Halsey v. Fedcap Rehabilitation Services, Inc.

Court: US Court of Appeals for the First Circuit

Docket: 23-1351

Opinion Date: March 4, 2024

Judge: Lynch

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

This case involves an appeal from plaintiffs Sara Halsey and Susan Kiralis-Vernon against Fedcap Rehabilitation Services, Inc. The plaintiffs were participants in a state program, Additional Support for People in Retraining and Employment - Temporary Assistance for Needy Families (ASPIRE-TANF), for which Fedcap was a contract agency. The plaintiffs allege that Fedcap failed to correctly administer the program and fulfill its obligations, including informing them of available services and support, processing their requests for benefits, and engaging in an interactive process to evaluate their requests for reasonable accommodations. Kiralis-Vernon also alleges that a Fedcap employee verbally assaulted her due, in part, to her race.

The U.S. District Court for the District of Maine dismissed the case, reasoning that the plaintiffs were required to first pursue an administrative remedy before the Department of Health and Human Services as required by Maine law. On appeal, the United States Court of Appeals for the First Circuit affirmed the dismissal of the claims related to Fedcap’s administration of the ASPIRE-TANF program, agreeing that under Maine law, the plaintiffs had to first seek administrative review before bringing these claims to court.

However, the appellate court vacated the dismissal of Kiralis-Vernon's claim of racial discrimination, ruling that this claim did not fall within the same jurisdiction and expertise of the Department, and thus, was not subject to the same requirement for administrative review. The case was remanded for further proceedings on this claim.

Jakuttis v. Town of Dracut

Court: US Court of Appeals for the First Circuit

Docket: 23-1238

Opinion Date: March 7, 2024

Judge: BARRON

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

The case involves Joseph A. Jakuttis, a former officer and detective in the Dracut Police Department, who also served as a Task Force Officer for the federal Drug Enforcement Administration's Cross Borders Initiative. Jakuttis brought multiple federal and state claims against the Town of Dracut, certain Dracut police officers, and members of the federal law-enforcement task force. He alleged that he was demoted and faced retaliation after reporting serious criminal activities implicating two Dracut police officers, which he learned from a confidential drug informant.

The United States Court of Appeals for the First Circuit affirmed the dismissal of Jakuttis's Bivens claims against Michael V. O'Hanlon and Richard P. Poirier, Jr., and his §1983 claim against the Town of Dracut, David J. Chartrand Jr., and Demetri Mellonakos. The court ruled that the defendants are entitled to qualified immunity, as they could have reasonably thought that Jakuttis was speaking as part of his official duties rather than as a private citizen when he reported the misconduct, thus not clearly violating his First Amendment rights.

The court also affirmed the dismissal of Jakuttis's state-law tort claims against Poirier, as Poirier was deemed to be acting within the scope of his federal employment during the relevant times. However, the court remanded the Massachusetts Whistleblower Act claim against the Town of Dracut and the Intentional Interference with Advantageous Economic Relationship claim against Chartrand and Mellonakos to the District Court. The court reasoned that these state-law claims should be resolved by a state court due to reasons of comity.

New Concepts for Living Inc v. NLRB

Court: US Court of Appeals for the Third Circuit

Docket: 22-3301

Opinion Date: March 4, 2024

Judge: Smith

Areas of Law: Business Law, Government & Administrative Law, Labor & Employment Law, Non-Profit Corporations

The United States Court of Appeals for the Third Circuit reviewed a decision of the National Labor Relations Board (NLRB) regarding unfair labor practices alleged against New Concepts for Living, Inc. New Concepts sought review of an NLRB order determining that it engaged in unfair labor practices by pushing to decertify its employees' union. The NLRB affirmed the administrative law judge's dismissal of three charges against New Concepts but reversed his dismissal of five others.

New Concepts, a nonprofit corporation providing services for people with disabilities, had been in a stalemate with its employees' union after the most recent collective bargaining agreement expired. Due to the union's inactivity, many employees expressed dissatisfaction and began a decertification movement. During this period, New Concepts suspended bargaining and issued memorandums to its employees about their right to resign from the union and stop the deduction of union dues. The NLRB found that these actions, as well as New Concepts' conduct during collective bargaining negotiations and a poll to assess union support, constituted unfair labor practices.

The Court of Appeals disagreed, concluding that the NLRB's determinations were not supported by substantial evidence. The court found that New Concepts had both contractual and extracontractual bases for distributing the memorandums, did not unlawfully track employee responses, and provided adequate assurances against reprisals. Additionally, the court determined that New Concepts did not engage in bad faith bargaining and that its poll and subsequent withdrawal of recognition from the union were lawful. The court thus granted New Concepts' petition for review and denied the NLRB's cross-application for enforcement.

US v. Hamilton

Court: US Court of Appeals for the Fourth Circuit

Docket: 21-4434

Opinion Date: March 6, 2024

Judge: TRAXLER

Areas of Law: Criminal Law, Government & Administrative Law

The case involved Martin William Luther Hamilton, who pleaded guilty to one count of possession with intent to distribute fentanyl and one count of unlawful possession of a firearm by a felon. The probation agent preparing Hamilton's presentence report determined that three of Hamilton’s prior North Carolina convictions qualified as violent felonies under the Armed Career Criminal Act (ACCA), which mandates a minimum of fifteen years for defendants who have three prior convictions for offenses that qualify as a “violent felony or a serious drug offense.”

Hamilton objected to the ACCA classification, disputing that the third conviction for attempted robbery with a dangerous weapon met the requirements of the ACCA. The district court followed a previous court's unpublished decision which held that a North Carolina conviction for attempted robbery with a dangerous weapon qualifies as a crime of violence for purposes of the career-offender provisions of the Sentencing Guidelines. As a result, the court concluded that Hamilton qualified as an armed career criminal and sentenced him to 180 months’ imprisonment.

