Latest 20 Cases This Week: Osen LLC v. United States Central Command (2d Cir.), Howard County v. Federal Aviation Administration (4th Cir.), ...

#MeToo and What Men and Women Are Willing to Say and Do

SHERRY F. COLB

Cornell Law professor Sherry F. Colb explores why people have such strong feelings about the #MeToo movement (whether they are advocates or opponents) and suggests that both sides rest their positions on contested empirical assumptions about the behavior of men and women. Colb argues that what we believe to be true of men and women generally contributes to our conclusions about the #MeToo movement and our perceptions about how best to handle the accusations of those who come forward.

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Osen LLC v. United States Central Command

Court: US Court of Appeals for the Second Circuit

Docket: 19-1577

Opinion Date: August 10, 2020

Judge: Richard C. Wesley

Areas of Law: Government & Administrative Law

Osen filed suit under the Freedom of Information Act (FOIA) seeking military investigation records from terrorist attacks that occurred in Iraq between 2004 and 2011. The district court applied the official disclosure doctrine and concluded that CENTCOM could not withhold certain classified images contained in those records because another component of the DOD had previously disclosed that information. The Second Circuit held that, although similar images from other, unrelated terrorist attacks have been produced in the past, no component of DOD has ever disclosed images of the attacks for which Osen seeks records in this case. Therefore, CENTCOM did not waive its right to withhold the images that Osen requested under the official disclosure doctrine. The court also held that it must give substantial weight to CENTCOM's position that disclosure of those classified images will pose a risk to national security, and thus CENTCOM properly withheld the images at issue under the first exemption from FOIA production. Accordingly, the court vacated in part and reversed the district court's decision, remanding to the district court.

Howard County v. Federal Aviation Administration

Court: US Court of Appeals for the Fourth Circuit

Docket: 18-2360

Opinion Date: August 11, 2020

Judge: Albert Diaz

Areas of Law: Aviation, Government & Administrative Law

The Fourth Circuit dismissed the County's petition to vacate or set aside the FAA's modified air-traffic procedure, or series of flight routes, that governs westbound departing aircraft at Baltimore/Washington International Thurgood Marshall Airport (TERPZ-6). The court agreed with the FAA that the petition is untimely under 49 U.S.C. 46110(a) because it was filed well over sixty days after the issuance of the agency's relevant order. In this case, the County unreasonably waited 110 days to demand voluntary relief from the FAA as a first resort, and six months for the agency to come to the table. Therefore, the County's belated effort to engage the FAA in a voluntary fix to the noise impacts associated with TERPZ-6, together with the FAA's belated offer to pursue such a fix, provides no grounds for not filing by the 60th day.

Environmental Integrity Project v. Environmental Protection Agency

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-60384

Opinion Date: August 13, 2020

Judge: Stuart Kyle Duncan

Areas of Law: Environmental Law, Government & Administrative Law

The Fifth Circuit denied the petition for rehearing, withdrew its prior opinion, and substituted the following opinion. After ExxonMobil sought a revised Title V permit under the Clean Air Act concerning an expansion of a plant in Baytown, Texas, petitioners asked EPA to object on the grounds that the underlying Title I preconstruction permit allowing the expansion was invalid. EPA rejected petitioners' arguments and declined to object. The Fifth Circuit denied the petition for review, holding that EPA's interpretation that Title V permitting is not the appropriate vehicle for reexamining the substantive validity of underlying Title I preconstruction permits is independently persuasive. Therefore, EPA's interpretation is entitled to the mild form of deference recognized by Skidmore v. Swift & Co., 323 U.S. 134 (1944).

Armstrong v. Michigan Bureau of Services for Blind Persons

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-2179

Opinion Date: August 7, 2020

Judge: Jeffrey S. Sutton

Areas of Law: Civil Rights, Government & Administrative Law, Government Contracts

The Randolph-Sheppard Act, 20 U.S.C. 107, requires government agencies to set aside certain contracts for sight-challenged vendors. States license the vendors and match them with available contracts. In 2010, Michigan denied Armstrong’s bid for a contract to stock vending machines at highway rest stops. A state ALJ ruled in Armstrong’s favor and recommended that she get priority for the next available facility/location. The state awarded Armstrong an available vending route later that year. Armstrong nonetheless requested federal arbitration, seeking nearly $250,000 in damages to account for delays in getting the license. The arbitrators ruled that Armstrong was wrongfully denied the location she sought and ordered Michigan to immediately assign Armstrong the Grayling vending route but declined to award damages, reasoning that her request was “too speculative.” The district court upheld the arbitration award and rejected Armstrong’s 42 U.S.C. 1983 claims, concluding that the Randolph-Sheppard Act created the sole statutory right to relief under federal law. Michigan subsequently granted her the Grayling license. The Sixth Circuit affirmed. The unfavorable arbitration decision was not arbitrary or capricious under the Administrative Procedure Act. Armstrong may not sue under 42 U.S.C. 1983 to vindicate her rights under the Randolph-Sheppard Act.

