Saturday, October 15, 2011

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law
Source: Justia October 14, 2011



Joseph, et al. v. Hyman, et al.

Court: U.S. 2nd Circuit Court of Appeals
Docket: 10-3943
   October 12, 2011
Judge: Wesley
Areas of Law: Constitutional Law, Government & Administrative Law, Tax Law
Appellants sued New York City and the State, along with a number of city and state officials, challenging a tax scheme that exempted New York City residents from a tax levied on parking services rendered in Manhattan. Appellees subsequently filed a motion to dismiss, arguing, among other things, that comity barred the federal courts from hearing appellants' challenge to the state law. The district court granted the motion and the court affirmed, holding that because New York state courts have the ability to implement a remedy that the federal courts could not, Levin v. Commerce Energy, Inc. counseled in favor of dismissing the complaint pursuant to comity.



Greater Houston Small Taxicab v. City of Houston

Court: U.S. 5th Circuit Court of Appeals
Docket: 10-20381
   October 10, 2011
Judge: Jones
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law
Plaintiff, a group representing taxicab companies that hold only one to three permits for cabs, asserted that the city's plan to distribute new taxicab permits violated the Equal Protection Clause of the Fourteenth Amendment. The district court granted summary judgment to the city and plaintiff appealed. The court held that plaintiff had not demonstrated that the ordinance violated the Equal Protection Clause by treating taxi companies differently based on size and therefore, the court affirmed the judgment of the district court.



Johnson v. Carroll, et al

Court: U.S. 8th Circuit Court of Appeals
Docket: 10-2889
   October 7, 2011
Judge: Wollman
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Injury Law
Appellant filed suit against four Minneapolis police officers and the City of Minneapolis pursuant to 42 U.S.C. 1983, claiming that the officers used excessive, unreasonable force against her, in violation of the Fourth and Fourteenth Amendments. The court reversed the district court's grant of summary judgment on the excessive force claim and held that there were genuine issues of material fact regarding whether the officers used excessive force against appellant. The court affirmed the district court's dismissal of the section 1983 claims against Officer Carroll because appellant admitted that he did not use excessive force against her. The court agreed with the district court's conclusion that because appellant did not allege any damages, she failed to state a claim under the Minnesota Government Data Practices Act. Minn. Stat. 13.01, subdiv. 1. The court held, however, that the district court failed to consider whether appellant could recover her costs and disbursements in her December 19, 2008 action to compel compliance under Minn. Stat. 13.01, subdiv. 4. Therefore, the court remanded for a ruling on whether appellant was entitled to costs or disbursements under that section of the statute. The court finally held that the district court properly dismissed appellant's common law battery claims against officers as untimely because the two-year statute of limitations period had expired. The court held, however, that appellant presented sufficient evidence to preclude summary judgment on the basis of official immunity on the alleged state tort claims.



Riley v. Sun Life and Health Ins., et al.

Court: U.S. 8th Circuit Court of Appeals
Docket: 10-2850
   October 7, 2011
Judge: Beam
Areas of Law: ERISA, Government & Administrative Law, Insurance Law
Appellant appealed the district court's grant of summary judgment in favor of Sun Life in an Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1001 et seq., benefits case. At issue was whether Sun Life was entitled to offset from appellant's employer-provided long-term disability benefits the amount that appellant received in Department of Veterans Affairs (VA) benefits each month. The court held that VA benefits, for a wartime service-related disability, as a matter of statutory construction, did not derive from an act that was "similar to" the SSA or RRA, which were both federal insurance programs based upon employment and the amount of an award under their terms depended upon how much had been paid in. Accordingly, the court reversed and remanded to the district court with directions to enter judgment in favor of appellant.



Docket: 08-71827, 08-74439, 08-74443
   October 13, 2011
Judge: Gould
Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law, Utilities Law
This case stemmed from FERC's statutory mandate set out in the Federal Power Act (FPA), 16 U.S.C. 824-824w, to ensure that all rates and charges made, demanded, or received by power wholesalers were just and reasonable. Petitioners subsequently sought review of FERC's final order (Order 697), contending that the order violated FERC's governing statutes. In Order 697, FERC codified the existing limited market-based policy, along with multiple enhancements, in a final rule. At issue was whether the market-based regulatory policy established by FERC's order was permissible under the law. Taking into account Chevron deference, the law of the circuit, other relevant precedent, and the direction of the Supreme Court as to how the court should approach such administrative law issues concerning federal agencies, the court concluded that Order 697 did not per se violate the FPA.



