Justia Government & Administrative Law Opinion Summaries

The issue presented for the Tenth Circuit’s review centered on whether a taxpayer may challenge a tax penalty in a Collection Due Process hearing (“CDP hearing”) after already having challenged the penalty in the Appeals Office of the Internal Revenue Service (“IRS”). Keller Tank Services II, Inc. participated in an employee benefit plan and took deductions for its contributions to the plan. The IRS notified Keller of: (1) a tax penalty for failure to report its participation in the plan as a “listed transaction” on its 2007 tax return; and (2) an income tax deficiency and related penalties for improper deductions of payments to the plan. Keller protested the tax penalty at the IRS Appeals Office. It then attempted to do so in a CDP hearing but was rebuffed because it already had challenged the penalty at the Appeals Office. Keller appealed the CDP decision to the Tax Court, which granted summary judgment to the Commissioner of Internal Revenue (“Commissioner”). Finding no reversible error in the Tax Court’s judgment, the Tenth Circuit affirmed. View "Keller Tank Services v. Commissioner, Internal Rev. Svc." on Justia Law

Defendants-Appellants El Tequila, LLC, and Carlos Aguirre (collectively, “El Tequila”) appealed a $2,137,627.44 judgment in favor of Plaintiff- Appellee, Secretary of the Department of Labor (Secretary). El Tequila was a restaurant with four locations (Harvard, Broken Arrow, Owasso, and Memorial) in Tulsa, Oklahoma. In December 2010, an employee from the Harvard location complained to the Department of Labor’s Wage and Hour Division (WHD). The complaint prompted the WHD to investigate the Harvard location (First Harvard Investigation). The First Harvard Investigation consisted of interviews with employees and El Tequila’s owner, Aguirre; examining payroll documents; and touring the restaurant. The payroll records showed employees were paid $7.25 per hour (the minimum wage), worked about forty hours a week, and received overtime when required. Interviews with Aguirre and his employees confirmed this information.The WHD investigator only found recordkeeping violations, and closed the First Harvard Investigation. Additional employee complaints prompted the WHD to investigate the Harvard location a second time. This time, the WHD investigator arrived at the Harvard location unannounced, and discovered several violations. The records Mr. Aguirre provided during the First Harvard Investigation, known as middle sheets, were based on his false summaries of how many hours employees worked, rather than actual clock-in and clock-out times. During the Second Investigation, Aguirre provided the WHD investigator with time sheets that contained actual clock-in and clock-out times. Aguirre withheld these time sheets during the First Harvard Investigation, and many time entries had been “whited-out” and edited to conform with the Federal Labor Standards Act (FLSA). The Second Investigation would reveal that Aguirre instructed employees to lie during their interviews. Time sheets and middle sheets were found to have been falsified. In September 2011, the WHD investigated El Tequila’s Memorial, Owasso, and Broken Arrow locations because Aguirre admitted the same impermissible payment practices were occurring there. In October 2012, the Secretary filed suit because El Tequila refused to pay its employees at the Broken Arrow, Owasso, and Memorial locations for wages from October 2009 to August 2011. On appeal, El Tequila challenged aspects of the investigations and subsequent trial, including the amount of damages ordered against it. Finding no reversible error, the Tenth Circuit affirmed the judgment. View "Perez v. El Tequila, LLC" on Justia Law

Between fiscal years 2006 and 2011, Congress prohibited the use of funds for inspection, thereby preventing commercial equine slaughter. In fiscal year 2012, Congress lifted the ban on funding and Food Safety Inspection Service (FSIS) received several applications for inspection. The agency issued grants of inspection to two commercial equine slaughter facilities: Valley Meat Company, LLC and Responsible Transportation, LLC. Front Range Equine Rescue, the Humane Society of the United States, and several other individuals and organizations (collectively, "Front Range") sued officials of the USDA, seeking a declaration that grants of inspection generally violated the National Environmental Policy Act and requesting that the court set aside the specific grants of inspection. Front Range also moved to enjoin the Federal Defendants from authorizing equine slaughter during the pendency of the claims. The district court granted Front Range's motion for a temporary restraining order (TRO), prohibiting the Federal Defendants from sending inspectors to the equine slaughterhouses of, or otherwise providing equine inspection services. The court additionally sua sponte enjoined Valley Meat and Responsible Transportation from engaging in commercial equine slaughter. Valley Meat opposed Front Range's motion, arguing that it should be restrained and Front Range should be required to post a bond because an injunction against the Federal Defendants effectively also enjoined its operations. The district court never ruled on Front Range's motion, but denied Front Range's request for a permanent injunction and dismissed the action. Front Range immediately appealed the decision to the Tenth Circuit. The Tenth Circuit temporarily enjoined the Federal Defendants from sending inspectors but did not enjoin Valley Meat or Responsible Transportation. Then, the Court dismissed the appeal as moot: (1) because Congress once again made it unlawful to engage in commercial equine slaughter for human consumption; and (2) while the appeal was pending, Valley Meat "decided to abandon all plans to slaughter equines and asked FSIS to withdraw its grant of inspection." The Tenth Circuit then vacated the district court's order denying a permanent injunction, "based on the underlying equitable principle that a party should not have to bear the consequences of an adverse ruling when frustrated by the vagaries of the circumstances." Valley Meat and Responsible Transportation moved to recover an injunction bond. A magistrate judge recommended that the motion be denied, and the district court adopted the magistrate's recommendation in full. Valley Meat appealed the denial of damages on the injunction bond. To this point, the Tenth Circuit affirmed, finding that the district court did not abuse its discretion in denying recovery against the injunction bond because there was never a ruling that Valley Meat was wrongfully enjoined. "This conclusion alone is enough to affirm the district court's decision." View "Front Range Equine Rescue v. Vilsack" on Justia Law

