Justia Government & Administrative Law Opinion Summaries

The Ninth Circuit affirmed the district court's dismissal of an action brought by SCAP challenging nonbinding guidance that the EPA issued to recommend a statistical method for assessing water toxicity. Plaintiffs alleged that the EPA had violated the Administrative Procedure Act (APA) by issuing the Test of Significant Toxicity (TST) guidance without following notice-and-comment rulemaking procedures, and that the EPA had violated its own regulations by requiring and using the TST in discharge permits.After determining that it can consider both of the district court's dismissal orders, the panel explained that the APA allows a plaintiff to challenge only final agency action, and an agency's action is final only if it imposes legal consequences. In this case, the guidance at issue imposes no such consequences, and thus the APA does not permit this challenge. View "Southern California Alliance of Publicly Owned Treatment Works v. Environmental Protection Agency" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of a Federal Tort Claims Act (FTCA) case brought by plaintiffs, alleging negligence by an emergency room physician. The physician treated Tyrone Sisto at the San Carlos Apache Healthcare Corporation hospital and failed to diagnose Rocky Mountain Spotted Fever. Plaintiffs claimed that the physician was an "employee of the United States" under the FTCA and the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5301 et seq., and that he negligently failed to diagnose the disease that led to Sisto's death.The panel agreed with the district court that the FTCA and section 5321(d) do not waive the United States' sovereign immunity with respect to claims based on the negligence of employees of independent contractors providing health care pursuant to a self-determination contract under the ISDEAA. Therefore, the panel concluded that the physician was an employee of T-EM rather than the hospital, and that the FTCA and section 5321(d) do not authorize a suit against the United States based on his alleged negligence. In this case, the physician had only a contract with T-EM and he was not an individual who provided health care services pursuant to a personal services contract with a tribal organization and was therefore not an employee of the Public Health Service under section 5321(d); because hospital privileges were not issued to the physician on the condition that he provide services covered by the FTCA, neither 25 U.S.C. 1680c(e)(1) nor 25 C.F.R. 900.199 confers FTCA coverage; and the hospital did not control the physician's actions in administering care to a degree or in a manner that rendered him an employee of the government when he treated Sisto. View "Sisto v. United States" on Justia Law

The Ninth Circuit granted in part and denied in part a petition for review challenging the FCC's order finding that a competitive local exchange carrier's tariffed rate was void ab initio because it violated the FCC's benchmarking rule by exceeding the established step-down rates.The panel held that the FCC did not err in concluding that Wide Voice's tariff violated the benchmarking rule by deviating from the established stepdown rates. In this case, the FCC's conclusion that Wide Voice's tariff was unlawful because it violated the benchmarking rule was neither arbitrary nor capricious However, the panel held that the FCC's determination that the tariff was void ab initio after being "deemed lawful" in accordance with the governing statute was arbitrary and capricious. The panel followed the lead of the D.C. Circuit in concluding that the FCC impermissibly disregarded the "deemed lawful" status of Wide Voice's tariffs in contravention of Congress' unambiguously expressed intent to provide a mechanism to achieve that "deemed lawful" status. Furthermore, the FCC elided its own prior ruling, as well as prior court rulings precluding retrospective remedies for "deemed lawful" rates later determined to be unreasonable. View "Wide Voice, LLC v. Federal Communications Commission" on Justia Law

The Ninth Circuit denied a petition for review challenging the EPA's findings and its conclusion that Arizona had achieved the statutory required reduction in ozone concentration by July 2018, in compliance with the Clean Air Act. After a major wildfire broke out in the San Bernardino National Forest in southeast California (the Lake Fire), three hundred miles east of the fire, six air quality monitors in the Phoenix region registered abnormally high concentrations of ozone, in excess of the National Ambient Air Quality Standard (NAAQS).The panel concluded that EPA did not act arbitrarily or capriciously in finding a clear causal connection between the Lake Fire and the June 20, 2015 exceedances. The panel explained that the evidence demonstrates that smoke (including ozone precursor chemicals) from the Lake Fire reached the exceedance monitors and caused abnormal ozone readings relative to similar historical conditions. Furthermore, petitioners failed to produce evidence sufficient to overcome the required deference to EPA's technical factual findings where EPA considered each of petitioners' comments during the proposed rule phase and addressed them with specificity; articulated a rational connection between the evidence and its own conclusions; and the resulting conclusion, based on the weight of the evidence, is rational.The panel also concluded that EPA did not act contrary to the Clean Air Act when it suspended the Phoenix nonattainment area's attainment contingency measures requirement after EPA issued a section 7511(b)(2) Attainment Determination. The panel concluded that the Clean Air Act is silent as to whether State Implementation Plans (SIPs) must contain attainment contingency measures after the attainment date and granted EPA's reasonable construction of 42 U.S.C. 7502(c)(9) under Chevron deference. View "Bahr v. Regan" on Justia Law

