Articles Posted in Government & Administrative Law

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CBD filed suit challenging the FWS's decision not to list the arctic grayling as an endangered or threatened species under the Endangered Species Act (ESA). The Ninth Circuit reversed in part the district court's grant of summary judgment to FWS, holding that FWS acted in an arbitrary and capricious manner. The panel held that the 2014 Finding's decision that listing the arctic grayling was "not warranted" was arbitrary and capricious because it ignored the DeHaan study's evidence that shows decreasing numbers of breeders and instead heavily relied on a contrary finding showing increasing population; did not provide a reasoned explanation for relying on the existence of cold water refugia in the Big Hole River; failed to consider the synergistic effects of climate change solely because of "uncertainty"; and concluded that the Ruby River population was viable based on data collected over a shorter period than that underlying the 2010 Finding and FWS's own established criteria for viability. View "Center for Biological Diversity v. Zinke" on Justia Law

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The Ninth Circuit granted a petition for review of the EPA's 2017 order maintaining a tolerance for the pesticide chlorpyrifos. In this case, the EPA did not defend the order on the merits but argued that despite petitioners having properly-filed administrative objections to the order more than a year ago and the statutory requirement that the EPA respond to such objections "as soon as practicable," the EPA's failure to respond to the objections deprived the panel of jurisdiction to adjudicate whether the EPA exceeded its statutory authority in refusing to ban use of chlorpyrifos on food products. The panel held that obtaining a response to objections before seeking review by this court was a claim-processing rule that did not restrict federal jurisdiction, and that could, and here should, be excused. Accordingly, the court vacated the order and remanded to the EPA with directions to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days. View "League of United Latin American Citizens v. New York" on Justia Law

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Under the principle of Separation of Powers and in consideration of the Spending Clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse federal grants to sanctuary cities and counties without congressional authorization. President Trump issued Executive Order 13,768, "Enhancing Public Safety in the Interior of the United States," with the purpose of directing executive departments and agencies to employ all lawful means to enforce immigration laws. The Executive Order's primary concern was sanctuary jurisdictions, which the President viewed as willfully violating Federal law in an attempt to shield aliens from removal from the country. As a preliminary matter, the Ninth Circuit held that the Counties had standing and the case was ripe for review. On the merits, the panel affirmed the district court's grant of summary judgment to the Counties because Congress did not authorize withholding of funds in this case and thus the Executive Order violates the constitutional principle of the Separation of Powers. However, given the absence of specific findings underlying the nationwide application of the injunction, the panel vacated the injunction and remanded for reconsideration and further findings. View "City and County of San Francisco v. Trump" on Justia Law

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The Ninth Circuit affirmed the district court's dismissal of an action brought by plaintiff under the Administrative Procedure Act (APA), challenging the U.S. Consulate's denial of his visa application filed on behalf of his wife, who is a native and citizen of Germany. Determining that the district court had subject matter jurisdiction under 28 U.S.C. 1331 and that the doctrine of consular nonreviewability did not strip the district court of that jurisdiction, the panel held that the APA provides no avenue for review of a consular officer's adjudication of a visa on the merits. The panel explained that, rather, the only standard by which it could review the merits of a consular officer's denial of a visa was for constitutional error, where the visa application was denied without a facially legitimate and bona fide reason. In this case, the consular officer's citations to the Immigration and Nationality Act and identification of the wife's criminal history constituted facially legitimate and bona fide reasons for rejecting her visa application. Accordingly, the panel affirmed the district court's denial of the petition for writ of mandamus. View "Allen v. Milas" on Justia Law

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The Ninth Circuit denied the government's petition for a writ of mandamus, asking the court to direct the district court to dismiss a case seeking various environmental remedies, or to stay all discovery and trial. The court denied the government's first mandamus petition, concluding that it had not met the high bar for relief at that stage of the litigation. The court held that no new circumstances justified the second petition where the government failed to satisfy the Bauman factors at this stage of the litigation, because the government's fear of burdensome or improper discovery did not warrant mandamus relief in the absence of a single specific discovery order; the government's arguments as to the violation of the Administrative Procedure Act and the separation of powers failed to establish that they would suffer prejudice not correctable in a future appeal; and the merits of the case could be resolved by the district court or in a future appeal. View "United States v. United States District Court for the District of Oregon" on Justia Law

