Ninth Circuit: Decker Coal v. Pehringer

 

ALJ decisions on motions for reconsideration or modification of award under the statute are reviewed for abuse of discretion, since the statute grants the ALJ broad discretion, and judgments on motions to reopen and reconsider in other areas of law receive similar deference.

As the ALJ's have no policymaking role and are employed in the implementation of the statute at the discretion of the Executive, the protections against removal of ALJ's so employed do not violate Article II powers of the Executive.

ALJ's are judges who make decisions that are subject to vacatur by people without tenure protection.  Properly appointed ALJ's don't trammel on the President's executive power.

Finding of inproper removal protections would not imperil the decisions of a lawfully appointed ALJ that have been susbsequently ratified by the Secretary.

Given the specific procedure in the statute, ALJ did not abuse discretion in denying motion to reconsider and modify; the statute empowers the agency to administratively modify the finding, and specifically forbids the initiation of a reconsideration before an ALJ.  Given the interest in finality, no abuse of discretion in denying motion to reopen.

Once the presumption arising from fifteen years of work in similar considtion arises, the burden shifts to the employer to disprove total disability due to pneumoconiosis.  

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/20-71449.pdf

Ninth Circuit: Michael Sackett v. U.S. Environmental Protection Agency

 

Case was not made moot by agency's withdrawal of an enforcement order, where the underlying determination of jurisdiction remained,  since it was not absolutely clear that the agency would not seek to reinstate the order.

Although the government enjoys a presumption of good faith in voluntary cessation, it must demonstrate that its change is entrenched or permanent.

Court did not abuse its discretion in admitting memo postdating the relevant decision, since the memo summarizes the same information that the agency relied upon, rather than being a post hoc justification.

Under Supreme Court precedent, EPA jurisdiction over wetlands requires a significant nexus with navigable waters, rather than the freer standard set out by the plurality in that case, since the first standard is a logical subset of the plurality's rule.

Agency's conculsion that painiffs' wetlands have a sufficient nexus to navigable waters wasn't arbitrary, and was supported by the record.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/19-35469.pdf

Seventh Circuit: Ronald Schmucker v. Johnson Controls, Incorporated

 

Under the statute, a citizen suit claiming that an agency is not following regulations can't look at documents not having legal force to supply missing terms in the regulations and standards.

Court appropriately held that, given existing remediation, there was insufficient imminent and substantial endangerment to the town for the citizen suit to prevail under the statute.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-16/C:20-3432:J:Easterbrook:aut:T:fnOp:N:2748372:S:0

Eleventh Circuit: Ridgewood Health Care Center, Inc., et al v. National Labor Relations Board, et al

 

Board's decision that the rehiring interviews by the allegedly successor organization were unduly coercive was insufficiently reasoned, as the legal standard wasn't identified and the relevant factors weren't reviewed.  Where both the Board and the ALJ issue unsupported decisions, but the facts are apparent in the record, the issues can be addressed on appellate review.  As the questions were answered truthfully, there was no systematic attempt to inquire as to union membership, and no interviewee suggested coercion, the second employer did not unduly coerce during rehiring.  

Second employer's statement that they might have to close the facility if it were to become unionized wasn't in itself a threat, and it was insufficient to demonstrate animus relevant to the refussal to hire members of the union. (The statement was also too attenuated in time and after the fact.)

Anumus of a lower-level supervisor can't be attributed to the decisionmakers who declined to hire the union members.

Absent the discriminatory hiring claim, the second business wan't a successor organization, as a moajority of its employees were not former employees of the first business.

https://media.ca11.uscourts.gov/opinions/pub/files/201911615.pdf

Tenth Circuit: Hooks v. Yandell, et al.

 Sufficient evidence for agency's determination that expert affidavit describing changed country conditions did not adequately set out a basis for the threat to a child of an ethically and religiously diverse family -- the affidavit seperately described the threat faced by each group, but not the threat to the child of such a family.

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110560738.pdf

Eight Circuit: Awil Mohamed v. Merrick B. Garland

 

Where there is a thresold event necessary for the violence that petitioner claims would result from deportation, the court should consider the sequence of events, rather than the risk factors in the aggregate.

Board did not impermissably find facts when pointing out that, given the situation in the country, the probablility of the adverse events occuring was low.

For purposes of the statute, a government unable but not unwilling to stop the torture does not acquiesce in it.

DISSENT

Considering the risk factors in the aggregate is consistent with governing law.  Board found facts, and they don't necessarily establish that it isn't more likely than not that petitioner will be tortured.

http://media.ca8.uscourts.gov/opndir/21/08/201829P.pdf

Ninth Circuit: Wilber Acevedo Granado v. Merrick Garland

 

In ruling the proposed social group insufficiently particular, the IJ erred in not considering the clinical definition of people with intellectual disabilities; the common law definition does not necessarily control.

