Articles Posted in Government & Administrative Law

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As unclaimed property has become Delaware’s third-largest source of revenue, companies have filed lawsuits challenging the constitutionality of Delaware’s escheat regime. Plains All American Pipeline attacked the constitutionality of several provisions of the Delaware Escheats Law, which provides that a holder of “property presumed abandoned” must file a yearly report with the State Escheator in which it provides information about the property and its possible owner (Del. Code tit. 12, sects. 1142, 1143) and Delaware’s demand that it submit to an abandoned property audit. Because Plains brought suit before Delaware assessed liability based on its audit or sought a subpoena to make its audit-related document requests enforceable, the district court dismissed the suit, finding that the claims were unripe except for an equal protection claim that it dismissed for failure to state a claim. The Third Circuit reversed in part, finding an as-applied, procedural due process claim ripe, but otherwise affirmed. To establish a due process violation, all Plains must show is that it was required to submit a dispute to a self-interested party. No further factual development is needed to address the merits of the claim. View "Plains All American Pipeline LLP v. Cook" on Justia Law

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Long Branch Police Lieutenant Johnson filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging racial discrimination, under Title VII of the Civil Rights Act, 42 U.S.C. 2000e, by subjecting him “to different and harsher disciplinary measures than similarly situated white colleagues who committed the same or similar . . . infractions.” The EEOC served Long Branch with a notice to charge and requested “all disciplinary records” for Johnson and six Caucasian comparator officers. Long Branch responded that it would not produce the materials unless the EEOC executed a confidentiality agreement. The EEOC refused to execute the agreement and served a subpoena on Long Branch. The city responded with a “Notice of Motion to Quash Subpoena,” captioned for the Superior Court of New Jersey. A person or entity intending not to comply with an EEOC subpoena must submit a petition to modify or revoke the subpoena to the EEOC’s Director or General Counsel within five days after service, 29 C.F.R. 1601.16(b)(1). Long Branch never did so. The EEOC sought enforcement of its subpoena in federal court. The Third Circuit vacated an order enforcing the subpoena in part without reaching claims concerning exhaustion of administrative remedies and disclosure to the charging party of other employees’ records. The court noted a significant procedural defect pertaining to the treatment of the motion to enforce under the Federal Magistrates Act. View "Equal Employment Opportunity Commission v. City of Long Branch" on Justia Law

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In 1993, Congress amended the Communications Act, 47 U.S.C. 151–622, to allow the Federal Communications Commission (FCC) to grant electromagnetic spectrum licenses through a system of competitive bidding. The Act requires the FCC to pursue objectives required by statute, including promoting economic opportunity and competition and ensuring that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women (designated entities or “DEs”). The FCC’s principal means of fulfilling the statutory objectives for DEs is to confer bidding credits upon small and rural businesses that participate in FCC auctions. Bidding credits operate as a discount on the spectrum DEs purchase, allowing them sometimes to outbid companies that make higher bids. In 2015, the FCC issued a rule indicating that it would cap credits available in future auctions. The Third Circuit concluded the FCC acted legally when it limited the bidding credits available to DEs. The Order: preserved a significant bidding credit program; reviewed data suggesting DE participation would continue despite the proposed caps; and altered other rules to make DEs more competitive. View "Council Tree Investors, Inc. v. Federal Communications Commission" on Justia Law

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Elliott worked in a coal mine until 1993 and developed a chronic cough. Three after his retirement, he developed more acute breathing problems. Elliott sought Black Lung Benefits Act, 30 U.S.C. 901–45, benefits in 2012. Helen Mining conceded it was the responsible employer, but challenged Elliott’s entitlement to benefits. The parties stipulated that Elliott had a totally disabling respiratory impairment. Because Helen Mining conceded disability and because Elliott demonstrated more than 15 years of employment, the ALJ determined that section 921(c)(4) applied and that the other elements, including causation, would be presumed, and shifted the burden to Helen Mining. Helen Mining offered the opinions of two doctors, attributing Elliott’s respiratory impairment to adult-onset asthma unrelated to coal dust exposure. The ALJ did not find their testimony persuasive, concluded that Helen Mining had failed to rule out coal dust-induced pneumoconiosis as a cause of Elliott’s disability, and awarded benefits. The Benefits Review Board upheld the award. The Third Circuit affirmed, upholding the application of the 2013 regulation, specifying the standard a coal mine operator must meet to rebut the presumed element of disability causation, 20 C.F.R. 718.305(d)(1). The regulation permissibly fills a statutory gap and Helen Mining did not meet that rebuttal standard. View "Helen Mining Co v. Elliott" on Justia Law

