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Exposure to a hazard can be demonstrated by facts establishing that exposure to the hazard is reasonably predictable. Appellant in this case argued that the Nevada Occupational Safety and Health Administration (NOSHA) improperly cited it for violating 29 C.F.R. 1910.132(f), which requires employers to provide training regarding the use of personal protective equipment to employees exposed to hazards requiring the use of such equipment. Specifically, Appellant argued that it was improperly cited for a violation because no facts established that its employees were actually exposed to such a hazard in the course of their work or were required to have fall protection training. The Nevada Occupational Safety and Health Review Board upheld NOSHA’s citation. The Supreme Court reversed, holding (1) when a statute or regulation requires NOSHA to establish employee exposure to a hazard, the Board’s decision regarding a NOSHA citation may be upheld if NOSHA presents substantial evidence demonstrating that exposure to the hazard was or would be reasonably predictable; and (2) the Board in this case relied on an incorrect standard in evaluating the citation. View "Sierra Packaging & Converting, LLC v. Chief Administrative Officer of Occupational Safety & Health Administration" on Justia Law

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In these consolidated appeals requiring the Supreme Court to interpret various provisions of the West Virginia Surface Coal Mining and Reclamation Rule (WVSCMRR), W.Va. CSR 38-2-1, the Supreme Court affirmed in part and reversed in part the order of the circuit court. The Supreme Court held that the circuit court (1) did not err in finding that the WVSCMRR does not require a coal company, in its application for modification of its mining permit, to demonstrate compliance with the Utility Protection Standard found at W.Va. 38-2-14.17; (2) did not err in ruling that the permit application sufficiently described how the coal operator would comply with the Utility Protection Standard; but (3) erred in finding that the WVSCMRR applied regardless of a coal operator’s common law property rights. View "Texas Eastern Transmission v. W. Va. Department of Environmental Protection" on Justia Law

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Caremark is a pharmacy benefit manager. In 2006, Caremark employees identified approximately 4,500 Prescription Drug Events (PPDEs) under Medicare Part D that had been authorized for payment by Caremark, but not yet submitted to the Centers for Medicare and Medicaid Services (CMS), due to the lack of a compatible Prescriber ID. Caremark then used a dummy Prescriber ID for those PDEs and programmed that dummy Prescriber ID into its system. Thereafter, when any claim with a missing or incorrectly formatted Prescriber ID was processed, the system would default to the dummy, which allowed Caremark to submit for payment PDEs without trigging CMS error codes. Spay, a pharmacy auditor, discovered the use of “dummy” Prescriber IDs while auditing a Caremark client. That client dropped all issues identified in the audit, collected no recovery from Caremark, and did not pay Spay. Spay filed a qui tam lawsuit, asserting violations of the False Claims Act because the inaccurate PDEs were used to support reimbursement requests. The government declined to intervene. The court granted Caremark summary judgment, finding that Caremark had established sufficient government knowledge to preclude finding the required element of scienter, noting that several courts have adopted the government knowledge inference doctrine. The Third Circuit affirmed, declining to adopt that doctrine but stating that the misrepresentations were not material to the government’s decision to pay the underlying claims. View "Spay v. CVS Caremark Corp" on Justia Law

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To receive disability compensation based on service, a veteran must demonstrate that the disability was incurred or aggravated in the line of duty, 38 U.S.C. 101(16). Congress has enacted presumptive service connection laws to protect certain veterans who faced exposure to chemical toxins but would find it difficult to prove a “nexus” between their exposure and their disease. Under the Agent Orange Act, 38 U.S.C. 1116, any veteran who served in Vietnam during the Vietnam era and who suffers from any designated disease “shall be presumed to have been exposed during such service” to herbicides. The VA determines which diseases qualify for presumptive service connection and defines service in Vietnam. Absent on-land service, the VA concluded that the statute did not authorize presumptive service connection for veterans serving in the open waters surrounding Vietnam. The Federal Circuit upheld that position in 2007. In 2016, the VA amended its M21-1 procedures manual to also exclude veterans who served in bays, harbors, and ports of Vietnam. The VA did not implement this additional restriction by way of notice and comment regulation as it did its open waters restriction and has not published its view on this issue in the Federal Register. The Federal Circuit rejected a challenge for lack of jurisdiction. The VA’s revisions are not agency actions reviewable under 38 U.S.C. 502. The M21-1 Manual provisions are only binding on Veterans Benefits Administration employees. View "Gray v. Secretary of Veterans Affairs" on Justia Law

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Plaintiff Mary Anna Whitehall worked as a social worker for the San Bernardino County Children and Family Services (CFS or the County). She sought legal advice pertaining to any liability she might have for submitting misleading information and doctored photographs to the juvenile court at the direction of her superiors. Her counsel prepared a filing; subsequently plaintiff was immediately placed on administrative leave for disclosing confidential information to an unauthorized person. Upon being informed she would be terminated for the breach, plaintiff resigned her position and filed a whistle blower action against the County. The County filed a special motion to strike the complaint as an Anti-SLAPP action, pursuant to Code of Civil Procedure section 425.16, which was denied by the trial court. The County appealed. On appeal, the County argued the trial court erred in determining plaintiff had established the second prong of the criteria to overcome a special motion to strike an Anti-SLAPP lawsuit by finding a likelihood she would prevail because the County’s actions were not privileged or covered by governmental immunity. Finding no reversible error, the Court of Appeal affirmed. View "Whitehall v. County of San Bernardino" on Justia Law