Hamilton appealed, challenging only the district court’s determination that the attempted robbery conviction was a predicate offense under the ACCA. In response, the United States Court of Appeals for the Fourth Circuit affirmed the district court's decision, finding no error in the determination that Hamilton’s conviction under N.C. Gen. Stat. 14-87(a) qualifies as a violent felony for purposes of the ACCA.

Espinal v. City of Houston

Court: US Court of Appeals for the Fifth Circuit

Docket: 23-20075

Opinion Date: March 7, 2024

Judge: Duncan

Areas of Law: Civil Rights, Government & Administrative Law

Maximo Espinal, a security guard, was arrested by Houston police officers for aggravated assault. Although a grand jury initially indicted Espinal, the charges were subsequently dropped. Espinal then sued the officers involved and the City of Houston, claiming he had been subjected to false arrest, malicious prosecution, and assault. The district court dismissed all of Espinal's claims based on the officers' qualified immunity and immunity under Texas law.

Espinal's arrest occurred after he had a heated interaction with a plainclothes police officer, M.T. Long, who was trespassing on the property Espinal was guarding. After Espinal instructed Officer Long to leave, the officer returned with multiple police vehicles and arrested Espinal. Espinal alleged that the officers made no effort to view or collect video surveillance evidence that he said would prove his innocence.

The United States Court of Appeals for the Fifth Circuit affirmed the lower court's decision. The court ruled that the officers had probable cause for Espinal's arrest. Furthermore, the court found that even if the officers had lacked probable cause, the grand jury's subsequent indictment of Espinal shielded them from liability under the independent intermediary doctrine. The court also rejected Espinal's claim that he had been maliciously prosecuted, finding that Espinal failed to allege that the officers had misled the grand jury. Finally, the court ruled that Espinal's assault claim was barred by the Texas Tort Claims Act.

In Re: Kevin Clarke

Court: US Court of Appeals for the Fifth Circuit

Docket: 24-50079

Opinion Date: March 1, 2024

Judge: Smith

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

This case concerns a petition for a writ of mandamus filed by various users of the PredictIt platform against the United States District Court for the Western District of Texas. The petitioners challenged the district court's decision to transfer their lawsuit against the Commodities Futures Trading Commission (CFTC) to the U.S. District Court for the District of Columbia (D.D.C.).

PredictIt is an online platform that allows users to trade on the predicted outcomes of political events. In 2022, the CFTC Division of Market Oversight rescinded a “no-action” letter it issued to PredictIt's operator, Victoria University, in 2014. The petitioners, claiming injury from the CFTC's decision, filed a lawsuit against the CFTC alleging that the agency acted arbitrarily and capriciously in violation of the Administrative Procedure Act and withdrew a license without following necessary procedural steps.

The United States Court of Appeals for the Fifth Circuit found that the district court abused its discretion by transferring the case to D.D.C. based primarily on court congestion. The appellate court noted that none of the factors used to evaluate whether a case should be transferred under 28 U.S.C. § 1404(a) favored the CFTC's chosen venue of D.D.C. The court also pointed out that the district court's decision had implications beyond the immediate case due to the supervisory nature of writs of mandamus. Consequently, the petition for a writ of mandamus was granted, and the district court was directed to request the return of the case from D.D.C.

Brown v. Giles

Court: US Court of Appeals for the Sixth Circuit

Docket: 23-3142

Opinion Date: March 5, 2024

Judge: Thapar

Areas of Law: Civil Rights, Government & Administrative Law

The case revolves around a plaintiff, Jorden Brown, who was tasered by Officer Samuel Giles while fleeing from police, resulting in injuries to Brown. Brown sued Officer Giles, the police chief, and the municipality he was arrested in under 42 U.S.C. § 1983, alleging excessive use of force and violation of his Fourth Amendment rights. He also claimed that department policies or customs enabled these violations. The defendants moved to dismiss the case, and the district court granted the dismissal on the grounds that Brown failed to allege a violation of clearly established law. Brown appealed this decision.

The United States Court of Appeals for the Sixth Circuit affirmed the district court's decision. The court ruled that Brown failed to show that it was clearly established that tasing him in this particular context was excessive. They referred to previous cases where it was deemed reasonable for officers to tase fleeing suspects. The court further dismissed Brown's claim that the taser hit his head, arguing that during a chase, it is unrealistic to expect an officer to aim precisely to avoid the head.

The court also rejected Brown's claim that Officer Giles continued to tase him after he was incapacitated. Brown had provided video footage of the incident which, according to the court, showed that Officer Giles tased Brown only once. The court therefore ruled that Officer Giles was entitled to qualified immunity. As Brown's claims against Officer Giles failed, his claims against the police chief and the municipality were also dismissed.

Martin v. Haling

Court: US Court of Appeals for the Seventh Circuit

Docket: 22-3108

Opinion Date: March 1, 2024

Judge: FLAUM

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

The case involves Suzy Martin, the owner and president of Smart Elevators Co., a certified minority- and woman-owned elevator service and repair company. The company, which historically did most of its business with the State of Illinois and the City of Chicago, saw its customer base change after a whistleblower complaint alleged that Martin and her company engaged in a bribery and kickback scheme with a University of Illinois Chicago employee. This led to an investigation by the Office of the Executive Inspector General for the Agencies of the Illinois Governor (OEIG), which concluded that Martin, Smart Elevators, and the University employee had engaged in a kickback scheme that violated Illinois ethics law and University policy and recommended that the University sever ties with Martin and her company.

As a result of the report, the State and City ceased doing business with Martin and Smart Elevators, causing the company to lose millions in preexisting and potential contracts. Martin sued several State and City entities and officials under 42 U.S.C. § 1983, bringing “stigma-plus” procedural due process claims under the Fourteenth Amendment. The district court dismissed her amended complaint with prejudice.

Upon appeal, the United States Court of Appeals for the Seventh Circuit affirmed the district court's decision. The court concluded that Martin's occupation was operating an elevator service and repair business, not just providing those services specifically to the State or City. The court also found that despite the loss of State and City contracts, Martin had not been denied her liberty to pursue her occupation as she remained the owner and operator of Smart Elevators, which continued to operate and even managed to secure a contract with the Department of Justice in 2021. As such, the court found no violation of Martin's occupational liberty rights.

