Justia Government & Administrative Law Opinion Summaries

Southern Power and Cleveland County, North Carolina executed an “Incentive Development Agreement” in July 2007, providing that if Southern built and operated a natural gas plant — a decision left to Southern’s sole discretion — the county would make substantial cash payments to Southern. The North Carolina legislature enacted a new law (Subsection H) 37 days later, imposing more stringent requirements on such agreements, including a mandate that they include a recapture provision allowing a municipality to recover cash incentives already paid if the private entity breaches the agreement. In November-December 2008, Southern secured contracts to supply utility companies with electricity produced at the plant. Southern then asked the county to reaffirm its commitment to the Agreement. Cleveland County adopted a resolution at its January 6, 2009, meeting stating that it was committed to the incentive grants. Southern broke ground on the plant in October 2009 and began commercial operations in December 2012. Cleveland County, however, refused to pay Southern any cash incentives, arguing that the Agreement failed to comply with Subsection H.The district court dismissed the case as barred by North Carolina governmental immunity. The Fourth Circuit affirmed. Cleveland county never waived its governmental immunity from suit. View "Southern Power Co. v. Cleveland County" on Justia Law

Childs leased military family housing at Naval Amphibious Base Coronado, which was owned by SDFH, a public-private venture created by statute, in which the U.S. Navy is a minority LLC member. Lincoln managed the property. Childs reported water and mold problems to SDFH and Lincoln. The problems were not resolved. SDFH and Lincoln moved to dismiss Childs's subsequent lawsuit for lack of subject-matter jurisdiction, arguing they were government contractors acting at the direction of the federal government, and therefore had derivative sovereign immunity. The district court denied their motion.The Ninth Circuit dismissed an appeal for lack of appellate jurisdiction. The district court’s order was not immediately appealable under the collateral order doctrine, under which an order that does not terminate the litigation is nonetheless treated as final if it conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment. While the first two prongs were satisfied, the denial of derivative sovereign immunity was not effectively unreviewable on appeal from a final judgment because denying an immediate appeal would not imperil a substantial public interest. The public interest underlying derivative sovereign immunity is extending the federal government’s immunity from liability, in narrow circumstances, to government agents carrying out the federal government’s directions. That interest could be vindicated after trial. View "Childs v. San Diego Family Housing LLC" on Justia Law

Bird and other blind vendors filed a formal complaint with Oregon Commission for the Blind (OCB) seeking arbitration, prospective relief, and attorney’s fees as a consequence of OCB’s alleged mishandling of vending contracts and representation of blind vendors’ interests. The arbitration panel denied relief. The district court held that sovereign immunity did not apply to an arbitration panel’s decision under the Randolph-Sheppard Act (RSA), which creates a cooperative federal-state program that gives preference to blind applicants for vending licenses at federal facilities, 20 U.S.C. 107, and that the Eleventh Amendment did not protect OCB from liability for damages. The Ninth Circuit reversed. Neither the RSA nor the parties’ operating agreements unequivocally waived a state’s sovereign immunity from liability for monetary damages, attorney’s fees, or costs. Citing the Supreme Court’s 2011 "Sossamon" decision, the court rejected a “constructive waiver” argument, reasoning that a waiver of sovereign immunity must be explicit. An agreement to arbitrate all disputes simply did not unequivocally waive sovereign immunity from liability for monetary damages. The operating agreements incorporated the text of the RSA and contained no express waiver of immunity from money damages. Because no provision of the RSA or the operating agreements provided for attorney’s fees, Bird was not entitled to attorney’s fees. View "Bird v. Oregon Commission for the Blind" on Justia Law

