Sixth Circuit: Inner City Contracting LLC v. Charter Twp. of Northville

 Despite being a disappointed bidder for a government contract, the plaintiff alleged a specific injury, and therefore the claim isn't presumptively disfavored for purposes of standing. The dignitary harm in racial discrimination and the lost profits from the contract suffice for Article III standing.

A corporation's claim of racial discrimination falls within the zone of interests of the statute prohibiting racial discrimination in contract awards. Supreme Court holding saying that a corporation has no racial identity referred to constitutional standing, not statutory standing.  

Claims against state government entities must be under the general statute (S1983), as there is no cause of action against states under the particular statute.  Under the general statute, establishing that a contract was awarded to a higher bidder of a certain race states a claim absent any proffer as to the racial identity of the plaintiff corporation.

Private company reviewing bids and making a recommendation wasn't a state actor for purposes of the statute. Lack of investigation of bidding process insufficient for municipal liability.  No equal protection or due process claim where alleged discrimination was by the private entity of a private-public collaboration. No property interest in a lost contract bid, where the state actor had discretion to accept the bid.

Inner City Contracting LLC v. Charter Twp. of Northville

 

DC Circuit: Selvin Solis Meza v. Tracy Renaud

 

Since the plaintiff is seeking to relitigate a question decided adversely in a removal hearing, the question arises from the removal action or proceeding; Article III review is therefore limited by statute to narrow areas, including timely challenge to final order of removal.

https://www.cadc.uscourts.gov/internet/opinions.nsf/6702971D442C34F285258734004E5347/$file/20-5079-1910446.pdf

DC Circuit: Gunay Miriyeva v. USCIS

 

Statutory judicial review mechanism for denied naturalization applications implicitly forecloses parallel district court jurisdiction due to the fairly discernible intent of the comprehensive and interrelated statutory scheme, the fact that the exclusive remedy would not foreclose meaningful review, and the fact that the requested relief -- a change in agency policy that would be dispositive for the plaintiff's case -- is not wholly collteral to the statute's provisions.

https://www.cadc.uscourts.gov/internet/opinions.nsf/BC7CB0DD9CAE2B6285258734004E532E/$file/20-5032-1910440.pdf

Tenth Circuit: Lupia v. Medicredit

 Although insufficient harm under common law, the improper phone call from a debt collection agency was of the same kind of harm recognized at common law as intrusion upon seclusion, and Congress addressed this type of harm in the creation of the statute.

Summary judgment for the nonmovant wasn't on novel grounds of which the movant had insufficient notice; the nonmovant is entitled to point out that the motion for summary jusgment is unsupported by the evidence. 

Bona fide error defense unavailable as a matter of law, since no reasonable jury could find that the policies were designed to avoid the making of unauthorized calls.

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110562706.pdf

Sixth Circuit: Carl Ward v. Nat'l Patient Account Servs

 

Plaintiff does not have standing under the statute to challenge the lack of sufficient identification of the debt collector, which resulted in the sending of correspondence to the wrong company, since the error does not bear a close relationship to traditional harms, and confusion is insufficient concrete injury.

https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0182p-06.pdf

Seventh Circuit: Sonja Pennell v. Global Trust Management, LLC

 

Stress and confusion caused by the receipt of dunning letter is insufficient Article III injury for standing to sue under the debt collection statute.

Sonja Pennell v. Global Trust Management, LLC

Federal Circuit: Columbus Regional Hospital v. US

 

Disaster support agreement between federal agency and state was an enforceable contract, not a gratuitous provision of resources.

Nonfrivolous assertion of contractual breach by the government sufficed for Claims Court jurisdiction.

Request for assistance and project worksheets did not constitute an express contract; as there was no mutual intent to contract, there was not an implied in fact contract.

As a component of local government, hospital's claim to be a third party beneficiary of a contract between the state and the federal agency is sufficient to state a claim, since the contract named the locality.

