Summary judgment is the employer’s go-to defense to a discrimination lawsuit. For a few decades now, many Federal judges have used summary judgment as a tool for clearing his/her docket. But, in Dabassi v. Motiva Enterprises, No. 23-20166 (5th Cir. 7/16/2024), the court of appeals reversed the district court’s grant of summary judgment. In this case, Dean Dabassi started working for Motive in 2014 as a 48 year old. By 2015, he as placed on a PIP. Yet, he had also been awarded the “President’s Award” three times. In 2018, his supervisors told him they wanted to “rotate younger people” into his department. Months later, in 2019, he was replaced by a 33 year old female. Debase went to a lateral position, losing no pay or benefits. But, the new position was less prestigious.

In 2019, Debassi was placed on a second PIP. Management said he reacted very loudly and with animated hand gestures when told of the new PIP. Management fired him the next day. At the district court level, the court granted the employer’s motion for summary judgment. The judge parsed the different events: the replacement employee, the first PIP, the second Pip and then the termination.

Consider All the Facts

On appeal, the plaintiff lawyer argued a court should examine all the evidence together and not compartmentalize it. The Fifth Circuit agreed. The higher court said, “It is necessary for the facts allegedly supporting a claim to be evaluated in their entirety.” The court rejected a rigid, mechanical application of the step-by-step analysis of McDonnell-Douglas. The court noted the desire of management to place younger personnel into Debassi’s department. The plaintiff was fired just months after management told him they desired to place younger personnel into his department.

The court also noted the preference of management for “early career” employees. The employer argued “early career” actually included older persons who were early in a second career. But, the appellate court rightly noted that it was up to a jury to determine how management meant the phrase “early career.”

Too many district courts use summary judgment as a way to reduce their caseload. And, among those courts, many of them do indeed apply the McDonnell-Douglas in a formulaic fashion, which tends to compartmentalize the evidence. Summary judgment is intended to screen out cases with no factual basis and not to screen out cases which need factual determinations.

See the decision here.

DEI (Diversity, Equity and Inclusion) is under a magnifying glass in many sectors, one of which is employment. Joshua Young, a correctional officer in the Colorado prison system filed suit after he was required to attend DEI training. He alleged the DEI training left him feeling marginalized. The training discussed “white supremacy” and “white exceptionalism.” He said the DEI training left him believing white persons were unable to treat minorities fairly. His lawsuit alleged the training fomented a “hostile” workplace for white employees.

DEI training has become common in major companies. By 1976, more than 60% of large companies required management to undergo unconscious bias training. For years, that training essentially focused on the biases most people hold. But, after the killing of George Floyd, the training increasingly adopted an “anti-racism” approach. This new approach emphasized how to challenge systemic bias.

Anti-Racism Training

Since 2020, that DEI training has been implemented by more and more companies. Unconscious bias training and anti-racism training have many common elements. But, anti-racism training differs in that it gets into America’s history of slavery, segregation and discrimination. It argues that American society continues to favor white people.

But, of course, in singling out white people, anti-racism training suggests its own version of discrimination, says one expert, Frank Dobbin, a Harvard sociologist. (Certainly, he is correct. Any focus on just one ethnic group suggests the possibility of discrimination. The key would be whether that focus is justified by non-discriminatory motivations. Could such singling out – given the right circumstances – provide evidence for a case of anti-white discrimination? Absolutely).

Prof. Dobbin says unconscious bias training has not resulted in a more diverse work force. He also says that anti-racism training has not produced positive results. People simply do not respond well to that training, even if it is correct.

59 Lawsuits

There are currently 59 lawsuits against DEI training across the country. Some have been dismissed, but others have not. Those lawsuits do shape the ongoing DEI training. Joshua Young’s lawsuit was dismissed, because he did not allege the discrimination was “severe or pervasive.” But, Mr. Young plans to re-file his lawsuit with a better statement of the facts. In 2020, then Pres. Trump signed an order prohibiting DEI training among Federal agencies and Federal Contractors. President. Biden then overturned that order.

Kenji Yoshino, at New York University, says it is possible to discuss America’s history of slavery and discrimination without suggesting white people are inherently discriminatory. (Of course, it is. But, that would be a difficult exercise and it incurs much risk for a company seeking to avoid accusations of anti-white bias). See the ABA Bar Journal here for more information.

