Bazile v. Garland

Court: US Court of Appeals for the First Circuit

Docket: 22-1767

Opinion Date: August 4, 2023

Judge: Selya

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit denied Petitioner's petition for judicial review of the Board of Immigration Appeals (BIA) decision affirming the judgment of the immigration judge (IJ) rejecting Petitioner's application for deferral of removal under the United Nations Convention Against Torture (CAT), holding that the BIA's denial of CAT protection was supported by substantial evidence.

After Petitioner, a Haitian national, pleaded guilty in a Massachusetts state court with carrying a firearm without a license the Department of Homeland Security initiated removal proceedings. An IJ denied Petitioner's application for deferral of removal under the CAT, and the BIA dismissed Petitioner's appeal. The First Circuit denied Petitioner's petition for judicial review, holding (1) the agency's finding that generalized danger and violence endemic in Haitian society will pose no particularized threat to Petitioner was supported by substantial evidence; (2) judicial venue was proper in the First Circuit; and (3) substantial evidence supported the agency's denial of CAT protection.

Financial Oversight & Management Board for P.R. v. Hernandez-Montanez

Court: US Court of Appeals for the First Circuit

Dockets: 23-1267, 23-1358, 23-1268

Opinion Date: August 10, 2023

Judge: William Joseph Kayatta, Jr.

Areas of Law: Government & Administrative Law

The First Circuit affirmed the judgment of the district court granting summary judgment in favor of the Financial Oversight and Management Board for Puerto Rico on its action against the Governor of Puerto Rico seeking to block the implementation of Act 41-2022, which tightened certain labor regulations that had been loosened about five years earlier, holding that the district court did not err in nullifying the law.

The Board sued to block the enforcement of Act 41-2022, which the Governor signed into law on June 20, 2022, by filing an adversary proceeding in the court overseeing Puerto Rico's bankruptcy process under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act. The Governor moved for judgment on the pleadings on the ground that the court lacked subject matter jurisdiction. The district court denied the Governor's motion and then nullified the law and any actions taken to implement it. The First Circuit affirmed, holding that there was no reason to disturb the court's order nullifying Act 41.

Mancia v. Garland

Court: US Court of Appeals for the First Circuit

Docket: 22-1599

Opinion Date: August 4, 2023

Judge: William Joseph Kayatta, Jr.

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit granted Petitioner's petition seeking to have her removal proceedings reopened and vacated the decision of the Board of Immigration Appeals rejecting her motion to reopen her removal proceedings pursuant to the Board's sua sponte authority, holding that remand was required.

At the age of nine, Petitioner entered the United States from El Salvador without inspection to join her mother, who entered without inspection four years earlier. An immigration judge found Petitioner deportable and granted her a five-month period of voluntary departure. The Board affirmed. Thereafter, Congress enacted the Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105-100. Petitioner later sought to have her removal proceedings reopened so that her request for suspension of deportation could be adjudicated according to the substantive NACARA standards. The Board ruled that it lacked jurisdiction to reopen the proceeding after construing Petitioner's filing as a motion seeking relief under NACARA. The First Circuit granted relief, holding (1) there is no reason why NACARA should not be read as implicitly divesting the Board of its discretion to sua sponte reopen a proceeding; and (2) Petitioner's petition was not time barred.

Vila-Castro v. Garland

Court: US Court of Appeals for the First Circuit

Docket: 21-2011

Opinion Date: August 8, 2023

Judge: David J. Barron

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit denied the petition for review of an order of the Board of Immigration Appeals (BIA) brought by Petitioners, several Peruvian nationals who were ordered removed from the United States, holding that Petitioners were not entitled to relief on their claims.

Petitioners brought claims for asylum, withholding of removal, and protection pursuant to the regulations implementing the Convention Against Torture, contending that, if returned to Peru, they feared being seriously physically harmed or killed due to their former involvement with the American Popular Revolutionary Alliance (APRA) political party. An immigration judge (IJ) ordered Petitioners removed, and the Board of Immigration Appeals (BIA) affirmed. The First Circuit denied Petitioners' petition for review, holding that substantial evidence supported the agency's ruling that Petitioners had failed to make the requisite showing regarding government involvement.

Yoc Esteban v. Garland

Court: US Court of Appeals for the First Circuit

Docket: 22-1778

Opinion Date: August 7, 2023

Judge: Sandra Lea Lynch

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit denied Petitioner's petition for review of the decision of the Board of Immigration Appeals (BIA) denying his motion to reopen proceedings under 8 U.S.C. 1229a(c)(7), holding that the BIA neither committed a material error of law nor acted arbitrarily, capriciously, or irrationally.

Petitioner, a native and citizen of Guatemala, was charged as removable for being present in the United States without having been admitted. Petitioner conceded the charge and sought asylum. An immigration judge (IJ) denied the asylum application because Petitioner failed to establish that he was targeted based on a protected ground. The BIA affirmed. Petitioner subsequently filed an untimely motion to reopen, asserting that the applicable time limit should be equitably tolled due to ineffective assistance of counsel. The BIA denied the motion. The First Circuit denied Petitioner's petition for review, holding that the BIA did not abuse its discretion in denying Petitioner's untimely motion to reopen and declining to equitably toll the deadline.