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Rodriquez was elected to serve in the Virgin Islands Legislature. After his election, plaintiffs sued, challenging Rodriquez’s qualifications. Plaintiffs had learned that Rodriguez had filed a bankruptcy petition in Tennessee, swearing that he was a resident of Tennessee. Rodriquez removed that suit to federal court and filed his own action against the 32nd Legislature of the Virgin Islands and its president, seeking a ruling that only the Legislature can decide who is qualified to serve in the Legislature. Because of an injunction issued by the Virgin Islands Superior Court, Rodriquez was not sworn in and has not taken a seat in the Legislature. The Governor of the Virgin Islands issued a proclamation calling for a special election to fill the vacancy.The Third Circuit affirmed the dismissal of Rodriguez's suit and dismissed an appeal of the removal. Because a judicial determination of whether Rodriquez is qualified to serve as a member of the Virgin Islands 32nd Legislature would infringe on the separation of powers between the Virgin Islands legislative and judicial branches, that action is no longer justiciable. Rodriquez does not having standing to appeal the district court’s removal order because he was a prevailing party. View "Rodriquez v. 32nd Legislature of the Virgin Islands" on Justia Law

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Third Circuit rejects "reverse" False Claims Act suit involving Small Business Administration. The SBA, a federal agency, provided $90 million to L Capital, a venture capital group, through the purchase of securities. L Capital invested $4 million in preferred shares of Simparel. The Certificate of Incorporation specified that Simparel must pay preferred shareholders accrued dividends if Simparel’s Board exercised its discretion to pay the dividends or if Simparel underwent liquidation, dissolution, or windup. The SBA was appointed as L Capital’s receiver after Simparel failed to comply with its funding agreement. Petras, Simparel’s Chief Financial Officer, claimed that this failure resulted in the SBA becoming a preferred shareholder, entitled to accrued dividends. The Simparel Board never declared dividends nor did Simparel undergo liquidation, dissolution, or windup. Petras claimed that the Simparel defendants engaged in fraudulent conduct—to which he objected—to avoid paying the contingent dividends: hiding Simparel’s deteriorating financial condition; failing to hold board meetings: and neglecting to send the SBA Simparel’s financial statements. The Third Circuit affirmed dismissal of the “reverse FCA” claim. The Simparel defendants could not have “knowingly and improperly avoid[ed] or decrease[d] an obligation” to pay the accrued dividends at the time of their alleged misconduct because the obligation did not yet exist. View "Petras v. Simparel, Inc." on Justia Law

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The Mirabellas alleged that their neighbors extended their backyard into wetlands owned by Montgomery Township, Pennsylvania by fencing the open space, placing playground equipment, and landscaping. They complained to the Township, which removed the fence, required the neighbors to move their playground equipment and required the neighbors to stop landscaping the open space. The Mirabellas alleged the neighbors continued to “cut and clear.” They continued to complain. The Township gave the neighbors permission to mow the open space. The Mirabellas, both attorneys, notified the Township Board that they intended to sue their neighbors and stated that, as the owner of the open space, “the Township will be an indispensable party.” Officials interpreted this as a threat that the Mirabellas would sue the Township and responded that the Township would seek sanctions. The Board’s chair, Walsh, emailed the Mirabellas to “direct all further communications to the Township attorney. Please never contact me, the Board of Supervisors or the Township employees directly.” The Mirabellas attended a Board meeting and protested the destruction of the open space and the emails. The Mirabellas filed suit under 42 U.S.C. 1983, alleging First Amendment violations. The district court rejected claims of qualified immunity. The Third Circuit reversed. While the Mirabellas adequately alleged a retaliation claim and a violation of their right to petition, those rights were not clearly established for purposes of qualified immunity. View "Mirabella v. Villard" on Justia Law