Docket: 10-35623, 10-35784
   October 12, 2011
Judge: Fisher
Areas of Law: Environmental Law, Government & Administrative Law
This case stemmed from the USFS's issuance of a revised Travel Management Plan governing recreational motorized and nonmotorized use on 1.1 million acres of the Lewis and Clark National Forest, including the Middle Fork Judith Wilderness Study area. At issue was whether the Travel Management Plan violated the Montana Wilderness Study Act of 1977 (Study Act), Pub. L. No. 95-150, section 3(a), 91 Stat 1243, and the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq. The court held that nothing in the Study Act, which required the USFS to manage a wilderness study area so as to "maintain" its wilderness character as it existed in 1977, prohibited the USFS from exercising its discretion to enhance the wilderness character of a study area. The court also held that NEPA did not require the USFS to prepare a supplemental draft environmental impact statement (EIS) where, as here, the final decision made only minor changes and was qualitatively within the spectrum of the alternatives discussed in the draft EIS. Accordingly, the court reversed the judgment of the district court.



United States v. Tukes

Court: U.S. 10th Circuit Court of Appeals
Docket: 11-2019
   October 6, 2011
Judge: Gorsuch
Areas of Law: Banking, Constitutional Law, Criminal Law, Government & Administrative Law, Insurance Law
Defendant-Appellant Alan Tukes appealed his federal conviction for bank robbery, arguing that the government’s evidence was insufficient to prove that the bank was insured by the Federal Deposit Insurance Corporation (“FDIC”) at the time of the crime. At trial, a prosecutor asked the bank’s branch manager: “Now, the Compass Bank, is that a bank that is federally insured by the [FDIC]?” She responded: “Yes, it is.” When asked whether the bank “has” any documentation proving its insured status, she replied: “Yes. We have a certificate.” When asked whether the certificate “hangs” in the branch, the manager replied in the affirmative. The district court admitted the certificate, dated November 8, 1993, into evidence. The government offered no additional evidence of the bank’s insured status. At summation, Defendant argued that the government had not proven that the bank was FDIC insured at the time of the robbery. The jury returned a guilty verdict. Viewing the evidence in the light most favorable to the government, the Tenth Circuit concluded "it is clear that a rational juror could have concluded beyond a reasonable doubt that the bank was insured at the time of the robbery." The Court affirmed Defendant's conviction.



Bond v. Shinseki

Court: U.S. Federal Circuit Court of Appeals
Docket: 10-7096
   October 7, 2011
Judge: O'Malley
Areas of Law: Government & Administrative Law, Military Law, Public Benefits
In 1996 petitioner, who had served in the Marine Corps from 1965 to 1968, filed a claim for compensation for post-traumatic stress disorder. The VA Regional Office granted the claim and assigned a disability rating of 30%, effective October 1996. Petitioner requested an increase in the percentage and made multiple submissions before 2000, when the Office increased the rating to 70%, effective July 1999. The Veterans Court affirmed as to the rating, but remanded with instructions for assigning an effective date. On remand, the Board found that a February 1998 submission met the requirements for an informal claim for TDIU and assigned an effective date of February 11, 1998 that was affirmed by the Veterans Court. The Federal Circuit vacated. To comply with the directive of 38 C.F.R. 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, the VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim; the VA failed to make such a determination.



Tarvin v. Dishman

Court: Alabama Supreme Court
Docket: 1101315
   October 7, 2011
Judge: Stuart
Areas of Law: Education Law, Government & Administrative Law, Injury Law, Labor & Employment Law
The Boaz City Board of Education ("the Board") and its members Alan Perry, Fran Milwee, Roger Adams, Alan Davis, and Tony G. King (collectively "the Board members") petitioned the Supreme Court for a writ of mandamus to direct the circuit court to vacate its order that denied their motion to dismiss claims filed against them by Lisa and Donnie Tarvin and to enter an order dismissing the claims with prejudice. According to the complaint, Leland Dishman, the superintendent for the Board, struck kindergarden teacher Lisa Tarvin with a paddle. Dishman read a statement at a press conference, denying that the incident occurred. The Tarvins sued the Board, the Board members in their official capacities, and Dishman in his individual capacity, alleging claims of assault and/or battery, defamation, libel, and slander and sought monetary damages. The Board and the Board members moved to dismiss the claims against them, arguing that they were immune from suit under the State immunity doctrine. Upon review, the Supreme Court found that the Board and its members demonstrated that under the Alabama Constitution, they had immunity from the claims asserted against them, and "a clear legal right to have the claims… dismissed with prejudice." The Court granted the petition and issued the writ.



