Saturday, November 05, 2011

Decisions of interest involving Government and Administrative Law


Decisions of interest involving Government and Adminisrative Law
Source: Justia November 5, 2011


Court: U.S. 1st Circuit Court of Appeals
Docket: 10-1152
October 31, 2011
Judge: Lipez
Areas of Law: Government & Administrative Law, Government Contracts, Injury Law
A child was seriously injured when she was hit in the head by an object thrown by a lawnmower being operated at the federal building adjoining her childcare center. Separate entities provided child care and lawn maintenance, under contract with the federal government. The district court dismissed a suit under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671-2680. The First Circuit affirmed. While noting that the landscaping and child care operators were independent contractors, the court applied the discretionary function exception to federal liability. The agreements and their actual execution show that the government did not carve out responsibility for safety measures from its otherwise comprehensive delegation of day-to-day authority to the companies. Federal law allows the government discretion to hire independent contractors and to adopt, or not adopt, safety measures suggested by the plaintiffs.




Court: U.S. 3rd Circuit Court of Appeals
Docket: 06-3575
November 2, 2011
Judge: Rendell
Areas of Law: Communications Law, Government & Administrative Law
In 2008 the Third Circuit ruled that the Federal Communications Commission's imposition of a $550,000 fine on CBS was arbitrary. The fine was based on a 2004 incident: the exposure, for nine-sixteenths of one second, of Janet Jackson's bare right breast during the live halftime performance of Super Bowl XXXVIII. The Supreme Court remanded for consideration under its 2009 ruling in F.C.C. v. Fox Television Stations, Inc., which concerned the FCC's decision to abandon its "fleeting words" safe harbor for expletives that are not repeated. On remand, the Third Circuit readopted its earlier holding that the penalty on CBS amounted to an unannounced policy change.The evidence weighed against the FCC contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images.




Court: U.S. 5th Circuit Court of Appeals
Docket: 10-50992
November 2, 2011
Judge: Per curiam
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law
Plaintiff sued Hudspeth County and Sheriff West under 42 U.S.C. 1983 for violation of his rights under the Fourth Amendment. The district court granted summary judgment for Hudspeth County but not for West, finding that genuine disputes of material fact precluded a determination of the application of qualified immunity. In particular, the district court found genuine disputes existed as to West's knowledge of plaintiff's status as an El Paso Police Department (EPPD) officer and plaintiff's authority to operate in Hudspeth County as part of the 34th Judicial District task force. The court affirmed the judgment of the district court where West failed to show legal error in the district court's analysis.




Court: U.S. 5th Circuit Court of Appeals
Docket: 10-31241
November 3, 2011
Judge: Per curiam
Areas of Law: Constitutional Law, Government & Administrative Law, Transportation Law
In 2008, the Louisiana Legislature passed Act No. 530, Louisiana Revised Statutes Section 48:394, which required that all railroad companies obtain permission from the Louisiana Public Service Commission (LPSC) before closing or removing private railroad crossings. During the pendency of this litigation, in 2010, the Louisiana Legislature adopted Act 858, amending Section 48:394 in light of the court's decision in Franks Investment Co. v. Union Pacific Railroad Co. Plaintiff filed the instant action against LPSC and its commissioners in their official capacity, seeking a declaration that Section 48:394 was preempted by federal law, and both preliminary and permanent injunctions against the enforcement of that section. The court held that Louisiana had not waived its Eleventh Amendment immunity. The court also held that, because the parties agreed that if the State was entitled to immunity the case would be dismissed, the court dismissed the appeal and remanded to the district court with instructions to dismiss the action.




Court: U.S. 9th Circuit Court of Appeals
Docket: 10-35636
November 4, 2011
Judge: Fisher
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law
Plaintiff filed suit against defendants, county officers and the county, alleging a state law wrongful death claim and a 42 U.S.C. 1983 claim for excessive force under the Fourth Amendment when her 18-year-old son was shot and killed in his driveway by the officers. The district court granted summary judgment to defendants after concluding there was no constitutional violation. The court held that there were material questions of fact about plaintiff's son's and the officers' actions that precluded a conclusion that the officers' rapid resort to deadly force was reasonable as a matter of law. The court concluded that resolution of these issues was critical to a proper determination of the officers' entitlement to qualified immunity. Accordingly, the court reversed the district court's summary judgment on the use of lethal force. The court also reversed and remanded for reconsideration of whether plaintiff's state law wrongful death claim could properly be resolved on summary judgment.




