Saturday, August 27, 2011

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law
Source: Justia August 26, 2011

 

 

Dickow v. United States

Court: U.S. 1st Circuit Court of Appeals


Docket: 10-2151 Opinion Date: August 19, 2011
Judge: Lynch
Areas of Law: Government & Administrative Law, Tax Law
The executor paid estate taxes in October, 2003, and filed the estate tax return in September, 2004, but the IRS denied a second extension request and he did not file an amended return and refund request for overpaid estate taxes in the amount of $237,813.48 until September, 2007. The IRS denied the claim on the ground that the refund sought was outside the three-year look-back period set forth in 26 U.S.C. 6511(b)(2)(A). The district court dismissed and the First Circuit affirmed, for lack of subject matter jurisdiction. The IRS correctly determined that it did not have the authority to and did not grant a second six-month extension. While the regulations do not explicitly say that there may be only one extension for executors who are not abroad, they provide for only one automatic extension. An equitable estoppel claim is not available and would have no merit.


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Amador v. Superintendents of Dep't. of Correctional Servs.

Court: U.S. 2nd Circuit Court of Appeals


Docket: 08-2079 Opinion Date: August 19, 2011
Judge: Winter
Areas of Law: Civil Rights, Class Action, Constitutional Law, Criminal Law, Government & Administrative Law
Thirteen present and former female inmates of various New York state prisons appealed from the dismissal of their class action complaint brought under 42 U.S.C. 1983, seeking declaratory and injunctive relief compelling the Department of Correctional Services (DOCS) to alter its practices and procedures so as to enhance the protection of the class from sexual assault, abuse, and harassment. The complaint also asserted individual claims for damages. The dismissal was based on the grounds that some of the claims of named plaintiffs were moot and that the remaining named plaintiffs had failed to exhaust available remedies as required by the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. 1997e. The court held that it lacked pendant appellate jurisdiction over the damages claims. The court also held that the claims for injunctive and declaratory relief by plaintiffs who were now free but were in DOCs custody when they brought suit were not moot. The court applied a relation-back theory and determined that plaintiffs' class claims were capable of repetition, yet evading review. The court further held that three plaintiffs have exhausted applicable internal prison grievance proceedings while the remaining ten have not. Accordingly, the court vacated the judgment in part and remanded for further proceedings.


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Federal Trade Commission v. Bronson Partners, LLC

Court: U.S. 2nd Circuit Court of Appeals


Docket: 10-878 Opinion Date: August 19, 2011
Judge: Lynch
Areas of Law: Business Law, Consumer Law, Corporate Compliance, Government & Administrative Law, Health Law
This case arose when the FTC alleged deceptive advertising claims against defendants based on two purported weight loss products, a Chinese Diet Tea and a Bio-Slim Patch. On appeal, defendants challenged both the power of the district court to award monetary relief and the means by which the district court calculated the award. The court held that the district court had the power to award restitution pursuant to Section 13(b) of the Federal Trade Commission Act, 15 U.S.C. 53(b). The court also held that the district court did not err in ordering defendants to disgorge the full proceeds from its sale of the products in question. Accordingly, the court affirmed the judgment of the district court.


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United States v. Fumo

Court: U.S. 3rd Circuit Court of Appeals


Docket: 09-3388 Opinion Date: August 23, 2011
Judge: Fuentes
Areas of Law: Criminal Law, Government & Administrative Law, White Collar Crime
The former Pennsylvania State Senator was sentenced to 55 months' imprisonment, a $411,000 fine, and $2,340,839 in restitution, after conviction on 137 counts of fraud, tax evasion, and obstruction of justice. His former aide was sentenced to imprisonment of one year and one day, a $45,000 fine, and joint and several restitution of up to $792,802, after conviction on 45 counts. The Third Circuit affirmed the senator's conviction, but vacated both sentences. The court acted within its discretion in admitting evidence concerning the state Ethics Act. The content and enforcement of the Act were relevant to the claim that there were rules that the senator broke repeatedly, that those rules were clear enough for him to understand, and to show that he was deceiving the Senate when he misrepresented or omitted aspects of his actions and expenditures to avoid the perception that he had violated those rules. A juror's social media comments did not merit a new trial, nor did another juror's exposure to excluded evidence. The district court's failure to calculate a final guidelines range left the court unable to review the procedural and substantive bases of the sentence and affects the substantial rights of the parties; the court abused its discretion with respect to several aspects of sentencing.


