Articles Posted in Government & Administrative Law

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Superior, a nonprofit corporation, operates 21 Michigan radio broadcast stations. The City of Riverview owns a 320-foot broadcast tower. With an FCC permit to operate a low-powered FM radio broadcast station, Superior contracted to operate broadcasting equipment on the city-owned tower. Superior installed a single-bay antenna at 300 feet and a transmitter in the equipment shelter. The agreement limited modifications to Superior’s equipment; upgrades required the city’s prior approval. Without the city’s knowledge, Superior obtained a modification of its FCC permit to allow a significant increase in broadcast power. In response to Superior’s request, the city engaged a consultant, who reported that the proposed four-bay antenna would cause Superior’s equipment to occupy 30 feet of tower space instead of its current three feet of space; would expose individuals around the tower to unsafe levels of radiofrequency electromagnetic radiation; and might create radio interference with other tower tenants. The Sixth Circuit affirmed summary judgment in favor of the city, rejecting arguments under the Telecommunications Act, 47 U.S.C. 151. The Agreement unambiguously granted the city the right to refuse Superior’s requested upgrade, which the city properly exercised. The city did not enact a “regulation” within the meaning of the Act but acted in its proprietary capacity and had a rational basis for its actions, so that Superior’s constitutional claims failed. View "Superior Communications v. City of Riverview" on Justia Law

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In 1990, an Ohio state court ordered Jacobs to pay Collin $13,800 in child-support payments. Jacobs subsequently began to receive social security benefits, but, by January 2014, Jacobs’s arrearage totaled $45,356. The state court directed the Commissioner to garnish Jacobs’s social-security payments, 42 U.S.C. 659. In October 2015, the Commissioner mistakenly terminated the garnishment. A year later Collin asked the court to order the Commissioner to resume the garnishment and to pay a lump sum equal to the amount the Commissioner had failed to garnish. The Commissioner voluntarily resumed the garnishment. The Sixth Circuit affirmed dismissal, holding that Collin’s demand was for “money damages,” so the United States was immune from suit. Section 659(a) provides that moneys payable by[] the United States . . . to any individual . . . shall be subject, in like manner and to the same extent as if the United States . . . were a private person, to withholding . . . to enforce the legal obligation ... to provide child support"; but 5 C.F.R. 581.305(e)(2) states “Neither the United States ... nor any governmental entity shall be liable ... to pay money damages for failure to comply with legal process.” The relief Collin seeks is not enforcement of “the statutory mandate itself” but instead damages for the failure to withhold, for which the government has not waived its immunity. View "Collin v. Commissioner of Social Security" on Justia Law

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Biestek, age 54, worked for most of his life as a carpenter and a construction laborer, frequently transporting scaffolding, panels, and other construction materials around work sites. He completed at least one year of college and received additional vocational training as a bricklayer and carpenter. He stopped working in June 2005, allegedly due to degenerative disc disease, Hepatitis C, and depression. Biestek applied for Supplemental Security Income and Disability Insurance Benefits in March 2010, alleging a disability onset of October 2009. A Social Security Administration ALJ denied Biestek’s application. The district court remanded because the ALJ had not obtained necessary medical-expert testimony and did not pose a sufficiently specific hypothetical to the vocational expert. The ALJ subsequently issued a partially favorable decision finding Biestek disabled starting in May 2013, on his fiftieth birthday, the point at which the Agency deems an applicant “closely approaching advanced age” and presumptively disabled under 20 C.F.R. 404. The ALJ found that Biestek was “not disabled” before that date. The Sixth Circuit affirmed. Substantial evidence supported the ALJ’s finding the that Biestek did not meet or medically equal the back-pain-related impairment listed at 20 C.F.R. 404. The ALJ properly evaluated the testimony of medical experts and a vocational expert. View "Biestek v. Commissioner of Social Security" on Justia Law