Havens v. James

Court: US Court of Appeals for the Second Circuit

Docket: 20-664

Opinion Date: August 4, 2023

Judge: MENASHI

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Government & Administrative Law

In 2005, a federal district court entered a permanent injunction against several pro-life advocates enjoining them from entering the public sidewalk within fifteen feet of the entrance of any abortion clinic in the Western District of New York. Twelve years later, in 2017, Plaintiff, who was not a named party to the 2005 permanent injunction, started sidewalk counseling near the Planned Parenthood facility in Rochester, New York. After Defendants, the New York Attorney General and the City of Rochester decided that Plaintiff was bound by the 2005 permanent injunction, he sued, seeking a declaratory judgment that he was not bound by the injunction. He also moved for a preliminary injunction to prevent Defendants from applying the injunction to his counseling activities. The district court dismissed his suit for failure to state a claim and denied his motion for a preliminary injunction.
 
The Second Circuit reversed the judgment of the district court insofar as it dismissed Plaintiff’s complaint and vacated the judgment insofar as it denied Plaintiff’s motion for a preliminary injunction. The court remanded for further proceedings. The court held that a person who is not a named party to an injunction or legally identified with a named party is bound by the injunction only from acting for the benefit of, or to assist, an enjoined party in violating the injunction. The allegations in Plaintiff’s complaint do not establish that he so acted and therefore state a claim for declaratory relief.

U.S. v. Starling

Court: US Court of Appeals for the Second Circuit

Docket: 22-659

Opinion Date: August 4, 2023

Judge: DENNIS JACOBS

Areas of Law: Civil Procedure, Criminal Law, Government & Administrative Law

Police officers seized just over $8,000 in a search of Appellant’s home carried out as part of a drug trafficking investigation into her then-boyfriend, K.B. The local police turned over the funds to the U.S. Drug Enforcement Administration, which initiated an administrative forfeiture procedure to claim the funds as proceeds from drug sales. Acting pro se, Appellant filed a claim to the assets, forcing the government to terminate its administrative seizure and open a judicial forfeiture proceeding in district court.  She failed to timely oppose the ensuing judicial proceeding, and the clerk of court entered default against the funds. Appellant, still acting pro se, then sent several letters to the district court and the U.S. Attorney’s Office seeking leave to file a belated claim to the seized assets. The district court held that Appellant had not shown excusable neglect, denied her an extension of time to file a claim, and entered final default judgment against the seized assets.


The Second Circuit vacated the grant of the motion to strike and the entry of default judgment and remanded for further proceedings. The court held that the district court erred in granting default judgment to the government. Appellant’s letters are properly viewed as seeking both to lift the entry of default and to be granted leave to file an untimely claim to the assets. So understood, Appellant’s motion should have been assessed under the more permissive good cause standard, as is any other motion to lift entry of default in a civil suit.

We The Patriots USA, Inc. et al. v. Conn. Office of Early Childhood Dev.

Court: US Court of Appeals for the Second Circuit

Docket: 22-249

Opinion Date: August 4, 2023

Judge: CHIN

Areas of Law: Constitutional Law, Government & Administrative Law, Health Law

Plaintiffs appealed the district court’s judgment dismissing claims against Defendants, challenging Public Act 21-6, which revised the Connecticut General Statutes to repeal religious exemptions from state immunization requirements for schoolchildren, college and university students, and childcare participants. Plaintiffs are two organizations and three individuals who allege that the Act violates the Free Exercise Clause of the First Amendment of the U.S. Constitution and other federal constitutional and statutory guarantees. The district court granted the motions of Defendants to dismiss certain of Plaintiffs’ claims against the state agencies as barred by the Eleventh Amendment, to dismiss the organizational Plaintiffs' claims for lack of standing, and to dismiss all counts of the complaint for failure to state a claim.
 
The Second Circuit affirmed in part and vacated and remanded in part. The court explained the district court's distinction between "special services" and "special education" was overly strict. The IDEA and its associated regulations do not use the phrase "special services." A reasonable inference from the allegation that Plaintiff’s son suffers from "a speech and learning disorder for which he now receives special services," combined with the allegation that he "is disabled within the meaning of the IDEA," is that the "special services" the complaint mentions constitute "special education" rather than "related services." Therefore, the court concluded that because the district court parsed the complaint too restrictively, failing to draw reasonable inferences in Plaintiff’s favor, the court erred when it found Plaintiff had not stated a plausible claim for relief under the IDEA. The court, therefore, vacated this portion of the judgment.

North Carolina Coastal Fisheries Reform Group v. Capt. Gaston LLC

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-2184

Opinion Date: August 7, 2023

Judge: RICHARDSON

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law

Fisheries Reform Group alleges that shrimp trawlers operating in North Carolina’s Pamlico Sound are violating the Clean Water Act by engaging in two types of unpermitted activity: throwing bycatch overboard and disturbing sediment with their trawl nets.
 
The Fourth circuit affirmed the district court’s dismissal of Fisheries’ complaint. The court explained that though the Clean Water Act’s includes the term “biological materials” in its definition of “pollutant,” that is not clear authorization for the EPA to regulate bycatch under the Act. So Fisheries Reform Group’s first claim— that shrimpers are violating the Clean Water Act by discarding bycatch overboard without a Section 1342 permit—was properly dismissed. The court further explained that Fisheries’ second claim—that shrimpers are violating the Act by using trawl nets without a permit—fares no better. The shrimpers are not “dredging” the Pamlico Sound with their nets, so they cannot be discharging “dredged spoil.” And the dirt and sand that their nets kick up is not “added”—and thus not “discharged”—into the Sound.

