Financial Oversight & Management Bd. for P.R. v. Cooperativa de Ahorro y Credito

Court: US Court of Appeals for the First Circuit

Docket: 22-1092

Opinion Date: August 22, 2023

Judge: Jeffrey R. Howard

Areas of Law: Contracts, Government & Administrative Law

The First Circuit affirmed the judgment of the Title III court confirming a plan of adjustment that permitted the discharge of the Commonwealth of Puerto Rico from its obligation to pay Plaintiff the entire amount of a settlement it had entered into with the Commonwealth regarding the Commonwealth's milk regulation scheme, holding that there was no error.

Plaintiff and the Commonwealth of Puerto Rico litigated for years their dispute over the Commonwealth's milk regulation scheme. The dispute was resolved by settlement, after which the Commonwealth entered Title III proceedings to adjust the Commonwealth's sovereign debt. Under the plan of adjustment, the Commonwealth was no longer obligated to pay Plaintiff the full amount specified in the parties' settlement. Plaintiff subsequently brought this action challenging that decision. The Title III court discharged the Commonwealth from its obligation to pay Plaintiff the full amount specified in the settlement and overruled Plaintiff's objections to the Plan. The First Circuit affirmed, holding that Plaintiff's arguments on appeal failed.

Montoya-Lopez v. Garland

Court: US Court of Appeals for the First Circuit

Docket: 23-1036

Opinion Date: August 21, 2023

Judge: Sandra Lea Lynch

Areas of Law: Government & Administrative Law, Immigration Law

The First Circuit denied Petitioner's petition for review of a decision of the Board of Immigration Appeals (BIA) affirming the order of the immigration judge (IJ) denying Petitioner's application for asylum and withholding of removal under 8 U.S.C. 1158(b)(1)(A), 1231(b)(3)(A), as well as relief under the Convention Against Torture (CAT), holding that there was no error below.

Petitioner, a native and citizen of El Salvador, was charged with removability under 8 U.S.C. 1182(a)(6)(A)(i), and filed an application for asylum and withholding of removal. An immigration judge (IJ) found her removable and directed El Salvador as the country for removal. The BIA affirmed. The First Circuit denied Petitioner's petition for review, holding (1) sufficient evidence supported the IJ's factual findings, and the BIA committed no errors of law in its ruling; and (2) Petitioner waived her claim regarding the BIA's denial of CAT relief.

Buono v. Tyco Fire Prods., LP

Court: US Court of Appeals for the Second Circuit

Docket: 22-754

Opinion Date: August 24, 2023

Judge: PARK

Areas of Law: Government & Administrative Law, Personal Injury

Plaintiff was severely injured at work when a tank filled with compressed air exploded. Plaintiff brought common-law claims for strict liability and negligence against Tyco Fire Products, LP (“Tyco”), which sold the tank to Plaintiff’s employer. Tyco moved for summary judgment, arguing that Plaintiff’s claims are preempted under the Hazardous Materials Transportation Act of 1975 (“HMTA”), 49 U.S.C. Section 5125(b)(1). The district court held that the claims are preempted and granted Tyco summary judgment.
 
The Second Circuit affirmed. The court explained that the HMTA expressly preempts nonfederal laws “about” certain subjects related to the transportation of hazardous materials in commerce. The court explained that as relevant here, the HMTA preempts state laws that are (1) “about . . . the . . . marking” of a “container . . . that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce,” and (2) “not substantively the same as a provision” of the HMTA or a regulation promulgated thereunder. Both requirements are satisfied here. First, the court explained that the tank was “marked . . . as qualified for use in transporting hazardous material,” and Plaintiff’s common-law claims are “about” the “marking” of Tyco’s tank. Second, the court wrote that Plaintiff’s common-law claims cannot be deemed “substantively the same” because they would impose duties beyond the HMTA and associated regulations. The HMTA thus expressly preempts Plaintiff’s common-law claims.

Gonzalez v. United States

Court: US Court of Appeals for the Second Circuit

Docket: 21-548

Opinion Date: August 24, 2023

Judge: JOSEPH F. BIANCO

Areas of Law: Government & Administrative Law, Personal Injury

Plaintiff, on behalf of herself and her deceased husband, brought claims under the Federal Tort Claims Act against the United States alleging that a U.S. Department of Veterans Affairs hospital negligently failed to diagnose her husband with lung cancer. Prior to trial, the government conceded that the hospital’s ten-month failure to diagnose her husband was a departure from the standard of care. Following a two-day bench trial, the district court entered judgment and awarded $975,233.75 in damages to Plaintiff, including $850,000 for pain and suffering and $50,000 for loss of consortium.
 