USA v. Creek

Court: US Court of Appeals for the Seventh Circuit

Docket: 23-1942

Opinion Date: March 6, 2024

Judge: St. Eve

Areas of Law: Criminal Law, Government & Administrative Law

In this case, the United States Court of Appeals for the Seventh Circuit affirmed the decision of the United States District Court for the Southern District of Illinois that a tin can filled with energetic powder, sealed with adhesive, and outfitted with a fuse qualifies as a "destructive device" under the National Firearms Act.

The case involved Jeffrey E. Creek, who was found in possession of such a device, firearms, magazines, ammunition, and a silencer that had been shipped from China. Creek was subsequently charged with unlawfully possessing a firearm as a felon. At his sentencing hearing, the district court applied a two-level "destructive device" enhancement in calculating his Guidelines range.

Creek appealed the decision, arguing that his device was a firework and not a destructive device. However, the appellate court found that the district court correctly classified the device as a bomb under the National Firearms Act due to it having a metal casing, an adhesive seal, explosive powder, and a fuse. It was irrelevant that Creek intended to use the device as a firework, as the device was fully assembled and fit the definition of a destructive device.

Creek also challenged the district court's consideration of his criminal history and substance abuse disorder in his sentencing. However, the appellate court dismissed these arguments, stating that the district court correctly exercised its discretion in considering Creek's full criminal history and the risk to public safety. As a result, the district court's judgment was affirmed.

Mandan, Hidatsa & Arikara Nation v. U.S. Dept. of the Interior

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-2459

Opinion Date: March 5, 2024

Judge: Benton

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

The Mandan, Hidatsa and Arikara Nation (MHA), an Indian nation of three affiliated tribes, appealed the U.S. Department of the Interior's Bureau of Land Management (BLM) approval of eight applications for oil drilling by the Slawson Exploration Company, Inc. next to Lake Sakakawea, MHA's sole source of drinking water. MHA challenged the approvals under the Administrative Procedure Act, arguing that BLM's approval of the project was arbitrary and capricious due to an insufficient record and by precluding MHA from further developing the record about the threat the project posed to MHA's health and welfare.

The United States Court of Appeals for the Eighth Circuit affirmed the district court's grant of summary judgment to BLM and Slawson, dismissing the case with prejudice. The court found that BLM had engaged in reasoned decision-making and had evaluated all relevant factors. It noted that the agency placed the responsibility on Slawson to comply with tribal law without impeding MHA's ability as a sovereign to enforce its laws. The court also found that BLM's decision not to evaluate tribal law did not impact tribal sovereignty. The court concluded that MHA's jurisdiction over Slawson's project was not a relevant factor to the approvals and therefore further development of the record was not required.

Furthermore, the court found that MHA was not entitled to an evidentiary hearing as there was no dispute of material fact and MHA had adequate opportunities to submit evidence. Therefore, the court ruled that MHA had received all process required by the Constitution, laws, and agency regulation.

Thigulla v. Jaddou

Court: US Court of Appeals for the Eighth Circuit

Docket: 22-3066

Opinion Date: March 5, 2024

Judge: Benton

Areas of Law: Government & Administrative Law, Immigration Law

The plaintiffs, Sandeep and Sarvani Thigulla, were lawful nonimmigrant workers seeking to become lawful permanent residents (LPRs) in the United States and had applied for approval of their Form I-485 applications with the U.S. Citizenship and Immigration Services (USCIS). When the Department of State decreased the number of applications it would adjudicate, the Thigullas sought a temporary restraining order against the Director of USCIS, compelling the prompt adjudication of their applications under the Administrative Procedure Act. The district court denied this order, and the Thigullas appealed.

The United States Court of Appeals for the Eighth Circuit dismissed the case due to a lack of subject-matter jurisdiction. The court found that the decision to delay adjudicating the Thigullas' applications falls under the Attorney General’s discretionary authority as stated in 8 U.S.C. § 1255(a) and that this authority is protected from judicial review by 8 U.S.C. § 1252(a)(2)(B)(ii). The court rejected the plaintiffs' arguments that this interpretation went against congressional intent, citing clear textual evidence in the statute. The court concluded that it lacked the jurisdiction to review the decision to delay adjudication of the applications, even under the Administrative Procedure Act. Consequently, the court dismissed the case and remanded it to the district court for proceedings consistent with its opinion.

RIEMAN V. VASQUEZ

Court: US Court of Appeals for the Ninth Circuit

Docket: 22-56054

Opinion Date: March 5, 2024

Judge: Smith

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

In this case, the United States Court of Appeals for the Ninth Circuit affirmed the district court's denial of absolute and qualified immunity to two County of San Bernardino social workers, Gloria Vazquez and Mirta Johnson. The plaintiffs, Sydney Rieman and her minor child K.B., alleged that the social workers violated their Fourth and Fourteenth Amendment rights by failing to provide them notice of a juvenile detention hearing and by providing false information to the Juvenile Court about why Ms. Rieman was not noticed for the hearing.

The court held that the social workers were not entitled to absolute immunity for their actions and omissions, such as providing false information to the Juvenile Court and failing to give notice of the detention hearing. These actions were not similar to discretionary decisions about whether to prosecute. Absolute immunity did not apply to the plaintiffs' claim that the defendants failed to give them notice of the detention hearing as such notice was mandatory.

The court also held that the defendants were not entitled to qualified immunity from suit for failing to provide notice of the hearing. Ms. Rieman had a due process right to such notice and that right was clearly established. The court stated that it was clear at the time that parents could not be summarily deprived of the care and custody of their children without notice and a hearing, except when the children were in imminent danger.

Finally, the court held that the defendants were not entitled to qualified immunity for their misrepresentation to the Juvenile Court about why Ms. Rieman was not noticed for the hearing. The court concluded that a reasonable social worker in the defendants' shoes would have understood, based on prior decisional law, that providing incomplete and false information to the Juvenile Court about Ms. Rieman’s whereabouts to convince the court that the social workers had satisfied the due process notice requirement constituted judicial deception.

