Justia Government & Administrative Law Opinion Summaries

The Supreme Court received a certified question from the Ninth Circuit Court of Appeals. The issue centered on whether under RCW 82.04.500 a seller may upon disclosure, recoup its business and occupation (B&O) tax by collecting a surcharge to recover gross receipts taxes in addition to its monthly service fee. The matter stems from Plaintiff-Appellant James Bowden's purchase of three cell phones and a monthly service plan for each phone at a kiosk. The phone company's monthly service fee did not include Washington's B&O tax. However, the tax was listed as a "State B and O Surcharge" on Plaintiff's monthly bills, for which he was charged various amounts for each of the phones. Upon review, the Supreme Court concluded that the phone company's monthly service fee, the sales price of its service contract, did not include the B&O surcharge. Rather, on the Agreement, the surcharge was listed separately under the "Regulatory Recovery Fee" provision described as a gross receipts surcharge. Further, the company's billing statements listed the surcharge separately like it was a sales tax, and both the sales tax and B&O fee were added on to the service fee. The Court therefore answered "no": even if disclosed under RCW 82.04-500, a seller is prohibited from recouping its B&O taxes by collecting a surcharge in addition to its monthly service fee.

In 2006, U.S. Marshals worked with officers in 24 states on a fugitive round-up that led to arrests of 10,733 people, including plaintiff, who was wrongfully arrested because of clerical mistakes. All charges were eventually dropped, but news reporters had filmed her arrest and aired the story, including plaintiff's name and a statement that she was wanted for identity theft, after the dismissal. One station also placed the video on its website, along with a written story. Plaintiff's attorney faxed a cease and desist letter to the station, which removed the story, although it remained accessible by keyword search for several days. Most of plaintiffs' claims against the federal and city governments, the U.S. Marshals Service, the broadcast company and employees, and various named and unnamed Marshals, were resolved. The district court rejected defamation and false light claim against the broadcast company, based on the fair report privilege requirement of proof of actual malice, and a Federal Tort Claims Act, 28 U.S.C. 1346(b)(1), claim against the U.S. for lack of subject matter jurisdiction. The Sixth Circuit affirmed, citing the discretionary function exception. Investigating and apprehending plaintiff was discretionary and not within the safe harbor for intentional torts.

Several company operators filed a complaint against petitioner with the FCC, which ruled that petitioner's increased pole attachment rates violated the Pole Attachment Act, 47 U.S.C. 224(d), and the FCC's implementing regulations. Petitioner now sought review of that order, arguing that the Act failed to provide for just compensation under the Fifth Amendment and that the FCC's decision was arbitrary and capricious, or was otherwise not supported by substantial evidence. The court found the doctrine of collateral estoppel a fatal bar to petitioner's assertion of the constitutional issue, and its remaining arguments unavailing. Accordingly, the court denied the petition.

This case involved a dispute between AT&T Communications and TCG Omaha (collectively AT&T) and the Nebraska Public Service Commission (PSC) regarding the correct interpretation of Neb. Rev. Stat. 86-140, which governs the regulation of access charges. In its order, the PSC determined that telecommunications companies like AT&T could seek the negotiation and review of access charges under section 86-140 only when a local exchange carrier had implemented new or revised access charges, and not "at will." The district court reversed in part and in part modified the decision of the PSC. The Supreme Court reversed the decision of the district court placing certain limitations on the section 86-140 negotiation and review process, holding that the plain language of the statute envisions both a negotiation and review process that are not limited by the statute. Remanded.

Claimant Jerry Benoit worked for Turner Industries for twenty-seven years. For ten of those years he worked as a general laborer for a Lake Charles Citgo refinery, where Turner was contracted to perform general maintenance. Claimant's duties included cleaning chemical discharges and oily waste which collected in the drainage ditches, sewers, and processing units at the refinery. In the course of this work, he was exposed to any number of potentially dangerous or carcinogenic chemicals, including high levels of benzene. In July 2006, Claimant fell ill. He was diagnosed with acute myeloid leukemia (AML), known to be linked to high levels of benzene exposure. Despite the medical evidence linking Claimant's cancer to the chemicals he was exposed to at work, his claim for medical benefits was denied. The eventual medical bills totaled over $625,000. Medicaid paid for $203,124.68. The remaining $422,043.59 was "written off" by the medical care providers. Turner paid nothing. Claimant's family filed suit in 2007. The Office of Workers' Compensation (OWC) awarded Claimant total medical expenses and attorney fees. Turner appealed, and the court of appeals affirmed the OWC judgment in its entirety. Upon review of the correctness of the OWC award of medical expenses, the Supreme Court concluded the OWC erred in awarding the "written off" medical expenses: "Claimant would receive an improper windfall if he was allowed to recover for medical expenses which have been reduced by health care providers as a result of their contractual arrangements with Medicaid." The Court reversed the appellate court's decision and remanded the case for further proceedings.

