Articles Posted in Government & Administrative Law

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Adorers, a religious order of Roman Catholic women, owns land in Columbia, Pennsylvania affected by the Federal Energy Regulatory Commission (FERC) decision under the Natural Gas Act, to issue a certificate of public convenience and necessity to Transco, authorizing construction of a roughly 200-mile-long pipeline. Adorers claim that their deeply-held religious beliefs require that they care for the land in a manner that protects and preserves the Earth as God’s creation. Despite receiving notice of the proposed project, Adorers never raised this objection before FERC. More than five months after FERC granted the certificate, Adorers filed suit under the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1. The district court dismissed, citing the Act: If FERC issues a certificate following the requisite hearing, any aggrieved person may seek judicial review in the D.C. Circuit or the circuit wherein the natural gas company is located or has its principal place of business. Before seeking judicial review, that party must, within 30 days of the issuance of the certificate, apply for rehearing before FERC. Anyone who fails to first seek a rehearing is barred from seeking judicial review, 15 U.S.C. 717r(a). The Third Circuit affirmed the dismissal. A RFRA cause of action, invoking a court’s general federal question jurisdiction, does not abrogate or provide an exception to a specific jurisdictional provision prescribing a particular procedure for judicial review of an agency’s action. View "Adorers of Blood of Christ v. Federal Energy Regulatory Commisson" on Justia Law

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On January 6, 2016, in Newark, New Jersey, there was a collision between a car driven by Sconiers and a vehicle owned by the U.S. Postal Service (USPS). About two weeks later, Sconiers submitted an administrative tort claim form to USPS seeking damages for injuries that she claimed she suffered in the accident. By letter dated July 14, 2016, addressed to Sconiers’s counsel, USPS denied her claim. The letter, citing the Federal Tort Claims Act (FTCA) 28 U.S.C. 2401(b), informed Sconiers that if she was dissatisfied with the denial, she “may file suit in a United States District Court no later than six (6) months after the date the Postal Service mails the notice of that final action.” Sconiers filed suit eight months later. The district court found that Sconiers’s complaint was filed beyond the FTCA’s six-month statute of limitations and determined that she had not identified any extraordinary circumstance that justified equitable tolling of the deadline. The Third Circuit affirmed. Although the statute of limitations requires filing within two years, 28 U.S.C. §2401(b), the FTCA additionally requires claimants to file their claims within six months of an agency’s written denial. View "Sconiers v. United States" on Justia Law

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After a confrontational screening at Philadelphia International Airport in 2006, during which police were called, Pellegrino asserted intentional tort claims against TSA screeners. Under the Federal Tort Claims Act, the government generally enjoys sovereign immunity for intentional torts committed by federal employees, subject to the “law enforcement proviso” exception, which waives immunity for a subset of intentional torts committed by employees who qualify as “investigative or law enforcement officers,” 28 U.S.C. 2680(h). The Third Circuit affirmed the dismissal of Pellegrino’s suit, holding that TSA screeners are not “investigative or law enforcement officers” under the law enforcement proviso. They “typically are not law enforcement officers and do not act as such.” The court noted that the head of the TSA, the Under Secretary of Transportation for Security, has specific authority to designate employees to serve as “law enforcement officer[s]” 49 U.S.C. 114(p)(1). An employee so designated may carry a firearm, make arrests, and seek and execute warrants for arrest or seizure of evidence. Screening locations are staffed by both screening officers and law enforcement officers. View "Pellegrino v. United States Transportation Security Administration" on Justia Law