Kane County v. United States

Court: US Court of Appeals for the Tenth Circuit

Docket: 22-4087

Opinion Date: March 4, 2024

Judge: PHILLIPS

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

The case involves a dispute over rights-of-way on federal land in Utah. Kane County and the State of Utah (collectively, "Kane County") have filed multiple lawsuits seeking to establish title to hundreds of these roads under an old statute known as Revised Statute (R.S.) 2477. The Southern Utah Wilderness Alliance and several other environmental groups (collectively, "SUWA") have sought to intervene in these lawsuits to oppose Kane County's claims and to argue for a narrow interpretation of any rights-of-way that are recognized.

In this appeal, the Tenth Circuit Court of Appeals determined that the district court incorrectly denied SUWA's motion to intervene on the issue of "scope," which concerns the use and width of any recognized rights-of-way. The court held that SUWA's interests in this issue were not adequately represented by the United States, which also opposed Kane County's claims but had broader responsibilities and interests to balance. However, the court affirmed the district court's denial of SUWA's motion to intervene on the issue of "title" (i.e., whether Kane County has a valid claim to the roads under R.S. 2477), because SUWA's interests on this issue were adequately represented by the United States. The case was sent back to the lower court for further proceedings consistent with the appeals court's decision.

A.P. Bell Fish Company, Inc. v. Raimondo

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

Docket: 23-5026

Opinion Date: March 1, 2024

Judge: Rogers

Areas of Law: Admiralty & Maritime Law, Government & Administrative Law

In this case, the United States Court of Appeals for the District of Columbia Circuit examined a dispute over Final Amendment 53 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. Commercial fishers challenged the amendment, which modified the allocation of red grouper between commercial and recreational sectors, for relying on inconsistent economic analyses and failing to comply with the Magnuson-Stevens Fishery Conservation and Management Act.

The commercial fishers argued that the Final Amendment 53 arbitrarily relied on an economic analysis that the Fisheries Service had previously rejected and that it lacked the required catch limits and accountability measures. They also claimed that the amendment violated National Standards 4 and 9 of the Act.

The court agreed with the commercial fishers in part, affirming that the Fisheries Service had failed to adequately explain its reliance on the disputed economic analysis and that further analysis was needed to determine how this influenced the application of National Standards 4 and 9. However, it also affirmed that Final Amendment 53 complied with the Act's requirement to establish a mechanism for specifying annual catch limits.

As a result, the court affirmed in part and reversed in part the grant of summary judgment to the Secretary of Commerce. It remanded the case, without vacating the Final Rule implementing Final Amendment 53, so the Fisheries Service could further explain its economic methodology and the implications for National Standards 4 and 9.

American Forest Resource Council v. Williams

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

Docket: 22-5216

Opinion Date: March 5, 2024

Judge: Ginsburg

Areas of Law: Environmental Law, Government & Administrative Law

This case involves a dispute between the American Forest Resource Council and the U.S. Fish and Wildlife Service over the designation of critical habitat for an endangered species of spotted owl. The U.S. Fish and Wildlife Service originally issued a proposed rule reducing the amount of land designated as critical habitat for the owl in the Pacific Northwest. However, after a change in presidential administrations, the Service reversed its decision and twice issued rules delaying the effective date of the proposed rule.

The Council challenged the validity of the delay rules, but after the rules had expired, the district court determined the plaintiffs’ claims had become moot and dismissed the case. The United States Court of Appeals for the District of Columbia Circuit agreed with the lower court's decision, affirming the judgment of the district court.

The court concluded that the Council’s lawsuit against the Service was moot because both delay rules had expired and had no continuing effect. The court also rejected the Council’s claim that their case fell under the exception to mootness for matters “capable of repetition yet evading review,” as they failed to provide evidence that they would be subjected to another Service delay rule in the future. Therefore, the court affirmed the district court's dismissal of the complaint, finding the case to be moot.

Environ Comm FL Elec Power v. EPA

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

Docket: 15-1239

Opinion Date: March 1, 2024

Areas of Law: Environmental Law, Government & Administrative Law

The case involves the Environmental Protection Agency's (EPA) decision to call for revisions to State Implementation Plans (SIPs) under the Clean Air Act because of the SIPs' inclusion of certain provisions related to emissions during startup, shutdown, and malfunction (SSM) periods. Two sets of petitioners, a group of states and a set of companies, challenged the EPA's decision. The court granted their petitions in part and denied them in part.

The court ruled that EPA could not call the SIPs for including automatic exemptions and director’s discretion provisions without finding that it was necessary or appropriate for these restrictions to qualify as emission limitations under the Clean Air Act. The EPA had failed to make such a necessary or appropriate finding.

The court upheld EPA's call of overbroad enforcement discretion provisions on the grounds that they could be read to allow state officials to foreclose EPA enforcement actions and citizen suits. As for affirmative defense provisions, the court agreed with petitioners as to certain types of affirmative defense provisions but rejected petitioners’ challenge as to other types.

J.G. Kern Enterprises, Inc. v. NLRB

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

Docket: 22-1287

Opinion Date: March 1, 2024

Judge: Edwards

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

The case pertains to J.G. Kern Enterprises, Inc. ("Company") and the National Labor Relations Board ("Board" or "NLRB"). After the Board certified a union to represent the Company's employees, the Company failed to engage in good faith bargaining for almost three months. When negotiations commenced, the Company refused to provide requested information about employee benefit plans. Two months after the certification year ended, the Company withdrew recognition from the Union, alleging the Union had lost its majority status.

The Union filed unfair labor practice charges against the Company. The Board found that the Company had violated Sections 8(a)(1) and (5) of the National Labor Relations Act by delaying bargaining, refusing to consider a Union-administered benefit plan, refusing to provide requested information, and withdrawing recognition from the Union during the extended certification year.

