Justia Government & Administrative Law Opinion Summaries

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MVP asked two Army Corps districts to verify that, pursuant to the Clean Water Act, MVP's proposed discharge of dredged and/or fill material into waters of the United States in furtherance of construction of a natural gas pipeline in those districts could be governed by the Army Corps' 2017 nationwide permit (NWP) referred to as NWP 12. The Huntington District issued a verification, determining that the Pipeline project met the criteria for operation under the NWP 12, excusing the project from the individual permitting process (the "Verification"). The Norfolk District did the same, issuing a reinstatement of its prior verification allowing MVP to use NWP 12 in that district (the "Reinstatement"). Petitioners filed petitions for agency review of the Verification and Reinstatement pursuant to the Natural Gas Act (NGA) and filed the instant motions to stay.The Fourth Circuit concluded that petitioners are likely to succeed on the merits of their petitions for review, and other equitable factors weigh in favor of granting the motions for stay. The court explained that the Verification was likely issued in contravention of applicable law because the Army Corps impermissibly incorporated into NWP 12 a modified permit condition from the West Virginia Department of Environmental Protection (WVDEP). Furthermore, because the Verification was likely issued in contravention of law, the Reinstatement (which necessarily depends on the validity of the Verification) is likely defective as well. Therefore, the court granted petitioners' motions for a stay of the Huntington District's Verification and the Norfolk District's Reinstatement until such time as the court may consider the petitions for review on their merits. However, the court concluded that petitioners are not likely to succeed on the merits of their challenges to the Army Corps' 2017 issuance of NWP 12 itself because the court likely lacks jurisdiction to entertain such challenges. View "Sierra Club v. U. S. Army Corps of Engineers" on Justia Law

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In this lawsuit brought by the Attorney General against the Arizona Board of Regents challenging certain tuition policies, the Supreme Court affirmed in part and reversed in part the judgment of the trial court dismissing the action, holding that the Attorney General was not authorized to proceed with its first set of claims but that the trial court erred by granting the motion to dismiss the latter challenge.The Attorney General alleged that the Board's tuition-setting policies violate Ariz. Const. art. XI, 6 and that subsidizing in-state tuition for students who are not lawfully present constitutes an unlawful expenditure of public funds. The trial court dismissed the complaint, concluding that the Attorney General lacked authority to bring it. The Supreme Court affirmed in part and reversed in part the trial court's decision, holding (1) Ariz. Rev. Stat. 35-212 did not provide a basis for counts I-V, and therefore, the trial court properly dismissed those claims for lack of authority on the part of the Attorney General to prosecute them; and (2) the trial court erred in dismissing count VI because the Attorney General was entitled to prove that, in providing in-state tuition on behalf of students were not not lawfully present, the Board illegally expended funds beyond the amount of tuition collected. View "State ex rel. Brnovich v. Arizona Board of Regents" on Justia Law

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E-cigarette manufacturers and retailers, as well as a nonprofit organization, challenged the FDA's Deeming Rule, which deemed e-cigarettes to be "tobacco products" subject to the Family Smoking Prevention and Tobacco Control Act's requirements, under the Appointments Clause and the First Amendment of the Constitution.The DC Circuit affirmed the district court's grant of summary judgment to the FDA and held that appellants' Appointments Clause challenge lacks merit and their First Amendment challenge is foreclosed. In this case, even assuming for purposes of argument, that Associate Commissioner for Policy Kux's issuance of the Deeming Rule violated the Appointments Clause and that FDA Commissioner Califf's general ratification of prior actions by the FDA as part of an agency reorganization was invalid, FDA Commissioner Gottlieb's ratification cured any Appointments Clause defect. Furthermore, appellants' challenge to the Act's preclearance pathway for modified risk tobacco products as violative of the First Amendment is foreclosed by Nicopure Labs, LLC v. FDA, 944 F.3d 267, 271 (D.C. Cir. 2019). In Nicopure Labs, the court found unpersuasive the objection that appellants make now, namely that the Deeming Rule violates the First Amendment because it places the burden on manufacturers to show that certain of their marketing claims are truthful and not misleading before they make them. View "Moose Jooce v. Food & Drug Administration" on Justia Law