The Ninth Circuit concluded that the Commission did not act arbitrarily or capriciously, or abused its discretion, in denying the Association's motion to intervene in post-licensing deadline extension proceedings pertaining to the Eagle Mountain Pumped Storage Hydroelectric Project in California. The panel concluded that the Commission's interpretation of its Rule 214 deserves deference, and thus it may properly limit intervention in post-licensing proceedings. The panel further concluded that the Commission did not abuse its discretion in denying the Association's motion to intervene, where the only change sought by the licensee was an extension of time to commence construction.The panel also concluded that the Commission did not violate the Federal Power Act (FPA) in failing to provide public notice. In this case, based on longstanding interpretative precedent, the Commission determined that Eagle Crest's request was not a significant alteration of the License because the requested extensions were not inconsistent with the Project's plan of development or terms of the License. The panel concluded that the Commission's interpretation of Section 6 of the FPA is sufficiently persuasive as applied to deadline extension requests. Accordingly, the panel denied the petition for review. View "National Parks Conservation Ass'n v. Federal Energy Regulatory Commission" on Justia Law

The Ninth Circuit affirmed the district court's dismissal for failure to state a claim of an action filed by the Council, seeking declaratory and injunctive relief on the ground that California's Proposition 12 violates the dormant Commerce Clause in banning the sale of whole pork meat (no matter where produced) from animals confined in a manner inconsistent with California standards.The panel concluded that, under its precedent, a state law violates the dormant Commerce Clause only in narrow circumstances. The panel explained that the complaint does not plausibly allege that such narrow circumstances apply to Proposition 12, and thus the district court did not err in dismissing the Council's complaint for failure to state a claim. In this case, even though the Council has plausibly alleged that Proposition 12 will have dramatic upstream effects and require pervasive changes to the pork production industry nationwide, the panel concluded hat it has not stated a violation of the dormant Commerce Clause under existing precedent. The panel stated that alleged cost increases to market participants and customers did not qualify as a substantial burden to interstate commerce for purposes of the dormant Commerce Clause. View "National Pork Producers Council v. Ross" on Justia Law

The Beef Promotion and Research Act of 1985 imposes a $1 assessment, or “checkoff,” on each head of cattle sold in the U.S. to fund beef consumption promotional activities. The Secretary of Agriculture oversees the program. The Montana Beef Council and other qualified state beef councils (QSBCs), receive a portion of the checkoff assessments to fund promotional activities and may direct a portion of these funds to third parties for the production of advertisements and other promotional materials. R-CALF's members include cattle producers who object to their QSBCs’ advertising campaigns. In 2016, the Secretary entered into memoranda of understanding (MOUs) with QSBCs which granted the Secretary preapproval authority over promotions and allowed the Secretary to decertify noncompliant QSBCs, terminating their access to checkoff funds. The Secretary must preapprove all contracts to third parties and any resulting plans. QSBCs can make noncontractual transfers of checkoff funds to third parties for promotional materials which do not need to be pre-approved. Plaintiffs contend that the distribution of funds under these arrangements is an unconstitutional compelled subsidy of private speech.The Ninth Circuit affirmed summary judgment in favor of the federal defendants after holding that R-CALF had associational standing and direct standing to sue QSBCs. The speech generated by the third parties for promotional materials was government speech, exempt from First Amendment scrutiny. Given the breadth of the Secretary's authority, third-party speech not subject to pre-approval was effectively controlled by the government. View "Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America v. Vilsack" on Justia Law