On appeal, Plaintiff argued: (1) the district court erred in failing to adequately explain its factual findings and methodology for arriving at its awards as required under Federal Rule of Civil Procedure 52(a); and (2) the district court’s awards for pain and suffering and loss of consortium were based on legal errors.
 
The Second Circuit affirmed the judgment. The court first clarified that the appropriate standard of review for assessing a district court’s FTCA damages award governed by New York law is whether the award “deviates materially from what would be reasonable compensation,” as articulated under New York Civil Practice Law and Rules Section 5501(c). The court nonetheless found Plaintiff’s challenges to the district court’s damages awards to be unpersuasive. The district court’s explanation for the awards in its factual findings and conclusions of law, as well as in its denial of the motion to amend or alter the judgment as to these awards, satisfied the requirements of Rule 52.

Kevin Younger v. Tyrone Crowder

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-6422

Opinion Date: August 24, 2023

Judge: RICHARDSON

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

Plaintiff was brutally beaten by three Maryland corrections officers because they believed he had taken part in an assault on another officer. He sued their warden along with the officers who attacked him and their direct supervisors. A federal jury awarded Plaintiff $700,000. The warden appealed. He argued that this case should never have proceeded to trial because Plaintiff failed to exhaust his administrative remedies before suing. He also believes the district court should have found that the evidence failed to support the jury’s verdict and that he was entitled to qualified immunity.


The Fourth Circuit affirmed the district court. The court held that Plaintiff was not required to exhaust because no administrative remedies were available, the evidence supports the jury’s verdict, and the warden was not entitled to qualified immunity based on the facts found by the jury. The court explained that this case was properly tried before a jury because inmates cannot receive any relief through Maryland’s administrative grievance proceedings when the Intelligence and Investigative Division is investigating the subject matter of the grievance. And the jury’s role in trials is enshrined in the Seventh Amendment for good reason. Resolving factual disputes, weighing the evidence, and determining whom to believe is within its province. When a jury performs these functions, the court will not disturb its conclusions based on a cold record unless those conclusions lack evidentiary support. Here, the evidence was sufficient to support the jury’s conclusions. And based on how the jury resolved these issues, the warden’s conduct violated clearly established law.

Allstates Refractory Contractors, LLC v. Su

Court: US Court of Appeals for the Sixth Circuit

Docket: 22-3772

Opinion Date: August 23, 2023

Judge: Richard Allen Griffin

Areas of Law: Government & Administrative Law, Labor & Employment Law

Allstates, a full-service industrial general contractor, employs people throughout the country, subject to the Occupational Safety and Health (OSH) Act. Allstates must comply with Occupational Safety and Health Administration (OSHA) workplace safety standards. It has been the subject of enforcement actions, including a $10,000 fine for a 2019 catwalk injury. In a facial challenge to the OSH Act, Allstates argued that, because the only textual constraint on setting workplace-safety standards is that they be “reasonably necessary or appropriate,” 29 U.S.C. 652(8), OSHA does not have the constitutional authority to set those standards and employers do not have a duty to comply with OSHA’s standards. Allstates sought a permanent nationwide injunction. The district court granted the government summary judgment, reasoning that the “reasonably necessary or appropriate” standard provided an “intelligible principle” to satisfy the nondelegation doctrine because the Supreme Court has repeatedly upheld similar delegations.

The Sixth Circuit affirmed, finding OSHA’s delegation constitutional. The Act provides an overarching framework to guide OSHA’s discretion, and the Act’s standards comfortably fall within limits previously upheld by the Supreme Court. “To require more would be to insist on a degree of exactitude which not only lacks legal necessity but which does not comport with the requirements of the administrative process.”

Pedreira v. Sunrise Children's Services, Inc.

Court: US Court of Appeals for the Sixth Circuit

Docket: 21-5857

Opinion Date: August 22, 2023

Judge: Jane Branstetter Stranch

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

Over 20 years ago, taxpayers sued Kentucky and Sunrise, a religiously affiliated organization, for alleged violations of the Establishment Clause by paying for religious services that Sunrise allegedly imposed on children in state custody. The Sixth Circuit remanded the approval of a 2013 settlement. In 2015, the parties replaced monitoring provisions that mentioned Sunrise with general language about “any Agency.” The Third Circuit held, for the third time, that the plaintiffs had standing to bring their Establishment Clause claim but that the 2015 Amendment required new regulations or modifications to existing regulations for implementation, which meant the Amendment violated Kentucky law. In 2021 Kentucky and the plaintiffs jointly moved to dismiss the case with prejudice. Kentucky agreed to pursue new regulations in good faith; certain provisions of the Agreement would not take effect unless those regulations were adopted. The Settling Parties did “not” seek to have the court retain jurisdiction for enforcement, nor to incorporate the Agreement in the order of dismissal.

