Justia Government & Administrative Law Opinion Summaries

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The Ninth Circuit affirmed the district court's order denying plaintiff's motion to remand his case to state court, where he wants to pursue his claim that a JAG colleague, defendant, is engaged in the unauthorized practice of law because defendant is licensed only in states outside of California. The panel held that defendant was "acting under" a federal officer within the meaning of 28 U.S.C. 1442(a)(2). The panel rejected plaintiff's contention that this was not a "civil action or criminal prosecution" under section 1442(a)(1), and held that defendant was a "person" within the meaning of the statute; there was a causal connection between plaintiff's claims and defendant's actions taken pursuant to a federal officer's directions; and defendant raised a colorable federal defense under the Supremacy Clause. In this case, defendant was appointed by and reports to a federal officer and is permitted by federal regulation to practice law, in a specific and limited capacity, without becoming a member of the California Bar. Therefore, defendant has a colorable defense that this federal regulatory scheme preempts a claim by a private individual that would have the effect of invalidating those federal regulations in states, like California, that do not require all JAG Trial Defense Service attorneys to become members of the California Bar. View "Stirling v. Minasian" on Justia Law

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In 2011, Sistek was appointed as a director at the VA’s Chief Business Office Purchased Care. Sistek subsequently made several protected disclosures to the VA’s Office of the Inspector General (OIG) questioning various financial practices and perceived contractual anomalies. Sistek’s supervisor became aware of Sistek’s concerns. Sistek was subsequently subjected to an investigation. Sistek filed a complaint with the Office of Special Counsel (OSC) alleging whistleblower reprisal based on several personnel actions, including the letter of reprimand. Sistek later filed an individual right of action appeal with the Merit Systems Protection Board, alleging retaliation under the Whistleblower Protection Act. The Administrative Judge declined to order any corrective action, finding that a retaliatory investigation, in itself, does not qualify as a personnel action eligible for corrective action under the Act. The OIG subsequently confirmed that the concerns raised by Sistek were justified. Sistek retired from the VA in 2018. The Federal Circuit affirmed. The Act defines qualifying personnel actions at 5 U.S.C. 2302(a)(2)(A); retaliatory investigations, in and of themselves, do not qualify. The Act provides that a retaliatory investigation may provide a basis for additional corrective action if raised in conjunction with one or more of the qualifying personnel actions. View "Sistek v. Department of Veterans Affairs" on Justia Law

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The Fifth Circuit granted a writ of mandamus directing vacatur of the district court's issuance of a temporary restraining order (TRO) against executive order GA-09 as applied to abortion procedures. In order to preserve critical medical resources during the escalating COVID-19 pandemic, the Governor of Texas issued GA-09, which postpones non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020. The court held that the drastic and extraordinary remedy of mandamus was warranted in this case because the district court ignored the framework governing emergency public health measures, like GA-09, in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905); the district court wrongly declared GA-09 an "outright ban" on previability abortions and exempted all abortion procedures from its scope, rather than apply the Jacobson framework to decide whether GA-09 lacks a "real or substantial relation" to the public health crisis or whether it is "beyond all question, a plain, palpable invasion" of the right to abortion; the district court failed to apply the undue-burden analysis in Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992), and thus failed to balance GA-09's temporary burdens on abortion against its benefits in thwarting a public health crisis; and the district court usurped the state's authority to craft emergency health measures, substituting instead its own view of the efficacy of applying GA-09 to abortion. Therefore, the court found that the requirements for a writ of mandamus are satisfied in light of the extraordinary nature of these errors, the escalating spread of COVID-19, and the state's critical interest in protecting the public health. View "In re: Gregg Abbott" on Justia Law

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Sonia and Hector Ruiz's (together Ruiz) home flooded because their privately owned underground storm drain pipe rusted out after 50 years of use. They sued the County of San Diego (County) for inverse condemnation, and after a bench trial the court entered judgment in their favor (essentially the cost of replacing their metal pipe (the Ruiz pipe)) with a reinforced concrete pipe. The primary issue on appeal was whether a privately owned storm drain pipe located on private property, for which a public entity had rejected an offer of dedication, nevertheless became a public improvement because "public water" drained through it. After review of the trial court record, the Court of Appeal agreed with the County that under settled law, the answer is no. The County also contended the trial court's alternative basis for imposing liability, that the County acted unreasonably in discharging water through a public drainage system that connects to the Ruiz pipe, also failed. "Even viewing the evidence most favorably to Ruiz, the evidence is insufficient to sustain the judgment on this theory." Accordingly, judgment was reversed with directions to enter judgment for the County. View "Ruiz v. County of San Diego" on Justia Law