Sherwood v. Marchiori

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2859

Opinion Date: August 7, 2023

Judge: Joel Martin Flaum

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law

In March 2020, Sherwood and Doyle lost their jobs because of the COVID-19 pandemic and applied for unemployment benefits. They never received those benefits, however, and still have not received notice of the denial of their claims or an opportunity for a hearing. Sherwood and Doyle filed a putative class action lawsuit against the Director of the Illinois Department of Employment Security (IDES), asserting equal protection and procedural due process claims.

The Seventh Circuit affirmed the dismissal of the suit. Under the “Young doctrine,” which provides an exception to Eleventh Amendment immunity, private parties may sue individual state officials for prospective relief to enjoin ongoing violations of federal law. Even if these plaintiffs had standing to bring the equal protection claims, sovereign immunity bars them; the Young exception does not apply when federal law has been violated only at one time or over a period of time in the past. The plaintiffs alleged a sufficient injury to pursue their procedural due process claims and can invoke the Young exception to sovereign immunity but mandamus provides an adequate state-law remedy in this case.

Washington County Water Co., Inc. v. City of Sparta

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-2942

Opinion Date: August 8, 2023

Judge: St. Eve

Areas of Law: Government & Administrative Law, Utilities Law

The Agriculture Act of 1961 authorized the USDA to provide loans to rural water associations; 7 U.S.C. 1926(b) prohibits municipalities and others from selling water in an area that a USDA-indebted rural water association has “provided or made available” its service. To be entitled to section 1926(b) protection, the rural water association must have the physical capability to provide service to the disputed area and a legal right to do so under state law.

Washington County Water Company (WCWC), a rural water association, sells water to several southern Illinois counties adjacent to Coulterville. In 2019, due to the deteriorating state of its water treatment facility, Coulterville considered buying water from either WCWC or the City of Sparta. Coulterville decided to buy water from Sparta because it was not convinced that WCWC could provide enough water to satisfy its residents’ demand.

WCWC filed suit, alleging that section 1926(b) prohibited Sparta from selling water to Coulterville because WCWC had made its service available to Coulterville. The district court granted Sparta summary judgment, holding that WCWC was not entitled to section 1926(b) protection because it did not have a legal right to provide water to Coulterville under Illinois law. The Seventh Circuit affirmed. WCWC’s contractual capacity is less than its maximum average daily demand plus the required 20 percent reserve as required by state law. WCWC’s failed to secure admissible evidence of its ability to expand its water supply capabilities.

Amy McNaught v. Billy Nolen

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3138

Opinion Date: August 4, 2023

Judge: SHEPHERD

Areas of Law: Aviation, Civil Procedure, Civil Rights, Government & Administrative Law

Petitioner is a pilot and flight instructor. After she failed to produce her pilot logbooks and training records upon request by the Federal Aviation Administration (FAA), the FAA suspended Petitioner’s pilot certificate. Petitioner appealed the suspension to the National Transportation Safety Board (NTSB) but, days later, complied with the records request. The FAA then terminated her suspension, which lasted 14 days in total and reinstated her certificate. Nonetheless, an NTSB administrative law judge held a hearing on Petitioner’s appeal and concluded that the suspension was reasonable. Petitioner appealed the decision to the full NTSB, but it dismissed the matter as moot. Petitioner petitioned for a review of the NTSB’s final order under 49 U.S.C. Sections 44709(f) and 46110.
 
The Eighth Circuit concluded that Petitioner lacked Article III standing and dismissed the petition for lack of jurisdiction. The court explained that the first problem with Petitioner’s theory of future injury is that she has not shown with particularity how her brief suspension for noncompliance with a records request would harm her job prospects. Further, the court wrote that even assuming the 14-day suspension would be damaging to her job prospects, Petitioner’s claims are not y “real and immediate.” Moreover, the court explained that the record here lacks any facts showing that Petitioner’s suspension would harm her reputation in the estimation of the pilot community. Instead, Petitioner relied on vague, blanket statements of reputational harm.

ANDREW TETER, ET AL V. ANNE E. LOPEZ, ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 20-15948

Opinion Date: August 7, 2023

Judge: Bea

Areas of Law: Constitutional Law, Government & Administrative Law

In Hawaii, it is a misdemeanor knowingly to manufacture, sell, transfer, transport, or possess a butterfly knife—no exceptions. Plaintiffs sued Hawaii’s Attorney General and Sheriff Division Administrator (“Hawaii”). Plaintiffs sought declaratory relief to establish that section 134-53(a) violates the Second Amendment and injunctive relief against its enforcement. Plaintiffs alleged that, “but for Hawaii law,” they would purchase butterfly knives. On cross-motions for summary judgment, the district court concluded that section 134-53(a) does not violate the Second Amendment, granted Hawaii’s motion, and entered judgment in its favor.
 
