Articles Posted in Government & Administrative Law

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The Ninth Circuit withdrew its previous opinion and dissent, filing a superseding opinion and dissent. The Ninth Circuit reversed the grant of summary judgment for plaintiffs in their suit under the Freedom of Information Act (FOIA), 5 U.S.C. 552 et seq., against the DOD, seeking the names of foreign students and instructors at the Western Hemisphere Institute for Security Cooperation. The Ninth Circuit held that the disclosure of the names would constitute a clearly unwarranted invasion of personal privacy. Applying a two-step test to determine whether disclosing the names would constitute an unwarranted invasion of personal privacy under FOIA Exemption 6, the Ninth Circuit concluded that the affidavits and other evidence submitted by the DOD were sufficient to carry the DOD's burden to establish that disclosure of the requested information gave rise to a nontrivial risk of harassment and mistreatment. Furthermore, the public interest did not outweigh the serious risks that would result from disclosure where any incremental value stemming from the disclosure of the names was small. View "Cameranesi v. US Department of Defense" on Justia Law

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The court affirmed the FWS's finding that listing the whitebark pine as a threatened or endangered species was "warranted but precluded." Wildwest asserted that FWS's decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law. Determining that the case was not moot, the court concluded that FWS was not bound to list species based solely on the degree of threat they face as demonstrated by the assigned Listing Priority Number (LPN), that instead it could properly consider factors outside of those listed in the guidelines, and further that FWS's decision contained a sufficient “description and evaluation of the reasons and data on which the finding was based” to satisfy the Endangered Species Act (ESA), 16 U.S.C. 1531-1544. View "Wildwest Institute v. Kurth" on Justia Law

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This petition for review returned to a long series of administrative cases arising out of the California energy crisis of 2000 and 2001 all centering on whether the Federal Energy Regulatory Commission (“FERC” or “Commission”) acted arbitrarily or capriciously in calculating certain refunds. FERC that FERC had acted outside its jurisdiction when ordering governmental entities/non-public utilities to pay refunds, the Commission vacated each of its orders in the California refund proceeding to the extent that they ordered governmental entities/nonpublic utilities to pay refunds. In sum, although the tariffs were not specific, the Ninth Circuit could not concluded FERC acted arbitrarily or capriciously in its construction of the tariffs. View "California Pub. Util. Comm'n v. Federal Energy Reg. Comm'n" on Justia Law

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A City of Berkeley ordinance required cell phone retailers to inform prospective cell phone purchasers that carrying a cell phone in certain ways may cause them to exceed Federal Communications Commission guidelines for exposure to radio-frequency radiation. CTIA, a trade association, challenged the ordinance on two grounds: (1) the ordinance violated the First Amendment; and (2) the ordinance was preempted. CTIA requested a preliminary injunction staying enforcement of the ordinance. The district court denied CTIA’s request, and CTIA filed an interlocutory appeal. Finding no reversible error, the Ninth Circuit affirmed. View "CTIA Witeless Ass'n v. City of Berkeley" on Justia Law

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SCAP petitioned for review of an objection letter sent by the EPA regarding draft permits for water reclamation plants in El Monte and Pomona, California. The court concluded that neither 33 U.S.C. 1369(b)(1)(E) or (F) provides the court subject matter jurisdiction to review the Objection Letter. The court explained that even when a state assumes primary responsibility for issuing National Pollutant Discharge Elimination System (NPDES) permits, EPA retains supervisory authority over state permitting programs under 33 U.S.C. 1342(d). In this case, the L.A. Board chose to revise the Draft Permits and retain control of the NPDES permitting process for the Plants, and the permits were issued through the State of California, not EPA. The court concluded that the appropriate avenue for SCAP to seek redress was through the State's review process. Accordingly, the court dismissed the petition for review. View "Southern California Alliance of Publicly Owned Treatment Works v. EPA" on Justia Law

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This extensive litigation arose when Arizona clashed with the EPA over its State Implementation Plan (SIP) required under a new regulatory scheme codified in Section 169A of the Clean Air Act (CAA), 42 U.S.C. 7491(b). The scheme required each state with emissions impacting protected federal lands to create a SIP describing how the state intended to make reasonable progress toward the national goal to improve air visibility in federal parks and forests. The EPA determined that Arizona could do better in improving visibility even if the SIP listed proposals to manage and reduce emissions from various industrial sources operated within the state. Arizona and several private companies (petitioners) subsequently objected to the EPA's most recent Federal Implementation Plan (FIP), which petitioners claim constituted invalid agency action. The court held that several of petitioners' objections to the FIP were not properly before it because they were not presented to the EPA during the notice-and-comment period. In regard to the remaining objections that were ripe for review regarding regulation of the cement kiln and copper smelters at issue, the court concluded that the EPA's emission-control measures were not arbitrary or capricious and thus constituted valid agency rulemaking. View "Arizona ex rel. Darwin v. EPA" on Justia Law