As the funds were provided to the hospital contingently, and subject to express conditions, the recoupment of the funds was not an illegal exaction.

Although the requested recovery of funds is equitable it is materially indistinguishable from a claim for reimbursement, and the claim is essentially contractual in nature, giving clear jurisdiction to the Claims Court, an adequate non-APA judicial remedy preferred by statute.

Columbus Regional Hospital v. US

Fifth Circuit: Edwards Family Partnership, et al v. Johnson, et al

 

Under the bankruptcy statute, the Trustee's interest in litigation relating to the estate is not pecuniary, but rather the obligation to administer the estate, and is therefore not extinguished by an agreement between rival claimants.

The reasonableness of litigation expenses is determined by asking whether it was an abuse of discretion at the time of the expense, not by an after the fact determination of the merits of the claim.

Edwards Family Partnership, et al v. Johnson, et al

Fifth Circuit: Michelle Cochran v. SEC, et al

 

Given the intent of the statute and the possibility of resolving the question against the agency on non-constitutional grounds, the statutory post-enforcement judicial review provision strips subjects of agency civil procedings of general federal question right of intelocutory Article III review challenging the constitutionality of the appointment and removal scheme of the ALJ.

Dissent in part:

Case distinguished from precedent and from the type contemplated by the jurisdiction-strip statute; challenge to the ALJ appointment scheme doesn't implicate constitutional avoidance, outside agency expertise.

Michelle Cochran v. SEC, et al

DC Circuit: American Hospital Association v. Alex Azar, II

Jurisdiction-strip statute circumscribed by ultra vires agency actions -- if actions were in excess of the statutory authority - even if not plainly and clearly so -  the jurisdiction strip doesn't apply.

Where the jurisdiction strip merges with merits, deference still applies, since otherwise there would be a wider scope of review, contrary to law's intent.

Implementation provisions referencing statute that the agency is interpreting doesn't preclude implementation rulemaking as to the latter, since the latter recites other implementation mechanisms.

Agency reading is reasonable, given text and statutory context, so jurisdiction strip applies.

Arguendo, even without a basis for Article III jurisdiction, under statutory jurisdiction, the rulemaking doesn't conflict with a law regulating such reimbursements.

American Hospital Association v. Alex Azar, II

DC Circuit: Grace v. William Barr

District court had sufficient statutory jurisdiction to review policy document addressing substantive law invoked by the procedural law subject to judicial review; challenge in individual cases would prove impractical.

Policy change announced in agency adjudication not insulated from review by the bar on review of individual cases; separate jurisdiction strip statute evaded in this case, as the policy affects both the matter covered by the jurisdiction strip and other matters.

Administrative standard adopted under Chevron logic is arbitrary and capricious, as it is inherently bifurcated, and could result in different outcomes in identical situations based on which standard was used.

New choice of law policy arbitrary and capricious, not sufficiently distinguished as a change from prior practice, and the justifications advanced are not in the rulemaking itself.

Policy guidance appropriately states the rule on circularity of harm developed in agency adjudications.

Language in guidance document suggesting prospective application appropriately qualified by statements of generality, and therefore not a new rule.

Jurisdiction strip referred to the operation of the statute, not rulemaking found to be inconsistent with the statute.  (Perhaps.  This is quick work.  Don't ever rely.)

Dissent:

Jurisdiction strip statutes apply, allowing review of law and application of law to fact would undercut the purposes of the bars to review.  

Grace v. William Barr 

Federal Circuit: Dupont v. Synvina

A party asserting right of statutory appeal from the patent board doesn't have to establish specific threat of infringement litigation; rather, for standing, a party must establish a controversy of sufficient immediacy and reality.  A competitor's concrete plans for present and future activity that presents a risk of infringement suffice to establish standing.

Given range disclosed in prior art, presumption of obviousness insufficiently rebutted.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1977.Opinion.9-17-2018.pdf

Fifth Circuit: David Hager v. Todd G. Rowan

Discharged employee retains ERISA standing to challenge COBRA notification.