Docket: S-13528
   October 7, 2011
Judge: Christen
Areas of Law: Communications Law, Constitutional Law, Government & Administrative Law
Six weeks after the Regulatory Commission of Alaska approved the 2007 Access Charge Rates long distance telephone companies pay to local telephone companies, an association of local telephone companies realized that five of the rates the Regulatory Commission approved were based upon an erroneous spreadsheet the association included in its rate filings. The association requested that the Regulatory Commission correct the rates. The Regulatory Commission corrected the rates prospectively, but concluded retrospective application was barred by the Supreme Court's case law on retroactive ratemaking. The superior court agreed that retrospective application of the adjusted rates was impermissible, and the association appealed. Upon review, the Supreme Court reaffirmed its decision in "Matanuska Electric Association, Inc. v. Chugach Electric Association, Inc." (prohibiting retroactive ratemaking in "second look" cases), but held that the Regulatory Commission has the authority to implement corrections of some procedural mistakes starting when notice of a mistake is given. The Court remanded to the Regulatory Commission to determine the type of error that occurred in this case and whether the error should be corrected retrospectively.



Docket: S-13708
   October 7, 2011
Judge: Fabe
Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law
Appellant Alaskan Crude Corporation operates an oil and gas unit known as the "Arctic Fortitude Unit." Alaskan Crude’s unit agreement with the Department of Natural Resources set work obligation deadlines that Alaskan Crude was required to meet to continue operating the Unit. In July 2008 the Commissioner found that Alaskan Crude had failed to meet its work obligations, gave notice that Alaskan Crude was in default under its unit agreement, and specified that the Unit would be terminated if Alaskan Crude did not cure the default by a new set of deadlines. Alaskan Crude appealed the Commissioner’s decision to the superior court, arguing that a pending judicial decision in a separate appeal qualified as a force majeure under the unit agreement, preventing Alaskan Crude from meeting its work obligations. It also argued that the Commissioner’s proposed default cure was an improper unilateral amendment of Alaskan Crude’s unit agreement. The superior court affirmed the Commissioner’s findings and decision and Alaskan Crude appealed. Upon review, the Supreme Court concluded that: (1) the pending judicial decision in Alaskan Crude’s separate appeal did not trigger the force majeure clause of the unit agreement; and (2) the Commissioner’s proposed default cure was not a unilateral amendment of Alaskan Crude’s unit agreement. Thus the Court affirmed the decision of the superior court upholding the decision of the Commissioner.



Docket: S-13654
   October 7, 2011
Judge: Winfree
Areas of Law: Government & Administrative Law, Real Estate & Property Law
A property owner appealed a judgment that allowed foreclosure on a borough property tax lien, arguing that the borough’s foreclosure was legally flawed and that the borough’s attorney should have been sanctioned for maintaining the foreclosure against his property. Because the superior court did not err in concluding there were no legal flaws in the foreclosure, and because therefore there was no basis to sanction the borough’s attorney, the Supreme Court affirmed the judgment in all respects.



Comcast of Little Rock, Inc. v. Bradshaw

Court: Arkansas Supreme Court
Docket: 11-277
   October 13, 2011
Judge: Danielson
Areas of Law: Government & Administrative Law, Tax Law
Comcast of Little Rock filed three petitions for review with the Arkansas Public Service Commission, asserting that Comcast's ad valorem tax assessment for the years 2006-08 erroneously included the value of its intangible personal property. The Commission's ALJ dismissed Comcast's petitions. Comcast subsequently filed a complaint for refund of taxes in the county court, asserting that it was entitled to a refund of taxes erroneously assessed against it and arguing that the Commission's tax division improperly included the value of Comcast's intangible personal property when calculating its assessments. The county court concluded that it lacked jurisdiction in the matter and dismissed the claims. The circuit court also dismissed Comcasts's claims. The Supreme Court affirmed, holding (1) the circuit court did not err in concluding that it lacked subject-matter jurisdiction to hear Comcast's challenge to its assessment; and (2) because Comcasts's claim did not challenge the validity of the underlying tax, but rather alleged that the assessment was carried out in an illegal fashion, the suit did not come within Arkasnas's illegal-exaction provision, and therefore, Comcast's avenue of relief for its assessment grievance lay with the Commission.



Ahn v. Liberty Mut. Fire Ins. Co.

