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Weekly Opinion Summaries
Government Relations Cases

June 4, 2010 Weekly Government Relations Newsletter
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Table of Contents


  • Vellejo v. Santini-Padilla
  • R.H. v. Plano Indep. Unified Sch. Dist.
  • Nattah v. Bush
  • KYD, Inc. v. US
  • Bank of N.Y. v. First Millennium, Inc.
  • National Air Traffic Controllers Assn. v. Fed'l Serv. Impasses Panel
  • Porter v. Shah
  • Colantonio v. Shinseki
  • Samantar v. Yousuf
  • Alabama v. N. Carolina
  • Espinosa-Cortez v. US Attorney General
  • Texas Midstream Gulf Servs. LLC v. Grand Prairie
  • Yankton Sioux Tribe v. US Army Corps of Eng'rs.
  • Honda of Am. Mfg., Inc. v. US
  • Chaparro v. Ruiz-Hernandez
  • Castro v. US
  • La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency
  • Wood v. Detroit Diesel Corp.
  • Barnes-Wallace v. San Diego
  • Collins v. Plant Insulation Co.
  • Bay City, Inc. v. Williams
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U.S. 1st Circuit, May 28, 2010
Vellejo v. Santini-Padilla, No. 08-2586
In plaintiffs' suit against the city of San Juan, Puerto Rico, its mayor, and others alleging police brutality, district court's dismissal of the federal and commonwealth-law claims with prejudice, as a sanction for persistent violations of scheduling orders and other discovery misconduct, is affirmed as plaintiffs' arguments are waived as none were timely presented to the district court and, even looking beyond the waiver, on the facts the district court did not abuse its discretion. Read more...

U.S. 5th Circuit, May 28, 2010
R.H. v. Plano Indep. Unified Sch. Dist., No. 09-40369
In plaintiff's appeal from the district court's denial of tuition reimbursement for private preschooling under the Individuals with Disabilities Education Act (IDEA), the order is affirmed where: 1) the school district discussed the potential harmful effects of plaintiff's placement in a special educational environment; 2) defendant considered whether plaintiff's Individualized Education Plan (IEP) could be satisfactorily implemented in a regular classroom; and 3) the lack of extended school year services was part and parcel of plaintiff's IEP, and he was thus required to give notice to defendant of his intent to reject the terms of his existing IEP. Read more...

U.S. D.C. Circuit Court of Appeals, May 28, 2010
Nattah v. Bush, No. 08-5119
In an action claiming that the U.S. military abducted plaintiff into slavery and forced him to serve on the front lines in Iraq, dismissal of the complaint is affirmed in part where the Virginia statute of limitations barred plaintiff's fraud claim. However, the order is vacated in part where: 1) sovereign immunity did not protect the Secretary of Defense from plaintiff's non-monetary claims; and 2) even assuming plaintiff was an at-will employee, defendant might nonetheless be obligated to provide promised benefits. Read more...

U.S. Fed. Circuit Court of Appeals, May 28, 2010
KYD, Inc. v. US, No. 09-1366
A decision of the Court of International Trade affirming the Department of Commerce's antidumping duty rate determination for polyethylene retail carrier bags that are manufactured by a Thai company and imported by plaintiff is affirmed where: 1) substantial evidence supports the antidumping margin assessed against plaintiff; 2) an AFA dumping margin determined in accordance with statutory requirements is not a punitive measure; and 3) plaintiff does not point to any statute or regulation that would entitle independent importers to a different assessment rate from the rate for importers that are affiliated with the foreign producer/exporters of the goods they import. Read more...

U.S. 2nd Circuit, June 01, 2010
Bank of N.Y. v. First Millennium, Inc., No. 09-1628
In an action asserting competing claims to the proceeds of a failed securitization of credit card debt, summary judgment for the Bank of New York and against the Federal Deposit Insurance Corporation (FDIC) is affirmed where: 1) the FDIC adduced no evidence to support its contention that the amount due on the notes at their maturity was an "invested amount" by the notes' terms, rather than the unpaid principal amount; 2) the FDIC failed to identify any other provision of the transaction documents that supported its contentions that the amount due on the notes was anything other than their entire unpaid principal; 3) issue preclusion did not apply because a prior action did not consider whether the notes at issue were full recourse or limited recourse obligations of the issuer; and 4) since the Bank of New York asserted no claims against the FDIC as receiver for the failed bank, it was not bound by the jurisdictional limitations or other procedural requirements of 12 U.S.C. s! ection 1821(d). Read more...