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Biestek, age 54, worked for most of his life as a carpenter and a construction laborer, frequently transporting scaffolding, panels, and other construction materials around work sites. He completed at least one year of college and received additional vocational training as a bricklayer and carpenter. He stopped working in June 2005, allegedly due to degenerative disc disease, Hepatitis C, and depression. Biestek applied for Supplemental Security Income and Disability Insurance Benefits in March 2010, alleging a disability onset of October 2009. A Social Security Administration ALJ denied Biestek’s application. The district court remanded because the ALJ had not obtained necessary medical-expert testimony and did not pose a sufficiently specific hypothetical to the vocational expert. The ALJ subsequently issued a partially favorable decision finding Biestek disabled starting in May 2013, on his fiftieth birthday, the point at which the Agency deems an applicant “closely approaching advanced age” and presumptively disabled under 20 C.F.R. 404. The ALJ found that Biestek was “not disabled” before that date. The Sixth Circuit affirmed. Substantial evidence supported the ALJ’s finding the that Biestek did not meet or medically equal the back-pain-related impairment listed at 20 C.F.R. 404. The ALJ properly evaluated the testimony of medical experts and a vocational expert. View "Biestek v. Commissioner of Social Security" on Justia Law

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In 1988, an ALJ awarded Smith supplemental security income (SSI). Smith received benefits until 2004 when he was found to be over the resource limit. Smith filed another SSI application in 2012, alleging additional medical conditions. The application was denied on March 26, 2014. Smith claims that he mailed a request for review on April 24, 2014. On September 21, Smith faxed a correspondence to the Social Security Administration, inquiring about the status of his appeal, with a copy of his request, dated April 24, 2014. A representative informed Smith that his request was not in the “electronic folder,” that if the Council had received the request, it would have mailed a receipt, and that his appeals request was filed as of October 1, 2014. The Council dismissed the request as untimely, finding no good cause to extend the deadline because Smith could not provide evidence that it was sent within the appropriate time. The district court determined that there was no judicial review available because the dismissal did not constitute a final decision and Smith made no colorable constitutional claims. The Sixth Circuit affirmed, rejecting arguments that Smith suffered due process violations because his request was timely submitted, different ALJs presided over his hearing and signed his decision, and the ALJ referenced the 1988 decision but failed to attach a copy as an exhibit. View "Smith v. Commissioner of Social Security" on Justia Law

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A jeweler and a coin dealer brought facial and as-applied Fourth Amendment challenges to warrantless search provisions in Ohio’s Precious Metals Dealers Act (PMDA). Section 4728.05(A) allows the state to “investigate the business” of licensees and non-licensees with “free access to the books and papers thereof and other sources of information with regard to the[ir] business[es].” Section 4728.06 requires licensees to maintain records, at the licensed premises in a state-approve form, open to inspection by the head of the local police department and, “upon demand,” to show authorities any precious metal within their possession that is listed in these records. Section 4728.07 requires licensees to keep separate records, available to local police “every business day.” Ohio Administrative Code 1301:8-6-03(D), allows the state to inspect “at all times” all sources of information "with regard to the business of the licensee” and requires that licensees maintain their records and inventory at the licensed location. The Sixth Circuit held that the warrantless searches authorized by O.R.C. 4728.05(A) are facially unconstitutional, as not necessary to furthering the state’s interest in recovering stolen jewelry and coins; nor do they serve as adequate warrant substitutes because they are overly broad. The Sixth Circuit upheld sections 4728.06 and 4728.07 as facially constitutional. The state has a substantial interest in regulating precious metals; the provisions are narrowly tailored to address the state’s proffered need to curb the market in stolen precious metals. The court dismissed as-applied challenges to sections 4728.06 and 4728.07 as not ripe. View "Liberty Coins, LLC v. Goodman" on Justia Law

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A jeweler and a coin dealer brought facial and as-applied Fourth Amendment challenges to warrantless search provisions in Ohio’s Precious Metals Dealers Act (PMDA). Section 4728.05(A) allows the state to “investigate the business” of licensees and non-licensees with “free access to the books and papers thereof and other sources of information with regard to the[ir] business[es].” Section 4728.06 requires licensees to maintain records, at the licensed premises in a state-approve form, open to inspection by the head of the local police department and, “upon demand,” to show authorities any precious metal within their possession that is listed in these records. Section 4728.07 requires licensees to keep separate records, available to local police “every business day.” Ohio Administrative Code 1301:8-6-03(D), allows the state to inspect “at all times” all sources of information "with regard to the business of the licensee” and requires that licensees maintain their records and inventory at the licensed location. The Sixth Circuit held that the warrantless searches authorized by O.R.C. 4728.05(A) are facially unconstitutional, as not necessary to furthering the state’s interest in recovering stolen jewelry and coins; nor do they serve as adequate warrant substitutes because they are overly broad. The Sixth Circuit upheld sections 4728.06 and 4728.07 as facially constitutional. The state has a substantial interest in regulating precious metals; the provisions are narrowly tailored to address the state’s proffered need to curb the market in stolen precious metals. The court dismissed as-applied challenges to sections 4728.06 and 4728.07 as not ripe. View "Liberty Coins, LLC v. Goodman" on Justia Law