In a recent decision, the Fifth Circuit has suggested an odd practice. In Bunker v. Dow Chemical, No. 24-20046 (%th Cir. 8/7/2024), Ms. Bunker filed her EEOC charge, but she did not check the block at the top for “FEPA.” It is important to check that block to indicate you, as the Charging Party wish the charge to be sent to the state agency for investigation. There are two agencies that investigate discrimination in Texas: The Equal Employment Opportunity Commission and TWC’s Civil Rights Division. When you check that word “FEPA,” you ensure the charge will be filed with the Civil Rights Division, as well as with the EEOC. If you file the Charge also with the CRD, you can then file suit under state court, if you wish.

But, Ms. Bunker did not check the FEPA box. Yet, she filed her lawsuit in state court. So, since she did not file her Charge with the State agency, she could not then file suit in state court. Her lawsuit was dismissed.

Lower-Left Box

We might think she would still be ok, however. Because in the lower left-hand side of the Charge, there is also this statement: “I want this Charge filed with both the EEOC and the State or local Agency, if any.” The Employee (known as the “Charging Party”) then signs below that statement, apparently indicating she does in fact wish the Charge to be filed with both the Federal and the State agencies. But, no, Judge Clement in Bunker says the Charging Party must also mark that statement somehow.

As can be seen below, signing below a statement that the Charging Party wants the Charge to be filed with both the State and Federal agencies would seem to suffice. There is no box to check. You simply sign below the statement. But, Judge Clement said a person needs to mark this sentence somehow.

Say what? …. Judge Clement did not indicate in what way a Charging Party ought to mark this sentence. Her decision does not make a lot of sense. See the decision here.

There has been much talk about Project 2025, a book published by the Heritage Foundation. Many of the authors were major players in the last Trump administration. So, we can expect the contents of the almost 900 page book to fuel many policy proposals in a new Trump administration, if there is one. The book can be downloaded from this site here.

EEO-1 Form

How would Project 2025 affect American workers? The book has a lengthy section on suggested changes to the Department of Labor. The book starts by calling on the EEOC to stop collecting the EEO-1 form. This form is required of large employers. It requires employers to set forth the racial make-up of their workforce and address attempts to increase minority hiring. It is a harmless form, which has become very routine. The Project 2025 book says the EEO-1 form “could” lead to racial quotas. It “crudely” categorizes people into racial groups. Those are just silly comments. The EEO-1 has been around since the 1970’s or longer. What power it might hold ought to have been revealed long before now.

The book calls for the EEOC to “disclaim” its “regulatory pretensions.” I can hardly make sense of that prescription. The EEOC issues regulations to help explain and enforce the various anti-discrimination statutes. There is no pretension involved. Statutes never address every situation. It is up to regulations to fill in some of those gaps.

The book makes an odd comment that “woke” goals have entered the private sector and American labor. At this point, the book clearly wanders around into politics. Title VII of the Civil Rights Act of 1964 was once a “woke” goal. But, today, in 2024, how do we define “woke”? The book makes no attempt to define the word. Neither does it offer specific proposals based on perceived “woke” goals which have slipped unseen into our work force.

PTO

The book does make an interesting proposal, that Department of Labor and other agencies allow Paid Time Off (PTO), also known as “compensatory time.” PTO is used often in state and city agencies. PTO means a person who works more than 40 hours in one week would be credited with an hour of time which s/he can use as unpaid leave. PTO is offered in lieu if overtime pay. The book wants private sector employees to have the option of choosing PTO or overtime. PTO violates the FLSA requirement for overtime pay. But, if the FLSA could be amended, many workers would appreciate access to PTO. Some labor unions have negotiated PTO policies.

Independent Contractor

Perhaps, the biggest change would be a return to the definition of independent contractor (IC) implemented by the Trump administration. All the current definitions of IC look at several factors. I wrote about the different tests for IC here. Most of those tests look at factors such as:

  • Who supervises the work
  • Who trains the workers
  • Who sets the hours for the work
  • Who provides the tools
  • Who hires the work
  • How integral to the overall business is the work being performed
  • And so on

There are anywhere from 7 to 20 factors, depending on which test we use. But, the Trump Department of Labor boiled the test down to two factors: 1) the nature and degree of control of the work, and 2) the worker’s opportunity for profit and loss. The Trump definition made it much easier to classify gig workers as Independent Contractors. It is simply unrealistic to expect a definition for IC to rely on only two factors. Our labor force is much to complicated for such a simplistic test.