Although the proposed group of people with intellectual disabilities might commonly be mixed with people with mental illness generally, the relevant question for social distinctiveness is whether the difference can be discerned sufficiently for that subset to face increased persecution.  Discrimination based on the manifest symptoms is equivalent to discrimination against the group.

Proposed second social group was insufficiently responded to by the agency, and its rejection was insufficiently reasoned by the IJ.

Petitioner's claim of risk of torture insufficient under the Convention, since the attacks by police are cases of mistaken identity, and maltreatment by the medical workers because of overcrowding and lack of knowledge.

Wilber Acevedo Granado v. Merrick Garland

Sixth Circuit: Brian Lyngaas v. Curaden AG

 

Because evidence establishes a business plan for eventual profitability undercapitalization is not per se proof of being a mere instrumentality of another corporation.

As there is no culpable conduct establishing that the foreign corporation used their control over the domestic corporation to effect a fraud or wrong on the complainant, there is insufficient basis to piece the corporate veil.

Jurisdiction is proper in the district under the FRCP, since the cause of action arises under federal law, the foreign entity is not within the jurisdiction of any other state, and the exercise of jurisdiction is consistent with the US constitution and laws.

Under Fifth Amendment due process, foreign company sufficiently purposefully availed itself of the American market generally by launching the domestic company and retaining a measure of control over it. The marketing faxes at issue sufficiently relate to the purpose of these minimum contacts, even though the foreign company might not be culpable for the sending of the faxes.  Asserting first US jurisdiction over the foreign company is reasonable, since there is a federal interest in the enforcement of the laws, and the plaintiff will not be able to find financial redress from the domestic corporation.

The regulation making culpable under the statute the person whose goods and services are advertised only applies to persons who have some level of knowledge that an unsolicited fax has been sent.

Consistent with agency findings, fax-to-computer transmissions are within the Act, as the receiving machine has the capacity of transcribing the image to paper.

Given proffer of eventual admissibility, the class was correctly certified using unauthenticated telephone logs, as nonexpert evidence may be sufficiently probative at the early stages of the litigation.

As the logs were generated by a machine, they were not hearsay -- hearsay requires the assertion of a person.  Court correctly excluded expert testimony.

List of affected phone numbers reasonably necessitated the claims administration procedure.

In a federal class action, the court need not have personal jurisdiction over the defendant as to each plaintiff.  The question of jurisdiction looks to the relationship between the defendant, the forum, and the litigation -- it does not depend on unnamed class members.  

CONCURRENCE/ DISSENT:

As state courts couldn't resolve the clams of out of state class members, neither can federal courts resolve the claims of those outside its jurisdiction. 

14A Determines the due process limits on federal jurisdiction under the 5A  in federal court.

The statute doesn't apply to faxes received on computers, since, on its own, a computer can't receive messages from a phone line or print the fax on paper; additionally, Congress listed computers as senders, but not receivers.  

Brian Lyngaas v. Curaden AG

Fifth Circuit: Nguhlefeh Njilefac v. Garland

 

Board did not abuse its discretion in discounting the value of affidavits with an attestation that didn't swear to the veracity of the affidavit, although the form used would be acceptable in an Article III court in the circuit.

Board's presumption of delivery is not so irrational as to become arbitrary, especially given the factual context, including lack of return to sender and previous successful deliveries to the address.

Nguhlefeh Njilefac v. Garland

Second Circuit: New York State Dep’t of Env’t Conservation et al. v. Fed. Energy Regul.

 

Given the tolling orders issued by the agency, the sixty-day period for seeking judicial review of agency action wasn't a jurisdictional limit that commenced by operation of law at the point at which agency inaction might have been construed as a denial; the permissive "may" allows the challenger to wait for final action by the agency.

Statute is a mandatory time period for agency action, since it both defines the action and specifies the result of inaction.  Since this time limit is designed to protect the regulatory structure rather than individual private applicants, the agency cannot contract or coordinate with the applicants to extend the time-frame.

Federal agency review might have reached the question of waiver sua sponte or on motion of a third party, so the fact that the party challenging the waiver had been a party to the waiver agreement did not estop the federal agency review from reaching the question.

Agency's policy allowing them to construe a request for expedited action as a request for a waiver determination was a reasonable construction of their statutory powers.

New York State Dep’t of Env’t Conservation et al. v. Fed. Energy Regul.

Federal Circuit: Kimble v. US

 

Given that the taxpayer knew that they had a foreign bank account, the taxpayer didn't tell their accountant about the account, and the taxpayer signed the tax return, the court did not clearly err in finding a willful or reckless violation of the law.

The maximum penalty looks to the statute, rather than the regulation, since they contradict.

No error in mitigation, since the relevant mitigation guideline imposes the maximum penalty on accounts over a million dollars in value.

