Articles Posted in Government & Administrative Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for DHS in an action challenging DHS's authority to expedite construction of border barriers near San Diego and Calexico, California. On January 25, 2017, President Trump issued Executive Order 13,767, directing federal agencies to deploy all lawful means to secure the Nation's southern border. A focal point of the directive was to immediately construct a physical wall. As a threshold matter, the panel held that it had jurisdiction to consider the "predicate legal question" of whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) authorizes the contested projects. On the merits, the panel held that IIRIRA section 102(a)'s broad grant of authority, which was not limited by section 102(b), authorized the construction projects. The panel affirmed the district court's grant of summary judgment to DHS, holding that the projects were statutorily authorized and therefore not ultra vires. The panel also held that DHS has waived the environmental laws California and environmental groups sought to enforce. Furthermore, the panel lacked jurisdiction to consider any argument challenging the Secretary of DHS's August and September 2017 waivers of applicable environmental laws. View "Center for Biological Diversity v. Department of Homeland Security" on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for federal defendants in an Administrative Procedure Act (APA) action challenging the Functional Standard regarding the sharing of terrorism-related information. The panel held that the Functional Standard constituted final agency action because it has legal and practical effects. However, it was not a legislative rule because it requires significant analyst discretion, and thus the Functional Standard was exempt from the notice and comment requirement. Furthermore, the Functional Standard was not arbitrary and capricious because the Information Sharing Environment's (ISE) 2015 explanation distinguishing Part 23 information and suspicious activity reports (SARs) is consistent with the ISE's objectives. View "Gill v. DOJ" on Justia Law

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Plaintiffs challenged California Air Resources Board regulations regarding the first Low Carbon Fuel Standard (LCFS), which went into effect in 2011; the LCFS as amended in 2012; and the LCFS which replaced the first LCFS in 2015. The Ninth Circuit held that plaintiffs' challenges to previous versions of the LCFS have been made moot by their repeal. The panel affirmed the dismissal of plaintiffs' remaining claims against the present version of the LCFS as largely precluded by the panel's decision in Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013). The panel also held that plaintiffs' extraterritoriality claims against the 2015 LCFS were precluded by the law of the case and by recent circuit precedent in Am. Fuel & Petrochemical Mfrs. v. O'Keeffe, 903 F.3d 903 (9th Cir. 2018). Finally, the LCFS did not facially discriminate against interstate commerce in its treatment of ethanol and crude oil, and did not purposefully discriminate against out-of-state ethanol. View "Rocky Mountain Farmers Union v. Corey" on Justia Law

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Petitions for review of compensation orders arising under the Defense Base Act should be filed in the circuit where the relevant district director is located. The Ninth Circuit denied a petition for review challenging the Benefits Review Board's decision concluding that a linguist who supported the military in Iraq was entitled to workers' compensation under the Defense Base Act. The panel held that substantial evidence supported the ALJ's determination that claimant met both the medical and the economic aspect of disability as defined by the statute; the ALJ applied the correct legal standard when considering the evidence in this case; and the ALJ correctly concluded that claimant met his burden to show that he was disabled. View "Global Linguist Solutions, LLC v. Abdelmeged" on Justia Law

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Sierra Club filed suit under the Freedom of Information Act (FOIA), seeking records generated during the EPA's rule-making process concerning cooling water intake structures. The panel affirmed in part the district court's summary judgment order requiring the production of certain documents, holding that the December 2013 draft jeopardy biological opinions and related documents, as well as the March 2014 reasonable and prudent alternative (RPA), were not both predecisional and deliberative. However, the panel reversed in part and held that there was sufficient support to conclude that the December 2013 RPAs and the April 2014 draft jeopardy opinion were pre-decisional and deliberative. Therefore, these records were exempt under FOIA Exemption 5. The panel remanded for a segregability analysis. View "Sierra Club v. United States Fish and Wildlife Service" on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for the FTC, as well as a relief order, in an action alleging that a defendant's business practices violated section 5 of the Federal Trade Commission Act. Defendant offered high interest, short term payday loans through various websites that each included a Loan Note with the essential terms of the loan under the Truth in Lending Act (TILA). The panel held that the Loan Note was deceptive because it did not accurately disclose the loan's terms. Under the circumstances, the Loan Note was likely to deceive a consumer acting reasonably. The panel also held that the district court did not abuse its its discretion when calculating the amount it ordered defendant to pay. Finally, the district court did not err by entering a permanent injunction enjoining defendant from engaging in consumer lending. View "FTC V. AMG Capital Management, LLC" on Justia Law