We often hear about the Magna Carta and how that great document eventually led to our Declaration of Independence. But, what was the Magna Carta all about? In 2015, San Antonio’s own Prof. Vincent R.  Johnson at St. Mary’s Law School wrote a nice piece about the Magna Carta. He explained in his article what was so new and ground-breaking about the “Great Charter.”

One of the problems with the Magna Carta, he explains, is that it is not organized by topics. One must study the whole document to understand it.

Force of Arms

One of the first topics Prof. Johnson mentions is due process. The bad King John would frequently take action “by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.” In some cases, noblemen were deprived of their estates not by their peers, but entirely by Crown nominees. So, Clause 39 states: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Without due process, nothing else matters. No right can be protected without due process. This clause ensured the king could not seize property aided and abetted by his cronies.

Today, we often cite the Magna Carta as the basis for trial by jury. Prof. Johnson explains that some historians disagree. Clause 39 refers to judgment by one’s equal peers. But, one historian says the “judgment” refers to the initial decision regarding how trial would be conducted. The jury of peers would decide whether trial would be by ordeal, by hot iron or by water, compurgation, wager of law, trial by battle, or production of charter. Judgment, according to this view, did not refer to the final decision, but to the method to reach that final decision. The men of the time believed that God would render the final decision after one of these trial methods.

“Compurgation” refers to the medieval practice of of allowing the accused to swear an oath regarding his innocence. The accused would then need an oath from a certain number, often 12, other persons saying they believed the oath of the accused person.

Trial by Peers

But, added the professor, regarding a dispute between then King John and King Alexander of Scotland, the Magna Carta provided that a dispute over hostages should be resolved by judgment of his equals in “our court.” So, at least when trial by combat or by ordeal was not possible, the signers of the Magna Carta believed that trial by peers was the solution. So, suggests Prof. Johnson, some portions of the Carta did indeed refer to the trial itself, not simply the means by which trial would be conducted.

Clause 39 also presented a new form of evidence. It required that in the future, no official shall place a man on trial upon his own unsupported statement. He must produce credible witnesses to support his own “official” assertion. Officials at the time were generally lords. So, this clause removed from the lords the power to imprison a common man simply on his own, unsupported word.

Judicial Independence

A well-known provision, Clause 40 provides simply, “To no one will we sell, to no one deny or delay right or justice.” In a time when the Catholic Church would routinely “sell” dispensations, many judges were bribed to rule one way or the other. This provision set a new standard, by which justice was (mostly) not for sale. We take judicial independence for granted today, but once, that was not so.

Clause 36: “In [the] future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.” The writ of inquisition allowed a criminal defendant to avoid or delay trial – which was often trial by combat. Some call trial by combat “legalized private revenge,” because the accuser could exact the combat. The writ of inquisition involved a procedure in which one’s neighbors could could exonerate a defendant. The writ, however, was used as a revenue device by King John and was sold only to those with deep pockets. Making this writ freely available decreased the numbers of trials by combat.

Proportional Sentencing

The Magna Carta addressed proportionality in sentencing. Clause 20  provided. “For a trivial offense, a free man shall be fined only in proportion to the degree of his offense, and for a serious offense correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein (a feudal tenant) the implements of his husbandry, if they fall upon the mercy  of a royal court . . . ” The goal was to not reduce a criminal to beggary. There were similar provisions for earls, barons and clergy. The concept, which was new at the time, was to make punishment “fit the crime.” We see this concern still resonating on our modern time when some seek reforms regarding bail. Bail for misdemeanors often result sin persons staying in jail for months before they see a trial.

Widows could be married to any man willing to pay the going rate. The payment would be made to the widow’s feudal overlord. But, some widows were wealthy enough to outbid suitors and buy a charter guaranteeing she would not have to remarry. King John did a fruitful business in selling these charters to women who wished to marry their own choice, or not remarry at all. Clause 8 provides, “No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without consent of whatever the lord she may hold them of.” This provision created new legal rights for women. This was not true freedom, but it was a step.