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Dr. Korban and his medical practice Delta, practice diagnostic and interventional cardiology. In 2007, Dr. Deming filed a qui tam action under the False Claims Act (FCA), 31 U.S.C. 3729(a)(1)(A)–(C), (G) against Korban, Jackson Regional Hospital, and other Tennessee hospitals, alleging “blatant overutilization of cardiac medical services.” The United States intervened and settled the case for cardiac procedures performed in 2004-2012. Korban entered into an Integrity Agreement with the Office of Inspector General, effective 2013-2016 that was publicly available and required an Independent Review Organization. The U.S. Department of Justice issued a press release that detailed the exposed fraudulent scheme and outlined the terms of Korban’s settlement. In 2015, Jackson Regional agreed to a $510,000 settlement. The Justice Department and Jackson both issued press releases.In 2017, Dr. Maur, a cardiologist who began working for Delta in 2016, alleged that Korban was again performing “unnecessary angioplasty and stenting” and “unnecessary cardiology testing,” paid for in part by Medicare. In addition to Korban and Jackson, Maur sued Jackson’s corporate parent, Tennova, Dyersburg Medical Center, and Tennova’s corporate parent, Community Health Systems. The United States declined to intervene. The district court dismissed, citing the FCA’s public-disclosure bar, 31 U.S.C. 3730(e)(4). The Sixth Circuit affirmed. Maur’s allegations are “substantially the same” as those exposed in a prior qui tam action and Maur is not an “original source” as defined in the FCA. View "Maur v. Hage-Korban" on Justia Law

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The Supreme Court reversed the orders of the Public Utilities Commission finding that intervening appellee Ohio Edison Company's 2017 earnings were not significantly excessive, holding that the Commission's decision to exclude revenue resulting from Ohio Edison's Distribution Modernization Rider (DMR) from the earnings test was not reasonable.Electric distribution utilities that opt of provide service under an electric security plan must undergo an annual earnings review by Commission. If the Commission finds that the plan resulted in significantly excessive earnings compared to similar companies, the utility must return the excess to its customers. The Office of the Ohio Consumers' Counsel appealed from the Commission's orders finding that Edison's 2017 earnings were not significantly excessive. The Supreme Court reversed, holding that the Commission's exclusion from the earnings test revenue resulting from the DMR, which was approved as part of Edison's electric security plan, was not reasonable. View "In re Determination of Existence of Significantly Excessive Earnings for 2017 Under the Electric Security Plan of Ohio Edison Co." on Justia Law

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The First Circuit vacated the October 30, 2019 order of the National Labor Relations Board reinstating its November 10, 2016 order finding that Wang Theatre, Inc. (WTI) committed labor violations by failing to bargain with the Boston Musicians' Association, holding that the Board made errors of law and fact in certifying a bargaining unit that had no employees.BMA petitioned the Board to become the union representative for musicians employed by WTI. WTI argued that the petition should be dismissed because WTI had not employed any musicians since 2014. On November 10, 2016, the Board certified the bargaining unit. BMA then filed a charge with the Board alleging that WTI committed an unfair labor practice by refusing to bargain. The Board granted summary judgment for BMA. On October 30, 2019, the Board reinstated its original November 10, 2016 order. The First Circuit vacated both orders, holding that the Board misapplied the law and its own case law in certifying a no-employee bargaining unit. View "National Labor Relations Board v. Wang Theatre, Inc." on Justia Law

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The First Circuit denied Petitioner's petition seeking review of a decision of the Board of Immigration Appeals (BIA) dismissing Petitioner's appeal of an Immigration Judge's (IJ) decision finding that Petitioner had abandoned his status as a lawful permanent resident (LPR) in the United States ordering removal, holding that the IJ's and the BIA's decisions were supported by the record evidence.Petitioner, a Lebanese citizen, was admitted to the United States as an LPR in 1991. Petitioner later moved to Canada. In 2014, the IJ found that Petitioner was not admissible into the United States because he had abandoned his LPR status. The BIA affirmed. The First Circuit denied Petitioner's petition for review, holding that the lower agencies' decisions were supported by the evidence. View "Mahmoud v. Barr" on Justia Law