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Chesbrough v. VPA, P.C.

Court: U.S. 6th Circuit Court of Appeals


Docket: 10-1494 Opinion Date: August 23, 2011
Judge: Boggs
Areas of Law: Government & Administrative Law, Government Contracts, Health Law, Public Benefits, White Collar Crime
Doctors filed suit, alleging violations of the False Claims Act, 31 U.S.C. 3279 and the Michigan Medicaid False Claim Act, as qui tam relators on behalf of the United States/ The claimed that the business defrauded the government by submitting Medicare and Medicaid billings for defective radiology studies, and that the billings were also fraudulent because the business was an invalid corporation. The federal government declined to intervene. The district court dismissed. Sixth Circuit affirmed. The doctors failed to identify any specific fraudulent claim submitted to the government, as is required to plead an FCA violation with the particularity mandated by the FRCP. A relator cannot merely allege that a defendant violated a standard (in this case, with respect to radiology studies), but must allege that compliance with the standard was required to obtain payment. The doctors had no personal knowledge that claims for nondiagnostic tests were presented to the government, nor do they allege facts that strongly support an inference that such billings were submitted.


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Purcell v. United States

Court: U.S. 7th Circuit Court of Appeals


Docket: 10-3743 Opinion Date: August 23, 2011
Judge: FLAUM
Areas of Law: Government & Administrative Law, Injury Law, Military Law
Decedent, on active duty, committed suicide in his barracks. Navy and Department of Defense personnel had been called and arrived at his residence, but did not find the gun they were told he had. They permitted decedent to go to the bathroom accompanied by his friend. Upon entering, he pulled a gun from his waistband and committed suicide by shooting himself. After attempting unsuccessfully to recover from the Navy through administrative procedures, decedent's family brought a wrongful death claim under the Federal Tort Claims Act. The district court found the case barred by the Feres doctrine, which provides that "the Government is not liable ... for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." The Seventh Circuit affirmed. Decedent stood "in the type of relationship to the military at the time of his . . . injury that the occurrences causing the injury arose out of activity incident to military service."


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Tenny v. Blagojevich

Court: U.S. 7th Circuit Court of Appeals


Docket: 10-3075 Opinion Date: August 25, 2011
Judge: MANION
Areas of Law: Civil Rights, Government & Administrative Law
Inmates sued (officials in the Illinois Department of Corrections for marking up the price of commissary goods beyond the statutory cap (730 ILCS 5/3-7-2a). The district court screened the complaint under 28 U.S.C. 1915A and dismissed for failure to state a claim. The Seventh Circuit affirmed, stating that the case is really about a substantive violation of Illinois law, not about the procedures required before the plaintiffs can be deprived of a property interest. Even assuming a property interest, no pre-deprivation process could have predicted or prevented the alleged deprivation, and plaintiffs have not alleged the absence of adequate post-deprivation remedies. Where meaningful pre-deprivation review would either be impossible or ineffectual, adequate post-deprivation remedies may satisfy constitutional due process requirements.


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State of MI v. U.S. Army Corps of Eng'rs

Court: U.S. 7th Circuit Court of Appeals


Docket: 10-3891 Opinion Date: August 24, 2011
Judge: WOOD
Areas of Law: Admiralty & Maritime Law, Environmental Law, Government & Administrative Law
Asian carp have migrated up the Mississippi River and are at the brink of the man-made Chicago-Area Waterway System path to the Great Lakes. The carp are dangerous to the eco-system, people, and property. States bordering the Lakes filed suit, alleging that the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago manage the system in a manner that will allow carp to move into the Great Lakes, in violation of the federal common law of public nuisance. The district court denied a preliminary injunction that would have required additional physical barriers, new procedures to stop invasive carp, and an expedited study of how best to separate the Mississippi and Great Lakes permanently. The Seventh Circuit affirmed. Plaintiffs presented enough evidence to establish a likelihood of harm, a non-trivial chance that carp will invade Lake Michigan in numbers great enough to constitute a public nuisance and that harm to the plaintiff states would be irreparable. The defendants have, however, mounted a full-scale effort to stop the carp and has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play and an interim injunction would only get in the way.