All Free Men

Clause 1 was addressed “TO ALL FREE MEN OF OUR KINGDOM.” Clearly, the rights in the Magna Carta were guaranteed to all free men, meaning not to vassals and the like. Clause 40, which guaranteed access to justice, was not limited to free men. It simply said “to no one will we sell, to no one deny or delay right or justice.” So, Clause 40 was much broader in scope than just the free men. And, Clause 60 asked that regarding all these rights, “let men of our kingdom . . . observe them similarly in their relations with their own men.” Clause 60 then expressed the hope that these rights would be extended by the free men to to those not free.

The treatment of debtors was addressed. Clause 9 provided that the King would not seize any land or or rent in payment of a debt, so long as the debtor had movable goods with which to pay the debt. That means the creditor could not seize land when smaller goods would suffice to pay the debt. That provision provided some protection in an agrarian society, so the debtor could still earn a living.

The Magna Carta was not a perfect document. But, it was ahead of its time. The protections afforded the common free man far surpassed that found in other countries of the time. It was to these protections that the Founding Fathers looked in 1776.

In the age of social media, it is tempting for trial lawyers to communicate in some way with potential juries. But, lawyers who succumb to that temptation will learn the lesson one Georgia lawyer learned. Both before and during the start of a trial in Gwinnett County, Georgia, the plaintiff lawyer posted videos explaining “three lies we actively have to tell the jury.” The videos explained such information as defense attorneys are paid by the insurance company and that the defense made settlement offers, but would ask the jury to award the plaintiff nothing.

The lawsuit, styled as Cartagena v. Medford, No. 20C-4779-4 (Georgia District.Ct. 2023), concerned a car crash. The lawyer made these posts on TikTok and Instagram. The lawyer had 130,000 followers on TikTok and over 30,000 on Instagram.

$1.5 Million in Damages

The jury found in favor of the plaintiff and awarded $1.5 ,million in damages. There was nothing to indicate that any person sitting on the jury actually saw these posts. But, the state district court was still unimpressed. The court held that there was a “substantial likelihood” of this information materially prejudicing the out come of the trial. The Judge granted the Defense motion for a new trial. The judge vacated the jury award.

I think by now all trial attorneys understand that members of the jury will Google a case, the lawyers, etc. after being seated on a jury. That trial lawyer surely understood the risk of posting that sort of information. Too, it is law school exam question that a lawyer may not tell a jury about settlement negotiations. See Texas Bar Journal report for more information here.

I have written about Judge Lynn Hughes of the Southern District of Texas here and here. He has earned a reputation as a Judge who consistently makes anti-plaintiff comments in court, who makes disparaging comments about minorities – and even once barred a female attorney from his court room apparently simply passed on her name. His frequent refusal to allow discovery, or to severely restrict discovery is just baffling.

I was at the Fifth Circuit once for oral arguments. The case ahead of mine concerned an appeal from an order by Judge Hughes allowing no discovery. The odd thing to me as I waited and listened was that the three-judge panel expressed no surprise at such a strange order. The Fifth Circuit judges were not at all surprised by Judge Hughes’ inexplicable order.

Investigation

He has been under investigation by the Fifth Circuit Court of Appeals for some time. But, in a recent order, the Fifth Circuit announced that it would take no action on that pending complaint. Since, Judge Hughes has taken senior inactive status and relinquished his cases. Senior inactive status means he will hear no more cases.

Apparently Judge Hughes made yet another disparaging comment about female attorneys. Remarking on the appearance of a female attorney, he said in court, “It was a lot simpler when you guys wore dark suits, white shirts and navy ties. We didn’t let girls do it in the old days.” Later, Judge Hughes said the remark was about FBI agents and how they used to dress, not female attorneys. In a footnote, the Fifth Circuit described the remark as “demeaning. inappropriate and beneath the dignity of a federal judge.”

Indeed. We would also add, bizarre. See ABA Bar Journal report here for more information.

