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Richard Joyce appealed the decision of an appellate officer within the Office of Professional Regulation dismissing his appeal for failure to file a statement of questions for consideration on appeal and complete the record for appellate review by ordering a transcript. Joyce has been a licensed surveyor since 1969. In 2014, Joyce completed a survey of the boundary between two adjoining properties. One of the property owners filed a complaint with the Office of Professional Regulation, Board of Land Surveyors (OPR) regarding Joyce's compliance with professional surveying standards. OPR opened an investigation into the complaint and, after review ultimately dismissed the complaint. Months later, OPR sent Joyce a letter stating that "[n]ew evidence ha[d] been brought to [its] attention . . . that warrant[ed] further investigation and reconsideration." OPR did not disclose the nature or origin of the new evidence. OPR sent Joyce a letter notifying him that "[t]he State Prosecuting Attorney ha[d] filed the enclosed charges and ha[d] asked the Office of Professional Regulation to take disciplinary action against [his surveying] license." A hearing on the charges was held in June 2017; OPR fined Joyce $750 and placed a two-year condition on his surveying license, requiring that he complete additional surveying training within 180 days of the entry of the order. The order noted Joyce's right to file an appeal with an OPR appellate officer within thirty days of the entry of the order. The order also contained instructions on how to request forms for proceeding in forma pauperis, including a statement that in forma pauperis status would make Joyce eligible to receive a transcript of the June hearing without cost. In his filing, Joyce's attorney reiterated that the appeal presented two legal issues, both raised in the attorney's notice of appeal, and that a transcript was unnecessary for resolution of the appeal. Neither Joyce nor his attorney filed a statement of questions, ordered a transcript of the June 2017 hearing, or filed a brief. The Vermont Supreme Court found that because Joyce provided the appellate officer with neither a statement of questions nor a transcript, per OPR rules, the record was not complete, and the appellate officer was effectively unable to conduct a review of the proceedings below. The appellate officer correctly considered the factors relevant to the decision not to review Joyce's filings in a summary manner and to dismiss Joyce's appeal, specifically, the procedural irregularities in the appeal that essentially foreclosed appellate review. View "In re Richard H. Joyce" on Justia Law

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DEA ordered Miami-Luken, a registered controlled substances pharmaceutical wholesaler, to show cause why its registration should not be revoked, for failing to maintain effective controls against the diversion of oxycodone and hydrocodone and failing to disclose suspicious orders. At the company’s request, an ALJ issued a subpoena requiring DEA to produce various investigative records. DEA filed a notice declaring that it would not comply. Miami-Luken filed an emergency motion and the district court adopted a magistrate’s recommendation to enforce the subpoena in part, eliminating one category of subpoenaed documents, narrowing another, and permitting DEA to provide “reasonably redacted versions.” DEA's Acting Administrator determined that the enforcement order, permitting the DEA to make reasonable redactions, also permitted DEA to review the validity of the subpoena itself, and found that the requested categories of documents were not “necessary to conduct” the hearing as would be required for disclosure under 21 C.F.R. 1316.52(d) and ordered the subpoena quashed. DEA obtained a stay of the order enforcing the subpoena pending further judicial review and moved for relief from judgment. Miami-Luken then petitioned the Sixth Circuit to review directly DEA’s order quashing the subpoena. Meanwhile, the district court denied DEA’s motion for relief from judgment, stating: Nothing in this Court’s Order permitted the DEA Administrator to set aside the subpoena. The Sixth Circuit denied Miami-Luken’s petition for lack of jurisdiction. The Administrator’s order was not a “final decision” under 21 U.S.C. 877. View "Miami-Luken, Inc. v. United States Drug Enforcement Administration" on Justia Law

