Justia Government & Administrative Law Opinion Summaries

Fuerst fell at a military base, which left her disabled. She returned to work part-time. The Air Force removed Fuerst from service after determining that her ability to work only part-time was affecting the office’s mission. The Department of Labor subsequently determined that Fuerst was no longer disabled. Fuerst applied to participate in a fast-track reemployment program for civil-service employees who were removed from service because of a disability but have recovered, 5 U.S.C. 8151(b). The Air Force did not place her on the priority reemployment list. Fuerst appealed to the Merit Systems Protection Board, which found that her removal was not improper or motivated by discrimination, but ordered the Air Force to rehire her. The Air Force offered Fuerst two jobs at her pay grade. Fuerst did not accept the offers. The Board ruled that the Air Force had complied. Fuerst appealed to a federal district court.The Sixth Circuit affirmed the dismissal of the claim for lack of subject matter jurisdiction. Employees must generally appeal Board decisions to the Federal Circuit. Fuerst’s case could not qualify as a “mixed case” within the district court’s jurisdiction; it was not an appeal of an agency's action, but a petition for enforcement, although Fuerst sought to enforce an order issued in a mixed case. In a mixed case, the Board decides "both the issue of discrimination and the appealable action[s].” When Fuerst petitioned for enforcement, the Board had decided those issues already. Fuerst had a chance to ask a district court to review those decisions but did not do so. View "Fuerst v. Secretary of the Air Force" on Justia Law

Mohlman became a licensed securities professional in 2001. The Financial Industry Regulatory Authority, a not-for-profit member organization, regulates practice in the securities industry and enforces disciplinary actions against its members. In 2012, Mohlman had conversations with several individuals concerning WMA. Mohlman did not attempt to sell WMA investments and did not receive compensation from WMA. Mohlman learned in 2014 that WMA was a Ponzi scheme and immediately informed all persons who had invested in WMA. Mohlman appeared for testimony as part of FINRA’s investigation. Another day of testimony was scheduled but instead of appearing, Mohlman and his counsel signed a Letter of Acceptance, Waiver, and Consent, agreeing to a permanent ban from the securities industry. FINRA agreed to refrain from filing a formal complaint against him. Mohlman waived his procedural rights under FINRA’s Code of Procedure and the Securities Exchange Act, 15 U.S.C. 78a and agreed to “not take any position in any proceeding brought by or on behalf of FINRA, or to which FINRA is a party, that is inconsistent with any part of [the Letter].” FINRA accepted the Letter in 2015.In 2019, Mohlman filed suit, alleging that FINRA fraudulently avoided considering mitigating factors in administering the sanction. The Sixth Circuit affirmed the dismissal of the suit without addressing the merits. Mohlman failed to exhaust administrative remedies under the Exchange Act by appealing to the National Adjudicatory Council and petitioning the SEC for review. View "Mohlman v. Financial Industry Regulatory Authority" on Justia Law

The 2009 Family Smoking Prevention and Tobacco Control Act (TCA) allows the FDA to regulate tobacco products. Tobacco products that were not on the market in February 2007 or that were modified after that date must obtain premarket authorization. The 2016 “Deeming Rule” subjected cigars, pipe tobacco, and electronic nicotine delivery systems to the TCA; about 25,000 existing products became subject to 21 U.S.C. 387j(a). The FDA planned to stagger compliance periods for deemed tobacco products.In 2018, public health organizations challenged FDA “guidance” issued under the TCA. The Maryland district court granted them summary judgment. Compliance deadlines had passed but the court concluded that it could impose a deadline because the case presented extraordinary circumstances. The court ordered the FDA to require that premarket applications be filed within 10 months (May 2020) but declined to require enforcement actions. The FDA issued new guidance in January 2020, stating that it intended to prioritize enforcement of the premarket-review requirements for e-cigarettes beginning in May 2020. Before the Fourth Circuit ruled, the district court amended its injunction, in light of the pandemic, to require that applications be submitted by September 2020. The FDA revised its guidance accordingly. The Fourth Circuit dismissed the appeal.An e-cigarette trade organization sought a declaration that FDA’s deadline was unlawful agency action under the APA in the Eastern District of Kentucky, arguing the FDA’s brief and an attached declaration motivated the Maryland court to impose that deadline, which significantly accelerated the original FDA deadline. The Sixth Circuit affirmed that the plaintiffs lacked standing. The Maryland court’s injunction was independent of the FDA’s brief and declaration; the allegedly unauthorized court submissions do not form a plausible legal basis for an injunction against subsequent, independently-caused FDA enforcement proceedings. View "Vapor Technology Association v. United States Food and Drug Administration" on Justia Law

