Articles Posted in Government & Administrative Law

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Because the state proposed to use federal highway funds to widen Wisconsin Route 23, the U.S. Department of Transportation (USDOT) issued an environmental impact statement (EIS). USDOT made a record of decision (ROD) permitting the use of federal funds. Opponents filed suit. The court denied a request for an injunction because Wisconsin can proceed using its own money regardless of whether USDOT satisfied the requirements for a federal contribution, but set aside the ROD, finding that the statement projecting 2035 traffic loads had not adequately disclosed all assumptions. USDOT issued a revised EIS with additional details about how the traffic estimates had been generated. The district court reiterated the order vacating USDOT’s ROD. The judge stated that plaintiff was entitled to a declaratory judgment but neglected to issue one. The order setting aside the ROD was appealed by the Wisconsin Department of Transportation. The Seventh Circuit dismissed an appeal. USDOT did not appeal. Wisconsin remains free to continue the project at the state’s expense. The National Environmental Policy Act, on which the suit rests, applies only to the national government, 42 U.S.C. 4332(2)(C). Wisconsin cannot seek relief against a judgment that does not bind it. Wisconsin does not contend that USDOT had a statutory duty to fund the project, to prepare a better EIS, or to appeal the decision. View "1000 Friends of Wisconsin, Inc v. Wisconsin Department of Transportation" on Justia Law

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The Seventh Circuit upheld Milwaukee's residency requirement for law enforcement and emergency personnel. Milwaukee’s corporate charter previously required all city employees to live within city limits. In 2013, the Wisconsin legislature prohibited local governments from imposing a residency requirement as a condition of employment, exempting requirements that law enforcement, fire, or emergency personnel reside within 15 miles of jurisdictional boundaries. Milwaukee announced its intent to enforce its original residency requirement, citing the Wisconsin Constitution’s home‐rule provision. The Wisconsin Supreme Court rejected that argument. The city amended its charter to require all law enforcement, fire, and emergency personnel to reside within 15 miles of city limits, giving affected employees six months to comply, with extensions available for hardship. In a suit under 42 U.S.C. 1983, the Seventh Circuit affirmed judgment on the pleadings for the city. Municipal employees do not have a fundamental right to be free from residency requirements, for purposes of substantive due process. Rejecting a procedural due process argument, the court stated that no vested right was impaired. The amended charter does not apply retroactively. View "Milwaukee Police Association v. City of Milwaukee" on Justia Law

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Ulloa, a citizen of Mexico, married Morfin, a U.S. citizen. Morfin sought approval for his permanent residence, but Ulloa was present in the U.S. without authority and was required to return to Mexico to obtain a visa for lawful entry. He applied at the consulate in Juarez. After twice interviewing Ulloa, the State Department denied him a visa, stating that it had reason to believe that he is (or was) involved in drug trafficking. In 2001 Ulloa had been indicted for possessing more than 500 grams of cocaine, with intent to distribute. The U.S. Attorney dismissed the indictment and Ulloa denies the charge, but he lacks a favorable adjudication. The couple sued under the Administrative Procedure Act, 5 U.S.C. 702, alleging that the denial was arbitrary and not supported by substantial evidence. The district court found that it lacked jurisdiction because decisions on visa applications are committed to agency discretion and are outside the scope of judicial review under the APA. The Seventh Circuit affirmed. While the APA does not curtail jurisdiction granted by other laws, the consular officer gave a legitimate reason for denying Ulloa’s application. Precedent prevents the judiciary from reweighing the facts and equities. Whether Congress acted wisely in making “reason to believe” some fact sufficient to support the denial of a visa application is not a question open to review by the judiciary. View "Morfin v. Tillerson" on Justia Law