Noting that the motion was filed by “the parties to the sole remaining claim,” the Establishment Clause claim against Kentucky, the district court dismissed the case. The court refused to address the terms of the 2021 Agreement, which was not properly before it. The Sixth Circuit affirmed. “Sunrise no doubt is frustrated to find itself unable to vindicate the legality of its program” but federal courts do not decide constitutional issues in the abstract.

United States v. Jamison

Court: US Court of Appeals for the Sixth Circuit

Dockets: 21-4013, 21-3979

Opinion Date: August 18, 2023

Judge: Nalbandian

Areas of Law: Criminal Law, Government & Administrative Law, Government Contracts, White Collar Crime

Johnson was the councilman in Cleveland’s Buckeye-Shaker neighborhood for 41 years. Jamison was his executive assistant. For years, Johnson used his position to fraudulently claim federal reimbursements for payments he never made. He also secured employment for his children in federally funded programs, although they were not legally eligible to work in such positions. Johnson deposited their earnings into his own account. In addition, Johnson fraudulently claimed a series of tax deductions. He encouraged and assisted his son Elijah in submitting falsified records for Elijah’s grand-jury testimony. Jamison assisted Johnson in these crimes. Johnson and Jamison were convicted on 15 charges, including federal program theft under 18 U.S.C. 371, 666(a)(1)(A) and (2); tax fraud, 26 U.S.C. 7206(2); and obstruction of justice, 18 U.S.C. 1512(b) and 1519. Johnson was sentenced to 72 months in prison. Jamison was sentenced to 60 months.

The Sixth Circuit affirmed, rejecting challenges to the district court’s loss calculations and to sentencing enhancements for being an organizer or leader of a criminal activity involving five or more participants, for using a minor, and for obstructing justice. The district court properly admitted “other acts” evidence of prior misuse of campaign funds. Any other errors in evidentiary rulings were harmless.

Morehouse Enterprises, LLC v. Bureau of ATF

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2854

Opinion Date: August 22, 2023

Judge: MELLOY

Areas of Law: Constitutional Law, Government & Administrative Law

Two organizations, one individual, one business (collectively “Private Plaintiffs”) and seventeen states (“the States”) sued the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) for overstepping its statutory authority and for violating federal law in promulgating the “Definition of 'Frame or Receiver’ and Identification of Firearms” (“Final Rule”). Plaintiffs appealed the district court’s denial of a motion for a preliminary injunction.
 
The Eighth Circuit affirmed. The court explained that Plaintiffs have not clearly shown how the Final Rule will prevent them from engaging in constitutionally protected conduct. Regarding the business plaintiff in this case, we are left unsure what behavior it wishes to engage in, as an LLC, that is protected by the Second Amendment. Plaintiffs also argued they will suffer economic harm without a preliminary injunction. Plaintiffs asserted generally that compliance costs and uncertainty surrounding the validity and scope of the Final Rule will be costly to businesses and lead to fewer sales of firearms. However, Plaintiffs do not explain the economic harm in definite enough terms to show the extent of any harm is “actual and not theoretical.” The district court did not abuse its discretion in concluding Plaintiffs have not met their burden.

TODD ASHKER, ET AL V. GAVIN NEWSOM, ET AL

Court: US Court of Appeals for the Ninth Circuit

Docket: 21-15839

Opinion Date: August 24, 2023

Judge: R. NELSON

Areas of Law: Civil Rights, Class Action, Government & Administrative Law

A settlement agreement generally ends a legal dispute. Here, it was just the beginning. In August 2015, the State of California settled a dispute with a plaintiff class of inmates over alleged constitutional violations. Eight years later, the dispute continues. In settlement, the State agreed to stop housing inmates in solitary confinement for long-term or indefinite periods based on gang affiliation. The inmates’ counsel would monitor the state’s compliance for two years. The settlement agreement and monitoring period could be extended for twelve months if the inmates demonstrated continuing constitutional violations that were either alleged in their complaint or resulted from the agreement’s reforms. The twice successfully extended the settlement agreement before the district court.
 