The Ninth Circuit reversed district court’s summary judgment in favor of Hawaii officials. The court held that because the possession of butterfly knives is conduct protected by the plain text of the Second Amendment, and because Hawaii has not demonstrated that its ban on butterfly knives is consistent with this Nation’s historical tradition of regulating arms, the court concluded that section 134-53(a) violates Plaintiffs’ Second Amendment rights. The panel determined that Plaintiffs had standing to challenge Section 134-53(a) because they alleged that the Second Amendment provides them with a legally protected interest to purchase butterfly knives, and for section 134-53(a), they would do so within Hawaii. Plaintiffs further articulated a concrete plan to violate the law, and Hawaii’s history of prosecution under its butterfly ban was good evidence of a credible threat of enforcement. The panel held that possession of butterfly knives is conduct covered by the plain text of the Second Amendment. The panel held that Hawaii failed to prove that section 134-53(a) was consistent with this Nation’s historical tradition of regulating weapons.

JAMES HUNTSMAN V. CORPORATION OF THE PRESIDENT, ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-56056

Opinion Date: August 7, 2023

Judge: W. Fletcher

Areas of Law: Civil Procedure, Government & Administrative Law

Plaintiff brought suit in federal district court against the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, alleging fraud under California law. Plaintiff is a former member of the Church of Jesus Christ of Latter-Day Saints. (The Corporation is the legal entity behind the Church of Jesus Christ of Latter-Day Saints. We refer to both the Corporation and the Church as “the Church.”) Plaintiff alleged that, from 1993 until 2015, he contributed substantial amounts of cash and corporate shares to the Church as tithes. He alleged that during at least some of that time, he relied on false and misleading statements by the Church about its use of tithing money. The district court granted the Church’s motion for summary judgment. It held that no reasonable juror could find that the Church had fraudulently misrepresented how tithing funds were used.
 
The Ninth Circuit reversed in part, affirmed in part, and remanded. The court held that there is evidence in the record from which a reasonable juror could conclude that the Church knowingly misrepresented that no tithing funds were being or would be used to finance the development of the shopping mall and that Huntsman reasonably relied on the Church’s misrepresentations. The panel rejected the Church’s argument that Plaintiff’s fraud claims are barred by the First Amendment. The panel held that the ecclesiastical abstention doctrine did not apply because the questions regarding the fraud claims were secular and did not implicate religious beliefs about tithing itself. Nor was the panel required to examine Plaintiff’s religious beliefs about the appropriate use of church money.

JOHN HENDRIX, ET AL V. J-M MANUFACTURING CO., INC., ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-56276

Opinion Date: August 8, 2023

Judge: Hurwitz

Areas of Law: Civil Procedure, Government & Administrative Law, Professional Malpractice & Ethics

Relator John Hendrix and five public-agency exemplar plaintiffs claim that J-M Manufacturing Co. (“J-M”) violated the federal and various state False Claims Acts (“FCAs”) by representing that its polyvinyl chloride (“PVC”) pipes were compliant with industry standards. In Phase One of a bifurcated trial, a jury found that J-M knowingly made false claims that were material to the public agencies’ decisions to purchase J-M pipe. After the jury was unable to reach a verdict in Phase Two, the district court granted J-M judgment as a matter of law (“JMOL”) on actual damages and awarded one statutory penalty for each project involved in plaintiffs’ claims.
 
The Ninth Circuit affirmed. The panel held that sufficient evidence of falsity, materiality, and scienter supported the Phase One verdict. A reasonable jury could conclude that plaintiffs received some pipe not meeting industry standards. Further, the jury reasonably found that plaintiffs would not have purchased or installed J-M pipe had they been told the truth that J-M knew it had stopped producing pipes through processes materially similar to those used at the time of compliance testing and also knew that a significant amount of the pipe later produced did not meet industry standards. Plaintiffs’ failure to prove that any individual stick of pipe that they received was non-compliant did not mean that they failed to establish scienter. The panel held that the district court properly awarded JM judgment as a matter of law on actual damages under the federal False Claims Act. Plaintiffs did not establish actual damages by showing that they would not have bought the pipe had they known the truth.

Western Watersheds Project, et al. v. United States Bureau of Land Management, et al.

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-8022

Opinion Date: August 7, 2023

Judge: Timothy M. Tymkovich

Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use

Three conservation groups challenged the U.S. Bureau of Land Management’s approval of Jonah Energy’s development project on state and federal land in Wyoming. The project was designed to drill exploratory wells on land for which Jonah possessed development rights. The conservation groups argued the district court erred in upholding the BLM’s approval under the National Environmental Protection Act and the Federal Land Polocy and Management Act. Specifically, they contended the BLM inadequately considered the impact of the project on the sage-grouse and pronghorn antelope migration and grazing patterns. The Tenth Circuit concluded the BLM adequately collected and considered information on the sage-grouse and pronghorn, and selected a development plan that met statutory requirements.

Jerry Bainbridge, et al. v. Director of the Florida Division of Alcoholic Beverages and Tobacco

Court: US Court of Appeals for the Eleventh Circuit

Docket: 22-10525

Opinion Date: August 4, 2023

Judge: JILL PRYOR

Areas of Law: Consumer Law, Government & Administrative Law

Over 20 years ago, a group of Florida wine consumers and an out-of-state winery (collectively, the “Plaintiffs”) sued the Director of the Florida Division of Alcoholic Beverages and Tobacco, alleging that certain provisions of Florida’s beverage laws unconstitutionally discriminated against out-of-state wineries. After the United States Supreme Court ruled a virtually identical statutory scheme unconstitutional, the Division agreed to the entry of a judgment declaring Florida’s direct shipment laws unconstitutional as applied to out-of-state “wineries.” The Division also agreed to an injunction prohibiting it from enforcing its direct shipment laws “against out-of-state vendors and producers.” Significantly, these last five words were absent from the parties’ proposed injunction and were added sua sponte by the district court. No one objected to the court’s addition of this language. However, 16 years later, the Division filed a motion in district court to “clarify and modify” the injunction. Specifically, the Division asked the district court to confirm that the injunction applied only to out-of-state wineries rather than out-of-state wine retailers generally. The district court denied the Division’s motion.
 