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Until 1997, Illinois residents could only purchase power from a public utility, with rates regulated by the ICC. The Electric Service Customer Choice and Rate Relief Law allows residents to buy electricity from their local public utility, another utility, or an Alternative Retail Electric Supplier (ARES). The ICC was not given rate-making authority over ARESs, but was given oversight responsibilities. The Law did not explicitly provide a mechanism for recovering damages from an ARES related to rates. Zahn purchased electricity from NAPG, after receiving an offer of a “New Customer Rate” of $.0499 per kilowatt hour in her first month, followed by a “market-based variable rate.” Zahn never received NAPG’s “New Customer Rate.” NAPG charged her $.0599 per kilowatt hour for the first two months, followed by a rate higher than Zahn’s local public utility charged. Zahn filed a class-action complaint, claiming violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of contract, and unjust enrichment. The court dismissed for lack of subject-matter jurisdiction, or for failure to state a claim. After the Illinois Supreme Court answered a certified question, stating that the ICC does not have exclusive jurisdiction to hear Zahn’s claims, the Seventh Circuit reversed. The district court had jurisdiction and Zahn alleged facts that, if true, could constitute a breach of contract or a deceptive business practice. View "Zahn v. North American Power & Gas, LLC" on Justia Law

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Dana operates a Summit, Illinois truck‐tank washing facility. Dana employees drain residual product from the truck’s metal tank; insert a mechanical spinner that rotates scrubbers, dousing it with soap or solvents; then rinse the tank with water. Occasionally, employees have to enter a tank and manually clean residual sludge. OSHA has regulations for entering these “permit‐required confined spaces (PRCSs),” 29 C.F.R. 1910.146: the employee must obtain an entry permit and checklist of required safety precautions; must hook a full‐body harness to a mechanical retrieval device that can pull him out of the tank; must test the tank air; and must wear a respirator and conduct continuous atmospheric testing. While an employee is in the tank, automatic blowers force fresh air into it. Another employee must be on standby. Employees may not enter a tank before it has been mechanically cleaned. Fox encountered a problem with a tank before beginning the mechanical cleaning. He entered the tank without attaching the retrieval device or following permit procedures. After a short time, another employee saw Fox unconscious in the chemical sludge and called the fire department. A TV news crew broadcast the rescue. An OSHA inspector saw it; she arrived at the facility within three hours of the accident, inspected and issued citations for serious and willful violations of the Occupational Safety and Health Act. An ALJ vacated some of the citation items, finding that Dana qualified for the less stringent “alternate entry procedures.” The Commission held that Dana was not eligible for the alternate entry procedures and reinstated the citation items. The Seventh Circuit rejected a petition for review. Dana did not provide a compelling reason to overturn the Commission’s determinations. View "Dana Container, Inc. v. Secretary of Labor" on Justia Law

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In 2009, the Social Security Administration notified Casey that he needed to repay about $334,000 in disability benefits he should not have received. Casey unsuccessfully sought a waiver. Six months later, Casey submitted an untimely request for review to the Appeals Council, arguing that he had good cause for his delay. The Appeals Council extended Casey’s deadline to submit evidence or a statement in support of his waiver claim; 15 months later, the Council reversed course, informing Casey that it had dismissed his review request because there was “no good cause to extend the time for filing.” Casey then sued the Acting Commissioner of Social Security. The district judge dismissed. The Seventh Circuit reversed. The Council's action in first granting and then retroactively denying Casey’s good cause request was arbitrary, having the effect of an unfair bureaucratic bait‐and‐switch. The Council had discretion to determine initially whether Casey offered good cause for his late administrative appeal, but, having granted Casey’s request, the Council could not simply change its mind on the theory that he had not adequately justified his delay, after leading him on for over a year without suggesting he needed to provide more information, an affidavit, or anything else by way of support. View "Casey v. Berryhill" on Justia Law