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Plaintiffs have failed to raise a genuine issue of material fact on whether racial considerations predominated the City of Los Angeles's redistricting process. The Ninth Circuit affirmed the district court's protective order and its order granting summary judgment for the City in an action alleging that race was the predominant motivator in drawing the boundaries of council districts in the Council District 10 redistricting ordinance. Viewed in the light most favorable to plaintiffs, the panel held that the record failed to show that successive boundary amendments were driven predominantly by racial considerations. Rather, the Commission sought to rebalance the populations in each Council District, while preserving communities and unifying as many Neighborhood Councils as possible in a single Council District. The panel also held that the legislative privilege protected local officials from being deposed. View "Lee v. City of Los Angeles" on Justia Law

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The Ninth Circuit reversed the district court's dismissal of a petition for review of the OMB's decision denying plaintiff's Paperwork Reduction Act (PRA) petition. The PRA authorizes individuals to petition the OMB for a determination of whether they must provide information requested by or for a government agency. Where such a petition does not challenge an OMB decision "to approve or not act upon a collection of information contained in an agency rule," the subsequent determination is subject to judicial review under the Administrative Procedure Act. The panel held that the denial of the petition was not statutorily precluded, because the petition did not involve a decision subject to the PRA's prohibition. Therefore, the panel held that the district court erred in determining that the OMB's denial of the petition was not a final agency action and the district court had jurisdiction to review the OMB's decision denying plaintiff's petition. The panel remanded for further proceedings. View "Hyatt v. Office of Management and Budget" on Justia Law

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The government's decision to rescind the Deferred Action for Childhood Arrivals (DACA) program is subject to judicial review. Upon review, the Ninth Circuit held that plaintiffs are likely to succeed on their claim that the rescission of DACA is arbitrary, capricious, or otherwise not in accordance with law. After concluding that neither the Administrative Procedure Act (APA) nor the Immigration and Nationality Act (INA) precluded judicial review, the panel held that DACA was a permissible exercise of executive discretion, notwithstanding the Fifth Circuit's conclusion that the related Deferred Action for Parent Arrivals (DAPA) program exceeded DHS's statutory authority. In this case, DACA was being implemented in a manner that reflected discretionary, case-by-base review, and at least one of the Fifth Circuit's key rationales in striking down DAPA was inapplicable with respect to DACA. Therefore, because the Acting Secretary was incorrect in her belief that DACA was illegal and had to be rescinded, the panel held that plaintiffs were likely to succeed in demonstrating that the rescission must be set aside. The panel also held that the district court did not abuse its discretion in issuing a nationwide injunction; the district court properly dismissed plaintiffs' APA notice and comment claim and substantive due process rights claim; and the district court properly denied the government's motion to dismiss plaintiffs' APA arbitrary and capricious claim, due process rights claim, and equal protection claim. Accordingly, the panel affirmed the district court's grant of preliminary injunctive relief, and affirmed in part the district court's partial grant and partial denial of the government's motion to dismiss. View "Regents of the University of California v. USDHS" on Justia Law

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The Ninth Circuit withdrew its prior opinion filed December 12, 2017, and substituted the following opinion. In National Mining Association v. Zinke, 877 F.3d 845 (9th Cir. 2017), the panel upheld the decision of the Secretary of the Interior to withdraw, for twenty years, more than one million acres of public lands around Grand Canyon National Park from new mining claims. The panel held that that withdrawal did not extinguish "valid existing rights." The panel affirmed, with one exception, the district court's judgment in an action filed by the Tribe and three environmental groups challenging the Forest Service's determination that Energy Fuels had a valid existing right to operate a uranium mine on land within the withdrawal area. The panel held that the Federal Land Policy and Management Act of 1976, and not the Mining Act, formed the legal basis of plaintiffs' claim that Canyon Mine should not be exempt from the withdrawal because the valid existing right determination was in error. The panel vacated as to this claim and remanded for reconsideration on the merits. View "Havasupai Tribe v. Provencio" on Justia Law