Justia Government & Administrative Law Opinion Summaries

The then-president’s 2018 decision, following the resignation of Jeff Sessions, to rely on his authority under the Federal Vacancies Reform Act, 5 U.S.C. 3345-3349d, to bypass the Department of Justice’s order of succession and to select an employee (Whitaker) rather than a Presidentially appointed and Senate-confirmed officer to oversee the Department of Justice raised significant and largely unresolved constitutional and statutory questions. Kajmowicz sued Whitaker; the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the Director of ATF, the United States of America, and the Attorney General of the United States, contending that Whitaker’s unlawful service as Acting Attorney General rendered a rule he promulgated concerning the scope of the term “machinegun” under the Gun Control Act of 1968 invalid.The Third Circuit affirmed the dismissal of the suit without addressing the legality of Whitaker’s designation as Acting Attorney General. Attorney General William Barr ratified the rule at issue; as long as he did so effectively, the rule may stand even if Whitaker served in violation of the Vacancies Reform Act or the Appointments Clause. The ratification forecloses Kajmowicz’s challenge. View "Kajmowicz v. Whitaker" on Justia Law

The Third Circuit denied Petitioner's petition for review challenging his expedited removal by the Department of Homeland Security (DHS) based on Petitioner's Pennsylvania conviction for receiving stolen property, holding that Petitioner's state conviction was an aggravated felony under the Immigration and Nationality Act (INA), 8 U.S.C. 1101(a)(43)(G).In 2020, DHS initiated expedited removal proceedings against Petitioner, a native and citizen of Mexico, alleging that Petitioner was charged with being deportable under the INA as an alien "convicted of an aggravated felony" because he had been convicted of receiving stolen property. Petitioner requested withholding of removal, arguing that his Pennylvania receiving stolen property conviction was not an aggravated felony under the INA. DHS disagreed, and the immigration judge (IJ) upheld the determination. The Third Circuit denied Petitioner's petition for review, holding that the Pennsylvania offense was sufficient to constitute an aggravated felony under 8 U.S.C. 1101(a)(43)(G). View "Jacome v. Attorney General United States" on Justia Law

At the end of 2018, the longest government shutdown in history began because Congress had not passed a budget. For more than a month, FBI employees, like other federal workers, were not paid. Nor did they get payments into their Thrift Savings Plan retirement accounts. Once the government reopened, the FBI sent them their missed paychecks and contributed to their Thrift accounts. But, while the government was shut down, the market had risen. If the government had made its Thrift contributions on time, that money would have bought more shares than the late payments did.The employees filed a class-action suit under the Federal Employees’ Retirement System Act (FERSA), 5 U.S.C. 8401–80, which allows “any participant or beneficiary” of a Thrift plan to sue “to recover benefits.” The government agreed that section 8477(e)(3)(C)(i) waives sovereign immunity but moved to dismiss, arguing that this suit falls outside the waiver and was an effort to recover consequential damages from the government’s late payment, which are not a “benefit” within the waiver. On interlocutory appeal, the Third Circuit reversed the denial of that motion. Congress does not waive federal sovereign immunity unless it speaks clearly. FERSA does not clearly waive the federal government’s immunity for the employees’ claims. View "John Doe 1 v. United States" on Justia Law

Defreitas, an enforcement officer for the U.S. Virgin Islands (U.S.V.I.) Department of Licensing and Consumer Affairs, asked for sexual favors in exchange for not reporting a female immigrant who was unlawfully present in the U.S.V.I. Defreitas was convicted of soliciting a bribe, V.I. CODE tit. 14, 403, and violating the Travel Act, 18 U.S.C. 1952(a)(3) but was acquitted of a blackmail charge, 18 U.S.C. 873.The Third Circuit declined the request to certify any questions to the Supreme Court of the Virgin Islands but vacated the convictions, holding hold that the evidence presented was insufficient to prove that Defreitas engaged in an “official act” under either statute. Custom may inform the understanding of official duties when those “duties [are] not completely defined by written rules,” but custom alone cannot establish what constitutes an “official act.” Even assuming that the testimony of Defreitas’s partner established a custom of reporting undocumented immigrants, that evidence was insufficient to prove that Defreitas’s decision not to report was an “official act.” There existed no internal regulation, guideline, or statute that advised the Department to engage in any activity related to the policing of immigration laws. View "United States v. Defreitas" on Justia Law

Allinson was convicted of federal programs bribery, 18 U.S.C. 666(a)(2), and conspiracy, 18 U.S.C. 371, in connection with a pay-to-play scheme involving Pawlowski, the former Mayor of Allentown, Pennsylvania.The Third Circuit affirmed. Sufficient evidence showed the parties’ plan to steer a Parking Authority contract to Allinson’s law firm in exchange for campaign contributions to support Allinson’s bribery conviction; it is an “official act” for a public official to use his power to influence the awarding of government contracts, even if the official lacks final decision-making power. The court rejected Allinson’s argument that the indictment, which alleged a single conspiracy among Allinson and others, impermissibly varied from the evidence at trial that, he claimed, proved only multiple, unrelated conspiracies. The charged conspiracy included over 10 alleged co-conspirators and seven distinct sub-schemes, only one of which involved Allinson but the government’s efforts at trial were reasonably calculated to prevent guilt transference. No constructive amendment of the indictment occurred. The prosecution’s statement in closing arguments that “Bribery happens with a wink and a nod and sometimes a few words, an understanding between two people,” was not improper. Allinson failed to show “clear and substantial prejudice” resulting from the joint trial. View "United States v. Allinson" on Justia Law