U.S. D.C. Circuit Court of Appeals, June 01, 2010
National Air Traffic Controllers Assn. v. Fed'l Serv. Impasses Panel, No. 08-5479
In an action by an air traffic controllers' union against the Federal Service Impasses Panel (FSIP), the Federal Aviation Administration (FAA), and the Federal Labor Relations Authority, seeking both a declaratory judgment that the FSIP had jurisdiction over an impasse involving the FAA and an injunction requiring the FSIP to assert jurisdiction over all such pending and future impasses, dismissal of the action for lack of subject matter jurisdiction is affirmed in part where none of the relief sought by the union could be obtained from the FAA. However, the dismissal is reversed in part where, because the union did not seek review of a decision of either the FSIP or the General Counsel, the district court erred in dismissing the case for lack of jurisdiction. Read more...

U.S. D.C. Circuit Court of Appeals, June 01, 2010
Porter v. Shah, No. 09-5167
In an action alleging various acts of retaliation and race and sex discrimination by plaintiff's employer, the United States Agency for International Development, summary judgment for defendant is affirmed in part where: 1) plaintiff failed to rebut defendant's legitimate reasons for not promoting him to two positions; 2) res judicata barred certain of plaintiff's claims; and 3) defendant's allegedly retaliatory performance assessment did not constitute a materially adverse employment action. However, the judgment is reversed in part where: 1) a reasonable juror could conclude that plaintiff was substantially more qualified for the position of Deputy Chief in defendant's Personnel Operations Division than the person selected to fill it; and 2) defendant's unfavorable interim performance assessment of plaintiff was a materially adverse employment action. Read more...

U.S. Fed. Circuit Court of Appeals, June 01, 2010
Colantonio v. Shinseki, No. 09-7067
Decision of the United States Court of Appeals for Veterans Claims finding that petitioner was not entitled to a free medical examination in connection with his claim for compensation for a service-connected disability is vacated and remanded to permit the Veterans Court to reconsider its harmless error analysis in light of the proper interpretation of 38 U.S.C. section 5103A(d)(2). Read more...

U.S. Supreme Court, June 01, 2010
Samantar v. Yousuf, No. 08-1555
In an action by persons who were persecuted by the Somali government during the 1980s, alleging that defendant, who then held high-level government positions in Somalia, exercised command and control over the military forces committing the abuses; that he knew or should have known of these acts; and that he aided and abetted in their commission, the Fourth Circuit's reversal of the dismissal of the action is affirmed where the Foreign Sovereign Immunities Act (FSIA) did not govern petitioner's claim of immunity because there was nothing to suggest that "foreign state" in the FSIA should be read to include an official acting on behalf of that state. Read more...

U.S. Supreme Court, June 01, 2010
Alabama v. N. Carolina, No. 132
In an action by Florida and Tennessee against North Carolina seeking monetary sanctions under the terms of the Southeast Interstate Low-Level Radioactive Waste Management Compact (Compact), which was entered into by Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia, a Special Master's recommendations are adopted and exceptions overruled where: 1) the terms of the Compact did not authorize the Commission administering the Compact to impose monetary sanctions against North Carolina; 2) North Carolina did not breach its contractual obligation to take "appropriate steps" toward the issuance of a waste disposal license; and 3) under Arizona v. California, 460 U.S. 605 (1983), the Commission's claims were not barred by sovereign immunity so long as the Commission asserted the same claims and sought the same relief as the plaintiff States. Read more...

U.S. 3rd Circuit, June 02, 2010
Espinosa-Cortez v. US Attorney General, No. 08-4170
A Colombian national's petition for review of the BIA's affirmance of the IJ's denial of his application for asylum and related relief, on the ground that he had not shown that he would be persecuted on account of actual or imputed political beliefs if he were removed to Colombia, is granted as the BIA's conclusion that the Fuerzas Armadas Revolucionarias de Colombia's (FARC) threats were not centrally motivated by a political opinion the guerrillas imputed to petitioner was not supported by substantial evidence in the record. Read more...

U.S. 5th Circuit, June 02, 2010
Texas Midstream Gulf Servs. LLC v. Grand Prairie, No. 08-11200
In an action seeking a declaration that a city ordinance regulating natural gas pipelines was preempted by the Pipeline Safety Act (PSA), 49 U.S.C. sections 60101-60137, and that the ordinance impinged on plaintiff's state-conferred eminent domain powers, the district court's partial grant of injunctive relief for plaintiff is affirmed in part where: 1) the city's zoning power was not subservient to plaintiff's eminent domain power; 2) the PSA did not preempt the setback requirement of the ordinance; and 3) the ordinance's preempted security fence requirement was severable from the remainder of the ordinance. Read more...

