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Mar 21, 2022

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 when necessary, and questions the driver and other witnesses. In the absence of any indication […]

Mar 14, 2022

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’ fees under G.S. § 6-19.1(a). However, the superior court’s findings as to whether the commis[...]

Feb 22, 2022

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 or CDA. Background In 2015, employees of a Navy services contractor, Systems Application & Technologies […]

Feb 11, 2022

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 heavily on the inadequacy of the safety program in holding that the OSHA violations were […]

Feb 11, 2022

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 was vacated. Background A collection of environmental nonprofit organizations challenge the Fish and Wildlife Service’s [&h[...]

Feb 1, 2022

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 to entertain the taxpayer’s independent overpayment claim. Background Brian McLane filed a tax return for […]

Feb 1, 2022

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 cross streams within the Jefferson National Forest without analyzing its environmental effects, its decisions were […]

Nov 17, 2021

Administrative — OSHA Citation – Notice of Contest – Untimely

Even though the OSHA Review Commission docketed the petitioner-employer’s “Notice of Contest” challenging an OSHA citation, since the citation had been issued more than 15 months earlier and gave petitioner 15 business days to file its Notice of Contest, petitioner’s Notice of Contest was not timely filed, and petitioner has failed to show that the […]

Nov 10, 2021

Administrative – Denial of church’s zoning application violated RLUIPA

Where Prince George’s County denied a church’s application for a legislative amendment to the county’s water and sewer plan, that contravened the Religious Land Use and Institutionalized Persons Act, or RLUIPA, because the amendment was a land use regulation subject to the RLUIPA and there were less restrictive means of furthering the county’s interest in […]

Oct 18, 2021

Administrative – CON – Demonstration Project – Fixed Extremity MRI – Project End – Full Capacity MRI

The respondent-intervenor medical practice obtained a certificate of need for a fixed extremity MRI scanner as part of a demonstration project. Within one year after the respondent-agency declared the project at an end, the practice applied for a change to offer additional MRI services at the diagnostic center created when it initially acquired its limited-use […]

Sep 23, 2021

Administrative — Judicial Review – Service of Process – Pleadings Amendment – Good Cause Argument

In order to appeal the respondent-agency’s administrative ruling, petitioner was required to comply with G.S. § 150-46, which requires service of process upon the parties of record to the administrative proceedings. Although petitioner served counsel of record, it failed to timely serve the agency’s service of process agent and therefore failed to invoke the superior […]

Sep 22, 2021

Administrative — Judicial Review – Pleading Requirements – Licensing – Professional Counselor

The respondent-board revoked petitioner’s professional counseling license after determining that he had (1) sexually assaulted patient “Ms. S.,” (2) employed cognitive behavioral therapy to treat Ms. S. when he was not competent to do so, and (3) failed to develop a counseling plan for Ms. S. Although petitioner timely filed his petition for judicial review, […]

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