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The Ninth Circuit affirmed in part and reversed in part the dismissal of an action against Medicare Advantage organizations under the False Claims Act (FCA). Relator alleged that Medicare Advantage organizations retained MedXM to fraudulently increase, or at least maintain, their capitation payments for enrollees whose risk scores were set to expire and revert to the unadjusted Medicare beneficiary average. The panel held that relator has pleaded a wheel conspiracy-like fraud in which MedXM was the hub and defendants were the spokes. Therefore, the panel held that relator's charges of factually false claims, express false certifications, and false records should not have been dismissed due to her use of group allegations. The panel rejected defendants' contentions that the complaint failed to allege a sufficient factual basis to link MedXM's misconduct to defendants' actual submissions of claims or certifications to the Centers for Medicare and Medicaid Services, or that the complaint's allegations about the Medicare Advantage organizations' knowledge of the alleged fraud did not satisfy Rule 8. Finally, the panel affirmed the dismissal of a reverse false claim count, reversed dismissal on the pleadings of other counts, and remanded for further proceedings. View "United States ex rel. Silingo v. WellPoint, Inc." on Justia Law

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The 2007 mortgage crisis pushed to near-default the government-sponsored Federal National Mortgage Association (Fannie Mae) and Federal Home Loan Mortgage Corporation (Freddie Mac), collectively, “the Enterprises.” The Housing and Economic Recovery Act of 2008 (HERA), 12 U.S.C. 4511, established an independent agency, the Federal Housing Finance Agency (FHFA) to regulate the Enterprises and the Federal Home Loan Banks. FHFA’s Director placed the Enterprises under the Agency’s conservatorship. SFR owns Nevada properties, acquired from homeowners’ associations (HOAs) following foreclosures on liens for unpaid association dues. FHFA obtained a summary judgment declaration that HERA's Foreclosure Bar, 12 U.S.C. 4617(j)(3) preempts any Nevada law that would permit a foreclosure on a superiority lien to extinguish a property interest of Fannie Mae or Freddie Mac while they are under FHFA’s conservatorship, that the HOA Sale did not extinguish the Enterprises’ interest in the properties and did not convey the properties free and clear to SFR, and that title to the properties is quieted in either Fannie Mae’s or Freddie Mac’s favor insofar as the Defendants’ interest, if any, is subject to the interest of the Enterprises or the interest of the Enterprises’ successors. The Ninth Circuit affirmed. Under HERA, FHFA possessed enforceable interests in the properties at the time of the HOA foreclosure sales. Nevada law did not provide SFR with a constitutionally-protected property interest in purchasing the houses with clear title, and, even assuming such an interest, SFR had adequate procedural protections. View "Federal Home Loan Mortgage Corporation v. SFR Investments Pool 1, LLC" on Justia Law

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The Ninth Circuit reversed the dismissal based on lack of standing of an action under the Freedom of Information Act (FOIA), alleging that the Department failed to turn over documents requested by one of its members, on behalf of the organization. The panel disagreed with the government's argument that the submitted form did not adequately identify the organization as the requester. The panel held that the submitted form's unambiguous reference to A Better Way, confirming correspondence, and common sense make clear that A Better Way was the requester and consequently had standing to sue. View "A Better Way for BPA v. U.S.D.O.E." on Justia Law

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The Ninth Circuit reversed the district court's order dismissing an action brought by the United States and the Walker River Paiute Tribe against the Walker River Irrigation District and others over water rights in the Walker River basin. In 2015, without briefing or argument on the issue, the district court sua sponte dismissed all of the Tribe's and the United States' counterclaims on res judicata or jurisdictional grounds. The panel held that the district court had continuing jurisdiction over the counterclaims and that it erred in dismissing the claims on res judicata or jurisdictional grounds without giving the parties an opportunity to brief the issue. On remand, the panel ordered the reassignment of this case to another district judge. View "United States v. Walker River Irrigation District" on Justia Law

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Farmers filed suit alleging injury to their water rights after the Nevada State Engineer and the California State Water Resources Control Board approved change applications for a voluntary water rights leasing program managed by the National Fish and Wildlife Foundation in the Walker River Basin. The Ninth Circuit principally held that the Decree court failed to defer to the findings and conclusions of the state agencies and, to the extent the Decree court entered its own findings, those findings were clear error. In this case, the Engineer properly found that a transfer to the Foundation limited to the consumption portion would avoid conflict and injury to other existing water rights, the findings were supported by substantial evidence, and the Engineer applied the correct legal rule. The panel also held that the export restriction of the Walker River Decree did not prohibit delivering water to Walker Lake because Walker Lake was part of the Walker River Basin. View "United States v. U.S. Board of Water Commissioners" on Justia Law