The Ninth Circuit affirmed in part and reversed in part in an action brought by parents and a student challenging the State of California's extended prohibition on in-person schooling during the Covid-19 pandemic. The panel concluded that, despite recent changes to the State's Covid-related regulations, this case is not moot.On the merits, the panel held that the district court properly rejected the substantive due process claims of those plaintiffs who challenge California's decision to temporarily provide public education in an almost exclusively online format. The panel explained that both it and the Supreme Court have repeatedly declined to recognize a federal constitutional right to have the State affirmatively provide an education in any particular manner, and plaintiffs have not made a sufficient showing that the panel can or should recognize such a right in this case.However, in regard to the State's interference in the in-person provision of private education to the children of five of the plaintiffs in this case, the panel concluded that the State's forced closure of their private schools implicates a right that has long been considered fundamental under the applicable caselaw—the right of parents to control their children's education and to choose their children's educational forum. The panel explained that California's ban on in-person schooling abridges a fundamental liberty of these five plaintiffs that is protected by the Due Process Clause, and thus that prohibition can be upheld only if it withstands strict scrutiny. Given the State's closure order's lack of narrow tailoring, the panel cannot say that, as a matter of law, it survives such scrutiny. Therefore, the panel reversed the district court's grant of summary judgment as to these five plaintiffs and remanded for further proceedings.In regard to plaintiffs' claims under the Equal Protection Clause of the Fourteenth Amendment, the panel concluded that the public-school plaintiffs have failed to make a sufficient showing of a violation of the Equal Protection Clause. The panel explained that the challenged distinctions that the State has drawn between public schools and other facilities are subject only to rational-basis scrutiny, and these distinctions readily survive that lenient review. In regard to the private-school plaintiffs, the panel vacated the district court's judgment rejecting their Equal Protection claims and remanded for further consideration in light of the conclusion that the State's actions implicate a fundamental right of those plaintiffs. View "Brach v. Newsom" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of Plaintiff Donald Shooter's 42 U.S.C. 1983 action alleging that the Speaker of the Arizona House of Representatives, Javan Mesnard, and the Arizona Governor's Chief of Staff, Kirk Adams, wrongfully engineered Shooter's expulsion as a representative from the Arizona House. In early 2018, Shooter was expelled from the Arizona House by a 56-3 vote after a legislative investigation into sexual harassment allegations concluded that he had created a hostile work environment. After the cause of action was removed to federal court, the district court dismissed the federal claim and remanded the state-law claims back to state court.The panel agreed that Shooter's federal cause of action under section 1983 was properly dismissed for failure to state a claim upon which relief may be granted. Because the complaint's allegations do not raise a plausible inference of sex discrimination, the panel concluded that Shooter's equal protection claim based on such a theory was properly dismissed. Furthermore, Shooter's two distinct due process theories are barred by qualified immunity. In this case, Shooter has failed to demonstrate a clearly established right to any due process protections beyond those already afforded to him by the Arizona House of Representatives. The panel concluded that the district court correctly held that Mesnard and Adams were entitled to qualified immunity. Finally, the district court did not abuse its discretion in failing sua sponte to grant Shooter leave to amend. View "Shooter v. Arizona" on Justia Law

The Ninth Circuit affirmed the district court's judgment in favor of the Secretary of the Department of Homeland Security (DHS) in an action brought by plaintiffs, alleging that the Secretary violated the National Environmental Policy Act (NEPA) by failing to consider the environmental impacts of various immigration programs and immigration-related policies. Plaintiffs, organizations and individuals, seek to reduce immigration into the United States because it causes population growth, which in turn, they claim, has a detrimental effect on the environment.In regard to Count I, which challenged DHS's 2015 Instruction Manual, the panel concluded that the Manual does not constitute final agency action subject to the court's review under section 704 of the Administrative Procedure Act (APA). Therefore, the district court properly dismissed this count.In regard to Count II, which asserted that DHS implemented eight programs that failed to comply with NEPA, the panel concluded that Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990), squarely foreclosed plaintiffs' request for judicial review of seven non-Deferred Action for Childhood Arrivals (DACA) programs. Therefore, the panel agreed with the district court that none of these programs are reviewable because they are not discrete agency actions.In regard to Counts II, where plaintiffs challenged DACA, as well as Counts III-V, which facially challenged categorical exclusions (CATEXs), the panel concluded that plaintiffs lack Article III standing. In this case, the panel rejected plaintiffs' enticement theory and "more settled population" theory; plaintiffs made no attempt to tie CATEX A3 to any particular action by DHS; plaintiffs offered no evidence showing that population growth was a predictable effect of the DSO and STEM Rules, as well as the AC21 Rule; plaintiffs failed to show injury-in-fact or causation concerning their challenge to the International Entrepreneur Rule; any cumulative effect analysis required by NEPA did not bear on whether plaintiffs had standing to challenge the rules; plaintiffs lacked Article III standing to challenge the sufficiency of the environmental assessments and findings of no significant impact issued in relation to President Obama's Response to the Influx of Unaccompanied Alien Children Across the Southwest border. View "Whitewater Draw Natural Resource Conservation District v. Mayorkas" on Justia Law