Articles Posted in Government & Administrative Law

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The First Circuit affirmed the judgment of the district court dismissing Plaintiff’s complaint against the Federal Deposit Insurance Corporation challenging its decision to terminate his employment for lack of subject matter jurisdiction. The district court concluded that Plaintiff did not have a “mixed” case because of his failure to reinstate or prosecute his associational disability discrimination before the Merit Systems Protection Board, despite being given the right to do so, after expressly withdrawing the claim with prejudice. The First Circuit held (1) Plaintiff’s original complaint, which alleged a claim of discrimination that was later withdrawn, was not sufficient to create a mixed case, and therefore, the district court lacked subject matter jurisdiction; and (2) the district court did not err in denying Plaintiff’s motion for reconsideration or, in the alternative, to transfer the case to the Court of Appeals for the Federal Circuit. View "Jonson v. Federal Deposit Insurance Corp." on Justia Law

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The First Circuit denied Thomas G. Gallagher, Inc.’s petition for review challenging a final order of the Occupational Safety and Health Review Commission that affirmed a fine levied against Gallagher, a Massachusetts-based employer, that was imposed by the Occupational Safety and Health Administration (OSHA) for two violations of OSHA workplace health and safety standards. In its petition for review, Gallagher challenged only the determination that Gallagher had constructive knowledge with respect to the serious violations for which OSHA cited Gallagher. The First Circuit denied the petition for review with respect to the order regarding both the first and second items of the citation, holding that Gallagher’s challenge to the constructive knowledge analysis could not succeed. View "Thomas G. Gallagher, Inc. v. Acosta" on Justia Law

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The First Circuit affirmed the district court’s dismissal of Plaintiffs’ suit challenging the Social Security Administration’s (SSA) termination of tier disability benefits for lack of subject matter jurisdiction based on Plaintiffs’ failure to have exhausted their administrative remedies. After the SSA terminated the disability benefits that Plaintiffs had been receiving, Plaintiffs challenged that decision administratively. Before they had exhausted the administrative review process, however, Plaintiffs filed suit in federal court seeking various kinds of relief based presumably on the same grounds as the claims that had presented to the SSA in seeking to continue to receive their benefits. The district court granted the government’s motion to dismiss for lack of subject matter jurisdiction, concluding that Plaintiffs failed to exhaust their administrative remedies. The First Circuit affirmed, holding that Plaintiffs failed to show that they could not obtain a restoration of their benefits through the administrative review process, despite evidence suggesting that they would have a substantial chance of doing so. View "Justiniano v. Social Security Administration" on Justia Law

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The First Circuit vacated the order of the Board of Immigration Appeals (BIA) rejecting Petitioner’s claim for withholding of removal. In her application for relief, Petitioner, a native and citizen of Honduras, alleged that she had an abusive relationship with her ex-husband. An immigration judge (IJ) concluded that Petitioner’s testimony was not credible and that the abuse compiled in documentary evidence was not sufficiently serious and persistent to warrant relief. The BIA dismissed Petitioner’s appeal based solely on its ruling that the IJ did not commit clear error in her adverse credibility determination. The First Circuit remanded the matter for further proceedings, holding that, irrespective of the supportability of the adverse credibility finding, remand was required for the BIA to consider Petitioner’s potentially significant documentary evidence. View "Aguilar-Escoto v. Sessions" on Justia Law

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The First Circuit denied Hospital San Cristobal’s petition for review of an order of the National Labor Relations Board (Board) declaring that the Hospital had committed several unfair labor practices in violation of section 8 of the National Labor Relations Act and granted the Board’s cross-petition for enforcement of that order. The court held (1) this court lacked jurisdiction to consider the Hospital’s challenge to the validity of the underlying unfair labor practice complaints; (2) substantial evidence in the record supported the Board’s determination that the Hospital violated sections 8(a)(1) and 8(a)(5) of the Act; and (3) the Hospital’s challenge to the Board’s remedy was not properly before the court. View "Quality Health Services of P.R., Inc. v. National Labor Relations Board" on Justia Law

