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Sixth Circuit Rules it has Jurisdiction to Decide WOTUS Challenge

In a 2-1 decision the Sixth Circuit Court of Appeals ruled that it—rather than a federal district court—has jurisdiction to decide whether the Clean Water Rule, clarifying the scope of the “waters of the United States (WOTUS),” exceeds the Environmental Protection Agency’s (EPA) authority.

 In October the Sixth Circuit assumed it had jurisdiction and issued a temporary nationwide stay of the rule. The WOTUS rule defines “waters the United States,” according to the EPA, “through increased use of bright-line boundaries” to make “the process of identifying waters protected under the Clean Water Act easier to understand, more predictable and consistent with the law and peer reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”

 The Sixth Circuit stayed the rule concluding it was likely that a number of the definitions were at odds with Rapanos v. United States (2006) and the distance limitations in the final rule weren’t a “logical outgrowth” of the proposed rule, in violation of the Administrative Procedures Act. Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

First Circuit

Third Circuit

Sixth Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Third Circuit

  • Thorpe v. Borough ofJim Thorpe, No. 13-2446 (Oct. 23, 2014): The court reversed district court’s conclusion that Native American Graves Protection and Repatriation Act requires the Borough to disinter Jim Thorpe. In the court’s view, “Congress could not have intended th[is] kind of patently absurd result.”

Fourth Circuit

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

Sixth Circuit

  • Cass v. City of Dayton, No. 13-4409 (Oct. 16, 2014): In 1983 action alleging that officer used excessive force in violation of the Fourth Amendment, the court affirmed summary judgment for defendants because officer’s conduct was objectively reasonable and did not violate Fourth Amendment.

Seventh Circuit

Ninth Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:court collumn

First Circuit

  • Showtime Entn’t v. Town of Mendon, No. 12-2121 (Oct. 8, 2014): The Town’s adult-business-entertainment bylaws unconstitutionally infringe on Showtime’s right to engage in a protected expressive activity; the regulations’ underinclusiveness indicates that Town does not have substantial interest in regulating adult businesses to curb secondary effects.

Seventh Circuit

Ninth Circuit Continue reading

 

Monday Morning Review: Local Governments in the Federal Appellate Courts

Here are last week’s published decisions involving local governments:

SCT stairs[Update: I added the Ninth Circuit’s Daubert decision. (7/31)]
Second Circuit

Carter v. Inc. Vill. of Ocean Beach, No. 13-815 (July 21, 2014): Affirming award of attorney’s fees to County defendants in case brought by former police officers alleging wrongful termination and defamation.

Cox v. Onondaga Sheriff’s Dept., No. 12-1526 (July 23, 2014): Affirming dismissal of complaint alleging Title VII retaliation for racial-harassment claims.

Reyes v. New York City Dept. of Ed., No. 13-158 (July 25, 2014): Finding that under IDEA, proposed IEP and school placement failed to provide student with free appropriate public education.

Fourth Circuit Continue reading

 

Ninth Circuit Denies En Banc Review in Newport Beach Case

The Ninth Circuit has denied the sua sponte call for en banc review in Pacific Shore Properties, LLC v. City of Newport Beach, No. 11-55460, a case that we have written about previously hereNinthCircuitJudge O’Scannlain, joined by Judges Tallman, Callahan, Bea, and Ikuta, filed a dissental, that is, a dissent from the denial of en banc review. It appears to be telegraphing that the Supreme Court should consider the case:

The panel’s opinion in these consolidated cases invents an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect. Such unwarranted expansion Continue reading