Freed owed $735.43 in taxes ($1,109.06 with penalties) on his property valued at about $97,000. Freed claims he did not know about the debt because he cannot read well. Gratiot County’s treasurer filed an in-rem action under Michigan's General Property Tax Act (GPTA), In a court-ordered foreclosure, the treasurer sold the property to a third party for $42,000. Freed lost his home and all its equity. Freed sued, 42 U.S.C. 1983, citing the Takings Clause and the Eighth Amendment.The district court first held that Michigan’s inverse condemnation process did not provide “reasonable, certain, and adequate” remedies and declined to dismiss the suit under the Tax Injunction Act, which tells district courts not to “enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had" in state court, 28 U.S.C. 1341. The court reasoned that the TIA did not apply to claims seeking to enjoin defendants from keeping the surplus equity and that Freed was not challenging his tax liability nor trying to stop the state from collecting. The TIA applied to claims seeking to enjoin enforcement of the GPTA and declare it unconstitutional but no adequate state court remedy existed. The court used the same reasoning to reject arguments that comity principles compelled dismissal. After discovery, the district court sua sponte dismissed Freed’s case for lack of subject matter jurisdiction, despite recognizing that it was “doubtful” Freed could win in state court. The Supreme Court subsequently overturned the "exhaustion of state remedies" requirement for takings claims.The Sixth Circuit reversed without addressing the merits of Freed’s claims. Neither the TIA nor comity principles forestall Freed’s suit from proceeding in federal court. View "Freed v. Thomas" on Justia Law

On January 18, 2019, the plaintiffs went with Covington Catholic High School classmates to Washington, D.C. to attend the March for Life. They later gathered near the Lincoln Memorial to await buses to return to Kentucky. Following interaction with other groups, Native American activist Phillips approached them, beating a drum and chanting. A video of this interaction was posted online and went viral. Some of the students were displaying the “Make America Great Again” campaign slogan; some were performing the “tomahawk” chop; one student is standing close to Phillips. The plaintiffs complained of online harassment in response to the video’s dissemination. Representative Debra Haaland, a Native American, on her official Congressional Twitter account, posted: “This Veteran [Phillips] put his life on the line for our country. The students’ display of blatant hate, disrespect, and intolerance is a signal of how common decency has decayed under this administration.” She later sent a tweet from her campaign Twitter account that linked to an interview with Phillips, in which he stated that the students were chanting “build that wall.” Senator Elizabeth Warren sent a tweet from her official Senate Twitter account, stating “Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength."The Sixth Circuit affirmed the dismissal of the suit as barred by sovereign immunity, 28 U.S.C. 2679(b)(1). Members of Congress routinely broadcast their views on current events; the statements were made within the scope of their employment. The United States was properly substituted as the defendant and the court correctly dismissed Senator Warren and Representative Haaland from the suit. That the United States has not waived its immunity to libel suits is irrelevant. Plaintiffs may pursue their claims against the remaining defendants in state court. View "Does v. Haaland" on Justia Law

The plaintiffs sought Social Security disability and/or supplemental security income benefits. In each case, the application was denied, and an ALJ upheld the denial. The Appeals Council denied relief. The plaintiffs sought judicial review. While the appeals were pending, the plaintiffs moved to raise an issue they had not raised during administrative hearings--a challenge to the ALJs’ appointments, citing the Supreme Court’s 2018 "Lucia" decision that SEC ALJs had not been appointed in a constitutionally legitimate manner and that remand for a de novo hearing before a different ALJ was required. The district courts agreed that the Appointments Clause challenges were forfeited and affirmed the denials of benefits.The Sixth Circuit vacated and remanded for new hearings before constitutionally appointed ALJs other than the ALJs who presided over the first hearings. There is no question that Social Security ALJs are inferior officers who were required to be, but were not, appointed consistently with the Appointments Clause. There are no statutory or regulatory exhaustion requirements governing Social Security proceedings and, while a court may still impose an implied exhaustion rule, such a requirement is inappropriate because the regulations provide no notice to claimants that their failure to raise an Appointments Clause challenge at the ALJ level will preclude them from later seeking a judicial decision on the issue. View "Flack v. Commissioner of Social Security" on Justia Law