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Federal Trade Commission v. Lundbeck, Inc.

Court: U.S. 8th Circuit Court of Appeals


Docket: 10-3459, 10-3458 Opinion Date: August 19, 2011
Judge: Benton
Areas of Law: Antitrust & Trade Regulation, Consumer Law, Drugs & Biotech, Government & Administrative Law, Health Law
The FTC sued Lundbeck, Inc., alleging that its acquisition of the drug NeoProfen violated the Federal Trade Commission Act, 15 U.S.C. 41 et seq., the Sherman Act, 15 U.S.C. 1-7, the Clayton Act, 15 U.S.C. 12-27, the Minnesota Antitrust Law of 1971, and unjustly enriched Lundbeck. At issue was whether the district court properly determined that the FTC failed to identify a relevant market where the FTC did not meet its burden of proving that the drugs Indocin IV and Neoprofen were in the same product market. The court held that the district court's finding was not clearly erroneous and affirmed the judgment.


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Center for Environmental Law and Policy, et al. v. U.S. Bureau of Reclamation, et al.

Court: U.S. 9th Circuit Court of Appeals


Docket: 10-35646 Opinion Date: August 19, 2011
Judge: McKeown
Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law, Utilities Law
This case stemmed from a challenge by environmental groups to a proposed incremental drawdown of water from Lake Roosevelt in eastern Washington. At issue was whether the U.S. Bureau of Reclamation (Reclamation) took a "hard look" and genuinely scrutinized the environmental consequence of its proposed action. The court held that, under its precedents and the circumstances presented, Reclamation's actions did not violate the National Environmental Protection Act (NEPA), 42 U.S.C. 4321 et seq. The court also held that its review revealed no other deficiencies in the substance of the Environmental Assessment (EA), and although Reclamation took several steps toward implementing the drawdown project before drafting the EA, it scrupulously adhered to NEPA's timing requirements. Therefore, the court affirmed the judgment of the district court.


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Barnes, et al. v. US Dept. of Transportation, et al.

Court: U.S. 9th Circuit Court of Appeals


Docket: 10-70718 Opinion Date: August 25, 2011
Judge: Fletcher
Areas of Law: Environmental Law, Government & Administrative Law, Transportation Law, Zoning, Planning & Land Use
Petitioners challenged an order of the Federal Aviation Administration (FAA) concerning the proposed construction by the Port of Portland of a new runway at Hillsboro Airport (HIO). On appeal, petitioners argued that the decision not to prepare an Environmental Impact Statement (EIS) was unreasonable for several reasons, chief among them the FAA's failure to consider the environmental impacts of any increased demand for HIO resulting from the addition of a runway. Petitioners also argued that the FAA did not afford them a public hearing within the meaning of 49 U.S.C. 47106. As a preliminary matter, the court addressed the Port's and the FAA's arguments that petitioners waived their claims because they failed to raise them during the public comment period. The court held, after finding that certain precedents did not apply here, that remand was necessary for the FAA to consider the environmental impact of increased demand resulting from the HIO expansion project, if any, pursuant to the National Environmental Protection Act of 1969 (NEPA), 40 C.F.R. 1508.8(b). The court also held that an EIS was not warranted based on petitioners' contention that the context and intensity of the project independently required an EIS. The court further held that petitioners' arguments regarding whether the FAA afforded them a public hearing was unpersuasive where the hearing afforded petitioners was a "public hearing" within the meaning of section 47106 and FAA Order 5050.4B. Accordingly, the court granted the petition for review and remanded with instructions to the FAA to consider the environmental impact of increased demand resulting from the HIO expansion project pursuant to section 1508.8(b).


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Newton-Nations, et al. v. Betlach, et al.