Ingham, Jackson, and Calhoun County, Michigan (collectively, the Counties) filed an action alleging that they had a right to receive a decade’s worth of surplus contributions (surplus equity) made to the Michigan County Road Commission Self-Insurance Pool (the Pool). The Counties believed they were the successors in interest to their dissolved road commissions and, as such, were entitled to the surplus equity that the commissions might have received had they not been dissolved and withdrawn from the Pool. Jackson County made one other argument: because its road commission never formally withdrew from the Pool, the county said it had a right to receive surplus equity on the same terms as any current member. The Pool disagreed, contending the Counties had no right to surplus equity because the documents governing the Pool’s operations and its contracts with its various members provided the Pool with discretion in distributing surplus equity. This included, the Pool contended, the power to exclude former members should a distribution be made. The Court of Appeals sided with the Counties, holding that the Counties were the successors in interest to their dissolved road commissions and, as a matter of public policy, the Counties had a right to receive surplus equity for fiscal years in which their road commissions were members of the Pool. The Court of Appeals also determined that the dissolution of the Jackson County Road Commission did not disqualify Jackson County from membership in the Pool, and therefore, the county could receive surplus equity regardless of any public-policy considerations. The Michigan Supreme Court reversed. The Court agreed with the Pool that the Counties did not have a contractual right to receive surplus equity and that such an arrangement was not contrary to public policy. For Jackson County, the Court held that the dissolution of its county road commission did not transfer membership in the Pool from the road commission to the county itself, so the Pool could exclude Jackson County from post-dissolution distributions. View "County Of Ingham v. Michigan County Road Commission Self-Insurance Pool" on Justia Law

The 1949 Federal Property and Administrative Services Act is intended to facilitate the “economical and efficient” purchase of goods and services on behalf of the federal government, 40 U.S.C. 101. In November 2021, the Safer Federal Workforce Task Force, under the supposed auspices of the Act, issued a “Guidance” mandating that employees of federal contractors in “covered contract[s]” with the federal government become fully vaccinated against COVID-19. Ohio, Kentucky, and Tennessee and Ohio sheriffs’ offices sued, alleging that the Property Act does not authorize the mandate, that the mandate violates other federal statutes, and that its intrusion upon traditional state prerogatives raises federalism and Tenth Amendment concerns.The district court enjoined enforcement of the mandate throughout the three states and denied the federal government’s request to stay the injunction pending appeal. The Sixth Circuit denied relief. The government has established none of the showings required to obtain a stay. The government is unlikely to succeed on claims that the plaintiffs lack standing and the plaintiffs likely have a cause of action under the Administrative Procedure Act. The court noted the plaintiff’s concerns about disruptions to the supply chain if workers leave their jobs rather than receiving vaccinations and also stated: Given that expansive scope of the Guidance, the interpretive trouble is not figuring out who’s “covered”; the difficult issue is understanding who, based on the Guidance’s definition of “covered,” could possibly not be covered. View "Commonwealth of Kentucky v. Biden" on Justia Law

The Army requested bids for helicopter flight training and awarded the contract to L3. In a bid-protest action filed by disappointed bidder S3, the Claims Court set aside the award. After reevaluation of the bids, the Army awarded the contract to CAE. S3 filed another bid protest.The Claims Court rejected most of S3’s arguments but agreed that the assignment by the Army’s source selection authority (SSA) of a certain “strength” to CAE was irrational because that strength, which purported to provide a “significant cost savings benefit,” would result in only small and unpredictable savings, if any. Nevertheless, the Claims Court upheld the award, finding no prejudice to S3 from the identified error. The Claims Court observed that the erroneously found strength had been treated as falling within a non-price-factor category for which CAE’s proposal had been “clearly superior,” an assessment that would not be altered by the loss of a strength for which the only possible benefit could be monetary; when explicitly comparing the added benefits of the CAE proposal with its higher price in the best-value tradeoff analysis, the SSA had not made any adjustment to CAE’s price based on a cost-saving from the strength.The Federal Circuit affirmed, rejecting an argument that there is a presumption of prejudice whenever the Claims Court determines that the agency acted irrationally in making an award decision and finding no clear error in the determination that there was no prejudice. View "System Studies & Simulation, Inc. v. United States" on Justia Law