The Company petitioned for review, arguing that the Board erred in finding an unlawful withdrawal of Union recognition based on a retroactive extension of the original certification year, and that the Board had no legal basis to order the Company to bargain with the Union for an additional six months.

The United States Court of Appeals for the District of Columbia Circuit held that substantial evidence supported the Board's findings that the Company committed the alleged unfair labor practices. The court concluded that the Board was free to choose which legal theory to rely on in addressing the unfair labor practice charges and that the Board acted within its discretion when it ordered an extension of the certification year and required the parties to bargain to remedy the Company’s unfair labor practices. The court, therefore, denied the Company’s petition for review and granted the Board’s cross-petition for enforcement of its order.

Leopold v. DOJ

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

Docket: 22-5300

Opinion Date: March 1, 2024

Judge: Rogers

Areas of Law: Banking, Communications Law, Government & Administrative Law

In this case, the United States Court of Appeals for the District of Columbia Circuit was asked to consider an appeal brought by BuzzFeed, Inc. and one of its journalists, Jason Leopold, against a decision of the District Court granting summary judgment to the Department of Justice (DOJ). The appellants sought the release of a partially redacted report on HSBC Bank's conduct under the Freedom of Information Act (FOIA). The District Court had ruled that the report was entirely exempt from disclosure under FOIA Exemption 8 which protects reports related to the regulation or supervision of financial institutions.

The Court of Appeals held that the case must be remanded to the District Court to determine whether the DOJ can demonstrate that the release of any part of the report could foreseeably harm an interest protected by Exemption 8. The Court stressed the requirement for a sequential inquiry: first, whether an exemption applies to a document; and second, whether releasing the information would foreseeably harm an interest protected by the exemption. The Court found that the District Court had not sufficiently conducted this sequential inquiry, and the DOJ had not adequately demonstrated how the release of the report would cause foreseeable harm to an interest protected by Exemption 8.

The Court noted that the FOIA requires agencies to release any reasonably segregable portion of a record, even if an exemption covers an entire agency record. The Court determined that the DOJ had not satisfactorily explained why the release of a redacted version of the report would cause foreseeable harm to an interest protected by Exemption 8. Therefore, the Court vacated the District Court's grant of summary judgment to the DOJ and remanded the case for further consideration.

AVUE TECHNOLOGIES CORPORATION v. HHS

Court: US Court of Appeals for the Federal Circuit

Docket: 22-1784

Opinion Date: March 6, 2024

Judge: STARK

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

This case involves Avue Technologies Corporation ("Avue") and the Secretary of Health and Human Services and the Administrator of the General Services Administration. Avue is a software development company that sells its software to private and government entities, which helps them automate administrative tasks while complying with statutory, regulatory, and policy requirements. Avue does not sell its software licenses directly to federal agencies. Instead, it sells annual subscriptions through third party Carahsoft Technology Corporation (“Carahsoft”), an authorized reseller that has a Federal Supply Schedule (“FSS”) contract with the General Services Administration (“GSA”).

Avue tried to govern its relationship with end users of its software through an end-user licensing agreement ("EULA"), which is incorporated into the FSS contract between Carahsoft and the GSA. In 2015, the Food and Drug Administration ("FDA") placed a task order for a subscription to Avue's software under the FSS contract. However, in 2016, the FDA chose not to renew its subscription, leading Avue to claim that the FDA had violated its EULA.

The Civilian Board of Contract Appeals ("Board") dismissed Avue's appeal for lack of jurisdiction, stating that even if the EULA established a contract between Avue and the U.S. Government, the Board lacked jurisdiction because the EULA was not a procurement contract within the meaning of the Contract Disputes Act ("CDA"). Avue appealed this decision to the United States Court of Appeals for the Federal Circuit.

The court disagreed with the Board's decision, stating that Avue only needed to allege non-frivolously that it had a contract with the U.S. Government to establish the Board's jurisdiction, and it didn't need to prove the existence of such a contract. The court held that Avue's allegation that it was part of a procurement contract was non-frivolous and sufficient to establish the Board's jurisdiction. Therefore, the court vacated the Board's dismissal and remanded the case for further proceedings on the merits.

LEWIS v. BOP

Court: US Court of Appeals for the Federal Circuit

Docket: 23-2015

Opinion Date: March 4, 2024

Judge: Dyk

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

The case involved Sha’Lisa Lewis, a former correctional officer at the Federal Correctional Complex in Butner, North Carolina, who contested her termination from the Federal Bureau of Prisons (BOP) during her probationary period. Lewis contended that she did not receive notification of her termination until after her probationary term had ended. She argued that she was denied due process protections, such as a proposed removal action and a reasonable opportunity to respond.

The United States Court of Appeals for the Federal Circuit examined the issue, focusing on the interpretation of 5 C.F.R. § 315.804, which mandates that an agency notify an employee in writing about the reasons for termination and the effective date. The court ruled that while the agency must notify the employee, the regulation does not necessitate the employee's actual receipt of the notice before the end of the probationary period. The court held that termination is effective if the agency does all that could be reasonably expected under the circumstances to deliver the notice before the end of the probationary period.

In Lewis's case, the court concluded that BOP had made reasonable efforts to notify her of her termination before the end of her probationary period. Thus, the court affirmed that Lewis was effectively terminated as a probationary-period employee.

PFIZER INC. v. SANOFI PASTEUR INC.

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1871

Opinion Date: March 5, 2024

Judge: Lourie

Areas of Law: Government & Administrative Law, Intellectual Property, Patents

This case involves an appeal by Pfizer Inc. from decisions made by the U.S. Patent and Trademark Office Patent Trial and Appeal Board (the Board). The Board concluded that claims 1–45 of U.S. Patent 9,492,559, owned by Pfizer and related to immunogenic compositions comprising conjugated Streptococcus pneumoniae capsular saccharide antigens for use in pneumococcal vaccines, were unpatentable. The Board also denied Pfizer’s proposed amendments to the claims.

