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 […]

The worse day in a man’s life is when he sits down and begins thinking about how he can get something for nothing.  — Thomas Jefferson This concluding post of my three-part series regarding PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt. No. 17-1705 (U.S. Sup. Ct.), addresses the merits question the case […]

This is the second post in a three-part series regarding PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt No. 17-1705 (certiorari granted November 13, 2018).  This post addresses the question the case nominally presents — does the Hobbs Act require district courts to apply FCC regulations, even when the court believes they conflict […]

  “When Chevron meets Hobbs, consideration of the merits must yield to jurisdictional constraints.” Carlton & Harris Chiropractic, Inc. v. PDR Network, 883 F.3d 459 (4th Cir. 2018) The Supreme Court recently granted certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., Dkt No. 17-1705, (Order List Nov. 13, 2018).  The Court framed […]

Yesterday, the Court decided Mount Lemon First District v. Guido, Dkt No. 17-587, 2018 WL 5794639 (Nov. 6, 2018), its first merits opinion of the October 2018 term.  The question presented was whether the Age Discrimination in Employment Act of 1967 (ADEA) applied to political subdivisions regardless of whether they employed 20 or more employees.  […]

Benjamin Franklin may have discovered electricity, but it was the men who invented the meter who made the money.  Earl Wilson (American journalist 1907-1987) Like the milkmen of an earlier day, meter readers and their monthly meter readings, may become a thing of the past, as utility companies replace analogue energy meters with digital “smart” readers.  […]