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"Immediate relatives” of U.S. Citizens can enter the United States without regard to numerical limitations on immigration. The Adam Walsh Child Protection and Safety Act of 2006, 120 Stat. 587 (AWA) amended the statute so that a citizen “who has been convicted of a specified offense against a minor” may not file any petition on behalf of such relatives “unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the alien.” The definition of a “specified offense against a minor,” includes “[c]riminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.” U.S. Citizenship and Immigration Services (USCIS) memos state that “a petitioner who has been convicted of a specified offense against a minor must submit evidence of rehabilitation and any other relevant evidence that clearly demonstrates, beyond any reasonable doubt," that he poses no risk and that “approval recommendations should be rare.” In 2004, Bakran, a U.S. citizen, was convicted of aggravated indecent assault and unlawful contact with a minor. In 2012, Bakran married an adult Indian national and sought lawful permanent resident status for her. USCIS denied his application citing AWA. Bakran claimed violations of the Constitution and Administrative Procedures Act, 5 U.S.C. 701. The Third Circuit held that the protocols Bakran challenged simply guide the Secretary’s determination; courts lack jurisdiction to review them. The AWA does not infringe Bakran’s marriage right but deprives him of an immigration benefit to which he has no constitutional right. The Act is aimed at providing prospective protection and is not impermissibly retroactive. View "Bakran v. Secretary, United States Department of Homeland Security" on Justia Law

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Little Sisters of the Poor, a Roman Catholic congregation serving the elderly poor of all backgrounds, operates homes for the elderly, all of which adhere to the same religious beliefs. A religious nonprofit corporation that operates a Little Sisters home in Pittsburgh sought to intervene in litigation challenging regulations promulgated under the Patient Protection and Affordable Care Act, 42 U.S.C. 300gg-13(a)(4). That litigation was instituted by the Commonwealth of Pennsylvania, challenging interim final rules, providing for “religious” and “moral “ exemptions to the Act's "contraceptive mandate" for “entities, and individuals, with sincerely held religious beliefs objecting to contraceptive or sterilization coverage,” including “for-profit entities that are not closely-held.” The Third Circuit reversed the denial of their motion. Little Sisters’ interest in the regulations is neither novel nor isolated; it has been involved in Affordable Care Act litigation for years. Little Sisters’ interest in preserving the religious exemption is concrete and capable of definition; the relationships among the organization's various homes indicate a unique interest compared to other religious objectors who might wish to intervene. Those interests are significantly protectable. Little Sisters have demonstrated that they may be “practically disadvantaged by the disposition of the action” and have established that their interests are not adequately represented by the federal government. View "Commonwealth of Pennsylvania v. President United States" on Justia Law

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In 2015, former Virgin Islands Senator James was charged with wire fraud, 18 U.S.C. 1343, and federal programs embezzlement, 18 U.S.C. 666(a)(1)(A), stemming from his use of legislative funds to ostensibly obtain historical documents from Denmark related to the Fireburn, an 1878 St. Croix uprising. The indictment specified: obtaining cash advances from the Legislature but retaining a portion of those funds for his personal use; double-billing for expenses for which he had already received a cash advance; submitting invoices and receiving funds for translation work that was never done; and submitting invoices and receiving funds for translation work that was completed before his election to the Legislature. James, who argued that he was engaged in legislative fact-finding, moved to dismiss the indictment on legislative immunity grounds. The district court denied the motion, stating that James’ actions were not legislative acts worthy of statutory protection under the Organic Act of the Virgin Islands. The Third Circuit affirmed. Under 48 U.S.C. 1572(d) legislators are protected from being “held to answer before any tribunal other than the legislature for any speech or debate in the legislature." The conduct underlying the government’s allegations concerning James is clearly not legislative conduct protected by section 1572(d). View "United States v. James" on Justia Law

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In 2015, former Virgin Islands Senator James was charged with wire fraud, 18 U.S.C. 1343, and federal programs embezzlement, 18 U.S.C. 666(a)(1)(A), stemming from his use of legislative funds to ostensibly obtain historical documents from Denmark related to the Fireburn, an 1878 St. Croix uprising. The indictment specified: obtaining cash advances from the Legislature but retaining a portion of those funds for his personal use; double-billing for expenses for which he had already received a cash advance; submitting invoices and receiving funds for translation work that was never done; and submitting invoices and receiving funds for translation work that was completed before his election to the Legislature. James, who argued that he was engaged in legislative fact-finding, moved to dismiss the indictment on legislative immunity grounds. The district court denied the motion, stating that James’ actions were not legislative acts worthy of statutory protection under the Organic Act of the Virgin Islands. The Third Circuit affirmed. Under 48 U.S.C. 1572(d) legislators are protected from being “held to answer before any tribunal other than the legislature for any speech or debate in the legislature." The conduct underlying the government’s allegations concerning James is clearly not legislative conduct protected by section 1572(d). View "United States v. James" on Justia Law