The Ninth Circuit reversed in part, vacated in part, and dismissed in part the district court’s extensions of the settlement agreement. The panel reversed the district court’s order granting the first twelve-month extension of the settlement agreement. First, the panel held that there was no basis for extending the agreement based on the inmates’ claim that the CDCR regularly mischaracterizes the confidential information used in disciplinary hearings and fails to verify the reliability of that information. Next, the panel held that there was no basis for extending the agreement based on the inmates’ claim that CDCR unconstitutionally validates inmates as gang affiliates and fails to tell the parole board that old gang validations are flawed or unreliable. The claim was not included in, or sufficiently related to, the complaint.

Aguayo v. Garland

Court: US Court of Appeals for the Tenth Circuit

Docket: 20-9651

Opinion Date: August 18, 2023

Judge: Rossman

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

Petitioner Angel Aguayo filed a motion to terminate his removal proceedings, contending his state detention and transfer to U.S. Immigration and Customs Enforcement (ICE) custody was unlawful. Aguayo was a native and citizen of Mexico. In 1992, he entered the United States unlawfully. For over twenty-five years, Aguayo and his wife lived in Utah and raised four children. In March 2018, Aguayo’s daughter - a United States citizen - filed a visa petition on her father’s behalf. After U.S. Citizenship and Immigration Services (USCIS) approved the visa petition, Aguayo lawfully remained in Utah and applied to become a legal permanent resident. In 2019, state law enforcement officers arrested Aguayo in Springville, Utah. He was later charged with two counts of possession of a forged document, use or possession of drug paraphernalia, and having an open container in a vehicle. At the time of his arrest, Aguayo also had pending misdemeanor state charges for issuing a bad check, shoplifting, possession or use of a controlled substance, and use or possession of drug paraphernalia. Aguayo was detained at the Utah County Jail. The day after his arrest, agents from the Department of Homeland Security (DHS) encountered Aguayo during a routine jail check. DHS then issued an immigration detainer (an “ICE hold”) for Aguayo. He remained at the Utah County Jail for about five months. In June 2019, Aguayo pled guilty to some of the pending state charges. He was sentenced to thirty days in the county jail. He would be later sentenced to 364 days’ imprisonment on the forgery convictions, and an indeterminate term of imprisonment not to exceed five years on the bad check conviction. DHS initiated removal proceedings; Aguayo contested his removability. The Tenth Circuit denied Aguayo's petition: he did not show he was prejudiced—under any applicable standard—by the denial of his motion to terminate removal proceedings.

Adrian Da Costa v. Immigration Investor Program Office

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

Docket: 22-5313

Opinion Date: August 18, 2023

Judge: PILLARD

Areas of Law: Civil Rights, Government & Administrative Law, Labor & Employment Law

Noncitizens can qualify for employment-based U.S. visas by investing in designated commercial enterprises that create jobs in the United States. After making a qualifying investment, a noncitizen must petition the United States Citizenship and Immigration Services (USCIS) for the visa. In these two consolidated appeals, investors who have waited several years for USCIS to approve their petitions sue the agency for what they see as unreasonably delayed action in violation of the Administrative Procedure Act. The district courts in both cases granted USCIS’s motions to dismiss, holding that the investors’ allegations do not show USCIS’s delay to be unreasonable under the circumstances.
 
The DC Circuit affirmed. The court explained that Plaintiffs do not state a claim of unreasonable delay. The availability-screened queue is a rule of reason, and the complaints do not allege that USCIS follows a process other than its officially stated policy. Ruling in favor of Plaintiffs would require USCIS to process Plaintiffs’ petitions ahead of those of other petitioners who have been waiting as long or longer for their EB-5 petitions to be adjudicated. Congress did not set a deadline for agency action, Plaintiffs allege primarily financial harm, and the allegations do not point to government impropriety.

Eagle County, Colorado v. STB

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

Dockets: 22-1019, 22-1020

Opinion Date: August 18, 2023

Judge: Wilkins

Areas of Law: Government & Administrative Law

The consolidated petitions in this case concern an order of the Surface Transportation Board (“the Board”) authorizing the construction and operation of a new rail line in the Uinta Basin in Utah (“Railway”). The Board exercised its authority to exempt the Railway from the Board’s
more extensive application requirements in a two-part process. The first addressed the “transportation benefits” of the Railway, and the second concerned the project’s environmental impacts. As part of its environmental process, the Board created an environmental impact statement (“EIS”) outlining the various environmental impacts associated with the Railway’s construction and operation. The EIS was informed by the Board’s consultation with the Fish and Wildlife Service (“Service”), which led to the development of a Biological Opinion (“BiOp”) concerning the Railway’s potential impacts on endangered species and critical habitats.

Petitioners include various environmental organizations and a Colorado county that alleges it will be impacted by the Railway even though it is located “downline” of the proposed rail line’s construction area.

