In a June 16, 2019 decision, Manhattan Community Access Corp. v. Halleck, 2019 WL 2493920, the Supreme Court considered whether a private entity’s act of barring two individuals from placing programming on public access channels constituted “state action.”[i]  Even by the standards of constitutional law doctrines, the “state action” doctrine is unusually complex; indeed arguably […]

You may be familiar with fictional gunmen’s euphemistic boast: “the victim died of poising, lead poising!”  Apparently in the Kaibab National Forest, located largely in northern Arizona, animals die from euphemistic and non-euphemistic lead poisoning.  First, hunters shoot big game (such as bison and elk) using lead ammunition, a euphemistic “lead poising;” then scavengers, such as […]

Summary: This three-post series discusses Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, which affirmed dismissal of a suit to require publication of all Office of Legal Counsel (“OLC”) opinions.  This final post offers tentative thoughts on the applicability of FOIA’s affirmative disclosure requirements to OLC opinions. Some Thoughts on Whether […]

Summary: This three-post series discusses Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, a recent D.C. Circuit opinion affirming dismissal of a suit seeking to require publication of all Office of Legal Counsel (“OLC”) opinions.  This post critiques the decision. In Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t […]

Summary: This three-part series discusses a recent D.C. Circuit opinion affirming dismissal of a claim that FOIA mandates publication of all Office of Legal Counsel (“OLC”) opinions.  This post summarized OLC’s publication practices and the D.C. Circuit case — Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice.  Succeeding posts will critique […]

Summary:  This post chronicles a story of enforcement failure, shaming remedies, and replacement of proactive disclosure with reactive disclosure.  In February 2017, the Animal and Plant Health Inspection Service (“APHIS”) “took down” publicly-available databases and re-populated them with significant redactions.  The D.C. Circuit recently opined on APHIS’s action in PETA v. U.S. Department of Agriculture. […]

Summary:  Recently, in Wolk Law Firm v. U.S., — F.Supp.3d —, 2019 WL 1528433 (E.D. Pa. April 9, 2019), a federal district judge held that a passenger cell phone recording of a cockpit was a “cockpit voice and video recorder recording” that the NTSB could withhold from a FOIA requester.  In doing so, the judge […]

Immigration law provides a path to lawful permanent residence for abused, neglected, or abandoned juveniles, see 8 U.S.C. §§ 1101(a)(27)(J),[1] who are accorded Special Immigrant Juvenile (SIJ) status, see R.F.M. v. Nielsen, 2019 WL 1219425 *1 (S.D.N.Y. March 15, 2019).  To establish eligibility, the juvenile must secure a state court special finding order specifying that […]

Summary: Last week a Fifth Circuit panel held the collateral order doctrine inapplicable to interlocutory appellate review of Federal Trade Commission decisions.  As a result state professional board’s petition to review of the FTC’s denial of its antitrust immunity defense was dismissed for lack of appellate jurisdiction, and will be reviewable only after the FTC […]

Summary: California’s SB 1421 withdrew peace officers’ right of informational privacy in government files relating to officer-involved shootings and other alleged officer misconduct.  Does a presumption against retroactivity apply to the withdrawal of informational privacy rights such that SB 1421 presumptively applies only to investigative files regarding future alleged officer misconduct?  This post discusses the […]

In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme Court held a final biological opinion reviewable because it marked the consummation of the agency process and was an action “from which rights and obligations flow,” even though the opinion was merely delivered to another agency for use in considering its proposed action.   Id. at […]

Dr. Paul Wheeler, and his unit within Johns Hopkins Medical Center engaged in a pattern of false medical assessments of claimants seeking benefits under the Federal Black Lung Program.[1]  In Day v. John Hopkins Health System Corp., 907 F.3d 766 (4th Cir. October 26, 2018), a divided Fourth Circuit panel held that the witness litigation […]

Typically, compliance with statute, regulation, or industry custom does not provide a complete defense to tort liability.  The State of Ohio recently adopted legislation, Ohio Substitute Senate Bill 220 (“S.B. 220”)(codified at Ohio Rev. Stat. §§1354.01-.05), to establish a regulatory compliance defense for tort actions seeking recompense for data breaches.  The enrolled legislation and the […]