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Cincinnati ordinances provide guidelines for selecting the “lowest and best bidder” on Department of Sewers projects to “ensure efficient use of taxpayer dollars, minimize waste, and promote worker safety and fair treatment of workers” and for bids for “Greater Cincinnati Water Works and the stormwater management utility division,” to employ skilled contractors, committed to the city’s “safety, quality, time, and budgetary concerns.” Allied alleged that the Employee Retirement Income Security Act (ERISA) preempted: a requirement that the bidder certify whether it contributes to a health care plan for employees working on the project as part of the employee’s regular compensation; a requirement that the bidder similarly certify whether it contributes to an employee pension or retirement program; and imposition of an apprenticeship standard. Allied asserts that the only apprenticeship program that meets that requirement is the Union’s apprenticeship program, which is not available to non-Union contractors. The ordinances also require the winning contractor to pay $.10 per hour per worker into a city-managed pre-apprenticeship training fund, not to be taken from fringe benefits. The district court granted Allied summary judgment. The Sixth Circuit reversed. Where a state or municipality acts as a proprietor rather than a regulator, it is not subject to ERISA preemption. The city was a market participant here: the benefit-certification requirements and the apprenticeship requirements reflect its interests in the efficient procurement of goods and services. View "Allied Construction Industries v. City of Cincinnati" on Justia Law

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The Michigan National Guard terminated two “dual-status” technicians, who are military employees that must be members of the National Guard, hold a military grade, and wear an appropriate military uniform while performing military duties, 32 U.S.C. 709(b), but are also “Federal civilian employee[s]” who are “assigned to a civilian position,” 10 U.S.C. 10216(a). Dual-status technicians are “afforded the benefits and rights generally provided for federal employees in the civil service,” including rights under the Federal Service Labor-Management Relations Statute (FSLMRS), 5 U.S.C. 7101–7135. The technicians appealed through the Guard’s internal administrative process, represented by their union. The Guard sent a letter to the union that could be read as temporarily forbidding all private communication between union representatives and Guard employees. The Federal Labor Relations Authority (FLRA) found that this letter violated the FSLMRS. The Sixth Circuit enforced the order as modified. “Accepting the FLRA’s arguable but somewhat implausible interpretation of the letter under deferential substantial-evidence review, the letter did violate the FSLMRS and was within the purview of the FLRA." View "Federal Labor Relations Authority v. Michigan Army National Guard" on Justia Law

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Insane Clown Posse, a Michigan music group, performs songs with “harsh language and themes.” Its fans, “Juggalos,” wear distinctive tattoos, clothing, and insignia, including clown face paint and the “hatchetman” logo. The Attorney General’s National Gang Intelligence Center's (34 U.S.C. 41507) 2011 gang-activity report, described Juggalos as “a loosely-organized hybrid gang.” “Juggalo[] subsets exhibit gang-like behavior and engage in criminal activity and violence.” Although “Most crimes ... are sporadic, disorganized, individualistic,” and minor, “a small number of Juggalos are forming more organized subsets and engaging in more gang-like criminal activity, such as felony assaults, thefts, robberies, and drug sales.” Four states recognize Juggalos as a gang. Juggalos who allege that they do not knowingly affiliate with any criminal gang, but have suffered violations of their Fifth Amendment due-process rights and a chill in the exercise of their First Amendment expression and association rights due to the designation, sued under the Administrative Procedures Act, 5 U.S.C. 701(b). Some alleged that they had been detained; an Army Corporal with Juggalo tattoos alleges that he is “in imminent danger of suffering discipline or an involuntary discharge.” Local law enforcement caused a musical event to be canceled. The Sixth Circuit affirmed dismissal; the designation was not reviewable because it was not a final agency action and was committed to agency discretion by law. View "Parsons v. United States Department of Justice" on Justia Law