Twitter, now known as “X” has provided an avenue for many people to communicate with the wider world. But, too much communication can be a bad thing. Attorney Darlene Jackson in Washington, D.C. learned that lesson the hard way. Attorney Jackson filed suit on behalf of a passenger of the D.C. train in 2015. The train had an accident. Many passengers filed suit. The lawsuits were consolidated in Federal court in 2015. The court stayed some of the lawsuits, while resolving others. Ms. Jackson’s case was among those which were stayed. Ms. Jackson’s client then died in 2018.

Substitution

Attorney Jackson filed a defective Motion to Substitute parties. Trying to fix the error, Ms. Jackson filed more motions. She then filed a motion seeking to stay the lawsuit, even though it was already stayed. The court issued an order telling her not to file any more motions. She then filed another motion, saying she no longer had a client and was, therefore, no longer part of the lawsuit.

A second lawyer, Patrick Regan, represented many of the passengers. Regan offered to represent Ms. Jackson’s deceased client pro bono. In 2019, the court allowed the substitution of attorney Patrick Regan for Darlene Jackson in Jackson’s lawsuit. Soon afterward, Regan reached a settlement with the D.C. train authority. As part of the settlement, the Defendant agreed to pay Ms. Jackson $5,000 as her attorney fee. They indicated it would take some 30 days to issue the check.

The Tweet

A couple of weeks later, Ms. Jackson tired of the wait. She sent a tweet which displayed excerpts of the settlement agreement, emails from the attorney for the train authority, a picture of the train authority’s attorney, a news article about the death of her client, and ended with: “Where’s MY CA$H?” Ms. Jackson wanted her $5,000. Ms. Jackson tagged President. Trump, Melania Trump and Sen. Marsha Blackburn on the tweet. The tweet also tagged several news outlets. Ms. Jackson later said, she was anxious to receive her payment. (That is odd. Most experienced attorneys understand that public entities typically require weeks to issue a settlement check).

The Defendant field a motion with the court. The court then held a show cause hearing regarding her violation of a court order. The court did not discipline Ms. Jackson, but referred her to the Washington D.C. grievance committee.

Ms. Jackson did not cooperate with the committee. The bar association suspended her from the practice of law. That suspension was then affirmed on appeal to the D.C. Court of Appeals. See that decision in In Re Jackson, 300 A.3d 747 (D.C. Ct.App. 2023) here.

Sometime back, I met with a young man about his work situation. He was told by his boss to do some things that the worker believed would violate internal policies. Every work place has rules unique to that work place. We describe those rules as internal rules or policies. The worker was essentially telling me he was enforcing the rules, even if his boss was not.

Well, I had to tell him that those rules are not binding on the employer. The employer can change them. Even in a large national corporation, the boss is still the “employer.” The boss can ignore those rules. What if violating those rules places a worker at risk of physical harm? For example, if you work in a warehouse and the rule is never climb a ladder without a co-worker holding the bottom of the ladder. What if the supervisor one day says get a box down from the top shelf now, quickly, a customer is waiting? In effect, the boss is saying do not stop to find a co-worker to hold the ladder. Do you do what the boss tells you?

OSHA

If the safety of a worker is involved, then that violation might involve OSHA (Occupational Safety & Health Administration) rules. But, otherwise, in an at-will state like Texas, the worker cannot say no. The only time a worker can say no in Texas is if s/he is asked to break a criminal law.

Even if violating the company’s internal rules also involves a possible OSHA violation, the worker still must respect his employer. If a worker refuses to follow an order from her/his boss, the worker will be accused of insubordination. So, in the same example, if the order from the boss did violate an OSHA rule, the worker cannot then refuse to climb the ladder without a co-worker holding the ladder. Since, if the worker refuses to climb the ladder, then he has been insubordinate. An employer can fire a worker for insubordination.

It may not be fair that the worker has so little control over acts that be unsafe. But, as I tell many folks, if you want fairness, if you want some control over your work, then form a labor union. Otherwise, in an at-will state, you have to do what the boss says.

In the recent US Supreme Court decision of Loper Bright Enterprises v. Raimondo, No. 22-451 (2024), the higher court overrules the decades long precedent in Chevron USA Inc. v. Natural Resources Defense Counsel, 467 U.S. 837 (1984). The Chevron decision had held that courts should allow deference to interpretations of statutes by expert agencies. To quote one precedent, prior to June 28, 2024, courts were required to “afford considerable weight and deference to an agency’s interpretation of a statute it administers if Congress has not spoken directly to the precise question at issue.” Fitzgerald v. Secretary US Dept. of Veteran Affairs, 121 F.3d 203, 207 (5th Cir. 1997).