Court: U.S. 9th Circuit Court of Appeals


Docket: 10-16193 Opinion Date: August 24, 2011
Judge: Paez
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Health Law, Insurance Law, Public Benefits
Plaintiffs, a class of economically vulnerable Arizonians who receive public health care benefits through the state's Medicaid agency, sued the U.S. Secretary of Health and Human Services (Secretary) and the Director of Arizona's medicaid agency (director)(collectively, defendants), alleging that the heightened mandatory co-payments violated Medicaid Act, 42 U.S.C. 1396a, cost sharing restrictions, that the waiver exceeded the Secretary's authority, and that the notices they received about the change in their health coverage was statutorily and constitutionally inadequate. The court affirmed the district court's conclusion that Medicaid cost sharing restrictions did not apply to plaintiffs and that Arizona's cost sharing did not violate the human participants statute. The court reversed the district court insofar as it determined that the Secretary's approval of Arizona's cost sharing satisfied the requirements of 42 U.S.C. 1315. The court remanded this claim with directions to vacate the Secretary's decision and remanded to the Secretary for further consideration. Finally, the court remanded plaintiffs' notice claims for further consideration in light of intervening events.


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Yakima Valley Memorial Hosp. v. WA Dept. of Health, et al.

Court: U.S. 9th Circuit Court of Appeals


Docket: 10-35543, 10-35497 Opinion Date: August 19, 2011
Judge: Fisher
Areas of Law: Antitrust & Trade Regulation, Constitutional Law, Government & Administrative Law, Health Law
This case arose when the Washington State Department of Health (Department) would not license Yakima Valley Memorial Hospital (Memorial) to perform certain procedures known as elective percutaneous coronary interventions (PCI) where, according to the Department, the community Memorial served did not need another PCI provider. The district court held that Memorial failed to state a claim of antitrust preemption, holding that the PCI regulations were a unilateral restraint on trade not barred by the Sherman Act, 15 U.S.C. 1-7. With regard to Memorial's claims under the dormant Commerce Clause, the district court found Memorial had standing because it alleged it would participate in an interstate market for PCI patients, doctors, and supplies. Nevertheless, the district court found that any burden on Memorial's interstate commercial activity was expressly authorized by Congress' approval of certificate of need regimes, making a dormant Commerce Clause violation impossible. The court agreed that Memorial failed to state a claim of antitrust preemption because the PCI regulations were a unilateral licensing requirement rather than an agreement in restraint of trade. The court also agreed that Memorial had standing under the dormant Commerce Clause, but reversed the district court's judgment on that claim because the Department failed to prove congressional authorization for the PCI regulations.


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In re: Grand Jury Investigation of M.H.

Court: U.S. 9th Circuit Court of Appeals


Docket: 11-55712 Opinion Date: August 19, 2011
Judge: Tallman
Areas of Law: Banking, Constitutional Law, Government & Administrative Law, Tax Law, White Collar Crime
Appellant was the target of a grand jury investigation seeking to determine whether he used secret Swiss bank accounts to evade paying federal taxes. The district court granted a motion to compel appellant's compliance with a grand jury subpoena dueces tecum demanding that he produce certain records related to his foreign bank accounts. The court declined to condition its order compelling production upon a grant of limited immunity, and pursuant to the recalcitrant witness statute, 28 U.S.C. 1826, held appellant in contempt for refusing to comply. The court held that because the records sought through the subpoena fell under the Required Records Doctrine, the Fifth Amendment privilege against self-incrimination was inapplicable, and appellant could not invoke it to resist compliance with the subpoena's command. The court also held that because appellant's Fifth Amendment privilege was not implicated, it need not address appellant's request for immunity. Accordingly, the judgment of the district court was affirmed.


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Rickley v. County of Los Angeles, et al.

