North Carolina Lawyers Weekly
For the third time, the U.S. Fish and Wildlife Service will attempt to determine whether construction of the Atlantic Coast natural gas pipeline will threaten four endangered species after the conclusions in FWS’s prior opinion were found arbitrary and capricious. ...
Read More »Administrative Pipeline thwarted by bee, clubshell, bat and isopod
Administrative – CON – Deference to Agency Decision – ALJ Review – MRI Machine 
Even though there was evidence that petitioner’s MRI machine was superior to the machine that respondent Duke University Health System would use, it was within the respondent-agency’s discretion not to consider this criterion. We reverse the administrative law judge’s ...
Read More »Administrative – Criminal Practice – DWI – Chemical Analysis Refusal – License Revocation – DMV Jurisdiction
Where the arresting officer/chemical analyst in this DWI case filed an affidavit stating on one page that he had asked petitioner to submit to a blood test while stating on another page that petitioner had refused a breath test, ...
Read More »Administrative – Whistleblower’s claims not covered by Sarbanes-Oxley
Northrop Grumman successfully argued that an employee’s complaint was not within the scope of the Sarbanes-Oxley Act, or SOX, and she therefore could not claim whistleblower protection under the Act. An ALJ’s order in favor of the employee was vacated. ...
Read More »Administrative – Rescission of DACA was arbitrary and capricious
The Department of Homeland Security’s decision to rescind the Deferred Action for Childhood Arrivals policy established in 2012 was arbitrary and capricious because the memo explaining that decision did not identify any basis for the department’s view that the program ...
Read More »Administrative – RIL List – Agency Delay – Constitutional – Liberty Interest – First Impression
In a matter of first impression, the court decides that a nearly four-year delay by the respondent-agency in placing petitioner’s name on the Responsible Individuals List impermissibly prejudiced petitioner’s protected liberty interest. We affirm the trial court’s order, which determined ...
Read More »Administrative – Notice of Appeal – First Impression – Labor & Employment – Public Employees – Grievance Procedure Notice
Petitioner’s notice of appeal has neither been file-stamped nor time-stamped to indicate when petitioner filed it with the Office of Administrative Hearings. Due to petitioner’s lack of knowledge regarding OAH’s policy of not adding a file-stamp to emailed notices of ...
Read More »Administrative – CON Review – Opportunity to Comment – Different Projects – Constitutional – Equal Protection
Petitioner had the opportunity to submit comments to the respondent-agency and to make comments at a public hearing about a competitor’s proposed certificate of need for an ambulatory surgery center; nevertheless, petitioner invites us to hold that the agency’s failure ...
Read More »Administrative – Pipeline construction allowed to begin before just compensation was paid
Where a plaintiff was entitled to use eminent domain to obtain rights-of-way to portions of private property, that plaintiff was likewise entitled to begin construction on those properties before the value of just compensation had been determined and paid. Background ...
Read More »Administrative – Medicaid – Superior Court Jurisdiction – Prior Order – Different Aid
Even though petitioner was entitled to a different type of Medicaid benefit after he left the hospital than he had received before he went into the hospital, he remained “Categorically Needy” in terms of Medicaid eligibility. The superior court had ...
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