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CBD filed suit challenging the FWS's decision not to list the arctic grayling as an endangered or threatened species under the Endangered Species Act (ESA). The Ninth Circuit reversed in part the district court's grant of summary judgment to FWS, holding that FWS acted in an arbitrary and capricious manner. The panel held that the 2014 Finding's decision that listing the arctic grayling was "not warranted" was arbitrary and capricious because it ignored the DeHaan study's evidence that shows decreasing numbers of breeders and instead heavily relied on a contrary finding showing increasing population; did not provide a reasoned explanation for relying on the existence of cold water refugia in the Big Hole River; failed to consider the synergistic effects of climate change solely because of "uncertainty"; and concluded that the Ruby River population was viable based on data collected over a shorter period than that underlying the 2010 Finding and FWS's own established criteria for viability. View "Center for Biological Diversity v. Zinke" on Justia Law

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Several years after a tank car spill accident, appellants Larry Lincoln and Brad Mosbrucker told their employer BNSF Railway Company (“BNSF”) that medical conditions attributable to the accident rendered them partially, permanently disabled and prevented them from working outdoors. BNSF removed appellants from service as Maintenance of Way (“MOW”) workers purportedly due to safety concerns and because MOW work entailed outdoor work. With some assistance from BNSF’s Medical and Environmental Health Department (“MEH”), Appellants each applied for more than twenty jobs within BNSF during the four years following their removal from service. After not being selected for several positions, Appellants filed charges with the Equal Employment Opportunity Commission (“EEOC”), accommodation request letters with BNSF, and complaints with the Occupational Safety Health Administration (“OSHA”). Following BNSF’s rejection of their applications for additional positions, Appellants filed a complaint raising claims for: (1) discrimination under the Americans with Disabilities Act (“ADA”); (2) failure to accommodate under the ADA; (3) retaliation under the ADA; and (4) retaliation under the Federal Railroad Safety Act (“FRSA”). Relying on nearly forty years of Tenth Circuit precedent, the district court concluded that filing an EEOC charge was a jurisdictional prerequisite to suit and it dismissed several parts of Appellants’ ADA claims for lack of jurisdiction. Appellants also challenged the vast majority of the district court’s summary judgment determinations on the merits of their claims that survived the court’s exhaustion rulings. After polling the full court, the Tenth Circuit overturn its precedent that filing an EEOC charge was a jurisdictional prerequisite to suit, thus reversing the district court’s jurisdictional rulings. Appellants’ ADA discrimination and ADA failure to accommodate claims relative to some of the positions over which the district court determined it lacked jurisdiction were remanded for further proceedings. With respect to the district court’s summary judgment determinations on the merits of appellants’ claims that survived the exhaustion rulings, the Tenth Circuit was unable to reach a firm conclusion on the position-based ADA discrimination and failure to accommodate claims. The Court concluded the district court’s dismissal of the FRSA claims were appropriate. Therefore, the Court reversed in part, affirmed in part and remanded this case for further proceedings. View "Lincoln v. BNSF Railway Company" on Justia Law

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The Missouri River overlies the western boundary of South Dakota's Crow Creek Indian Reservation, established in 1863. Under the Supreme Court’s 1908 “Winters” decision, the creation of a Reservation carries an implied right to unappropriated water “to the extent needed to accomplish the purpose of the reservation.” The Tribe possesses “Winters rights.” The Tribe sued, seeking $200 million in damages for the taking of its water rights. The complaint notes the federal Pick-Sloan flood control project on the River, with construction of the Fort Randall and Big Bend Dams; a 1996 statute that established a trust fund for the Tribe, funded with $27.5 million in hydroelectric-power revenue from Pick-Sloan; a 2012 settlement between the Tribe and the government, unrelated to water rights; and the generally poor economic prospects of the Reservation; it alleged that the government breached its fiduciary duty to “[a]ppropriately manag[e] the natural resources" of the Reservation, 25 U.S.C. 162a(d)(8). The complaint did not allege that the government’s actions deprived the Tribe of sufficient water to fulfill the reservation’s purposes or that those actions would cause the Tribe to lack sufficient water in the future. The Claims Court dismissed, stating that the complaint did not suggest that the Tribe is experiencing a water shortage and that it could not identify an injury "that has yet occurred.” The Federal Circuit affirmed, concluding that the Tribe failed to even allege that it has suffered the requisite injury in fact. View "Crow Creek Sioux Tribe v. United States" on Justia Law