Pfizer's first challenge pertained to the Board’s conclusion regarding the molecular weight of the glycoconjugate in the patent, arguing that the Board incorrectly applied the "result-effective variable doctrine." The court disagreed, upholding the Board's decision that the molecular weight was a result-effective variable that a person of ordinary skill in the art would have been motivated to optimize.

Pfizer's second challenge related to the Board’s finding that the compositions of additional claims incorporating more specific glycoconjugates would have been obvious. The court disagreed with Pfizer's argument that without examples showing the claimed glycoconjugates would have each been immunogenic, there would have been no reasonable expectation of success.

Thirdly, Pfizer challenged the Board’s denial of its motions to amend the claims. The court affirmed the Board's decision on some of the proposed claims but vacated the decision on others, remanding them for further consideration due to the Board’s lack of clarity.

Lastly, Pfizer challenged the Patent and Trademark Office’s Director Review procedure, alleging it violated the Administrative Procedure Act (APA). The court rejected this argument, finding any potential APA violation was harmless as Pfizer had not demonstrated prejudice.

Therefore, the court affirmed the Board’s decisions in part, vacated them in part, and remanded the case back to the Board for further proceedings.

TIPPINS v. US

Court: US Court of Appeals for the Federal Circuit

Docket: 22-1462

Opinion Date: March 1, 2024

Judge: Taranto

Areas of Law: Government & Administrative Law, Military Law

Between 2010 and 2014, the United States Coast Guard convened Active Duty Enlisted Career Retention Screening Panels (CRSPs) to select enlisted service members for involuntary retirement. This process was carried out without following the procedures and standards of the then-applicable 14 U.S.C. § 357(a)–(h), which addressed involuntary retirement of certain Coast Guard service members with specified seniority. Several former Coast Guard service members, after being involuntarily retired through the CRSP process, brought a case against the United States in the Court of Federal Claims under the Tucker Act, asserting that their retirements were contrary to the law as the Coast Guard had not followed § 357(a)–(h). The government responded by invoking § 357(j), which stated that § 357(a)–(h) did not apply to a “reduction in force.” The issue of the applicability of that exception to the CRSPs was the primary topic of the appeal.

The United States Court of Appeals for the Federal Circuit affirmed the Claims Court's decision that the involuntary retirements were unlawful because the CRSPs were not part of a “reduction in force.” The court concluded that a “reduction in force” as used in § 357(j) did not include actions to separate current occupants from their positions with the intent to refill those positions. The court rejected the government’s arguments for a different conclusion. Therefore, the court affirmed the Claims Court’s partial final judgment.

STATE OF ARKANSAS, DEPARTMENT OF FINANCE AND ADMINiSTRATION v. WILSON

Court: Arkansas Supreme Court

Citation: 2024 Ark. 25

Opinion Date: March 7, 2024

Judge: Baker

Areas of Law: Government & Administrative Law, Tax Law

The Arkansas Supreme Court reversed and remanded a decision of the Phillips County Circuit Court, which had found in favor of Kit and Jole Wilson in their dispute with the Arkansas Department of Finance and Administration (ADFA). The Wilsons had restored a building in Arkansas and were granted a historic-rehabilitation income-tax credit. The ADFA applied this credit to the Wilsons' 2015 tax return before apportionment, reducing their tax liability. The Wilsons protested, asserting that their tax liability should have been zero after applying the credit. The circuit court ruled in the Wilsons' favor, determining that the ADFA must apply the credit after apportioning the Wilsons’ tax due and that certain state codes conflicted with each other.

However, the Supreme Court found that the ADFA correctly applied the tax credit before apportionment, in line with state law. The court also held that the state codes did not conflict with each other. The court concluded that the circuit court erred in its statutory interpretation and reversed its decision.

Safety-Kleen of Cal., Inc. v. Dept. of Toxic Substances Control

Court: California Courts of Appeal

Docket: A166575(First Appellate District)

Opinion Date: March 4, 2024

Judge: Fujisaki

Areas of Law: Environmental Law, Government & Administrative Law

Safety-Kleen of California, Inc. appealed against the denial of its petitions for a writ of mandate, which sought to compel the Department of Toxic Substances Control (the Department) to set aside final inspection violation scores concerning Safety-Kleen’s oil and hazardous waste treatment facility. The Department had classified certain violations at Safety-Kleen’s facility as Class I violations, which Safety-Kleen argued was an abuse of discretion under the Hazardous Waste Control Law (HWCL), as these violations did not pose a “significant threat to human health or safety or the environment.”

The Court of Appeal of the State of California First Appellate District disagreed with Safety-Kleen, interpreting the HWCL to permit classification of a violation as Class I under independent statutory bases, including those that do not pose a significant threat to human health or safety or the environment. The court held that the Department did not abuse its discretion in determining Safety-Kleen’s final inspection violation scores. It also rejected Safety-Kleen’s argument that a Class II violation can only be reclassified as a Class I violation if the violation is chronic or the violator is recalcitrant. The court affirmed the judgment of the lower court.

Temple of 1001 Buddhas v. City of Fremont

Court: California Courts of Appeal

Docket: A167719(First Appellate District)

Opinion Date: March 7, 2024

Judge: Brown

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

This case involves the Temple of 1001 Buddhas and others, who own a property in Fremont, California. They appealed against the City of Fremont's decision to uphold nuisance orders relating to their property based on alleged violations of the local building code. The plaintiffs argued that the appeals process used by the City of Fremont was preempted by section 1.8.8 of the California Building Code, which requires appeals to be heard by an independent agency or board, or the city's governing body. They also raised issues about the fairness of their administrative appeal hearing.

The Court of Appeal of the State of California, First Appellate District, Division Four concluded that the City of Fremont's appeals process did conflict with the state law in relation to enforcement determinations based on violations of Fremont’s Building Standards Code. However, it rejected the plaintiffs' claims about procedural unfairness and zoning violations.