In 2012, the Securities Exchange Commission (SEC) brought an administrative action against Colorado businessman David Bandimere, alleging he violated various securities laws. An SEC ALJ presided over a trial-like hearing. The ALJ's initial decision concluded petitioner Bandimere was liable, barred him from the securities industry, ordered him to cease and desist from violating securities laws, imposed civil penalties, and ordered disgorgement. The SEC reviewed the initial decision and reached a similar result in a separate opinion. In his petition to the Tenth Circuit, petitioner challenged the SEC's opinion as a whole, including both his securities fraud and registration liability, based on a constitutional argument, contending that the ALJ that presided over his hearing had been appointed in violation of Appointments Clause. The Tenth Circuit's decision with respect to this argument "relieves Mr. Bandimere of all liability." During the SEC's review, the agency addressed petitioner's argument that the ALJ was an "inferior officer," as was contemplated by the Federal Constitution. The SEC conceded the ALJ had not been constitutionally appointed, but rejected petitioner's argument because, in its view, the ALJ was not an inferior officer. The Tenth Circuit, after careful consideration, concluded that indeed, the ALJ was an inferior officer. "Nothing in this opinion should be read to answer any but the precise question before this court: whether SEC ALJs are employees or inferior officers. [. . .] Having answered the question before us, and thus resolved Mr. Bandimere's petition, we must leave for another day any other putative consequences of that conclusion." The SEC ALJ held his office unconstitutionally when he presided over petitioner's hearing. View "Bandimere v. U.S. SEC" on Justia Law

Split Rail Fence Company, Inc., a Colorado business that sold and installed fencing materials, petitions for review of an administrative law judge’s (“ALJ”) summary decision. The decision imposed civil penalties on Split Rail for violating the Immigration Reform and Control Act (“IRCA”) by: (1) “hir[ing] for employment in the United States an individual without complying with the requirements of subsection (b)” of 8 U.S.C. 1324a in violation of section 1324a(a)(1)(B) (Count One); and (2) “continu[ing] to employ [an] alien in the United States knowing the alien is (or has become) an unauthorized alien” in violation of section 1324a(a)(2) (Count Two). ICE special agents conducted an inspection at Split Rail in 2009 and 2011 to determine its compliance with the IRCA. During the inspection, it examined Split Rail’s I-9 forms. ICE served Split Rail with an Notice of Intent to Fine (NIF), commencing this administrative proceeding against Split Rail. Split Rail management stated it “had absolutely no reason to believe either now or at any time in the past that any of [nine individuals identified as ‘current employees’ in the 2011 Notice of Suspect Documents] are anything but law abiding residents of the United States of America.” Split Rail noted many of them were long-term employees who, along with their families, had been involved in company activities, parties, and picnics. He further stated they each appeared authorized to work in the United States because they had bank accounts, cars, homes, and mortgages. He also noted many had valid driver’s licenses and some had filed successful workers’ compensation claims. He did not, however, state that Split Rail had taken any action regarding the employees’ I-9 forms. In 2012, ICE filed its complaint against Split Rail. The ALJ granted ICE summary decision on both counts. Split Rail timely filed its petition for review, but finding no reversible error as to the ALJ's decision, the Tenth Circuit denied Split Rail’s petition. View "Split Rail Fence Co. v. United States" on Justia Law