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Claiming insolvency, taxpayer Vincent Hamilton sought to exclude nearly $160,000 in student loans that were forgiven from his taxable income. During the same tax year, however, he had received a non-taxable partnership distribution worth more than $300,000. His wife transferred those funds into a previously-unused savings account held nominally by their adult son. Using login credentials provided by their son, Mrs. Hamilton incrementally transferred almost $120,000 back to the joint checking account she shared with her husband. The Hamiltons used these funds to support their living expenses. In a late-filed joint tax return, they excluded the discharged student-loan debt on the theory that Mr. Hamilton was insolvent. In calculating his assets and liabilities, however, the Hamiltons did not include the funds transferred into the savings account. Had they done so, Mr. Hamilton would not have met the criteria for insolvency; and the couple would have owed federal income tax on the student-loan discharge. The Commissioner of Internal Revenue eventually filed a Notice of Deficiency, reasoning that the partnership distribution rendered Mr. Hamilton solvent, such that the Hamiltons were required to pay income tax on the cancelled student loan debt. debt. The Hamiltons petitioned for review from the Tax Court, which sustained both the deficiency and a significant late-filing penalty. Finding no reversible error, the Tenth Circuit affirmed the Tax Court's judgment. View "Hamilton v. CIR" on Justia Law

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The IRS conducted a civil audit of Peter Hermes, Kevin Desilet, Samantha Murphy, and John Murphy (collectively, the “Taxpayers”) to verify their tax liabilities for their medical- marijuana dispensary, Standing Akimbo, LLC. The IRS was investigating whether the Taxpayers had taken improper deductions for business expenses arising from a “trade or business” that “consists of trafficking in controlled substances.” Claiming to fear criminal prosecution, the Taxpayers declined to provide the audit information to the IRS. This left the IRS to seek the information elsewhere—it issued four summonses for plant reports, gross-sales reports and license information to the Colorado Department of Revenue’s Marijuana Enforcement Division (the “Enforcement Division”), which is the state entity responsible for regulating licensed marijuana sales. In Colorado federal district court, the Taxpayers filed a petition to quash the summonses. The government moved to dismiss the petition and to enforce the summonses. The district court granted the motion to dismiss and ordered the summonses enforced. After review, the Tenth Circuit concluded the Taxpayers failed to overcome the IRS' showing of good faith, and failed to establish that enforcing the summonses would constitute an abuse of process. View "Standing Akimbo, LLC v. United States" on Justia Law

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An Illinois municipality may join the Municipal League, an unincorporated, nonprofit, nonpolitical association, and may pay annual membership dues and fees; member municipalities may act through the League to provide and disseminate information and research services and do other acts for improving local government, 65 ILCS 5/1-8-1. Lincolnshire is one of more than a thousand dues-paying League members and uses tax revenue to pay the dues from the Village’s General Fund. From 2013-2018, Lincolnshire paid at least $5,051 in voluntary dues and fees to the League. Individual residents and the Unions sued, claiming First Amendment and the Equal Protection Clause violations. They claimed that Lincolnshire compelled them to subsidize private speech on matters of substantial public concern because the League sent emails promoting a particular political agenda, including the adoption of “right to work” zones. The Seventh Circuit affirmed the dismissal of the suit. Lincolnshire itself has the right to speak for itself and a right to associate; it voluntarily joined the League as it is authorized to do. Local governments must be allowed to discuss, either directly or through a surrogate, ideas related to municipal government, regardless of where those ideas originated. View "O'Brien v. Village of Lincolnshire" on Justia Law

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The DC Circuit dismissed Sierra Club's petition for review of the EPA's "Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of Significant Deterioration Permitting Program" (SILs Guidance). The court held that it lacked subject-matter jurisdiction under the Clean Air Act, because the SILs Guidance is not final agency action. The court explained that the SILs Guidance does not determine rights or obligations and does not effectuate direct or appreciable legal consequences as understood by the finality inquiry. View "Sierra Club v. EPA" on Justia Law

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The DC Circuit granted the petitions for review of the EPA's 2018 Rule, which suspended the prior listing of hydrofluorocarbons (HFCs) as unsafe substitutes in its entirety. Consequently, even current users of ozone-depleting substances can now shift to HFCs. As a preliminary matter, the court held that it had jurisdiction to consider the petitions for review, because NRDC, like New York, has established its standing to proceed. Furthermore, the 2018 Rule meets both prongs of the Bennett test for finality. On the merits, the court held that the 2018 Rule was a legislative rule and was thus improperly promulgated without the required notice-and-comment procedures. Accordingly, the court vacated the 2018 Rule, remanding to the EPA for further proceedings. View "Natural Resources Defense Council v. Wheeler" on Justia Law

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The DC Circuit denied a petition for review of the Department's determination that Hagerstown Airport was not eligible for federally subsidized air service because it did not meet the statutory "enplanement" requirement. In this case, petitioners argue that it was arbitrary and capricious for the Department to refuse to grant the airport a waiver as it had done four times previously. After determining that the Department's decision was subject to judicial review, the court deferred to the Department's decision not to waive the airport's failure to meet the enplanement requirement. The court was unconvinced by petitioners' contention that the Department acted arbitrarily because it had been so forgiving in the past. The court explained that the Department was entitled to credit Hagerstown's explanations and predictions less after another year of noncompliance. The court also concluded that the Department's view -- that Hagerstown's history of noncompliance and its location are superior predictors of future enplanement numbers -- is reasonable and therefore is entitled to deference. Finally, it was reasonable for the Department to rely on certain factors to distinguish another community from Hagerstown. View "Board of County Commissioners of Washington County v. United States Department of Transportation" on Justia Law