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Migliaro purchased a Standard Flood Insurance Policy (SFIP) under the National Flood Insurance Program, 42 U.S.C. 4011(a), from Fidelity for his property, which sustained flood damage in October 2012's Hurricane Sandy. Fidelity’s adjuster recommended a payment of $90,499.11, which Fidelity paid. Five months later, Migliaro submitted a proof of loss, claiming an additional $236,702.57. On July 15, 2013, Fidelity sent Migliaro a letter titled “Rejection of Proof of Loss,” stating: This is not a denial of your claim. Your field adjuster provided you with an estimate and Proof of Loss regarding covered damages. If there are additional covered damages identified, please forward documentation and they will be considered. Migliaro did not provide additional documentation or submit a second proof of loss but filed suit. Migliaro's July 2015 complaint was dismissed as untimely. Because SFIP claims are ultimately paid by the government, SFIPs are identical and state: You may not sue ... unless you have complied with all the requirements of the policy. If you do sue, you must start the suit within one year after the date of the written denial of all or part of the claim. The Third Circuit affirmed. Although the rejection of a proof of loss is not per se a denial of the claim, it does constitute a denial if the policyholder treats it as such by filing suit against the carrier. View "Migliaro v. Fidelity National Indemnity Insurance Co." on Justia Law

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Private indirect purchasers of prescription Flonase filed a class action, alleging that GSK had filed sham petitions with the FDA to delay the introduction of generic Flonase and force them to pay more for Flonase than they would have if the generic version were available. Those plaintiffs moved for final approval of settlement after the court certified the class and approved the notice to settlement class members. Louisiana, an indirect Flonase purchaser, qualified as a potential class member but did not receive the notice; it only received a Class Action Fairness Act (CAFA) Notice, for “the appropriate State official of each State in which a class member resides,” 28 U.S.C. 1715(b) The settlement “permanently enjoined” all members of the settlement class, including Louisiana, from bringing released claims against GSK, even in state court. In an ancillary suit, GSK moved to enforce the settlement against the Louisiana Attorney General. The Third Circuit affirmed denial of the request, finding that under the Eleventh Amendment “a State retains the autonomy to choose ‘not merely whether it may be sued, but where it may be sued.'" Although some of Louisiana’s claims fall within the settlement, the state did not waive its sovereign immunity. Receipt of the CAFA Notice was insufficient to unequivocally demonstrate that the state was aware that it was a class member and voluntarily chose to have its claims resolved. View "In re: Flonase Antitrust Litigation" on Justia Law

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The Delaware Companies challenged Delaware’s right to audit whether funds paid for stored-value gift cards issued by their Ohio-based subsidiaries are held by the Companies and subject to escheatment. Their argument relied on Supreme Court precedent establishing priority among states competing to escheat abandoned property, giving first place to the state where the property owner was last known to reside. If that residence cannot be identified or if that state has disclaimed its interest, second in line is the state where the holder of the abandoned property is incorporated; any other state is preempted from escheating the property. The Companies argued that money left unclaimed by owners of the stored-value cards is held by the Ohio Subsidiaries, so Delaware can have no legitimate escheatment claim and must be barred from auditing the Companies in connection with the gift cards. The Third Circuit held that private parties can invoke federal common law to challenge a state’s authority to escheat property but agreed that dismissal was proper. “The notion that the State cannot conduct any inquiry into abandoned property to verify a Delaware corporation’s representations regarding abandoned property lacks merit” and, to the extent the Companies challenged the scope or means of the audit, the claim is not ripe, since Delaware has taken no formal steps to compel an audit. View "Marathon Petroleum Corp v. Secretary of Finance for the State of Delaware" on Justia Law