Plaintiffs, a group of entities and individuals that owned businesses or real property located on Central Avenue in Albuquerque, New Mexico, filed suit seeking to enjoin the City of Albuquerque from proceeding with construction of a rapid transit bus system along Central Avenue. Plaintiffs claimed, in pertinent part, that the City and the Federal Transit Administration (from whom the City sought federal funding for the project), violated the National Environmental Policy Act, and the National Historic Preservation Act, in the course of planning the project. The district court denied plaintiffs’ request for a preliminary injunction. Plaintiffs filed an interlocutory appeal challenging that ruling. Finding no reversible error, however, the Tenth Circuit affirmed. View "Coalition of Concerned Citizen v. Federal Transit" on Justia Law

Big Cats of Serenity Springs was a Colorado-based non-profit that provided housing, food, and veterinary care for exotic animals. The facility was regulated by the United States Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS). Three APHIS inspectors accompanied by sheriff’s deputies broke into the Big Cats facility without its permission to perform an unannounced inspection of two tiger cubs. But at the time the inspectors entered the facility, the cubs were at a veterinarian’s office receiving treatment, just as Big Cats had promised the APHIS inspectors the previous day. Big Cats and its directors sued the APHIS inspectors for the unauthorized entry pursuant to "Bivens v. Six Unknown Narcotics Agents," (403 U.S. 388 (1971)) and 42 U.S.C. 1983, asserting the entry was an illegal search under the Fourth Amendment. The district court denied the APHIS inspectors’ motion to dismiss the complaint and they filed an interlocutory appeal challenging the court’s failure to grant qualified immunity. The Tenth Circuit affirmed in part and reversed in part. Big Cats’ complaint stated a claim for relief under "Bivens." No APHIS inspector would reasonably have believed unauthorized forcible entry of the Big Cats facility was permissible, and therefore Big Cats and its directors could have a claim for violation of their Fourth Amendment right to be free from an unreasonable search. But the Court reversed on Big Cats’ civil rights claim because the federal inspectors were not liable under section 1983 in the circumstances here. View "Big Cats of Serenity Springs v. Vilsack" on Justia Law

While incarcerated at the Topeka Correctional Facility (TCF - an all-female state prison), Plaintiff-Appellant Tracy Keith was raped by a prison maintenance employee. Plaintiff filed a section 1983 suit alleging that prison officials, including Warden Richard Koerner, violated her Eighth Amendment rights by creating an environment in which sexual misconduct was likely to occur. The Warden defended primarily on qualified immunity grounds. The district court granted summary judgment to Warden Koerner on qualified immunity. Plaintiff appealed. After review, the Tenth Circuit found that a reasonable jury could have concluded that Warden Koerner created an atmosphere where “policies were honored only in the breach, and, as a result, he failed to take reasonable measures to ensure inmates were safe from the risk of sexual misconduct by TCF employees.” Because plaintiff possessed “a clearly established constitutional right” and presented evidence of a constitutional violation by Warden Koerner, the Tenth Circuit concluded summary judgment was inappropriate on qualified-immunity grounds. The Court reversed and remanded for further proceedings. View "Keith v. Koerner" on Justia Law

A New Mexico statute and a resolution adopted by the Otero County Board of County Commissioners purported to authorize the Board to mitigate fire danger in the Lincoln National Forest without first obtaining permission from the U.S. Forest Service. The United States obtained a judgment from the United States District Court for the District of New Mexico invalidating the statute and the resolution. The Board appealed. but finding no error, the Tenth Circuit affirmed. "The Property Clause of the United States Constitution authorizes the federal government to promulgate regulations governing use of national forest lands; and under the Constitution’s Supremacy Clause and binding precedent, those regulations prevail over any contrary state or local law." View "United States v. Board of Commissioners of Otero County" on Justia Law

Ting Xue, a native and citizen of China, applied to the Tenth Circuit for review of a Board of Immigration Appeals (“BIA”) order affirming the denial of his petition for asylum, withholding of removal and protection under the Convention Against Torture ("CAT"). Xue claimed he was persecuted in his native China for his religious beliefs. He was smuggled to North America, ultimately entering the United States illegally through Mexico in July 2008. The IJ concluded Xue’s treatment at the hands of Chinese authorities before he came to the United States was not sufficiently severe to amount to past persecution. After review, the Tenth Circuit found that the BIA correctly concluded that because Xue failed to show a reasonable possibility of future persecution, he necessarily failed to meet the higher burden required for withholding of removal under the Immigration and Nationality Act. Furthermore, the Court found the BIA correctly concluded that Xue failed to show his eligibility for relief under the CAT. With nothing more, the Court denied Xue's petition for review. View "Xue v. Lynch" on Justia Law