Since the employee was no longer eligible for the plan, medical costs otherwise covered by the plan are not an appropriate remedy; as the remedy must be in equity, the medical costs are similarly an inappropriate award; the proper remedy is a penalty based on the seriousness o the violation, and it is entirely possible that the amount of the penalty is equal to the medical costs incurred.

http://www.ca5.uscourts.gov/opinions/pub/17/17-11147-CV0.pdf

First Circuit: Doe v. Brown University

Allegation of assault against a student at one university by students at a second university does not state a Title IX claim against the second university where the alleged victim has not and does not intend to avail himself or herself of the educational programs and services of the second university.

http://media.ca1.uscourts.gov/pdf.opinions/17-1941P-01A.pdf

Ninth Circuit: Automotive Industries Pension Trust Fund v. Toshiba

Federal jurisdiction over the securities transaction arises from the purchaser's acceptance of irrevocable liability; the fact that a foreign entity might not ultimately be held liable for the events arising from the transaction does not preclude the court's jurisdiction over a purchase of a non-ownership beneficial interest in foreign stock by means of a domestic alternative trading system.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/17/16-56058.pdf

Ninth Circuit: Local 1500 Pension Fund v. Mayer

Although the statute provides for the invalidation of contracts made in contravention of the statute, it does not create a private right of action, as the statutory language focuses on the regulated party,  a single invalidation would invalidate all other contracts, and the law specifically vests discretion to enforce in an agency, either on its own motion or on application.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/12/17-15435.pdf

Sixth Circuit: Jodi Hohman v. Maurice Eadie

By the terms of the statute, taxpayers have a cause of action for improper collection activities, but not for improper assessment activities.

Although the natural persons and small partnerships holding a cause of action under the statute resemble LLCs, LLCs are not within the plain terms of the statute, and do not have a right to file suit.

Discovery properly limited.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0131p-06.pdf

Ninth Circuit: Fleshman v. Volkswagen AG

Statute grants absolute right of intervention only to citizens who are barred from filing their own suit to enforce the law due tot he government's attempt to enforce that specific law.

As the government filed suit under the law regulating the devices, citizen suits seeking to enforce clean air laws are not barred, and the potential plaintiffs have no absolute right to intervene.

The present request to intervene seeks relief that is distinct from the government's relief; absent Article III standing (which can't be manufactured by simply seeking absolute compliance with the Act), the potential intervenor does not have an intervention of right.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17060.pdf

DC Circuit: Ameren Services Company, et al v. FERC

A regulated party has standing to challenge the regulation.

Question is ripe, as possible future displacement of a utility's approved projects due to the change in the cost allocation scheme's structure is conceded by all parties, and further factual development wouldn't speak to the question of law at issue.

Claim first made in Article III review that the agency impermissibly shifted the burden of proving reasonableness to the utility needed to be exhausted in the pertition for agency review.

On merits, Commission's ruling that already-approved projects needed to be revisited in light of the regionally interconnected projects was not arbitrary or capricious, as there are public policy benefits from that sort of thing, and proper accounting for the interregional projects requires integration of the costs of the already-approved projects.

https://www.cadc.uscourts.gov/internet/opinions.nsf/6440A9564E36D841852582B4004FED20/$file/16-1150.pdf

Fifth Circuit: Robert Furlough v. Lowell Cage

Owner of debtor corporation who was joined to a pendent civil suit does not have standing to challenge engagement of special counsel as veil-piercing expert in the bankruptcy suit on the basis that the appointee is affiliated with one of the creditors and would act in a manner adverse to the estate.

Standing is determined at the time of filing -- an after-acquired interest in the estate does not convert the plaintiff's interest to that of a creditor for purposes of standing.

[caveat -- quick work.  as always, entertainment purposes only.]

http://www.ca5.uscourts.gov/opinions/pub/17/17-20603-CV0.pdf