Articles Posted in Government & Administrative Law

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Employers are signatories to collective bargaining agreements (CBAs) with the Operating Engineers Union, providing that “the Employer shall employ Operating Engineers for the erection, operation, assembly and disassembly, and maintenance and repair of . . . Forklifts, Skidsteers.” The provision includes a penalty for violation. Employers’ CBA with the Laborers Union provides that “operation of forklifts . . . [and] skid-steer loaders . . . shall be the work of the laborer.” Employers assigned the disputed work to Laborers. Operators filed pay-in-lieu grievances and threatened to strike. The NLRB noted that Employers had assigned forklift and skidsteer work to Laborers for 15-26 years, and found no merit in Operators’ work-preservation claims, characterizing them as attempts at work acquisition. The NLRB found that Operators’ ongoing filing of grievances and threats to strike constituted unfair labor practices under NLRA section 8(b)(4) and that Laborers were entitled to perform the work. Meanwhile, Operators filed a complaint under Employee Retirement Income Security Act section 5153 seeking payment of contributions defendant allegedly owed under the CBAs, access to audit records, interest, costs, and injunctive relief. The NLRB intervened. The district court concluded and the Sixth Circuit agreed that the jurisdictional award was dispositive of, and precluded, Operators’ CBA claims. View "Orrand v. Hunt Construction Group, Inc." on Justia Law

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This case arose from an FBI investigation into plaintiff and his involvement in attacks made by an ethnic Albanian group against facilities in Montenegro. Plaintiff filed suit under the Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(5), seeking information regarding the investigation. The FBI subsequently claimed that it had fully discharged its disclosure obligations and argued that the common interest doctrine shielded the requests for assistance (RFAs) from disclosure. The FBI's invocation of the common-interest doctrine convinced the district court that the requests to Austria and to an unnamed government were exempt under section 552(b)(5). Therefore, the district court granted the FBI's motion for summary judgment. At issue was the exemption of disclosure of inter-agency and intra-agency memorandums or letters (Exemption 5) under FOIA. The FBI and the DOJ argued that "inter-agency" and "intra-agency" included agencies of other countries. The court held that the plain language of section 552(b)(5) was limited to memorandums or letters between authorities of the Government of the United States. Therefore, the court reversed and remanded for further proceedings. View "Lucaj v. FBI" on Justia Law

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Plaintiffs, municipal corporations operate the local “emergency communications” or “911” programs in their respective counties, alleged that the telephone company, to reduce costs, offer lower prices, and obtain more customers, engaged in a covert practice of omitting fees mandated by Tennessee’s Emergency Communications District Law (Code 7-86-101), and sought compensation under that statute. They also alleged that, while concealing this practice, the telephone company violated the Tennessee False Claims Act. The district court dismissed the first claim, finding that the statute contained no implied private right of action, and rejecting the second claim on summary judgment on the second claim, finding that the statements at issue were not knowingly false. In consolidated appeals, the Sixth Circuit reversed. Plaintiffs provided evidence of a “massive quantity of unexplained unbilled lines,” establishing a disputed question of material fact. The Law does not require the plaintiffs to prove that the defendant acted in some form of bad faith, given that the statute imposes liability for “deliberate ignorance” View "Knox County Emergency Communications District v. BellSouth Telecommunications LLC" on Justia Law

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ECM BioFilms manufactures an additive that it claims accelerates the rate at which plastic biodegrades. In 2013, the Federal Trade Commission filed an administrative complaint, claiming that several of ECM’s biodegradability claims were deceptive. The full Commission ultimately found that three of ECM’s claims were false and misleading under 15 U.S.C. 45. The Commission’s order prohibits ECM from representing that ECM plastic is biodegradable “unless such representation is true, not misleading, and, at the time it is made, respondent possesses and relies upon competent and reliable scientific evidence that substantiates the representation,” The Sixth Circuit denied a petition for review, rejecting claims that part of the Commission’s decision was unsupported by substantial evidence and that the Commission violated ECM’s rights under the First Amendment, the Administrative Procedures Act, and the Due Process Clause. ECM had adequate notice and the order is not a prohibition on claims of biodegradability. View "ECM BioFilms, Inc. v. Federal Trade Commission" on Justia Law

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Ohio sued the U.S. Department of Health and Human Services, alleging that the federal government illegally collected certain monies from the state in order to supplement the Affordable Care Act’s Transitional Reinsurance Program, 42 U.S.C. 18061. The Program is a premium-stabilization arrangement that aims to combat volatility in the individual market by collecting payments from “health insurance issuers” and “group health plans” and distributing those payments over a three-year period to health insurance issuers that cover high-risk individuals in the individual market. Arguing that the Program’s mandatory payment scheme applies only to private employers and not to state and local government employers, Ohio sought a refund of all payments made on its behalf and a declaration that the Program would not apply to the state in the future. Ohio also argued that application of the Program against the state violated the Tenth Amendment and principles of intergovernmental tax immunity. The Sixth Circuit affirmed dismissal, holding that the Program applies to state and local government employers just as it applies to private employers, and that the Program as applied to Ohio does not violate the Tenth Amendment. View "Ohio v. United States" on Justia Law