The court reversed part of the judgment and directed the trial court to issue appropriate mandamus relief. This included compelling Fremont to establish an appeals board or authorized agency to hear appeals, or provide for an appeal to its governing body as required by section 1.8.8 of the Building Code. Furthermore, Fremont was compelled to set aside the administrative hearing decision sustaining the nuisance determinations in NOA 3 that are premised on violations of the Fremont Building Standards Code and to provide for an appeal for those nuisance determinations.

TRC Operating Co. v. Shabazian

Court: California Courts of Appeal

Docket: F085832(Fifth Appellate District)

Opinion Date: March 1, 2024

Judge: SNAUFFER

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

The case involves the California Geologic Energy Management Division (CalGEM) and TRC Operating Company, an oil operator. CalGEM, tasked with overseeing the state's drilling operations, enacted new regulations requiring oil operators to cease operations when a "surface expression" exists, or when there is reason to believe a specific operation is causing a surface expression. The operations must remain dormant until CalGEM authorizes their resumption in writing.

TRC, having been issued a regulatory notice to cease operations, complied but never received authorization to resume. TRC sought an administrative appeal, which went unheard. Consequently, TRC sought judicial review, arguing that the regulations were invalid and CalGEM's actions were arbitrary and capricious.

The trial court agreed with TRC, ruling the regulations were invalid, and granted declaratory relief. CalGEM appealed, arguing the regulations were valid and did not abuse its discretion in issuing the notice to TRC. The court concluded that the regulations were valid as they were consistent with the overall statutory scheme and were supported by substantial evidence. The court vacated the trial court's writ, and remanded the matter to the trial court to consider in the first instance whether CalGEM's actions in this case were arbitrary or capricious.

CITY OF WINDER v. BARROW COUNTY

Court: Supreme Court of Georgia

Docket: S23G0341

Opinion Date: March 5, 2024

Judge: McMillian

Areas of Law: Civil Procedure, Government & Administrative Law

In a dispute between the City of Winder and Barrow County, Georgia, the Supreme Court of Georgia addressed the interpretation of the Services Delivery Strategy (SDS) Act, with regard to the delivery of services to county and city residents and property owners and the funding of these services. The case initially revolved around three main issues: the maintenance of county roads and who benefits from them, the funding of services that primarily benefit the unincorporated area of the county, and whether the County could challenge the water rates charged by the City as an illegal tax.

The court concluded that determining whether the maintenance of county roads primarily benefits the unincorporated area of a county cannot be resolved as a matter of law and requires analysis of the totality of the circumstances involved. The court held that services that primarily benefit the unincorporated area of the county should be funded through the mechanisms delineated in the Act, limiting the sources within a special district that can be used for funding.

Finally, the court decided that a superior court adjudicating a petition under the SDS Act is not authorized to determine whether the City’s usage rates charged to water customers in unincorporated areas of the County are an illegal tax. The court reversed the rulings of the lower courts and remanded the case for further proceedings.

Fallon Community Health Plan, Inc. v. Acting Director of the Department of Unemployment Assistance

Court: Massachusetts Supreme Judicial Court

Docket: SJC-13440

Opinion Date: March 4, 2024

Judge: Budd

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

In this case, the plaintiff, Fallon Community Health Plan, Inc., adopted a policy requiring its employees to be vaccinated against COVID-19. The defendant, Shanika Jefferson, a home health aide employed by Fallon, sought a religious exemption from the vaccination requirement. Her request was denied, and her employment was terminated. Jefferson then applied for and was approved for unemployment benefits from the Department of Unemployment Assistance. However, Fallon contended that Jefferson was ineligible for the benefits and sought review of the decision. The board of review of the department, as well as a District Court judge, affirmed the decision.

Fallon argued that Jefferson was disqualified from receiving unemployment benefits as per § 25 (e) (2) of General Laws c. 151A because she refused the COVID-19 vaccine in knowing violation of Fallon's reasonable policy and in wilful disregard of Fallon's interest in keeping its vulnerable patient population healthy. However, the Supreme Judicial Court disagreed with Fallon's contention. The court held that Jefferson did not engage in "deliberate misconduct", but rather made a good faith effort to comply with Fallon's policy by applying for a religious exemption. The court also found that Fallon failed to demonstrate that Jefferson should be disqualified on the basis of a "knowing violation" of that policy. The court considered the unique circumstances of the case, including Jefferson's sincere religious beliefs, which did not present her with a meaningful choice regarding vaccination. Therefore, the Supreme Judicial Court affirmed the decision of the lower courts, allowing Jefferson to receive unemployment benefits.

Fraternal Order of Police Lodge #88 v. State

Court: Nebraska Supreme Court

Citation: 316 Neb. 28

Opinion Date: March 1, 2024

Judge: Funke

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

The Nebraska Supreme Court reversed a decision made by the Commission of Industrial Relations (CIR) that included corrections unit case managers within the protective service bargaining unit (PSBU), represented by the Fraternal Order of Police Lodge #88 (FOP 88). The case arose from a petition filed by FOP 88 to the CIR to clarify or amend the PSBU to include corrections unit case managers. The State of Nebraska appealed the CIR's decision, arguing that corrections unit case managers were supervisors and, hence, should not be in the same bargaining unit as their subordinates. The court deemed the CIR had erred in giving preclusive effect to its 2018 order, which certified FOP 88 as the bargaining representative for the PSBU. The court held that the issue of whether corrections unit case managers were part of the PSBU was not precluded by the 2018 order. The court remanded the matter back to the CIR to again determine whether the PSBU includes corrections unit case managers based on the existing record, with instructions to provide an explanation forming the basis for its ruling.

Weber v. NDDOT

Court: North Dakota Supreme Court

Citation: 2024 ND 37

Opinion Date: March 7, 2024

Judge: Crothers

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

The case revolves around Lawrence Weber, who was arrested for driving under the influence of alcohol (DUI). Weber's driving privileges were suspended for 180 days by a North Dakota Department of Transportation hearing officer following his refusal to take a chemical breath test after his arrest. Weber argued that he was not provided with a reasonable opportunity to contact an attorney, which he claimed invalidated the authority of the North Dakota Department of Transportation to revoke his driving privileges.