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In this interlocutory appeal, the water agencies challenged the district court's grant of partial summary judgment for the Tribe and the United States. The judgment declared that the United States impliedly reserved appurtenant water sources, including groundwater, when it created the Tribe's reservation in California's arid Coachella Valley. The court concluded that in the Winters v. United States doctrine, federal reserved water rights are directly applicable to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams; the Winters doctrine does not distinguish between surface water and groundwater; rather, its limits derive only from the government's intent in withdrawing land for a public purpose and the location of the water in relation to the reservation created; because the United States intended to reserve water when it established a home for the Tribe, the court held that the district court did not err in determining that the government reserved appurtenant water sources—including groundwater—when it created the Tribe's reservation in the Coachella Valley; and the creation of the Agua Caliente Reservation carried with it an implied right to use water from the Coachella Valley aquifer. The court held that state water rights were preempted by federal reserved rights; held that the fact that the Tribe did not historically access groundwater does not destroy its right to groundwater now; and held that state water entitlements do not affect the court's analysis with respect to the creation of the Tribe's federally reserved water right. Accordingly, the court affirmed the judgment. View "Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District" on Justia Law

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Plaintiffs submitted rulemaking petitions to the FDA, FTC, AMS, and FSIS, requesting that each agency promulgate regulations that would require all egg cartons to identify the conditions in which the egglaying hens were kept during production. Plaintiffs subsequently filed suit claiming that each agency had acted arbitrarily and capriciously in dismissing their rulemaking petitions. The district court granted summary judgment to defendants. The court concluded that the FSIS did not act arbitrarily or capriciously in denying plaintiffs' rulemaking petition where plaintiffs' proposed labeling regulations concern only shell eggs and thus fall outside of the FSIS's labeling jurisdiction under the Egg Products Inspection Act (EPIA), 21 U.S.C. 1031–56; the AMS also did not act arbitrarily or capriciously because the agency correctly concluded that it lacks the authority to promulgate mandatory labeling requirements for shell eggs; the FTC did not act arbitrarily or capriciously where the agency could not conclude that the potentially unfair or deceptive labeling practices plaintiffs challenge were "prevalent" as that term was used in the Federal Trade Commission Act (FTCA), 15 U.S.C. 41-58, and the agency reasonably denied the petition based on its discretion to combat any potentially misleading egg labeling through ad hoc enforcement proceedings; and the FDA's explanation for denying plaintiffs' petition barely met its low burden of demonstrating that it considered the potential problem and providing a reasonable explanation of its decision. Accordingly, the court affirmed the judgment. View "Compassion Over Killing v. FDA" on Justia Law

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Washington and Minnesota filed suit challenging President Trump's Executive Order 13769 which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries, suspends for 120 days the United States Refugee Admissions Program, and suspends indefinitely the entry of all Syrian refugees. In this emergency proceeding, the Government moves for an emergency stay of the district court's temporary restraining order while its appeal of that order proceeds. The court noted the extraordinary circumstances of this case and determined that the district court's order possesses the qualities of an appealable preliminary injunction. The court held that the States have made a sufficient showing to support standing, at least at this preliminary stage of the proceedings, where they argued that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law. The court concluded that there is no precedent to support the Government's position that the President's decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The court explained that the Government's claim runs contrary to the fundamental structure of our constitutional democracy. Therefore, although courts owe considerable deference to the President's policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action. The court concluded that the Government has not shown that it is likely to succeed on the merits regarding its argument about, at least, the States' Due Process Clause claim, and the court noted the serious nature of the allegations the States have raised with respect to their religious discrimination claims. The court held that the procedural protections provided by the Fifth Amendment's Due Process Clause are not limited to citizens; rather, they apply to all persons within the United States, including aliens, regardless of whether their presence here is lawful, unlawful, temporary, or permanent. Finally, the balance of hardships and the public interest do not favor a stay. Accordingly, the court denied the emergency motion for a stay pending appeal. View "State of Washington v. Trump" on Justia Law

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After DEA agents seized $99,500 in cash from plaintiff's carry-on bag at San Francisco International Airport, the DEA sent plaintiff a notice on May 1, 2013, informing plaintiff that the money was subject to forfeiture under 21 U.S.C. 881 as a result of a violation of the Controlled Substances Act. The notice stated that June 5, 2013 was the deadline to file a contest of the forfeiture. On June 4th, 2013, plaintiff's attorney tendered plaintiff's claim to FedEx for overnight delivery to the DEA, but the DEA did not receive the claim until June 6th. Plaintiff eventually filed a motion for return of property under Federal Rule of Criminal Procedure 41(g), arguing that the DEA had wrongfully deemed his claim untimely and that the district court should exercise its equitable jurisdiction to toll the filing deadline. The district court held that it had equitable jurisdiction to consider plaintiff's motion, but denied plaintiff's motion on the merits. The court treated section 983(e) of the Civil Asset Forfeiture Reform Act (CAFRA), 18 U.S.C. 983(e), as a claim-processing rule. In this case, the district court correctly determined that it had jurisdiction to hear plaintiff's motion for equitable relief because there is no clear jurisdictional limitation to CAFRA. The court concluded that plaintiff failed to meet his burden of establishing that he pursued his rights diligently and that some extraordinary circumstance stood in his way. Accordingly, the court affirmed the district court's denial of the motion. View "Okafor v. United States" on Justia Law