Compensatory Damages

In Fitzgerald, the Fifth Circuit addressed the question whether compensatory damages were available in administrative proceedings under Title VII of the Civil Rights Act. Mr. Fitzgerald was employed by the Veterans Affairs department. He filed a complaint of discrimination. The VA found in his favor – something agencies rarely do – and offered him “full relief.” Mr. Fitzgerald declined the offer and filed suit. The district court dismissed his suit, saying he had been offered full relief.

(It is true that if an employer offers full relief, then calculation of past pay should stop from that point forward. The lower court found that the offer of full relief meant Mr. Fitzgerald had not exhausted his full administrative remedies. That strikes me as a stretch, but that was the court’s ruling).

Full Relief

So, the first issue on appeal was whether Fitzgerald had in fact been offered “full” relief at the administrative stage. The plaintiff argued that he had not been offered full relief, because compensatory damages were not available at the administrative stage. The Civil Rights Act of 1991 had just been passed a few years before. In 1997, it was not yet clear if the new statute also applied to administrative proceedings under Title VII. The Fitzgerald court held that it did. The Civil Rights Act of 1991 did apply to administrative proceedings. That meant the plaintiff Fitzgerald had in fact been offered “full relief” available to settle his claim. That “full relief” included compensatory damages.

In reaching this conclusion, the Fifth Circuit panel relied on its own interpretation of the 1991 amendment to Title VII. But, it also relied on the regulations issued by the Equal Employment Opportunity Commission. The Fifth Circuit implicitly relied on the expertise of the EEOC. The EEOC is the one federal agency that has as its sole mission enforcing Title VII.

Deference to Agency

Loper Bright asserts that Chevron required courts to apply “binding” deference to agency interpretations. Loper Bright, at 21. But, the word “binding” does not appear in Chevron. In fact the portion of Chevron cited by Loper Bright actually states the opposite: that agencies may change interpretations of a given law over time. The best interpretation, said the Chevron court, might be the one that would evolve over time. Chevron, at 863-864. The Loper Bright court claims that prior to June 28, 2024, a court must disregard a given agency interpretation if the statute was unambiguous. If so, that is not how the Fitzgerald panel applied Chevron. (In my own experience, appellate courts are rather loose with Chevron. They apply it, sometimes. Sometimes, they don’t).

Solution in Search of a Problem

The Loper Bight court then concludes that the fundamental flaw with Chevron was its belief that agencies possess some “special competence” in resolving statutory ambiguities. But, it is courts that have that special competence, said Justice Roberts. Loper Bright, at 23. That is just a silly assertion. Agencies may indeed possess imperfect competence regarding statutory interpretation. But, they possess remarkable expertise within the subject matter of their agency. The EEOC understands Title VII much more deeply than any court. In any event, as the Fitzgerald opinion suggests, there was simply no problem here. The Loper Bright court is a decision in search of a problem. The Fitzgerald court, like most courts who have cited Chevron, did not rely solely on the agency interpretation. The Fitzgerald court also applied its own interpretation of the newly amended Title VII statute. The EEOC regulation was more of an after-thought in Fitzgerald.

The court of appeals decision in Loper Bright also looked at both the Agency regulation and it also engaged in its own statutory interpretation. The court of appeals had the benefit of subject matter expertise from the National Marine Fisheries Service. That expertise avoided the need for a trial of competing experts.

For employment law, the Loper Bright decision is really an unnecessary decision addressing a problem that does not exist. EEOC regulations impose no visible burden on employers. Even if it did, most Title VII decisions do little more than pay lip service to Chevron. The majority opinion in Loper Bright recognizes as much when it says many courts simply ignore Chevron, saying it makes no difference. Loper Bright, at 28. The Supreme Court has essentially joined a national movement that disregards expertise. That movement started with popular sentiment opposed to medical science during the Covid pandemic in 2020.

See the Fitzgerald decision here. See the decision in Loper Bright here.