Court: U.S. 9th Circuit Court of Appeals
Docket: 10-16150
November 3, 2011
Judge: Tashima
Areas of Law: Class Action, Government & Administrative Law, Labor & Employment Law
Plaintiffs, current or former "franchisee" shuttle van drivers for SuperShuttle in various parts of California, filed a putative class action alleging that plaintiffs were misclassified as "independent contractors" when, in truth, they were "employees" under California law. Plaintiffs alleged that they had consequently been deprived of the full protections provided to employees under the California Labor Code, including overtime and minimum wages, reimbursement of business expenses and deductions wrongfully taken from wages, and meal period pay. The district court granted SuperShuttle's motion to dismiss plaintiffs' state law claims holding that it lacked subject matter jurisdiction. The court held that the third prong in San Diego Gas & Electric Co. v. Superior Court (Covalt) was not satisfied, the California Public Utilities Code 1759 was not implicated, and the district court retained subject matter jurisdiction over the case. On remand, the district court could determine whether the SuperShuttle drivers were employees or independent contractors under California law without hindering or interfering with PUC decisions or policies.




Court: U.S. 9th Circuit Court of Appeals
Docket: 09-10330
October 28, 2011
Judge: Mills
Areas of Law: Government & Administrative Law, Securities Law
This case stemmed from defendant's operation of a fraudulent investment fund. Defendant's Ponzi scheme took almost $13 million from over 50 investors and petitioners were among the investors. Petitioners appealed the district court's order dismissing their third-party petition to adjudicate property interests in forfeited property. The court held that the district court erred in holding that petitioners lacked prudential standing. The court also held that the district court erred when it found that the Government's interest in the funds was superior to petitioners' interests. Accordingly, the court reversed the district court's dismissal of the petition and remanded for further proceedings.




Court: U.S. 10th Circuit Court of Appeals
Docket: 11-7026
November 1, 2011
Judge: Kelly
Areas of Law: Government & Administrative Law, Public Benefits
Plaintiff Lacauna Adams, on behalf of her minor son D.J.W., appeared pro se seeking review of a district court’s judgment that affirmed the Social Security Commissioner’s denial of D.J.W.’s application for Supplemental Security Income (SSI) benefits. In late 2006, Plaintiff filed an application for SSI benefits for her son who was five years old at that time. In it, she alleged he became disabled in 2004 due to asthma. The agency denied the application initially and on reconsideration. Although neither side raised the issue, the Tenth Circuit concluded that Plaintiff could proceed pro se on behalf of her minor child to challenge in federal court the administrative denial of SSI benefits, but the Court affirmed the Commissioner’s denial of those benefits.




Court: U.S. 10th Circuit Court of Appeals
Docket: 11-1218
November 1, 2011
Judge: McKay
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law
State prisoner Plaintiff Michael Milligan appealed a district court's sua sponte dismissal of his Section 1983 complaint against various Colorado prison officials who were allegedly involved in decisions affecting Plaintiff's prison employment. Plaintiff alleged he worked for the prison's maintenance department plumbing crew for months without incident. In the fall of 2010 however, Plaintiff's "gate pass" was pulled, preventing him from accessing areas in which the maintenance department was located. Plaintiff was allegedly told that inmates assigned to work in these areas were reevaluated for their potential escape risk following the escape of another inmate. After he filed a grievance regarding his designation as a potential escape risk, the facility job board allegedly took his job away and placed him in vocational janitorial school. In his complaint, Plaintiff raised an equal protection claim based on the pulling of his gate pass as well as a retaliation claim based on the loss of his job in the maintenance department. The district court found that Plaintiff could not state an arguable claim that his civil rights were violated. Upon review, the Tenth Circuit held that the district court erred in dismissing Plaintiff's complaint: "We are not persuaded, however, that amendment would necessarily be futile or that this claim was based on an indisputably meritless legal theory." The Court reversed the district court's order of dismissal and remanded the case for further proceedings.