The D.C. Circuit granted the petitions in part, denied them in part, vacated the underlying order as well as the
EIS and the BiOp in part, and remand to the Board for further proceedings.

Watkins Law & Advocacy, PLLC v. DOJ

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

Docket: 21-5108

Opinion Date: August 18, 2023

Judge: SRINIVASAN

Areas of Law: Government & Administrative Law, Military Law

Appellant Watkins Law & Advocacy, PLLC, submitted requests under the Freedom of Information Act to various federal agencies, including the Federal Bureau of Investigation, the Department of Justice, and the Department of Veterans Affairs. Watkins sought records concerning the process by which the names of certain veterans and other VA beneficiaries are added to a background check system that identifies persons barred from possessing firearms for having been adjudicated as “mental defective[s].” Watkins initiated this FOIA action in the district court. The district court granted summary judgment to the agencies on almost all claims (and to Watkins on the remaining claims, none of which are at issue here). Watkins appealed the district court’s grant of summary judgment to the FBI and DOJ on the adequacy of their searches and to the VA on its withholding of documents based on the deliberative process and attorney-client privileges.
 
The DC Circuit affirmed the district court’s grant of summary judgment in favor of the FBI and DOJ. But we vacate the district court’s grant of summary judgment to the VA and remand for further proceedings. The VA did not satisfy its burden to show that the withheld documents are exempt from disclosure. The court concluded that the VA failed to adequately set out its basis for asserting the deliberative process and attorney-client privileges as to the withheld documents. The court wrote that because the VA offers no arguments about specific documents other than the eight that Watkins highlighted as illustrations, a blanket remand is appropriate.

Altizer v. Coachella Valley Conservation Com.

Court: California Courts of Appeal

Docket: E078037(Fourth Appellate District)

Opinion Date: August 21, 2023

Judge: Carol D. Codrington

Areas of Law: Civil Procedure, Government & Administrative Law, Personal Injury, Zoning, Planning & Land Use

Appellant Tanner Altizer suffered serious injuries when he ran into a suspended cable fence while riding his off-road motorcycle on an unpaved area in an unoccupied area of the desert. The owner of the property, respondent Coachella Valley Conservation Commission (the Commission), placed the cable fence around its property to stop illegal dumping and off-road vehicles in order to protect the sensitive habitat. Altizer sued the Commission, alleging that the cable fence created a dangerous condition on public property. The trial court granted summary judgment for the Commission, and Altizer appealed. After review, the Court of Appeal concluded the Commission was entitled to hazardous recreational activity immunity under Government Code section 831.71 and affirmed.

Assn. for L.A. Deputy Sheriffs v. County of L.A.

Court: California Courts of Appeal

Docket: B316067(Second Appellate District)

Opinion Date: August 21, 2023

Judge: BENDIX

Areas of Law: Government & Administrative Law, Labor & Employment Law

Three former deputies of the Los Angeles County Sheriff’s Department (department) were discharged from their employment for alleged misconduct. The former deputies filed administrative appeals with the Los Angeles County Civil Service Commission (commission). While their appeals were pending, the former deputies executed settlement agreements with department personnel that purported to reinstate the former deputies to employment. The County of Los Angeles (county) thereafter refused to comply with these settlement agreements. The former deputies and a labor union for department personnel (collectively, Appellants) filed suit against the county, the Los Angeles County Board of Supervisors (board of supervisors or board), the department, the Los Angeles County Sheriff (sheriff), the Los Angeles County Counsel (county counsel), and the Director of Personnel for the County of Los Angeles (director of personnel) (collectively, Respondents). Appellants sought enforcement of the settlements through mandamus, breach of contract, and promissory estoppel claims. The trial court sustained Respondents’ demurrers to Appellants’ pleading without leave to amend.
 
The Second Appellate District reversed the trial court’s judgments of dismissal. The court conclude that with the exception of the portion of Appellants’ declaratory relief cause of action that is premised on an alleged procedural due process violation, the trial court erred in denying Appellants leave to amend. Given that the trial court was reviewing Appellants’ first pleading and that Appellants could potentially discover the legal basis (if any) for the department’s alleged long-standing apparent belief that its personnel have the authority to settle commission appeals on their own. The court concluded that allowing appellants to file an amended pleading would not be an exercise in futility.

Cave Landing, LLC v. Cal. Coastal Com.

Court: California Courts of Appeal

Docket: B322976(Second Appellate District)

Opinion Date: August 18, 2023

Judge: Gilbert

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

The County of San Luis Obispo granted a permit to move an easement on a property in the coastal zone. However, the California Coastal Commission denied the permit. The trial court found in the Commission's favor.