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AFDI filed suit against WMATA and its then-general manager, alleging that WMATA's refusal to display its advertisements violated its rights to free speech and equal protection under the First and Fourteenth Amendments. The district court granted summary judgment to WMATA. Determining that the case was justiciable, the DC Circuit held that WMATA's advertising space was a nonpublic forum and that its restrictions were viewpoint-neutral. In this case, the court rejected AFDI's as-applied challenge, AFDI's claim that the ban on issue-oriented advertising was facially unconstitutional; and AFDI's claim that Guideline 12 was an unconstitutional prohibition of religious and antireligious views. The court remanded to the district court to determine whether the restrictions were reasonable in light of Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018). Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings. View "American Freedom Defense Initiative v. Washington Metropolitan Transit Authority" on Justia Law

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The DC Circuit affirmed the district court's decision to uphold HHS's redaction of certain types of information in response to PETA's request for information about the importation of nonhuman primates under the Freedom of Information Act (FOIA). The court noted that it would have little difficulty concluding that the market for importing nonhuman primates was competitive even without PETA's waiver. The court held that releasing shipment-by-shipment quantity, crate size, and airline carrier information would cause substantial harm to the competitive position of each importer. Therefore, such information was confidential and protected from disclosure by FOIA Exemption 4. Finally, the court held that the district court did not err by granting HHS's Rule 60(b)(6) motion for reconsideration of the judgment regarding three importers, which the district court had mistakenly assumed their silence was intentional. View "People for the Ethical Treatment of Animals v. HHS" on Justia Law

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At issue in this appeal was whether the EPA had authority under Sections 307(d)(7)(B) and 112(r)(7) of the Clean Air Act (CAA) to delay the effective date of the Chemical Disaster Rule of January 13, 2017, for twenty months for the purpose of reconsideration, and, if so, whether it properly exercised that authority. The DC Circuit held that, where EPA has exercised its Section 7607(d)(7)(B) authority to delay the effectiveness of a final rule, it cannot avoid that statute's express limitations by invoking general rulemaking authority under a different statutory provision. The court also held that, in any event, EPA's promulgation of the Delay Rule was arbitrary and capricious where EPA's explanations for its changed position on the appropriate effective and compliance dates were inadequate. Therefore, the court granted the petitions for review and vacated the Delay Rule. View "Air Alliance Houston v. EPA" on Justia Law

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The State and other defendants the New Hampshire Department of Education; Margaret Wood Hassan, individually; Christopher T. Sununu, as Governor; Virginia M. Barry, individually; and Frank Edelblut, as Commissioner of the New Hampshire Department of Education, appealed a superior court order granting plaintiffs Bedford School District and William Foote (collectively, “Bedford”), attorney’s fees in a case that Bedford had filed to recover adequate education funding that the State withheld in fiscal year 2016 because of a statutory limit on state funding imposed under RSA 198:41, III(b) (Supp. 2015) (repealed 2015, repeal effective July 1, 2017). On appeal, the State argued that because the trial court specifically declined to find that the State had acted in bad faith in this litigation, the trial court unsustainably exercised its discretion in awarding attorney’s fees. The State also argued that Bedford waived its right to attorney’s fees when it accepted education funds appropriated by a bill that contained a waiver provision. The New Hampshire Supreme Court found after review of the superior court record, that Bedford waived its right to an award of attorney’s fees, and thus reversed the superior court’s order. View "Bedford School District v. New Hampshire" on Justia Law

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The City of Clarksdale solicited sealed bids for a public construction project. The City received sealed bids from Landmark Construction Company, GCI (“Landmark”), and Hemphill Construction Company, Inc. (“Hemphill”). When unsealed, both bids exceeded the project’s allocated funds by more than ten percent. Rather than rebidding the contract, the City conditionally awarded a contract to Landmark, dependent upon the City’s obtaining additional public funds to match Landmark’s bid. The Mississippi Supreme Court found the City’s actions were not provided for in the public bidding laws, reversed the circuit court which held to the contrary, and remanded the case to the trial court for further proceedings. View "Hemphill Construction Company, Inc. v. City of Clarksdale" on Justia Law