Court: U.S. Federal Circuit Court of Appeals
Docket: 10-3193
November 1, 2011
Judge: per curiam
Areas of Law: Government & Administrative Law, Labor & Employment Law
The agency removed plaintiff from her position based on charges of rude, disruptive, aggressive, or intimidating behavior and misrepresentation. Plaintiff denied the charges and alleged retaliation for prior Equal Employment Opportunity claims of sex discrimination. The Administrative Judge and Merit Systems Protection Board affirmed the removal. Plaintiff petitioned the EEOC for review; that agency found that the evidence supported the conclusion that her removal was not motivated by retaliatory animus. The Federal Circuit dismissed an appeal, finding that it lacked jurisdiction to review the Board's decision on the "mixed case." The case involved both a specific type of action against an agency which may be appealed to the Board and an allegation in the nature of an affirmative defense that a basis for the action was discrimination within one of the categories” listed in 5 U.S.C. 7702(a)(1)(B). Affirmative defenses of retaliation for prior EEO activity are assertions of discrimination under Title VII and within the meaning of 5 U.S.C. 7702.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-1392
November 4, 2011
Judge: Henderson
Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law, Health Law
Petitioner sought review of a decision of the Federal Mine Safety and Health Review Commission, an agency within the United States Department of Labor. The issue on appeal was whether a Mine Safety and Health Administration (MSHA) inspector was authorized to designate the violation of a safeguard notice issued pursuant to section 314(b) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 801 et seq., as "significant and substantial" under section 104(d)(1) of the Mine Act, which limited the "significant and substantial" designation to a violation of a "mandatory health or safety standard." The court agreed with the Commission majority that the violation of a safeguard notice issued pursuant to section 314(b) amounted to a violation of section 314(b) and was therefore a violation of a mandatory safety standard which could be designated "significant and substantial." Accordingly, the court denied the petition.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-1276
October 28, 2011
Judge: Williams
Areas of Law: Aviation, Environmental Law, Government & Administrative Law
Petitioners challenged the FAA's issuance of 130 Determinations of No Hazard for each of the proposed wind turbines in the area of Nantucket Sound. Petitioners argued that the FAA violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation. The FAA claimed that petitioners lacked standing to challenge the FAA's determinations and that their merits claims were faulty. The court found that petitioners had standing and that the FAA misread its regulations, leaving the challenged determinations inadequately justified. Accordingly, the petitions for review were granted and the FAA's determinations were vacated and remanded.




Court: Alaska Supreme Court
Docket: S-12630
November 4, 2011
Judge: Per curiam
Areas of Law: Construction Law, Energy, Oil & Gas Law, Government & Administrative Law
This case arose from an award by Golden Valley Electric Association (GVEA) of two competitively bid construction contracts on its Northern Intertie Project. In November 2001 GVEA awarded Global Power & Communications, LLC (Global) a $39.4 million contract (Contract NI-8) for construction of the Northern Intertie’s Tanana River flats section. Later GVEA awarded Global an approximately $5.3 million contract (Contract NI-9) for construction of the Northern Intertie’s Tanana River crossing and Fairbanks sections. Subsequently, after Global had been awarded NI-9 and before it had completed work on NI-8, Global presented GVEA with requests for additional compensation (RFIs) totaling approximately $2.4 million in connection with NI-8. GVEA responded that it found "no legitimate basis" to justify Global’s RFIs and rejected Global’s request for additional payment. Global also notified GVEA that Global would submit more RFIs, arising out of both NI-8 and NI-9. In all, Global sought additional compensation totaling $5.7 million under the two contracts. GVEA responded to Global denying most of the RFIs but indicated that it would approve a few and consider partial payment for a few others. Global sued, and a trial court ultimately held in GVEA's favor, awarding it costs under both the contract and the applicable state law. Global appealed, arguing among other things, the trial court abused its discretion in ruling in favor of GVEA. Upon review of the lengthy record from the trial court, the applicable legal authority and legislative history, and the two contracts in question, the Supreme Court partly affirmed and partly vacated the trial court's decision. The case was remanded for: (1) a fee determination regarding GVEA’s "UTPA" claim against Global and (2) a new trial on causation and damages relating to GVEA’s breach of NI-9.




