “navigable waters” is ambiguous (which the Court holds is not the case). That being the case, the majority found it unnecessary to rule on the second issue—could the Corps’ Migratory Bird Rule pass constitutional muster under the Commerce Clause. The Dissenting Opinion The dissent asserts that the majority opinion draws the Corps’ jurisdictional boundary on an “odd line.” In a play on words, the dissent characterizes the CWA as “watershed” legislation triggered by the 1969 Cuyahoga River fire. The dissent traces the ancestry of the Rivers and Harbors Appropriation Act of 1899, its various amendments, and the enactment of the Federal Water Pollution Control Act of 1948, including its various amendments that led to the CWA. The dissent observes that the various Rivers and Harbors Acts regulated discharges (not including sewage) into certain waterways as “highways for the transportation of interstate and foreign commerce.”  In contrast to the narrow commercial scope of the various Rivers and Harbors Acts, the CWA “proclaimed the ambitious goal of ending water pollution by 1985.” The dissent notes that during the middle of the 20th Century, “the goals of federal water regulation began to shift away from an exclusive focus on protecting navigability and toward a concern for preventing environmental degradation.” The dissent describes the “major purpose” of the CWA as establishing a comprehensive long-range policy for the elimination of water pollution.  “Because of the statute’s ambitious and comprehensive goals, it was, of course, necessary to expand its jurisdictional scope. Thus, although Congress opted to carry over the traditional jurisdictional term “navigable waters” from the [various Rivers and Harbors Acts] and prior versions of the [Federal Water Pollution Control Act], it broadened the definition of that term to encompass all “waters of the United States” . . . Indeed, the 1972 conferees arrived at the final formulation by specifically deleting the word “navigable” from the definition that had originally appeared in the House version of the Act. The majority today undoes that deletion.” (Emphasis in the original.) According to the dissent, Congress knowingly endorsed the Corps’ position by its refusal in 1977 to narrow the jurisdictional scope of the CWA as enacted in 1972. The dissent explains that in 1975 the Corps adopted the interim regulations that the Court later approved in Riverside Bayview. In 1977 the Corps adopted the final version of the regulations. Opposition developed in Congress; a House bill was proposed that would have narrowed the jurisdiction of the CWA by inserting the modifier “navigable” so as to read “navigable waters of the United States” (as opposed to the then existing definition – “waters of the United States.”) The Senate, however, objected to the insertion of “navigable.” The Conference Committee agreed with the Senate’s approach and deleted the adjective “navigable.” According to the dissent, the deletion of the adjective “navigable” in 1977 was not an unnoticed omission. Rather, the dissent points to the intentional deletion as having been the subject of “extensive debate” in both the House and the Senate over wetlands preservation. The House version, had it been enacted, would have “excluded vast stretches of crucial wetlands from the Corps’ jurisdiction, with detrimental effects on wetlands ecosystems, water quality, and the aquatic environment, generally.” The dissent notes that the Conference Committee adopted the Senate’s approach and abandoned the effort to narrow the definition of “waters.” The dissent states that the “net result of that extensive debate was a congressional endorsement of the position that the Corps maintains today.” According to the dissent, Congress was “fully aware of the Corps’ understanding of the scope of its jurisdiction under the 1972 Act.” The dissent goes on to say that “[t]he majority’s reading drains all meaning from the conference amendment.” In the dissent’s view, “once Congress had crossed the legal watershed that separates navigable streams of commerce from marshes and inland lakes, there is no principled reason for limiting the statute’s protection to those waters or wetlands that happen to lie near a navigable stream.” According to the dissent, the Corps’ definition “requires neither actual nor potential navigability.” Accordingly, the dissent finds no jurisdictional difference between the wetland parcel adjacent to Black Creek in Riverside Bayview and the isolated, intrastate ponds and mud flats in SWANCC. Moreover, the dissent would affirm the validity of the Migratory Bird Rule as constitutional under the Commerce Clause as a class of activity that, in the aggregate, substantially affects interstate commerce. Placing fill material into wetlands, the dissent observes, “is almost always undertaken for economic reasons.” The “overwhelming majority” of acreage for which the Corps issues section 404 permits to dredge or place fill materials into wetlands is for “commercial, industrial, or other economic use.” The dissent reasons, accordingly, that the CWA does not regulate land use; it regulates the dredging of wetlands and the discharge of fill into wetlands. “Moreover, no one disputes that the discharge of fill into ‘isolated’ waters that serve as migratory bird habitat will, in the aggregate, adversely affect migratory bird populations.” The dissent quotes Justice Holmes in Missouri v. Holland, 252 U.S. 416 (1920), who had observed that “the protection of migratory birds is a textbook example of a national problem.” (Emphasis in the original.) The dissent notes that while the benefits of a landfill would be disproportionately local to the northern Illinois area, the costs (e.g., fewer aquatic migratory birds) “would be widely dispersed and often borne by citizens living in other States. Citing Missouri v. Holland again, the federal interest in protecting migratory birds is “the first magnitude.” “Because of their transitory nature, they ‘can be protected only by national action.’” This article is a part of a series exploring the "waters of the United States."

2016 Health Savings Account Cost of Living Adjustments

Posted on May 4, 2015, Authored by Mary Ellen Schill,

The Internal Revenue Service today announced the cost-of-living adjustments for the HSA contribution limits and for High Deductible Health Plan (HDHP) deductibles and out-of-pocket maximums for 2016.   HSA/HDHP Requirement Cost-of-Living Adjustments Limit on HSA Contributions - Self-only HDHP 2015 - $3,350 2016 - $3,350 Limit on HSA Contributions - Family HDHP 2015 - $6,650 2016 - $6,750   HDHP Required Deductible - Self-only HDHP 2015 - $1,300 2016 - $1,300   HDHP Required Deductible - Family HDHP 2015 - $2,600 2016 - $2,600   HDHP Out-of-pocket Maximum - Self-only HDHP 2015 - $6,450 2016 - $6,550   HDHP Out-of-pocket Maximum - Family HDHP 2015 - $12,900 2016 - $13,100   HSA Catch-up Contribution Limit 2015 - $1,000 2016 - $1,000     All of the above are for calendar year 2016.   For further information, please contact Attorney Mary Ellen Schill, who prepared this article, or any of the attorneys within the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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Posted on May 1, 2015, Authored by ,

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