The Eleventh Circuit affirmed. The court explained that here, the district court expressly determined that the injunction the court entered “accurately reflects the intent of the parties and the Court.” Rule 60(a) does not allow a district court to rewrite its decision any time a party later contends that the language is ambiguous. Thus, the court held that the district court did not err by construing the Division’s motion as made under Rule 60(b)(1) instead of Rule 60(a).

Optimal Wireless LLC v. IRS

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 22-5121

Opinion Date: August 8, 2023

Judge: SRINIVASAN

Areas of Law: Government & Administrative Law, Health Law, Tax Law

The Affordable Care Act obligates large employers to provide their full-time employees with health insurance coverage meeting certain requirements. If an employer fails to provide coverage or provides noncomplying coverage, it is liable for an exaction under 26 U.S.C. Section 4980H. In 2019, the Internal Revenue Service sent two letters proposing exactions under Section 4980H to appellant Optimal Wireless, a wireless communications company. Optimal then filed an action against the IRS and the Department of Health and Human Services, claiming that the agencies had failed to satisfy certain procedural requirements before imposing the proposed exactions. Optimal sought a declaratory judgment and an injunction barring the IRS from collecting any money without complying with those procedures. The district court dismissed Optimal’s suit for lack of jurisdiction.
 
The DC Circuit affirmed. The court explained that the Anti-Injunction Act provides that, with certain exceptions, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” The court explained that because Congress repeatedly called the Section 4980H exaction a tax, Optimal’s suit is barred by the Anti-Injunction Act. The court further wrote that Congress’s use of the phrase “assessable payment” does not conflict with—or otherwise detract from the import of—its choice to label the Section 4980H exaction a “tax” in multiple provisions. The terms are not mutually exclusive.

Rosalie Simon v. Republic of Hungary

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 22-7010

Opinion Date: August 8, 2023

Judge: PILLARD

Areas of Law: Civil Procedure, Government & Administrative Law, International Law

Two consolidated cases arise out of the Hungarian government’s confiscation of property owned by Jews during the Holocaust. The questions raised by these appeals bear on whether survivors of the Hungarian Holocaust may hale the Hungarian government and its instrumentalities into United States courts to answer for a subset of the wrongs they committed. The plaintiffs invoked the Foreign Sovereign Immunities Act’s expropriation exception as a means to pierce the Hungarian state’s sovereign immunity and assert jurisdiction in federal district court. Defendants object that the exception is inapplicable. The district court dismissed the claims of the plaintiffs asserting statelessness but concluded that most of the plaintiffs asserting Czechoslovakian nationality could proceed.
 
The DC Circuit largely affirmed. The court concluded that the plaintiffs claiming statelessness—have not made out a recognized claim within a Foreign Sovereign Immunities Act exception. Assuming without deciding that those plaintiffs were de facto stateless at the time of the alleged takings, as they claim, the plaintiffs have nevertheless failed to identify adequate affirmative support in sources of international law for their contention that a state’s taking of a stateless person’s property amounts to a taking “in violation of international law” within the meaning of the Foreign Sovereign Immunities Act.
 
The court affirmed the district court’s denial of Defendants’ motions to dismiss the claims of some of the plaintiffs asserting Czechoslovakian nationality, with a few exceptions. The district court correctly determined that four of those plaintiffs had plausibly alleged they were Czechoslovakian nationals at the time of the takings. The court concluded that as for the five Lebovics sisters, the district court should have dismissed their claims.

Xcel Energy Services Inc. v. FERC

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 20-1429

Opinion Date: August 4, 2023

Judge: CHILDS

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law

In this consolidated appeal of the Federal Energy Regulatory Commission’s (FERC) orders, two utility companies argue that Attachment Z2 plainly requires utilizing the N-1 Contingency Analysis (N-1) methodology. And they assert that FERC erred in concluding that the Tariff was ambiguous, relying on extrinsic evidence to interpret that the Reservation Stack Analysis (RSA) was the appropriate methodology. Second, they claim that the Regional Operator violated the filed rate doctrine because the filed rate was unclear about how much they would be charged. Finally, Petitioners contend that their charges offend Attachment Z1 because the Regional Operator neither identified the upgrade facilities that would accommodate their requests nor provided them with an estimate of the costs of such upgrades.
 
The DC Circuit dismiss in part the petitions for review related to the filed rate doctrine because that issue was not exhausted at the rehearing stage below. The court otherwise denied in part the petitions for review. The court explained that FERC appropriately noted that the purpose of Attachment Z1 is to identify new transmission facilities or new upgrades to existing facilities, while Attachment Z2 is designed to calculate a customer’s obligation to pay for its use of existing Creditable Upgrades funded by others. The court explained that because the difference between Attachment Z1 and Attachment Z2 arises out of their plain texts, and FERC’s orders acknowledged that difference, FERC “would clearly have acted on [this] ground even if the other [grounds] were unavailable.” Therefore, denying the petitions for review on this issue is consistent with precedents.