Court: U.S. 9th Circuit Court of Appeals


Docket: 09-56498 Opinion Date: August 19, 2011
Judge: Fisher
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Legal Ethics, Real Estate & Property Law
Plaintiff filed a federal civil rights action against the county, alleging violation of her constitutional rights to free speech and equal protection. Plaintiff alleged that the county harassed her in retaliation of her complaints about the county's failure to enforce building and safety codes against her Malibu neighbors. At issue was whether the district court properly denied plaintiff an award of attorney's fees for her spouse's legal services. The court held that plaintiff, who was represented by her attorney-spouse in a successful civil rights action, could be awarded "a reasonable attorney's fee as part of the costs" under 42 U.S.C. 1988. Accordingly, the court vacated the portion of the district court's fee order denying plaintiff an award of attorney's fees for her spouse's services and remanded for further proceedings.


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Lauer v. Thelin, et al

Court: U.S. 10th Circuit Court of Appeals


Docket: 11-4101 Opinion Date: August 22, 2011
Judge: Lucero
Areas of Law: Civil Rights, Government & Administrative Law
Plaintiff-Appellant Larry Lauer filed a complaint against the Utah State Office of Rehabilitation and three of its employees alleging Defendants discriminated against him for being disabled. Plaintiff did not explain the nature of the alleged discrimination or how the Defendants were involved. The district court dismissed Plaintiff’s complaint without prejudice, allowing him an opportunity to submit an amended complaint. Rather than submitting an amended complaint, Plaintiff filed a motion to amend and for injunctive relief along with a supporting brief. Like the original complaint, these filings lacked any factual allegations relating to the claimed discrimination. Following a hearing, the district court denied the motion to amend and closed the case. Plaintiff timely appealed to the Tenth Circuit who, upon review, affirmed the district court’s order: “even liberally construing [Plaintiff’s] subsequent pro se submittals as a form of amended complaint, they do not allege any facts that might give rise to a claim for relief.”


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Weight Loss Healthcare Centers v. Office of Personnel Management

Court: U.S. 10th Circuit Court of Appeals


Docket: 10-3247 Opinion Date: August 23, 2011
Judge: Hartz
Areas of Law: Contracts, Government & Administrative Law, Insurance Law
Eric Walters was a federal employee covered by a Standard Option health insurance plan (the Plan) administered by Blue Cross Blue Shield of Kansas City (Blue Cross). In November 2007 he went to Weight Loss Healthcare Centers of America, Inc. (Weight Loss) to inquire about surgical treatment for obesity. Because Weight Loss had no contractual arrangement with Blue Cross as either a preferred provider or a participating provider, Walters would expect to pay more than if he used a provider that had a contract. Nevertheless, Walters had outpatient laparoscopic surgery at Weight Loss to help him better control his weight. Although Walters obtained preauthorization from Blue Cross for the surgery, there was no indication in the record that he requested or received information about his out-of-pocket costs. Weight Loss billed Blue Cross for the procedure. The Blue Cross Plan paid $2,300 according to the Plan’s benefit for out-of-network providers. Weight Loss appealed the payment to the federal Office of Personnel Management (OPM), which held that Blue Cross’s interpretation of Walters’s Plan was correct and it had paid the proper amount. The district court affirmed OPM’s decision. Upon review, the Tenth Circuit determined that OPM reasonably interpreted the Plan language. However, the Court reversed the district court’s decision because OPM neither (1) reviewed the evidence that would show whether Blue Cross had correctly calculated the Plan allowance, nor (2) explained why such review was unnecessary.


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City of Riviera Beach v. Lozman

Court: U.S. 11th Circuit Court of Appeals


Docket: 10-10695 Opinion Date: August 19, 2011
Judge: Marcus
Areas of Law: Admiralty & Maritime Law, Civil Rights, Constitutional Law, Government & Administrative Law, Real Estate & Property Law
The city filed a complaint in admiralty against defendant, a vessel, claiming that defendant committed the maritime tort of trespass because it remained at the city marina after the city explicitly revoked its consent, and seeking to foreclose its maritime lien for necessaries (unpaid dockage provided to defendant by the city). Claimant, owner of the vessel, appealed from the district court's entry of an order of summary judgment and an order of final judgment for the city in an in rem proceeding against defendant. The court held that the district court did not err in concluding that it had federal admiralty jurisdiction over defendant where defendant was a "vessel" for purposes of admiralty jurisdiction; the district court's factual findings regarding the amount claimant owed under the city's maritime lien for necessaries were not clearly erroneous; the district court did not err in granting summary judgment to the city on claimant's affirmative defense of retaliation; the district court correctly concluded that the city was not estopped from bringing its action in admiralty against defendant; and the district court did not abuse its discretion in declining to apply collateral estoppel because the issues at stake were significantly different from those in dispute in the state court proceeding. Accordingly, the district court's orders were affirmed.


