Great Moments in Legal Theory

The opinion of the U.S.D.C. for the E.D. of Kentucky in Bevin v. Stewart dismissing a lawsuit brought by the Governor of Kentucky, Mattew Bevin, is short.  However, it requires a bit of background to understand how incredibly preposterous the Governor’s actions were.  Here’s the chronology:

1. Kentucky had one of the most expansive and successful expanded state programs under the ACA.
2. Bevin and the Republicans in the Kentucky legislature moved to roll back the expanded program.
3. In order to effect the rollback, Kentucky had to obtain what is known as a Section 1115 waiver from the Department of Health and Human Services.
4. Of course, under the Trump Administration, Bevin et al. obtained that waiver.
5. Sixteen plaintiffs filed suit in the United States District Court for the District of Columbia challenging the waiver on various grounds.
6. Kentucky intervened in the D.C. action.
7. Ultimately, the “D.C. Court determined in the D.C. Action that [HHS] acted arbitrarily and capriciously in granting the Kentucky . . . waiver, and the [D.C.] Court remanded the matter to HHS.”
8. Now, prior to the ruling by the D.C. Court, Bevin brought an action in the E.D. of Kentucky against the sixteen plaintiffs in the D.C. Action, challenging the claims they brought in the D.C. Action.

There is clearly something wrong with this picture.  In essence, in the E.D. of Kentucky case, Bevin was claiming that Kentucky would be damaged if the sixteen plaintiffs prevailed in the case that they brought in D.C. and the D.C. Court ruled in their favor. That theory was quickly disposed of by the Kentucky Court.  However, Bevin’s clever attempt at legal legerdemain would have, if successful, opened a realm of possibilities.  Consider the following:

An individual enters a bank.  He presents the bank teller with a note and a cloth sack, directing that all of the cash in the teller’s drawer be placed in the sack or else.  The fearful teller complies.  Seeing what is transpiring, a brave bank patron jumps on the individual involved in the transaction, wrestling him to the ground and recovering the cash.  The individual is arrested by the police for bank robbery.  Under Bevin’s theory, that result is wrong.

According to Bevin, the individual who presented the teller with the note made the teller an offer.  The bank teller, by his or her actions, accepted that offer and a contract was thereby created.  The individual involved was damaged due to tortious interference with his contract by the bank patron and the police officer.