The County appealed under the California Coastal Act of 1976( Coastal Act). The CoastalAct establishes a “coastal zone,” defined by an official map and generally extending from the mean high tide line landward 1000 yards. Every city or county with jurisdiction over lands within the coastal zone is required to create a “local coastal program” to implement the provisions and policies of the Coastal Act.

The Commission has de novo review authority over the County’s grant of the permit. Here, because the Commission denied the McCarthys’ permit on appeal, the development was not authorized pursuant to the Coastal Act. Thus the Second Appellate District affirmed the trial court's order.

In re Andres R.

Court: California Courts of Appeal

Docket: E079972(Fourth Appellate District)

Opinion Date: August 23, 2023

Judge: Menetrez

Areas of Law: Family Law, Government & Administrative Law, Native American Law

A.R. (Father) appealed the juvenile court’s dispositional order adjudging his son a dependent of the court and removing the child from his custody. The court also ordered reunification services for Father. Father’s one-year-old son, Andres R., came to DPSS’s attention in May 2022, when D.P. (Mother) called law enforcement to report domestic violence. Months later, the child was deemed a dependent of the court based on a social worker's findings of the child's living environment and interviews with his siblings and his mother. On appeal, Father challenged the sufficiency of the evidence supporting the court’s jurisdictional finding and the removal order. He also argued that the Riverside County Department of Public Social Services (DPSS) failed to comply with state law implementing the Indian Child Welfare Act of 1978 (ICWA) . Finding no reversible error, the Court of Appeal affirmed.

In re R.F.

Court: California Courts of Appeal

Docket: E079941(Fourth Appellate District)

Opinion Date: August 21, 2023

Judge: Fields

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

Appellant M.F. and her husband, J.F., were the paternal grandparents (PGPs) of R.F. and B.F. In 2021, the juvenile court terminated parental rights to the children and selected adoption as the children’s permanent plans. In Welf. & Inst. Code § 366.26 reports for each child, respondent Riverside County Department of Public Social Services (DPSS) recommended that the court designate the PGPs as the children’s “prospective adoptive parents” (PAPs). But at a hearing for B.F., counsel raised a concern about J.F.’s alcohol abuse; J.F. later tested positive for methamphetamines and amphetamines. In March 2022, DPSS removed the children from the PGPs’ home on an emergency basis. DPSS then filed a Judicial Council form JV-324 for each child, stating that the removals were “due to methamphetamine used by [J.F].” Together with the notice forms (JV-324), DPSS filed a form JV-326 for each child, stating that M.F. was given notice of the removals “orally, in person” on March 11. The proofs of notice (forms JV-326) did not show that M.F. was given: (1) copies of the notices of emergency removal DPSS filed on March 11; (2) blank copies of forms JV-325 (objection to removal); or (3) blank copies of forms JV- 321 (request for prospective adoptive parent designation). M.F. went to the courthouse to ask whether she could “do anything,” and she was told she could file an objection to removal on form JV-325. On March 25, M.F. filed a form JV-325 for each child, requesting a hearing on the removals, and claiming the children would suffer harm the longer they were separated from M.F.’s family. The juvenile court never set a hearing on the removals. On September 1, 2022, M.F., through an attorney, filed a section 388 petition for each child, asking the court to return the children to her care and claiming she was never notified of her right to file objections to, and request a hearing on, the removals.The court denied the petitions, without a hearing, on grounds: (1) M.F. was provided with notice of the removals on March 11; (2) thus, M.F.’s objections were untimely filed; and (3) a hearing on the removals was discretionary, not mandatory, pursuant to section 366.26(n)(3). M.F. appealed. The Court of Appeal reversed and remanded with orders to the juvenile court to hold a noticed hearing on the children’s March 11, 2022 removals.

Ward v. Colorado

Court: Colorado Supreme Court

Citation: 2023 CO 45

Opinion Date: August 21, 2023

Judge: Gabriel

Areas of Law: Constitutional Law, Government & Administrative Law

Petitioners, a number of Colorado residents, local officials, voters, counties, and county commissioners, a nonprofit corporation, and a metropolitan district, contended: (1) Senate Bill 23-303 (“SB 303”) and its embedded referred measure, Proposition HH, violated the Colorado Constitution’s single subject requirement; and (2) Proposition HH violated the constitution’s clear expression requirement. After review, the Colorado Supreme Court found Colorado courts did not have subject matter jurisdiction to review either SB303 or Proposition HH for compliance with the state constitution’s single subject requirement unless and until those measures have been approved by Colorado voters. The Court further concluded that although the Supreme Court had jurisdiction to consider petitioners’ clear expression challenges to Proposition HH, at least to the extent that any defects in the title were amenable to reformation by the courts, petitioners did not establish Proposition HH violated the clear expression requirement. Accordingly, the Supreme Court affirmed the portions of the district court’s judgment concluding that the court lacked jurisdiction to consider petitioners’ single subject claims and denying petitioners’ requested relief on their clear expression claims, and vacated the portions of the district court’s judgment conditionally deciding the merits of petitioners’ single subject claims. The Court expressed no opinion on the merits of petitioners’ single subject claims.