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Rivera v. Shinseki

Court: U.S. Federal Circuit Court of Appeals


Docket: 10-7097 Opinion Date: August 19, 2011
Judge: Bryson
Areas of Law: Government & Administrative Law, Public Benefits
In 1971 the veteran unsuccessfully sought benefits. In 1979, he sought to reopen and provided a psychiatric evaluation. The veteran took steps to appeal the regional office's refusal to reopen. The regional office requested form I-9 to "reactivate" the appeal. He responded that he had already sent the form. The VA responded in 1980 that no further action would be taken unless he submitted the form within 30 days. The veteran did not respond. In 1994, he again sought to reopen. The regional office granted him service connection for bipolar disorder with an effective date of 1994. He contended that the effective date should be 1979. In 2005 the Board rejected his "pending claim" argument because he had not filed Form 1-9 within one year of the 1979 decision. The veterans court agreed. The Federal Circuit reversed. An appeal should set out specific allegations of error of fact or law, such allegations related to specific items in the statement of the case (38 U.S.C. 7105(d)(3) ); the statute must be construed liberally. Since there was a single issue identified in the statement of the case, the 1980 letters were sufficient to identify the issue on appeal and satisfy the statute.


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Delano Farms Co., et al. v. The California Table Grape Comm., et al.

Court: U.S. Federal Circuit Court of Appeals


Docket: 10-1546 Opinion Date: August 24, 2011
Judge: Bryson
Areas of Law: Agriculture Law, Antitrust & Trade Regulation, Government & Administrative Law, Intellectual Property
Plaintiffs, California grape growers who purchased grapevines covered by the USDA's patents, brought this action to challenge the validity and enforceability of the USDA's patents on three varieties of grapes, as well as the conduct of the California Table Grape Commission (Commission) and the USDA in licensing and enforcing the patents. The court held that the district court correctly held that the USDA was a necessary party to plaintiffs' declaratory judgement claims based on the Patent Act, 35 U.S.C. 1 et seq. The court also held that the waiver of sovereign immunity in section 702 of the Administrative Procedure Act, 5 U.S.C. 500 et seq., was broad enough to allow plaintiffs to pursue equitable relief against the USDA on its patent law claims. The court further held that plaintiffs' claims were sufficient to overcome any presumption of regularity that could apply to a certain USDA employee who was one of the co-inventors of each of the three varieties of grapes. The court finally held that because plaintiffs failed to point to anything other than the issuance of a patent for the Sweet Scarlet grapes that would provide a plausible basis for finding that Sweet Scarlet grapes form a relevant antitrust market, the court upheld the district court's decision dismissing plaintiffs' antitrust claim.


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Capitol Container, Inc. v. Alabama Power Co.

Court: Alabama Supreme Court


Docket: 1091421 Opinion Date: August 19, 2011
Judge: Main
Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law
Defendant Alabama Power Company filed a petition for the writ of mandamus to ask the Supreme Court to direct the trial court to dismiss Plaintiff Capitol Container, Inc.'s claims against it for lack of subject-matter jurisdiction. On appeal, Alabama Power argued the Alabama Public Service Commission (APSC) had exclusive jurisdiction over those claims Capitol filed, and Capitol failed to exhaust its administrative remedies before filing its action. Upon review of the record below, the Supreme Court found that Capitol indeed failed to exhaust its administrative remedies before filing its suit against the power company. The Court issued the writ.