In 1993, the County and the Orange County Employee Retirement System (OCERS) entered into a Memorandum of Understanding (MOU), allowing the County to access surplus investment earnings controlled by OCERS and depositing a portion of the surplus into an account to pay for county retirees' health insurance. The county adopted the Retiree Medical Plan, funded by those investment earnings and mandatory employee deductions. The Plan explicitly provided that it did not create any vested rights. The labor unions then entered into MOUs, requiring the county to administer the Plan and that retirees receive a Medical Insurance Grant. In 1993-2007, retired employees received a monthly grant benefit to defray the cost of health insurance. In 2004, the county negotiated with its unions to restructure the underfunded program, reducing benefits for retirees.Plaintiffs filed suit. The Ninth Circuit affirmed summary judgment in favor of the county. The 1993 Plan explicitly provided that it did not create any vested right to benefits. The Plan was adopted by resolution and became law with respect to Grant Benefits, part of the MOUs. The MOUs expired on their own terms by a specific date. Absent express language providing that the Grant Benefits vested, the right to the benefits expired when the MOUs expired. The Plan was not unilaterally imposed on the unions and their employees without collective bargaining; the unions executed MOUs adopting the Plan. The court rejected an assertion that the Grant Benefit was deferred compensation and vested upon retirement, similar to pension benefits. View "Harris v. County of Orange" on Justia Law

Schindler filed suit alleging that WMATA arbitrarily eliminated it from consideration of a bid to replace escalators throughout WMATA's Metrol Rail System stations even though it complied with the Request for Proposal's (RFP) requirements and offered a better value than that proposed by the awardee.The DC Circuit affirmed the district court's dismissal sua sponte of Schindler's complaint based on lack of subject matter jurisdiction on the ground that WMATA, an interstate compact entity, had not waived its sovereign immunity. The court explained that neither the interstate compact creating WMATA, the Authority's procurement documents nor the Administrative Procedure Act waives WMATA's sovereign immunity for challenges to procurement decisions like Schindler's. View "Schindler Elevator Corp. v. Washington Metropolitan Area Transit Authority" on Justia Law

California AB 32 phases out private detention facilities within the state. Because of fluctuations in immigration, ICE relies exclusively on private detention centers in California. AB 32 carves out exceptions for the state’s private detention centers. The United States and GEO, which operates private immigration detention centers, sued. The district court ruled largely in favor of California.The Ninth Circuit reversed. California is not simply exercising its traditional police powers, but rather impeding federal immigration policy. . Under the Supremacy Clause, state law must fall if it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. The presumption against preemption does not apply to areas of exclusive federal regulation, such as the detention of immigrants. California did more than just exercise its traditional state police powers – it impeded the federal government’s immigration policy. Congress granted the Secretary of the Department of Homeland Security broad discretion over immigrant detention, including the right to contract with private companies to operate detention facilities. AB 32 also discriminated against the federal government in violation of the intergovernmental immunity doctrine by requiring the federal government to close all its detention facilities, while not requiring California to close any of its private detention facilities until 2028. View "GEO Group, Inc., v. Newsom" on Justia Law

In 2012, then-Governor Cuomo launched the "Buffalo Billion” initiative to develop the greater Buffalo area through the investment of $1 billion in taxpayer funds. A big-rigging scheme ensued with respect to state-funded projects. Four defendants were convicted of various counts of conspiracy to engage in wire fraud, 18 U.S.C. 1349, wire fraud, 18 U.S.C. 1343, and making false statements to federal officers, 18 U.S.C. 1001(a)(2).The Second Circuit affirmed, rejecting challenges to the sufficiency of the evidence with respect to the charged wire fraud conspiracies, the instructions to the jury regarding the right-to-control theory of wire fraud and the good faith defense, the preclusion of evidence regarding the success of the projects awarded to defendants through the rigged bidding system and the admission of evidence from competitors regarding the range of fees typically charged by other companies in the market, and the district court's denial of a motion to dismiss Gerardi's false statement charge for alleged prosecutorial misconduct. Evidence of actual economic harm is not necessary for conviction in "right-to-control" cases, which require "a showing that the defendant, through the withholding or inaccurate reporting of information that could impact on economic decisions, deprived some person or entity of potentially valuable economic information." View "United States v. Percoco et al." on Justia Law