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The First Circuit affirmed the grant of summary judgment in favor of Kenneth Currier in this action brought by Mark Reenstierna alleging defamation and other torts. Reenstierna, a real estate appraiser, was brought before the New Hampshire Real Estate Appraisal Board for a disciplinary hearing. During the hearing, the Board considered as evidence a report on Reenstierna’s work written by Currier at the Board’s request. Reenstierna later filed suit against Currier alleging that Currier knowingly and purposely submitted a false report to the Board and that the purported deficiencies cited against Reenstierna in Currier’s report constituted material misrepresentations of fact. The district court concluded that New Hampshire’s absolute witness immunity doctrine precluded the use of Currier’s report to establish liability on Reenstierna’s claims. The First Circuit affirmed, holding that Currier’s statements in his reported were shielded in this action by New Hampshire’s absolute witness immunity doctrine as set forth in Provencher v. Buzzell-Plourde Associates, 711 A.2d 251, 255 (N.H. 1998). View "Reenstierna v. Currier" on Justia Law

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The First Circuit sidestepped the government’s challenge to its jurisdiction in this immigration case and held that, even if it did have jurisdiction to consider Petitioner’s appeal challenging the Board of Immigration Appeals’s (BIA) denial of his motion to exercise its sua sponte authority to reopen Petitioner’s case and grant his request for cancellation of removal, it must still deny the petition. Specifically, the court held (1) Petitioner’s translation-based due process claim failed because Petitioner did not show that “a more proficient or more accurate interpretation would likely have made a dispositive difference in the outcome of the proceedinng” and because the claim found next to no support in the record; and (2) Petitioner failed to state a colorable due process claim as to his second allegation of error. View "Ramirez Matias v. Sessions" on Justia Law

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The First Circuit upheld the finding of the Board of Immigration Appeals (BIA) that Petitioner was eligible for removal because third-degree larceny under Connecticut law is an aggravated felony. Removal proceedings were commenced against Petitioner on the basis that his conviction was for a “theft offense” within the meaning of 8 U.S.C. 1101(a)(43) (G) and was therefore an “aggravated felony” that rendered him eligible for removal. The BIA dismissed Petitioner’s appeal. The First Circuit upheld the BIA’s decision, holding that Petitioner’s Connecticut conviction is a conviction for a “theft offense” because the range of conduct sufficient to sustain a conviction for third-degree larceny under Connecticut law is not broader than that which constitutes a “theft offense” under the Immigration and Nationality Act. View "De Lima v. Sessions" on Justia Law

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The Attorney General has the discretion to cancel the removal of a non-permanent resident alien if the alien, among other things, has ten years of continuous physical presence in the United States. At issue here was whether, for purposes of the “stop-time” rule, an alien’s period of continuous physical presence ends when the alien is served a notice to appear that does not contain the date and time of the alien’s initial hearing. The Board of Immigration Appeals (BIA) answered this question in the affirmative in Matter of Camarillo, 25 I. & N. Dec. 644 (B.I.A. 2011). In the instant case, Petitioner conceded removability but sought relief in the form of cancellation of removal under 8 U.S.C. 1229b(b)(1), arguing that the notice to appear had not stopped the continuous residency clock because it was defective where it did not include the date and time of his hearing. An Immigration Judge ordered Petitioner removed. The BIA affirmed, concluding that the notice to appear was effective under the stop-time rule. The First Circuit denied Petitioner’s petition for review, holding that the BIA’s decision in Camarillo was entitled to Chevron deference. Therefore, Petitioner was unable to demonstrate the requisite ten years of physical presence and was thus ineligible for cancellation of removal. View "Pereira v. Sessions" on Justia Law

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The First Circuit denied Petitioner’s petition for review of the Board of Immigration Appeals’ (BIA) denial of his untimely motion to reopen removal proceedings based on changed conditions. Petitioner, a Mexican national, conceded a charge of removability under 8 U.S.C. 1182(a)(6)(A)(i) but denied the charges. Petitioner later applied for asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge denied the petition. The BIA denied Petitioner’s appeal. More than three years later, Petitioner moved to reopen removal proceedings, arguing that his petition to reopen should be granted because the conditions in his home country had deteriorated and intensified. The BIA denied Petitioner’s motion to reopen. The First Circuit concluded that the BIA properly exercised its discretion and found that Petitioner failed to demonstrate changed conditions. View "Sanchez-Romero v. Sessions" on Justia Law