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Edinboro, a Pennsylvania public university, collaborated with Edinboro University Foundation, a nonprofit entity, to construct new dormitories. In 2008, the Foundation amended its Articles of Incorporation to authorize borrowing funds “to acquire, lease, construct, develop and/or manage real or personal property.” The University leased property to the Foundation in a favorable location; the Foundation issued bonds to raise the funds and completed construction. Since 1989, the University required non-commuting first-year and transfer students to reside on-campus for two consecutive semesters. Two and one-half years after the first phase of the new dormitories opened, the University amended its policy to require certain students to reside on-campus for four consecutive semesters. Businesses that provide off-campus housing sued, asserting that the University and the Foundation conspired to monopolize the student housing market in violation of the Sherman Act, 15 U.S.C. 2. Plaintiffs did not sue the University, conceding that it is an arm of the state subject to Eleventh Amendment immunity. The Third Circuit affirmed dismissal. The University’s actions are not categorically “sovereign” for purposes of “Parker” immunity, so the court employed heightened scrutiny, citing the Supreme Court’s decision in Town of Hallie v. City of Eau Claire, (1985), which requires anticompetitive conduct to conform to a clearly articulated state policy. The University’s conduct withstands Hallie scrutiny. The Foundation’s actions were directed by the University, so the Foundation is also immune. View "Edinboro College Park Apartments v. Edinboro University Foundation" on Justia Law

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Maliandi alleges that she began working for Montclair State University (MSU) in 2007 and took medical leave for breast cancer treatment in 2013. Despite having complied with all policies and procedures for taking such leave, Maliandi allegedly was denied her original position when she returned and instead was offered an inferior position, which she declined. She was subsequently terminated. Maliandi then filed suit against MSU, citing the Family Medical Leave Act, 29 U.S.C. 2601 and the New Jersey Law Against Discrimination, N.J. Stat. 10:5-1 to -49. The district court denied a motion dismiss, determining that MSU is not the state’s alter ego for purpose of Eleventh Amendment immunity. The Third Circuit reversed, applying a balancing test to the “close case” and concluding that MSU is an arm of the state. While the funding factor counsels against immunity the status under state law and autonomy factors weigh in favor of extending MSU immunity from suit. In analyzing the funding factor, the court considered the state’s legal obligation to pay a money judgment entered against MSU; alternative sources of funding from which MSU could pay such judgments; and specific statutory provisions that immunize the state from liability for money judgments. View "Maliandi v. Montclair State University" on Justia Law

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From 2009-2012, the federal government appropriated $150 million annually to the government of the Virgin Islands; Willis was Executive Director of the Legislature for the Virgin Islands, with authority to administer contracts. During Willis’s tenure, the legislature’s main building underwent major renovations. Willis was substantially involved in securing contractors. Three contractors later testified that they gave cash or other items of value to Willis to secure more government work or to ensure payment of their invoices. In 2010, the U.S. Department of the Interior audited the legislature’s administrative section while the renovations were taking place and concluded that the legislature had mismanaged public funds. After an investigation, an indictment issued for Willis’s prosecution on extortion charges (18 U.S.C. 1951(a)) and bribery charges (18 U.S.C. 666(a)(1)). The Third Circuit affirmed his conviction and five-year prison term, upholding admission of evidence of Willis’s prior acceptance of bribes. The indictment adequately alleged all required elements of bribery: the parties, the relevant amounts of money exchanged, where the illegal transactions occurred, that Willis used his public position unlawfully, specific details of each transaction, and improper purposes under the federal statutes. The government proved a sufficient nexus between Willis’s conduct or his status as Executive Director and a corresponding effect on federal funds. View "United States v. Willis" on Justia Law