A respondent subject to involuntary mental health commitment does not have their due process rights to an impartial tribunal violated where the trial court, in the absence of counsel for the state, calls a state witness and asks open-ended questions. ...
Read More »Administrative — Involuntary Civil Commitment – Failure of State to Appear – Due Process
Administrative — Appeals – Time for Filing – USPS – No Postmark – Late Receipt – Pandemic Extensions 
The deadline for filing the appellant-taxpayers’ appeals of their property valuations was April 1, 2020. Although it appears the taxpayers mailed their notices of appeal on March 30, 2020, since their notices were not postmarked, and since the Property Tax ...
Read More »Administrative — Certificate of Need – Substantial Prejudice – Competition 
Pursuant to G.S. § 150B-23(a) and our caselaw, as part of the merits of its contested case, a petitioner must show that the respondent-agency substantially prejudiced the petitioner’s rights. Although petitioner argues that it was substantially prejudiced by respondent’s partial ...
Read More »Administrative — Driver’s License – Revocation Proceeding – First Impression – Hearing Officer 
At the hearing held to decide whether petitioner’s driver’s license would be revoked, there was no attorney putting on the Division of Motor Vehicles’ case; in such cases, the hearing officer considers the evidence in the DMV file, issues subpoenas ...
Read More »Administrative — Attorney’s Fees – Gatekeeping Role – Final Agency Decision – ‘Substantial Justification’ 
In its gatekeeping function, the respondent-commission determined that petitioners’ challenge to a bridge project was frivolous. This was a final agency decision, so when petitioners successfully challenged the decision in superior court, petitioners were prevailing parties who could seek attorneys’ ...
Read More »Administrative – Jurisdiction found lacking over Navy contractor’s suit 
Where a federal contractor sought clarification on whether the nature of its Navy service contract made it subject to California’s labor laws, the suit was dismissed because the contractor failed to satisfy the exhaustion requirements of the Contract Disputes Act ...
Read More »Administrative – ALJ improperly relieved OSHA of its burden of proof 
Where the Occupational Safety and Health Administration, or OSHA, did not argue that a company’s safety program was inadequate to prove constructive knowledge during the trial or in its post-trial brief, the administrative law judge, or ALJ, erred by relying ...
Read More »Administrative – Agency failed to properly consider pipeline’s impact on fish 
Where the Fish and Wildlife Service failed to adequately evaluate the “environmental baseline” and “cumulative effects” for the Roanoke logperch and the candy darter within the right of way of a proposed pipeline, its biological opinion and incidental take statement ...
Read More »Administrative – Tax Court lacks jurisdiction to consider overpayment claim 
Where a statute allows a taxpayer to appeal an adverse administrative ruling of the Internal Revenue Service, or IRS, to the tax court, but here the IRS then determined that the taxpayer owed no money, the tax court lacked jurisdiction ...
Read More »Administrative – Government failed to consider pipeline’s impact on environment 
Where the United States Forest Service and the Bureau of Land Management, or BLM, failed to account for data suggesting increased sedimentation along the route of a proposed gas pipeline, and approved the use of the conventional bore method to ...
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