Courser v. Allard

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-1038

Opinion Date: August 10, 2020

Judge: Karen Nelson Moore

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Personal Injury

While in office, Courser, a former Republican member of the Michigan House of Representatives, had an affair with another representative, Gamrat. The defendants were legislative aides assigned to Courser and Gamrat. Worried that he and Gamrat eventually would be caught, Courser concocted a plan to get ahead of the story by sending out an anonymous email to his constituents accusing himself of having an affair with Gamrat, but including outlandish allegations intended to make the story too hard to believe. Courser unsuccessfully attempted to involve one of the defendants in the “controlled burn.” The defendants reported Courser’s affair and misuse of their time for political and personal tasks to higher-ups. In retaliation, Courser directed the House Business Office to them. After they were fired, the defendants unsuccessfully tried to expose the affair to Republican leaders, then went to the Detroit News. Courser resigned and pleaded no contest to willful neglect of duty by a public officer. Courser later sued, alleging that the defendants conspired together and with the Michigan House of Representatives to remove him from office. The Sixth Circuit affirmed the dismissal of all of Courser’s claims: 42 U.S.C. 1983 and 1985; violation of the Fair and Just Treatment Clause of the Michigan Constitution; computer fraud; libel, slander, and defamation; civil stalking; tortious interference with business relationships; negligence and negligent infliction of emotional distress; RICO and RICO conspiracy; intentional interference with or destruction of evidence/spoliation; and conspiracy.

City of Portland v. United States

Court: US Court of Appeals for the Ninth Circuit

Dockets: 18-72689, 19-70490, 19-70123, 19-70124, 19-70125, 19-70136, 19-70144, 19-70145, 19-70146, 19-70147, 19-70326, 19-70339, 19-70341, 19-70344

Opinion Date: August 12, 2020

Judge: Mary Murphy Schroeder

Areas of Law: Communications Law, Government & Administrative Law

The Ninth Circuit granted in part and denied in part petitions for review of three FCC orders issued in 2018 concerning the newest generation of wireless broadband technology known as "5G." Two of the orders, known as the Small Cell Order and Moratoria Order, spell out the limits on local governments' authority to regulate telecommunications providers. The third order, known as the One Touch Make-Ready Order, was intended to prevent owners and operators of utility poles from discriminatorily denying or delaying 5G and broadband service providers access to the poles. The panel held that, given the deference owed to the agency in interpreting and enforcing this important legislation, the Small Cell and Moratoria Orders are, with the exception of one provision, in accord with the congressional directive in the Telecommunications Act of 1996, and not otherwise arbitrary, capricious, or contrary to law. The exception is the Small Cell Order provision dealing with the authority of local governments in the area of aesthetic regulations. The panel held that to the extent that provision requires small cell facilities to be treated in the same manner as other types of communications services, the regulation is contrary to the congressional directive that allows different regulatory treatment among types of providers, so long as such treatment does not "unreasonably discriminate among providers of functionally equivalent services." The panel also held that the FCC's requirement that all aesthetic criteria must be "objective" lacks a reasoned explanation. The panel upheld the third order, holding that the FCC reasonably interpreted Section 224 of the Act as a matter of law, and the order is not otherwise arbitrary or capricious. The panel rejected petitioners' challenges to four secondary aspects of the order regarding rules for overlashing, preexisting violations, self-help, and rate reform.