Petitioners, the City of Arlington and the City of San Antonio, sought review of a Declaratory Ruling and subsequent Order on Reconsideration that the FCC issued in response to a petition for a declaratory ruling by a trade association of wireless telephone service providers, CTIA. In the proceeding before the FCC, CTIA sought clarification of Sections 253 and 332(c)(7) of the Communications Act, 47 U.S.C. 253, 332(c)(7), regarding local review of wireless facility siting applications. Both cities claimed (1) the FCC lacked statutory authority to establish the 90- and 150-day time frames; (2) the FCC's 90- and 150-day time frames conflicted with the language of section 332(c)(7)(B)(ii) and (v); (3) the FCC's actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and (4) the FCC violated the Administrative Procedures Act (APA), 5 U.S.C. 500 et seq., because its establishment of the 90- and 150-day time frames constituted a rulemaking subject to the APA's notice-and-comment requirements. Arlington also raised a procedural due process claim. The court denied Arlington's petition for review on the merits. The court dismissed San Antonio's petition for review because the court lacked jurisdiction because San Antonio did not timely file its petition for review.

Plaintiffs, a trade organization representing incumbent cable operators in Texas and an incumbent cable provider, appealed the district court's grant of summary judgment dismissing their claims that Senate State Bill 5 violated the First and Fourth Amendments of the Constitution or was preempted by federal law. SB 5 was aimed at reforming the cable service industry in Texas by creating a new state-level franchising system that obligated the Public Utility Commission (PUC) to grant a franchise for the requested areas if the applicant satisfied basic requirements. New entrants could obtain a single statewide franchise that avoided the expense and inconvenience of separate municipal franchise agreements across the state. Overbuilders could terminate their existing municipal franchise agreements in favor of the convenience of the statewide franchise. Incumbent cable providers, however, could not similarly opt out for the statewide franchise, until after the expiration of the municipal license. The court held that because the statute unjustifiably discriminated against a small number of incumbent cable providers in violation of the First Amendment, the court reversed.

In three challenged orders, the Commission addressed a "traffic pumping" scheme in which the holder of the filed tariff entered into contractual arrangements with conference calling companies and charged the interexchange carrier the tariff rate for providing switched access service. Farmers, the holder of the tariff, petitioned for review. As a threshold matter, Farmers, joined by intervenor, contended that the Commission lacked authority to overturn its decision in Farmers I because it failed, as 47 U.S.C. 405(b) required, to act within 90 days on Qwest's petition for partial reconsideration and consequently, Farmers I became a final appealable order. The court held that the contention was based on a misreading of the statute. The merits question was whether the Commission properly determined that Farmers was not entitled to bill Qwest for access service under Farmers' tariff because Farmers had not provided interstate "switched access service" as that term was defined in Farmers' federal access tariff. The court held that the Commission, upon considering factors within its expertise, could reasonably conclude that Farmers' relationships with the conference calling companies had been deliberately structured to fall outside the terms of Farmers' tariff and therefore reasonably rejected such services as tariffed services. Therefore, deference to the Commission's determination was appropriate. Accordingly, the court denied the petition.

This case arose from claims that the federal government, with the assistance of major telecommunications companies, engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001 attacks. At issue was whether plaintiffs have standing to bring their statutory and constitutional claims against the government for what they described as a communications dragnet of ordinary American citizens. The court concluded that plaintiffs' claims were not abstract, generalized grievances and instead met the constitutional standing requirement of concrete injury; nor do prudential considerations bar the action; the claims did not raise a political question nor are they inappropriate for judicial resolution; and the court did not impose a heightened standing requirement simply because the case involved government officials in the national security context. Accordingly, the court reversed the district court's dismissal on standing grounds and remanded for further proceedings.

Plaintiffs appealed from the district court's dismissal of their complaint against government officials and a group of telecommunications companies. Plaintiffs challenged section 802 of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1885a, as an unconstitutional taking under the Fifth Amendment. Section 802 allowed the U.S. Attorney General to certify that a telecommunications company provided assistance at the behest of the government in connection with investigation of terrorism, thereby triggering immunity on the theory that application of section 802 required dismissal of plaintiffs' case and negated the cause of action under various federal statutes. The court held that the district court correctly dismissed plaintiffs' complaint for lack of jurisdiction where plaintiffs demanded no monetary damages. Consequently, the court need not reach the merits of the Takings Clause claim.