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Gillis v. Aleutians East Borough

Court: Alaska Supreme Court


Docket: S-13620 Opinion Date: August 19, 2011
Judge: Winfree
Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law
The superior court interpreted a statutory preference for the purchase of state land in a manner that disqualified Appellant Melvin Gillis, from which he appealed. Appellant is a professional sport hunting and fishing guide. He obtained a 25-year lease of five acres of state land in April 1989. Appellant built a lodge on the land, and the operation of the lodge and his guiding business were his principal sources of income. In 2005, the state Department of Natural Resources (DNR) conveyed lands, including the land Appellant leased, to Aleutians East Borough. DNR also transferred its interest in Appellant's lease to the Borough. Appellant offered to purchase the land in November 2005. The Borough Assembly rejected Appellant's offer but proposed a new lease agreement. Appellant did not execute the proposed lease, and in 2007 he claimed he was eligible to purchase the land under state law. The Borough then filed a declaratory judgment action, asking the superior court to determine whether Appellant qualified for a preference right to purchase the land. The issue on appeal was whether the applicable statute required an applicant to enter land while it was under federal ownership as a condition of the preference right. The superior court concluded that the plain meaning of the statute required an applicant to enter land when it was under federal ownership before the federal government conveyed the land to the state. The court entered summary judgment in favor of the Borough and DNR. Upon review, the Supreme Court affirmed the superior court's interpretation of the applicable statute and its summary judgment decision.


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Renaissance v. Broida

Court: Maryland Court of Appeals


Docket: 104/08 Opinion Date: August 19, 2011
Judge: Eldridge
Areas of Law: Construction Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
A landowner submitted a site development plan to the county planning board, proposing to construct a mixed-use condominium building. Joel Broida, who lived across the street from the landowner's parcel of land, filed a motion to deny approval of the site development plan. The planning board approved the plan. Broida appealed. A hearing examiner dismissed the appeal, holding that Broida lacked standing. Broida appealed. The board of appeals (Board) split evenly on the issue of Broida's standing and decided to re-vote at a later date. The landowner then filed a complaint for a declaratory judgment, declaring that the Board's split decision was final and required the appeal to be dismissed. The circuit court granted summary judgment in favor of the landowner. The court of special appeals reversed, holding that Broida had standing to appeal. The court therefore did not address whether there was a final Board decision. The Court of Appeals reversed, holding (1) there was no final administrative decision and, therefore, the landowner failed to exhaust its administrative remedies; and (2) because there was no final administrative decision, the lower courts erred in reaching the merits of the case, and the declaratory judgment action should have been dismissed. Remanded.


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Berry & Co., Inc. v. County of Hennepin

Court: Minnesota Supreme Court


Docket: A11-399 Opinion Date: August 24, 2011
Judge: Gildea
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law
Berry and Co. petitioned the tax court for relief from the County's property tax assessment of its property for 2007 and 2008. At trial, Berry and the County each offered expert appraiser testimony as to the estimated market value of the property. Both appraisers used the market sales comparison approach to value the subject property. The tax county determined that the highest and best use for the subject property was redevelopment and agreed with the County's expert on the valuation, which was higher than the original assessment. The Supreme Court affirmed, holding (1) the tax court's determination that the highest and best use of the subject property was redevelopment was not erroneous, and (2) the tax court's valuation of the subject property was supported in the record and was not clearly erroneous.


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Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities

Court: New Jersey Supreme Court


Docket: a-36-10 Opinion Date: August 23, 2011
Judge: Albin
Areas of Law: Government & Administrative Law
The issue before the Court was whether the New Jersey League of Municipalities was a "public agency" that possessed "government record[s]" within the meaning of the Open Public Records Act (OPRA). Fair Share filed a verified complaint alleging that the League was in violation of OPRA and the common law right of access by refusing to make available certain requested documents. The League responded that it "is not a 'public agency' as defined by [OPRA], and as such the League’s records were not 'government records' or 'public records.'" The trial court dismissed Fair Share’s complaint, holding that the League is not a "public agency" because it is not an "instrumentality within or created by a political subdivision of the State or combination of subdivisions," such as a county health board or regional planning board. The Appellate Division affirmed. Upon review, the Supreme Court held that the League of Municipalities is a "public agency" under the Open Public Records Act and must provide access to "government record[s]" that are not subject to an exemption.