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The question presented in this appeal for the Tenth Circuit's review was whether Petitioner Juan Lucio-Rayos’s municipal theft conviction qualified as a crime involving moral turpitude (“CIMT”), which would have made him ineligible for cancellation of removal. Lucio-Rayos was convicted under a divisible municipal code provision that set forth several different theft offenses, some of which qualified as CIMTs and some of which did not. Applying a modified categorical approach, the Tenth Circuit determined it was not possible to tell which theft offense was the basis of Lucio-Rayos’s conviction. The Court held it was Lucio-Rayos’s burden to establish his eligibility for cancellation of removal, and because the record was inconclusive to this end, the Court upheld the Board of Immigration Appeals (“BIA”)’s determination that Lucio-Rayos did not show that he was eligible for cancellation of removal. Furthermore, the immigration judge (“IJ”) did not deprive Lucio-Rayos of due process by refusing to recuse from hearing his case. View "Lucio-Rayos v. Sessions" on Justia Law

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At issue was the Zoning Board of Appeals’ (ZBA) denial of Plaintiff’s application for a comprehensive permit to develop a mixed-income project. Plaintiff owned parcel of land in an area zoned for limited manufacturing use. The site was subject to a restrictive covenant owned by the city of Newton, and the city owned an abutting parcel with a deed restriction requiring that it be used only for conservation, parkland, or recreational use. Plaintiff sought to amend the deed restriction to allow a residential use at the site and to permit construction in the nonbuild zone. The ZBA denied Plaintiff’s permit application, concluding that it lacked authority to amend the deed restriction, an interest in land held by the city. The Department of Housing and Community Development (HAC) affirmed. Plaintiff sought judicial review. A land court judge granted Defendants’ motions for judgment on the pleadings, concluding that the HAC does not have authority to order the city to relinquish its property interest. The Supreme Judicial Court affirmed, holding (1) the negative easement is a property interest in land, and the ZBA does not have authority modify certain types of property interests in land; and (2) the restrictive covenant is not invalid where the restrictions provide valuable interests to the city. View "135 Wells Avenue, LLC v. Housing Appeals Committee" on Justia Law

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The Supreme Court affirmed the order of the circuit court granting mandamus relief to Lieutenant Gregory Scolapio and finding that Scolapio was entitled to a hearing before the Harrison County Civil Service Commission for Deputy Sheriffs regarding the decision of Robert Matheny, Sheriff of Harrison County, to terminate his employment. The court held (1) the circuit court did not err in determining that Scolapio was entitled to receive both a pre-disciplinary hearing before the hearing board and a de novo evidentiary hearing before the Commission; and (2) the circuit court did not err in permitting the Sheriff to intervene in the proceedings. View "Matheny v. Scolapio" on Justia Law

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At issue in this case was a municipal ordinance, which authorized the issuance of bonds to be used to refinance the defendants' obligations with respect to the ​construction of a baseball park. Judgment was entered in favor of defendants on grounds that plaintiffs lacked standing to challenge the refinancing. After review, the Court of Appeal found the plaintiff taxpayers had standing under Government Code section 1092 to challenge the ordinance on the grounds participants in the proposed transaction violated the conflict of interest provisions of section 1090. Accordingly, the Court reversed the trial court's judgment dismissing plaintiff's complaint. View "San Diegans for Open Gov. v. Public Facilities Financing etc." on Justia Law

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Gatlin, an employee of Hopkins County Coal (HCC), was terminated from his job after refusing to perform a pre-shift examination that he believed entitled him to extra pay. Gatlin filed a discrimination complaint with the Mine Safety and Health Administration (MSHA). After forwarding the complaint to HCC and making an initial request to interview HCC managerial employees, the MSHA sent a letter requesting to review documents that it claimed were necessary to properly evaluate Gatlin’s claim. Following a series of letters and a site visit, HCC refused to produce Gatlin’s personnel file and the personnel files of other employees at the mine who faced discipline during the previous five years for engaging in the conduct that led to Gatlin’s termination. An MSHA investigator issued citations and an order to HCC under sections 104(a) and (b)1 of the Mine Safety and Health Act, 30 U.S.C. 814. An ALJ with the Federal Mine Safety and Health Review Commission upheld the citations and order. The Commission and the Sixth Circuit affirmed, rejecting HCC’s claims that the MSHA exceeded its authority under the Mine Act by demanding company personnel documents without first identifying any basis for a discrimination claim and the MSHA’s demands to inspect the records violated HCC’s Fourth Amendment rights. View "Hopkins County Coal v. Mine Safety and Health Administration" on Justia Law