Title IV of the Employee Retirement Income Security Act of 1974 (ERISA) creates an insurance program to protect employees’ pension benefits. The Pension Benefit Guaranty Corporation (PBGC)—a wholly-owned corporation of the U.S. government—is charged with administering the pension-insurance program. PBGC terminated the “Salaried Plan,” a defined-benefit plan sponsored by Delphi by an agreement between PBGC and Delphi pursuant to 29 U.S.C. 1342(c). Delphi had filed a voluntary Chapter 11 bankruptcy petition and had stopped making contributions to the plan. The district court rejected challenges by retirees affected by the termination.The Sixth Circuit affirmed. Subsection 1342(c) permits termination of distressed pension plans by agreement between PBGC and the plan administrator without court adjudication. Rejecting a due process argument, the court stated that the retirees have not demonstrated that they have a property interest in the full amount of their vested, but unfunded, pension benefits. PBGC’s decision to terminate the Salaried Plan was not arbitrary and capricious. View "Black v. Pension Benefit Guaranty Corp." on Justia Law

In 1998-2010, Dimora served as one of three Cuyahoga County Commissioners. An FBI investigation revealed that Dimora had received over $250,000 in gifts from individuals with business before the County, including home renovations, trips to Las Vegas, and encounters with prostitutes. Dimora had used his position to help with the awarding of County contracts, hiring, the results of at least one County election, and civil litigation outcomes. Dimora’s “influence” ranged from casting formal votes as Commissioner to pressuring other officials.Dimora was charged with Hobbs Act offenses, bribery concerning programs receiving federal funds, making false statements on tax returns, conspiracy to commit mail fraud and honest services mail fraud, conspiracy to commit bribery concerning programs receiving federal funds, conspiracy to commit wire fraud and honest services wire fraud, RICO conspiracy, mail fraud, conspiracy to obstruct justice and obstructing a federal investigation. A jury convicted Dimora on 33 counts. The Sixth Circuit upheld the jury instructions defining “official acts” as having “fairly trace[d] the line between permissible gifts and impermissible bribes.” A ruling that state ethics reports were inadmissible hearsay was harmless in light of “overwhelming evidence.”In its 2016 “McDonnell” decision, the Supreme Court gave a narrow construction to a key element included within several of Dimora’s offenses. The term “official acts” does not include “setting up a meeting, calling another public official, or hosting an event.” Official acts are limited to “formal exercise[s] of governmental power.” Dimora petitioned to vacate his convictions under 28 U.S.C. 2255. The Sixth Circuit vacated a denial of relief. The court declined to decide whether the instructional error was harmless with respect to most of the counts or whether the “cumulative effect” of instructional and evidentiary errors entitles Dimora to relief. View "Dimora v. United States" on Justia Law

In 144 years of the Kentucky Derby, only one horse to cross the finish line first had been disqualified. No winning horse had ever been disqualified for misconduct during the race itself. In 2019, at the 145th Derby, “Maximum Security,” the horse that finished first, was not declared the winner. He would come in last, based on the stewards’ call that Maximum Security committed fouls by impeding the progress of other horses. His owners, the Wests, were not awarded the Derby Trophy, an approximate $1.5 million purse, and potentially far greater financial benefits from owning a stallion that won the Derby.They filed suit under 42 U.S.C. 1983 against the individual stewards, the individual members of the Kentucky Horse Racing Commission, an independent state agency, and the Commission, claiming that the regulation that gave the stewards authority to disqualify Maximum Security is unconstitutionally vague.The Sixth Circuit affirmed the dismissal of the suit. The decision to disqualify Maximum Security was not a “final order[] of an agency” under KRS 13B.140(1) and is not subject to judicial review. The owners had no constitutionally-protected right. Kentucky law provides that “the conduct of horse racing, or the participation in any way in horse racing, . . . is a privilege and not a personal right; and ... may be granted or denied by the racing commission or its duly approved representatives.” View "West v. Kentucky Horse Racing Commission" on Justia Law

In 2016, the Ohio Department of Transportation began a construction project on a portion of Interstate Highway 75 near the Plaintiffs’ Hancock County properties. As a result of this construction, storm and groundwater flooded those properties three times and caused significant damage. The Plaintiffs filed suit, including a claim brought directly under the Fifth Amendment to the U.S. Constitution and Article I, Section 19 of the Ohio Constitution, seeking a declaratory judgment that the flooding caused a “change in topography [that] constitutes a taking of private property without just compensation,” and compensation for the same, and a claim under 42 U.S.C. 1983 seeking damages for the alleged taking. The district court dismissed, finding that Ohio’s Eleventh Amendment sovereign immunity deprived it of subject matter jurisdiction. The Sixth Circuit affirmed. States’ sovereign immunity predates the Constitution; unless the Constitution itself, or Congress acting under a constitutional grant of authority, abrogates that immunity, it remains in place. The Sixth Circuit has previously held that the states’ sovereign immunity protects them from takings claims for damages in federal court and that Ohio’s statutory mechanism for obtaining compensation to remedy a Takings Clause violation does provide reasonable, certain, and adequate procedures. View "Ladd v. Marchbanks" on Justia Law