Lacy v. City and County of San Francisco

Court: California Courts of Appeal

Docket: A165899(First Appellate District)

Opinion Date: August 8, 2023

Judge: Simons

Areas of Law: Civil Rights, Constitutional Law, Education Law, Election Law, Government & Administrative Law

In 2016, San Francisco voters amended their city charter to authorize voting in local school board elections by noncitizen parents and guardians of school-age children. In 2018, the Board of Supervisors enacted an ordinance implementing Proposition N, including provisions requiring the City’s Department of Elections to develop a noncitizen voter registration form for school board elections. In 2022, after multiple school board elections in which noncitizens voted, this lawsuit was brought alleging the charter amendment violated the California Constitution. The trial court granted found the effective ordinance void and unenforceable

The court of appeal reversed and awarded the city costs. Neither the plain language of the Constitution nor its history prohibits legislation expanding the electorate to noncitizens. The relevant constitutional provisions authorizing home rule permit charter cities to implement such an expansion in local school board elections. This authority is consistent with the principles underlying home rule and permits the voters of each charter city to determine whether it is good policy for their city or not.

McCann v. City of San Diego

Court: California Courts of Appeal

Docket: D081185(Fourth Appellate District)

Opinion Date: August 9, 2023

Judge: Judith McConnell

Areas of Law: Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use

In the first appeal arising from Plaintiff-respondent Margaret McCann’s dispute with the City of San Diego over the City’s environmental review process of a project to convert overhead utility wires to an underground system in several neighborhoods, she alleged the City violated the California Environmental Quality Act (CEQA) by failing to properly consider the environmental impact of two underground projects. The Court of Appeal concluded the City’s review process was incomplete as to one project (MND Project) because the City failed to analyze whether they were consistent with the City’s Climate Action Plan. The judgment was reversed and the case remanded for the trial court to issue a peremptory writ of mandate ordering the City of set aside three resolutions that approved the projects. After remand, the trial court also ordered it would retain jurisdiction over the matter until the City complied with the relevant provisions of the CEQA. The City rescinded the project approvals and asked the court to discharge the writ. McCann objected to the City’s return and argued the trial court should not discharge the writ because the City did not perform the relevant analysis or affirmatively indicate it abandoned the projects. The trial court sustained McCann’s objection and declined to discharge the writ. The City then appealed, arguing it fully complied with the courts’ mandates. After review, the Court of Appeal determined the City satisfied the writ, and therefore held the writ had to be discharged.

Valenti v. City of San Diego

Court: California Courts of Appeal

Docket: D080133(Fourth Appellate District)

Opinion Date: August 8, 2023

Judge: Do

Areas of Law: Government & Administrative Law

Matt Vanenti appealed an order denying his post judgment motion for prevailing party attorney fees against the Court of San Diego and granting the City’s motion to strike his. ost memorandum. Valenti made a California Public Records Request; he contended on appeal that there was not sufficient evidence to support the trial court’s finding that his lawsuit was not a “sufficiently 'substantial’” cause of the City’s production of public records to merit an award of fees and costs. To this, the Court of Appeal disagreed and affirmed the trial court’s order.

Colorado v. Coats

Court: Colorado Supreme Court

Citation: 2023 CO 44

Opinion Date: August 7, 2023

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Legal Ethics, Professional Malpractice & Ethics

A Special Tribunal was convened to impose discipline on former Colorado Supreme Court Chief Justice Nathan Coats. The Colorado Commission on Judicial Discipline recommended approval of an Amended Stipulation for Public Censure. The censure stems from a 2018 allegation against Mindy Masias, the Chief of Staff and second in command of the State Court Administrator’s Office (SCAO), for misconduct while she was employed by the SCAO. She resigned her position, but was still under consideration for a post-resignation services contract with the Court, valued at $2.6 to $2.7 million. After an anonymous letter raised significant allegations of wrongdoing by Masias, the Office of the State Auditor (OSA) opened an investigation. Undisputed evidence revealed that the Judicial Department entered into this contract with Masias before the anonymous letter was received, and Justice Coats asserted he had no knowledge of the execution of Masias’ contract at that time. Months after execution of the contract and receipt of the letter, Justice Coats learned Masias had surreptitiously recorded a conversation with former Chief Justice Rice concerning the reasons Masias was not elevated to become the State Court Administrator. Had Justice Coats exercised due diligence by obtaining and reviewing the Masias separation agreement, he could have learned about the surreptitious recording prior to execution of the services contract. The Court ultimately withdrew from the services contract. Disciplinary proceedings were started against Justice Coats for failing to “perform judicial and administrative duties competently and diligently” as required by the Colorado Code of Judicial Conduct. The Commission recommended, and the Special Tribunal adopted the recommendation that Justice Coats be publicly censured.