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North Dakota ex. rel. Schlect v. Wolff

Court: North Dakota Supreme Court


Docket: 20110036 Opinion Date: August 18, 2011
Judge: Sandstrom
Areas of Law: Family Law, Government & Administrative Law, Public Benefits
In 1996 the State sued Defendant Troy Wolff, seeking to establish his paternity and obtain a child support order after the mother and child began receiving public assistance. The court also established a child support obligation for Defendant. The mother was given custody of the child. In 1999 Defendant and the mother stipulated to a reduction of Defendant's child support obligation, and an amended judgment was entered incorporating the stipulation. The State was a party to the action and signed the 1999 stipulation. In January 2009, Defendant and the mother entered into another stipulation pertaining to custody and visitation, and they agreed to modify the child support obligation. The parties agreed that Defendant would no longer have a support obligation to the mother, and that Defendant would not seek support from the mother. The court entered a second amended judgment incorporating the new stipulation. In October 2009, the State moved to vacate the second amended judgment, arguing that it was a party to the action and did not agree to the new stipulation. Defendant argued on appeal that the judicial referee did not have jurisdiction to issue the order to vacate the second amended judgment. Upon review, the Supreme Court concluded that the State was a real party in interest and had standing, the second amended judgment contains unenforceable provisions, and the court did not err in vacating the second amended judgment.


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In the Matter of Larry Rubey

Court: North Dakota Supreme Court


Docket: 20100292 Opinion Date: August 18, 2011
Judge: Sandstrom
Areas of Law: Civil Rights, Government & Administrative Law
Respondent-Appellant Larry Rubey appealed a district court order committing him as a sexually dangerous individual. After a March 2010 preliminary hearing, the court found probable cause that Respondent was a sexually dangerous individual and transferred him to the North Dakota State Hospital for an evaluation. The court also appointed an independent expert after Respondent's request for an independent evaluation. The district court found by clear and convincing evidence that Respondent was a sexually dangerous individual and committed him to the care, custody, and control of the executive director of the Department of Human Services. Respondent raised multiple issues on appeal, the sum of which was that the court erred in finding clear and convincing evidence, and that and the court did not address whether he had difficulty in controlling his behavior. On the basis of the Supreme Court's review of the record, the Court concluded there was clear and convincing evidence supporting the district court's decision that Respondent was a sexually dangerous individual likely to engage in further acts of sexually predatory conduct who has serious difficulty in controlling his behavior.


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State ex rel. Angelo Benedetti, Inc. v. Indus. Comm.

Court: Ohio Supreme Court


Docket: 20070619 Opinion Date: August 24, 2011
Judge: Per Curiam
Areas of Law: Business Law, Government & Administrative Law, Injury Law, Labor & Employment Law
The Industrial Commission of Ohio found that Angela Benedetti, Inc. (ABI) violated two newly added specific safety requirements that resulted in an injury to an ABI employee. ABI filed a complaint in mandamus in the court of appeals, alleging that the commission abused its discretion in permitting the injured employee to amend his specific safety requirement violations application and in finding violations of the specific safety requirements. The court of appeals upheld the Commission's order and denied the writ. On appeal, the Supreme Court affirmed, agreeing with the reasoning provided by the court of appeals but not given in this opinion.


http://j.st/SQE View Case

Barlow v. State ex rel. Wyo. Workers' Safety & Comp. Div.

Court: Wyoming Supreme Court


Docket: S-10-0243 Opinion Date: August 24, 2011
Judge: Voigt
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law
Employee injured his knee while climbing into his employer-provided truck as he was preparing to leave on a work-related trip. The Wyoming Workers' Safety and Compensation Division (Division) denied Employee's requested workers' compensation benefits related to his injury. The Office of Administrative Hearings (OAH) granted summary judgment in favor of the Division. The district court affirmed the OAH's decision. At issue on appeal was whether Employee's injury was sustained while he was being transported by a vehicle of the employer as the statute requires. The Supreme Court affirmed, holding (1) the statute plainly and unambiguously requires that for an injury sustained during travel to be compensable, it must occur as the employer's vehicle is carrying the employee from one place to another; and (2) because Employee here was entering the vehicle in preparation for that transportation when he was injured, the injury he sustained was not compensable.


http://j.st/SQr View Case

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