Articles Posted in Government & Administrative Law

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The Fourth Circuit held that the district court did not abuse its discretion in declining to grant preliminary injunctive relief under section 10(j) of the National Labor Relations Act (NLRA), 29 U.S.C. 160(j), as requested to preserve the ability of the National Labor Relations Board to award relief after the completion of the ongoing agency process adjudicating unfair labor practice charges against two hospitals because the Board failed sufficiently to demonstrate that the effectiveness of its remedial power was in jeopardy in this case. A union filed unfair labor practice charges with the Board alleging that two hospitals had refused to bargain collectively and in good faith with the union. The Board later filed petitions in the district court against the hospitals under section 10(j) requesting preliminary injunctions - pending the final disposition of the matters pending before the Board - that would direct the hospitals to bargain with the union in good faith. The Board alleged that preliminary injunctive relief was necessary to prevent declining employee support for the union. The district court declined to grant relief. The Fourth Circuit affirmed, holding that the Board’s arguments for injunctive relief failed to demonstrate that the Board’s ability to redress the alleged unfair labor practices will be impaired or frustrated. View "Henderson v. Bluefield Hospital Co." on Justia Law

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The Fourth Circuit held that agency decisions that provided necessary approvals for the Atlantic Coast Pipeline (ACP) were arbitrary and capricious. In Case No. 18-1083, petitioners challenged the Incidental Take Statement (ITS) authorizing the pipeline to take five species listed as threatened or endangered. The court held that, although FWS was not required to set a numeric limit, it can only use a habitat surrogate if it demonstrates a causal link between the species and the delineated habitat, shows that setting a numerical limit was not practical, and set a clear standard for determining when incidental take is exceeded. In this case, FWS failed some or all of these requirements for all five challenged species, and thus the agency's take limits were not enforceable. In Case No. 18-1082, petitioners argued that NPS lacked the authority to grant a right-of-way to a gas pipeline and that doing so violated the statutory mandate that agency decisions not be inconsistent with the Parkway's conservation purpose. The court assumed that NPS had the requisite statutory authority but held that NPS did not explain how the pipeline crossing was not inconsistent with the purposes of the Parkway and the overall National Park System. View "Sierra Club v. National Park Service" on Justia Law

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The Fourth Circuit granted petitions for review of the BLM's decision granting a right of way through federal land for construction and operation of a pipeline proposed by MVP, and the Forest Service's decision to amend the Jefferson National Forest Land Resource Management Plan to accommodate the right of way and pipeline construction. The court held that the Forest Service violated the National Environmental Policy Act (NEPA) by adopting an environmental impact statement (EIS) without undertaking the required independent review of the EIS's sedimentation analysis. Because the Forest Service acted arbitrarily and capriciously, the court remanded for further explanation. The court deferred to the agencies conclusions on the issue of forest effects and rejected petitioners' claims as to the Draft EIS. However, in regard to petitioners' claims under the National Forest Management Act, the court held that the requirements in the 2012 Planning Rule were directly related to the instant Forest Service amendments to the Jefferson Forest Plan and the Forest Service acted arbitrarily and capriciously in concluding otherwise. Therefore, the court remanded to the Forest Service for proper application of the Planning Rule soil and riparian requirements to the Forest Plan amendment. Finally, the court held that the BLM failed to acknowledge its obligations under the Mineral Leasing Act (MLA) and remanded for further proceedings. View "Sierra Club v. USFS" on Justia Law

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The Fourth Circuit affirmed the district court's dismissal of plaintiffs' action against Mountain Valley Pipeline, FERC, and the Acting Chairman of FERC, challenging the constitutionality of various provisions of the Natural Gas Act. The court held that it need not reach the merits of the challenges because the claims must be dismissed for lack of subject matter jurisdiction. The court explained that, under the two-step analysis in Bennett v. SEC, 844 F.3d 174 (4th Cir. 2016), Congress intended to divest district courts of jurisdiction to hear the claims pursued by plaintiffs and instead intended those claims to be brought under the statutory review scheme established by the Natural Gas Act. View "Berkley v. Mountain Valley Pipeline, LLC" on Justia Law