Idahoans for Open Primaries v. Labrador

Court: Idaho Supreme Court - Civil

Docket: 50940

Opinion Date: August 10, 2023

Judge: Zahn

Areas of Law: Civil Procedure, Election Law, Government & Administrative Law

Petitioners Idahoans for Open Primaries and Reclaim Idaho filed an original action to the Idaho Supreme Court, claiming that the Idaho Attorney General’s short and general ballot titles for “The Idaho Open Primaries Act” failed to comply with Idaho Code section 34-1809(2)(d) and (e). Petitioners asked the Supreme Court to declare the ballot titles deficient, certify Petitioners’ proposed short and general ballot titles to the Idaho Secretary of State, or in the alternative, retain jurisdiction of this matter and order the Attorney General to immediately prepare ballot titles consistent with Petitioners’ proposed titles and submit them to this Court for review. Petitioners also requested a writ of mandamus compelling the Secretary of State to extend the deadline for Petitioners to obtain signatures to qualify the initiative for placement on the 2024 general election ballot. After review, the Supreme Court granted certiorari review, holding that the short and general titles failed to substantially comply with Idaho Code section 34-1809. The Attorney General was ordered to provide revised, substantially compliant short and general ballot titles. The request for mandamus relief was denied.

Dep't of Environment v. Assateague Coastal Trust

Court: Maryland Supreme Court

Docket: 11/22

Opinion Date: August 9, 2023

Judge: Booth

Areas of Law: Animal / Dog Law, Government & Administrative Law, Zoning, Planning & Land Use

The Supreme Court upheld the final determination of the Maryland Department of the Environment to reissue with revisions a general discharge permit to Animal Feeding Operations (AFOs), holding that the Department's final determination was reasonable and complied with applicable water quality standards.

The most recent iteration of the general discharge permit the Department issued to AFOs was finalized by the Department pursuant to certain statutory requirements requiring the Department to review and issue or reissue water pollution control permits once every five years. The circuit court vacated the permit and remanded the matter with instructions to incorporate certain water quality standards into the permit. The Supreme Court reversed the judgment of the circuit court, holding (1) the Department's AFO general discharge permit framework was reasonable and consistent with federal and state law; and (2) the Department's decision to evaluate each AFO individually and to require appropriately-tailored best-management practices to control the emissions where they presented a risk of discharge was reasonable and not an abuse of discretion.

In the Matter of the Denial of Contested Case Hearing Requests & Issuance of National Pollutant Discharge Elimination System

Court: Minnesota Supreme Court

Dockets: A19-0112, A19-0118, A19-0124, A20-1271, A20-1380, A20-1385

Opinion Date: August 2, 2023

Judge: G. Barry Anderson

Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law, Real Estate & Property Law

The Supreme Court held that an action taken by the Minnesota Pollution Control Agency (MPCA) in issuing a National Pollutant Discharge Elimination System/State Disposal System permit was arbitrary and capricious and that the permit did not comply with a Minnesota rule addressing wastewater discharges to groundwater, Minn. R. 7060.0600, subp. 2.

At issue was the MPCA's issuance of the permit for a Poly Met Mining, Inc. project. The court of appeals reversed in part, concluding that the MPCA failed properly to consider whether the federal Clean Water Act (CWA) applied to future discharges from Poly Met's facility to groundwater. The Supreme Court remanded the cause, holding (1) remand was required because there were suggestions that the MPCA did not properly consider whether the permit complies with the CWA and that the MPCA did not genuinely engage in reasoned decision-making; (2) remand was required for consideration of whether a variance was available to allow the planned discharge to the unsaturated zone within the containment system; and (3) the prohibition on injecting polluted water directly to the groundwater saturated zone for long-term storage did not apply in this case.

Phillips v. City of Oxford

Court: Supreme Court of Mississippi

Citation: 2021-CT-00639-SCT

Opinion Date: August 3, 2023

Judge: Coleman

Areas of Law: Civil Procedure, Government & Administrative Law, Personal Injury

While responding to an emergency, City of Oxford Police Officer Matthew Brown collided with Patricia Phillips’s vehicle at an intersection. Phillips filed suit to recover for injuries suffered in the collision. After a bench trial, the circuit court found that Officer Brown did not act with reckless disregard in response to the emergency and determined that the City of Oxford was entitled to police-protection immunity under the Mississippi Tort Claims Act. Phillips appealed; the Court of Appeals reversed. The majority of the appellate court held that the trial court’s finding that Officer Brown’s actions did not rise to the level of reckless disregard is against the overwhelming weight of the evidence and that Oxford was not entitled to police-protection immunity. IThe dissent’s opinion said that the circuit court’s judgment was supported by substantial evidence and, therefore, the Court of Appeals lacked the power to disturb the trial judge’s findings. After its review, the Mississippi Supreme Court found the record contained substantial evidence to support the trial court’s decision. Accordingly, the Court reversed the decision of the Court of Appeals and reinstated and affirmed the decision of the trial court.

Conforti v. County of Ocean, et al.