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Maxxim’s Sidney, Kentucky repair shop makes and repairs mining equipment and machine parts, employing seven workers. Roughly 75% of the shop’s work is for equipment that Alpha (Maxxim’s parent company) uses to extract or prepare coal at several mines. The rest of the work is for other mining companies and for repair shops that might sell the equipment to mining or non-mining companies. The Maxxim facility does not extract coal or any other mineral, and it does not prepare coal or any other mineral for use. Sidney Coal, another Alpha subsidiary, owned the property and had an office in the upper floor of the Maxxim shop. The Mine Safety and Health Administration had asserted jurisdiction (30 U.S.C. 802(h)) over the Sidney shop and, in 2013, issued several citations. Maxxim challenged the Administration’s power to issue the citations. An administrative law judge’s ruling that the Sidney shop was “a coal or other mine” was upheld by the independent agency responsible for reviewing the Administration’s citations. The Sixth Circuit reversed. The definition of “coal or other mine” refers to locations, equipment and other things in, above, beneath, or appurtenant to active mines; the Maxxim facility is not a mine subject to the Administration’s jurisdiction. View "Maxxim Rebuild Co., LLC v. Mine Safety & Health Administration" on Justia Law

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Plaintiffs each owned real property in Van Buren County, Michigan in but failed to pay property taxes for 2011. In 2012, the properties became subject to forfeiture and foreclosure. In 2014, the circuit court issued a foreclosure judgment; title to the properties passed in fee simple absolute to the county. Months later, the county sold the properties at an auction. The minimum bid for each of the properties was calculated by totaling “[a]ll delinquent taxes, interest, penalties, and fees due on the property” plus the “expenses of administering the sale, including all preparations for the sale.” Wayside Church’s former property had a minimum bid of $16,750, but sold for $206,000. The minimum bid for the Stahl property was $25,000; the property sold for $68,750. The Hodgens property required a minimum bid of $5,900, but sold for $47,750. Plaintiffs sought return of the surplus funds, citing 42 U.S.C. 1983, and alleging that they had a cognizable property interest in their foreclosed properties and in the surplus proceeds generated by the sales, so that Defendants were required to pay just compensation under the Fifth Amendment. The Sixth Circuit vacated dismissal for failure to state a claim and remanded for dismissal for lack of subject matter jurisdiction. the district court erred in finding that the claims were not barred by the Tax Injunction Act, 28 U.S.C. 1341, and the doctrine of comity. View "Wayside Church v. Van Buren County" on Justia Law

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All Tennessee Valley Authority (TVA) plant officers are required to maintain medical clearance as a condition of employment. Since his employment began in 2009, Hale maintained the clearance necessary for his position. In 2013, the TVA began requiring a pulmonary function test for that clearance; Hale failed the testing and was terminated because of his chronic obstructive pulmonary disorder. Hale sued, alleging disability discrimination and failure to accommodate under the Americans with Disabilities Act and the Rehabilitation Act. In an unsuccessful motion to dismiss, the TVA argued that Title VII’s national-security exemption applies to the Rehabilitation Act and precludes the court from reviewing the physical-fitness requirements imposed by the Nuclear Regulatory Commission in the interests of national security and that the Egan doctrine precludes the judiciary from reviewing the TVA’s determination that Hale lacked the physical capacity to fulfill his job duties because this decision was one of national security. The Sixth Circuit denied an interlocutory appeal; the national security exemption does not apply to Hale’s Rehabilitation Act claim. The court declined to extend Egan to preclude judicial review of an agency’s determination regarding an employee’s physical capability to perform the duties of his position. View "Hale v. Johnson" on Justia Law

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The union was charged with violating its duty of fair representation in processing the grievance of a union member, Powell, who was terminated from her position as an automotive plant janitor. The charge alleged that Faircloth, Powell’s union steward, had submitted a false statement that she had witnessed an incident in which Powell threatened a fellow employee, and that Faircloth was subsequently involved in Powell’s grievance process. An Administrative Law Judge dismissed the charge. The National Labor Relations Board reversed, finding that the union had violated its duty of fair representation by acting arbitrarily or in bad faith. The Board emphasized that: Faircloth had submitted a statement against Powell that was partly false; Faircloth had represented Powell in the first stage of the grievance process without disclosing the fact that she had submitted a statement; and Powell was unaware of Faircloth’s statement throughout the grievance process. The Sixth Circuit vacated, holding that the Board’s finding regarding the falsity of Faircloth’s statement was not supported by substantial evidence, and that there was an insufficient basis to find a breach of duty of fair representation. There was nothing to contradict Faircloth’s assertion that she witnessed the threat. View "International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. National Labor Relations Board" on Justia Law

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The Sixth Circuit declined to stay a preliminary injunction requiring the delivery of bottled water households served by the Flint water system that lack properly installed water filters. For many homes without a proper filter, safe drinking water is inaccessible due to the limited hours of the points of distribution and transportation issues. The cost of verifying and maintaining water filters and delivering bottled water to residents that are not part of the allegedly 96% of homes that have a functioning filter is "nowhere near $10.5 million" claimed by the defendants. There is still $100 million left of the $212 million that Michigan allocated to respond to the Flint water crisis. The court rejected an argument that delivering bottled water will slow down the recovery of Flint’s water system by decreasing the amount of water moving through the delivery lines. The defendants did not demonstrate a strong likelihood of success on their arguments, nor have they shown that portions of the preliminary injunction, including the provisions requiring the delivery of bottled water to non-exempt households, are overbroad. A stay would not support the public interest. Flint residents continue to suffer irreparable harm from the lack of reliable access to safe drinking water. View "Concerned Pastors for Social Action v. Khouri" on Justia Law