Court: Arkansas Supreme Court
Docket: 11-361
November 3, 2011
Judge: Gunter
Areas of Law: Class Action, Government & Administrative Law, Labor & Employment Law
Petitioners, who were all employed by Respondent as public school bus drivers or dispatchers, claimed that Respondent failed to compensate them for regular and overtime wages in weeks in which they worked more than forty hours. Petitioners filed a class-action complaint in federal district court, alleging violations of the federal Fair Labor Standards Act and the Arkansas Minimum Wage Act (AMWA). Respondents opposed Petitioners' motion to amend their complaint, contending the amendment would be futile because Petitioners' AMWA claims were barred by the three-year statute of limitations set forth in Ark. Code Ann. 16-56-105. The Supreme Court accepted certification to answer what the appropriate statute of limitations was for a private cause of action pursuant to Ark. Code Ann. 11-4-218(e), which allows an employee to bring a private cause of action for relief against an employer for minimum wages, including overtime wages, but does not include a specific limitations provision. After acknowledging the Court's long history of applying section 16-56-105's three-year limitation period for statutorily created liabilities that do not contain an express limitations period, the Court answered that a three-year statute of limitations would apply to private causes of action brought pursuant to AMWA.




Court: Colorado Supreme Court
Docket: 10SC220
October 31, 2011
Judge: Hobbs
Areas of Law: Business Law, Constitutional Law, Energy, Oil & Gas Law, Government & Administrative Law, Tax Law
The issue on appeal to the Supreme Court was whether the Court of Appeals' ruling that the Article X, Section 20 of the Colorado Constitution (Amendment 1) required statewide voter approval each time the Colorado Department of Revenue calculated an increase in the amount of tax due per ton of coal extracted as directed by the formula codified in C.R.S. 39-29-106. After Amendment 1 went into effect, the Department suspended using the tax mechanism for calculating upward adjustments in the amount of coal severance tax owed based on inflation. Following an auditor's review in 2006, an Attorney General's opinion and a rule-making proceedings, the Department recommended applying the statute to calculate the tax due. Implementation resorted in a tax of $0.76 per ton of coal as compared to $0.56 per ton collected in 1992 when Amendment 1 first passed. The Colorado Mining Association and taxpayer coal companies filed an action challenging collection of the $0.76 per ton amount. Colorado Mining asserted that whenever the Department calculated an upward adjustment in the amount of tax due under the statute, it must obtain voter approval. The Court of Appeals agreed, but the Supreme Court disagreed. The Court held that the Department's implementation of section 39-29-106 was not a tax increase, but a "non-discretionary duty required by a pre-Amendment 1 taxing statute which did not require voter approval." Accordingly, the Court reversed the appellate court's judgment and reinstated the trial court's judgment, which held that the Department must implement the statute as written.




Court: Idaho Supreme Court - Civil
Docket: 37398-2010
November 2, 2011
Judge: Eismann
Areas of Law: Construction Law, Contracts, Government & Administrative Law, Government Contracts
The issue before the Supreme Court in this appeal was the City of Lewiston's rejection of a bid for a public works project on the grounds that the lowest bidder lacked sufficient experience for the project. In 2009, the City of Lewiston (City) advertised for bids to replace the irrigation system at the City golf course. Hillside Landscape Construction, Inc. (Hillside) desired to bid on the project, but prior to doing so it sent a letter to City stating that if City insisted upon having qualifications other than a current Idaho public works license to bid on the project, the City must follow the Category B procedures set forth in the Idaho Code and pre-qualify the bidders. Hillside asked that the qualification of prior experience be removed. City’s attorney denied the request, stating that City’s specifications and bidding process complied with state law. Hillside and four others submitted bids for the project. City notified the bidders that Hillside Landscape Construction submitted the lowest bid but that the company lacked the required experience specified within the bid documents. City awarded the contract to Landscapes Unlimited, the next lowest bidder. Hillside filed a complaint seeking injunctive relief, declaratory relief, and damages. The district court held that City complied with the bidding statutes, vacated a temporary restraining order, denied the motion for an injunction then dismissed Hillside’s complaint. In its review, the Supreme Court found that because the City chose to follow the "Category A" procedures set forth in the Idaho Code rather than the Category B procedures, the district court erred in holding that City could reject the bid on that ground. The Court therefore vacated the judgment of the district court and remanded the case for further proceedings.




Court: Idaho Supreme Court - Civil
Docket: 37258
November 2, 2011
Judge: Horton
Areas of Law: Government & Administrative Law, Zoning, Planning & Land Use
This appeal arose from a petition for judicial review of the Camas County Board of Commissioners' (Board) decision to approve a preliminary subdivision plat. The district court held that the Board’s findings of fact and conclusions of law did not amount to a "reasoned statement" as required by I.C. 67-6535, and that the lack of a reasoned statement violated the petitioners' substantial right to due process. The district court also held that the Board erroneously interpreted a number of Camas County Ordinances. The district court awarded attorney fees to petitioners. The Board timely appealed. The Supreme Court affirmed the district court’s order vacating the Board's findings and conclusions but reversed the district court’s award of attorney fees.