Human Rights Defense Center v. Maine County Commissioners Ass'n Self-Funded Risk Management Pool

Court: Maine Supreme Judicial Court

Citation: 2023 ME 56

Opinion Date: August 22, 2023

Judge: Horton

Areas of Law: Communications Law, Government & Administrative Law

The Supreme Judicial Court affirmed the judgment of the superior court awarding attorney fees to the Human Rights Defense Center (HRDC) based on the court's ruling after an evidentiary hearing that the Maine County Commissioners Association Self-Funded Risk Management Pool (Risk Pool) had refused in bad faith to comply with HRDC's lawful request for records, holding that the Risk Pool's response constituted a bad faith refusal.

HRDC submitted to the Risk Pool a request for records pursuant to the Maine Freedom of Access Act (FOAA), Me. Rev. Stat. 1, 400-414. The Risk Pool never denied or explicitly refused to comply with HRDC's request. Pursuant to FOAA's appeal procedure, HRDC filed a complaint against, among others, the Risk Pool. The Risk Pool filed a motion to dismiss, arguing that HRDC had failed to meet the FOAA requirement that the appeal be filed within thirty calendar days of the agency's "refusal, denial, or failure" to comply with the FOAA request. The motion was denied, and the court entered judgment in favor of HRDC. The Supreme Court affirmed, holding (1) HRDC's complaint was timely filed; and (2) the court did not err in awarding attorney fees based on the finding that the Risk Pool acted in bad faith in responding to HRDC's FOAA request.

Murray v. City of Portland

Court: Maine Supreme Judicial Court

Citation: 2023 ME 57

Opinion Date: August 22, 2023

Judge: Stanfill

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

The Supreme Judicial Court vacated the judgment of the superior court denying Appellants' Me. R. Civ,. P. 80B petition for review of government action and affirming the decision of the Portland Planning Board to approve 37 Montreal LLC's application to construct a multi-unit residential building, holding that the Planning Board did not err in approving the application.

On appeal, Appellants argued that the proposed development failed to meet the City of Portland's Code of Ordinance's height, setback, and design-review requirements, and therefore, the Planning Board erred in approving the application. The Supreme Judicial Court vacated the judgment below and remanded the matter to the Planning Board for findings of fact, holding that judicial review was impossible because the Planning Board's decision did not contain any of the required findings.

Metcalf v. BSC Group, Inc.

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13407

Opinion Date: August 21, 2023

Judge: Wendlandt

Areas of Law: Contracts, Government & Administrative Law, Government Contracts, Labor & Employment Law

The Supreme Judicial Court affirmed the judgment of the superior court judge granting summary judgment in favor of BSC Companies, Inc., BSC Group, Inc., and the companies' president (collectively, BSC) in this action brought by BSC's former employees alleging claims under the Prevailing Wage Act, Mass. Gen. Laws ch. 149, 26-27H, holding that the contracts at issue were not governed by the Act, and BSC was not required to pay its employees a prevailing wage pursuant to the contracts.

At issue were two professional engineering services contracts awarded by the Department of Transportation (MassDOT) to BSC. The contracts were not competitively bid and were not awarded to the lowest bidder, unlike contracts for public works construction projects governed by the Act. Further, the contracts did not specify that BSC's employees would be paid at least a prevailing wage determined by the Department of Labor Standards. The superior court judge granted summary judgment to BSC. The Supreme Court affirmed, holding that Plaintiffs were not entitled to a prevailing wage for their work under the professional services contracts.

Hernandez v. Dorantes

Court: Nebraska Supreme Court

Citation: 314 Neb. 905

Opinion Date: August 18, 2023

Judge: Per Curiam

Areas of Law: Family Law, Government & Administrative Law, Immigration Law

The Supreme Court affirmed the judgment of the district court awarding Mother sole legal and physical custody of the parties' minor child and making some of Mother's requested findings to support an application to obtain special immigrant juvenile (SIJ) status for the child under 8 U.S.C. 1101(a)(27)(J) of the Immigration and Nationality Act, holding that there was no abuse of discretion.