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Indiana’s 2015 Vapor Pens and E-Liquid Act regulates the manufacture and distribution of vapor pens and the liquids used in e-cigarettes, Ind. Code 7.1-7- 1-1. The Act has extraterritorial reach and imposed detailed requirements of Indiana law on out-of-state manufacturing operations. It purported to regulate the design and operation of out-of-state production facilities, including requirements for sinks, cleaning products, and even the details of contracts with outside security firms and the qualifications of those firms’ personnel. The Seventh Circuit reversed dismissal of a challenge to the Act. Imposing these Indiana laws on out-of-state manufacturers violates the dormant Commerce Clause. Indiana has ample authority to regulate in-state commerce in vapor pens, e-liquids, and e-cigarettes to protect the health and safety of its residents, by prohibiting sales to minors and requiring child-proof packaging, ingredient labeling, and purity. The requirements for in-state production facilities pose no inherent constitutional problems. Indiana may not, however, try to achieve its health and safety goals by directly regulating out-of-state factories and commercial transactions. View "Legato Vapors, LLC v. Cook" on Justia Law

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Builders Bank is insured and regulated by the Federal Deposit Insurance Corporation (FDIC), which conducts a “full‐scope, on‐site examination” every 12-18 months, 12 U.S.C. 1820(d). After a 2015 examination, the FDIC assigned the Bank a rating of four under the Uniform Financial Institutions Rating System, which has six components: capital, asset quality, management, earnings, liquidity, and sensitivity (CAMELS). The highest rating is one, the lowest five. The Bank claims that its rating should have been three and that the lower rating was arbitrary and capricious. The Seventh Circuit vacated the district court’s dismissal. The presence of capital as one of the CAMELS components does not necessarily mean that the rating as a whole is committed to agency discretion for the purposes of 5 U.S.C. 701(a)(2). The FDIC has discretion to set appropriate levels of capital for each institution, 12 U.S.C. 3907(a)(2), but the Bank argued that it takes the FDIC’s capital requirements as given and challenged only its application of the “asset quality, management, earnings, liquidity, and sensitivity” factors. The court did not determine whether other components of a CAMELS rating may be committed to agency discretion. View "Builders Bank v. Federal Deposit Insurance Corp." on Justia Law

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Childress unsuccessfully sought Social Security Administration disability benefits in 2008, at age 35. He appealed to the district court, which remanded for reevaluation of the medical opinions in the record and reconsideration of the plaintiff’s credibility. After a second hearing, in 2013, the same ALJ again ruled that Childress was not disabled. The district court affirmed. The Seventh Circuit reversed. The ALJ did not give proper weight to medical evidence presented by Childress’s treating physicians, which was extensive and indicated that Childress suffers from congestive heart failure, cardiomyopathy, severe asthma, COPD (chronic obstructive pulmonary disease), occasional chest pain, obesity, hypertension, and dyspnea (difficult or uncomfortable breathing, resulting in shortness of breath). He was prescribed Advair, Benazepril, Coreg, Diovan, Lanoxin, Lasix, Norvasc, Proventil, and Spiriva, but the cardiologist estimated that in an eight‐hour workday Childress would be able to stand or walk for no more than one hour and to sit for no more than two hours. The court characterized the ALJ’s conclusion as “absurd,” noting that the vocational expert admitted that an employee who misses three or more days of work a month is unemployable. The court also noted the ALJ’s reference to Childress’s history of smoking. View "Childress v. Colvin" on Justia Law

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Brown applied for disability benefits on the ground that her bad back and obesity left her in too much pain to work. The Social Security Administration denied Brown’s application; an administrative law judge upheld the denial, concluding that Brown could perform sedentary work associated with six jobs identified by a vocational expert. The Seventh Circuit vacated and remanded, holding that the ALJ violated the Treating Physician Rule when he rejected certain opinions proffered by Brown’s doctor regarding Brown’s ability to sit and stand for prolonged periods of time. In substituting his own opinions for the doctor’s, the ALJ focused on facts that did not directly pertain to sitting or standing and misrepresented multiple statements Brown made to treatment providers and others. The court rejected arguments that the ALJ insufficiently considered her obesity and improperly relied on the vocational expert’s testimony from the administrative hearing, claiming that the expert failed to provide enough information to justify her departure from the Dictionary of Occupational Titles and failed to verify the source of the data on which her jobs-related opinions were based. View "Brown v. Colvin" on Justia Law