Allen v. District of Columbia

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 18-7177

Opinion Date: August 11, 2020

Judge: Katsas

Areas of Law: Education Law, Government & Administrative Law, Legal Ethics

Congress enacted an appropriations rider in 2009 prohibiting the District of Columbia from paying more than $4,000 in attorneys' fees for any past proceeding under the Individuals with Disabilities Education Act (IDEA). At issue in these 11 consolidated cases was whether the District must pay interest on amounts that exceed the payment cap. After determining that the District did not forfeit the interest issue, the court held that the District cannot be compelled to pay interest on the portion of fee awards that it has been legally prohibited from paying off. The court explained that this case implicates a well-established common-law principle: If the law makes a debt unpayable, then interest on the debt is also unpayable. Furthermore, the court had no basis to conclude that 28 U.S.C. 1961(a) abrogated this background rule. The court reversed the district court's judgment requiring payment of interest on above-cap fees, affirmed the district court's judgment in all other respects, and remanded for further proceedings.

Committee on the Judiciary of the United States House of Representatives v. McGahn

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 19-5331

Opinion Date: August 7, 2020

Judge: Judith Ann Wilson Rogers

Areas of Law: Constitutional Law, Government & Administrative Law

On petition for rehearing en banc, the en banc court held that the Committee on the Judiciary of the House of Representatives has standing under Article III of the Constitution to seek judicial enforcement of its duly issued subpoena. This case arose when the Committee began an investigation into alleged misconduct by President Trump and his close advisors. The Committee requested that Donald F. McGahn, II turn over documents related to the President's alleged obstruction of Special Counsel Robert S. Mueller's investigation. When McGahn, then no longer White House Counsel, declined these requests, the Committee issued a subpoena ordering McGahn to appear at a hearing to testify and to produce the requested documents. The en banc court held that the Committee, acting on behalf of the full House of Representatives, has shown that it suffers a concrete and particularized injury when denied the opportunity to obtain information necessary to the legislative, oversight, and impeachment functions of the House, and that its injury would be redressed by the order it seeks from the court. The court explained that the ordinary and effective functioning of the Legislative Branch critically depends on the legislative prerogative to obtain information, and constitutional structure and historical practice support judicial enforcement of congressional subpoenas when necessary. Therefore, the court affirmed the judgment of the district court in part.

National Security Counselors v. Central Intelligence Agency

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 18-5047

Opinion Date: August 11, 2020

Judge: Srikanth Srinivasan

Areas of Law: Government & Administrative Law

This appeal arose from NSC's three lawsuits raising 45 claims against six federal agencies arising out of numerous Freedom of Information Act (FOIA) requests initiated by NSC. Through a series of decisions, the district court ruled in favor of the government on all the claims. In this opinion, the DC Circuit individually addressed three of NSC's claims: two claims concerning distinct FOIA requests made to the CIA and a third claim concerning the DOJ's assertion of attorney-client privilege in response to a FOIA request. The court held that the CIA and the district court correctly concluded that, as drafted, the request for all CIA records pertaining to the IBM supercomputer named Watson called for an unreasonably burdensome search. In regard to the request seeking OLC opinions pertaining to various statutes including FOIA itself, the Privacy Act, and the Federal Records Act, the court held that there was no waiver of the attorney-client privilege with regard to the two OLC opinions at issue. The court did not separately discuss NSC's remaining claims, but found that they lacked merit. Therefore, the court affirmed the district court's judgment in all respects.

Manns v. Alaska, Dept. of Nat. Rec., Div. of Mining, Land & Water

Court: Alaska Supreme Court

Docket: S-17042

Opinion Date: August 7, 2020

Judge: Joel H. Bolger

Areas of Law: Government & Administrative Law, Zoning, Planning & Land Use

Mick and Cecilia Manns made unsuccessful applications for preference rights to purchase certain Alaska State land. The Mannses argued they were entitled to a preference right under AS 38.05.035(f) based on their business use of the land beginning in the mid­ 1970s. But this statute required the Mannses to establish business use beginning at least five years prior to State selection; in this case, the State selection occurred in 1972. The statute also required the Mannses to show some income reliance on the land for the five years preceding their application, but the Mannses did not submit any such evidence. The Alaska Supreme Court therefore affirmed the superior court’s decision affirming the decision of the Alaska Department of Natural Resources (DNR) to deny the Mannses’ application.