Mother and Father were married in Mexico and had one child, Max. The parties later moved to Nebraska, where they separated. Mother filed a complaint for dissolution, requesting sole legal and physical custody of Max. The district court dissolved the marriage and awarded Mother custody. The Supreme Court affirmed, holding (1) the district court did not err by refusing to make all the SIJ findings that Mother requested; and (2) Mother's second assignment of error was without merit.

Ortolano v. City of Nashua

Court: New Hampshire Supreme Court

Docket: 2022-0237

Opinion Date: August 18, 2023

Judge: MacDonald

Areas of Law: Civil Procedure, Government & Administrative Law

The City of Nashua (the City) appealed a superior court order granting the petition of Laurie Ortolano compelling the City to conduct a reasonable search of its back-up tapes for records in response to Ortolano’s Right-to-Know Law request. The request asked for all emails sent and received by the following current and former City employees: Louise Brown, between November 1, 2020 and her last day of work, December 25, 2020; Amanda Mazerolle, between November 1, 2020 and March 7, 2021; and Karina Ochoa, between November 1, 2020 and March 7, 2021. The City replied on June 23, 2021 informing Ortolano that Mazerolle and Ochoa would both conduct reasonable searches for records matching Ortolano’s descriptions and that Ortolano would receive an update or response by July 16, 2021. The City stated that it no longer had “reasonable access to Ms. Brown’s emails from the time of her employment.” the City “claim[ed] that it met its requirement under RSA 91-A by looking for emails in Ms. Brown’s Outlook application and her personal U-drive and it was not required under RSA 91-A:4, III(b) to search the City’s backup tapes because such tapes are not 'readily accessible’ as defined by the statute.” The trial court found that “it is undisputed that the City’s backup tape system exists, can be searched, and that files such as those requested by the petitioner are retrievable from the backup tapes.” After review of the superior court record, the New Hampshire Supreme Court found that the trial court did not err in finding that the requested emails on the back-up tapes were “readily accessible” to the City.

Weiss, et al. v. Town of Sunapee

Court: New Hampshire Supreme Court

Docket: 2022-0309

Opinion Date: August 23, 2023

Judge: MacDonald

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

Plaintiffs Bradley Weiss and Cathleen Shea appealed a superior court order granting defendant Town of Sunapee's (Town) motion to dismiss. The trial court determined that, because plaintiffs failed to request a second rehearing from the Town’s Zoning Board of Adjustment (ZBA), the court did not have subject matter jurisdiction over their appeal. The New Hampshire Supreme Court reversed and remanded: pursuant to RSA 677:3, plaintiffs perfected their appeal to the superior court from the ZBA’s April 1 denial by timely moving for rehearing.

Bindas. v. PennDOT

Court: Supreme Court of Pennsylvania

Docket: 27 WAP 2022

Opinion Date: August 22, 2023

Judge: Wecht

Areas of Law: Civil Procedure, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

In 2015, the Department of Transportation (“PennDOT”) began constructing a diamond interchange and installing a drainage system on property abutting Interstate 70 (“I-70”) in Washington County, Pennsylvania. The property’s owner, Appellant Donald Bindas, petitioned for the appointment of a board of viewers, seeking compensation for this encumbrance upon his land. PennDOT asserted that its predecessor, the Department of Highways (“DOH”), had secured a highway easement for the land in question in 1958. Both the trial court and the Commonwealth Court agreed, dismissing Bindas’ suit. Upon its review of the statutory authority that PennDOT invoked, as well as the record, the Pennsylvania Supreme Court found that DOH’s failure to comply with the requirements of 36 P.S. § 670-210 rendered that easement invalid. Accordingly, the Court vacated the Commonwealth Court’s order, and remanded with the instruction that PennDOT’s preliminary objections be overruled.

PA State Police v. ACLU of PA

Court: Supreme Court of Pennsylvania

Docket: 44 MAP 2022

Opinion Date: August 22, 2023

Judge: Wecht

Areas of Law: Civil Procedure, Government & Administrative Law

The issue this case presented for the Pennsylvania Supreme Court's consideration was whether the Commonwealth Court abused its discretion when, sua sponte, it issued a remand to the Office of Open Records (“OOR”) for additional fact-finding after that court already had determined that the agency subject to the record request failed to meet its burden of proving that an exception to disclosure requirements applied. To this the Court concluded that such an abuse of discretion occurred, and accordingly judgment was reversed. The Court remanded this matter to the Commonwealth Court for further proceedings.