Beltway Bulletin- The Start of Something New

An Introduction
With Bruce Moyer’s retirement as the FBA’s government relations counsel, this is our first opportunity as his successor to write this column. Out of respect, we recommended retiring the title “Washington Watch” and thus welcome you to the inaugural “Beltway Bulletin.”

We at Arent Fox LLP are honored to have been selected by the FBA to advocate for its priorities be-fore Congress and the Executive Branch, maintaining the organization’s historic nonpartisan approach but also ensuring that the FBA has a seat at the table when issues important to you, its members, are decided.

Our Arent Fox team is a diverse, bipartisan, and bicameral mix of former public servants, and we are united in our passion for the FBA’s policy priorities. The group includes two former U.S. senators, Doug Jones, D-Ala., and Byron Dorgan, D-N.D., and a former U.S. congressman, Phil English, R-Pa. We note that Sen. Jones served as U.S. attorney in Alabama be-fore his election to the Senate, and one of your faithful scribes, Cissy Jackson, was his counsel and national security adviser. Jackson’s co-author, Dan Renberg, served on the staff of Sen. Arlen Specter, R-Pa. They are joined by other former congressional staff members; a former District of Columbia city councilman; and Terree Bowers, another former U.S. attorney in the Arent Fox Los Angeles office.

Together, we will be the FBA’s eyes and ears inside the Beltway, advising and helping to fashion policy proposals. Even in this time of Zoom, we will help the FBA expand its relationships in policy circles and respond nimbly as challenges arise.

Supreme Court Preview
The Supreme Court’s 2021-2022 term begins October 4, and this year’s docket promises several head-line-grabbing decisions on controversial issues of general public interest, including the death penalty, abortion, the Second Amendment, and the use of public funding for religious schools.

Three worth noting are United States v. Tsarnaev, the government’s appeal of the First Circuit decision vacating the death sentences imposed on convicted Boston Marathon bomber Dzhokhar Tsarnaev; Dobbs v. Jackson Women’s Health Organization, a constitutional challenge to a Mississippi statute prohibiting all pre-viability elective abortions; and Carson v. Makin, equal protection and religious clause challenges to a Maine prohibition on using state student-aid funds at sectarian schools.

In addition, the following cases should prove particularly interesting to federal practitioners:

• CVS Pharmacy, Inc. v. Doe—This is a disparate impact disability discrimination case in which plaintiffs claim defendant pharmacy benefits managers’ (PBMs’) requirements for obtaining specialty medicines violate Section 504 of the Re-habilitation Act and, by extension, the Affordable Care Act. The PBMs and amici argue that allowing such claims will lead to “run-away prescription drug costs … higher premiums” and ultimately the end of all prescription drug benefits.
• Cummings v. Premier Rehab Keller, P.L.L.C.—Cummings contends that her physical therapy provider’s refusal to provide an American Sign Language interpreter entitles her to emotional distress damages under Title VI and related statutes. The Fifth Circuit affirmed dismissal, despite an Eleventh Circuit ruling that such damages are available. The solicitor general supported the petition for certiorari.
• Badgerow v. Walters—The petitioner filed an action in Louisiana state court to vacate a FINRA arbitration award, which defendants removed to federal court. Using the Vaden v. Discover Bank look-through analysis, the district court denied Badgerow’s motion to remand, finding that the underlying dispute could have been brought originally in federal court. Badgerow asks the Court to narrowly read Vaden, arguing that because she seeks to vacate only the part of the arbitration award based on her state law claims, the federal court does not have subject matter jurisdiction.

Finally, it is unclear whether Justice Stephen Breyer, who turned 83 in August, will retire this term. To do so would afford President Biden an opportunity to replace him before the 2022 mid-term elections, which could alter the balance of power in the Senate. However, in a July interview with CNN, Justice Breyer declared he was feeling no pressure to step down.

About the Authors

A former senior Senate staff member and presidential appointee, Dan Renberg has helped numerous clients since joining Arent Fox as a partner in 2003. Recognized as a top federal lobbyist, one of Renberg’s advocacy efforts was included as one of the “Top 10 Lobbying Triumphs of 2009” by The Hill, and he has been listed annually since 2014 in The Best Lawyers in America. Before joining Arent Fox, Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. Jackson also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. She has represented multinational corporations, small busi-nesses, and individuals in high-stakes civil and criminal litigation.

About the FBA

Founded in 1920, the Federal Bar Association is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. Our more than 16,000 members run the gamut of federal practice: attorneys practicing in small to large legal firms, attorneys in corporations and federal agencies, and members of the judiciary. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors. Visit us at fedbar.org to learn more.