Click here to remove Verdict from subsequent Justia newsletter(s). | New on Verdict Legal Analysis and Commentary | Dear House Judiciary Committee: In Questioning William Barr, Employ the Ethics Complaint That 27 Distinguished DC Lawyers Filed Wednesday | FREDERICK BARON, DENNIS AFTERGUT, AUSTIN SARAT | | Frederick Baron, former associate deputy attorney general and director of the Executive Office for National Security in the Department of Justice, Dennis Aftergut, a former federal prosecutor, and Austin Sarat, Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College, call upon the House Judiciary Committee to carefully read the ethics complaint by 27 distinguished DC lawyers against William Barr before questioning him today, July 28, 2020. | Read More |
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US Court of Appeals for the District of Columbia Circuit Opinions | Thompson v. District of Columbia | Docket: 18-7151 Opinion Date: July 31, 2020 Judge: Patricia Ann Millett Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law | Plaintiff filed suit under 42 U.S.C. 1983 against the District of Columbia, seeking compensation for the Executive Director of the Lottery Board's violation of plaintiff's Fifth Amendment rights. In this case, the Executive Director took a series of adverse personnel actions designed to push plaintiff out of his job without due process. The DC Circuit held that the district court erred in granting summary judgment for the District and in denying summary judgment for plaintiff on the question of Monell liability. The court held, as a matter of law, that the Executive Director acted as a final policymaker on behalf of the District when he took the series of personnel actions that led to plaintiff's constructive termination without due process. Therefore, the court held that the District is liable for the Executive Director's wrongdoing. The court remanded for the district court to enter summary judgment against the District on the liability issue and to determine the appropriate amount of damages. | | SFPP, LP v. Federal Energy Regulatory Commission | Docket: 19-1067 Opinion Date: July 31, 2020 Judge: Per Curiam Areas of Law: Energy, Oil & Gas Law, Government & Administrative Law, Tax Law | The DC Circuit denied petitions for review challenging FERC's orders concerning SFPP's tariffs. SFPP challenges FERC's decisions to deny SFPP an income tax allowance, to decline to reopen the record on that issue, and to deny SFPP's retroactive adjustment to its index rates. Shippers challenge FERC's disposition of SFPP's accumulated deferred income taxes (ADIT) and its temporal allocation of litigation costs. The court held that FERC's denial of an income tax allowance to SFPP was both consistent with the court's precedent and well-reasoned, and that FERC did not abuse its discretion or act arbitrarily in declining to reopen the record on that issue. Furthermore, FERC reasonably rejected retroactive adjustment to SFPP's index rates. The court also held that FERC correctly found that the rule against retroactive ratemaking prohibited it from refunding or continuing to exclude from rate base SFPP's ADIT balance, and that FERC reasonably allocated litigation costs. | | American Hospital Ass'n v. Azar | Docket: 19-5048 Opinion Date: July 31, 2020 Judge: Srikanth Srinivasan Areas of Law: Government & Administrative Law, Health Law | Hospitals and hospital associations filed suit challenging HHS's decision to reduce the reimbursement rates for 340B hospitals. The district court held that the rate cute exceeded HHS's statutory authority to adjust specified covered outpatient drugs (SCOD) rates. After determining that it had jurisdiction, the DC Circuit proceeded to the merits and held that HHS had statutory authority to impose its 28.5 percent cut to SCOD reimbursement rates for 340B hospitals. The court held that HHS reasonably interpreted 42 U.S.C. 1395l(t)(14)(A)(iii)(II)'s adjustment authority to enable reducing SCOD payments to 340B hospitals, so as to avoid reimbursing those hospitals at much higher levels than their actual costs to acquire the drugs. Applying Chevron deference, the court held that, at a minimum, the statute does not clearly preclude HHS from adjusting the SCOD rate in a focused manner to address problems with reimbursement rates applicable only to certain types of hospitals. | | National Weather Service Employees Organization v. Federal Labor Relations Authority | Docket: 19-1163 Opinion Date: July 31, 2020 Judge: Judith Ann Wilson Rogers Areas of Law: Government & Administrative Law, Labor & Employment Law | The union filed suit challenging the Authority's decision overturning an arbitrator's award in a dispute arising from a termination provision of a collective bargaining agreement (CBA). The DC Circuit granted the petition for review as to the Authority's disposition of the breach claim and denied the petition as to the Authority's disposition of the unfair labor practice claim. The court explained that, in vacating the arbitrator's breach determination, the Authority's thorough, substantive review failed to conform to the proper standard of review. The court explained that the Authority's sole inquiry under the proper standard of review should have been whether the arbitrator was even arguably construing or applying the CBA. However, the Authority engaged in a much more searching review of the arbitrator's decision than permitted by law. The court also held that the Authority's explanation of the unfair labor practice issue, although terse, was not arbitrary and capricious. In this case, the Authority reasonably applied its precedent to determine that the employer did not repudiate the CBA even if it breached it. The panel remanded for further proceedings. | |
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