Court: Iowa Supreme Court
Docket: 101885
November 4, 2011
Judge: Mansfield
Areas of Law: Government & Administrative Law, Public Benefits
Krisha Bowman, a single mother of three minor children, received Section 8 housing assistance for several years. The Des Moines Municipal Housing Agency (DMMHA) later discontinued Bowman's housing assistance based on five alleged occurrences of unreported income. A hearing officer found that Bowman's assistance had been properly terminated. The district court affirmed. The Supreme Court affirmed, holding (1) DMMHA's determination that Bowman had five occurrences of unreported income was supported by substantial evidence; (2) DMMHA's policy of treating a failure to report each child's Social Security benefits as a separate occurrence of unreported income did not violate the Fair Housing Act; and (3) DMMHA did not improperly fail to consider Bowman's mitigating circumstances before terminating her assistance.




Court: New Hampshire Supreme Court
Docket: 2010-412
November 2, 2011
Judge: Hicks
Areas of Law: Government & Administrative Law
Petitioner David Montenegro appealed a superior court order that denied his petition under the Right-to-Know Law requesting disclosure of information pertaining to certain surveillance equipment and procedures of Respondent City of Dover. Petitioner sought information on: (1) the precise locations of the City’s surveillance equipment; (2) the recording capabilities for each piece of equipment; (3) the specific time periods each piece of equipment is operational; (4) the retention time for any recordings; and (5) the job titles of those who monitor the recordings. The City denied his request on the basis that "it would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions." In addition, the City stated that "disclosure could reasonably be expected to risk circumvention of the law." The superior court found that the City had sustained its burden of justifying withholding the the information. Upon review, the Supreme Court concluded that information on the City's surveillance equipment was exempt from disclosure under the Right-to-Know Law. As such, the Court affirmed the trial court's denial of Petitioner's requests.




Court: New Hampshire Supreme Court
Docket: 2010-784
November 3, 2011
Judge: Hicks
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law
Defendant New Hampshire Retirement System (NHRS) appealed a superior court decision that ordered it to disclose certain retiree benefit records requested by Plaintiff Union Leader Corporation under the state Right-to-Know Law. A Union Leader reporter requested that NHRS provide a list of retirement system members who received the highest annual pension payments for the 2009 calendar year. NHRS denied the request, but offered to provide a list of all state annuities ranked from highest to lowest. Union Leader thereafter filed suit requesting the list. On appeal, NHRS argued that the trial court erred in: (1) concluding that the plain language of the Right-to-Know Law (RSA 91-A:4, I-a) required disclosure of the requested records; (2) finding RSA 91-A:4, I-a unambiguous and therefore failing to consult legislative history; (3) failing to recognize the privacy interest at stake in disclosing retirees' names and annuity amounts; and (4) failing to assess the public's interest in disclosure and balance it against NHRS's interest in nondisclosure and the retirees' privacy interests. Upon review, the Supreme Court concluded that RSA 91-A:4, I-a did not compel disclosure of the records at issue, but that the records were subject to disclosure under the general mandate of RSA 91-A:4 and Article 8 of the state constitution. Accordingly, the Court affirmed the trial court's decision ordering disclosure of the records in Union Leader's request.




Court: Ohio Supreme Court
Docket: 2011-0922
October 27, 2011
Judge: Per Curiam
Areas of Law: Government & Administrative Law, Labor & Employment Law
For several years, Appellant Paul Lane worked for the City. Later, the interim city manager terminated Lane's employment for disciplinary reasons. Lane subsequently submitted to the City's personnel director a request for a hearing from the City Personnel Appeals Board regarding his termination. Via letter, the City declined Lane's request. Lane filed a complaint for a writ of mandamus to compel Appellees, the City and Board, to conduct a hearing and issue a determination on the merits of his appeal, reinstate him to his position of employment, and award back pay and corresponding employment benefits. The court of appeals denied the writ, determining that Lane had an adequate remedy in the ordinary course of law by administrative appeal from the Board's decision. The Supreme Court reversed, holding that in the absence of a final, appealable order by the Board on Lane's request for a hearing, he did not have an adequate remedy by way of administrative appeal to raise his claims. Remanded.



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