U.S. 8th Circuit, June 02, 2010
Yankton Sioux Tribe v. US Army Corps of Eng'rs., No. 08-2255
In an action by the Yankton Sioux Tribe challenging the validity of land transfers by the U.S. Army Corps of Engineers to the State of South Dakota, summary judgment for defendants is affirmed where: 1) the fee-patented lands at issue were outside the "external boundaries" of the reservation before they were acquired by the Corps; and 2) allotted lands still held in trust became lands "located outside the external boundaries" of the Reservation when fee simple title was acquired by the Corps for the Fort Randall Dam project. Read more...

U.S. Fed. Circuit Court of Appeals, June 02, 2010
Honda of Am. Mfg., Inc. v. US, No. 09-1493
Decision of the Court of International Trade (CIT) affirming a Customs and Border Protection classification of Honda's oil bolts under the Harmonized Tariff Schedule of the United States (HTSUS) is affirmed as the CIT properly interpreted and applied the Schedule in concluding that articles that are "parts of general use" under Chapter 73 cannot be classified as "parts and accessories" under Chapter 87. Read more...

U.S. 1st Circuit, June 03, 2010
Chaparro v. Ruiz-Hernandez, No. 08-1989
In a 42 U.S.C. section 1983 suit brought by a group of twenty-two contract employees against a Puerto Rican municipality and its officers, a grant of plaintiffs' motion for summary judgment is affirmed in part, vacated in part and remanded where: 1) plaintiffs had a reasonable expectation of continued employment; 2) a one-year term of employment with Puerto Rican government bodies is generally considered a protected property interest for procedural due process purposes; and 3) defendants' claim that plaintiffs were not deprived of protected property interests without due process of law because the process Puerto Rico provided was adequate is rejected. Read more...

U.S. 5th Circuit, June 03, 2010
Castro v. US, No. 07-40416
In an action under the Federal Tort Claims Act (FTCA) alleging that the government's negligence caused the wrongful deportation of plaintiff's son, dismissal of the action is affirmed where the government was protected from suit by 28 U.S.C. section 2680(a), the discretionary function exception of the FTCA. Read more...

U.S. 5th Circuit, June 03, 2010
La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, No. 09-40948
In a case involving the Federal Emergency Management Agency's (FEMA) administration of the home repair provisions of Section 408 of the Stafford Act, the district court's preliminary injunction requiring FEMA to publish standards that comply with 42 U.S.C. section 5174(j) is vacated where plaintiffs merely complained that the regulations lacked specificity, not that FEMA wholly abdicated its responsibility to promulgate regulations, or promulgated regulations that directly contravened the statutory language. Read more...

U.S. 6th Circuit, June 03, 2010
Wood v. Detroit Diesel Corp. , No. 09-1252
In a suit brought by retirees under the Labor-Management Relations Act and the Employee Retirement Income Security Act (ERISA), claiming that they were entitled to fully funded, lifetime health care benefits, district court's grant of their motion for summary judgment is reversed and remanded as defendant is entitled to summary judgment because the only coherent reading of the Cap Agreements establishes that the retirees, who retired between 1993-2004, are entitled to lifetime, capped health care benefits. Read more...

U.S. 9th Circuit, June 03, 2010
Barnes-Wallace v. San Diego, No. 04-55732
In an action claiming that the Boy Scouts' lease of public lands for its headquarters, accompanied by the Boy Scouts' prohibitions on atheism and homosexuality, was unconstitutional, the Ninth Circuit certifies the following questions to the California Supreme Court: 1) Do the leases interfere with the free exercise and enjoyment of religion by granting preference for a religious organization in violation of the No Preference Clause in article I, section 4 of the California Constitution?; 2) Are the leases "aid" for purposes of the No Aid Clause of article XVI, section 5 of the California Constitution? and 3) If the leases are aid, are they benefiting a "creed" or "sectarian purpose" in violation of the No Aid Clause? Read more...

California Appellate Districts, June 03, 2010
Collins v. Plant Insulation Co. , No. A124268
In plaintiffs' suit for the death of a husband and father caused by mesothelioma as a result of asbestos exposure while working as a welder at a shipyard, trial court's grant of plaintiffs' motion for a directed verdict regarding the Navy is reversed and remanded where: 1) the trial court erred in excluding the Navy from the list of entities as to which the jury could apportion fault pursuant to Proposition 51; and 2) on remand, retrial is limited to apportionment of fault among the Navy and defendants already found liable by the jury. Read more...

Supreme Court of Delaware, June 03, 2010
Bay City, Inc. v. Williams, No. 746, 2009
In an action seeking a declaratory judgment permitting a transfer and retention of plaintiff's mobile home in a city mobile housing park, judgment for plaintiff is affirmed where the city's requirement of a Housing and Urban Development (HUD) seal was arbitrary and capricious, because the seal signified nothing about the home's safety since the manufacturer affixed it, and HUD did not affix seals to homes manufactured before 1976. Read more...

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