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Plaintiff, the Clerk of Erie County, filed suit alleging that he could be prosecuted under federal immigration law for performing certain duties under New York's Driver's License Access and Privacy Act (the "Green Light Law"), which establishes certain policies and procedures related to standard licenses. The Green Light Law directs the New York State DMV to accept various foreign documents as proof of identification and age for standard licenses, and prohibits DMV from inquiring about the immigration status of standard-license applicants; restricts DMV’s retention and use of certain applicant information; and requires that within three days of receiving a request for information or records from federal immigration authorities, DMV provide written notification to the subject of the request and inform the person of the identity of the requesting agency. New York law designates certain county clerks as agents of the DMV Commissioner and assigns them discrete functions in that regard. Plaintiff challenges the licensing, nondisclosure, and notification provisions of the Green Light Law.The Second Circuit affirmed the district court's dismissal of the suit based on lack of Article III standing, holding that compliance with the state law would not expose plaintiff to a credible threat of prosecution under federal law. The court explained that the REAL ID Act permits states to issue noncompliant licenses provided that they meet certain requirements, which do not include the verification of lawful status. Furthermore, 6 C.F.R. 16 37.71(a), promulgated by DHS, permits states that issue REAL ID Act-compliant licenses also to issue licenses "that are not acceptable by Federal agencies for official purposes," provided they meet certain requirements. The court concluded that the theory that issuing standard licenses constitutes criminal harboring is directly at odds with federal law that expressly permits the issuance of such licenses, and thus plaintiff lacks standing to challenge the licensing provisions of the Green Light Law. The court also concluded that plaintiff lacks standing to challenge the nondisclosure and notification provisions of the Green Light Law. Finally, the court concluded that the threat that plaintiff will be removed from office is speculative. For largely the same reasons that he lacks standing in his individual capacity, plaintiff lacks standing in his official capacity. The court considered plaintiff's remaining arguments and found them to be without merit. View "Kearns v. Cuomo" on Justia Law

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Between 1983-2015, Heneghan was an associated person (AP) of 14 different National Futures Association (NFA)-member firms. Troyer invested hundreds of thousands of dollars in financial derivatives through NFA Members. The first interaction between Troyer and Heneghan was in 2008. After receiving an unsolicited phone call from Heneghan, Troyer invested more than $160,000. Despite changes in Heneghan’s entity affiliation, his working relationship with Troyer remained constant. At one point, Heneghan’s then-firm, Statewide, withdrew from the NFA following an investigation. Heneghan was the subject of a four-month NFA approval-hold in 2012. Troyer began sending money to Heneghan personally in 2013, allegedly to obtain trading firm employee discounts; these investments totaled $82,000. Troyer neither received nor asked for any investment documentation for this investment. In 2016-2015, NFA investigated Heneghan’s then-firm, PMI, Despite Troyer’s alleged substantial investment, no PMI accounts were listed for either Troyer or Heneghan. In 2015, Troyer directed Heneghan to cash out the fund; “all hell broke loose.” In 2016, the NFA permanently barred Heneghan from NFA membership. Troyer filed suit under the Commodities Exchange Act. 7 U.S.C. 25(b).The Seventh Circuit affirmed the summary judgment rejection of Troyer’s claim. NFA Bylaw 301(a)(ii)(D), which bars persons from becoming or remaining NFA Members if their conduct was the cause of NFA expulsion, is inapplicable. Statewide’s agreement not to reapply represented a distinct sanction from expulsion and did not trigger Bylaw 301(a)(ii)(D). View "Troyer v. National Futures Association" on Justia Law

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Plaintiffs filed suit alleging discrimination under Government Code section 11135 based on a requirement that all San Diego County applicants eligible for the state's CalWORKs (welfare) program participate in a home visit. The County demurred, arguing there was no discriminatory effect on of the program, no disparate impact caused by the home visits, and the parties lacked standing to sue. The superior court granted the demurrer without leave to amend, and entered judgment. Plaintiffs argued on appeal that their complaint stated a viable cause of action. The Court of Appeal disagreed, finding the complaint did not allege a disparate impact on a protected group of individuals and could not be amended to do so. Therefore, the Court affirmed the superior court. View "Villafana v. County of San Diego" on Justia Law