Court: Hawaii Supreme Court
Docket: SCWC-28315, SCWC-28314
   October 4, 2011
Judge: McKenna
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law
In two consolidated cases, Liberty Mutual Fire Insurance Company denied personal injury protection (PIP) benefits to Chung Ahn and Kee Kim (collectively, Insureds) for treatments after motor vehicle accidents. Insureds each sought administrative reviews with the Insurance Division of the Department of Commerce and Consumer Affairs (DCCA). The DCCA granted summary judgment to Liberty Mutual based on the holding in Wilson v. AIG Hawaii Insurance Company, which stated that unless an insurer's non-payment of PIP benefits jeopardizes an insured's ability to reach the minimum amount of medical expenses required to file a tort lawsuit, insureds are not real parties in interest allowed to pursue lawsuits seeking payment of PIP benefits to providers. The circuit court reversed, concluding that Act 198 of 2006 had legislatively overruled Wilson. The intermediate court of appeals (ICA) upheld the circuit court. On appeal, the Supreme Court (1) overruled Wilson, holding that insureds are real parties in interest in actions against insurers regarding PIP benefits; and (2) vacated the ICA and circuit court judgments because at the time of judgment, Act 198 of 2006 was not retrospective, and the real party in interest holding of Wilson was still in effect. Remanded.



Mississippi v. Gunn

Court: Mississippi Supreme Court
Docket: 2010-CA-00719-SCT
   October 13, 2011
Judge: Randolph
Areas of Law: Government & Administrative Law, Real Estate & Property Law
The Secretary of State of Mississippi (State) and the City of Ocean Springs (Ocean Springs) appealed a chancery court's decision that enjoined the construction of a sidewalk. The sidewalk would have run along a beach adjacent to the seawall on property claimed by Respondents Clyde Gunn, III and Neil Harris in Ocean Springs. The issue before the Supreme Court was whether the chancellor erred in granting the permanent injunction. The State and Ocean Springs asserted that the chancellor erred in issuing the permanent injunction because: her finding of irreparable injury was not supported by substantial evidence; an adequate remedy at law was available; and she failed to rule on the merits of the underlying dispute regarding ownership of the land where the proposed sidewalk was to be located. Upon review, the Supreme Court found no error in the chancellor’s earlier determination that irreparable injury would result if she did not grant an injunction and that no adequate remedy at law was available. The Court concluded that the chancellor’s order and opinion was in fact a preliminary injunction, incorrectly styled as a permanent injunction: "[i[t is clear from its language that the chancellor sought to protect the interests of all parties until ownership of the property could be determined. We therefore remand this case to the Hinds County Chancery Court, vacate the permanent injunction, and leave the earlier-issued preliminary injunction in place."



Docket: 2010-641
   October 12, 2011
Judge: Lynn
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Petitioner Brandt Development Company of New Hampshire, LLC (Brandt) appealed a Superior Court order that upheld a decision of Respondent City of Somersworth’s (City) zoning board of adjustment (ZBA). The ZBA denied its application for a variance. Brandt owned a house and attached barn in the residential multi-family district of the City. In November 1994, Brandt applied for a variance from size and frontage requirements to convert the property, then being used as a duplex, into four dwelling units. The ZBA denied the application after finding that the property failed to satisfy the five criteria for a variance. From 1995 to 1997, Brandt added four bedrooms to the upstairs unit after receiving permits to do so. In December 2009, Brandt again sought to convert the property into a four-unit dwelling, and again applied to the ZBA for a variance from the City’s area, frontage, and setback requirements. The ZBA declined to consider the merits of the variance application on the basis that “circumstances not changed sufficiently to warrant acceptance of the application.” The superior court affirmed the ZBA’s decision in August 2010. Upon review, the Supreme Court found that the legal criteria the ZBA used in making its determination were not "discreet and unrelated criteria, but interrelated concepts that aim to ensure a proper balance between the legitimate aims of municipal planning and the hardship that may sometimes result from a literal enforcement of zoning ordinances." As such, the Court found that the ZBA's denial of Brandt's variance application was not reasonable in light of state law, and it reversed the ZBA's and Superior Court's decisions, and remanded the case for further proceedings.