On February 26, 2023, Weber was arrested after an onsite screening test showed a blood alcohol content of .152 percent. Following his arrest, when asked to take a chemical breath test, Weber invoked his Fifth Amendment rights and requested an attorney. Despite being given access to his phone to contact his attorney, Weber made a call to an individual who refused to help him contact his attorney. Weber did not attempt to make further calls or ask for additional time to contact his attorney.

The hearing officer found that Weber refused to take the chemical breath test and had a reasonable opportunity to call an attorney. The officer's findings were upheld by the district court. Weber appealed the decision, maintaining that he was not provided with a reasonable opportunity to contact an attorney.

The Supreme Court of North Dakota affirmed the judgment of the district court. The court concluded that Weber was provided with a reasonable opportunity to contact an attorney and his right to counsel was satisfied. Weber's claim that he was denied the opportunity to contact an attorney was not supported by the evidence. The court found that the hearing officer's findings were supported by a preponderance of the evidence, and her conclusion that Weber was not deprived of his right to consult counsel was in accordance with the law.

State ex rel. Clark v. Dept. of Rehab. & Corr.

Court: Supreme Court of Ohio

Citation: 2024-Ohio-770

Opinion Date: March 6, 2024

Areas of Law: Civil Procedure, Government & Administrative Law

This case involves a dispute over a public records request made by the relator, Thomas Clark, an inmate at Lebanon Correctional Institution. Clark sent a request to the Ohio Department of Rehabilitation and Correction (ODRC) for an up-to-date paper copy of the commissary price list for each commissary window at the prison. After several failed attempts to obtain the information through internal procedures, and despite an assurance from an inspector that he would provide the requested lists, Clark had still not received the paper copies. He therefore filed a mandamus action to compel the ODRC to provide the records.

The Supreme Court of Ohio denied the writ of mandamus as moot because the ODRC had already provided Clark with the records he requested. However, the court found that the ODRC had failed to comply with its obligations under Ohio's Public Records Act, R.C. 149.43, for 11 business days starting from the day Clark filed the mandamus action. Accordingly, the court awarded Clark $1,000 in statutory damages, the maximum amount allowed under the statute. The court declined to award court costs, finding no evidence of bad faith on the part of the ODRC.

Miller Theatres v. Tax Commission

Court: Utah Supreme Court

Citation: 2024 UT 8

Opinion Date: March 7, 2024

Judge: Pohlman

Areas of Law: Government & Administrative Law, Tax Law

This case involved a group of businesses (referred to collectively as Taxpayers) who filed applications for adjustments to the fair market value of their properties for tax year 2020 in the state of Utah. They claimed that their properties' values had decreased due to "access interruption" caused by the COVID-19 pandemic and associated government guidelines, which they argued constituted a circumstance beyond their control under Utah Code section 59-2-1004.6 (the Access Interruption Statute).

The Utah State Tax Commission rejected this argument, maintaining that the pandemic did not qualify as an "access interruption event" under the Access Interruption Statute. It reasoned that the statute applies only if access was interrupted due to any of thirteen enumerated events or due to a similar event as determined by the Commission via administrative rule. Because the pandemic neither fit into any of the enumerated categories nor was included in the Commission's administrative rules, the Commission ruled that the statute did not apply.

The Supreme Court of the State of Utah agreed with the Commission's reasoning, holding that the Access Interruption Statute allows only the Commission to add to the statute’s list of qualifying circumstances if the Commission determines by rule that the additional event is similar to the events enumerated in the statute. Because the pandemic was not an enumerated event and had not been added by administrative rule, the Supreme Court upheld the Commission's decision.

Assurance Wireless USA, LP v. Dep't of Revenue

Court: Washington Supreme Court

Docket: 101,873-8

Opinion Date: March 7, 2024

Judge: STEPHENS

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

The Supreme Court of the State of Washington heard a case involving Assurance Wireless USA LP, a telecommunications company that provides wireless services to low-income consumers as part of the federal "Lifeline" program. Assurance contested the Department of Revenue's tax assessments on the reimbursements they received for their services, arguing that the transactions were not retail sales. The Board of Tax Appeals (BTA) upheld the tax assessments, finding that the transactions did constitute retail sales and that the tax burden fell on the Universal Service Administrative Company (USAC), the nonprofit appointed by the Federal Communications Commission (FCC) to administer the Lifeline program.

The Supreme Court agreed that the transactions were retail sales and that USAC, not the Lifeline consumers or the FCC, bore the legal incidence of the tax. However, the Court concluded that USAC operates as an instrumentality of the federal government, meaning that the retail sales tax violated the intergovernmental tax immunity doctrine as applied in this case. The Court ultimately reversed the decision of the Court of Appeals and remanded the case to the BTA for further proceedings in line with this opinion.

West Virginia Department of Human Resources v. A.R.

Court: Supreme Court of Appeals of West Virginia

Docket: 22-0389

Opinion Date: March 5, 2024

Judge: Walker

Areas of Law: Family Law, Government & Administrative Law

In a suit involving the West Virginia Department of Human Services (the Department), the plaintiff, A.R., alleged that her injuries stemmed from the Department's negligence, specifically its failure to follow proper procedures, policies, and protocols mandated by the Child Welfare Act. The Department moved to dismiss the claims on the basis of qualified immunity, asserting that the claims were based on discretionary, governmental functions and thus it was immune from claims of negligence. However, the Circuit Court of Kanawha County denied the Department’s motion.

In its decision, the Supreme Court of Appeals of West Virginia reversed the lower court's decision in part, ruling that the Department was indeed entitled to qualified immunity from A.R.'s negligence claims. The Court found that the hiring, training, and supervision of employees were discretionary governmental functions, and A.R.'s broad allegations that the Department violated the Child Welfare Act and the Child Protective Services Policy were insufficient to defeat the Department's claim of qualified immunity. The court remanded the case for further proceedings, consistent with its opinion.