Blue Fountain Pools and Spas Inc. v. Superior Court

Court: California Courts of Appeal

Docket: E074121(Fourth Appellate District)

Opinion Date: August 10, 2020

Judge: Slough

Areas of Law: Civil Procedure, Civil Rights, Government & Administrative Law, Labor & Employment Law

Daisy Arias suffered sustained, egregious sexual harassment for most of the time she was employed by defendant-petitioner, Blue Fountain Pools & Spas, Inc. The primary culprit was defendant-petitioner, Sean Lagrave, a salesman who worked in the same office as Arias. Arias says Lagrave did everything from repeatedly asking her for dates to grabbing her and describing "his own sexual prowess." Arias complained about Lagrave’s conduct repeatedly over the course of her employment, but things came to a head on April 21, 2017: Lagrave yelled at Arias in front of coworkers, used gender slurs, and then physically assaulted her, bumping her chest with his own. Arias called the police and later left work. Arias told the owner, defendant-petitioner, Farhad Farhadian, she wasn’t comfortable returning to work with Lagrave. Farhadian did nothing initially, refused to remove Lagrave, then terminated Arias’s health insurance, and finally told Arias to pick up her final paycheck. Though Farhadian claimed Arias had quit, she says she was fired. Arias filed a complaint with the Department of Fair Employment and Housing and received a right to sue letter on August 14, 2017. She then filed this lawsuit alleging, relevant to this appeal, hostile work environment sex discrimination and failure to prevent sexual harassment. Petitioners moved for summary judgment, seeking, among other things, to have the hostile work environment claim dismissed as time-barred and the failure to prevent harassment claim dismissed as having an insufficient basis after limiting the allegations to the conduct that wasn’t time-barred. The trial court concluded Arias had created a genuine issue of material fact as to all her causes of action and denied the motion. Petitioners brought a petition for writ of mandate, renewing their statute of limitations argument, claiming Arias could not establish a continuing violation because she admitted she had concluded further complaints were futile. The Court of Appeal concluded Arias has shown she could establish a continuing violation with respect to all the complained of conduct that occurred during Farhadian’s ownership of the company. Further, the Court determined there was a factual dispute over whether and when Arias’s employer made clear no action would be taken and whether a reasonable employee would have concluded complaining more was futile: "that question must be resolved by a jury." The Court denied petitioners' request for mandamus relief and remanded the matter for further proceedings.

Crawford v. Comm. on Prof. Competence etc.

Court: California Courts of Appeal

Docket: E071770(Fourth Appellate District)

Opinion Date: August 11, 2020

Judge: Carol D. Codrington

Areas of Law: Civil Procedure, Education Law, Government & Administrative Law

In February 2017, students at Rubidoux High School (RHS) participated in a protest; approximately one quarter of the student body boycotted school for a day. Plaintiff-appellant, Patricia Crawford, a guidance counselor at RHS, criticized the students who boycotted in an e-mail to a colleague and by leaving several comments on a RHS teacher’s public Facebook post that was similarly critical of the boycotting students. Some students and others considered the post and Crawford’s comments on the post to be offensive. The Facebook post “went viral,” and a public outcry against Crawford and other RHS teachers’ comments ensued, resulting in nationwide media attention, a RHS student protest against the teachers, and a flurry of e-mails to RHS administration from the public. Real party in interest, Jurupa Unified School District (the District), dismissed Crawford on the grounds that her conduct was “immoral” and showed that she was “evidently unfit for service” under Education Code section 44932. Defendant-respondent, the Commission on Public Competence of the Jurupa Unified School District (CPC), upheld Crawford’s dismissal, as did the trial court. On appeal, Crawford suggested there were three fixed categories of conduct that constituted "immoral conduct" as a matter of law, and her conduct did not fit into any of them. To this, the Court of Appeal disagreed: "A teacher’s conduct is therefore 'immoral' under [Education Code] section 44932 (a)(1) when it negatively affects the school community in a way that demonstrates the teacher is 'unfit to teach.'" The Court affirmed the trial court's finding that the weight of the evidence supported CPC's finding that Crawford engaged in immoral conduct and was evidently unfit to serve.

In re J.W.

Court: California Courts of Appeal

Docket: E074079(Fourth Appellate District)

Opinion Date: August 11, 2020

Judge: Raphael

Areas of Law: Civil Procedure, Family Law, Government & Administrative Law, Native American Law