Conner v. N.C. Council of State

Court: North Carolina Supreme Court
Docket: 213PA10
   October 7, 2011
Judge: Jackson
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law
Petitioners in this action were inmates who had been sentenced to death by lethal injection. Respondent, North Carolina Council of State, approved the lethal injection protocol after it was submitted to the Council by the Department of Corrections (DOC), an administrative agency. Although Petitioners challenged the constitutionality of the state's method of execution, at issue on appeal was whether the Council's statutorily-mandated approval of the DOC's action was subject to the requirements of the North Carolina APA when the DOC's action was exempt from the APA. The Office of Administrative Hearings (OAH) ALJ recommended that the Council reconsider its approval of the execution protocol. The Council declined to reconsider its approval based upon its conclusion that the OAH did not have jurisdiction to review the issue. The superior court dismissed Petitioners' petition for judicial review. The Supreme Court (1) affirmed the superior court's ruling that the APA does not apply to the Council's approval of the execution protocol, and (2) affirmed the court's ruling, as modified, that Petitioners' rights do not include the right to present evidence to the Council and that the Council's obligations do not include a substantive review of the protocol before it is approved.



City of Tulsa v. Bank of Oklahoma, N.A.

Court: Oklahoma Supreme Court
Docket: 109449
   October 11, 2011
Judge: Combs
Areas of Law: Aviation, Contracts, Government & Administrative Law, Injury Law
The City Council of Tulsa decided to encourage the initiation of new direct nonstop airline service to business centers on the East and West coasts, and voted to approve a Memorandum between the Tulsa Industrial Authority (TIA) and the City which would convey certain real property (Property) for that purpose. The transfer would allow TIA to mortgage the Property to the Bank of Oklahoma (BOK) in support of a non-recourse loan so that TIA could, in turn, make an aggregate loan (Great Plains Loan) to Great Plains Airlines, Inc. (Great Plains). This transfer would allow the Tulsa Airports Improvement Trust (TAIT) to enter into a Support Agreement, pursuant to which TIA, in the event of a default would have the option of selling the Property to TAIT under the direction of the BOK. Upon exercise of such option, the TIA would sell, transfer and convey the property to TAIT to satisfy the outstanding loan balance. Great Plains subsequently defaulted under the terms of the Great Plains Loan, and left a balance owed to the Bank. Ultimately TAIT did not purchase the Property. TIA and the Bank sued TAIT. TAIT alleged the Support Agreement was unlawful and an unenforceable contract because TAIT could not purchase the Great Plains Loan and Property by reason that all of TAIT's funds were airport revenues and such purchases would violate the FAA Revenue Use Policy. To resolve the matter, the parties executed a Settlement Agreement which provided the City would pay BOK. The City and its Mayor asked the trial court to determine that the settlement agreement was a lawful contract executed by the City, and the settlement payment made pursuant to the settlement agreement was a lawful expenditure of public funds. Taxpayers intervened, and asked the trial court to determine that the payment of money to the Bank of Oklahoma pursuant to the settlement agreement was an illegal transfer of public funds made pursuant to an unlawful settlement agreement. In granting the City's motion for summary judgment, the trial court found the settlement agreement was a lawful and the settlement payment was a lawful expenditure of funds. Upon its review, the Supreme Court concluded the settlement was not based on a contract, but rather under the equitable theory of unjust enrichment to the City of Tulsa, and as such, the City had authority to enter into the Settlement Agreement. However, the Court found that the unjust enrichment claim was unviable and the Statute of Limitations would have barred the unjust enrichment claim against the City. The Court remanded the matter back to the District Court to direct the repayment of the settlement funds from BOK back to the City of Tulsa.



Rich v. Tenn. Bd. of Med. Exam'rs

Court: Tennessee Supreme Court
Docket: M2009-00813-SC-R11-CD
   October 10, 2011
Judge: Lee
Areas of Law: Government & Administrative Law, Health Law, Professional Malpractice & Ethics
The Tennessee Board of Medical Examiners suspended Dr. Joseph Rich's medical license for one year and imposed other conditions after finding that, among other things, the physician had violated Tenn. Code Ann. 63-6-214(b)(1)(4) and (12). The chancery court affirmed the Board's judgment. The court of appeals reversed because the Board failed to articulate the applicable standard of care in its deliberations. The Supreme Court (1) held that the Board was required by Tenn. Code Ann. 63-6-214(g) to articulate the applicable standard of care in its deliberations; (2) vacated the ruling of the trial court to the extent that it affirmed the Board's decision that Rich had violated sections 63-6-214(b)(1)(4) and (12); (3) vacated the judgment of the court of appeals to the extent it reversed the Board's findings that Rich violated sections 63-6-214(b)(1)(4) and (12); and (4) rather than reversing the Board's findings of violations, remanded the matter to the Board with instructions to conduct deliberations based on the existing record and articulate the applicable standard of care as required by the statute. 





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