Justia Government & Administrative Law Opinion Summaries

Articles Posted in U.S. D.C. Circuit Court of Appeals
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In 2008, the EPA issued a rule regulating renovation and remodeling activities that create health hazards arising from lead paint. The rule contained an "opt-out" provision, which exempted owner-occupied housing from the rule's requirements if the homeowner certified that no pregnant women or young children lived there. In 2010, EPA amended the rule to eliminate the opt-out provision. The National Association of Home Builders and other trade associations petitioned for review of the amended rule, arguing (1) the decision to abandon the opt-out provision was arbitrary and capricious, in violation of the APA; and (2) EPA failed to convene a panel of representatives of small businesses before issuing the new rule, in violation of the Regulatory Flexibility Act. The D.C. Circuit Court of Appeals denied the petition for review, holding (1) EPA's decision was not arbitrary or capricious; and (2) the Court lacked jurisdiction to entertain the petitioners' second challenge.

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Assistant United States Attorney Richard Convertino led the prosecution of the Detroit Sleeper Cell defendants in 2003. Convertino was later removed from the case for alleged violations committed during the prosecution. The Department of Justice's (DOJ) Office of Professional Responsibility (OPR) began an internal investigation into whether Convertino knowingly withheld evidence from the defense. A few months later, a reporter published an article in the Detroit Free Press including details of the OPR referral. Convertino brought suit, alleging that an unidentified DOJ employee willfully or intentionally disclosed confidential information protected by the Privacy Act to the reporter. After several years, Convertino moved for a motion to stay the proceedings on the ground he was pursuing discovery to learn the source's identity. The district court granted summary judgment to DOJ and denied Convertino's motion to stay. The D.C. Circuit Court of Appeals reversed the district court's summary judgment, holding that the district court committed an abuse of discretion in denying Convertino's motion to stay, as (1) the district court mistakenly assumed Convertino could maintain discovery proceedings even after the Privacy Act litigation ended; and (2) Convertino submitted ample evidence to suggest that additional discovery could reveal the source's identity. Remanded.

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106 Ltd. (Partnership), a limited partnership, appearing through its tax matters partner David Palmlund, appealed a decision of the United States Tax Court upholding the imposition of a forty per cent accuracy-related penalty by the IRS. The IRS determined that the Partnership had utilized a so-called "Son of BOSS" tax shelter to overstate its basis in Partnership interests by approximately $3 million and to thereby reduce Palmlund's individual federal income tax liability by nearly $400,000. The sole issue before the D.C. Circuit was whether the Tax Court erred in determining that the Partnership failed to establish a reasonable cause defense to the accuracy-related penalty pursuant to 26 U.S.C. 6664(c)(1). The D.C. Circuit affirmed, holding that the Tax Court did not err in concluding that the Partnership failed to establish the reasonable cause defense to the forty per cent accuracy-related penalty.

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In January 2012, the EPA promulgated an interim final rule (IFR) to permit manufacturers of heavy-duty diesel engines to pay nonconformance penalties (NCPs) in exchange for the right to sell noncompliant engines. Petitioners requested administrative stays of the IFR, protesting that the EPA lacked good cause within the meaning of the Administrative Procedures Act (APA), 5 U.S.C. 500 et seq. The court concluded that the EPA took this action without providing formal notice or an opportunity for comment, invoking the "good cause" exception provided in the APA. Because the court found that none of the statutory criteria for "good cause" were satisfied, the court vacated the IFR.

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Appellant, a Jewish American by birth who has lived in Israel as an Israeli national for over a decade, sought a Certificate of Loss of Nationality (CLN) from the Department of State, claiming that he was entitled to the CLN under two provisions of the Immigration and Nationality Act of 1952, 8 U.S.C. 1101 et seq. The court affirmed the District Court's judgment only insofar as it upheld that Department's decision that appellant was not eligible for CLN under Section 2 of the INA. The court reversed and remanded, however, the district court's judgment dismissing appellant's challenge to the Department decision denying his request for a CLN under Section 1. The agency's statutory interpretation of Section 1, as rendered in the Betancourt Letter, was not entitled to Chevron deference. And, because the Department failed to provide any coherent explanation for its decision regarding the applicability of Section 1, the agency's action was arbitrary and capricious for want of reasoned decisionmaking.

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Petitioners petitioned the court for review of the Commission's rulemaking regarding temporary storage of permanent disposal of nuclear waste. The court held that the rulemaking issue constituted a major federal action necessitating either an environmental impact statement or a finding of no significant environmental impact. The court further held that the Commission's evaluation of the risks of spent nuclear fuel was deficient in two specified ways. Accordingly, the court granted the petitions for review, vacated the Commission's orders, and remanded for further proceedings.

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API petitioned for review of a 2008 EPA regulation deregulating many "hazardous secondary materials" under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901-6992k. After the parties completed briefing, the EPA issued a notice of proposed rulemaking that, if made final, would significantly amend the EPA's 2008 decision. As a result, the court deemed this controversy unripe as a prudential matter and ordered the case held in abeyance, subject to regular reports on the status of the proposed rulemaking.

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The Association filed suit, under the Administrative Procedure Act (APA), 5 U.S.C. 706, and the Constitution, challenging the State Authorization, Compensation, and Misrepresentation Regulations the Department of Education initiated under the Higher Education Act (HEA), Pub. L. No. 89-329, 79 Stat. 1219, 1232-54. The court affirmed the judgment of the district court holding that the Compensation Regulations did not exceed the HEA's limits; the court mostly rejected the Association's claim that these regulations were not based on reasoned decisionmaking; the court remanded two aspects of the Compensation Regulations, however, that were lacking for want of adequate explanations. The court also held that the Misrepresentation Regulations exceeded the HEA's limits in three respects: by allowing the Secretary to take enforcement actions against schools sans procedural protections; by proscribing misrepresentations with respect to subjects that were not covered by the HEA, and by proscribing statements that were merely confusing. The court rejected the Association's other challenges to the Misrepresentation Regulations. Finally, with respect to the State Authorization Regulations, the court concluded that the Association had standing to challenge the school authorization regulation, but held that the regulation was valid. However, the court upheld the Association's challenge in the distance education regulation, because that regulation was not a logical outgrowth of the Department's proposed rules.

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After the Air Force announced it would conduct a reduction-in-force (RIF) at Luke Air Force Base, the Union made several proposals about how the RIF should be conducted and asked the Air Force to enter into negotiations. The Air Force claimed it had no duty to negotiate over three of the Union's proposals, prompting the Union to appeal the FLRA. The FLRA determined that the Air Force had an obligation to negotiate over two of the three disputed proposals and the Air Force subsequently petitioned for review of the unfavorable rulings. Because the Air Force's objections to the FLRA's rulings were either waived or unavailing, the petition for review was denied.

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On July 16, 2010, the court remanded this case to the Secretary of the State Department, concluding that the Secretary had violated the due process rights of PMOI by maintaining its designation as a Foreign Terrorist Organization (FTO) under the Antiterrorism and Effective Death Penalty Act (AEDPA), 8 U.S.C. 1189. It has been nearly two years since the court's remand and the Secretary has yet to issue a reviewable ruling on PMOI's petition. PMOI now seeks a writ of mandamus ordering the delisting of PMOI or, alternatively, requiring the Secretary to make a decision on PMOI's petition or the court setting aside her FTO designation. Consequently, the court ordered the Secretary to act on PMOI's petition no later than four months from the issuance of this opinion; failing that, the petition for writ of mandamus setting aside the FTO designation will be granted.