This case began when, in December 2016, plaintiff-respondent San Bernardino Children and Family Services (CFS) learned that Mother threatened to physically abuse J.W., the youngest of her two daughters, then one year old. Mother had called 911 and threatened to stab herself and J.W. Police officers detained Mother and temporarily committed her pursuant to Welfare and Institutions Code section 5150. CFS’s detention reports stated that, a few weeks prior, Mother had moved to California from Louisiana, where she had been living with A.W., J.W.'s father. According to a family friend, Mother was spiraling into depression in Louisiana and had mentioned relinquishing her children to the Louisiana Department of Children and Family Services. The family friend urged Mother to come live with her in California, which she did. The family friend also informed CFS that in 2010 Mother had suffered traumatic brain injuries requiring dozens of surgeries, from a car accident that killed Mother’s mother and sister. Since the accident, Mother had suffered from grand mal seizures and had been diagnosed with schizophrenia. CFS petitioned for J.W. and her older half-sister L.M. After the detention hearing, the juvenile court found a prima facie case and detained the children. Although the detention reports noted Mother’s recent move from Louisiana, CFS did not address whether there was jurisdiction under the UCCJEA, and the juvenile court made no finding concerning the UCCJEA. Ultimately Mother's rights to the children were terminated. A.W. challenged the termination, contending the juvenile court failed to comply with the UCCJEA, such that Louisiana should have been the forum for the case. Mother contended the juvenile court failed to comply with the Indian Child Welfare Act of 1978. The Court of Appeal determined that, even assuming the juvenile court lacked UCCJEA jurisdiction, A.W. forfeited the ability to raise his argument on appeal. "Forfeiture would not apply if the UCCJEA provisions governing jurisdiction implicated the courts’ fundamental jurisdiction, but...they do not." The Court determined there was no failure to apply the ICWA, “ICWA does not obligate the court or [child protective agencies] 'to cast about’ for investigative leads.”

Oak Valley Hospital Dist. v. Cal. Dept. of Health Care Services

Court: California Courts of Appeal

Docket: C085869(Third Appellate District)

Opinion Date: August 10, 2020

Judge: Andrea Lynn Hoch

Areas of Law: Civil Procedure, Government & Administrative Law, Health Law, Public Benefits

Four consolidated appeals presented a question of whether medical providers who provided services under California’s Medi-Cal program were entitled to reimbursement for the costs of providing in-house medical services for their own employees through “nonqualifying” self-insurance programs. Even for nonqualifying self-insurance programs, however, the Provider Reimbursement Manual allowed providers to claim reimbursement for reasonable costs on a “claim-paid” basis. Oak Valley Hospital District (Oak Valley) and Ridgecrest Regional Hospital (Ridgecrest) had self-insurance programs providing health benefits to their employees. Claims for in-house medical services to their employees were included in cost reports submitted to the State Department of Health Care Services (DHS). DHS allowed the costs when Oak Valley and Ridgecrest employees received medical services from outside providers but denied costs when the medical services were provided in-house. DHS determined claims paid to Oak Valley and Ridgecrest out of their self-insurance plan for in-house medical services rendered to their employees were not allowable costs. The trial court granted Oak Valley and Ridgecrest's the writ petitions on grounds that costs of in-house medical services were reimbursable so long as they were “ 'reasonable’ ” as defined by the Provider Reimbursement Manual. DHS appealed in each case. After review, the Court of Appeal concluded Oak Valley’s and Ridgecrest’s self-insurance programs did not meet the requirements of a qualified plan under CMS guidelines and Provider Reimbursement Manual. The Court of Appeal rejected DHS’s contention that Oak Valley and Ridgecrest costs relating to in-house medical services for their employees were inherently unreasonable. To the extent DHS argued the cost reports were not per se unreasonable, but unreasonable under the circumstances of the actual treatments of Oak Valley and Ridgecrest employees, the Court determined the evidence in the record supports the trial court’s findings that expert testimony established Oak Valley and Ridgecrest incurred actual expenses in providing in-house medical services for their employees that were not otherwise reimbursed. Accordingly, the Court affirmed the trial court’s granting of the petitions for writs of administrative mandate.

Vickers v. Idaho Bd of Veterinary Medicine

Court: Idaho Supreme Court - Civil

Docket: 47270

Opinion Date: August 7, 2020

Judge: Moeller

Areas of Law: Animal / Dog Law, Civil Procedure, Government & Administrative Law, Professional Malpractice & Ethics