Pawlowski, the former mayor of Allentown, Pennsylvania, was convicted of federal programs bribery, 18 U.S.C. 666; Travel Act bribery, 18 U.S.C. 1952; attempted Hobbs Act extortion, 18 U.S.C. 1001; wire and mail fraud, honest services fraud, making false statements to the FBI, and conspiracy. The charges stemmed from a scheme in which Pawlowski steered city contracts and provided other favors in exchange for campaign contributions. The district court imposed a 180-month sentence.The Third Circuit affirmed. There was sufficient evidence for a reasonable jury to find “quid pro quo” to support the bribery convictions. Any error caused by Pawlowski's inability to recross-examine a government witness was harmless beyond a reasonable doubt. Pawlowski’s sentence is procedurally and substantively reasonable. The case against Pawlowski was strong. The evidence showed a man eager to influence and be influenced if it would help him fund his political campaigns. View "United States v. Pawlowski" on Justia Law

The New Jersey Board of Public Utilities (BPU) ordered Altice, a cable service provider, to prorate its bills for the month in which a cable customer cancels his service, as required by New Jersey law. In federal court, Altice argued that the Proration Requirement is preempted by the Cable Communications Policy Act of 1984.The district court granted Altice judgment on the pleadings, concluding that “Younger” abstention was not warranted and that the Proration Requirement was preempted. The Third Circuit vacated. The Younger ruling was incorrect. BPU’s civil enforcement proceeding was quasi-criminal in nature and, thus, the type of proceeding to which Younger applies. BPU commenced the action against Altice by filing a formal complaint, a Show Cause Order with attributes similar to the filing of formal charges, and did so in its sovereign capacity. The proceeding was judicial in nature and ongoing when the federal complaint was filed; the proceeding implicates important state interests; and Altice has an adequate opportunity to raise its federal claims in the state proceeding. View "Altice USA Inc v. New Jersey Board of Public Utilities" on Justia Law

Delaware’s Unclaimed Property Law (UPL), Del. Code tit. 12 section 1101, allows the state to escheat certain types of unclaimed property held by businesses chartered in the state, if the particular business holding the property is not the owner of it, and if there has been no contact with the owner for a specified period of time. Delaware initiated an audit of Siemens, which is incorporated under Delaware law. After a near-decade-long audit process, Siemens sued the state, challenging the constitutionality of the audit and arguing that Delaware’s actions conflict with federal common law limiting the scope of any state’s escheatment authority.The district court dismissed most of Siemens’s claims and denied its motion for a preliminary injunction on the sole surviving claim, which alleged a violation of procedural due process. The Third Circuit vacated. The district court erred in concluding that Siemens failed to show irreparable harm based on its procedural due process claim, and in dismissing Siemens’s federal preemption claim as unripe. In considering the audit, the district court paid insufficient heed to a holder’s payment obligations with respect to interest and penalties under the statute and the consequences of not meeting those obligations. The court affirmed the dismissal of Siemens’s expedited-audit procedural due process claim. View "Siemens USA Holdings Inc. v. Geisenberger" on Justia Law

New Jersey Law Enforcement Directive 2018-6, states “that individuals are less likely to report a crime if they fear that the responding officer will turn them over to immigration authorities,” and barred counties and local law enforcement from assisting federal immigration authorities by providing any non-public personally-identifying information regarding any individual, providing access to state, county, or local law enforcement equipment, office space, database, or property not available to the general public, providing access to a detained individual for an interview, without the detainee's written consent, or providing notice of a detained individual’s upcoming release from custody. The Directive prohibited local law enforcement agencies and officials from entering “any agreement to exercise federal immigration authority pursuant to Section 287(g) of the Immigration and Nationality Act” and required them to “notify a detained individual” when federal immigration authorities requested to interview the person, to have the person detained past his release date, or to be informed of the person’s upcoming release.The Third Circuit affirmed the dismissal of challenges to the Directive. For a federal law to preempt state law it must represent the exercise of a power conferred on Congress by the Constitution. Because the Constitution confers upon Congress the power to regulate individuals, not states, the federal law must be best read as one that regulates private actors, The cited federal laws, 8 U.S.C. 1373 and 1644, which regulate only state action, do not preempt the Directive. View "Ocean County Board of Commissioners v. Attorney General New Jersey" on Justia Law

Three former Deputy Coroners claim their employer, the County of Schuylkill, violated the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, by failing to pay them overtime and then firing them in retaliation for seeking overtime pay. The district court granted the county summary judgment, concluding that the plaintiffs were personal staff of the County’s elected Coroner and cannot bring an FLSA claim.The Third Circuit vacated. While the county did not forfeit the personal-staff-exception argument, granting summary judgment was premature, as there are still material factual disputes concerning the exception’s applicability to the plaintiffs. The relevant factors are whether the elected official has plenary powers of appointment and removal, whether the person in the position at issue is personally accountable to only that elected official, whether the person in the position at issue represents the elected official in the eyes of the public, whether the elected official exercises a considerable amount of control over the position, the level of the position within the organization’s chain of command, and the actual intimacy of the working relationship between the elected official and the person filling the position. It is impossible to conclude that the Deputy Coroners fall under the personal staff exception based on undisputed facts. View "Clews v. County of Schuylkill" on Justia Law