Court: Supreme Court of New Jersey

Docket: A-1-22

Opinion Date: August 10, 2023

Judge: Wainer Apter

Areas of Law: Government & Administrative Law, Health Law, Personal Injury

In summer 2010, plaintiff Carol Conforti obtained a restraining order against her husband. On September 8, he was arrested for violating the restraining order by returning to the marital home to see his son. Conforti was taken to the OCJ, where he was evaluated by a staff member of Correctional Health Services (CHS). A CHS staff member wrote on the “Intake Receiving and Screening” form that Conforti reported: (1) drinking half a gallon of vodka each day; (2) major surgery that left him with rods and screws in his back; (3) feeling “hopeless or helpless”; and (4) the “[r]ecent significant loss” of his marriage. A physician prescribed him one extra mattress and medicine for back pain and alcohol dependence, and instructed that he not be assigned work or a top bunk. After 27 days, Conforti was released. Just over a week later, Conforti was arrested for again returning to the marital home to see his son. He arrived at OCJ on October 13, 2010. A document from Conforti’s file acknowledged his previous incarceration and history of binge drinking but stated he had “[n]o current mental health issues/concerns” and was cleared for OCJ’s general population. On October 16, he requested medical attention for back pain. On October 20, Conforti wrote a suicide note to his parents, closed the door to his cell, covered the cell door window with a sheet, and hung himself. During discover, plaintiff submitted an expert report who opined that defendants the County of Ocean and the Ocean County Jail acted negligently by failing to adequately train and supervise OCJ staff to prevent inmate suicide. The County defendants moved for summary judgment on immunity grounds under the New Jersey Tort Claims Act (TCA). A jury found defendant negligent and apportioned liability 60% against the County and 40% against Correctional Health Services (CHS). Defendants moved for JNOV, reasserting their medical-facility-immunity argument. The New Jersey Supreme Court found no reversible error in the trial court’s refusal to dismiss plaintiff’s negligence count at the summary judgment stage, and no error in refusing to overturn the jury’s verdict after trial.

John Doe v. Keel

Court: South Carolina Supreme Court

Docket: 28170

Opinion Date: August 9, 2023

Judge: James

Areas of Law: Criminal Law, Government & Administrative Law

The United States District Court for the District of South Carolina certified a question of law to the South Carolina Supreme Court. Plaintiff John Doe was a convicted sex offender who moved from South Carolina to Georgia in 2015. He filed suit in South Carolina in federal court against the Chief of the South Carolina Law Enforcement Division (SLED) Mark Keel, contending in part that because he no longer resided in South Carolina, SLED should be prohibited from continuing to publish his name and information on the South Carolina Sex Offender Registry. The question certified to the Supreme Court involved whether South Carolina’s Sex Offender Registry Act (SORA) permitted the publication of out-of-state offenders on the state’s public sex offender registry. The Supreme Court answered the question in the affirmative.

Hauck v. Clay County Commission

Court: South Dakota Supreme Court

Citation: 2023 S.D. 43

Opinion Date: August 9, 2023

Judge: Myren

Areas of Law: Government & Administrative Law, Real Estate & Property Law

The Supreme Court affirmed in part and reversed in part the judgment of the circuit court denying Appellant's requests for writs of mandamus and certiorari to reverse the Clay County Board of Adjustment's decision affirming the order of the Clay County Planning Commission denying Appellant's proposed conditional use permit, holding that the circuit court erred in dismissing the writ of certiorari as untimely.

In denying Appellant's requests, the circuit court determined that the petition for writ of certiorari was untimely and that a writ of mandamus was not an available remedy. The Supreme Court reversed in part, holding that the circuit court (1) did not err in denying the writ of mandamus; but (2) erred in determining that it did not have jurisdiction to consider the writ of certiorari. The Court remanded the case for further proceedings to determine whether Appellant's petition seeking a writ of certiorari was timely filed.

Energy Policy Advocates v. Attorney General’s Office

Court: Vermont Supreme Court

Citation: 2023 VT 43

Opinion Date: August 4, 2023

Judge: Waples

Areas of Law: Civil Procedure, Government & Administrative Law, Legal Ethics

Plaintiff Energy Policy Advocates challenged a trial court’s conclusion that certain communications between different state attorney general offices were protected from disclosure under a public-records request, and further, that the trial court erred in declining to grant in-camera review of these documents. Additionally, plaintiff argued the trial court improperly granted only half of its fees despite substantially prevailing. The Vermont Attorney General’s Office (AGO) cross-appealed the trial court decision granting plaintiff any fees, arguing plaintiff was not entitled to fees as it did not substantially prevail. After review, the Vermont Supreme Court affirmed the trial court decision with respect to the withheld documents and reversed regarding the award of attorney’s fees.

Gates v. "Memorial Hospital of Converse County - Advanced Medicine. Hometown Care", ex rel. Board of Trustees of the Memorial Hospital of Converse County

Court: Wyoming Supreme Court

Citation: 2023 WY 77

Opinion Date: August 8, 2023

Judge: Fenn

Areas of Law: Communications Law, Government & Administrative Law

The Supreme Court reversed the summary judgment order of the district court requiring Memorial Hospital of Converse County (MHCC) to produce certain records requested under the Wyoming Public Records Act (WPRA) but also imposing a protective order on those documents, holding that the district court erred in finding that a certain document was not subject to disclosure under the WPRA.

On appeal, Plaintiff challenged the denial of her motion for summary judgment related to the production of documents involving a settlement between MHCC and a patient (MB settlement), arguing that the MB settlement was subject to production under the WPRA. The Supreme Court reversed, holding (1) the district court erred should have ordered MHCC to produce the MB settlement; and (2) the district court's entry of a protective order was contrary to the WPRA and without evidentiary support.

Justia Legal Guides: Small Business Center

Chris Skelton

Starting a business is exciting but also risky. A business owner must account for many legal and practical concerns en route to realizing their vision. The Small Business Legal Center at Justia points out some issues to keep in mind.

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