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The Secretary appealed the district court's order enjoining him from enforcing a Medicaid policy set forth in a Frequently Asked Questions document (FAQ 33), which purported to clarify the methodology for calculating the maximum amount of financial assistance available to hospitals, like Children's Hospital, that serve a disproportionate number of low-income or special needs patients (DSHs). The Fourth Circuit held that the district court correctly determined that the policy set forth in FAQ 33 constituted a "legislative rule" and thus the Administrative Procedure Act mandated that the agency establish the FAQ 33 policy through notice-and-comment rulemaking. Therefore, the court affirmed the district court's judgment enjoining the Secretary from enforcing the policy set forth in FAQ 33 against Children's Hospital. The court declined to reach the substantive challenge and vacated the part of the district court's opinion addressing whether the policy conflicts with the language of 42 U.S.C. 1396r-4(g). View "Children's Hospital v. Azar" on Justia Law

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Plaintiffs filed suit alleging that the EPA failed to perform its nondiscretionary duty under the Clean Water Act to promulgate pollutant limits for biologically impaired waters in West Virginia. The court held that plaintiffs have standing to bring the claim, but reversed the district court's grant of summary judgment for plaintiffs. In this case, because West Virginia has demonstrated that it is making — and will continue to make — good-faith efforts to comply with SB 562, and because West Virginia has a credible plan in concert with the EPA to produce ionic toxicity total maximum daily loads, if the constructive submission doctrine were to apply, it would not be satisfied. View "Ohio Valley Environmental Coalition, Inc. v. Pruitt" on Justia Law

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The Fourth Circuit vacated the district court's dismissal of plaintiff's claim that PDR Network violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, by sending unsolicited advertisement by fax. Plaintiff argued that the district court erred in declining to defer to a 2006 Rule promulgated by the FCC that interpreted some provisions of the TCPA. Plaintiff specifically contended that the Hobbs Act, 28 U.S.C. 2342 et seq., required the district court to defer to the FCC's interpretation of the term "unsolicited advertisement." Furthermore, plaintiff claimed that the district court erred by reading the rule to require that a fax have some commercial aim to be considered an advertisement. The court held that the Hobbs Act deprived district courts of jurisdiction to consider the validity of orders like the 2006 FCC Rule, and that the district court's reading of the 2006 FCC Rule was at odds with the plain meaning of its text. View "Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC" on Justia Law

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The Fourth Circuit vacated the district court's dismissal of plaintiff's claim that PDR Network violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, by sending unsolicited advertisement by fax. Plaintiff argued that the district court erred in declining to defer to a 2006 Rule promulgated by the FCC that interpreted some provisions of the TCPA. Plaintiff specifically contended that the Hobbs Act, 28 U.S.C. 2342 et seq., required the district court to defer to the FCC's interpretation of the term "unsolicited advertisement." Furthermore, plaintiff claimed that the district court erred by reading the rule to require that a fax have some commercial aim to be considered an advertisement. The court held that the Hobbs Act deprived district courts of jurisdiction to consider the validity of orders like the 2006 FCC Rule, and that the district court's reading of the 2006 FCC Rule was at odds with the plain meaning of its text. View "Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC" on Justia Law

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The Fourth Circuit affirmed the Board's holding that Frontier-Kemper was responsible for the payment of benefits to a coal miner under the Black Lung Benefits Act (BLBA), 30 U.S.C. 901 et seq. Frontier Constructors and Kemper Construction formed a partnership that worked on heavy construction projects. The Partnership later reorganized into a newly-formed corporation, Frontier-Kemper. The court agreed with the Board that Frontier-Kemper was a successor operator and that the miner's employment with both Frontier-Kemper and the Partnership could be combined in determining Frontier-Kemper's potential liability; there was no retroactive effect in applying the expanded definition of "operator" to the Partnership for the purpose of combining the miner's employment there with his later work at Frontier-Kemper; and the ALJ correctly found that the miner worked for Frontier-Kemper and the Partnership cumulatively for at least one year. View "Frontier-Kemper Constructors, Inc. v. DOWCP" on Justia Law

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The Fourth Circuit affirmed the denial of Westmoreland's petition for review of the Board's final decision and order granting federal disability benefits to plaintiff, a retired coal miner, under the Black Lung Benefits Act, 30 U.SC. 901 et seq. The court held that substantial evidence supported the ALJ's decision and order to award plaintiff benefits and the decision otherwise accords with applicable law. In this case, plaintiff timely brought his claim; given the array of evidence presented, substantial evidence supported the ALJ's calculation of plaintiff's smoking history; the ALJ did not err in rejecting Dr. Rosenberg's opinion regarding the ability to show particularized causation; and the ALJ did not reversibly err in concluding that Westmoreland failed to carry its "strict" and "substantial" burden to completely rule out coal dust exposure as a cause of plaintiff's disability. View "Westmoreland Coal Co. v. Stallard" on Justia Law