A foreign bank account is not in itself a property interest sufficient to establish a significant contact with the foreign country.

Plaintiff did not establish grounds for mitigation where the taxpayer is beneficiary of only part of the proceeds of the account.

Reference to an excess penalty in the filing did not preserve an Eighth Amendment claim.

Kimble v. US

Eighth Circuit: Jose Gutierrez-Gutierrez v. Merrick B. Garland

 

Although the immigration removal order signed at the end of the earlier proceedings was signed by the prosecuting authority at the direction of the IJ, there is sufficient evidence of a proper removal order, since both that version and a version later signed by the judge are in the administrative record.

Proper inspection and a procedurally regular admission at the border did not establish a lawful entry, since the statute prohibited entry for ten years after the earlier removal.

Board's correctly determined that, given the phrasing of the current statute, there is no miscarriage of justice exception to the prohibition on reopening a reinstated removal order.

Jose Gutierrez-Gutierrez  v.  Merrick B. Garland

Seventh Circuit: Apostolos Xanthopoulos v. LABR

 

Board's determination that, since the latter reports were not seeking precisely the same statutory remedy, earlier reports filed with the regulator did not equitably toll the statute of limitations for the second remedy, was sound and supported by adequate evidence.  

Apostolos Xanthopoulos v.  LABR

First Circuit: Thile v. Garland

 

Agency's decision that petitioner had not established state of citizenship was supported by substantial evidence, given the small amount produced after continuance, and lack of explanation for the limited amount of proof.

IJ did not have to make a formal adverse credibility finding to justify rejection of the petitioner's claim as to country of citizenship and requirement of additional evidence.

Under firm resettlement principle, claim against deportation is heard based on the country from which the petitioner came to the US, and from which he held a valid passport, which, since logically possible, creates an inference of sufficient opportunity for permanent residence.

Thile v. Garland

Tenth Circuit: Blanca Telephone Company v. FCC

 

The required return of federal funds was not a penalty or a disgorgement, and therefore was not subject to the statutes of limitations on sanctions by the agency and administrative penalties generally.  Instead, the funds were monies due the United States under the federal debt collection act, since the improper use had been discovered by an audit by the agency's inspector general, a predicate of the debt collection act.

Although the regulations were complex, there was sufficient notice of the regulation for due process purposes, given the common understanding of the relevant group -- here the specialized knowledge of a telecommunications carrier.

Although the hearing must be held at a time when the deprivation can be prevented, that does not necessarily mean that it must happen before the agency has reached its decision to deprive.  Agency collection proceedings during the pendency of the litigation did not raise constitutional concerns.

Agency's interpretations of the regulations were not arbitrary and capricious.

Incomplete record provided in the current litigation did not prejudice the plaintiff, and the incomplete record offers sufficient grounds for the agency's decision.

Blanca Telephone Company v. FCC

Ninth Circuit: Aguilar-Osorio v. Garland

 

The proposed social group of people who might testify against certain criminal organizations is, unlike in some other countries, not independently socially recognizable and distinct.

As the IJ referred to the irregular evidence offered in support of the argument suggesting future torture, the exhibit was admitted by judicial notice, and the Board needed to account for its claims in their decision.

DISSENT:

The irregular evidence isn't in the appellate record, so the Board can't account for it on remand, and the evidence itself is mixed as to the claim.

Aguilar-Osorio v. Garland

Ninth Circuit: Rodriguez v. Garland

 

Agency did not abuse its discretion in refusing to reopen an immigration proceeding on the basis of changed country conditions, as the petitioner did not produce evidence of a material change in the conditions within the country; while a change in personal circumstances can make the changed conditions more relevant to the petition, even such a hybrid claim would require a showing of changed conditions to reopen the proceeding.

Rodriguez v. Garland

Eighth Circuit: Kathy Swedberg v. Andrew Saul

 

Vocational expert was present during recitals of sufficient evidence to support their later findings, and the determinations were reached by appropriate hypothetical questions from the ALJ made without contemporaneous objection.

Kathy Swedberg  v.  Andrew Saul

First Circuit: Cuesta-Rojas v. Garland

 

Since the only record of the telephone interview was the investigator's notes, although the report of the investigator is entitled to a presumption of regularity, the discrepancies between the conversation as recorded in the notes and the other interviews of the petitioner do not offer sufficient evidence for the agency's determination.

Cuesta-Rojas v. Garland

Sixth Circuit: Vitalina Lucas Lopez v. Merrick B. Garland

 

Agency did not have to provide alien faced with removal proceedings notice in their native language; a notice in English sufficiently puts the recipient on notice that language assistance will need to be secured.

No authority to review IJ's refusal to sua sponte reopen prior proceeding that resulted in removal order in absentia.

Vitalina Lucas Lopez v. Merrick B. Garland