Kirby Vickers filed a grievance letter with Idaho Board of Veterinary Medicine (the Board”) against a veterinarian requesting that they take various disciplinary actions. After an investigation, the Board declined to take any action against the veterinarian. Vickers then filed suit in district court, seeking to compel the Board to hold a hearing. The district court dismissed his suit for lack of subject-matter jurisdiction. On appeal, Vickers argued his letter to the Board initiated a contested action for which he was entitled to judicial review. To this, the Idaho Supreme Court disagreed, finding that a private citizen could not initiate a "contested case" with a grievance letter. Vickers points to the language in caselaw: “[t]he filing of a complaint initiates a contested case,”to argue that any public citizen could file a complaint pursuant to Idaho Rule of Administrative Procedure of the Attorney General (“IDAPA”) 04.11.01.240.02 and begin a contested case. However, the Supreme Court found both the Administrative Procedures Act (APA) and the corresponding IDAPA rules, addressed only agency actions. "Vickers cannot apply these rules to his grievance letter, even if it was referred to as a “complaint” in correspondence from the Board, because it is not an agency action under the APA or IDAPA." The Court affirmed the district court's order dismissed this case for lack of subject-matter jurisdiction.

Mississippi Dept. of Revenue v. Comcast Cable Communications, LLC

Court: Supreme Court of Mississippi

Citation: 2019-CA-01134-SCT

Opinion Date: August 13, 2020

Judge: Griffis

Areas of Law: Government & Administrative Law, Tax Law

The Mississippi Department of Revenue (MDOR) appealed a chancellor’s entry of summary judgment in favor of Comcast of Georgia/Virginia, Inc., n/k/a Comcast Communications, LLC. In July 2012, the MDOR commenced an audit of Comcast’s Corporate Income and Franchise Tax Returns for 2008, 2009, and 2010. At the conclusion of the audit, the MDOR determined that Comcast owed additional corporate franchise tax. Specifically, the MDOR found that Comcast’s preapportioned capital base and its Mississippi apportionment ratios should have been increased for each applicable year. The increase in Comcast’s capital base was attributable to the MDOR’s disallowance of the holding-company exclusion. The increase in Comcast’s Mississippi apportionment ratios was attributable to MDOR’s inclusion of all of Comcast’s Mississippi destination sales as gross receipts. The application of the audited apportionment ratios to the audited capital base resulted in additional taxable capital apportioned to Mississippi for each year, with a corresponding increase in franchise tax due for each year. The Mississippi Supreme Court determined that because the MDOR’s franchise-tax assessment does not fairly represent the true value of Comcast’s capital in Mississippi, the chancellor’s judgment was correct.

Mississippi Dept. of Revenue v. SBC Telecom, Inc. et al.

Court: Supreme Court of Mississippi

Citation: 2019-CA-00917-SCT

Opinion Date: August 13, 2020

Judge: Chamberlin

Areas of Law: Business Law, Communications Law, Government & Administrative Law, Tax Law

At issue in this appeal was the computation of the broadband credit limits that a taxpayer may use against its franchise-tax and income-tax liabilities. During the tax periods at issue, AT&T Mobility II, LLC, and BellSouth Telecommunications operated telecommunications enterprises and made significant investments in broadband technology developments throughout Mississippi, generating Broadband Investment Credits (Broadband Credits) under Mississippi Code Section 57-87-5. BellSouth Mobile Data, SBC Alloy Holdings, New BellSouth Cannular Holdings, New Cingular Wireless Services, SBC Telecom, and Centennial were all direct or indirect corporate owners of AT&T Mobility II. The taxpayers here each filed a separate franchise-tax return and were included as affiliated group members in the combined corporate income-tax return filed on behalf of the affiliated group. The Mississippi Department of Revenue (MDOR) determined that the broadband credits the taxpayers had claimed had been improperly applied to an amount greater than the credit cap of 50 percent of the taxpayers’ tax liabilities according to Mississippi Code Section 57-87- 5(3) (Rev. 2014). The MDR disallowed portions of the broadband credits claimed by the taxpayers and assessed additional franchise taxes, interest and penalties to the taxpayers separately on several dates between December 22, 2014, and May 20, 2015. The taxpayers argue that each taxpayer is jointly and severally liable for the total combined income-tax liability of the affiliated group, therefore making the income-tax liability of each taxpayer the same as the total combined income-tax liability of the affiliated group. The chancellor granted summary judgment in favor of the taxpayers and ruled that the taxpayer’s tax liabilities under Chapters 7 and 13 of Title 271 of the Mississippi Code was the aggregate of the taxpayer’s separate franchise-tax liability and the total combined income-tax liability of the affiliated group. The Mississippi Supreme Court affirmed the chancellor's ruling on the credit-computation issue. "The plain and unambiguous language of Section 57-87-5 clearly limits broadband credits that a taxpayer may take in any given year to 50 percent of the aggregate of the taxpayers’ franchise-tax liability and the total combined income-tax liability of the affiliated group."

Appeal of Laura LeBorgne

Court: New Hampshire Supreme Court

Docket: 2019-0464

Opinion Date: August 12, 2020

Judge: Anna Barbara Hantz Marconi

Areas of Law: Government & Administrative Law, Labor & Employment Law, Personal Injury

Petitioner Laura LeBorgne appealed a New Hampshire Compensation Appeals Board (CAB) decision upholding the denial of her request for reimbursement for massage therapy that she received in New York to treat an injury suffered while working for respondent, Elliot Hospital. She argued the CAB erred in finding that she failed to satisfy her burden to prove that the treatment was reasonable, necessary, and related to her workplace injury, and in applying the requirements of RSA 281-A:23, V(c) (2010) to her case. The New Hampshire Supreme Court determined failure to meet the requirements of RSA 281-A:23, V(c) was irrelevant to the determination of whether the treatment received was reasonable, necessary, and related to the workplace injury under RSA 281-A:23, I. Thus, the Court held the CAB improperly determined that petitioner failed to establish that her New York massage therapy treatment was reasonable, necessary, and related to her 2011 injury because the form required by RSA 281-A:23, V(c) had not been submitted. "[A]lthough some of [petitioner's physician's] notes did not contain his recommendation that petitioner continue massage therapy, the CAB explicitly found that [the physician] ordered the continuance of massage therapy and gave substantial weight to his opinion that massage therapy was reasonable and necessary in treating her work-related injury. The CAB could not reasonably have found that the petitioner failed to prove that the massage therapy treatment at issue was reasonable, necessary, and related to her workplace injury because some of [the physician's] notes did not contain the massage recommendation, while also finding, based upon the evidence before it, that [he] ordered the continuance of massage therapy." The CAB was reversed and the matter remanded for further proceedings.

Green Mountain Fireworks, LLC, et al. v. Town of Colchester et al.

Court: Vermont Supreme Court

Citation: 2020 VT 64

Opinion Date: August 7, 2020

Judge: Beth Robinson

Areas of Law: Business Law, Government & Administrative Law

In May 2018, appellants Green Mountain Fireworks, LLC and its owner Matthew Lavigne, began selling fireworks from a retail store in Colchester, Vermont. As described in their complaint, the “intended purpose” for the store was “to sell retail fireworks to consumers.” In relation to the retail store, appellants obtained a license from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) as a “Type 53 - Dealer of Explosives.” They also got a building permit and a certificate of occupancy from the Town Zoning Administrator. These zoning permits were the only two permit applications appellants submitted to the Town. The issue this appeal presented for the Vermont Supreme Court's review centered on whether 20 V.S.A. 3132(a)(1) authorized municipalities to grant permits for the general retail sale of fireworks to consumers who do not hold valid permits to display those fireworks. Appellants appealed the superior court's dismissal of two actions: (1) their appeal of the Town of Colchester selectboard’s denial of their application for a permit to sell fireworks pursuant to 20 V.S.A. 3132(a)(1); and (2) their request for a declaratory judgment that, even without that distinct permit, they had “all possible and applicable permits” and were permitted under section 3132 to sell fireworks in the manner described in their complaint. The Supreme Court concluded that section 3132(a)(1) required a distinct permit for the sale of fireworks, but did not authorize a permit for the general retail sale of fireworks along the lines proposed by appellants. The only fireworks sales authorized by statute were sales to the holder of a display permit for the purpose of the permitted display. Therefore, the Supreme Court affirmed the trial court's judgments.

Martinez v. Town of Hartford

Court: Vermont Supreme Court

Citation: 2020 VT 70

Opinion Date: August 7, 2020

Judge: Beth Robinson

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law

Taxpayer Gabriel Martinez appealed a Property Valuation and Review Division (PVR) hearing officer's decision setting the fair market value of his property for purposes of the 2017 Town of Hartford grand list. Taxpayer argued the hearing officer erred in estimating fair market value based on sales of comparable properties because the value was conclusively established by the price taxpayer paid for the property in a contemporaneous arms-length transaction. After review, the Vermont Supreme Court held that, although the recent arms-length sale price constituted strong presumptive evidence of the fair market value of the property, the hearing officer did not commit legal error in considering other evidence of fair market value. In addition, the Court concluded the appraisal was rationally derived from the findings and evidence.